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https://www.courtlistener.com/api/rest/v3/opinions/1359324/ | 357 S.E.2d 411 (1987)
PEOPLES SECURITY LIFE INSURANCE COMPANY
v.
Milton S. HOOKS.
No. 877SC48.
Court of Appeals of North Carolina.
July 7, 1987.
*413 Mount White Hutson & Carden, P.A. by James H. Hughes, Durham, for plaintiff-appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard by James T. Williams, Jr. and Jim W. Phillips, Jr., Greensboro, for defendant-appellee.
JOHNSON, Judge.
Plaintiff, argues on appeal that the trial court erred in dismissing both counts of its complaint for failure to state a claim upon which relief may be granted. We disagree.
The test a trial court must apply when ruling on a motion to dismiss a complaint for failure to state a claim upon which relief may be granted is whether the pleading, when liberally construed, is legally sufficient. E.g. Fowler v. Williamson, 39 N.C.App. 715, 251 S.E.2d 889 (1979). "To prevent a Rule 12(b)(6) dismissal, a party must (1) give sufficient notice of the events on which the claim is based to enable the adverse party to respond and prepare for trial, and (2) `state enough to satisfy the substantive elements of at least some legally recognized claim.'" Hewes v. Hewes, 61 N.C.App. 603, 604, 301 S.E.2d 120, 121 (1983) (emphasis supplied) (quoting Orange County v. Dep't of Transportation, 46 N.C.App. 350, 378-379, 265 S.E.2d 890, 909 (1980)). A dismissal pursuant to Rule 12(b)(6), N.C. Rules Civ.P. is proper when the complaint reveals on its face that some fact essential to plaintiff's claim is missing. Schloss Outdoor Adv. Co. v. The City of Charlotte, 50 N.C.App. 150, 272 S.E.2d 920 (1980).
Count I
In the case sub judice Count I of plaintiff's complaint purports to state tortious interference with contract as a claim for relief. There are no cases reported in the state of North Carolina wherein a North Carolina Court has recognized a claim for hiring or recruiting another employer's employee whose employment contract is terminable at will. To the contrary, two Supreme Court opinions stand for the opposite of such a proposition. See Haskins v. Royster, 70 N.C. 601 (1874). See also Morgan v. Smith, 77 N.C. 37 (1877).
Plaintiff relies upon Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176 (1954) and Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). Although both Smith and Childress involved claims based upon malicious interference with employment contracts terminable at will, neither case was decided in the context of a competitive business setting wherein a competitor recruited the competition's employees whose contracts were terminable at will. We decline to extend the Supreme Court's holdings in Smith and Childress to the distinguishable facts in the case sub judice. The trial court did not err in dismissing plaintiff's complaint for failure to state a claim upon which relief may be granted.
Count II
Count II of plaintiff's complaint purports to state breach of an employment contract as a claim for relief. After thoroughly reviewing the pleadings we fail to find any factual allegations to support a claim for a breach of defendant's employment contract with plaintiff.
The pertinent contractual provision that plaintiff claims defendant breached is as follows:
District manager shall thereafter for a period of one year refrain from further solicitation or servicing of policyholder of the Company or F & C of any district to which District Manager has been assigned, or in any way interfering with existing policies.
Plaintiff, in its complaint did not allege that defendant solicited or serviced any of plaintiff's policyholders. There were no allegations that any of plaintiff's former agents solicited or serviced any of plaintiff's policyholders. The only allegation with which plaintiff attempted to support its claim for breach of the non-competition covenant was that due to the departure of its employees it was left "without adequate *414 means" to service its existing policyholders. We hold that Count II of plaintiff's complaint fails to allege facts sufficient to state a claim upon which relief may be granted. Hewes, supra. We conclude that the trial court did not err in dismissing plaintiff's complaint for failure to state a claim upon which relief may be granted.
Affirmed.
ARNOLD and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359395/ | 257 Kan. 82 (1995)
STATE OF KANSAS, Appellee,
v.
DENNIS T. BOYD, Appellant.
No. 70,304
Supreme Court of Kansas.
Opinion filed March 10, 1995.
The opinion of the court was delivered by
HOLMES, C.J.:
Defendant Dennis Boyd appeals his jury convictions of two counts of attempted second-degree murder, K.S.A. 21-3402 and K.S.A. 1992 Supp. 21-3301, and one count of battery, K.S.A. 21-3412. The Court of Appeals in an unpublished opinion filed July 22, 1994, reversed the convictions and remanded the *83 case for a new trial based on the trial court's failure to provide a sufficient response to requests by the jury for witness testimony. The Court of Appeals found that issue dispositive of the case and did not address several other alleged trial and sentencing errors asserted by defendant. We granted the State's petition for review, and we now reverse the decision of the Court of Appeals and remand the case to that court for further proceedings.
The sole issue before this court on the petition for review is whether the trial court committed reversible error in responding to the jury's request for a read-back of certain testimony. The facts will be greatly summarized and limited to those necessary to decide the issue before the court.
Defendant lived with Debra Moore and her three children: Antonio, age seven at the time of trial; Brittany, age five; and Tajiha, age four. Antonio and Tajiha were the biological children of Boyd. Chris Lockhart was the father of Brittany. On June 29, 1992, defendant struck Debra several times during a fight at their home. Brittany and Tajiha were also home at the time. Debra escaped through a bedroom window and ran to seek help. She returned some time later with two police officers and found the two little girls stabbed in the stomach. Both children were hospitalized with life-threatening wounds that would have been fatal absent emergency care. Brittany was in the hospital for about a week and Tajiha was hospitalized three to four weeks. Fortunately, both survived. Defendant was charged with two counts of attempted first-degree murder of the two girls and one count of battery for the beating administered to Debra.
Brittany was interviewed by Wichita police detectives twice while in the hospital, and she subsequently testified at the defendant's trial. Detective Lawson, one of the detectives who interviewed Brittany in the hospital, also testified at trial. At the time of his first interview with Brittany, she was in intensive care and not very responsive. Later, at a second interview, she was much more alert and responsive to the officers' questions.
Brittany testified that defendant stabbed her and Tajiha. Although she sometimes referred to both defendant and her natural father, Chris Lockhart, as "Daddy," her testimony was clear that *84 she was referring to defendant as the person who did the stabbing. There was no evidence or testimony that Chris Lockhart was involved in the crimes in any way.
The defendant claimed he was not present, did not live there, and knew nothing about the fight and stabbings. All of those assertions were clearly contrary to other credible evidence. He claimed an alibi but produced no alibi witnesses, although he maintained he had several.
During jury deliberations, the jury made the following request:
"Request the Transcript
"1. On the scene testimony of the officer that responded to the call and drove Debra to the House on June 29, 1992. (What the officer heard from the time he entered the house until EMS Transported the Children.)
"2. We request the transcript of Brittany's testimony the first time she was interviewed in the hospital by detective? Lawson?
"3. The end of Brittany's testimony as to who else was at the house when she was hurt?
"4. The closing remarks of the defense attorney as it relates to drug use. The paragraph before and after the statement.
"5. We would like to request Brittany's opening comments up through the first 3 or 4 questions.
[Jury foreman's signature]
"Did Brittany make a comment about being stabbed before she was asked the question."
In response to the jury's first request the judge had the court reporter read back a portion of the testimony of the officer who first accompanied Debra into the house and discovered the victims. The court denied the jury's second request, stating: "Your request for a copy of Brittany's transcript must be denied because it was never marked as an exhibit and the transcript itself did not become an exhibit or part of the evidence, so I cannot allow you to have that." No response was made to the third request as it had been crossed out by the jury with "O.K." written beside it before submission to the court. The judge denied request number four, explaining to the jury that the attorneys' closing arguments did not constitute evidence admitted at trial. In response to inquiry five and the question following the jury foreman's signature, the following testimony of Brittany was read to the jury:
*85 "Q. Okay. Brittany, did you ever get hurt on your stomach; yes or no?
"A. (The witness shook her head.)
"Q. Can you answer out loud for me.
"A. No.
"Q. Okay. Did you ever have to go to the hospital?
"A. (The witness nodded.)
"Q. Yes or no?
"A. Yes.
"Q. Why'd you have to go to the hospital?
"A. 'Cause I got stabbed."
These were the first substantive questions asked of Brittany. All preceding questions were merely qualifying questions directed to her because of her young age. The defendant's assertion of error hinges around the trial court's response to requests two and five.
The defendant and his counsel were present during the entire proceedings and, after the jury was excused to return to the jury room, the court inquired:
"THE COURT: Record should reflect the jury's departed. Mr. Loeffler, anything else we need on the record?
"MR. LOEFFLER: Nothing, your Honor.
"THE COURT: Anything else on behalf of the State?
"MS. BARNETT: No, your Honor.
"THE COURT: All right. We're in recess.
"MR. LOEFFLER: Thank you, your Honor."
At no time during the read-back proceedings or thereafter did defendant object to the court's answers or seek any clarification of the jury's requests or of the responses given by the court. Likewise, the jury made no further inquiry of the court and was apparently satisfied with the information provided to it. Shortly after the jury had reconvened, it brought in a verdict of guilty to two counts of attempted second-degree murder and one count of battery.
We now turn to the issue of whether the trial court committed reversible error in its responses to the jury's requests for a read-back of trial testimony. K.S.A. 22-3420(3) provides:
"After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where ... the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents *86 himself, and his counsel and after notice to the prosecuting attorney." (Emphasis added.)
The Court of Appeals in reversing the trial court relied heavily on our recent decision in State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994). Myers was before this court on a petition for review of an unpublished opinion of the Court of Appeals. In Myers, we adopted several portions of the Court of Appeals' unpublished opinion and included them in our opinion. The defendant, before this court, also relies primarily on Myers. In Myers, the jury requested the police reports of three police officers or, in the alternative, copies of the testimony of the three officers. The jury also requested the testimony of Dr. Logan, a defense witness. The trial court responded: "Here's your answer. The answer's no, please reread your instructions." 255 Kan. at 4.
As noted by the Court of Appeals, the record did not reflect "`whether the defendant, his counsel, and the prosecuting attorney were present at the time the jury questions were asked and answered.'" 255 Kan. at 4. The Court of Appeals' decision in Myers hinged largely on the fact that the record was silent on whether the defendant and his counsel were present. In discussing whether the defendant waived any objection to the response to the jury's requests, this court stated:
"The Court of Appeals noted that the record did not reflect `whether the defendant, his counsel, and the prosecuting attorney were present at the time the jury questions were asked and answered.' The State does not argue waiver. Myers failed to object to the response to the jury's questions. The Court of Appeals reasoned that, even if the State had advanced such a claim, `we would not be able to consider it because we would have to assume, without knowing, that the defendant and his counsel were present and were given the opportunity to object. The record does not indicate anything either way on that issue. We are not comfortable foreclosing an important issue based on assumptions.'" 255 Kan. at 4.
In Myers, this court, in considering the jury's request, adopted the Court of Appeals' observation
"`that the jury's question was somewhat confusing. It asked for copies of the testimony. We realize at that point no transcript or copies of the testimony existed and the jury's request could not be granted in a literal sense. The jury intended, by its question, to request a "read-back" of the testimony identified.
*87 "`However, terms such as "transcript" and "read-back" are lawyer terms and a lay jury would not necessarily understand the terms. There is also no reason to assume the jury understood that no transcript is available until the court reporter transcribes the testimony taken in open court, that this transcription will not occur unless requested, and that the request for transcription usually occurs for appellate purposes after the trial is concluded and verdict returned. We can neither expect nor require lay jurors to speak proper legalese, nor can we expect them to ask questions in that format.
"`We think a jury's request must be interpreted on a common-sense basis. What is obvious about this jury's request is that it wanted an opportunity to read or hear the requested testimony one more time before it reached a decision. It is far too simplistic to write off a jury's request as asking only for a transcript which was not available. At the very least, the trial court was obligated to make a meaningful response to the jury's question and advise it of its right to be given a read-back of the testimony.'" 255 Kan. at 5.
The issue of the propriety of reading testimony to a jury in answer to a jury's request was approved long ago in State v. Logue, 115 Kan. 391, Syl. ¶ 1, 223 P. 482 (1924). In State v. Sully, 219 Kan. 222, 228, 547 P.2d 344 (1976), we stated:
"Under K.S.A. 22-3420(3) jurors may, after they have retired for deliberation, request further information as to the law or evidence in the case, but such requests are generally addressed to the trial court's discretion. (ABA Standards Relating to Trial by Jury [Approved Draft, 1968] § 5.3). This rule has been applied in Kansas (see State v. Wilson, 169 Kan. 659, 220 P.2d 121)."
While K.S.A. 22-3420(3) places a mandatory duty upon the trial court to respond to a jury's request for further information "as to any part of the law or evidence arising in the case," the manner and extent of the trial court's response rest in the sound discretion of the trial court.
In State v. Redford, 242 Kan. 658, 750 P.2d 1013 (1988), the defendant appealed his convictions of several crimes perpetuated against the victim, Donna. During deliberations the jury requested that the testimony of Donna and Redford be read to them. Donna's testimony was unavailable due to illness of the court reporter. A different reporter, who took Redford's testimony, was able to read back his testimony. The jury returned a verdict prior to hearing Donna's testimony. On appeal the defendant claimed error because the testimony of both witnesses was not read to the jury. The court found no error and in doing *88 so stated: "The means by which the court complies with a jury request to have testimony read back is subject to its discretion." 242 Kan. at 668.
In Myers, we discussed the decisions in Redford and State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), which also applied the discretionary standard to the manner in which the court responds to the jury's requests. In doing so we stated:
"K.S.A. 22-3420(3) states that the testimony `shall be read.' A trial court is required to accede to a jury's request to read back testimony. We do not believe, however, that such a strict construction forecloses all trial court discretion as to the manner of acceding to the request. Both Ruebke and Redford are consistent in the view that the trial court has the discretion to control the read-back. The trial court is free to clarify the jury's read-back request where the read-back request is unclear or too broad, or the read-back would jeopardize the man-ageability of the trial. Discretion rests with the trial court to clarify and focus the jury's inquiry." 255 Kan. at 8.
Thus, our cases are consistent that a trial court may not ignore a jury's request submitted pursuant to K.S.A. 22-3420(3) but must respond in some meaningful manner or seek additional clarification or limitation of the request. It is only when the trial court makes no attempt to provide a meaningful response to an appropriate request or gives an erroneous response that the mandatory requirement of K.S.A. 22-3420(3) is breached. Once the trial court attempts to give an enlightening response to a jury's request or seeks additional clarification or limitation of the request, then the standard of review as to the sufficiency or propriety of the response is one of abuse of discretion by the trial court.
In Myers, we also considered the issue of waiver based upon no showing of any objection by the defendant. We stated:
"Does Myers' failure either to object or show prejudice require that his convictions be affirmed? The mandatory directive in K.S.A. 22-3420(3) moves the trial court's response out of the realm of discretion; consequently, Myers need not show prejudice. No discussion among the trial court and counsel concerning the merit of the jury's request is in the record. The presence of Myers or his counsel at the hearing on the request should not be implied. Myers has not waived his right to raise the issue on appeal." (Emphasis added.) 255 Kan. at 9.
*89 Both the Court of Appeals and this court in Myers based their decisions not only on the fact that K.S.A. 22-3420(3) mandates a meaningful attempt to comply with the jury's requests, or at least seek clarification or limitation thereof, but also on the fact that there was no showing that the defendant and his counsel were present when the court refused to furnish the requested information. Both courts recognized that they would not imply that the defendant was present and, absent a showing that the defendant was present, the courts would not assume the defendant waived any objection to the trial court's denial of the request. The converse of such holding is that under appropriate circumstances a defendant may be deemed to have waived any objection to a trial court's response to a read-back request.
In the case now before the court the record clearly shows defendant participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22-3420(3). As the State points out, a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. See State v. Wolfe, 194 Kan. 697, 699, 401 P.2d 917 (1965). Clearly, the defendant had the opportunity to object and to inform the trial court of his dissatisfaction with the ruling while the court still had a chance to correct any error. By failing to object, the defendant waived his right to raise the issue on appeal.
As with most rules there may be circumstances which create an exception. We have recognized an exception to the requirement that an issue must be raised in the trial court to be considered on appeal in exceptional circumstances, where consideration of the issue is necessary to serve the ends of justice or prevent a denial of fundamental rights. State v. Edwards, 252 Kan. 860, 863-64, 852 P.2d 98 (1993).
The defendant argues exceptional circumstances are present in this case because he has been denied his fundamental right to a fair trial. The Court of Appeals in the instant case stated:
*90 "It is clear that a defendant has a fundamental right to have his or her guilt or innocence adjudicated by a jury. The jury process cannot be compromised in any way. Myers, 255 Kan. at 6. The issue of failure to provide a requested read-back may be heard for the first time on appeal to prevent the denial of fundamental rights."
Although we find no denial of defendant's fundamental rights here, we will, out of an abundance of caution, consider the merits of defendant's arguments relating to the sufficiency of the trial court's responses.
Even if the record here supported a finding of exceptional circumstances, which it does not, the responses of the court to the jury's requests do not constitute an abuse of discretion or justify a reversal of the convictions. The trial judge did not refuse to answer the jury's requests as was done in Myers but to the contrary did respond, apparently to the satisfaction of both defendant and the jury.
The Court of Appeals based its decision on the trial court's response to the jury's request number two for the "transcript of Brittany's testimony the first time she was interviewed in the hospital by detective? Lawson?" The trial court explained to the jury that it was not entitled to the transcript because the transcript was not admitted into evidence. The Court of Appeals held the trial court erred in failing to recognize that what the jury really wanted was a read-back of the testimony of the officer regarding the hospital interview. The officer apparently used a transcript from the interview during his testimony. While it is easy to read a cold record and speculate on what the jury may or may not have wanted in its somewhat ambiguous request, it is a different situation entirely for the trial judge who has all the parties and the jury before him. Obviously, the trial judge had no problem with the request and responded to the jury. The jury did not seek further information, and the defendant did not object to the response when he had every opportunity to do so. The trial judge had the opportunity to observe the demeanor and reaction of the jury and the parties, neither of which is available to us from the printed page. While in hindsight it might have been better if the trial court had explained to the jury that it could have portions *91 of the officer's testimony read in lieu of the transcript of his interview with Brittany, we do not find the response as being so lacking or negative as to constitute an abuse of discretion or to be an infringement upon the defendant's fundamental rights.
Request number one asked for the testimony of the police officer who first entered the house with Debra. The trial court had the reporter read to the jury the part of the testimony that the court deemed relevant to the request. Request number three did not require a response as it was stricken out by the jury and the court appropriately made no response. Request number four sought a portion of closing argument, and the trial court was correct in denying the request on the grounds that argument is not evidence in the case. In doing so, the court did explain its reasons to the jury. The defendant raises no serious argument concerning the trial court's response to requests one and four or the lack of a response to number three. Request number five for Brittany's opening comments and the subsequent question relating to her testimony about being stabbed were answered by reading to the jury the first several substantive questions and answers, which also included the stabbing testimony. In oral argument before this court, defense counsel asserted that the response was erroneous because it did not comply literally with the jury request for "the first three or four questions." Such an argument is totally frivolous considering the first four questions were limited to Brittany's name and age.
The trial court did not refuse to answer the jury's requests or give a totally inadequate or erroneous response and therefore did not breach the mandatory requirements of K.S.A. 22-3420(3) as held and discussed in Myers and as later recognized in State v. Bruce, 255 Kan. 388, 396-97, 874 P.2d 1165 (1994). As to the manner in which the trial court responded to the jury requests, and the extent of such response, the test is whether the trial court abused its discretion. We find no abuse of discretion here. In addition, the defendant made no objection to the procedure followed or the responses given by the trial court and cannot now be heard to complain for the first time on appeal. For all the foregoing reasons we reverse the Court of Appeals.
*92 As there were other issues raised on appeal which were not addressed by the Court of Appeals and were not included in the petition for review before this court (See Supreme Court Rule 8.03[g][1] [1994 Kan. Ct. R. Annot. 50]), we reverse the Court of Appeals and remand the case to the Court of Appeals for further proceedings on the other issues.
ALLEGRUCCI, J., dissenting:
Although I agree with the majority that K.S.A. 22-3420(3) places a mandatory duty upon the trial court to respond to the jury's request, I respectfully dissent from the majority's holding that
"[t]he time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22-3420(3). As the State points out, a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. See State v. Wolfe, 194 Kan. 697, 699, 401 P.2d 917 (1965). Clearly, the defendant had the opportunity to object and to inform the trial court of his dissatisfaction with the ruling while the court still had a chance to correct any error. By failing to object, the defendant waived his right to raise the issue on appeal."
The defendant should not be precluded from raising the issue on appeal for two reasons. The response by the court to the jury's request was in the nature of supplemental instructions given during jury deliberations and, as such, K.S.A. 22-3414(3) applies. See State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987). K.S.A. 22-3414(3) provides that the clearly erroneous standard applies on appeal if the defendant fails to object to the instruction at trial.
In addition, the trial court's duty to "respond in some meaningful manner" under K.S.A. 22-3420(3) is analogous to the court's duty to instruct on lesser included offenses under K.S.A. 21-3107(3). Under both statutes, the legislature has placed an absolute duty with the trial court. The defendant need not request or object in order to preserve the issue on appeal when the trial court fails to instruct on a lesser included offense. Such failure by the trial court is reversible error. In my opinion, so should it be when the trial court refuses or fails to respond to the jury's request under K.S.A. 22-3420(3).
*93 I would reverse the defendant's conviction and remand for new trial.
LOCKETT, J., joins the foregoing dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359434/ | 364 S.C. 444 (2005)
613 S.E.2d 802
Rebecca BREWER, Appellant,
v.
STOKES KIA, ISUZU, SUBARU, INC., Respondent.
No. 3985.
Court of Appeals of South Carolina.
Heard March 9, 2005.
Decided May 2, 2005.
Rehearing Denied June 22, 2005.
*446 Costa Steven Moskos, of Charleston, for Appellant.
Susan Corner Rosen, of Charleston, for Respondent.
*447 HEARN, C.J.
This appeal arises after summary judgment was granted to Stokes Kia, Isuzu, Subaru, Inc., in a claim for breach of contract, conversion, and violation of certain consumer protection laws brought by a purchaser whose car had been repossessed in what was alleged to have been a yo-yo sale. We affirm.
FACTS
In January 2000, Rebecca Brewer's automobile quit running, and she began shopping for another car. Brewer visited two car dealerships before visiting Stokes Kia. At both of the prior dealerships, Brewer was unable to purchase a car because of her poor credit rating. When Brewer arrived at Stokes Kia and explained her price range, she was shown a 1996 Ford Aspire, which she agreed to purchase. The salesman completed a handwritten buyer's order, which was signed by Brewer and initialed by the Stokes Kia sales manager. This buyer's order specified the car to be purchased, the price, and memorialized the acceptance of a one thousand dollar down payment from Brewer for the car.
Next, Brewer met with the Stokes Kia finance manager. The finance manager had her sign a new buyer's order that had been computer-generated and was stamped "VEHICLE DELIVERED SUBJECT TO CREDIT APPROVAL." Brewer initialed beside the stamped language. Brewer also signed a retail installment sales contract and security agreement. The retail installment sales contract lists the amount financed for the purchase of the car, $6,609.50; the name of the seller, Stokes Kia-Isuzu Subaru; the annual percentage rate, 21.95%; the number of payments, 36; amount of payments, $252.24; and when the monthly payments begin, February 10, 2000. This form was not signed by a representative of Stokes Kia. Additionally, Brewer signed a bailment agreement. The bailment agreement states: "If dealer is able to provide the Buyer(s) with financing according to the terms set forth in the Sales Agreement, the said Sales Agreement shall be binding upon Buyer(s) and enforceable by Dealer. In the event dealer is unable to provide financing Buyer(s) shall provide their own financing." It also says: "Pending credit approval of the Buyer(s) by the financing institution and *448 completion of the sales transaction, delivery of said vehicle by the Dealer is hereby made to Buyer(s) as a convenience to Buyer(s)...." Brewer admitted nobody at Stokes Kia told her financing had been approved, but she also testified no one had indicated otherwise.
Several days later, Stokes Kia was having difficulty obtaining financing for Brewer and called to obtain further information about her employment status. When Brewer called back to resolve the question, she was told the dealer was unable to secure financing for her and, in order to keep the car, she would have to get a co-signor or find her own financing. Brewer contacted her bank, but her request for a loan was denied due to her poor credit rating. On January 19, 2000, Brewer received a call from Stokes Kia asking her to return the car, but she refused. Later that evening, a representative of Stokes Kia repossessed the vehicle. After this claim was initiated and depositions had been taken by Brewer, Stokes Kia returned her deposit with interest.
Brewer commenced this action against Stokes Kia, alleging causes of action for breach of contract; conversion; violations of the Unfair Trade Practices Act; and violation of the Manufacturers, Distributors, and Dealers Act. Approximately one year later, Stokes Kia moved for summary judgment. Nearly three weeks after the motion, Brewer sought to amend her complaint to add six additional causes of action. In June 2001, Judge Smoak denied the motion for summary judgment and granted the motion to amend the complaint. However, upon reconsideration, Judge Smoak granted summary judgment. A motion for reconsideration was timely filed, but was not heard until six months later. By that time, Judge Smoak had retired and the motion for reconsideration was heard by Judge Rawl. Judge Rawl denied the motion, and this appeal followed.
STANDARD OF REVIEW
A trial court's decision to grant a motion for summary judgment is appropriate when there is no genuine issue of material fact so that the moving party is entitled to judgment as a matter of law. Gilbert v. Miller, 356 S.C. 25, 28, 586 S.E.2d 861, 863 (Ct.App.2003). All ambiguities, conclusions, and inferences arising from the evidence must be construed against the moving party. Id. An appellate court will review summary judgment in a liberal manner so as to construe the *449 record in favor of the nonmoving party and give the nonmoving party the benefit of all favorable inferences that might reasonably be drawn therefrom. Jackson v. Doe, 342 S.C. 552, 555, 537 S.E.2d 567, 568 (Ct.App.2000). Additionally, our court is cognizant that summary judgment is a drastic remedy, which must be cautiously invoked so that no person will be improperly deprived of a trial on disputed factual issues. Id.
LAW/ANALYSIS
Brewer argues the trial court erred in granting summary judgment because: (1) issues of fact exist as to the existence of a contract; (2) she was not in default and therefore Stokes Kia did not have a right to repossess; and (3) she suffered damages. Brewer further argues that because summary judgment was granted in error, she should have been allowed to amend her complaint to add various other causes of action.
1. Contract issues
Brewer argues the trial court erred in granting summary judgment because there were issues of material fact regarding the existence of a contract. To support this argument, she first asserts the contract between Stokes Kia was not conditioned on her credit being approved. We disagree.
A condition precedent to a contract is "any fact other than the lapse of time, which, unless excused, must exist or occur before a duty of immediate performance arises." Worley v. Yarborough Ford, Inc., 317 S.C. 206, 210, 452 S.E.2d 622, 624 (Ct.App.1994). "The question of whether a provision `in a contract constitutes a condition precedent is a question of construction dependent on the intent of the parties to be gathered from the language they employ.'" Id. (citations omitted).
Here, the computer-generated buyer's order contained a stamped declaration that delivery was subject to credit approval, and Brewer admitted to seeing and initialing this declaration. Further, Brewer admitted no one at Stokes Kia told her that her credit had been approved.
In addition to the stamp on the signed, computer-generated buyer's order, a bailment agreement signed by Brewer states: "In the event dealer is unable to provide financing Buyer(s) shall provide their own financing." The computer-generated *450 buyer's order and the bailment agreement make it clear that the sale was not final until financing was arranged. The contract provided that Stokes Kia would attempt to obtain financing for Brewer, but if it could not, the responsibility would become Brewer's. If neither Stokes Kia nor Brewer were able to obtain financing, ownership of the vehicle would remain with Stokes Kia.
In the event we find a condition precedent existed, Brewer further argues there was nothing to indicate the condition was not met, nor was there anything specifying who had to approve her request for credit. However, the bailment agreement explained the deal would be completed "[i]f dealer is able to provide Buyer(s) with financing according to the terms set forth in the Sales Agreement...." This language vests discretion concerning financing with the dealership. Stokes Kia, like the two dealerships Brewer had previously visited, was unable to find a company to finance Brewer's purchase. Thus, it became Brewer's responsibility to find financing on her own. She, too, was unable to find financing.
Brewer also argues the computer-generated buyer's order was preceded by a handwritten buyer's order which did not have a condition precedent and that the handwritten order itself constituted a contract. However, the actions of the parties and Brewer's ultimate signature on the computer-generated buyer's order demonstrate this handwritten buyer's order was simply a preliminary negotiation to the final agreement. This is underscored by the fact that no terms besides price were discussed in the handwritten buyer's order. In fact, it says that the "UNPAID BALANCE IS DUE ON DELIVERY" and lists the balance as $5,397.50. If this were the only enforceable contract between the parties, Brewer would be obligated to pay $5,397.50 to own the car. It is undisputed that Brewer was not able to meet that obligation.
Brewer also argues the retail installment contract and security agreement constitute Stokes Kia's offer to finance the transaction. It appears from deposition testimony the retail installment contract was signed by Brewer when she met with the finance manager. It was at this time that she also signed the computer-generated buyer's order. Although Brewer signed the installment contract, it was never signed by Stokes Kia. In fact, Stokes Kia generally does not sign this document *451 until the credit has been approved. Because the document was not signed by Stokes Kia, it is not enforceable against it. See S.C.Code Ann. § 36-2-201 (2004).
Additionally, Brewer argues physical delivery of the car by Stokes Kia is either evidence the contract was complete or an indication that legal ownership of the car had transferred. She refers to section 36-2-401 of the South Carolina Code (2004) to support the latter proposition. Section 36-2-401 provides:
Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place. . . .
The key phrase from section 36-2-401 is "unless otherwise explicitly agreed." The agreement between Brewer and Stokes Kia did explicitly state physical delivery of the car was only a convenience provided to the buyer and the sale was pending credit approval. Therefore, pursuant to the agreement, title did not pass at the time of physical delivery. This contract language also prevents introduction of this conduct as evidence the contract was complete.
Finally, in her reply brief, Brewer attempts to argue this case is controlled by Singleton v. Stokes Motors, Inc., 358 S.C. 369, 595 S.E.2d 461 (2004). Singleton involved a yo-yo sale, defined as occurring when:
The consumer believes a vehicle's installment or sale is final and the dealer gives the consumer possession of the car `on the spot.' The dealer later tells the consumer to return the car because the financing has fallen through. If the consumer does not return the vehicle or agree to rewrite the transaction on less favorable terms, the dealer repossesses the vehicle.
Id. at 380, 595 S.E.2d at 467 (quoting National Consumer Law Center, Unfair and Deceptive Acts and Practices 316 (5th ed.2001)). The transaction in Singleton involved an unconditional sales contract and conditional bailment agreement, which our supreme court called "patently unfair and deceptive acts." Id. at 381, 595 S.E.2d at 468. However, the court determined the dealerships could easily cure the unfairness by *452 explaining in the sales agreement that the sale is conditioned upon the buyer obtaining financing and telling the customers the truth about their credit. Id. at 381-82, 595 S.E.2d at 468. Singleton does not apply to Brewer's transaction because the buyer's order did contain a stamp making delivery of the car conditional upon Brewer obtaining financing and because Stokes Kia never told Brewer she had been financed.
Thus, we agree the trial court did not err in granting summary judgment on the basis of the lack of an enforceable contract.
2. Right to repossess, damages, and amendment of the complaint
Brewer argues the trial court was also in error when it found Stokes Kia had a right to repossess, when it found there were no damages, and when it denied her motion to amend the complaint. We disagree.
Brewer argues there was no right to repossession because she had not defaulted on the contract. See S.C.Code Ann. § 37-5-110 (2002). However, as discussed above, the car was delivered to Brewer subject to credit approval as a convenience extended to her by Stokes Kia. When Brewer was not financed and she was not able to obtain financing on her own, she was unable to complete the transaction. By failing to pay for the car, she defaulted on the contract. When default occurred, Stokes Kia had the right to repossess the car. See S.C.Code Ann. § 37-5-112 (2002).[1]
The trial court also supported its grant of summary judgment on the basis that Brewer could not demonstrate any damages. The trial court explained Brewer's down payment had been returned with interest and though Brewer alleged she could have had a free rental car for four additional days from the time of the sale, she actually used the car from Stokes Kia for eight days. Because we found the trial court was correct in granting summary judgment to Stokes Kia on the basis of the contract issues, it is not necessary that we rule on this issue. See Rule 220(c), SCACR; Futch v. McAllister *453 Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining the appellate court need not address remaining issues when disposition of prior issue is dispositive).
Finally, Brewer's argument regarding amendment of her complaint is contingent on our finding the grant of summary judgment was in error. Because we have affirmed the grant of summary judgment this issue must also fail.
CONCLUSION
For the reasons discussed above, the trial court's grant of summary judgment is
AFFIRMED.
KITTREDGE and WILLIAMS, JJ., concur.
NOTES
[1] Providing: "Upon default by a consumer with respect to a consumer credit transaction, unless the consumer voluntarily surrenders possession of the collateral or rented property to the creditor, the creditor may take possession of the collateral or rented property without judicial process only if possession can be taken without entry into a dwelling used as a current residence and without the use of force or other breach of the peace." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359456/ | 613 S.E.2d 60 (2005)
STATE of North Carolina
v.
Dwight McKensey PRICE, Defendant.
No. COA04-1024.
Court of Appeals of North Carolina.
June 7, 2005.
Attorney General Roy Cooper, by Assistant Attorney General David J. Adinolfi II, for the State.
Bryan Gates, Jr., Winston-Salem, for defendant-appellant.
*61 WYNN, Judge.
In State v. Strange, 58 N.C.App. 756, 757, 294 S.E.2d 403, 404 (1982) this Court found an indictment for larceny fatally defective because the words "Granville County Law Enforcement Association" did not import a legal entity capable of owning property. In this case, Defendant contends his convictions for larceny of parking meters cannot stand because the indictments named "City of Asheville Transit and Parking Services," which is not a legal entity capable of owning property, as the owner. Finding this Court's holding in Strange to be controlling, we agree; accordingly, we vacate Defendant's convictions for larceny and injury to personal property. However, we uphold Defendant's convictions for breaking into a coin-operated machine since we hold that an allegation of ownership is not necessary to sustain that charge.
The evidence at trial tended to show that on 5 September 2002, Officer Dwight Arrowood, a member of the Asheville Police Department, observed Defendant Dwight McKensey Price cutting into a parking meter with a hacksaw. Officer Arrowood arrested Defendant and seized his blue tote bag, hacksaw with a blade, and coins totaling $4.60.
On 17 November 2002, Officer Arrowood observed Defendant sitting on a bench with a "tire tool" approximately an arm's length away. Upon returning twenty-five to thirty minutes later, Officer Arrowood observed a parking meter that had been broken into to the right of where Defendant had been sitting. A short while later Defendant was arrested with a "tire tool" and coins totaling $16.70.
On 8 January 2003, June Melton saw a man prying open the back of a parking meter in front of her business in downtown Asheville. Ms. Melton had a co-worker, Carol Laurent, watch the man while she called the police. Ms. Laurent gave a description of the man she saw and later identified Defendant. Officer Luke Bigelow arrested Defendant, who had a screwdriver in his hand and $9.96 in coins.
*62 The jury found Defendant guilty of misdemeanor larceny, three counts of breaking into a coin-operated machine, and injury to personal property causing more than $200.00 of damage. The jury also found Defendant guilty of being a habitual felon. Defendant was sentenced to ninety-three months to 121 months imprisonment. Defendant appeals.
On appeal, Defendant first challenges the indictments supporting his convictions for injury to personal property and larceny.
To convict a defendant of injury to personal property, the State must prove that the personal property was that "of another," i.e., someone other than the person or persons accused. N.C. Gen.Stat. § 14-160 (2004) ("If any person shall wantonly and willfully injure the personal property of another he shall be guilty...."); In re Meaut, 51 N.C.App. 153, 155, 275 S.E.2d 200, 201 (1981). Moreover, "an indictment for larceny must allege the owner or person in lawful possession of the stolen property." State v. Downing, 313 N.C. 164, 166, 326 S.E.2d 256, 258 (1985). Thus, to be sufficient, an indictment for injury to personal property or larceny must allege the owner or person in lawful possession of the injured or stolen property. However, "[i]f the entity named in the indictment is not a person, it must be alleged `that the victim was a legal entity capable of owning property[.]'" State v. Phillips, 162 N.C.App. 719, 721, 592 S.E.2d 272, 273 (2004) (quoting State v. Woody, 132 N.C.App. 788, 790, 513 S.E.2d 801, 803 (1999)).
Here, the indictments for injury to personal property and larceny named the property owner as "City of Asheville Transit and Parking Services," which is not a natural person. Significantly, the indictment did not allege that it was a legal entity capable of owning property. See Phillips, 162 N.C.App. at 721, 592 S.E.2d at 273.
In State v. Thornton, 251 N.C. 658, 661, 111 S.E.2d 901, 903 (1960), our Supreme Court held "that the fact of incorporation need not be alleged where the corporate name is correctly set out in the indictment." Id. (citation omitted). Nonetheless, the Court found an indictment for embezzlement fatally defective because the words "The Chuck Wagon" did not import a corporation capable of owning property. Id. at 662, 111 S.E.2d at 904. Thereafter, in State v. Turner, 8 N.C.App. 73, 75, 173 S.E.2d 642, 643 (1970), this Court upheld an indictment for larceny that named the "City of Hendersonville" as the property owner because it clearly denoted a municipal corporation authorized to own personal property. But more recently, in Strange, 58 N.C.App. at 757, 294 S.E.2d at 404, this Court held an indictment for larceny naming "Granville County Law Enforcement Association" as the property owner to be fatally defective because the words neither correctly set out a corporate name nor imported a legal entity capable of owning property.
Here, as in Strange, the words "City of Asheville Transit and Parking Services" do not indicate a legal entity capable of owning property. Moreover, this case is unlike Turner, in which "City of Hendersonville" was sufficient as it clearly denoted a municipal corporation, because the additional words after "City of Asheville" make it questionable what type of organization it is. Following Strange, we conclude that the name on the indictment in this case did not clearly indicate a corporate entity capable of owning property; and the indictments for larceny and injury to personal property failed to allege that "City of Asheville Transit and Parking Services" was an entity capable of owning property. Accordingly, these indictments were fatally defective and must be vacated.
Defendant further contends that his convictions for breaking into a coin-operated machine in violation of section 14-56.1 of the North Carolina General Statutes must likewise be vacated because ownership was not properly alleged. N.C. Gen.Stat. § 14-56.1 (2004) ("Any person who forcibly breaks into... any coin- or currency-operated machine with intent to steal any property or moneys therein shall be guilty...."). We disagree with that contention.
As this Court has not examined whether the State must prove, as an element of section 14-56.1, the identification of the owner of the property, we will look to an analogous *63 statute. Section 14-54(a) of the North Carolina General Statutes makes breaking and entering buildings a crime. N.C. Gen.Stat. § 14-54(a) (2004) ("Any person who breaks or enters any building with intent to commit any felony...."). This Court has held that,
it was not necessary that the indictment allege ownership of the building; it was only necessary that the State `identify the building with reasonable particularity so as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense.'
State v. Norman, 149 N.C.App. 588, 592, 562 S.E.2d 453, 456 (2002) (quoting State v. Carroll, 10 N.C.App. 143, 145, 178 S.E.2d 10, 12 (1970)). Because we find section 14-56.1 to be analogous to section 14-54(a) of the North Carolina General Statutes, we conclude that the identification of the owner of the property is not an element of the crime of breaking into a coin-operated machine under section 14-56.1. Accordingly, we uphold Defendant's convictions under the three indictments for breaking into a coin-operated machine.
Defendant failed to argue his remaining assignment of error in his brief; it is therefore deemed abandoned. N.C. R.App. P. 28(b)(6).
In sum, we vacate 02CRS61581 and 02CRS15483 and find no error as to 03CRS50310, 02CRS65019, and 02CRS61580.
Vacated in part, No Error in part.
Judges BRYANT and JACKSON concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359544/ | 138 Cal. App. 2d 165 (1955)
THE PEOPLE, Respondent,
v.
CLIFFORD A. GOTTO et al., Appellants.
Crim. No. 5465.
California Court of Appeals. Second Dist., Div. Three.
Dec. 22, 1955.
Cletus J. Hanifin for Appellants.
Edmund G. Brown, Attorney General, and William E. James, Deputy Attorney General, for Respondent.
SHINN, P. J.
Clifford A. Gotto and Wayne L. La Mell were jointly charged with two offenses of robbery. They pleaded guilty in the Municipal Court of the Long Beach Judicial District to Count I. Count II was dismissed. They were certified to the superior court as having pleaded guilty and having admitted being armed; in the superior court it was found that the offense was robbery of the first degree and defendants were sentenced to state prison. They made motions for leave to withdraw their pleas of guilty, which were denied. They filed a petition for writ of error coram nobis, which also was denied. They appeal from the judgments.
The sole question for decision relates to rights and statutory procedure in the matter of probation. The defendants contended in the trial court and they contend here that they were without effective legal advice and were denied the right to file applications for probation. It was alleged in their petitions for vacation of the judgments that the attorney who appeared for them, H. W. Funke, was not employed by them and conferred with them for no more than one minute in the jail the day preceding the preliminary hearing and the pleas of guilty; they were not advised as to the right either of them had to apply for probation or whether either of them was eligible for probation. These allegations do not appear elsewhere in the record, and need not be considered. There is no appeal from the order denying the motion to vacate the judgments. With respect to the proceedings in open court we must be guided by the record.
The record discloses the following: In the municipal court it was stated by the deputy district attorney to Gotto that if either defendant was armed with a deadly weapon at the time of the robbery both were guilty of being armed. La Mell, when questioned, admitted that he had possession of a loaded *167 revolver. Gotto was not questioned whether he had a gun and there was no suggestion that he had one. Following the statement of the deputy district attorney to Gotto each defendant pleaded guilty and admitted that he was armed.
When the case was called in the superior court another deputy district attorney stated to the court that the certificate of the magistrate indicated that each defendant had pleaded guilty and that both defendants had admitted that they were armed with a deadly weapon. Nothing more was said on this subject. The only evidence in the municipal court or the superior court was that La Mell had a loaded revolver. Neither defendant was asked in either court whether Gotto had a gun. [1a] It appears from the record that at the time of sentence the judge believed that each defendant had admitted that he (himself) was armed with a revolver. The attorney general says in his brief, "Since each of the defendants admitted, as shown by the record, that at the time of robbery each was armed with a deadly weapon, neither of the defendants are eligible for probation." This is the statement that was made to the trial court. If it is intended as a statement that Gotto admitted that he, personally, carried a gun and not merely that he was armed, it is not supported by the record. The attorney general says also that the court could have believed, if there was only one gun, that it was passed back and forth between the two defendants. He refers to nothing in the record, and it contains nothing, which tends to support the statement.
At the time of sentence the court inquired whether the defendants wished to apply for probation, to which Mr. Funke responded: "No, I don't believe that is possible under armed robbery, is it?" The court stated: "No, it is not, but I don't know anything about the circumstances of the offense and if I sentence them now it will only mean one thing," whereupon Mr. Funke said, "All right."
The deputy district attorney, with the record of the proceedings in the municipal court before him, did not enlighten the court or the uninformed Mr. Funke as to the absence of any showing that Gotto was ineligible for probation.
It was clearly the intention of the court to permit the defendants to apply for probation, or to refer the cases to the probation officer, not because the court believed defendants were eligible for probation, but because an investigation and report by the probation officer would advise the court as to the circumstances of the offense. It is also clear to *168 us that had the court not been misled as to the record Gotto would have been allowed to file an application for probation.
We are thus brought to the law that was applicable to the situation. [2] Although the possession of the revolver by La Mell was legally that of Gotto, so far as the offense was concerned, the fact that La Mell had the gun would not render Gotto ineligible for probation. (People v. Perkins, 37 Cal. 2d 62 [230 P.2d 353].) The record discloses that neither Gotto nor his attorney knew that possession of the gun by La Mell alone would not render Gotto ineligible for probation.
[3] In cases in which a defendant is eligible for probation the court before rendering judgment must refer the matter to the probation officer whether or not an application for probation is made. [4] Even in a case in which the defendant is not eligible for probation, the court may in its discretion refer the matter to the probation officer for an investigation of facts relevant to sentence (Pen. Code, 1203). [5] In a case in which the defendant is eligible for probation, if the court renders judgment without a reference to the probation officer, the judgment will be reversed, not for a new trial, but for the purpose of proceedings in accordance with statutory procedure. (People v. Jones, 87 Cal. App. 482, 489 [262 P. 361]; People v. Southack, 39 Cal. 2d 578, 591 [248 P.2d 12].) Reference to the probation officer in cases where the defendant is ineligible for probation is provided for in section 1203, Penal Code, and it is not an idle procedure. It furnishes a record of facts relevant to punishment, and we are satisfied that a reference would have been made of the cases of appellants had it not been for Mr. Funke's attitude, which could have been taken as indicating the defendants did not wish to have an investigation made, even though he was merely hopeless that any good could come of it.
The court made no direct determination that Gotto was ineligible for probation and was diverted by the statements of the attorneys from exercising its discretion whether the case of La Mell should be referred for investigation.
The court should have an opportunity to act in the matter, with a full understanding of the record, and with respect to either or both defendants, if found ineligible, to exercise its discretion pursuant to section 1203 concerning a reference of his case to the probation officer.
[6] There was, of course, no waiver of the right to apply for probation, inasmuch as defendants were not advised and *169 did not know what their rights were, and could not have intended to waive rights as to which they were ignorant.
Defendants were fully advised as to their constitutional rights before they entered their pleas of guilty in the municipal court. They stated that they were entering their pleas voluntarily because they were guilty of the offenses and that no inducement whatsoever had been held out to them with respect to their pleas. Their only complaint is that they were ignorant of their right to apply for probation. They stated to the court that Mr. Funke was representing them, and so far as their pleas are concerned, there is no basis for any claim that they were deprived of the right to be represented by counsel or that they should have been allowed to withdraw their pleas.
[1b] The judgments are reversed with instructions to determine in a manner found appropriate whether both defendants, or either of them, are eligible for probation; to permit each defendant found eligible to file an application for probation; to exercise the discretion of the court with respect to reference to the probation officer for investigation the case of both defendants or either of them if found ineligible for probation; and to proceed thereafter in the matters of probation and resentencing of the defendants.
Wood (Parker), J., and Nourse (Paul), J. pro tem., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827142/ | Order Michigan Supreme Court
Lansing, Michigan
September 6, 2011 Robert P. Young, Jr.,
Chief Justice
143112 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 143112
COA: 295176
DANIEL ANTONIO BUTLER, Oakland CC: 2009-225279-FC
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the April 12, 2011
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 6, 2011 _________________________________________
h0829 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359575/ | 137 Cal. App. 2d 797
ERNEST L. DANKER et al., Respondents,
v.
WILLIAM Y. LEE et al., Appellants.
California Court of Appeals. Fourth Dist.
Dec. 15, 1955.
Civ. No. 5097.
Jesse Bach Porter for Appellants.
Roy J. Brown for Respondents.
GRIFFIN, J.
On March 26, 1952, plaintiffs and respondents entered into a conventional form of oil and gas lease of a 2-plus acre parcel of property with defendant and appellant William Y. Lee. The lease, by its terms, in paragraph 3 *798 required lessee to "... start the drilling of a well for oil within 90 days from the date of this agreement, and to continue the work of drilling such well, after commencing the same with due diligence until a depth of 6,000 feet has been reached, unless oil is discovered in paying quantities at a lesser depth, or unless such formations are encountered at a lesser depth as will indicate to the geologist of the Lessee that further drilling would be unsuccessful."
Paragraph 19 thereof provides that "Upon the violation of any of the terms or conditions of this lease by the Lessee and failure to remedy the same within ninety (90) days (except as to commencement of operations for the drilling of the first well and as to the payment of royalties, in each of which cases the period shall be ten days) after written notice from Lessors so to do, then at the option of the Lessors this lease shall forthwith cease and terminate and all rights of said Lessee in and to said land shall be at an end."
By August of 1952, defendants drilled the well to a depth of 4,758 feet. At that depth the well having penetrated formations which appeared to the defendants to have been potentially producible, the defendants caused casing to be set and cemented in the hole and the well was equipped with pumping equipment preparatory to an attempt to produce oil from it. From that time until about the middle of January, 1953, the defendants worked sporadically on the well in an effort to seal off the entry of water into the bore hole. During the intervals in which remedial operations were not in process, attempts were made to produce the well by means of conventional pumping equipment. Although the well produced a considerable volume of fluid, the saleable oil extracted was practically nil. Only $7.94 was received by the defendants for oil sold during the month of October, $155.73 for oil sold in November, and nothing in December. The fluid from which the oil was extracted was hauled from the well by trucks. The cost of hauling alone was in excess of the value of the oil by $92.25 in October, $118.85 in November, and $37.63 in December. In addition to the moneys received from salvaged oil, as set forth above, the defendants also received a credit of $40 for oil salvaged by a vacuum truck firm, which had been engaged by the defendants to remove waste mud and oil. The above figures represent all of the moneys received from the oil produced from the well.
About the 1st of February, 1953, the engine of the pumping unit, which had previously broken down on several occasions, *799 finally was not repaired and was hauled away. Efforts to produce the well were not resumed after this breakdown except for some effort to seek another engine and to make certain tests, and the well stood idle from that time until the date of the trial on March 31, 1954.
On April 17, 1953, plaintiffs served upon the lessee a written notice of default reciting:
"... that you are in default in the performance of the terms and conditions of the Oil and Gas Lease executed by the undersigned, as lessors, and yourself, as lessee, ... Your default, among other things, consists of the following: ..."
"2. You have failed to continue, as required in paragraph 3 of said Oil and Gas Lease, the drilling of the well heretofore commenced on the leased premises until said well should be drilled to a depth of 6,000 feet (oil in paying quantities not having been discovered in the drilling of said well to its present depth)."
"3. You have suspended, and continue to suspend, drilling and producing operations on the leased premises, although no good cause therefor exists, as defined in paragraph 7 of said Oil and Gas Lease. ..."
"You Will Please Take Further Notice that the undersigned hereby demand: ..."
"2. That within ninety days from the receipt by you hereof, you recommence operations for the drilling of a well on said leased premises for the production of oil and/or gas therefrom, and that you thereafter diligently prosecute said operation until a well is drilled to a depth of 6,000 feet or oil in paying quantities is discovered at a lesser depth."
"The Undersigned Hereby Elect, unless you comply with each of their demands as above set forth, to forfeit said Oil and Gas Lease and all of your right, title, and interest in and to said leased premises thereunder."
"Dated this 8th day of April, 1953."
(Signed) Ernest L. Danker
Gertrude Danker.""
Apparently the defendants did nothing about the well or on the lease following the service of said notice, except to occasionally check to see if gas was present in the casing, and in one instance to have a test made to determine the level of the fluid in the well hole. On August 27, 1953, plaintiffs filed this action to quiet title.
The complaint alleged, in addition to other claims, that *800 under the terms of the lease, defendants agreed that within 30 days after the termination of the lease, they would remove all rigs and machinery, "and so far as possible to fill all sump holes and other excavations" etc. The prayer of the complaint was that plaintiffs' title be quieted, for damages, and that an injunction issue against defendants from entering upon said lands for any purpose.
Plaintiffs secured an ex parte order, without the requirement of bond, restraining defendants from so entering upon said lands for any purpose, during the pendency of the action and requiring them to appear and show cause why an injunction should not issue accordingly.
By their separate answers, defendants denied generally the allegations of the complaint and alleged that they did commence drilling, and drilled, as alleged, to a depth of 4,758 feet, but that there was sufficient indication of oil in paying quantities discovered at that depth; that no other lessees of wells in that immediate vicinity discovered, below that depth, any oil before or since this well was drilled; that from time to time defendants continued to improve the well and that they expended over $80,000 thereon; that defendants did everything possible to be done to produce a paying well in an unimproved area and that there are and were possibilities of increasing production but that defendants were precluded by the restraining order.
The trial court found generally that defendants breached the lease as set forth in the default notice, as indicated in paragraphs 2 and 3 thereof; that by the terms of the lease defendants agreed to properly fill all sump holes and neglected to do so within the prescribed time after the termination of the lease by virtue of the notice of default above mentioned, and in addition to quieting plaintiffs' title, allowed $1,300 damages.
There is very little conflict in the evidence. It is conceded that no drilling was done beyond the depth indicated, and no oil in paying quantities was actually produced. It is defendants' position that at that point they believed the oil sands encountered were potentially capable of yielding oil in paying quantities; that unfortunately encountered water conditions at that strata and they believed that if the water was taken out the oil would pay; that accordingly they should have had a reasonable time within which to prove the productivity of the oil sands they found; and that this conclusion is fortified by the fact that other lessees of neighboring *801 wells discovered oil at that depth in paying quantities. They cite such cases as Welport Oil Co. v. Fairfield, 51 Cal. App. 2d 533 [125 P.2d 97]; and Winship v. Wilkes, 121 Cal. App. 44 [8 P.2d 502].
It is plaintiffs' contention that these neighboring wells have been completed since defendant started drilling, and were producing; that they were draining oil from plaintiffs' property; and that accordingly, by the default of defendants in not drilling to a greater depth or by suspending operations and so continuing to suspend producing operations, where no good cause therefor existed, the lease was breached under paragraph 7 thereof, which provides that:
"Drilling and/or producing operations may be suspended or curtailed on said property only in the event that they are prevented by the elements, accidents, ... or other causes beyond the reasonable control of lessee. ..."
[1] Plaintiffs' evidence shows that after the removal of the engine for repairs on February 6, 1953, no operations of any moment were conducted on the premises; that on April 17th the well had stood idle almost two and one-half months; and that following service of notice of default over four months had elapsed before the complaint was filed, and no attempt was made to remedy the breach.
The court justifiably found that defendants did suspend work on the well more than 30 days prior to the service of the notice of default and failed to diligently resume operations of any nature on the lease after the service of said notice; that they did not diligently prosecute said operations to a depth of 6,000 feet or until oil in paying quantities was discovered at a lesser depth; and that by virtue thereof said gas and oil lease terminated. (Louis Richardson Ranch, Inc. v. Gibson, 40 Cal. App. 2d 520 [105 P.2d 143].)
In paragraph 14 of the lease it is provided that "The term 'paying quantities' wherever used herein is hereby defined as the output from a well or wells of such quantity of one or more of the products authorized to be produced under this lease as Lessee may, considering the depth of well and quality of product and after a production test of thirty (30) consecutive days, deem sufficient to warrant further operations for its removal." A lease containing different provisions was under consideration in the Winship case, supra, which is relied upon by defendants.
It is next argued that the notice of default was insufficient, *802 premature, ambiguous and uncertain. Insofar as it related to the claimed breach indicated, no such complaint is sustainable. [2] Such a notice is adequate if it points out to the lessee the particulars in which he is in default and requires him to remedy the same within the time prescribed. (Jameson v. Chanslor-Canfield Midway Oil Co., 176 Cal. 1 [167 P. 369]; Taylor v. Hamilton, 194 Cal. 768 [230 P. 656].)
[3] We do not believe the issuance of the order of injunction, even though it may have been wrongfully obtained without giving bond, contrary to the provisions of section 529 of the Code of Civil Procedure, prejudiced defendants or was the cause of defendants' violating any of the provisions of the lease. It was not obtained until after the lease was terminated by the failure of the defendants to conform within the 90-day period. Any offer or attempt to conform after that time would not excuse performance. By the decree and in conformity with the lease agreement, the court permitted defendants to remove their surface oil well equipment upon certain conditions and within 30 days after service of notice of entry of judgment.
[4] A closer question arises in respect to the judgment of $1,300 awarded plaintiffs by way of damages for failure of the defendants to properly fill the sump in question. It was provided in the lease that upon the termination thereof lessee "shall, so far as possible, fill all sump holes--leaving surface of ground, so far as possible, in original condition, free from surface oil and debris." From the evidence it appears that defendants did fill the sump hole which was 15 feet deep by 18 feet wide and 60 feet long, but failed to remove the oil scum and debris, and as a consequence it ran over and upon other land of plaintiffs and made that portion of plaintiffs' property unfit for agricultural purposes and growing orange trees such as occupied the remaining property of plaintiffs. Estimates were made as to the cost of removing the dirt and oil scum, etc., and replacing it with good soil, and it was estimated at $1,300, the amount allowed plaintiffs in their judgment. Apparently the dirt in and the ground over the sump were not in their original condition after defendants filled the sump. It cannot be said that the finding is lacking in evidentiary support.
Lastly, it is contended that paragraph 20 of the lease precludes the forfeiture of it under the facts established. It provides:
"Notwithstanding any forfeiture of this lease, the Lessee *803 shall have the right to retain any and all wells being drilled, or producing or capable of producing oil or gas in paying quantities, at the time of such forfeiture. ..."
This is the usual provision of such leases where there is a forfeiture as to a portion of the lease, which provision gives the right to the lessee to retain such wells as are then being drilled in conformity with the lease, that are then producing, or are in fact capable of producing oil or gas in paying quantities at the time of such forfeiture. Under the evidence and findings of the court defendants would not come within this reservation.
Judgment affirmed.
Barnard, P. J., and Mussell, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359570/ | 45 Cal. 2d 843 (1955)
291 P.2d 463
ROBERT A. HOLDERBY, Respondent,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 12 (an Unincorporated Association) et al., Appellants.
Docket No. L.A. 23488.
Supreme Court of California. In Bank.
December 29, 1955.
*844 Parker, Stanbury, Reese & McGee and Raymond G. Stanbury for Appellants.
Aaron Sapiro for Respondent.
SHENK, J.
This is an appeal by the defendant Local Union Number 12 of the International Union of Operating Engineers from a judgment for the plaintiff Robert A. Holderby in an action in which the plaintiff sought and obtained reinstatement as a member in good standing in the union and damages resulting from his alleged unlawful exclusion therefrom.
The plaintiff became a member of the union in October, 1952. From November, 1952, until March, 1953, he was delinquent in his dues and for that reason was suspended from membership by the executive board of the union on February 5, 1953. Thereafter he applied for reinstatement and assigned illness as the reason for his delinquency. On March 17, 1953, the executive board addressed a letter to him stating the conditions of his reinstatement as follows: "... it was the recommendation of the Advisory Board, concurred in by the Executive Board, that you be granted the privilege of Reinstating your membership by the payment of back Per Capita tax, Reinstatement Fee of $5.00, dues for the current month, and three months dues in advance." The executive board waived certain of the above items and gave a credit for $10 paid prior to March 17. It stated in its letter that there remained a balance of $19 due and that in addition it required the plaintiff to furnish a doctor's certificate substantiating his illness. It appears that the requirements for reinstatement were consistent with the union's constitution. On April 29 a report certifying that the plaintiff had been a patient at a veterans' hospital was mailed to the financial secretary of the union. On May 27 the plaintiff made final payment of the amount required for reinstatement plus dues to that date. Soon thereafter he was issued a referral slip for a work assignment on which the notation "dues paid rein 12" appeared. It may be assumed that the notation was in recognition of the payment of dues and the plaintiff's reinstatement in Local 12.
On June 6, 1953, the executive board of the union met and purported to reject the plaintiff's application for reinstatement. The minutes of its meeting state that "A motion was made, seconded and carried that all previous action of *845 the Executive Board in the case of Robert A. Holderby be rescinded. A motion was made and seconded that the application for reinstatement of Robert A. Holderby be rejected and that all moneys paid into the Local Union by him be refunded. On the motion it was thoroughly established that Holderby was not a qualified engineer and that his actions during the past six months had marked him as an individual undesirable for membership in this Union." The plaintiff received a letter from the union advising him of his rejection and enclosing a check for $138.60 as "the total amount paid in by you on Initiation Fee, Dues, Permits, etc."
On July 1, 1953, the plaintiff commenced the present action. Article XVII, section 1(a) of the union's constitution provides in part as follows: "Any General Officer who shall have filed in a Local Union charges against a member thereof, and any officer or member of a Local Union, may appeal to the General Executive Board from the adoption of any action by said Local Union, or from any decision rendered by the General President. Any Local Union, or member thereof which belongs to a local, State or Provincial Organization or Joint Executive Board may appeal to the General Executive Board from any act or decision of said local, State or Provincial Organization or Joint Executive Board...." Section 3 of that article states: "No suit or other action at law or equity shall be brought in any court by any member, officer or subdivision of the International Union of Operating Engineers until and unless all rights, remedies and provisions for hearing, trial and appeal within the Organization shall have been properly followed and exhausted by the member, officer or subdivision complaining...." Prior to commencing this action the plaintiff did not avail himself of the remedies provided in the constitution for a review by the general executive board of the action taken against him.
The plaintiff claims that on May 27, after he had fully complied with the requirements on which his reinstatement was conditioned, he automatically became fully reinstated to membership in the union; that thereafter the purported denial of his application for reinstatement was in realty an exclusion from membership without compliance with procedures established in the union's constitution, and that he was improperly deprived of valuable rights conferred upon him as a member of the union. (See Lawson v. Hewell, 118 Cal. 613 [50 P. 763, 49 L.R.A. 400].) There is no question *846 but that provisions in the union constitution for the expulsion of members were not followed. That document requires that formal charges be filed and a hearing be had.
The trial court agreed with the plaintiff, specifically finding that "in accordance with the said letter of March 17, 1953, the reinstatement of the plaintiff had been completed by May 28, 1953"; that he was a member in good standing on June 6, 1953, the date the alleged exclusionary action took place; that "he was entitled to all the rights and privileges of membership at the said time," and that, "by reason of said action on the part of the Executive Board, plaintiff was thereby in effect, expelled from the defendant Local Union No. 12...."
The foregoing findings of the court are supported by substantial evidence, and on appeal may not be successfully controverted by the defendant. However, it is contended that the plaintiff failed to exhaust the remedies available within the union and that he is not now entitled to judicial relief.
[1] It is the general and well established jurisdictional rule that a plaintiff who seeks judicial relief against an organization of which he is a member must first invoke and exhaust the remedies provided by that organization applicable to his grievance. (Lawson v. Hewell, supra, 118 Cal. 613; Levy v. Magnolia Lodge No. 29, I.O.O.F., 110 Cal. 297 [42 P. 887].) This rule is analogous to the rule requiring the exhaustion of administrative remedies as a condition precedent to resorting to the courts (see 2 Cal.Jur.2d 304), and to the rule requiring the parties to a contract for arbitration of disputes to exhaust those remedies before seeking judicial relief. (See Cone v. Union Oil Co., 129 Cal. App. 2d 558 [277 P.2d 464], and cases collected at p. 563.) Such rules are based on a practical approach to the solution of internal problems, complaints and grievances that arise between parties functioning pursuant to special and complex agreements or other arrangements. They make possible the settlement of such matters by simple, expeditious and inexpensive procedures, and by persons who, generally, are familiar therewith. Such internal remedies are designed not only to promote the settlement of grievances but also to promote more harmonious relationships, and the courts look with favor upon them.
The plaintiff claims that an exception to the general rule made it unnecessary that he pursue the internal remedies *847 for review before commencing this action. In Weber v. Marine Cooks' & Stewards' Assn., 93 Cal. App. 2d 327 [208 P.2d 1009], it is stated at page 338 that "where an organization has violated its own laws and arbitrarily violated a member's property rights the rule of exhaustion of remedies by appeal to a higher body within the organization need not be adhered to before direct resort to a judicial tribunal." (See Harris v. National Union etc. Cooks & Stewards, 98 Cal. App. 2d 733 at 736 [221 P.2d 136].) If such an exception is construed as broadly as the quoted language would permit, it would make it unnecessary for any party with a justified grievance involving personal and property rights against an organization of which he is a member, including the plaintiff in the present case, to have the matter corrected internally by the machinery provided before resorting to the courts. The exception in such a case would swallow the rule, a result clearly not intended by the cases relied on as authority for the broad interpretation sought by the plaintiff to justify this action. [2] It is only when the organization violates its rules for appellate review or upon a showing that it would be futile to invoke them that the further pursuit of internal relief is excused. The violation of its own rules which inflicts the initial wrong furnishes no right for direct resort to the courts.
The statement of the exception in the Weber case, discussed only incidentally with other points considered determinative, is said to have resulted from a holding in Simpson v. Salvation Army, 49 Cal. App. 2d 371 [121 P.2d 847]. In that case the court set forth the exception in almost identical language, with citations, and then stated at page 375: "Obviously, that exception is not here involved." In one of the two cases there relied on (Neto v. Conselho Amor Da Sociedade, 18 Cal. App. 234 [122 P. 973]) the court stated the exception, citing the other case as authority therefor, but refused to apply the exception. Thus the authority for the quoted language is easily traced to that other case, Schou v. Sotoyome Tribe, No. 12 (1903), 140 Cal. 254 [73 P. 996]. The holding in that case, however, does not justify the interpretation the plaintiff in the present case would place upon it. There relief was sought by the plaintiff Mrs. Schou in behalf of her husband, a member of the Sotoyome Tribe of the Improved Order of Redmen of California, a fraternal and benevolent organization. His application for sick benefits was refused on the ground that the affliction for which he sought relief *848 was caused by intemperance. The constitution of the organization provided that "should any person feel aggrieved at the action of a tribe for failing to pay benefits that may be claimed to be due, such person must appeal from such action by giving the tribe notice thereof within 20 suns after said action; whereupon the sachem shall without delay appoint a suitable member of the order as a commissioner to take such testimony as either party may offer in relation to the case." For five months after the denial of his application, Mrs. Schou, his legal guardian, made vigorous but unavailing efforts to obtain information of the tribe's decision. The opinion then relates that "Thereafter she was informed by the tribe that `she would have to take the case before the great sachem." In response to this, her attorneys wrote to the great sachem asking him for information as to the proper procedure, and were by the great sachem informed simply that he had no jurisdiction in the matter. Finally, Mrs. Schou's attorneys gave the tribe notice of an appeal `to the great sachem and great council,' and sent an appeal to the great council, but, so far as she or her attorneys were advised, neither the tribe nor the great council paid any attention to these appeals. No commissioner was appointed to take evidence, no `ten suns' notice, nor any notice at all, was given, nor was Schou, nor Mrs. Schou upon his behalf, ever allowed to present any evidence. In this condition of affairs, not knowing whether or not she was to be allowed to prosecute her appeal, or if it would be entertained by the great council of the state, and having had no opportunity at all to present her evidence as to Schou's right to the sick benefits" she resorted to court action.
The foregoing account of Mrs. Schou's inability to obtain an appeal within the machinery provided, although she herself complied with all requirements made known to her, caused the court to conclude it to be "perfectly clear" that she "was relieved from further compliance, or attempt at compliance, with the regulations and procedure of the order touching appeals.... Before an order can hold a member to strict observance of its rules regulating procedure on appeal it must show that in all matters touching his substantial rights it has itself observed these regulations, and this the defendant did not do. Its dereliction in this regard excuses a claimant from exhausting his remedy within the rules of the order."
It is apparent from the foregoing that the court in the *849 Schou case excused the plaintiff's further attempt at compliance wtih internal rules of appeal because the organization itself arbitrarily refused to comply with and be governed by those same internal rules of appeal and for all practical purposes it became impossible for the plaintiff to obtain a review of the prior action claimed to be improper. Accordingly, the statement in the Weber case relating to an exception to the general rule "where an organization has violated its own laws," can have reference only to its rules on appeal, the violation of which in effect prevented an aggrieved party from seeking redress thereunder. [3] A violation of other laws and wrongs done within the organization are intended to be conciliated and corrected by the appellate machinery provided therein, if properly invoked by an aggrieved party and applied by the organization. If recourse to such appellate machinery is not sought an aggrieved party foregoes his right to a judicial review regardless of the breach of its own rules by the organization in causing the grievance in the first instance. If the organization fails to apply its appellate machinery after it is properly invoked and in effect prevents an appeal from being taken, the aggrieved party, under the Schou case, need not pursue such an appeal further. Any implications in the statement of the exception to the general rule in the cases heretofore cited are accordingly limited.
[4] In the present case the plaintiff made no attempt to obtain an internal appeal, and there is nothing to indicate that an appeal would not have been accorded him in which to seek redress for the alleged wrongs. He falls squarely within the rule that when an internal appeal is open to him he has no right to invoke the aid of the courts.
The judgment is reversed.
Gibson, C.J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.
CARTER, J.
I dissent.
The majority in this case holds that a member of a union cannot obtain relief in the courts when he has been expelled without the notice or hearing required by the union's constitution and by-laws because he did not appeal the expulsion to a higher authority in the union which he had the right to do under the circumstances. This exhaustion of remedies within the union is the universal rule on the subject but there are exceptions to it, one of which is that it does not apply where *850 the union has violated its own law with respect to expulsions. The majority states that there is no reason for the exception, and that to apply it completely wipes out the rule, and mentions some of the cases upholding the exception, and, in effect, disapproves them, but it does not do so expressly. It has been held in this state that where the union or other unincorporated association fails to give notice and hearing for an expulsion, the member need not exhaust a remedy by appeal under the constitution of the association. (Swital v. Real Estate Comr., 116 Cal. App. 2d 677 [254 P.2d 587]; Ellis v. American Federation of Labor, 48 Cal. App. 2d 440 [120 P.2d 79]; Stoica v. International etc. Emp., 78 Cal. App. 2d 533 [178 P.2d 21]; Weber v. Marine Cooks' & Stewards' Assn., 93 Cal. App. 2d 327 [208 P.2d 1009]; Smetherham v. Laundry Workers' Union, 44 Cal. App. 2d 131 [111 P.2d 948].) The exception is nearly universally recognized. It is said in 168 A.L.R. 1462, 1468, citing cases from California, Georgia, Indiana, Missouri, Nevada, New Jersey, New Mexico, New York, Pennsylvania and the federal courts: "Where the provisions of the constitution and the bylaws as to suspension or expulsion are not complied with, as where no notice or hearing is given to the member, no written charges are preferred against him as required by the constitution and the bylaws, or where the decision for expulsion is contrary to the constitution and bylaws of the union, or the offense with which the member is charged is not a ground for expulsion, or where the expulsion or suspension is void for lack of authority or jurisdiction in the body or person conducting the trial or rendering the decision for suspension or expulsion, or is otherwise irregular, the requirement that the internal remedies within the union must first be exhausted will not be insisted upon as a condition to grant of equitable relief for reinstatement, as in all these cases the action of expulsion or suspension is not the authorized action of the union, and the member's duty to exhaust first the internal remedies within the union is generally understood as contemplating an action of the union which is authorized under its constitution and the bylaws. In other words, the rule as to exhaustion of internal remedies pre-supposes a legal and regular proceeding for suspension or expulsion." (See also 20 A.L.R. 2d 531, 565; id., 344, 386; 4 Am.Jur., Associations & Clubs, § 31.) There should be given a definitive reason why those authorities are wrong. Moreover the plaintiff expelled member sought damages as well as reinstatement. The appellate body in *851 the union has no authority to award damages, and inasmuch as it is clear that plaintiff was illegally expelled, it would appear that his right to damages would not be affected by his failure to appeal.
In a case like the one here an appeal would be an idle act and thus unnecessary, for the majority states: "There is no question but that the provisions in the union's constitution for the expulsion of members were not followed. That document requires that formal charges be filed and a hearing be had." That being true the appellate body could do nothing else but reverse the expulsion; if it did not a court would do so. In effect the appeal could serve no useful function.
Finally, it should be remembered that the constitution and by-laws of the union constitute a contract between the members and the association and one of the reasons for the rule that an expelled member must pursue his remedy within the association before resorting to the courts is that the contract requires him to do so. However, where the member has been expelled in violation of that contract the association has repudiated it and it is no longer binding on the member. A breach of contract or a refusal to perform by one of the parties excuses the other party, not at fault, from performance on his part. (Twomey v. People's Ice Co., 66 Cal. 233 [5 P. 158]; Gold Min. & Water Co. v. Swinerton, 23 Cal. 2d 19 [142 P.2d 22]; Central Oil Co. v. Southern Refining Co., 154 Cal. 165 [97 P. 177].) Hence in this case plaintiff was excused from performance of the contract requiring an appeal to a higher authority in the union because of the union's repudiation and violation of the contract requiring a notice and hearing.
I would, therefore, affirm the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359571/ | 291 P.2d 1108 (1956)
60 N.M. 393
Harry C. HENINGTON, Plaintiff-Appellant,
v.
STATE BOARD OF BAR EXAMINERS; and Bryan, G. Johnson, L. C. White, Frank Andrews, Rosser L. Malone, Jr., and W. C. Whatley, who constitutes its members, Defendants-Appellees.
No. 5987.
Supreme Court of New Mexico.
January 3, 1956.
Rehearing Denied January 19, 1956.
*1109 Jack Love, Roswell, for appellant.
Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., Paul L. Billhymer, Asst. Atty. Gen., Howard F. Houk, Santa Fe, for appellees.
LUJAN, Justice.
Harry C. Henington, plaintiff (appellant), asked the Board of Bar Examiners to permit him to take the New Mexico bar examination. He tendered his application accompanied by the required examination fee, but did not enclose with said application a diploma or a properly authenticated certificate showing his graduation from an accredited law school, nor a certificate of an attorney of this state that he is a person of good moral character as is provided by rule.
Rule 1, § 2 reads as follows:
"No person, other than those admitted on certificate from other states, shall be granted a license to practice law in this state or shall be entitled to take examination for admission to the Bar unless such person shall have graduated from a law school approved by the American Bar Association as meeting the standards of that Association. (§ 18-1-8 of 1953 Compilation.)" (Emphasis ours.)
The Board of Bar Examiners rejected plaintiff's application. On June 8, 1954, the plaintiff filed his complaint in the District Court of Santa Fe County and prayed for an alternative writ of mandamus, seeking to compel the Board of Bar Examiners to examine him as to his qualifications for admission to the bar. On June 14, 1954, the District Court issued an alternative writ of mandamus commanding the Board of Bar Examiners to examine the plaintiff as to his qualifications for admission to the State Bar of New Mexico, and to make an independent investigation of his moral character within thirty days or show cause why it has not done so. An answer was filed by the Board of Bar Examiners, and after a hearing, the alternative writ of mandamus was quashed, and plaintiff appeals.
Under point two plaintiff contends that the so-called "college" rule violates the Fourteenth Amendment to the Constitution of the United States and § 18 of Article 2 of the New Mexico Constitution. We are of opinion and so hold that the educational qualifications required of applicants before they are permitted to practice law in this state does not violate the Fourteenth Amendment or § 18 of Article 2 of our Constitution, either in regard to the clause requiring due process of law, or that providing for equal protection of the laws.
In State v. Rosborough, 152 La. 945, 94 So. 858, the court said:
"* * * But the defendant conceives, and in brief and in argument *1110 urges, that he is denied some right guaranteed to him by the Fourteenth Amendment to the Constitution of the United States, and section 2 of article 1 of the Louisiana Constitution of 1921, to wit, that no person shall be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the law.
"As to this, suffice it to say that the right to practice law in the state courts is not a privilege or immunity of a citizen of the United States. In re Lockwood, 154 U.S. 116, 14 S. Ct. 1082, 38 L. Ed. 929.
"For the rest
"`The practice of law is not a business open to all who wish to engage in it, nor is it a natural right or one guaranteed by the Constitution; but a personal right or privilege limited to a few persons of good moral character, with special qualifications, duly ascertained and certified. It is in the nature of a franchise from the state conferred only for merit, and is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court.'"
See, also, Schware v. Board of Bar Examiners of the State of New Mexico, 60 N.M. 304, 291 P.2d 607; Hulbert v. Mybeck, 220 Ind. 530, 44 N.E.2d 830; Seawell v. Carolina Motor Club, 209 N.C. 624, 184 S.E. 540; Kraushaar v. La Vin, 181 Misc. 508, 42 N.Y.S.2d 857; In re Summers, 325 U.S. 561, 65 S. Ct. 1307, 89 L. Ed. 1795.
And in the case of Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 165 A. 211, 213, 87 A.L.R. 991, the court said:
"* * * The basis of the petitioner's claim upon this phase of the case is that the court could not delegate to the bar examining committee the power to determine the law school in which the petitioner should be required to study in order to be entitled to take the examination for admission. * * In Connecticut, from the earliest times, to prevent the admission of unqualified persons into the practice of the profession, the courts have employed the members of the bar for the purpose of ascertaining the character and qualifications of those applying for membership. This is a reasonable usage. * * * The claim of the petitioner, that to commit to an examining committee the power to determine the educational qualifications of candidates for admission is an unlawful delegation of judicial power, is without force when we consider that from the earliest times in this state, it has been the uninterrupted practice for the court to rely on the bar for investigation as to such matters. * * * The ultimate purpose of all regulations of the admission of attorneys is to assure the courts the assistance of advocates of ability, learning, and sound character and to protect the public from incompetent and dishonest practitioners. * * * While the determination of the qualifications of attorneys to be admitted to practice in our courts pertains to the judicial department, the decisions which must be made in carrying out the procedure established by the rules of the judges to accomplish that end are not judicial in their nature and may properly be vested in the bar examining committee, including the power to determine what law schools shall be approved as furnishing a sufficient educational basis for admitting a candidate to the examination. Nor can it be maintained that the bar examining committee exceeded its powers or acted unreasonably in approving the same schools as the Council of the American Bar Association on Legal Education and Admission to the Bar. It is a matter of common knowledge that the American Bar Association is a representative body composed of members of the bar from every part of the Union; an organization national in scope, whose purpose is to uphold and maintain the highest traditions of the legal profession. There is nothing in this record to indicate either arbitrary *1111 or unreasonable action on the part of the examining committee in approving the same schools as the Council of the American Bar Association on Legal Education and Admission to the Bar."
To the same effect, see, Ex parte State Board of Law Examiners of Florida, 141 Fla. 706, 193 So. 753; State v. Graves, 161 Minn. 422, 201 N.W. 933; In re Bergeron, 220 Mass. 472, 107 N.E. 1107; Ex parte Florida State Bar Association Committee on Legal Education and Admission to the Bar, 148 Fla. 725, 5 So. 2d 1; 9 Indiana Law Journal 357.
The case principally relied upon by the plaintiff is that of Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 1070, 30 L. Ed. 220, relating to the regulation of laundries in the city of San Francisco. The ordinance in question in that case was held to be illegal and in violation of the Fourteenth Amendment, because, with reference to the subject upon which it touched, it conferred upon the municipal authorities power, at their will and without regard to discretion in the legal sense of the term, to give or withhold consent as to persons or places for carrying on a laundry, with reference to the competency of the persons applying or the property of the place selected. It was held also that there was a clear and intentional discrimination made against the Chinese in the operation of the ordinance, which discrimination was founded upon the difference of race, and was wholly arbitrary and unjust. It appeared that both petitioners, who were engaged in the laundry business, were Chinese and had complied with every requisite deemed by the law, or by the public officers charged with its administration, necessary for the protection of neighboring property from fire or as a protection against injury to the public health, and yet the supervisors, for no reason other than discrimination against the Chinese, refused to grant the license to the petitioners and to some two hundred other Chinese subjects, while granting them to eighty people who were not such subjects and were working under precisely the same conditions. Such an ordinance, so executed, was held void by the Supreme Court of California. Speaking in that case of the general rights to grant licenses in regard to occupations or trades, Mr. Justice Matthews, in delivering the opinion of the court, said:
"The ordinance, therefore, also differs from the not unusual case where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns, or places for the sale of spirituous liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because in such cases the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature."
The rule in question does not grant the Board of Bar Examiners an arbitrary power such as is described in the above mentioned laundry case. In the case at bar, any applicant is permitted to take the bar examination provided he furnishes the Board of Bar Examiners a diploma or a properly authenticated certificate showing his graduation from a law school approved by the American Bar Association. The possession of a legal education is a condition precedent which must be met by all applicants. It is neither an arbitrary or unreasonable one and applies alike to all persons regardless of their religion, race, creed or color. In the instant case the plaintiff is in no position to complain as he is not a graduate from any law school.
Under point three plaintiff contends that the so called "moral character" rule violates the due process clause of the state and federal constitutions. This contention is without merit. Rule 2, § 2, reads as follows:
"An applicant for admission must file with the Secretary of the Board of Examiners an application under oath, setting forth the date and place of birth of such applicant, his or her place of residence for seven years immediately preceding the filing of such application and facts showing the qualifications of such applicant, which application must be accompanied by the *1112 certificate of an attorney of this state that the applicant is a person of good moral character. (§ 18-1-8 of 1953 Compilation.)" (Emphasis supplied.)
Under the above rule an applicant must be shown to be a person of good moral character before he is eligible to take the bar examination. Schware v. Board of Bar Examiners, 60 N.M. 304, 291 P. 607.
The possession of such character is a condition precedent, and the requirement that he furnish the board a certificate from an attorney of this state touching on his moral character is not unreasonable.
The right to take an examination to practice law is a qualified right, and one who seeks permission to take such examination must be prepared to satisfy reasonable requirements as to good moral character and training. Schware v. Board of Bar Examiners, supra.
What has here been said disposes of plaintiff's point one.
The judgment will be affirmed.
It is so ordered.
COMPTON, C.J., and SADLER, McGHEE and KIKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359707/ | 291 P.2d 852 (1955)
Lillian IMIG, a widow, Plaintiff-Appellant,
v.
R. K. McDONALD and Alta L. McDonald, Defendants,
Earl C. Reynolds and Frances Reynolds, husband and wife, Defendants-Respondents.
No. 8171.
Supreme Court of Idaho.
December 20, 1955.
*853 Charles F. Reddoch, Charles S. Stout, Boise, for appellant.
Willis C. Moffatt, Merlin S. Young, Ted M. Echols, Boise, for respondents.
KEETON, Justice.
This action was brought to foreclose a mortgage given to secure a note for $1,000 dated May 16, 1949, covering the N. 226 ft. of the E. 115 ft. of L. 38, Berridge Subdivision, in which mortgage R. K. McDonald and Alta L. McDonald appear as mortgagors and Lillian Imig, appellant, as mortgagee. This mortgage was not recorded until May 11, 1950. Between the date of the mortgage and its recording, the equity in the property of the mortgagors was purchased from them by Earl C. Reynolds, respondent, and Tom K. Cunning, the interest of Cunning, if any, apparently having been acquired by Reynolds and wife. The contract of purchase and deed of conveyance from the record owner, Beatrice G. Uren, was held in escrow and the purchasers, Reynolds and wife, subsequent to the recording of appellant's mortgage, paid the escrow holder the balance due on the contract and certain other assumed liens against the property, and received the warranty deeds of conveyance, which were recorded in January, 1954.
The contract of purchase by respondents and Cunning provides that Raymond K. McDonald and Alta L. McDonald grantors shall convey all their right, title and interest in and to the following described premises to Earl C. Reynolds and Tom K. Cunning, subject to incumbrances, including a chattel mortgage payable to Lillian Imig, appellant, which incumbrances Reynolds and Cunning agree to pay and keep current. The property so sold and purchased is a part of the property covered by appellant's mortgage herein sought to be foreclosed. The assumed alleged chattel mortgage incumbrance so mentioned in the contract of purchase was in fact a real estate mortgage for $1,000 and the testimony disclosed that respondents knew the amount assumed by them was in that sum. Prior to the execution of the contract of sale by the McDonalds to respondent Reynolds and Cunning, respondent Reynolds was told: "we owed Mrs. Imig the thousand dollar note,". Respondent Reynolds in his testimony testified that he had been advised by Mr. McDonald that they (McDonald and wife) owed Mrs. Imig $1,000 at the time of the contract, but he did not know it was secured by a real estate mortgage.
While the indebtedness of $1,000 assumed is described as a chattel mortgage, *854 no chattel mortgage existed. It was described in the contract of purchase as an incumbrance on the real estate being purchased, and the conveyance from the McDonalds to the purchasers (Reynolds and Cunning) was made subject to incumbrances.
Abstract of title to the premises was secured June 23, 1949, and the same showed no real estate mortgage in favor of appellant.
In an instrument dated August 24, 1949, signed by respondent Earl C. Reynolds and Raymond K. McDonald, McDonald assumed and agreed to pay the Lillian Imig mortgage, meaning the mortgage referred to in the above mentioned contract of sale.
This instrument was not signed by Cunning or other parties to the contract of sale, and the instrument on its face mentions a mortgage, only, without designating whether real or chattel mortgage. The property being sold is real estate, and a reasonable interpretation of the instrument is that it referred to the incumbrance mortgage mentioned in the contract of sale.
In an answer and cross complaint respondents Reynolds and wife alleged that they had no notice, actual or constructive, of appellant's real estate mortgage; that they were subsequent purchasers in good faith and for a valuable consideration, and that their deed to the property gives them priority over the mortgage.
The court found that the mortgagors McDonald and wife, or respondents Reynolds and wife, had not paid the note or mortgage; that at the time of the conveyance to Earl C. Reynolds and Frances Reynolds, his wife, the mortgagors, Raymond K. McDonald and Alta L. McDonald, his wife, represented to the grantees, respondents here, that the $1,000 obligation to appellant was secured by a chattel mortgage, and that the same is not a lien against the real property sold and conveyed; that the real estate mortgage was not of record on the date of the purchase by respondents; that respondents believed said indebtedness to be secured by a chattel mortgage only; that respondents had assumed and agreed to pay the mortgage, but thereafter on August 24, 1949 (prior to the date the mortgage was recorded) Raymond K. McDonald, in settlement of certain business transactions between Reynolds and himself, agreed and assumed the indebtedness to Lillian Imig, appellant; that respondents believed that the indebtedness of which there was no public record was not a lien on the property and accepted the promise of McDonald to pay the same.
The court held that respondents (Reynolds and wife) are entitled to a judgment quieting title to the premises against the claim of Lillian Imig, appellant. Appeal was taken from the judgment.
In assignments of error appellant contends that in a purported conversation between Reynolds and Mrs. McDonald prior to the entering into of the contract of purchase and the executing of the deed, both Reynolds and Cunning, purchasers, were advised that there was a mortgage against the property held by Mrs. Imig. Objection to the offer of proof was sustained on the ground that it was an attempt to vary the terms of the deed and the contract of sale thereafter entered into. The offer of proof was not for the purpose of varying the terms of the written contract, but to prove that both Reynolds and Cunning, the purchasers, had actual notice of the Imig mortgage. Objection should have been overruled.
Certain findings are challenged as not supported by the evidence, particularly the finding that the indebtedness to appellant was represented to respondents as being secured by a chattel mortgage. Appellant contends that Reynolds and wife could have, by the exercise of due diligence, discovered that the indebtedness was secured by a real estate mortgage; and that the assumption of the indebtedness to appellant by McDonald does not relieve respondents of liability.
Respondent Reynolds made no inquiry of Lillian Imig, or others in a position to know, as to the nature of the obligation nor did he inquire of the McDonalds as to what the so called chattel mortgage covered. He knew there was an obligation *855 owed to appellant for the sum of $1,000 which in the contract of purchase he had assumed and agreed to pay. In the written subsequent instrument by which he attempts in this proceeding to avoid liability, it was described as a mortgage, while in the original contract of purchase it was stated to be an incumbrance on the property. Further both he and Cunning, if we are to believe the offer of proof, were told by Mrs. McDonald, prior to the entering into of the contract of purchase and the executing of the deed, that there was a mortgage against the property held by Mrs. Imig in the sum of $1,000.
One who relies for protection upon the doctrine of being a bona fide purchaser must show that at the time of the purchase he paid a valuable consideration and upon the belief and the validity of the vendor's claim of title without notice, actual or constructive, of any outstanding adverse rights of another. Richlands Brick Corporation v. Hurst Hardware Co., 80 W.Va. 476, 92 S.E. 685; Merchants Trust v. Davis, 49 Idaho 494, 290 P. 383; Moore v. De Bernardi, 47 Nev. 33, 220 P. 544; Davis v. Kleindienst, Ariz., 169 P.2d 78; 92 C.J.S., Vendor and Purchaser, § 321, p. 214.
Further, one who purchases property with sufficient knowledge to put him, or a reasonably prudent person, on inquiry is not a bona fide purchaser. Froman v. Madden, 13 Idaho 138, 88 P. 894; Mangum v. Stadel, 76 Kan. 764, 92 P. 1093; LaBrie v. Cartwright, 55 Tex. Civ. App. 144, 118 S.W. 785; Salmon v. Norris, 82 A.D. 362, 81 N.Y.S. 892; Shephard v. Van Doren, 40 N.M. 380, 60 P.2d 635.
In Froman v. Madden, 13 Idaho 138, 88 P. 894, the Court held:
"One who has notice or knowledge of a previous sale of real property, or who has notice or knowledge of such facts and circumstances as would lead a reasonably prudent man to discover that a previous sale had been made, is not a purchaser in good faith * * *."
and in Mangum v. Stadel, 76 Kan. 764, 92 P. 1093, the Court held:
"If the purchaser has knowledge of the facts which naturally excite inquiry, and one that reasonably leads to a knowledge of the lien, it is his duty to inquire, and testimony sufficient to require inquiry is testimony of notice."
Other authorities and text writers could be quoted to the same effect.
In the situation before us the mortgage described as a chattel mortgage in the contract of purchase was also described as an incumbrance. In the contract later entered into in which McDonald assumed the indebtedness to appellant, the indebtedness is described as a mortgage.
If it be contended that, under the facts above stated, the respondents did not have actual notice of the incumbrance, sufficient answer to the contention is that by written documents and other information given the purchasers is sufficient notice to place them on inquiry as to the true situation and they cannot here successfully contend that they they are bona fide purchasers in good faith and for value, without notice, actual or constructive, of the prior incumbrance.
It seems to us from the facts that the respondents failed to exercise due diligence and to avail themselves of information easily obtainable and to which their attention had been directed, and they cannot now claim to be bona fide purchasers. Merchants Trust Co. v. Davis, 49 Idaho 494, 290 P. 383; University of Richmond v. Stone, 148 Va. 686, 139 S.E. 257; Richlands Brick Corp. v. Hurst Hardware Co., 80 W.Va. 476, 92 S.E. 685; Davis v Kleindienst, Ariz., 169 P.2d 78; United States v. Certain Parcels of Land, D.C., 85 F. Supp. 986; Bergstrom v. Johnson, 111 Minn. 247, 126 N.W. 899.
Because of the conclusion reached, other assignments of error will not be discussed. The judgment is reversed and the cause remanded with instructions to the trial court to set the judgment aside, and *856 enter judgment for appellant foreclosing the mortgage. Costs to appellant.
TAYLOR, C. J., and PORTER, ANDERSON and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359705/ | 574 F.3d 554 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
Steve BUCHANAN, Defendant-Appellant.
No. 08-3515.
United States Court of Appeals, Eighth Circuit.
Submitted: June 11, 2009.
Filed: July 27, 2009.
*558 George E. Grassby, AFPD, argued, Rapid City, SD, for appellant.
Mark Alexander Vargo, I, AUSA, argued, Rapid City, SD, for appellee.
Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
MELLOY, Circuit Judge.
A jury convicted Steve Buchanan of one count of attempting to manufacture methamphetamine in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(B). Prior to trial, the district court[1] denied Buchanan's motion to suppress certain evidence. Buchanan appeals his conviction, arguing that the district court erred in denying his motion to suppress because the affidavit supporting the warrant failed to establish the reliability or credibility of the two informants and misrepresented the statements Buchanan had made in a recorded telephone call. Buchanan also claims that the district court's jury instructions constructively amended the Indictment by omitting the word "attempt" from an instruction, that the Indictment failed to state an offense because it did not specifically cite the attempt statute, and that there was an impermissible variance between the Indictment and the proof at trial. We affirm.
I. Background
On February 13, 2006, the South Dakota Division of Criminal Investigation received an unsolicited phone call concerning alleged drug activity in Custer, South Dakota. The call was referred to Agent Lyle Tolsma who did not knew and had not had any previous contact with the caller. The caller, whom Tolsma deemed a "source of information" ("SOI"), identified herself by first name, indicated that she had been to Buchanan's house three days earlier, and alleged that Buchanan had offered her methamphetamine. The SOI also alleged a second persona woman Tolsma later identified as a confidential informant ("CI")was involved in manufacturing methamphetamine with Buchanan.
During the call, the SOI informed Tolsma she was familiar with the appearance of methamphetamine and had been around it several times. The SOI described seeing approximately half of a gram of crystal methamphetamine on an aluminum smoking apparatus at Buchanan's house and stated that she was forced to leave the house because of the strong chemical odor. Tolsma testified that methamphetamine manufacturing produces a noticeable smell which, in some cases, can be detected a block away.
Around noon on February 14, 2006, Tolsma, joined by Agent Steve Ardis, conducted a "knock and talk" at Buchanan's home to investigate the SOI's allegations. Buchanan refused to let the agents into his house, claiming that it was messy. Buchanan made no incriminating statements, and Tolsma testified that he smelled no odor indicative of methamphetamine manufacturing.
*559 After speaking with Buchanan, Agents Tolsma and Ardis went to the CI's house to conduct another knock and talk. They told the CI that they were investigating allegations that she was involved in manufacturing methamphetamine with Buchanan. The CI confirmed that Buchanan was making methamphetamine and that, since October 2005, she had provided him approximately fifty packets of pseudoephedrine, a drug used to produce methamphetamine. The CI indicated that she had received methamphetamine from Buchanan in exchange for the pseudoephedrine. She also stated that she had smoked methamphetamine with Buchanan three days prior and that she had last seen Buchanan when she delivered pseudoephedrine to him the previous night. The CI also itemized objects Buchanan was using to produce the drug in his home.
Tolsma and Ardis told the CI that if she cooperated in their investigation they would speak to the prosecutor and that her cooperation would "go a long ways" toward helping her. The CI then agreed to conduct a recorded phone call with Buchanan, which they conducted that same day.
During the recorded phone conversation, Buchanan cautioned the CI of the agents' visit to his house and commented that state investigators were "probably listening in." Buchanan and the CI then engaged in a discussion of who might have informed law enforcement that he was manufacturing methamphetamine. Later in the conversation, Buchanan stated, "[T]here's a bunch of stupid [expletive] people around that you know, they get in trouble and then they try and get us in trouble. ... so hell, I'm not doing anything wrong." The CI asked Buchanan, "Do you think you are ok?" Buchanan replied, "Yeah, yeah, yeah, like I said you know, hey. It is scary but like I said, I ain't done nothing so I ain't worrying about it but I do have to clean up my garbage cause if they come into my house and bunch of people like that. ..."
Buchanan told the CI that he had refused to let the agents into his house and commented, "I gotta clean up my you know, key ends, and garbage and stuff I got laying all over my house and stuff you know and make it look a little more presentable in case somebody comes in. I'd hate to, you know." At one point, Buchanan and the CI engaged in an indirect discussion about the whereabouts of an unnamed item. The CI asked, "[W]ell what about me?" Buchanan replied, "Don't worry about that, it's gone." He later stated, "Yeah, it's gone. You know what I mean, you can't piss around and stuff so ... I imagine they are probably trying to get a warrant and all this [expletive] right now so. ..." Later the CI asked directly, "And where did you put it?" Buchanan replied "I haven't you know, time to get rid. ..." The CI interjected, "I know, but where?" Buchanan replied, "It ain't at your place so I don't know. ..."
Approximately a half hour after the call, law-enforcement agents, including Agent Tolsma, entered Buchanan's house and secured the residence to ensure no evidence was destroyed or removed. Tolsma then prepared an application and affidavit in support of a search warrant and read them over the phone to a state magistrate. Tolsma detailed the information the SOI had conveyed, but did not tell the state magistrate that the SOI had not given her full name, that he did not know her, or that he had not had any previous contact with her. While providing details of his conversation with the CI, Tolsma failed to state that he had no previous connection to the CI. Additionally, Tolsma indicated that he had visited Buchanan, but did not state that he had been physically present both inside and outside Buchanan's house without *560 smelling a methamphetamine odor. Tolsma characterized Buchanan's statements in the recorded phone call as follows: "Buchanan advised the CI that he... is currently in the process of cleaning out his residence, referring to the clandestine equipment and chemicals." (emphasis added). Buchanan, however, had never directly referenced the "clandestine equipment" or "chemicals" in the recorded call.
Based on Tolsma's application and affidavit, the state magistrate granted a search warrant, and a subsequent search revealed many incriminating items. Buchanan was then indicted for attempting to manufacture methamphetamine. The Indictment read:
On or about February, 2006, at Custer, in the District of South Dakota, the defendant, Steve Buchanan, did knowingly and intentionally attempt to manufacture five grams or more of actual methamphetamine, a Schedule II controlled substance, all in violation of 21 U.S.C. §§ 841(a)(1) and 84 1(b)(1)(B).
The Indictment, however, did not include a statutory reference to 21 U.S.C. § 846, which criminalizes the attempt to manufacture a controlled substance. See 21 U.S.C. § 846.
Prior to trial, Buchanan filed a motion to suppress the evidence obtained during the search. A magistrate judge held a Franks hearing to determine the validity of the search warrant and issued a report and recommendation that the district court deny Buchanan's motion. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The district court adopted the report and recommendation and denied Buchanan's motion to suppress. At trial, the district court's preliminary jury instructions informed the jury that Buchanan was charged "with the crime of attempting to manufacture [methamphetamine]." The final jury instructions repeated that charge in instructions five and eight. In instruction six, however, the district court stated that "the indictment charges the defendant with manufacturing a controlled substance." (emphasis added). Instruction six did not include the word "attempt" but continued to describe § 846 and told jurors that § 846 "provides that `any person who attempts ... to commit any offense defined in this subchapter [which includes 21 U.S.C. § 841(a)(1)] shall be subject to the same penalties as those prescribed for the offense.'" (quoting 21 U.S.C. § 846). The court also instructed the jury as to the elements of an attempt-to-manufacture charge and explained the workings of those elements in instruction seven.
While the Indictment alleged a conspiracy "[o]n or about February 2006," the Government introduced evidence dating back to the spring of 2005 and established that Buchanan had expressed interest in learning to manufacture methamphetamine and had sought instruction from books and friends. Buchanan did not object to the introduction of this evidence. At the close of evidence, however, he made a Rule 29 motion for a judgment of acquittal, arguing that he had been prejudiced by an impermissible variance between the indictment and the facts established at trial. See Fed.R.Crim.P. 29. The district court denied Buchanan's motion.
Ultimately, the jury convicted Buchanan of one count of attempting to manufacture methamphetamine in violation of § 841. The district court sentenced him to eighty months' imprisonment and four years' supervised release. This timely appeal followed.
II. Motion to Suppress
Buchanan argues that the district court erred by failing to grant his motion to suppress. He claims that the SOI's and *561 CI's allegations were hearsay and lacked corroboration, thus resulting in a lack of probable cause sufficient to support the issuance of a search warrant. He also argues that Tolsma recklessly misrepresented the nature of Buchanan's statements in his affidavit and omitted certain facts that demonstrated the absence of probable cause.
In reviewing the denial of a motion to suppress, "[w]e review the district court's factual findings for clear error and its legal determinations de novo." United States v. Lucas, 499 F.3d 769, 775 (8th Cir.2007) (en banc), cert. denied, ___ U.S. ___, 128 S. Ct. 1702, 170 L. Ed. 2d 515 (2008). Our task is "to ensure that the evidence as a whole provides a substantial basis for finding probable cause for the issuance of the warrant." United States v. Schmitz, 181 F.3d 981, 985 (8th Cir.1999) (quotation omitted). To successfully challenge probable cause and the validity of a warrant affidavit under Franks, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667, a defendant must show by preponderant evidence that: (1) the affiant included in the affidavit "a false statement knowingly and intentionally, or with reckless disregard for the truth," and (2) "the affidavit's remaining content [was] insufficient to establish probable cause." United States v. Humphreys, 982 F.2d 254, 258 n. 2 (8th Cir.1992). "The same analysis applies to omissions of fact" in an affidavit. Id. The defendant must show that: (1) the affiant omitted facts "with the intent to make, or in reckless disregard of whether they thereby make, the affidavit misleading," and (2) "the affidavit, if supplemented by the omitted information, could not support a finding of probable cause." Id.; see also Franks, 438 U.S. at 171-72, 98 S. Ct. 2674.
A. Probable Cause
Buchanan first claims that the CI and SOI did not provide sufficiently credible or reliable information to establish probable cause. Probable cause to search exists if "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In evaluating probable cause, a judicial officer reviewing an application for a search warrant does not use a hypertechnical approach. Id. Rather, he or she employs a totality-of-the-circumstances analysis and makes a practical decision based on such factors as the veracity of the affidavit and the basis of knowledge of any person supplying hearsay information. Id.; see also United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993) ("The core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable.").
When reviewing a probable cause finding, the duty of this court is simply to ensure that the judicial officer that authorized the search had a "substantial basis for concluding that probable cause existed," Gates, 462 U.S. at 238-39, 103 S. Ct. 2317 (quotation and alterations omitted), and we "must accord substantial deference to the finding of an issuing judicial officer." Williams, 10 F.3d at 593 (citing Gates, 462 U.S. at 236, 103 S. Ct. 2317).
Contrary to Buchanan's claim, we believe the information from the CI and SOI was sufficiently reliable to establish probable cause. In determining whether information is reliable, we have set forth various factors to consider. In United States v. Jackson, 898 F.2d 79, 81 (8th Cir.1990), we noted that there are indicia of reliability in "the richness and detail of a first hand observation." We have also recognized that "[s]tatements against the penal interest of an informant typically carry considerable weight" in establishing *562 reliability. United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir.2001) (quotation omitted). The circumstances of personal questioning may also enhance reliability and credibility. See United States v. Robertson, 39 F.3d 891, 893 (8th Cir. 1994) (stating the reliability of a tip is enhanced when an agent meets personally with the informant to assess his credibility).
An informant may also be considered reliable if the information he or she supplies "is at least partially corroborated" by other sources. Humphreys, 982 F.2d at 259; see also Williams, 10 F.3d at 593 ("If information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that the informant provides, though uncorroborated, is also reliable."); cf. United States v. Wells, 223 F.3d 835, 839-40 (8th Cir.2000) (holding that without "suitable corroboration," information from a single anonymous caller was insufficient to be reliable and establish probable cause). Probable cause can be established when information from one informant is consistent with that of a second, independent informant. See, e.g., United States v. Fulgham, 143 F.3d 399, 401 (8th Cir.1998) (holding that an informant's information was corroborated and reliable when a second informant supplemented the information with "specific, consistent details"); see also United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986) (discouraging the technical dissection of tips for corroboration and noting the enhanced reliability of independently consistent stories). "Even the corroboration of minor, innocent details can suffice to establish probable cause." Tyler, 238 F.3d at 1039 (quotation and citation omitted).
Here, as the district court noted, the statements provided by both the CI and the SOI were based on their firsthand observations and knowledge rather than rumor or innuendo, see Jackson, 898 F.2d at 81, and the CI provided information contrary to her own penal interest. See Tyler, 238 F.3d at 1039. Also, Agent Tolsma spoke with the CI directly and was able to personally assess her credibility. See Robertson, 39 F.3d at 893.
Finally, the information the SOI provided to Tolsma was corroborated by the information the CI provided. Like the specific and consistent details of the second informant that reciprocally corroborated the first informant in Fulgham, the CI in this case gave specific details that were consistent with the SOI's allegations. See Fulgham, 143 F.3d at 401. The SOI alleged that Buchanan possessed methamphetamine and indicated that there was a strong chemical odor at his house. The CI gave consistent details that indicated Buchanan had been manufacturing methamphetamine at his home and itemized other drug-production paraphernalia she had seen in his house. The SOI also alleged that the CI was involved in manufacturing methamphetamine with Buchanan, and the CI admitted that she had provided Buchanan with pseudoephedrine and was involved in Buchanan's manufacturing.
Buchanan argues that the reliability of the informants based on reciprocal corroboration fails because it does not meet an exaggerated level of specific verification, and he points to certain, specific allegations that were not plainly corroborated. We have addressed specific, technical contentions like this before. In Reivich we stated, "Such emphases typify the `excessively technical dissection of informants' tips' and the `judging [of] bits and pieces of information in isolation against ... artificial standards' against which the Supreme *563 Court cautioned in Gates and Upton." Reivich, 793 F.2d at 960 (quoting Massachusetts v. Upton, 466 U.S. 727, 732, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984)). We conclude that because the information the CI and the SOI provided was sufficiently corroborative, it was therefore reliable and sufficient to establish probable cause.
B. Misstatements and Material Omissions in the Affidavit.
Buchanan also claims that the district court erred in denying his suppression motion because Tolsma recklessly misrepresented the nature of Buchanan's statements in Tolsma's warrant application and, thus, there was no basis for probable cause. An affidavit in support of a warrant must contain statements that are truthful. See Franks, 438 U.S. at 164-165, 98 S. Ct. 2674. This, however, does not require that "every fact recited in the warrant affidavit is necessarily correct." Id. at 165, 98 S. Ct. 2674. "[P]robable cause may be founded ... upon information within the affiant's own knowledge that sometimes must be garnered hastily." Id. Therefore, the affidavit must be "`truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Id.; see also Schmitz, 181 F.3d at 984, 986-87 (holding that inaccuracies of an affiant's testimony regarding the details of an incident did not undermine probable cause where the affiant reasonably concluded that she had observed a crime in progress). The test is "whether, viewing all the evidence, the affiant must have entertained serious doubts about the truth [of his statements] or had obvious reasons to doubt the accuracy of the information." Schmitz, 181 F.3d at 986-87 (quotation omitted).
Here, the district court found no evidence that Tolsma acted untruthfully or recklessly in preparing his affidavit and application for a search warrant, and the record demonstrates that the district court's finding was not clearly erroneous. The affidavit was written in haste and spoken over the phone. Thus, as the district court recognized, "Any mistake Tolsma may have made in this regard would have been an understandable mistake, given the context of the conversation in which Mr. Buchanan's statement was made." There is no indication in the record that Tolsma was attempting to mislead the state magistrate nor that Tolsma had "serious doubts" about his statements or had "obvious reason" to doubt the accuracy of what he was relaying.
Buchanan argues, however, that the procedure used by the state magistrate to assess probable cause in this case violated the Fourth Amendment. He claims the state magistrate adopted Tolsma's interpretation of Buchanan's statement, and in so doing, "put the cart before the horse" because he effectively allowed Tolsma to assess the presence of probable cause. This is essentially a reiteration of Buchanan's challenge to the validity of the warrant affidavit. Our Fourth Amendment inquiry requires only that the evidence as a whole provide a substantial basis for the finding of probable cause. See Gates, 462 U.S. at 238, 103 S. Ct. 2317. In light of the totality of the circumstances, there were sufficient reliable facts from which the state magistrate could find that there was a "fair probability that contraband or evidence of a crime [would] be found," id. at 238, 103 S. Ct. 2317, in Buchanan's house and therefore the district court did not err in denying Buchanan's motion to suppress.
III. Indictment Claims
In addition to his motion-to-suppress claims, Buchanan raises several arguments related to his Indictment. He claims that the district court's jury instructions constructively *564 amended the Indictment to include a charge of actual manufacturing of methamphetamine. He also claims there was an impermissible variance between the Indictment date and the proof established at trial. Finally, he claims the Indictment was insufficient because it did not cite the statute criminalizing attempt. We find Buchanan's claims unavailing.
A. Constructive Amendment
Buchanan first claims that the district court's jury instructions constructively amended the Indictment. "A constructive amendment occurs when the essential elements of the offense as charged in the indictment are altered in such a manner that ... the jury is allowed to convict the defendant of an offense different from or in addition to the offenses charged in the indictment." United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir.2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1286, 170 L. Ed. 2d 112 (2008); United States v. Bryant, 349 F.3d 1093, 1097 (8th Cir.2003). In order to determine whether an indictment was constructively amended, we consider whether the jury instructions, taken as a whole, "created a substantial likelihood that the defendant was convicted of an uncharged offense." Whirlwind Soldier, 499 F.3d at 870 (quotation omitted).
Here, the Indictment charged Buchanan with an "attempt to manufacture" methamphetamine. Buchanan argues that the jury instructions constructively amended the indictment because instruction six omitted the word "attempt" and instead read: "The indictment charges the defendant with manufacturing a controlled substance in violation of 21 U.S.C. § 841(a)(1)." We disagree with Buchanan. The jury instructions repeatedly included references to the charge of attempt to manufacture methamphetamine. Instruction five, for example, informed the jury that Buchanan was charged with "knowingly and intentionally attempt[ing] to manufacture ... methamphetamine." Instruction eight stated: "[t]he crime charged in the indictment is an attempt to manufacture methamphetamine." Additionally, although the district court inadvertently omitted the word "attempt" from the beginning section of instruction six, that instruction continued to inform jurors that 21 U.S.C. § 846 "provides that [a]ny person who attempts ... to commit any offense defined in this subchapter [which includes 21 U.S.C. § 841(a)(1)] shall be subject to the same penalties as those prescribed for the offense." More importantly, the court also instructed the jury of the elements of "attempt to manufacture" in instruction seven, and explained those elements in instruction eight.
Given these instructions, we believe that the jury instructions clearly informed the jury of the essential elements of the crime of attempting to manufacture methamphetamine. See Whirlwind Soldier, 499 F.3d at 870. The Indictment was not constructively amended by a single reference to the crime of actual manufacture where there were repeated, specific instructions identifying the crime of attempt and the elements thereof. The repeated instructions of attempt insured that there was not a substantial likelihood that the jury could convict Buchanan of actual manufacture of methamphetamine. Therefore, we reject Buchanan's constructive-amendment claim.
B. Variance of the Indictment
Buchanan also argues that the evidence presented at trial constituted a variance of the Indictment. A variance arises when the evidence presented proves facts that are "materially different from those alleged in the indictment." United States v. Begnaud, 783 F.2d 144, 147 n. 4 *565 (8th Cir.1986). "[A] variance in the evidence affects the defendant's right to adequate notice" under the Sixth Amendment. Stuckey, 220 F.3d at 981. When a variance occurs, "[t]he charging document does not change, only the evidence against which the defendant expected to defend" varies. Id. "Whether a variance exists, and, if so, whether that variance prejudiced [the defendant] are questions of law that we review de novo." Id. at 979. Where the indictment "fully and fairly" apprises the defendant of the allegations against which he must defend, prejudice is absent and any variance is harmless error. See Begnaud, 783 F.2d at 148; see also Stuckey, 220 F.3d at 982 ("holding that any variance between the indictment date and proof at trial did not result in material prejudice where time was not a material element of the criminal offense").
Here, the Indictment charged Buchanan with attempt to manufacture methamphetamine "on or about February 2006." The offense of attempt to manufacture methamphetamine did not require the Government to prove the Indictment date as an element of the crime. Rather, the charge required the Government to prove that Buchanan carried out substantial steps toward the manufacture of methamphetamine. United States v. Beltz, 385 F.3d 1158, 1162 (8th Cir.2004). It is exactly those steps that the Government sought to prove in its presentation of evidence. While the evidence presented at trial extended as far back as the spring of 2005, that evidence was not materially different from the allegations of the Indictment, and the Indictment fully and fairly apprised Buchanan of the charge he faced at trial. We therefore conclude that any variance that existed as a result of the evidence proffered did not materially prejudice Buchanan.
C. Sufficiency of Indictment
Buchanan's final claim is that his Indictment failed to state an offense because it did not directly cite 21 U.S.C. § 846, which criminalizes attempt. Failure to raise a challenge to an indictment prior to trial generally constitutes a waiver. United States v. Davis, 103 F.3d 660, 674 (8th Cir.1996). A challenge that an indictment fails to state an offense, however, may be raised at any time while the case is pending. Fed.R.Crim.P. 12(b)(3)(B); United States v. Rosnow, 9 F.3d 728, 729 (8th Cir.1993) (per curiam). While Buchanan did not challenge the sufficiency of the Indictment prior to trial, his claim that the Indictment failed to state an offense may be considered on appeal. An indictment that is challenged after jeopardy attaches, will be upheld "unless [the indictment] is so defective that by no reasonable construction can it be said to charge the offense." United States v. White, 241 F.3d 1015, 1021 (8th Cir.2001) (quotation omitted); Davis, 103 F.3d at 675 ("[A]n indictment that is challenged after jeopardy has attached will be liberally construed in favor of sufficiency." (quotation omitted)).
"An indictment is sufficient if it fairly informs the accused of the charges against him and allows him to plead double jeopardy as a bar to a future prosecution." United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir.1988). An indictment need not use the precise language in the statute as long as the Indictment, "by fair implication," alleges an offense recognized by the law. Id. While Federal Rule of Criminal Procedure 7(c)(1) generally requires an indictment to give the official citation of the statute or other provision of law that the defendant is alleged to have violated, Rule 7(c)(3) also states, "Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation's *566 omission is a ground to dismiss the indictment or information or to reverse a conviction." Fed.R.Crim.P. 7(c)(1), 7(c)(3); see also Tanksley v. United States, 321 F.2d 647, 649 (8th Cir.1963); United States v. Williams, 129 Fed.Appx. 332, 333 (8th Cir. 2005) (unpublished) ("An error in, or the omission of, a statute's citation in the body of an indictment is not grounds for a conviction's reversal unless the error or omission misleads the defendant to his prejudice.").
Buchanan has not indicated how the omission of the statutory citation misled him. A reasonable construction of the Indictment indicates that it charged the offense of attempt to manufacture a controlled substance, and the words "did knowingly and intentionally attempt to manufacture" clearly set forth the elements of the intended charge of attempt. We therefore hold that the indictment fairly informed Buchanan of the charges against him and allows him to plead double jeopardy as a bar to a future prosecution for attempt to manufacture methamphetamine. The Indictment was therefore sufficient.
IV. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
NOTES
[1] The Honorable Andrew W. Bogue, United States District Judge for the District of South Dakota, deceased, June 11, 2009, adopting the Report and Recommendation of the Honorable Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743801/ | 436 So. 2d 1109 (1983)
In the Interest of J.B., a Child, Petitioner,
v.
Honorable Lawrence L. KORDA, As Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
No. 83-982.
District Court of Appeal of Florida, Fourth District.
September 7, 1983.
*1110 Alan H. Schreiber, Public Defender, and Timothy Day, Asst. Public Defender, Fort Lauderdale, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for respondent.
HERSEY, Judge.
Prohibition is sought to review an order denying a motion for discharge based upon speedy trial considerations in juvenile proceedings. Unless there was a waiver, the time within which an adjudicatory hearing was required to be held under Rule 8.180, Fla.R.Juv.P., had expired and petitioner was entitled to be discharged.
Petitioner was arrested for burglary and petty theft on November 2, 1982. Charges were filed on December 10, 1982. Arraignment was held on December 29, 1982 at which time counsel was appointed and trial was set for January 12, 1983. On January 10, 1983 petitioner filed a motion for continuance, requesting that it be "without prejudice to the Defendant." The court ultimately granted a "court continuance."
Whatever the label and whether affixed by a party or the court, the effect was that "the failure to hold trial is attributable to the accused ..." within the contemplation of Fla.R.Crim.P. 3.191(d)(3). Where delay is attributed to a defendant, the original period established by the rule no longer appertains. Thus the state becomes obligated to provide a trial within constitutional (reasonable time) parameters. See Brownlee v. State, 427 So. 2d 1106 (Fla. 3d DCA 1983).
We have treated the juvenile rule and the criminal rule as though together they formed a continuum within which all aspects of speedy trial lay in neat relationship. Because courts, like nature, abhor a vacuum, we adopt the continuum so postulated and read these rules as in pari materia and thus conclude: petitioner caused a continuance to be granted; it is thus attributable to him; where trial is delayed by a cause attributable to the accused the speedy trial rule is waived (under Fla.R.Crim.P. 3.191(d)(3) and Fla.R.Juv.P. 8.180(c)); thereafter trial (or an adjudicatory hearing) must be afforded within a reasonable time.
WRIT DENIED.
DOWNEY and BERANEK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2429260/ | 817 S.W.2d 854 (1991)
Terry Lee JONES, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-90-00703-CR.
Court of Appeals of Texas, Houston (1st Dist.).
October 24, 1991.
*855 Perry N. Bass, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., J. Harvey Hudson and Kelly Siegler, Asst. Harris County Dist. Attys., for appellee.
Before SAM BASS, DUNN and HUGHES, JJ.
OPINION
DUNN, Justice.
Appellant was convicted by a jury of two counts of aggravated sexual assault, and the trial court assessed appellant's punishment at confinement for 10 years.
In seven points of error, appellant complains of the sufficiency of the evidence and of the trial court's action in admitting hearsay. We affirm.
The indictment states that on August 2, 1989, Terry Lee Jones intentionally and knowingly caused the sexual organ of the complainant, a person younger than 14 years of age and not his spouse, to contact his sexual organ. The indictment further charges that on August 20,1989, Terry Lee Jones intentionally and knowingly caused the anus of the complainant, a person younger than 14 years and not his spouse, to contact his sexual organ and caused the penetration of the female sexual organ of the complainant by placing his finger in her female sexual organ.
Appellant's first, second, third, and fourth points of error claim that the evidence was legally and factually insufficient to support appellant's conviction for aggravated sexual assault, where the evidence failed to show that appellant was not married to the complainant. Appellant was charged with aggravated sexual assault of a child. Tex.Penal Code Ann. § 22.021(a)(1)(B) (Vernon 1974). Appellant notes that, under sections 22.021(b) and 22.011(c)(1) of the Texas Penal Code, a child is defined as a person under the age of 17 who is not the spouse of the actor.
In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989); Jordan-Maier v. State, 792 S.W.2d 188, 190 (Tex.App. Houston [1st Dist.] 1990, pet. ref'd). The burden of proof to prove the essential elements of the crime, beyond a reasonable doubt, is on the State. Johnson v. State, 673 S.W.2d 190, 194 (Tex.Crim.App.1984).
Appellant urges this Court to apply the standard of review set forth in the case of Meraz v. State, 785 S.W.2d 146 (Tex.Crim. App.1990). We decline to do so.
The Meraz standard applies only to situations in which the burden of proof is by a preponderance of the evidence. The Meraz case involved the sufficiency of an incompetency claim, which a defendant has the burden to prove by a preponderence of the evidence. Tex.Code Crim.P.Ann. art. 46.02, § 1(b) (Vernon 1979). Regarding the "against the great weight and preponderance" standard, the Court of Criminal Appeals limited its application, as follows:
[W]hen the courts of appeals are called upon to exercise their fact jurisdiction, that is, examine whether the appellant proved his affirmative defense or other *856 fact issue where the law has designated that the defendant has the burden of proof by a preponderance of evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.
Meraz, 785 S.W.2d at 154-55. The appellant in this case had no burden of proof on any of the issues. Thus, the standard of review set forth in Meraz is inapplicable to the facts of this case. See Hunter v. State, 799 S.W.2d 356, 358-59 (Tex.App. Houston [14th Dist] 1990, no pet.).
The mother of the complainant testified that her daughter is less than 14 years old and that appellant is the complainant's father. The State offered an agreement of legitimation, signed by appellant, that indicates that appellant acknowledged that he is the father of the complainant and that her birthdate is September 21, 1982.
The complainant testified at trial that she was seven years old and was the daughter of appellant.
We find this evidence sufficient to support the jury's verdict. See, e.g., Jiminez v. State, 364 S.W.2d 396, 397 (Tex.Crim. App.1963). Appellant's contention has no basis in fact or in law. Section 1.52 of the Texas Family Code addresses marriage of an applicant under the age of 18. Indeed, the section makes no provision for marriage of individuals who are under the age of 14. Tex.Fam.Code Ann. § 1.52 (Vernon Supp.1991). We overrule points of error one, two, three, and four.
In his fifth point of error, appellant claims that the evidence was insufficient to support appellant's conviction for aggravated sexual assault under the second count of the indictment, where the record fails to show that the appellant penetrated or contacted the complainant as alleged in the indictment.
The grand jury returned a two count indictment against appellant. The second count alleged three separate legal theories of aggravated sexual assault: (1) the appellant contacted the complainant's anus with his sexual organ; (2) penetrated the complainant's vagina with his finger; and (3) penetrated the mouth of the complainant with his sexual organ. Tex.Penal Code Ann. §§ 22.011(a)(2)(A), (B), 22.021(a)(2)(B) (Vernon 1974 & Supp.1991). The court authorized the jury to convict appellant under the first two theories. The jury returned a general verdict of guilty on count two.
At trial, the complainant testified that she calls a man's penis his "private." She calls her vagina her "toot toot" or her "private"; she calls her anus her "butt" or her "bootie." The complainant then identified the vagina and the anus on a doll as its "toot toot" and its "butt." The complainant testified that she was lying down sideways on the floor, watching television, when her father came and lay down beside her on the floor. He pulled the zipper on her short suit down all the way and put his hand down her panties. The complainant then stated that her father touched her private with his whole hand. She took his hand out and zipped her clothes. Her father then unzipped her clothes again and "stuck it back in there."
The complainant also testified that after this incident, her father next touched her with his fingers on her butt. She turned over on her stomach and her father "got on my legs." Her father was "close" to her "bootie" and put his hand under her "butt." The prosecutor asked the complainant to indicate with a male doll and a female doll what took place. The complainant positioned the male doll to sit on top of the female doll, with its legs spread open, up to the anus of the female doll. Her father then put his "private part" up the leg opening in her shorts. The complainant stated that it felt "wet."
The testimony of a sexual assault victim alone is sufficient evidence of penetration, even if the victim is a child using unsophisticated language to describe the act. Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App.1978); Villanueva v. State, 703 S.W.2d 244, 245 (Tex.App.Corpus Christi 1987, no pet.). The Texas Court of *857 Criminal Appeals expressed the public policy considerations as follows:
We cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults. To expect such testimonial capabilities of children would be to condone, if not encourage, the searching out of children to be the victims of crimes such as the instant offense in order to evade successful prosecution.
Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App.1990).
In the Villalon case, the Court of Criminal Appeals concluded: "[T]he rule in this jurisdiction [is] that penetration may be proven by circumstantial evidence." Id. at 133. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is sufficient to support appellant's conviction, in that a rational factfinder could have found that the State established the essential elements of the crime beyond a reasonable doubt. Jordan-Maier, 792 S.W.2d at 190; Lee v. State, 779 S.W.2d 913, 915 (Tex.AppHouston [1st Dist.] 1989, pet. ref'd). We overrule point of error five.
Appellant's sixth point of error asserts that the trial court committed reversible error in admitting the testimony of the complainant's mother concerning what the complainant told her about the alleged offense, where the State failed to lay a proper predicate for any exception to the rule against hearsay.
Evidence of a victim's outcry is admissible under article 38.072 of the Texas Code of Criminal Procedure. This article is applicable to a proceeding in the prosecution of an offense under chapter 22 of the Texas Penal Code, if committed against a child 12 years of age or younger. Statements that describe the alleged offense are admisible if they were (1) made by the child against whom the offense was allegedly committed and were made (2) to the first person, 18 years of age or older, to whom the child made a statement about the offense. Article 38.072, section 2(b) provides:
A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.
Tex.Code Crim.P.Ann. art. 38.072 (Vernon Supp.1991).
Our review of the record indicates that the State substantially complied with the statutory predicate. On March 2, 1990, the State filed its notice of intention to use the child abuse victim's hearsay statement. The mother's name and a summary of her statement were included in the notice. The complainant testified at trial. The record does not indicate that the judge held a hearing to determine the reliability of the statement.
The record indicates that appellant's attorney objected at the time the testimony was offered on the basis of "hearsay." The State did not request a hearing, nor did counsel for appellant object that the statutory predicate had not been fulfilled. Thus, nothing is presented for review because the complaint on appealno proper predicatediffers from the trial objectionhearsay. Weaver v. State, 722 S.W.2d 143, 146 (Tex.App.Houston [1st Dist.] 1986, no pet.); Tex.R.App.P. 52(a). Point of error six is overruled.
In point of error seven, appellant contends that the trial court committed reversible error in allowing the complainant's *858 mother to testify about statements made by the complainant after her "outcry." These statements were offered to show that the complainant did not tell her mother about the first alleged offense immediately after it happened because the complainant loved her father and didn't want to hurt him.
Counsel for appellant objected to this testimony as hearsay. The court overruled the objection. We do not find that the admission of the mother's testimony that the complainant said she loved her father and did not want to hurt him was a clear abuse of discretion. Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App.1986). Though these statements do not "describe the alleged offense," Tex.Code Crim.P.Ann. art. 38.072, § 2(a) (Vernon Supp.1991), the testimony is closely related in time and scope to the offenses and was relevant to show the state of mind of the complainant. We overrule appellant's seventh point of error.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204187/ | 888 N.E.2d 1188 (2008)
227 Ill.2d 594
PEOPLE
v.
SMITH.
No. 105943.
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/2264773/ | 744 A.2d 377 (2000)
Danielle KEENHOLD by Teresa THROWER-KEENHOLD, Parent and Natural Guardian, Petitioner,
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs November 12, 1999.
Decided January 13, 2000.
*378 James V. Fareri, Stroudsburg, for petitioner.
Daniel Fellin, Harrisburg, for respondent.
Before McGINLEY, J., KELLEY, J., and MIRARCHI, Jr., Senior Judge.
MIRARCHI, Jr., Senior Judge.
Danielle Keenhold (Danielle), through her mother Teresa Thrower-Keenhold, appeals from an order of the Bureau of Hearings and Appeals (Bureau) that affirmed the decision of the Department of Public Welfare (Department) approving home health aide services for six hours a day, seven days a week, rather than eight hours a day, seven days a week as requested by Danielle. We reverse the Bureau's decision to the extent that it affirmed the Department's denial of Danielle's request for the home health aide services for additional two hours a day, seven days a week.
The facts found by the hearing officer and adopted by the Bureau are undisputed. Danielle is an eleven-year old child, who suffers from severe spinal muscular atrophy, also known as Werdnig-Hoffmann disease, which progressively destroys muscles. Due to her conditions, Danielle has a very limited use of her upper extremities. She is wheelchair bound and totally dependent on others in all of her daily activities, including eating, dressing, bathing, toileting and preparing for school in the morning. In addition, she must be rolled over and repositioned in bed several times throughout the night.
Danielle resides with her mother, who is her sole caregiver at home. Danielle's mother is unemployed and has various medical problems, including chronic abdominal pain, chronic gynecological bleeding and chronic kidney problems. Since May 1997, the Department has provided home health aide services for Danielle for six hours a day from 12:00 a.m. to 6:00 a.m., seven days a week. When Danielle wakes up at 6:45 a.m., Danielle's mother must assume her care to get her ready for school, such as transferring her from the bed to the wheelchair, and bathing, dressing and feeding her. When Danielle arrives at school at 9:00 a.m., her school provides nursing services until 3:00 p.m. After school, her mother resumes her care until the home health aide provided by the Department arrives at 12:00 a.m.
Since the Department began providing the home health aide, Danielle's conditions have been steadily worsened. Her mother's medical conditions have also been aggravated due to the physical rigors of caring for Danielle. In December 1998, the Department provided Danielle the home health aide services for additional two hours from 6:00 a.m. to 8:00 a.m. due to her mother's medical complications. In early February 1999, Danielle's mother submitted, on behalf of Danielle, (1) the Outpatient Service Authorization Request Form (request form) signed by Danielle's mother on December 20, 1998, in which Danielle's home health aide, Ellie Fenner, R.N., requested continued home health aide services for eight hours a day from 12:00 a.m. to 8:00 a.m., seven days a week, for six months; (2) a letter from Peter Casale, M.D., dated October 28, 1998, describing the medical conditions of Danielle's mother; and (3) a letter dated October 15 1998 from Danielle's pediatric neurologist, Peter Bingham, M.D., and her nurse specialist in neurology.
Dr. Bingham and the nurse specialist stated in their October 15, 1998 letter:
Little Ms. Keenhold is well known to the Division of Neurology here at the Children's Hospital of Philadelphia. She carries the diagnosis of Spinal Muscular Atrophy.
Spinal Muscular Atrophy (SMA) is a slowly progressive neuro-muscular disease that destroys muscles leaving an individual extremely weak. Danielle is wheelchair bound, as she is unable to *379 walk, stand, sit independently, reposition herself, or take care of her everyday needs such as dressing, toileting, and eating independently. Danielle must depend upon another individual for all of her needs.
Despite her strong dependency upon others, Danielle is just fun to be with. She is bright, has a good sense of humor and likes keeping up with her peers.
We are requesting 13 hours of nursing help a day as Danielle does require 24 hours of care a day. She needs total assistance for personal care, hygiene, range of motion exercise, chest percussion and postural drainage. Even during the night, Danielle requires assistance when she needs repositioning or other help such as going to the bathroom or getting a drink of water.
Her mother[`s] health problems therefore would benefit from having help in the home to care for her daughter. A home health aid is needed to assist Danielle each day of the week.
Danielle is prone to pneumonia and infections; therefore, to maintain her current health, proper care on the day to day basis is medically necessary to help prevent potential hospitalizations.
We are grateful for the care that you provide Danielle and hope that you will be able to provide the 13 hours nursing care 7 days a week.
On January 22, 1999, Dr. Bingham certified in the request form that the requested home health aide services for eight hours a day and seven days a week were medically necessary for Danielle.
On February 12, 1999, the Department's Office of Medical Assistance Program approved the home health aide services for six hours a day, seven days a week, but disapproved the services for additional two hours a day, seven days a week. Danielle, through her mother, appealed the Department's decision to the Bureau. After a hearing held over telephone on April 15, 1999, at which the Department's witness, Carol Borwegan, R.N, and Danielle's mother testified, the hearing officer denied Danielle's appeal, concluding that Danielle failed to establish her needs for daily home health aide services from 6:00 a.m. to 8:00 a.m. The Bureau subsequently adopted the hearing officer's adjudication and affirmed the Department's decision. Danielle's appeal to this Court followed.[1]
Danielle contends that the Bureau erred in affirming the Department's denial of her request for home health aide services for additional two hours a day, seven days a week because the undisputed facts found by the hearing officer establish her needs for the requested additional services.
While states participating in the federally funded medical assistance program are not required to fund every medical procedure for the needy, the states must provide at least the minimum necessary medical services required for the successful treatment of the particular medical condition presented. Marsh v. Department of Public Welfare, 48 Pa.Cmwlth. 216, 409 A.2d 926 (1979). The states are accordingly prohibited "from excluding entirely or limiting below the minimum treatment required any category or type of necessary medical services except for reasons either not relating to, or in addition to, the diagnosis, type of illness or condition." Shappell v. Department of Public Welfare, 66 Pa.Cmwlth. 641, 445 A.2d 1334, 1336 (1982) (quoting Roe v. Casey, 464 F.Supp. 487, 501 (E.D.Pa.1978), aff'd, 623 F.2d 829 (3rd Cir.1980)).
*380 The Department's regulations at 55 Pa. Code § 1101.66(a) set forth the following standards for medical assistance:
(a) The Department pays for compensable services or items rendered, prescribed or ordered by a practitioner or provider if the service or item is:
(1) Within the practitioner's scope of practice.
(2) Medically necessary.
(3) Not in an amount that exceeds the recipient's needs.
(4) Not ordered or prescribed solely for the recipient's convenience.
(5) Ordered with the recipient's knowledge.
A service, item, procedure or level of care is "medically necessary," if it is:
(i) Compensable under the Medical Assistance program.
(ii) Necessary to the proper treatment or management of an illness, injury or disability.
(iii) Prescribed, provided or ordered by an appropriate licensed practitioner in accordance with accepted standards of practice.
55 Pa.Code § 1101.21.
In his adjudication, the hearing officer did not question the medical necessity for the care required for Danielle from 6:00 a.m. to 8:00 a.m. daily. The hearing officer found that Danielle wakes up at 6:45 a.m. after the home health aide currently provided by the Department has already left at 6:00 a.m., and that due to her medical conditions of severe muscular atrophy, Danielle is totally dependent on others and requires the caregiver's help "for dressing, bathing, and preparing for school or other activities of the day." Hearing Officer's Adjudication, Findings of Fact No. 6.[2] Further, Dr. Bingham stated in his letter that Danielle requires nursing help for thirteen hours a day and seven days a week. On January 22, 1999, he certified in the request form that the requested home health aide services for eight hours a day, seven days a week were medically necessary. Danielle's home health aide also stated in the request form that the additional two hours were required to move Danielle from the bed to the wheelchair and assist her with her daily needs in the morning.
To justify his decision to deny Danielle's appeal, the hearing officer stated, however, that the home health aide services for additional two hours from 6:00 a.m. to 8:00 a.m. exceed Danielle's needs because Danielle's mother failed to adequately document her medical conditions preventing her from caring for Danielle during that time. In support, the hearing officer noted that Dr. Casale's October 28, 1998 letter describing Danielle's mother's medical conditions was several months old as of the date of the April 15, 1999 hearing and that even without the home health aide services, Danielle's mother "adequately" cares for Danielle after school until the home health aide arrives at 12:00 a.m. Hearing Officer's Adjudication, p. 5. The undisputed evidence in the record and the hearing officer's own factual findings adopted by the Bureau do not support the denial of Danielle's request for the additional services.
At the hearing, Danielle's mother testified that she recently had a kidney transplant and must have another kidney transplant, that she had a chronic bleeding requiring transfusion and must undergo a hysterectomy, and that she also had a back problem. Danielle's mother further testified that when Danielle wakes up at 6:45 a.m., a caregiver must lift her from the bed, put her in the "hoya" lift, get her in the sling, pull her over with the *381 hoya lift, move her over into the wheelchair, brush her teeth, and bathe, dress and feed her; it is difficult for her to move Danielle, now weighing ninety-two pounds, from the bed to the wheelchair because of her medical conditions; and she was injured in November 1998, while picking Danielle up.
In his adjudication, the hearing officer accepted the testimony of Danielle's mother and Dr. Casale's October 28, 1998 letter describing her medical conditions and found:
Appellant's mother has a history of a kidney transplant and chronic kidney problems. Appellant's mother also suffers from chronic abdominal pain and chronic gynecological bleeding. The physical rigors of caring for the Appellant child often aggravate the problems of Appellant's mother.
Findings of Fact No 7. The hearing officer also found that "[Danielle's] mother herself suffers from chronic medical conditions, making it difficult for her to care for the child," and that the Department approved the home health aide services for eight hours a day in December 1998 "because of Teresa Keenhold's medical complications." Hearing Officer's Adjudication, p. 4; Findings of Fact No. 8. In addition, the record does not reveal any evidence indicating that the medical conditions of Danielle's mother have improved since December 1998.
Thus, the hearing officer's own findings establish the medical conditions of Danielle's mother which prevent her from caring for Danielle from 6:00 a.m. to 8:00 a.m. daily.[3] By concluding that the medical conditions of Danielle's mother were not adequately established, based solely on the date of Dr. Casale's letter, the hearing officer contradicted his own findings of her medical conditions. Hence, the Department's refusal to continue to provide Danielle the home health aide services for eight hours a day, seven days a week, as provided in December 1998 when her mother suffered the medical complications, is not justified.[4]
Since the record establishes that the additional two hours of daily home health aide services requested by Danielle is medically necessary and within her needs, the order of the Bureau is reversed to the extent that it affirmed the Department's denial of Danielle's request for the services for additional two hours a day from 6:00 a.m. to 8:00 a.m., seven days a week.
ORDER
AND NOW, this 13th day of January, 2000, the order of the Bureau of Hearings and Appeals (Bureau) in the above-captioned matter is reversed to the extent that the Bureau affirmed the decision of *382 the Department of Public Welfare to disapprove home health aide services for additional two hours a day from 6:00 a.m. to 8:00 a.m., seven days a week, as requested by Danielle Keenhold, through her mother, Teresa Thrower-Keenhold. The Bureau's order is affirmed in other respects.
NOTES
[1] This Court's scope of review of the Bureau's adjudication is limited to determining whether the adjudication is in accordance with the law, does not violate constitutional rights, and is supported by substantial evidence in the record. Children's Hospital of Philadelphia v. Department of Public Welfare, 153 Pa.Cmwlth. 634, 621 A.2d 1230 (1993), appeal denied, 535 Pa. 662, 634 A.2d 225 (1993).
[2] The hearing officer did not accept the testimony of the Department's witness that "[i]f the extra two hours requested were approved the home health aide would have two hours to do absolutely nothing." N.T., p. 10. The Department's witness later admitted that she never met Danielle and was not fully aware of Danielle's conditions. When asked if Danielle was able to stand or sit independently, she replied, "I have no idea." N.T., p. 13.
[3] The Bureau refused to review Danielle's request for the home health aide services for the additional two hours on weekends and holidays, stating that the testimony presented by both parties did not refer to the care to be given Danielle from 6:00 a.m. to 8:00 a.m. on weekends and holidays. The record establishes, however, that Danielle will require the same care of moving her from the bed to the wheelchair, brushing her teeth, bathing, dressing and feeding her in the morning even on weekends and holidays, and that such care is therefore medically necessary and within her needs.
[4] The Department relies on the nursing help provided by Danielle's school from 9:00 a.m. to 3:00 p.m. during weekdays to argue that she already receives 13 hours of nursing help requested by Dr. Bingham in his October 15, 1998 letter. It must be noted, however, that Dr. Bingham certified in the request form that the requested additional 2 hours of daily services were medically necessary. Moreover, Dr. Bingham stated in his letter that Danielle requires "the 13 hours nursing care 7 days a week," which would total 91 hours a week. Currently, Danielle receives a total of 72-hour nursing services a week: the home health aide services for 6 hours a day, 7 days a week provided by the Department, and the nursing services from her school for 6 hours a day, 5 days a week. With the requested additional 2 hours of services, 7 days a week, Danielle will receive 86 hours of services a week, less than requested by Dr. Bingham as medically necessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264824/ | 879 F.Supp. 89 (1995)
UNITED STATES of America, Plaintiff,
v.
Charles E. KNOTE, et al., Defendants.
No. 1:91CV87SNL.
United States District Court, E.D. Missouri, Southeastern Division.
January 5, 1995.
Michael A. Price, Asst. U.S. Atty., Cape Girardeau, MO, Tom C. Clark, II, Trial Atty., Environmental Enforcement Section, U.S. Dept. of Justice, Washington, DC, for plaintiff.
Francis M. Gaffney, Sonnenschein, Nath & Rosenthal, St. Louis, MO, John S. Hahn, Sonnenschein, Nath & Rosenthal, Washington, DC, for defendants.
ORDER
LIMBAUGH, District Judge.
This matter is before the Court on the defendants' petition for award of attorneys' fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, filed November 16, 1994 along with their supplemental bill, filed December 22, 1994. The Government has filed a response.
To be eligible for an award of fees and expenses under the EAJA, the party seeking the fees must meet these requirements: 1) be a prevailing party; 2) have a net worth of less than $2,000,000.00 at the time the underlying action was filed; and 3) the fees and expenses were "incurred by that party in [the] civil action" in which the party prevailed. 28 U.S.C. § 2412(d)(1)(A)-(2)(B).
In the instant matter, there is no dispute that the defendants have met their threshold requirements. However, pursuant to the EAJA, a prevailing party is entitled to an award of attorneys' fees "unless the court finds that the position of the United States was substantially justified ..." 28 U.S.C. § 2412(d)(1)(A). "Substantially justified" means "justified in substance or in the main". Pierce v. Underwood, 487 U.S. 552, 553, 108 *90 S.Ct. 2541, 2543, 101 L.Ed.2d 490 (1988). The Government has the burden of proving that its position was substantially justified, or that special circumstances make an award of attorneys' fees and expenses unjust. See, Moseanko v. Yeutter, 944 F.2d 418, 427 (8th Cir.1991). The Government must show that its position had a reasonable basis in law and fact; i.e. show that the Government's position was "justified to a degree that could satisfy a reasonable person" under similar circumstances. Pierce v. Underwood, 487 U.S. at 565-66, 108 S.Ct. at 2550.
The Government objects to the fee petition in two respects. Firstly, it believes that the position it took in this litigation was "substantially justified", therefore, the defendants are not entitled to recover any fees or expenses. Secondly, the Government contends that if the Court should find that the defendants are entitled to recovery of fees and expenses, then the fees should only be increased to account for an increase in the cost of living. Finally, the Government argues that this inflation-adjusted fee, which it concedes amounts to $119.96/hour, should be considered as an hourly fee cap for all defense counsel. The defendants aver that the Government's position in this litigation was never substantially justified; and that no hourly cap should be set on their counsel's fees due to the need of specialized assistance in this case. They request their full amount of attorneys' fees and costs incurred, which presently total $75,641.29.
After careful consideration of the parties' pleadings, the district court file on this case, and the Eighth Circuit Court of Appeals opinion affirming this Court's decision, the Court finds that the Government's position was not substantially justified. Thus, the defendants are entitled to some portion, if not all, of the requested fees and costs.
The Government agrees that if fees are awarded, the statutory rate of $75.00/hour should be adjusted for inflation to a rate of $119.96/hour.[1] The parties disagree as to whether this "cap" should be the maximum cap or the minimum cap. The Government seeks to impose a maximum rate of $119.96 for each of the attorneys who worked on defendants' case (except for two associates who billed at $100/hour); while the defendants seek to have their attorneys' fees recovered at the billed rate for each attorney.
The defendants are entitled to attorneys' fees in excess of the statutory rate, not only if the Court determines that an increase in the cost of living justifies the higher fee, but also if the Court determines that a special factor such as the limited availability of qualified attorneys for the proceedings involved justifies the higher fee. 28 U.S.C. § 2412(d)(2)(A)(ii).
After reviewing the court file and the defendants' submitted affidavits and billings, the Court determines that the defendants are entitled to attorneys' fees as requested. This case required specialized environmental litigation skills. It was also instrumental to the case that counsel who had negotiated the subject consent decree from its beginnings protect the rights that the defendants had obtained in the negotiations. The Court firmly believes that in the long-run considerable time and cost was saved by retaining the same counsel that was intimate with the history of the Kem-Pest site and the consent decree since 1987, represent the defendants in their fight to enforce the provisions of the consent decree. The defendants' fight to enforce the consent decree required application of distinctive knowledge and specialized skills not only in environmental and agency regulatory law, but a familiarity with the subject toxic site. The Sonnenschein firm filled this need without question.
As for the attorneys' hourly rates, there is nothing before this Court which contradicts *91 the defendants' assertions that the firm's regular hourly rates have been lowered to reflect the lower prevailing market rate in St. Louis. The Court has reviewed these rates, which vary from $100.00/hour to $220.00/hour, and finds same to be reasonable.
After careful consideration of the matter, the Court finds the application (along with the supplemental materials) reasonable and acceptable as to the hours expended in this case, the hourly rates, and the costs incurred. The Court will grant the fees' application for $66,584.50 in fees and $9056.79 in costs for a total amount of $75,641.29.
Accordingly,
IT IS HEREBY ORDERED that the defendants' petition for attorneys' fees and costs, filed November 16, 1994, along with supplemental materials, filed December 22, 1994 be and is GRANTED.
IT IS FINALLY ORDERED that the defendants are awarded attorneys' fees and costs, pursuant to the EAJA, in the amount of $66,584.50 in fees and $9056.79 in costs, for a total award of $75,641.29.
NOTES
[1] 28 U.S.C. § 2412(d)(2)(A)(ii) limits the hourly rate for recovery of attorneys' fees to $75.00/hour unless the Court finds that an increase in the cost of living justifies a higher fee. The increase in the cost of living is measured against the Consumer Price Index from October 1, 1981 (date of enactment of the EAJA) to the date of the filing of the petition for a fee award. Johnson v. Sullivan, 919 F.2d 503 (8th Cir.1990); Kelly v. Bowen, 862 F.2d 1333 (8th Cir.1988). In the present case, although the defendants filed their fee petition in November 1994, they submitted the most recently available statistics September 1994. These statistics indicate that the Consumer Price Index rose 59.95% during the relevant time-period. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264961/ | 152 Pa. Commonwealth Ct. 441 (1992)
619 A.2d 406
Archie JOYNER, Petitioner,
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT of ENVIRONMENTAL RESOURCES, Wood Processors, Inc. and Art Foss, Respondents.
Commonwealth Court of Pennsylvania.
Argued November 16, 1992.
Decided December 31, 1992.
As Amended January 21, 1993.
Reargument Denied February 18, 1993.
*443 Gary R. Leadbetter, for petitioner.
Anderson Lee Hartzell, Asst. Counsel, for respondents.
Before COLINS and FRIEDMAN, JJ., and LORD, Senior Judge.
LORD, Senior Judge.
Archie Joyner appeals from an order of the Environmental Hearing Board (Board) which denied his application for the award of counsel fees and expenses pursuant to the Act of December 13, 1982, P.L. 1127, as amended, 71 P.S. §§ 2031-2035 (Costs Act).[1]
*444 Wood Processors, Inc. (WPI) was incorporated in the state of New Jersey in 1988 as a recycling venture between Joyner and Art Foss. Joyner was the president of WPI and Foss was the Vice President and sole shareholder. WPI conducted operations at three locations: Norristown, Colwyn and Chester. On September 21, 1990, the Department of Environmental Resources (DER) issued an order and civil penalty assessment against Joyner, Foss and WPI. In the order, DER alleged that the above mentioned facilities were being operated, without permits, as solid waste processing facilities and directed WPI, Joyner and Foss to take the following actions:
A. [WPI], Archie Joyner and Art Voss [sic] shall immediately cease the operation of all Solid Waste processing activities at the Chester Site, Colwyn Site and Norristown Site and remove and properly dispose of all municipal waste currently on the premises.
B. [WPI], Archie Joyner and Art Voss [sic] shall immediately cease supplying waste material for fill.
C. [WPI], Archie Joyner and Art Voss [sic] shall immediately remove and properly dispose of waste material disposed of at [four additional, specified locations].
D. [WPI], Archie Joyner and Art Voss [sic] shall immediately supply the Department with the locations of any other sites where [WPI] supplied waste material as fill or for disposal.
E. [WPI], Archie Joyner and Art Voss [sic] shall supply a list of all haulers used by [WPI] to transport waste into the Commonwealth for use as fill or for disposal.
F. [WPI], Archie Joyner and Art Voss [sic] shall submit within 30 days of this Order a plan for assessing and remediating any soil or groundwater contamination at the Norristown Site, Colwyn Site and Chester Site. *445 (DER order of September 21, 1990, p. 4). Additionally, a civil penalty in the amount of ninety-six thousand dollars ($96,000.00) was assessed against WPI, Joyner and Foss.
On October 19, 1990, WPI and Joyner appealed DER's order to the Board.[2] On January 23, 1991, DER filed a petition in this Court seeking enforcement of its order of September 21, 1990. Thereafter, WPI and Joyner filed with the Board a petition for supersedeas. On March 15, 1991, the Board issued an order granting the petition for supersedeas as to Joyner but denying it as to WPI. In its opinion in support of the order sur petition for supersedeas issued April 5, 1991, the Board explained that it granted supersedeas as to Joyner because the "evidence did not justify imposing individual liability under the theory of `piercing the corporate veil'." (Board opinion of April 5, 1991, p. 9). Additionally, the Board found that "DER was precluded from raising the `officer participation' theory because Joyner was not given adequate notice of this claim." (Board opinion of April 5, 1991, p. 9).
On April 24, 1991, DER issued an amended order in which it alleged that Joyner "personally directed, managed, participated in, or otherwise controlled the illegal solid waste processing and/or disposal activities at the Colwyn Site." (DER order of April 24, 1991, p. 3). Additionally, the amended order alleged that Joyner maintained a degree of personal control over all aspects of WPI such that WPI "is and has been devoid of a separate and distinct corporate personality for purposes of the illegal solid waste processing activities at the Norristown and Colwyn Sites." (DER order of April 24, 1991, p. 3). The amended order also directed the following:
A. The Department's Administrative Order dated September 21, 1990 issued against [WPI], Archie Joyner and Art Voss (sic) is hereby withdrawn in its entirety including the Civil Penalty Assessment contained therein.
B. [WPI], Archie Joyner and Art Foss shall immediately remove all solid waste currently existing at the Colwyn, Norristown and Chester Sites and shall dispose of said waste in accordance with all applicable laws and regulations.
*446 C. [WPI], Archie Joyner and Art Foss shall submit within thirty (30) days of the date of this Order a plan for the assessment and remediation of any soil and/or groundwater contamination at the Norristown, Colwyn and Chester Sites.
(DER order of April 24, 1991, p. 4).
Joyner then filed an application for attorney's fees and costs pursuant to the provisions of the Costs Act. By opinion and order issued April 2, 1992, the Board denied Joyner's application. The Board found that, although Joyner was, "arguably, a `prevailing party'," special circumstances made an award of fees unjust. (Board order of April 2, 1992, p. 4). Appeal to this Court followed.
On appeal, Joyner argues (1) that he is a prevailing party under the provisions of the Costs Act; (2) the Board's finding of "special circumstances" is clearly erroneous; (3) the Board erred in rejecting his entire application because there was no apportionment of fees and expenses between the defenses of WPI and Joyner; and (4) the Board erred in not holding a hearing on Joyner's application for fees and costs. We will review these issues, keeping in mind that our standard of review is that found in 2 Pa.C.S. § 704, which provides that an adjudication made by a Commonwealth agency shall be affirmed unless there is a violation of constitutional rights, an error of law is committed, procedural rules are violated or necessary findings of fact are not supported by substantial evidence.[3]
*447 We first address Joyner's argument that he is a "prevailing party" under the provisions of the Costs Act. Joyner argues that, because DER withdrew the charges alleged in the order of September 21, 1990 in its amended order of April 24, 1991, he is a "prevailing party." We agree.
Section 2 of the Costs Act, 71 P.S. § 2032, defines a "prevailing party" as follows:
A party in whose favor an adjudication is rendered on the merits of the case or who prevails due to withdrawal or termination of charges by the Commonwealth Agency or who obtains a favorable settlement approved by the Commonwealth Agency initiating the case. (Emphasis added.)
DER argues that the charges against Joyner were not withdrawn. DER contends that the amended order merely corrected an alleged notice deficiency and was substantially similar to the original order. We reject this argument. The amended order, drafted by DER, specified that the order of September 21, 1990 was "withdrawn in its entirety." DER may not now be heard to contradict that which it stated in its amended order.
Next, we consider whether the Board erred in finding that "special circumstances" existed to make the award of fees unjust. The Board found that, because the ultimate outcome of DER's charges remains to be determined, Joyner had not yet prevailed as to the substance of these charges.
Section 1 of the Costs Act, 71 P.S. § 2031, establishes the rationale for awarding fees and costs to a prevailing party. That Section provides, in pertinent part:
(c) It is therefore the intent of the General Assembly to:
(1) Diminish the deterrent effect of seeking review of or defending against administrative agency action by providing in specified situations an award of attorney's fees, expert witness fees and other costs against the Commonwealth.
(2) Deter the administrative agencies of this Commonwealth from initiating substantially unwarranted actions *448 against individuals, partnerships, corporations, associations and other nonpublic entities.
71 P.S. § 2031 (emphasis added).
The Board, in granting Joyner's petition for supersedeas, found that the evidence did not warrant holding Joyner liable under a theory of piercing the corporate veil. Additionally, the Board found that Joyner did not receive proper notification that DER intended to proceed against him on an officer participation theory. "Therefore, based upon the record developed at the supersedeas hearing, it appears that DER lacked the underlying authority to hold Joyner individually liable. . . ." (Board opinion of April 5, 12991, p. 10). In other words, the charges brought against Joyner in the first order were "substantially unwarranted."
The Board found that Joyner has not yet prevailed as to the substance of the charges brought by DER. DER in its amended order added language to allege a theory of piercing the corporate veil and attempted to cure the notice deficiency present in the first order. DER is therefore interjecting a new theory of liability not present in the first order and is making new allegations in an attempt to produce evidence to pierce the corporate veil. While DER may be able to establish Joyner's liability under either or both of these theories, DER, as found by the Board, could not establish Joyner's liability under the first order. While DER may ultimately prevail on the amended order, this is not a matter to consider in deciding a petition for fees and expenses on an order which DER has withdrawn. Although the Board should determine, as it is required to do by Section 3 of the Costs Act, whether "special circumstances" exist to make an award unjust, the fact that DER failed to include in the first order a theory or produce evidence upon which it could recover against Joyner does not constitute "special circumstances." To deny fees and expenses to Joyner because the amended order may establish liability would be to circumvent a stated purpose of the Costs Act, which is to deter the initiation of unwarranted actions.
Next, we consider whether the Board erred in denying Joyner's entire application because there was no apportionment *449 of fees and expenses between the defenses of WPI and Joyner. Joyner argues that both he and WPI are "prevailing parties" and it is the Board's responsibility to show to what extent Joyner's itemized list of hours and costs should not have been granted.[4]
Section 3(b) of the Costs Act, 71 P.S. § 2033(b), provides that an application for fees and expenses shall include:
(2) A clear statement of the total amount sought, including:
(i) an itemized list of fees from any attorney, agent or expert witness representing or appearing in behalf of the party;
(ii) the actual time expended by such agent or expert witness representing or appearing in behalf of the party;
(iii) the rate at which the fees and other expenses were computed.
. . . .
We read this Section as imposing upon the applicant the burden of presenting sufficiently detailed information to enable an accurate award of fees and expenses to be made. Such fees and expenses are properly limited to those incurred in defense of the charges made against Joyner in DER's first order. As the party in possession of the information, Joyner is in a better position to show how the legal costs were allocated between his defense and that of WPI.
Finally, we consider whether the Board erred in not holding a hearing on the application for fees and expenses. No provision in the Costs Act requires that a hearing be held. However, Joyner cites Carlisle Electric for the proposition that, under certain circumstances, the failure of the agency to hold a hearing is an error of law. There, the Court opined that "[b]y deciding the question of attorney's fees without a hearing, the adjudicating officer prevented the petitioner from presenting the necessary competent evidence." Id. at 365, 516 A.2d at 440. Accordingly the Court ordered a remand so that a hearing could be held and an appropriate award made.
*450 We agree that, under the authority of Carlisle Electric and the facts of this case, a remand is warranted. By not having held a hearing, the Board precluded Joyner from presenting evidence to demonstrate how the legal costs were apportioned between his defense and that of WPI. At the hearing to be held on remand, Joyner should be given the opportunity to present evidence of attorney's fees and expenses incurred in defense of the allegations made against him in DER's first order.
Accordingly, we reverse the order of the Board and remand the case for proceedings consistent with this opinion.
ORDER
AND NOW, this 31st day of December, 1992, the Order of the Environmental Hearing Board dated April 2, 1992, at No. 90-441-F, is reversed. This matter is remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.
NOTES
[1] Section 3 of the Costs Act, 71 P.S. § 2033, relating to the award of fees and expenses, provides, in pertinent part:
(a) Except as otherwise provided or prohibited by law, a Commonwealth agency that initiates an adversary adjudication shall award to a prevailing party, other than the Commonwealth, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer finds that the position of the agency, as a party to the proceeding, was substantially justified or that special circumstances made an award unjust.
(e) A party dissatisfied with the fee determination made under subsection (a) may petition for leave to appeal such fee determination to the court having jurisdiction to review final orders of a Commonwealth agency under 42 Pa.C.S. (relating to judiciary and judicial procedure). If the court denies the petition for leave to appeal, no appeal may be taken from the denial. If the court grants the petition, review of the fee determination shall be in accordance with the standards in 2 Pa.C.S. § 704 (relating to disposition of appeal).
As required by section 3(e), Joyner filed a petition for leave to appeal the order denying his application for attorney's fees. By order of June 26, 1992, we granted Joyner's petition and allowed his appeal.
[2] Foss was not a party to this appeal.
[3] DER cites Carlisle Electric, Inc. v. Department of Labor and Industry, 101 Pa.Commonwealth Ct. 359, 516 A.2d 437 (1986), for the proposition that this Court's "sole standard of review in these fee determination cases is whether the adjudicating officer committed an abuse of discretion." However, Section 3(e) of the Costs Act was amended in 1987, and the language relied upon in Carlisle Electric, "it may modify the fee determination only if the court finds that the failure to make an award or the calculation of the amount was an abuse of discretion by the adjudicative officer," was replaced by the following phrase, "review of the fee determination shall be in accordance with the standards in 2 Pa.C.S. § 704 (relating to disposition of appeal)." Therefore, the standard of review as stated in Carlisle Electric has been overruled by the 1987 amendment to Section 3(e).
[4] We note that the issue of whether WPI is a "prevailing party" entitled to fees and expenses pursuant to the Costs Act is not before this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359783/ | 291 P.2d 386 (1955)
Helen D. TODD, Plaintiff In Error,
v.
Frederick H. TODD and Royal J. Leach, Trustee, In the Matter of Frederick H. Todd, Bankrupt, Defendants In Error.
No. 17675.
Supreme Court of Colorado, En Banc.
December 12, 1955.
Rehearing Denied January 3, 1956.
Bentley M. McMullin, Aurora, for plaintiff in error.
Howard E. Erickson, Denver, for defendant in error Royal J. Leach.
KNAUSS, Justice.
Plaintiff in error was plaintiff in the trial court and will be referred to as plaintiff. Defendant in error, Frederick H. Todd, was defendant in the trial court. He and plaintiff were married July 2, 1938. On June 5, 1951 plaintiff secured an interlocutory decree in divorce from her husband; she was awarded possession of the family home, together with alimony. In the interlocutory decree of divorce the matter of division of property and related matters were reserved for hearing on December 7, 1951. On December 6, 1951 a final decree of divorce was entered. The hearing concerning the division of property, etc. was not held on December 7, 1951 because meantime a receiver had been appointed for a part of the husband's property. The home property which is involved in this proceeding stood in the joint names of plaintiff and defendant.
On January 7, 1952 a petition in involuntary bankruptcy was filed against Frederick H. Todd and defendant Royal J. Leach was appointed Trustee of the Bankrupt Estate. He will be referred to as Trustee.
*387 Pursuant to authority of the bankruptcy court the Trustee instituted an action to partition the home property in the Denver District Court. On December 22, 1954 the District Court in the partition proceeding held that the Trustee was entitled to partition of the home property in which plaintiff was residing; determined that the Domestic Relations Division of the District Court had jurisdiction to determine the respective interests of Mr. and Mrs. Todd and the Trustee in the home property, and that whatever interests therein are determined to remain in Frederick H. Todd belong to his Trustee in bankruptcy. Plaintiff was directed to proceed with all due diligence to have the matter finally determined in the divorce case, in which action the Trustee intervened. On March 10, 1955 the court in the divorce action found that the property was subject to a valid homestead entry; that the plaintiff was entitled to her one-half interest in the property plus her homestead rights, and that she was "not vested with any other or additional rights superior to the rights of creditors or the Trustee in Bankruptcy." By its judgment and decree the Domestic Relations Division of the District Court ordered the property be sold and the proceeds divided in accordance with its order. From this judgment and decree the plaintiff brings the cause here on writ of error.
No questions of fact are involved in the case, the sole matter to be determined being whether the trial court erred in its final judgment and decree of March 10, 1955. Are the claims of plaintiff, who was in possession of the home property at all times, superior to those of the Trustee in Bankruptcy?
Under Section 70, sub. c the Bankruptcy Act, as amended, being Title 11 U.S.C.A. Section 110, sub. c the Trustee in Bankruptcy has the status of a lien creditor as of "the date of bankruptcy" and "shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon * * *." Consequently the Trustee as of the date of the bankruptcy, is vested with all the rights, remedies and powers of a judgment creditor then holding an execution duly returned and unsatisfied. Thus in Collier on Bankruptcy, 14th Ed. Vol. 4, page 1280 it is stated:
"Consequently the better reasoned cases have held without exception that the Trustee under Sec. 70c has the status of a creditor without notice and thus there is no necessity for demonstrating that he does or does not represent at least one actual creditor without notice."
It is contended by plaintiff that her possession of the home property was inconsistent with the record title thereto. Nothing in this record indicates even remotely that plaintiff's possession was inconsistent with the title to the property. Her possession was not notice to the world of her claim to the title to all of the home property.
It will be noted that plaintiff at no time filed a lis pendens notice in the office of the county clerk and recorder, therefore, her possession, and the pendency of the divorce action were not notice to the public of any title in or claim by her to the home property. Her claim was a matter to be determined by the court in the divorce action, and had not yet been decided at the time the Trustee in Bankruptcy was appointed.
Division of property, property settlements and the award of permanent alimony are within the sound discretion of the trial court and no rights vest until the matters involved are determined. On the record as submitted we observe no abuse of discretion, and none is claimed by counsel for plaintiff.
Perceiving no error in the record, the judgment and decree is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359797/ | 206 Or. 237 (1956)
291 P.2d 1019
STATE OF OREGON
v.
RICE
Supreme Court of Oregon.
Argued December 14, 1955.
Reversed January 11, 1956.
*238 Oscar D. Howlett, Deputy District Attorney, of Portland, argued the cause for appellant. With him on the brief was William M. Langley, District Attorney, of Portland.
Leon W. Behrman, of Portland, argued the cause and filed a brief for respondent.
Before WARNER, Chief Justice, and ROSSMAN, LUSK, LATOURETTE and PERRY, Justices.
REVERSED.
PERRY, J.
The defendant was indicted by the grand jury for larceny by embezzlement under ORS 165.005 prior to the statute being amended by chapter 435, Oregon Laws 1955 p. 508.
ORS 165.005, supra, prior to amendment, read as follows:
"Any officer, agent, clerk, employe or servant or any person, who embezzles or fraudulently converts to his own use, or takes or secretes with intent to embezzle or fraudulently convert to his own use, any money, property or thing belonging wholly or in part to such person, which is property within the meaning of ORS 164.310 and has come into his possession or is under his care by virtue of his employment, *239 shall be deemed guilty of larceny and shall be punished as provided in ORS 164.310, whether or not he has any interest, divisible or indivisible, in such property. The fact that such officer, agent, clerk, employe or servant has mixed such property with the money, property or thing of another person, shall not constitute a defense in a prosecution under this section."
The charging indictment is as follows:
"The said Harry Rice between the first day of January, 1953, to and including the 10th day of December, 1954, in the County of Multnomah and State of Oregon, then and there being, and then and there being an officer, agent, servant and employe of a voluntary, unincorporated association, known as the Supercargo and Checkers Local No. 40, the same being a labor organization composed of the following members: [naming each of the members of the association] there did then and there come into his possession and be under his care and control by virtue of his employment as such officer, agent, servant and employe, divers silver coins, paper currency, bank bills and currency bills, money of the United States of America, checks, bills of exchange and other valuable securities, a more particular description of any of which said property being to the grand jury unknown, to the amount and of the value of Six Thousand Nine Hundred Fifty and 04/100 Dollars ($6,950.04), all being the property of the said Supercargo and Checkers Local No. 40, composed of the aforesaid members, the said Harry Rice then and there so having in his possession and under his care by virtue of his employment as aforesaid, as such officer, agent, servant and employe, the said property, did then and there unlawfully, feloniously and wilfully embezzle, take and secrete and fraudulently convert the same to his own use, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."
*240 A demurrer by the defendant to the indictment upon the ground that a crime was not stated was sustained by the trial court, and the state has appealed.
The defendant's contention before the trial court, as here, is that, since the Supercargo and Checkers Local No. 40 is not a person within the purview of the act, he could not be charged as an officer, agent, clerk, or servant, nor could he be charged with the crime of larceny from the association, because as an association it is not a person capable of owning property; citing and relying upon State of Oregon v. Monk, 193 Or 450, 454, 238 P2d 1110, where we said:
"Before one may be indicted under this particular statute, it is essential that he belong to the class of persons amenable to that law. He must either be an `agent, clerk, employee, or servant' of a natural person, or of a copartnership or an `officer, agent, clerk, employee, or servant' of a corporation. His status in this respect should be made to appear in the indictment. Also, it is important that the indictment show on its face that the alleged owner of the property involved is a legal entity capable of owning property.
"We quote the following from 29 CJS, Embezzlement, 713, § 31 b (1) and (2):
"`In General
"`* * * * *
"`It has been held that, where the owner of the embezzled property is an association, partnership, corporation, or other firm or organization, there must be allegations showing such organization to be a legal entity capable of owning property as such or the individuals comprising the same and owning the property should be set out as owners. * * *
"`(2) Corporation
"`* * * * *
"`In a prosecution for embezzlement from a *241 corporation, the indictment or information should allege its incorporation and give its corporate name as fixed by law, although, if the injured corporation be known by one name as well as by another, it may be designated by either in the pleading. * * *'
"The reason given for this rule is that there should be sufficient particularity and certainty in an indictment, in a matter of substance, to enable the defendant to prepare for his defense and to plead his acquittal or conviction successfully, should he be again indicted for the same offense. 27 Am Jur, Indictments, and Informations, 651, § 89."
1. To determine who is a "person" under the act we must look to paragraph (11) of ORS 161.010, which is as follows:
"`Person' includes corporations as well as natural persons. Where `person' is used to designate the party whose property may be the subject of a crime, it includes this state, any other state, government or country which may lawfully own any property in this state, and all municipal, public or private corporations, as well as individuals."
And for interpretation of a statute we are instructed by the legislature, ORS 174.110, as follows:
"(1) The singular number may include the plural and the plural number, the singular.
"(2) Words used in the masculine gender may include the feminine and the neuter."
But even without the aid of ORS 174.110, supra, it is clear that paragraph (11) of ORS 161.010, supra, re-offers to "persons" in the plural as well as to a "person" in the singular.
2, 3. It is elementary that a person may be the agent, clerk, employe, or servant of a number of individuals as well as of one. "* * * the members of *242 a voluntary association may take and hold jointly as individuals, * * *." 7 CJS 38, Associations § 14.
4, 5. A member "acquires not a severable right to any of its property or funds, but merely a right to the joint use and enjoyment thereof" which the courts will protect. Carpenters Union v. Backman, 160 Or 520, 526, 86 P2d 456. That is, they have a right to sue in regard to matters affecting their interests, which must be brought in the name of all the members. 7 CJS 84, Associations § 35.
6. Thus it must be acknowledged that title and ownership of the property of a voluntary association rests in the individual members, subject only to the right of enjoyment as agreed among themselves. See Commonwealth v. Auman, et al., 13 Pa D&C (1930) 66; Carpenters Union v. Backman, supra.
7. While the indictment, literally read, states that the property taken was "the property of the said Supercargo and Checkers Union Local No. 40," it also states that the named individuals are the members, and, in legal effect, the owners of the property. This, we believe, is fully sufficient to protect the interests of the defendant in preparing his defense and "to plead his acquittal or conviction successfully, should he be again indicted for the same offense."
The judgment of the trial court is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1359796/ | 4 Utah 2d 228 (1955)
291 P.2d 890
CONTINENTAL BANK AND TRUST COMPANY, A CORPORATION, PLAINTIFF AND RESPONDENT,
v.
R.W. STEWART, DEFENDANT AND APPELLANT.
No. 8378.
Supreme Court of Utah.
December 30, 1955.
J. Grant Iverson, Salt Lake City, for appellant.
Harold G. Christensen, Allen M. Swan, Salt Lake City, for respondent.
CROCKETT, Justice.
Plaintiff bank recovered judgment against defendant, R.W. Stewart, under the theory that the bank was a third-party beneficiary to receive part of the purchase money Mr. Stewart had contracted to pay for the farm of A.W. Cheney. Stewart appeals.
An earnest money receipt dated November 30, 1953, by which Stewart agreed to purchase Cheney's farm located in Davis County forms the basis of the transaction in question. It recited that the total price was to be $23,647.80, which was to be paid by Mr. Stewart's assuming and paying debts which Mr. Cheney owed to banks, and to pay the balance of $6,000 in cash.
The document did not state just what debts, nor the time or manner of payment to be made. In the blank space provided for that purpose in the form was inserted:
"Arrangements to pay banks in the amounts set forth amounting to $17,647.80, also $6,000.00 payable to Ace Cheney, which is the total of the purchase price as above."
It is undisputed that, at the time, the debts Mr. Cheney owed to banks were these:
(1) $5,280.17 to Barnes Banking Co., secured by a first mortgage on the property;
(2) $6,106.77 to Barnes Banking Co., secured by a second mortgage on the property;
(3) $4,120.00 to Valley State Bank on note purchased from Barnes Bank. Barnes Bank took mortgage on cows and the property.
(4) $2,200.00 to Valley State Bank, secured by mortgage on cows; and
(5) $6,280.00 to Continental Bank and Trust Co., unsecured notes.
In accordance with the terms of the agreement that "banks" be paid, Mr. Stewart proceeded to pay items (1), (2), and (3) above. It is significant to note that they were all secured by mortgages on the property, and that they total $15,506.94, which is $2,140.86 less than the amount Stewart had agreed to pay on such obligations.
Meanwhile, Continental Bank sued Mr. Cheney on the notes it held (item (5) above) for $6,280. So far as disclosed, Mr. Cheney made no claim that Stewart had agreed to assume and pay this obligation until after judgment was taken against him and he was brought into court on a supplemental proceeding. At that time he testified to such fact. Upon the basis of his testimony, Continental Bank initiated this action against Stewart, claiming as a third-party beneficiary of Cheney's rights as seller under the sale agreement.
The trial court was undoubtedly correct in allowing recovery on the basis of the plaintiff's rights as a third-party beneficiary.[1] A question of more critical importance arises as to the correctness of the amount of recovery allowed. This involves a determination as to whether the debt of Mr. Cheney to the plaintiff, Continental Bank (item (5) above) was necessarily included in the debts which Mr. Stewart agreed to assume and pay, or could Mr. Stewart pay any such debts so long as they aggregated the total of $17,647.80.
As noted above, the agreement itself was uncertain in that it did not specify which of Cheney's debts were to be paid, and the matter is further confused because no combination of said debts will result in the $17,647.80 set forth in the agreement.
In view of the lack of definiteness in the terms of the contract, it was proper for the court to receive extraneous evidence as to its meaning.[2] It is true that the express terms of an agreement may not be abrogated, nullified or modified by parol testimony; but where, because of vagueness or uncertainty in the language used, the intent of the parties is in question, the court may consider the situation of the parties, the facts and circumstances surrounding the making of the contract, the purpose of its execution, and the respective claims thereunder, to ascertain what the parties intended.[3]
Consistent with the rule just stated, the trial court received other evidence bearing on the intent of the parties. The testimony of Mr. Cheney and Mr. Stewart were diametrically opposed to each other. Mr. Cheney, the only witness presented by the bank, testified that the obligation to the Continental Bank was definitely discussed and that Mr. Stewart stated:
"We will personally take care of that and see that that is paid."
Mr. Stewart testified to the contrary: That no such statement was made and that his agreement was only to pay loans secured by mortgages on the property. Additional evidence was adduced which will be adverted to later.
The trial court held in favor of the plaintiff and in accordance with Mr. Cheney's testimony. Plaintiff insists that the judgment is, therefore, supported by substantial evidence and that under the cardinal rule of appellate review it cannot be disturbed.[4] In support of that contention plaintiff calls attention to the fact that Mr. Stewart's testimony was halting and evasive to the extent that the trial court felt it necessary to admonish him on a number of occasions, as contrasted with Mr. Cheney's testimony which plaintiff contends was forthright and unshaken on cross-examination, and which the trial court believed.
While it is true that the testimony of a witness such as Mr. Cheney would ordinarily be regarded as sufficient to compel the affirmance of the trial court's finding, that is not necessarily so under all circumstances. Defendant is correct in arguing that even though the testimony standing alone might be sufficient to support a finding, it must always be appraised in the light of all the attendant circumstances and countervailing testimony. If when so viewed, it appears so clearly and palpably unreasonable that no fact trier acting fairly and reasonably could accept it, then it must be rejected as a matter of law, and the fact determined otherwise.[5] This is particularly so here where Mr. Cheney had such a vital personal interest in the controversy, since it obviously would be greatly to his advantage if he could fix upon Mr. Stewart the responsibility of paying this large unsecured personal debt.
If we set aside for the moment the testimony of the two principals, Mr. Cheney and Mr. Stewart, as offsetting each other because of their self interest, and make an analysis of the facts and circumstances of the transaction, the purpose the parties were seeking to accomplish, and the independent testimony in the case, grave doubt arises as to the accuracy of Mr. Cheney's story, and Mr. Stewart's version becomes much more reasonable in comparison. In addition to the failure of Cheney to claim that Stewart had assumed the obligation until he was brought in on supplemental proceeding, there are several matters which definitely support the version of the transaction claimed by Stewart.
The first of these is the fact that Mr. Marl O. Bell, the real estate agent involved in the sale, and who does not appear to have any reason for bias for or against either of the principals, testified that his recollection was that the obligation to the Continental Bank was not included in the debts Stewart was to pay. This, in spite of the fact that the debts were discussed in his presence and that Mr. Cheney furnished him "slips of paper" showing what obligations he owed, and that it was from these that the witness arrived at the sum of $17647.80 as the total. On being questioned about the nature of the debts, he referred to them as "liens on the property."
A further aspect of the transaction which argues in favor of the contention of Mr. Stewart arises out of an analysis of the figures themselves and the equities between the parties. Mr. Stewart having, in compliance with the terms of the agreement to pay Cheney's debts "to banks," paid items (1), (2) and (3) aggregating $15,506.94, left him owing a balance of only $2,140.86. To now require him to pay in full the obligation of $6,280 to the Continental Bank would mean that he would pay a total of $27,786.94 or $4,139.14 more than the contract price, the inequity of which is obvious. The plaintiff bank argues, however, that such result comes about through Stewart's own fault in that it says that he paid item (3), the $4,120 note to the Valley State Bank as a volunteer because he was not obligated to pay it, but that he had expressly agreed orally that the debt to the Continental Bank would be paid.
In support of the proposition that the debt to the Valley State Bank was paid as a volunteer, plaintiff avers that while this obligation was originally secured by a mortgage, it became an unsecured loan when Barnes Bank assigned it to Valley State, since the mortgage was not assigned with the note. Whether this be so may depend upon the wording of the documents and the nature of the transaction. We deem it unnecessary and immaterial to go into the matter, because the contention of the plaintiff is untenable anyway. It cannot be disputed that the latter debt was, at least in the first instance, a secured loan, and that Mr. Stewart could reasonably have regarded it as such. In paying it he was in literal compliance with the terms of the agreement which only required that he "pay banks" to which Cheney owed money. Inasmuch as he paid such debt in accordance with the agreement he should be entitled to full credit therefor.
To require Mr. Stewart to pay the additional $4,139.14 would run counter to what we regard to be a salutary rule applicable to the interpretation of contracts where uncertainty exists, that: "The court will endeavor to give the contract a rational and just construction."[6] This rule is echoed in apt language by Mr. Page in his Treatise on Contracts:
"As between two constructions, each probable, one of which makes the contract fair and reasonable and the other of which makes it unfair and unreasonable, the former should always be preferred."[7]
Another circumstance persuasive of Mr. Stewart's position is that within three days after the execution of the original contract, the parties in a supplemental contract in this same deal, characterized the debts Stewart was to assume as secured loans. By this agreement Mr. Stewart was to transfer a piece of property in Texas to Cheney in lieu of the $6,000 cash provided for in the sale contract; it contained a recital of the terms of the sale of the farm in these words:
"That whereas, Asahel W. Cheney and Robert W. Stewart have heretofore executed an agreement for the sale and purchase of a farm in Kaysville together with the personal property located thereon and Robert W. Stewart has agreed to pay therefor the sum of $6,000.00 and assume all obligations secured by liens or mortgages upon the real property, * * *." (Emphasis ours.)
The above emphasized language, used by the parties near the time of, and in connection with the original transaction, has an important bearing on what their then intent was, both in the words used and because it is entirely in accord with the purpose to be accomplished. It is a great deal more probable that Stewart would agree to pay secured loans, as he claims, to protect the title to the property he was buying than to pay an unsecured loan of $6,280 to the Continental Bank, which was the personal obligation of Mr. Cheney, without a "scratch of the pen" to definitely so indicate.
It thus appears to us that the facts and circumstances attendant upon the transaction combine to point plainly to the reasonableness and accuracy of Mr. Stewart's version of the transaction and run contrary to that of Mr. Cheney. The latter's testimony, burdened with the frailty of self-interest, which frailty is enhanced by an overlong delayed disclosure of his claim that Stewart assumed the obligation, presents such a picture that when his evidence is subjected to critical analysis against the background of the various considerations hereinabove discussed, it appears so entirely improbable, and would be so unfair and unjust in forming a foundation upon which to fasten upon Mr. Stewart the burden of an additional $4,139.14 beyond the price called for in his contract of purchase, that it must be rejected.[8]
As to the rights of the Continental Bank under the agreement, the law is well settled that the rights of a third person to sue on a contract made for his benefit depend on the terms of the agreement and are not greater than those of the promisee.[9] Therefore, even though Cheney insists that Stewart should pay the full obligation, the plaintiff bank is in no better position than Cheney would have been if he were the instigator of this action. This being the case, the maximum that Cheney could recover would be the $2,140.86, subject to interest adjustment, that remains unpaid. This amount is also the limit of the plaintiff's right to recover here. The judgment is modified by reducing it to such amount.
Affirmed as so modified. Costs to appellant.
McDONOUGH, C.J., and HENRIOD, J., concur.
WORTHEN, J., concurs in the result.
WADE, Justice (concurring in the result).
I concur in the result. However, I am not prepared to hold that the trial court's finding to the effect that the defendant Stewart promised Cheney that he would pay this obligation to the plaintiff bank is unreasonable in view of the evidence, but I think a correct construction of this contract, even though we assume that this finding is correct and binding on us, requires a reduction of the amount of the judgment as held in the prevailing opinion.
By the earnest money agreement, Stewart agreed to purchase Cheney's farm "for the purchase price of 23,647.80 Dollars," and that the balance of the purchase price shall be paid by "arrangements to pay banks the amount set forth amounting to $17,647.80 also $6,000.00 payable to Ace Cheney which is the total of the purchase price as above." At the bottom of the earnest money agreement there is a paragraph which is signed by both Stewart and Cheney in which they "agree to carry out and fulfill the terms and conditions above specified, the Seller agrees to furnish an abstract of title continued to date, or a policy of title insurance, showing a good marketable title, * * *".
It is elementary that the plaintiff bank as a third-party beneficiary of this agreement between Stewart and Cheney cannot recover from Stewart on this account unless Cheney, had he brought the suit, could have recovered from Stewart. For the bank is not an innocent purchaser for value without notice nor is there any estoppel in its favor. In fact, there is no consideration for this contract from the bank. All of the consideration for Stewart's promise was from Cheney. Under such circumstances any defense which Stewart would have against Cheney is a good defense against the bank. Our problem is to determine whether Cheney could have enforced this agreement against Stewart. From the following considerations I think it is clear that he could not.
The terms of the contract are entirely indefinite as to the different items of indebtedness which Stewart agreed to pay banks but the total amount of such debts was clearly and definitely fixed and limited to $17,647.80. It is also undisputed that Cheney owed the various banks the five items listed in the prevailing opinion. The total amount of such items was far in excess of the $17,647.80 which Stewart agreed to pay to banks. It is also undisputed that the first three items listed in the prevailing opinion were secured by mortgages which were of record against the property which Stewart purchased, thus constituting a cloud on the marketability of Cheney's title. It is obvious therefore, and this fact is confirmed by evidence, that the important reason for this provision in the contract that Stewart would pay the banks' claims was to enable Stewart to pay these recorded liens and thereby clear his title to the property and at the same time have such payments apply as a part of the purchase price. This also had the effect of enabling him to clear the title to the property and pay the purchase price without exposing him to the danger that if he made the purchase price payments direct to Cheney, the liens might not be paid and he might be compelled to pay them twice. Such being the case, Stewart had a right as a matter of law to pay the first three items and thereby clear the title to the property even though he had orally agreed with Cheney that he would pay to the bank this debt here sued on, for the whole instrument clearly shows that such was the intention of the parties in making this contract. Certainly no one intended that Stewart was to pay the banks more than $17,647.80 or that when he was through paying that amount there would remain a cloud on the marketability of the title to the property in the form of a recorded mortgage against it.
Some argument is made that since item (3) had been assigned without assigning the mortgage which secured it, such mortgage was thereby released and was not a lien against the property. Although I disagree with the result suggested that such assignment of the note without assigning the mortgage would release the lien, assuming that it would, I think it immaterial, for the recorded mortgage was still there rendering the title to the property unmarketable. There is no claim that Cheney ever claimed he could or offered to clear this cloud from the title without this note being paid by Stewart. I therefore concur in the result.
NOTES
[1] Assets Realization Co. v. Cardon, 72 Utah 597, 272 P. 204.
[2] Columbia Gas Const. Co. v. Holbrook, 6 Cir., 81 F.2d 417; Latta v. Da Roza, 100 Cal. App. 606, 280 P. 711, 281 P. 655.
[3] American Bonding Co. v. Pueblo Investment Co., 8 Cir., 150 F. 17, 9 L.R.A., N.S., 557; Salt Lake City v. Smith, 8 Cir., 104 F. 457; Sternberg v. Drainage Dist. No. 17, 8 Cir., 44 F.2d 560.
[4] If there is any substantial evidence supporting the finding, it will not be disturbed. Martindale v. Oregon Short Line R. Co., 48 Utah 464, 160 P. 275, 277. Malstrom v. Consolidated Theatres, Utah, 290 P.2d 689. See Seybold v. Union Pac. R. Co., Utah, 239 P.2d 174, 177.
[5] See 9 Wigmore on Evidence, 3rd Ed., Sec. 2494; and Seybold v. Union Pac. R. Co., supra.
[6] Parsons on Contracts, Vol. 2 (9th Ed.) page 494.
[7] 2 Page on Contracts, Sec. 1121.
[8] See footnote 5, supra.
[9] 17 C.J.S., Contracts, § 519, p. 1137. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264936/ | 54 Cal. App. 4th 71 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD LEE CRONE, Defendant and Appellant.
Docket No. E017326.
Court of Appeals of California, Fourth District, Division Two.
April 8, 1997.
*73 COUNSEL
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, M. Howard Wayne and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
RICHLI, J.
Defendant Richard Lee Crone (defendant) was charged, in the alternative, with possession of methamphetamine for sale (Health & Saf. Code, § 11378), and simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). A jury found him guilty of possession of methamphetamine for sale. He was placed on three years' probation, on conditions including one hundred twenty days in jail to be served on weekends.
Defendant appeals, contending the trial court erred by:
1. Failing to instruct on the effect of reasonable doubt in choosing between the greater and the lesser offense.
2. Giving an erroneous instruction on the relationship between the jury's verdicts on the greater and the lesser offense (CALJIC No. 17.03 (1990 rev.)).
3. Failing to instruct that access alone is insufficient to prove possession.
4. Giving an erroneous instruction on "reasonable doubt" (CALJIC No. 2.90 (1994 rev.)).
In addition, defendant claims prosecutorial misconduct.
We agree that the trial court should have instructed on the significance of reasonable doubt on the choice between the greater and lesser offense (contention No. 2), but we find the error harmless. Otherwise, we find no error, and we will affirm.
*74 I
FACTUAL BACKGROUND
A. The Prosecution's Case.
Around midnight on April 18, 1995, San Bernardino Police Officer Henry Birkes, responding to a 911 call, went to a store called "Lotta Beds." As he approached, he saw defendant and a woman later identified as Carla Booth. They were standing behind the trunk of a parked car, so he could see them only from the waist up. A third person was inside the car. There was a pickup truck parked 10 or 12 feet behind the car.
Officer Birkes shone a flashlight onto the group. He noticed a round, "fluorescent orange" object in defendant's hand. He did not see anything in Ms. Booth's hands.
Officer Birkes said, "Police. Let me see your hands." Ms. Booth raised her hands, but defendant froze, then lowered his hands until they were out of Officer Birkes's sight. Officer Birkes heard something hit the ground. "It sounded like plastic.... It had like no weight to it, just a small tap on the ground." Again, he ordered defendant to raise his hands. This time, defendant complied; his hands were empty. The person in the car put his hands up on the steering wheel. The pickup truck, however, started up and sped away.
Officer Birkes looked on the ground near where defendant had been standing. Under the trunk of the car, near the rear axle, he found a fluorescent orange plastic "Easter-type" egg, eight to ten inches around. Inside it, he found a baggie containing what turned out to be 11.49 grams of methamphetamine. Officer Birkes (who was new on the force) booked the baggie and its contents into evidence, but threw the egg away.
B. The Defense Case.
Defendant testified in his own behalf. As of April 18, 1995, he was working at Lotta Beds, and dating Ms. Booth. After work, he called and asked her for a ride home. He lived only seven blocks away, but, he explained: "I've walked it too many times and I don't like to do it much." While waiting for her, he sat out front in a car with "[t]his guy named Steve," who had helped him move mattresses earlier that day; he did not know Steve's last name. Defendant was cleaning his fingernails with a pocket knife.
When Ms. Booth arrived, defendant, with the open pocket knife still in his hand, gave her a hug. Then Officer Birkes arrived and ordered him to raise *75 his hands. Defendant did not want Officer Birkes to see the knife, so he lowered his hands, closed the knife, then raised his hands. After patting him down, Officer Birkes gave his wallet, two packs of cigarettes, a beeper and the pocket knife to Ms. Booth. Defendant denied holding the plastic egg. He claimed the first time he saw it was when Officer Birkes found it.
Ms. Booth confirmed that she was dating defendant, and that he had called her and asked for a ride home. She did not have a car or a driver's license, but her mother did. An acquaintance named Chip gave her a ride in his truck. She did not know Chip's last name. When they arrived, defendant was in a car, talking to someone. He got out and hugged her. He was holding a pocket knife; she never saw him holding the egg. She did not hear anything fall. She, too, testified that the police gave her defendant's personal items, including the beeper and the pocket knife.
II
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT[*]
.... .... .... .... .... .... .... .
III
FAILURE TO INSTRUCT ON REASONABLE DOUBT AS BETWEEN A GREATER AND A LESSER OFFENSE
(1) Defendant contends the trial court erred in failing to instruct that if the jury had a reasonable doubt as to whether defendant was guilty of the greater or the lesser offense, it could convict him only of the lesser offense.
Defendant relies primarily on People v. Dewberry (1959) 51 Cal. 2d 548 [334 P.2d 852]. There, the jury was instructed that: (1) if it had a reasonable doubt as to the defendant's guilt, he was to be acquitted; (2) if it had a reasonable doubt as to whether the defendant was guilty of first degree or second degree murder, it could convict him only of second degree murder; and (3) if it had a reasonable doubt as to whether the killing was manslaughter or justifiable homicide, the defendant was to be acquitted. (Id., at p. 554.) The trial court refused the defendant's request for the additional instruction that if the jury had a reasonable doubt as to whether defendant was guilty of murder or manslaughter, it could convict him only of manslaughter. (Ibid.)
The Supreme Court held that this was error: "[W]hen the evidence is sufficient to support a finding of guilt of both the offense charged and a *76 lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense." (51 Cal.2d at p. 555.) "The proposed instruction should have been given. It went directly to the defense of reasonable doubt of defendant's guilt of second degree murder; it was clearly responsive to an issue raised by the evidence [citations]; and it was essential to cure the misleading effect of its absence in the light of the other instructions given." (Id., at pp. 557-558.) "The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder." (Id., at p. 557.)
It has since been held that in any case involving a lesser included offense, the trial court has a duty to give a Dewberry instruction sua sponte. (People v. Reeves (1981) 123 Cal. App. 3d 65, 69 [176 Cal. Rptr. 182], disapproved on other grounds in People v. Sumstine (1984) 36 Cal. 3d 909, 919, fn. 6 [206 Cal. Rptr. 707, 687 P.2d 904]; People v. Aikin (1971) 19 Cal. App. 3d 685, 703-705 [97 Cal. Rptr. 251], disapproved on other grounds in People v. Lines (1975) 13 Cal. 3d 500, 512-514 [119 Cal. Rptr. 225, 531 P.2d 793].)
When the defendant is charged with a greater offense which has one or more uncharged lesser included offenses, the trial court ordinarily will give CALJIC No. 17.10, which satisfies the requirement of Dewberry.[1] (People v. Gonzalez (1983) 141 Cal. App. 3d 786, 793-794 [190 Cal. Rptr. 554], disapproved on other grounds in People v. Kurtzman (1988) 46 Cal. 3d 322, 330 [250 Cal. Rptr. 244, 758 P.2d 572]; People v. St. Germain (1982) 138 Cal. App. 3d 507, 520-522 [187 Cal. Rptr. 915]; contra, People v. Reeves, supra, 123 Cal. App.3d at pp. 69-70.) When, however, the defendant is charged with both a greater offense and a lesser included offense, the wording of CALJIC No. 17.10 is inappropriate. Accordingly, here the trial court gave CALJIC No. 17.03 instead.[2]
Defendant argues that CALJIC No. 17.03 fails to satisfy the requirement of Dewberry. We agree. Nothing in CALJIC No. 17.03 tells the jury what to *77 do if it has a reasonable doubt as to whether the defendant committed the greater or a lesser offense.
Moreover, it does not appear that the omission was cured by any other instructions. The jury was instructed on reasonable doubt as follows:
(1) "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt." (CALJIC No. 2.90 (1994 rev.).)
(2) "[A] finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the defendant was guilty of the crime, but cannot be reconciled with any other rational conclusion.
"Further, each fact which is essential to complete that set of facts necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.
"In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which that inference necessarily rests must be proved beyond a reasonable doubt.
"Also, if that indirect evidence is open to two interpretations, both of which are reasonable, one of which points to the defendant's guilt and the other to his innocence, you must adopt that interpretation which points to his innocence, and reject that which points to his guilt." (CALJIC No. 2.01 (5th ed. 1988) [modified].)
The first of these instructions was also given in Dewberry. (People v. Dewberry, supra, 51 Cal.2d at p. 554.) It addresses the effect of reasonable doubt on the choice between conviction and acquittal, but not on the choice between a greater and a lesser included offense. The second instruction similarly addresses the effect of reasonable doubt solely on the choice *78 between "guilt" and "innocence."[3] We conclude that the instructions here failed to satisfy the requirement of Dewberry.
Admittedly in Dewberry, the court reasoned, in part, that the failure to instruct on the effect of reasonable doubt on the choice between a greater and lesser offense was particularly misleading where the jury was instructed on the effect of reasonable doubt on the choice between two degrees of a crime. The court, however, discussed the additional instruction in the context of whether the error was prejudicial. (51 Cal.2d at pp. 557-558.) The rule the court stated was not limited to this situation. (Id., at p. 555.) Later cases have followed Dewberry without regard to whether such an additional instruction was given. (People v. Reeves, supra, 123 Cal. App.3d at p. 69; People v. Aikin, supra, 19 Cal. App.3d at pp. 703-705.)
The People argue that a Dewberry instruction is not required where both the greater and lesser offenses are charged. Although Dewberry involved a charged greater offense and an uncharged lesser included offense (see People v. Dewberry, supra, 51 Cal.2d at p. 554), its reasoning did not turn on this happenstance, and the People suggest no reason why it should.
(2) As defendant concedes, the test of whether the error was prejudicial is that of People v. Watson (1956) 46 Cal. 2d 818, 836 [299 P.2d 243]: whether it is reasonably probable that, in the absence of the error, the result would have been more favorable to the defendant. (People v. Dewberry, supra, 51 Cal.2d at p. 558; People v. Reeves, supra, 123 Cal. App.3d at p. 70.) Here, the evidence of specific intent to sell was uncontradicted. The methamphetamine weighed 11.49 grams. Officer Renato Giannini, testifying as an expert, opined that a person with this much methamphetamine is in the business of selling it. He noted that a typical street purchase would be 0.25 grams.[4] Defendant therefore never seriously disputed that the methamphetamine was possessed for sale; his defense was that he did not possess the methamphetamine at all. We conclude that, even if the jury had been instructed on the effect of reasonable doubt in choosing between a greater and a lesser offense, it is not reasonably probable that it would have convicted defendant of the lesser offense of simple possession.
Attempting to show prejudice, defendant notes that during the jury's deliberations, it asked the trial court: "If possible[,] [n]eed to know how *79 much the street value of 1/4 grams of meth." The trial court responded: "[The] matter is not in evidence." After just one minute of further deliberations, the jury reached its verdict finding defendant guilty of possession for sale.
Defendant infers that "until the court responded to the question, at least one juror nurtured some doubt that [defendant] intended to sell the methamphetamine." (Italics omitted.) If this were so, however, the trial court's nonanswer would hardly have dispelled this doubt. We believe the only reasonable conclusion is that the jurors were convinced beyond a reasonable doubt, based on the evidence presented, that the possession was for the purpose of sale. One or more of them may have speculated that additional evidence of the street value of the methamphetamine could have raised a reasonable doubt; however, no such evidence was presented, and hence no such doubt was actually raised.
In sum, the trial court erred by failing to instruct on the effect of reasonable doubt on the choice between the greater and the lesser offense, but the error was not prejudicial.
IV-VI[*]
.... .... .... .... .... .... .... .
VII
DISPOSITION
The judgment is affirmed.
Ramirez, P.J., and Hollenhorst, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, IV, V and VI.
[*] See footnote, ante, page 71.
[1] The pertinent portion of CALJIC No. 17.10 (1989 rev.) states: "If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime."
[2] CALJIC No. 17.03 (1990 rev.), as given here, states: "The defendant, then, is charged in Count 1 with this crime of possession for sale of methamphetamine, and Count 2, charged with the crime of straight possession of methamphetamine. These charges, then, are made in the alternative and in effect allege the defendant committed an act or acts that constitute either the crime of possession for sale of a controlled substance or possession of a controlled substance.
"If you find that the defendant committed an act or acts constituting one of these charged crimes, then you must determine which of such crimes so charged was thereby committed. In order to find the defendant guilty, you must all agree as to the particular crime committed. If you find the defendant guilty of one, you must find him not guilty of the other."
[3] In giving the instructions orally, the trial court omitted the following italicized portion of the written instruction: "[I]f the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations ... you must adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to his guilt." (CALJIC No. 2.01 (5th ed. 1988), italics added.) We express no opinion on whether the instruction would have been adequate if the trial court had given the italicized portion.
[4] Defense counsel did not even cross-examine Officer Giannini. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/69214/ | 589 F.3d 168 (2009)
Earl BORDEN, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY; Greg Ruiz, Defendants-Appellees.
No. 08-30515.
United States Court of Appeals, Fifth Circuit.
November 20, 2009.
*170 Mary Ann Hand (argued), Salvador E. Gutierrez, Jr., Gutierrez & Hand, Chalmette, LA, for Borden.
Gerald Joseph Nielsen (argued), William Truman Treas, Nielsen Law Firm, L.L.C., Kelly C. Bogart, Jennifer May Morris, Duplass, Zwain, Bourgeois, Pfister, Winstock, Metairie, LA, Daniel Lee Dysart, Dysart & Tabary, Chalmette, LA, for Defendant-Appellee.
Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:
Plaintiff Earl Borden ("Borden") appeals a grant of summary judgment in favor of Defendants Allstate Insurance Company ("Allstate") and insurance agent Greg Ruiz ("Ruiz") denying coverage for his Hurricane Katrina flood loss. Borden argues that the district court lacked subject matter jurisdiction and, alternatively, that material fact issues precluded summary judgment. We hold that the district court possessed federal question jurisdiction and correctly entered judgment in favor of Ruiz, but it overlooked Borden's affidavit in opposition to Allstate's summary judgment motion. The judgment is AFFIRMED IN PART, VACATED IN PART, and the case is REMANDED for further proceedings.
I. Background
Borden owned a Standard Flood Insurance Policy ("SFIP") issued by Allstate as a Write-Your-Own carrier participating in the National Flood Insurance Program ("NFIP"). On August 29, 2005, Borden's home suffered flood damage from Hurricane Katrina. When he attempted to file a claim under the flood insurance policy a week and a half later, Allstate informed him that the policy had expired on July 8, 2005, because of his failure to pay the renewal premium. Borden asserts that he never received the annual renewal notice.
Borden, a Louisiana citizen, sued Allstate in state court, alleging that Allstate negligently failed to issue a flood insurance policy and negligently represented that Borden had flood insurance coverage. Allstate, an Illinois citizen, removed the case to federal court on the basis of 28 U.S.C. § 1332 diversity jurisdiction. Borden subsequently joined Allstate's agent Ruiz, also a Louisiana citizen, as a defendant. Allstate did not object to the joinder. Shortly afterward, Allstate filed a motion for summary judgment and also moved for the court to "clarify" its subject matter jurisdiction or, in the alternative, disallow joinder of the non-diverse party. The district court granted Allstate's motion for summary judgment and dismissed the claims against both defendants without addressing Allstate's other motions. The court later denied Borden's motion to set aside the judgment, which was filed simultaneously with this appeal.
II. Standard of Review
We review questions of subject matter jurisdiction de novo. In re Bissonnet Invs. LLC, 320 F.3d 520, 522 (5th Cir.2003). We also review a grant of summary judgment de novo. Croft v. Governor of Tex., 562 F.3d 735, 742 (5th Cir. 2009) (citation omitted). Summary judgment *171 is appropriate when "the record demonstrates that `there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Id. (citation omitted).
III. Discussion
A. Jurisdiction
"The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332." Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 1244, 163 L. Ed. 2d 1097 (2006). Borden contends that the district court lacked subject matter jurisdiction, but Allstate argues that jurisdiction is proper on both § 1331 federal question and § 1332 diversity of citizenship grounds. We hold that only federal question jurisdiction is present here.
Diversity jurisdiction does not exist because both Borden and defendant Ruiz are Louisiana citizens. Allstate argues, however, that because Borden's claims against Ruiz were perempted under Louisiana law when he was joined, the joinder was fraudulent and should have been ignored for purposes of determining subject matter jurisdiction. Allstate knows better.
The fraudulent joinder doctrine ensures that the presence of an improperly joined, non-diverse defendant does not defeat federal removal jurisdiction premised on diversity. Salazar v. Allstate Tex. Lloyd's, Inc., 455 F.3d 571, 574 (5th Cir. 2006). One way in which a diverse defendant may establish improper joinder is by showing "the inability of the plaintiff to establish a cause of action against the non-diverse party in state court." Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.2004) (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.2003)). Allstate contends that it established fraudulent joinder because Borden named Ruiz as a defendant in June 2007, almost two years after Borden discovered that no flood insurance coverage was in effect. Louisiana law provides a peremptive period of only one year for tort actions against an insurance agent arising from insurance services. LA.REV.STAT. ANN. § 9:5606(A).
Contrary to Allstate's position, the fraudulent joinder doctrine is inapplicable. In Cobb v. Delta Exports, Inc., 186 F.3d 675 (5th Cir.1999), this court held that "[t]he fraudulent joinder doctrine does not apply to joinders that occur after an action is removed." Id. at 677 (emphasis in original). Instead, the doctrine permits courts to ignore "only those non-diverse parties on the record in state court at the time of removal." Id. The Cobb court reasoned that, when a non-diverse defendant is named in an original state court action to prevent removal, the diverse defendant has no opportunity to contest joinder before it occurs and must rely upon the fraudulent joinder doctrine. Id. at 678. In contrast, a diverse defendant can argue that a post-removal joinder is improper before the court grants the plaintiff leave to amend. Id. Thus, once a court permits post-removal joinder of a non-diverse defendant, the fraudulent joinder doctrine is not thereafter available, "[t]he court [loses] subject matter jurisdiction," and remand is required pursuant to 28 U.S.C. § 1447(e).[1]Id. Allstate even cited Cobb to the district court in its motion to "clarify" jurisdiction.
As in Cobb, the district court granted Borden's unopposed motion to amend his complaint to add claims against Ruiz after Allstate removed the case. The district *172 court then lost subject matter jurisdiction, and Allstate may not now assert fraudulent joinder in an effort to reinstate complete diversity. Cobb seems to create a trap for the unwary diverse defendant, or a device exploitable by a clever plaintiff. But the district court, properly apprised of Cobb, could have either denied Ruiz's joinder to begin with, or it could have vacated its order of joinder. Allstate neither timely apprised the court nor sought vacatur.
Nevertheless, the district court had federal question jurisdiction. Though unskillfully pled, Borden's claim for relief may only be characterized as "arising under" federal law for purposes of federal question jurisdiction. Federal question jurisdiction exists when "a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2856, 77 L. Ed. 2d 420 (1983). In West v. Harris, 573 F.2d 873 (5th Cir.1978), this court held that federal law applies to a dispute under a policy issued pursuant to the NFIP, which is a federal program effectuating federal policies and paid for by the federal fisc. Id. at 881. Thus, as our sister circuits have held, an action for breach of an SFIP, a policy issued pursuant to the NFIP, satisfies § 1331 by raising a substantial question of federal law. See Studio Frames Ltd. v. Standard Fire Ins. Co. 369 F.3d 376, 379-80 (4th Cir.2004); Downey v. State Farm Fire & Cas. Co., 266 F.3d 675, 681-82 (7th Cir.2001) (predicating jurisdiction on the doctrine of Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S. Ct. 573, 87 L. Ed. 838 (1943), which "establishe[d] that, when the duties or rights of the United States are at stake under a federal program, that federal interest requires the application ... of federal law"); Newton v. Capital Assur. Co., 209 F.3d 1302, 1304-05 (11th Cir.2000); Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 167 (3d Cir.1998). That state law may control some aspects of the relation between the policyholder and insurance company, see, e.g., Campo v. Allstate Ins. Co., 562 F.3d 751 (5th Cir.2009), does not eliminate federal jurisdiction, which promotes uniformity in the interpretation of policies backed by the federal fisc. See Clearfield Trust, supra, 63 S.Ct. at 575.
Borden's claim is one for continued insurance coverage due to Allstate's breach of the provisions of the SFIP. Borden's SFIP, which is codified in the federal regulations, provides:
1. This policy will expire at 12:01 a.m on the last day of the policy term.
2. We must receive payment of the appropriate renewal premium within 30 days of the expiration date.
3. If we find, however, that we did not place your renewal notice into the U.S. Postal Service, or if we did mail it, we made a mistake, e.g., we used an incorrect, incomplete, or illegible address, which delayed its delivery to you before the due date of the renewal premium, then we will follow these procedures:
a. If you or your agent notified us, not later than one year after the date on which the payment of the renewal premium was due, of non-receipt of a renewal notice before the due date for the renewal premium, and we determine that the circumstances in the preceding paragraph apply, we will mail a second bill providing a revised due date, which will be 30 days after the date on which the bill is mailed.
*173 b. If we do not receive the premium requested in the second bill by the revised due date, then we will not renew the policy. In that case, the policy will remain an expired policy as of the expiration date shown on the Declarations Page.
44 C.F.R. pt. 61, app. (A)(1), art. VII(H) (2009) (emphasis added).
Borden attested that he informed Allstate of his non-receipt of a renewal notice approximately a week and a half after August 29, 2005, when Hurricane Katrina damaged his home. The one-year time period for Borden to notify Allstate of non-receipt of a renewal notice began to run from the due date of his renewal premium, 30 days after his policy's July 8, 2005, expiration date. Borden's notice of non-receipt in September 2005 was timely with respect to the one-year deadline. According to the SFIP, Borden would be entitled to a second renewal notice and an opportunity to continue his coverage if Allstate made a mailing mistake. Borden's right to relief thus turns upon the application of federal law to this SFIP dispute, and the district court had jurisdiction under § 1331.
B. Summary Judgment
The district court correctly noted that Borden was required to complain of the non-receipt of a renewal notice within one year from the due date of his renewal premium. The court, however, overlooked Borden's affidavit averring the timeliness of his notice to Allstate. Because this admissible evidence sets the stage for further inquiry under the SFIP regulations,[2] the district court must on remand proceed to adjudicate Borden's claim. We vacate the summary judgment in favor of Allstate.
Borden's claim against agent Greg Ruiz, however, was properly subject to summary judgment based on Louisiana's one year peremption statute for actions against insurance agents. LA.REV.STAT. ANN. § 9:5606(A). This defense was fully briefed in the trial court. The claimant's right accrues when the underlying act is discovered. Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 n. 2 (5th Cir.2007). Although Borden timely filed suit against Allstate in 2006, he did not join Ruiz until June 2007, more than eighteen months after his flood damage claim had been denied. Borden's claim was perempted as a matter of law.
Conclusion
For the foregoing reasons, we AFFIRM IN PART, VACATE IN PART and REMAND for further proceedings in accordance herewith.
NOTES
[1] 28 U.S.C. § 1447(e) provides: "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court."
[2] Cf. Campo v. Allstate Ins. Co., 562 F.3d 751 (5th Cir.2009) (holding that federal law did not preempt state law policy procurement-based claims, unlike claims handling disputes governed, as here, by federal regulations). | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1359999/ | 606 S.E.2d 849 (2004)
278 Ga. 788
BARNES et al.
v.
TURNER.
No. S04G0813.
Supreme Court of Georgia.
November 23, 2004.
Reconsideration Denied December 9, 2004.
Jones, Jensen & Harris, Taylor W. Jones, Richard E. Harris, Atlanta, for appellants.
Carlock, Copeland, Semler & Stair, Johannes S. Kingma, John C. Rogers, Atlanta, for appellee.
FLETCHER, Chief Justice.
The issue in this legal malpractice case is what duty attorney David Turner, Jr. owed his client, William Barnes, Jr., with respect to maintaining Barnes's security interest that lapsed. The Court of Appeals held that Turner's *850 only duty was to inform Barnes that his security interest required renewal in five years.[1] Because under that view the statute of limitations expired before Barnes filed his malpractice action, the Court of Appeals affirmed the trial court's decision to grant Turner's motion to dismiss. We conclude, however, that if Turner failed to inform Barnes of the renewal requirement, Turner undertook a duty to renew the security interest himself. The statute of limitations has not expired for an alleged breach of that duty, and therefore we reverse.
On October 1, 1996, Barnes sold his company, William Barnes' Quality Auto Parts, Inc., to James and Rhonda Lipp for $220,000. The Lipps paid $40,000 at the closing and executed a ten-year promissory note in favor of Barnes for the $180,000 balance. The note was secured by a blanket lien on the Lipps's assets. On October 30, 1996, Turner perfected Barnes's security interest by filing UCC financing statements. Viewing the facts in the light most favorable to Barnes (as the non-moving party),[2] Turner did not, however, inform Barnes that under OCGA § 11-9-515, financing statements are only effective for five years, although their renewal for another five years is expressly provided for in that statute. The renewal is effected by filing continuation statements no earlier than six months before the end of the initial period.[3] No renewal statements were filed, and on October 30, 2001, the original statements lapsed.
Unknown to Barnes, the Lipps had pledged the same collateral to F&M Bank and Trust Company and to Mid-State Automotive Distributors on December 28, 1998 and January 29, 2001, respectively. Both of these companies filed UCC financing statements, which put them in a senior position to Barnes when his financing statements lapsed. Barnes is still owed more than $142,792.09 under the promissory note, and James Lipp is now in Chapter 7 bankruptcy.
Barnes sued Turner for malpractice on October 18, 2002. The trial court granted Turner's motion to dismiss. Finding that the only possible incident of malpractice was Turner's failure to inform Barnes of the renewal requirement in October 1996, the Court of Appeals held that the four-year statute of limitations had run and affirmed the trial court.[4] We granted Barnes's petition for certiorari.
1. Barnes contends that the Court of Appeals erred in simply looking to Turner's actions in October 1996 as constituting the malpractice. If Turner had renewed the financing statements in 2001, Barnes argues, there would have been no lapse in his security interest and thus no malpractice. Barnes contends that Turner's duty was to safeguard his security interest, which Turner could have satisfied by either informing Barnes of the renewal requirement or renewing the financing statements in 2001. Under this view, Turner breached his duty in 2001, when he failed to do both, and thus the statute of limitations on Barnes's action has not expired. For the following reasons, we agree.
A motion to dismiss should only be granted if "the allegations of the complaint, when construed in the light most favorable to the plaintiff with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts."[5] Accordingly, the grant of Turner's motion to dismiss was only proper if Barnes's duty ended in 1996.[6]
*851 Turner contends that he was not retained to file renewal statements. While Georgia's appellate courts have not previously addressed this issue, decisions from other states make clear that an attorney in Turner's position must at least file original UCC financing statements, even absent specific direction from the client.[7] We agree. An attorney has the duty to act with ordinary care, skill, and diligence in representing his client.[8] In sale of business transactions where the purchase price is to be paid over time and collateralized, it is paramount that the seller's attorney prepare and file UCC financing statements to perfect his client's security interest. We further hold, for the reasons given below, that if the financing statements require renewal before full payment is made to the seller, then the attorney has some duty regarding this renewal. Otherwise the unpaid portion of the purchase price becomes unsecured and the seller did not receive the protection he bargained for.
Safeguarding a security interest is not some unexpected duty imposed upon the unwitting lawyer; it goes to the very heart of why Turner was retained: to sell Barnes's business in exchange for payment. We do not, as the dissent contends, demand that the lawyer "ascertain the full extent of the client's `objectives;'" only that the lawyer take reasonable, legal steps to fulfill the client's main, known objective to be paid for the business he sold.
The dissent views only the sale of the business as important since this is what happens at the closing; but why does a client sell his business if not to receive payment? When the dissent argues that Turner's duty was simply to "close" the transaction, it fails to recognize that closing this particular transaction meant taking the reasonable steps that competent attorneys would take to legally secure their clients' right to receive payment for the businesses they have sold. Where payment is to be made in less than five years, Georgia law does not require renewal of the initial financing statements and thus the lawyer's duty is only to file the initial statements. But where payment is to take longer than five years, the lawyer being trusted by his client to know how to safeguard his security interest under Georgia law has some duty regarding renewal of the financing statements. The question is the nature of that duty.
Under the dissent's view, a client has to specifically ask his lawyer to renew the financing statements for this to be among the lawyer's duties. But how can the client be expected to know of this legal requirement? He hires the lawyer because the lawyer knows the law. The client cannot be expected to explicitly ask the lawyer to engage in every task necessary to fulfill the client's objectives.
The Court of Appeals held that a failure to inform by Turner was the sole possible grounds for malpractice.[9] But this is too narrow a definition of Turner's duty. The duty was not necessarily to inform Barnes of *852 the renewal requirement; often transactional attorneys do no such thing and simply renew the financing statements themselves. These attorneys have not breached a duty. Turner's duty was to safeguard Barnes's security interest. There were two means of doing so: by informing Barnes of the renewal requirement, or by renewing the financing statements himself in 2001. Either one would have been sufficient to comply with Turner's duty, and any breach of that duty occurred only upon Turner's failure to do both.
Further, if Turner's only duty arose in 1996, then Barnes had to bring suit before the financing statements could even be renewed to comply with the four-year statute of limitations. Barnes contends that any such action would have been dismissed as unripe because he was still a secured party at the time. He is correct. The dissent's view deprives Barnes and any clients in his position of any remedy for malpractice. The dissent's view precludes Barnes from ever maintaining a malpractice suit against Turner, who failed to take a simple, necessary action that will likely leave Barnes without his business and without over 78% of the purchase price he is still owed for that business.
The dissent's hyberbole about the effect of this opinion mischaracterizes our holding, which is based on a unique set of facts: a collateralized, payment-over-time arrangement in exchange for a sale of business where the payment period exceeds the five-year life span afforded to initial financing statements under OCGA § 11-9-515. The lawyer, being retained to protect his client's interests in connection with the sale of his business, is the only party who knows the legal requirements for maintaining the effectiveness of the security interest. He can either share this knowledge with his client a very simple step or renew the financing statements before they expire an equally simple step. The dissent's concern over the expansion of attorney duties is unwarranted.
2. The dissent also argues that imposing a duty to renew on Turner is an adoption of the "continuous representation rule," which Georgia courts have rejected except in personal injury cases.[10] Under this rule, a continuing relationship or continuing wrong can toll the statute of limitations.[11] In the case cited by the dissent, Hunter, Maclean, Exley & Dunn, P.C. v. Frame,[12] the alleged malpractice was only that material financial information was omitted from the closing documents; there was not, as in the present case, some further action beyond the closing at issue, and thus Hunter, Maclean is inapposite to our situation. The continuous representation rule is not implicated in this case. We are not holding that a failure to inform by Turner in 1996 was a continuing wrong that tolled the statute of limitations until 2001. To the contrary, we are holding that a failure to inform in 1996 means that Turner undertook a duty to renew in 2001, and the statute of limitations began running from the date of alleged breach of that duty.[13]
In light of the foregoing considerations, we reverse the Court of Appeals's decision that affirmed the trial court's grant of Turner's motion to dismiss. Barnes's malpractice action was filed within four years of the failure to renew the financing statements in 2001, and thus may proceed.
Judgment reversed.
All the Justices concur, except BENHAM, THOMPSON and HINES, JJ., who dissent.
BENHAM, Justice, dissenting.
For the purpose of ensuring recompense for a client who may have been caused a *853 grievous financial loss by his attorney's alleged failure to perform a simple duty, a majority of this court has ignored pertinent law and created a new species of duties which arise not from employment but from the occurrence of an initial mistake.
The central question in this legal malpractice case concerns the duty undertaken by Turner when he represented Barnes and his corporation in the sale of a business. The majority opinion begins with a statement of the issue which supposes the ultimate question by starting from the premise, as did the question posed in the grant of the writ of certiorari and set out in the majority opinion, that Turner owed a duty to maintain, as opposed to create, a security interest for Barnes. The holding of the majority opinion that Turner owed a duty to renew the security interest when it expired is thus based not on reasoning or the law, but on an unsupported assumption.
"It is axiomatic that the element of breach of duty in a legal malpractice case the failure to exercise ordinary care, skill, and diligence must relate directly to the duty of the attorney, that is, the duty to perform the task for which [the attorney] was employed." Tante v. Herring, 264 Ga. 694(1), 453 S.E.2d 686 (1994). Here, the task for which Turner was employed was to perform the services attendant to the closing of the sale of the business, including filing the UCC financing statements. He breached the duties arising from that employment, or did not, at that time. If he had a duty to inform Barnes of the need in the future to renew the statement, and did not do so, he breached the duty then and his potential liability came into existence.[1] The record shows that Barnes asserts he continued to employ Turner for legal tasks, but not that Turner was engaged on an ongoing basis to protect Barnes's interests in all legal matters which arose or might have arisen. To assert Turner had a duty arising from his representation during the closing which would not manifest itself for five years "would essentially be an adoption of the `continuing representation rule,' which has been consistently rejected by Georgia courts in the malpractice context...." Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 849, 507 S.E.2d 411 (1998).
The majority, however, imposes as a matter of law duties which were not undertaken by Turner and were not within the scope of his employment to close the sale of the business. The majority holds the asserted failure to inform Barnes of the future need to renew the UCC statements somehow created a duty on Turner's part to renew the filings without having been retained to do so. The majority thus creates new duties that could outlast not only the period of the attorney-client relationship, but even the attorney's life. In addition, by attaching to the asserted breach of one duty the conditional creation of a new and potentially more onerous duty, the majority destroys any notion of finality attorneys may hope to have in any aspect of their employment. No attorney can safely close a file and, apparently, no passage of time can insulate a mistake since the very happening of a mistake creates, under the majority's view, another duty. Under the conditional duty concept created from the whole cloth by the majority, for which no authority or valid reasoning is offered, any change in employment status must trigger a full examination of every past transaction to be sure some inadvertence in the past has not created a new duty which would start a period of limitation running again.
Not only does this new duty, which can only be ascertained to have existed after damage from an original mistake has manifested, and perhaps (though the majority opinion is unclear on the point) after the expiration of the period of limitation has barred suit for the first mistake, add to every attorney's potential liability to clients, it adds such uncertainty and lack of finality to every transaction that malpractice insurance carriers *854 will be unable to make accurate assessments of their exposure. This will inevitably result in higher premiums, which will necessarily be passed on to clients. In addition to adding to the direct expense of legal representation, the increase in premiums and the need to institute greater safeguards to avoid liability will result in further consolidation of the practice of law in larger and larger firms because they will have greater resources to help prevent any oversight, and will require contracts of employment that stringently restrict the scope of representation by use of disclaimers intended to protect attorneys from any responsibility to clients other than the most narrow definition of the tasks for which attorneys are employed. The damage wrought by these restrictions will fall most heavily on the very class to which the plaintiff in this case belongs and which the majority purports to wish to protect, the proprietors of small businesses.
The majority's resolution of the present case is not just short-sighted from a policy standpoint, but lacks a rational basis. It cites foreign authority for a proposition not contested by anyone, that Turner had a duty to file the financing statements, which he did, and then vaults without reasoning or authority to the creation of an additional duty to safeguard the security interest just created. It is at that point the majority invents, as noted above, a duty to "provide for payment to Barnes." Thus, the simple act of performing the duty to create a security interest becomes a duty of indeterminate duration to ensure the payment of the obligation secured. To justify such a vast extension of the attorney's duty, the majority suggests that the duty is not, as this Court held in Tante v. Herring, supra, "the duty to perform the task for which [the attorney] was employed," but is rather, in some unspecified fashion, to ascertain the full extent of the client's "objectives" in undertaking the transaction and then take whatever actions are necessary to see that the objectives are fulfilled. Apparently, the majority has created a new standard of care to be employed in reviewing an attorney's success in ferreting out and guaranteeing accomplishment of all of a client's objectives: what lawyers often do. That has never been the standard of care employed in legal malpractice cases and should not be applied here as the majority does.
That the majority's approach here is dictated by a desired result rather than by law or reason is apparent from its frequent return to the lament that without the creation of this new duty to take all possible steps to guarantee payment of the obligation owed to the client, Barnes will not be able to recover his losses because the statute of limitation bars recovery for the breach of Turner's duty to inform Barnes of the need to renew the financing statements in the future. That issue was resolved in the Court of Appeals and, as noted above, is not properly within the scope of the question posed by the Court in granting the writ of certiorari. Thus, the issue is not properly before us and, even if it were, would not warrant the creation of a new duty to avoid the unfortunate effect the correct application of statute-of-limitation law has had on Barnes.
Finally, it must be noted that the question of a duty to renew was properly omitted from the Court of Appeals' consideration of this case and should never have been taken up by this Court for the simple reason that it was not litigated below. The majority seeks to avoid this problem with a reference to the pleadings, but ignores the fact that the trial court did not rule on that claim and the Court of Appeals, whose judgment we purport to review, did not rule on that issue. As this Court held in Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 829, 573 S.E.2d 389 (2002),
our appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. "'[T]o consider the case on a completely different basis from that presented below ... would be contrary to the line of cases ... holding, "He must stand or fall upon the position taken in the trial court."'" Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.
(Footnoted citations omitted). While Barnes raised in an initial pleading and in a written response *855 to the motion to dismiss the assertion that Turner had a duty to renew the financing statements, that issue was not addressed in the actual defense of the motion and was not decided by the trial court. Notwithstanding the lack of any ruling on the issue below, a majority of this Court bases its judgment on it, becoming in effect a "super trial court" with authority to decide issues for the first time. That is not the proper role for this Court.
Notwithstanding the twists and turns employed by the majority to reach its desired result, this case is simple. Turner was employed to close a commercial transaction. Whatever duty he undertook was in connection with that employment and was breached or not at that time. There being no duty to renew the UCC statements in 2001, Turner's failure to do so could not constitute a breach of duty which would support the legal malpractice claim against him. That being so, no basis exists for reversing the judgment of the Court of Appeals or of the trial court. I must, therefore, dissent to the majority's result-oriented distortion of legal malpractice law to create a new duty of indeterminate duration which arises only upon the breach of an earlier duty.
I am authorized to state that Justices Thompson and Justice Hines join in this dissent.
NOTES
[1] Barnes v. Turner, 265 Ga.App. 6, 593 S.E.2d 9 (2003).
[2] Cooper v. Unified Gov't of Athens-Clarke County, 275 Ga. 433, 434(2), 569 S.E.2d 855 (2002).
[3] OCGA § 11-9-515(c).
[4] OCGA § 9-3-25; Tucker v. Smith, 249 Ga.App. 305, 308(1), 547 S.E.2d 604 (2001).
[5] Cooper, 275 Ga. at 434, 569 S.E.2d 855.
[6] The dissent's reliance on Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 573 S.E.2d 389 (2002) is inapposite. In Pfeiffer, we held that a party could not seek to reverse a grant of summary judgment by raising a new argument for the first time on appeal. However, this case involved the grant of a motion to dismiss. In reviewing the grant of a motion to dismiss, it is the duty of the appellate court to "construe the pleadings in the light most favorable to [the appellant] with all doubts resolved in [appellant's] favor." Alford v. Public Service Commission, 262 Ga. 386, n. 2, 418 S.E.2d 13 (1992). By considering all the allegations of the complaint, including the failure to renew, this Court is simply applying the correct standard of review.
[7] See Practical Offset, Inc. v. Davis, 83 Ill.App.3d 566, 39 Ill. Dec. 132, 404 N.E.2d 516, 520 (1980). The failure to file a UCC financing statement has even been held to constitute legal malpractice as a matter of law. See Lory v. Parsoff, 296 A.D.2d 535, 745 N.Y.S.2d 218 (N.Y.App.Div.2002); Deb-Jo Constr. v. Westphal, 210 A.D.2d 951, 620 N.Y.S.2d 678 (N.Y.App.Div.1994).
[8] Tante v. Herring, 264 Ga. 694, 694, 453 S.E.2d 686 (1994); Restatement (Third) of the Law Governing Lawyers § 16(2) (1998).
[9] The dissent argues that the failure to inform is not within the scope of our question posed on certiorari and thus does not consider it. But this is incorrect. Our certiorari question asked:
"Whether the statute of limitation began to run on petitioner's malpractice claim in October 1996 when Turner assumed the on-going duty to renew the UCC forms or when Turner breached that on-going duty in October 2001 or must the breach necessarily relate back to the date on which the on-going duty was assumed?"
The only possible way for Turner to have assumed a duty to renew was by failing to inform Barnes of the renewal requirement; therefore, the question assumes that he so failed to inform Barnes. Both parties argued the failure to inform in their briefs and at oral argument. Turner's actions in 1996 are integral to understanding the duty he undertook in 2001, and were clearly contemplated by our certiorari question.
[10] See, e.g., Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366(2), 368 S.E.2d 732 (1988); Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 806-807(2), 273 S.E.2d 16 (1980); Stocks v. Glover, 220 Ga.App. 557, 558-559(1), 469 S.E.2d 677 (1996).
[11] Everhart v. Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972).
[12] 269 Ga. 844, 849, 507 S.E.2d 411 (1998).
[13] The sole issue before us is the scope of the duty allegedly breached. Therefore, we do not address the other elements of Barnes's malpractice claim: breach of duty, causation, and damages. See, e.g., Tante, 264 Ga. at 694, 453 S.E.2d 686.
[1] The correctness of the decision of the Court of Appeals that the statute of limitation barred Barnes's claim based on Turner's failure to inform Barnes of the need to renew the filing is not within the scope of the question posed, which clearly dealt only with the duty to renew which the majority wrongly assumes, and should not be considered in this appeal. See Handson v. HCA Health Services of Georgia, Inc., 264 Ga. 293, (n. 1), 443 S.E.2d 831 (1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266244/ | 5 Cal.Rptr.3d 822 (2003)
112 Cal.App.4th 1435
WAL-MART STORES, INC., et al., Petitioners,
v.
WORKERS' COMPENSATION APPEALS BOARD and Velta Elaine Garcia, Respondents.
No. E033208.
Court of Appeal, Fourth District, Division Two.
October 30, 2003.
*824 Bradford & Barthel and Chris P. Stettler for Petitioner Wal-Mart Stores, Inc.
Finnegan, Marks, Hampton & Theofel and Ellen Sims Langille, San Francisco, for California Workers' Compensation Institute as Amicus Curiae on behalf of the Petitioner.
Law Office of Marsha Ciniello and Marsha Ciniello, Yucca Valley, for Respondent, Velta Elaine Garcia.
No appearance for Respondent Workers' Compensation Appeals Board.
David Bryan Leonard, Los Angeles, for California Society of Industrial Medicine & Surgery, Inc., and California Psychiatric Association, Inc., as Amici Curiae on behalf of the Respondents.
*823 OPINION
RICHLI, Acting P.J.
In this matter we hold that an employee who files a workers' compensation claim seeking benefits for an injury to the psyche that derives from the effects of an admitted routine physical injury, cannot recover unless the employee has worked for the employer for at least six months. As the Board ruled otherwise, we annul the order under review.
STATEMENT OF FACTS
The petition involves an issue of law, and the factual details may therefore be omitted.[1] Velta Elaine Garcia (Applicant) suffered an admitted orthopedic injury to her back while employed by Wal-Mart (Employer) in February of 1995. At the time, she had worked for Employer for less than six months. Applicant had back surgery and has not returned to work.
Some four years after the incident, Applicant amended her workers' compensation claim to assert that she had suffered damage to her psyche resulting from the disability caused by the orthopedic injury. The workers' compensation judge ruled that she was not entitled to compensation benefits with respect to the claimed psychiatric injury because it was barred by the "six-month" rule of Labor Code section 3208.3, subdivision (d).[2] (See infra.) The Workers' Compensation Appeals Board (Board), however, reversed this decision, finding that the statute did not apply to Applicant's claim, and the Board remanded the case to the referee for further proceedings. Employer petitioned for a writ of review, which we granted.[3]
*825 DISCUSSION
Although factual determinations of the Board are entitled to substantial deference (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal. App.4th 227, 233, 20 Cal.Rptr.2d 26), the issue before us is one of law, which we review de novo. (Land v. Workers' Comp. Appeals Bd. (2002) 102 Cal.App.4th 491, 494,125 Cal.Rptr .2d 432.)
Subdivision (d) of section 3208.3 provides that "[notwithstanding any other provision of this division, no compensation shall be paid pursuant to this division for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.... This subdivision shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition." The statute, which contains other provisions governing and to some extent limiting benefits for psychiatric claims,[4] was enacted in 1989. It was designed to address public and legislative concerns about, inter alia, "the proliferation of workers' compensation cases with claims for psychiatric injuries." (Hansen v. Workers' Compensation Appeals Bd. (1993) 18 Cal.App.4th 1179, 1183-1184, 23 Cal.Rptr .2d 30.) Subdivision (d) of section 3208.3 was enacted two years later, with the apparent purpose of "limiting] questionable claims for psychiatric injuries resulting from routine stress during the first six months of employment." (Hansen, at p. 1184, 23 Cal.Rptr.2d 30.) As enacted, the subdivision also included the language, "Nothing in this section shall be construed to mean that there shall not be compensability for any psychiatric injury which is related to any physical injury in the workplace." This language, however, was deleted in 1993.[5]
Given the overall intent of section 3208.3, there has been some debate over its effective scopethat is, whether it really applied to all claims for psychiatric injuries, including those which were related to undisputed physical injury.[6] Some of these questions were answered in Lockheed Martin, supra, 96 Cal.App.4th 1237, *826 117 Cal.Rptr.2d 865, which involved the provisions of subdivision (b)(1) requiring the employee claiming injury to the psyche to establish that the "actual events of employment were predominant as to all causes combined of the psychiatric injury." (Italics added.)[7] The claimant in that case had suffered an admitted physical injury, and also claimed that the injury had led to compensable psychiatric consequences (i.e., a "physical-mental" claim). The workers' compensation judge ruled that she had failed to meet the "predominant" standard of subdivision (b)(1), but the Board reversed his order, finding that this standard did not apply to claims for psychiatric injury which had their genesis in physical injury.[8]
The Board's view, as explained by the court, had been that applying the limiting and restrictive provisions of section 3208.3 to claims for physical-mental injuries was not necessary to serve the purposes of the statute. This, because such claimsunlike the mental-mental claims of "stress-mill millionaires" (see Sakotas v. Workers' Comp. Appeals Bd. (2000) 80 Cal.App.4th 262, 273, 95 Cal.Rptr .2d 153 (Sakotas )) have an objectively verifiable component and are therefore arguably less likely to be fraudulent.
The Lockheed Martin court disagreed with this construction, primarily based on its application of the standard rules of interpretation. (See infra with respect to the court's view on the reasonableness of the failure to distinguish between types of psychological injury claims.) Although it acknowledged that "[t]he Board's administrative construction of statutes that it is charged to enforce and interpret is entitled to great weight unless it is clearly erroneous" (Ralphs Grocery Co. v. Workers' Comp. Appeals Bd. (1995) 38 Cal.App.4th 820, 828, 45 Cal.Rptr.2d 197), it relied in the end on the even more authoritative proposition that courts have "`no power to rewrite [a] statute so as to make it conform to a presumed intention which is not expressed.'" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633, 59 Cal. Rptr.2d 671, 927 P.2d 1175.) It then noted that section 3208.3, subdivision (b)(1) "clearly and unambiguously" referred to the compensability of any psychiatric injury, without qualification, and stressed that the Legislature had not only created a qualification respecting physically-generated psychiatric injuries in subdivision (d), but had then deleted it. (Lockheed Martin, supra, 96 Cal.App.4th at pp. 1245-1249, 117 Cal.Rptr.2d 865.) Accordingly, it ruled that all claims for injury to the psyche which did not fall under the specific exception of subdivision (b)(2) of section 3208.3 (see Lockheed Martin, at p. 1246, fn. 5) had to meet the "predominant cause" standard.
Lockheed Martin clearly points to the conclusion that the six-month requirement of subdivision (d) of section 3208.3 should also be construed to apply to all claims for injury to the psyche, including those that are claimed to arise from physical injuries. There is simply no basis on which an alternative construction may rest. The subdivision does contain an exception for psychic injuries resulting from a "sudden and extraordinary employment condition," but no other claims for such injury are excluded.[9] Furthermore, to the extent *827 that the former language concerning derivative injuries to the psyche might have suggested that such claims were excluded from the requirement, we, like the Lockheed Martin court, must, and do, assume that its deletion was intended to change the law in that respect. (See Lockheed Martin, supra, 96 Cal.App.4th at pp. 1246, 1247, 117 Cal.Rptr.2d 865.) Given the present form of section 3208.3, subdivision (d), to decline to apply the limitation to Applicant would be to rewrite the statute, which, as noted above, we cannot do.[10]
We therefore follow the approach and analysis of the court in Lockheed Martin and we hold that the six-month limitation expressed in subdivision (d) of section 3208.3 applies to all claims for psychiatric injury. Nor is this an irrational construction. Although it is true that a claim for psychiatric injury which rests on an objective physical injury may be somewhat less likely to be fraudulent than one based on "stress," there remains a substantial potential for the fraudulent inflation of a claim by adding alleged psychic injuries; thus, including such claims to meet the six-month standard is by no means unreasonable. (See Lockheed Martin, supra, 96 Cal.App.4th at p. 1249, 117 Cal.Rptr.2d 865.)
While we recognize that, as Applicant argues, there are factual differences between that case and this one, we do not find them dispositive or significant. And as we have also noted above, although the Board's interpretation of a Labor Code statute is entitled to respect, if it is wrong, it is wrong, and we are not bound by it. (See also Rex Club v. Workers' Comp. Appeals Bd. (1997) 53 Cal. App.4th 1465, 1470-1471, 62 Cal.Rptr.2d 393.)
Finally, we consider and reject three arguments raised by Applicant. First, she contends that it is improper, or unfair, to apply the Lockheed Martin decision to an injury that predated it. On the contrary; it is well established that judicial decisions are generally to be applied retroactively. (Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1305-1306, 71 Cal.Rptr.2d 122.) Although there may be exceptions based on public policy or fairness, none is appropriate here, especially as Applicant cannot claim to have "relied" on any contrary rule; she was injured on a specific date and was unable thereafter to return to work, and so *828 could not have accumulated the necessary time of employment.
Second, Applicant argues that she was "employed" for more than six months because she was not actually terminated after her injury. She asserts that "employed" is not the same as "actually worked for" and that even if the six-month rule applies, it does not require that she have actually performed work for this period; at a minimum, she argues that she remained "employed," although off work, until she was provided with a workers' compensation claim form. We disagree. Such a construction would lead to absurd and unfair results, because an employer's ability to terminate an employee who claims to have suffered an industrial injury is sharply limited. (See generally § 132a.) Obviously it would defeat the legislative purpose if an employee, injured after working for a week, could remain on disability leave for five and three-fourths months and then file a new claim for injury to the psyche. Although section 3208.3, subdivision (d) does provide that the six months of "employment" need not be continuous, we interpret the word to mean the performance of actual service for the employer.[11]
Finally, at oral argument Applicant suggested that section 3208.3 was unconstitutional insofar as it purports to abridge a worker's right to benefits. But the California Constitution does not make such a right absolute. Article 14, section 4 gives the Legislature "plenary power" to establish a system of workers' compensation for "any or all" workers; in enacting the statute, the Legislature has merely elected to exercise its power to exclude certain workers. (See also, e.g., section 3352, subd. (h).) In other respects the constitutionality of the statute has been repeatedly upheld. (E.g. Sakotas, supra, 80 Cal.App.4th at pp. 270-274, 95 Cal. Rptr .2d 153, rejecting equal protection and due process arguments.)[12]
The Board's opinion and order after reconsideration filed on January 9, 2003, is annulled. The matter is remanded to the Board with directions to issue a new and different order in the case consistent with this opinion. Petitioners shall recover their costs.
We concur: HOLLENHORST and WARD, JJ.
NOTES
[1] At oral argument, both sides urged that the facts of Applicant's injury (of which they had sharply differing views, however) supported a result in their favor. However, these arguments are not relevant. The question before us is not whether Applicant's psyche injury is genuine, but whether she qualifies as a potential recipient of benefits at all.
[2] All subsequent statutory references are to the Labor Code.
[3] Section 5950 provides for judicial review of an "order" of the Board, but because the Board's own authority to reconsider rulings is limited to final orders by section 5900, it has been held that the same limitation applies to judicial review. (Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 533-535, 163 Cal.Rptr. 750.) However, a "final order," for the purpose of determining the propriety of judicial review, "includes any order which settles, for purposes of the compensation proceeding, an issue critical to the claim for benefits, whether or not it resolves all the issues in the proceeding or represents a decision on the right to benefits." (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075, 97 Cal. Rptr.2d 418.) Furthermore, once the Board determines to exercise its jurisdiction over a petition for reconsideration, this establishes that the order was "final." (See Kosowski v. Workers' Comp. Appeals Bd. (1985) 170 Cal. App.3d 632, 636, fn. 2, 216 Cal.Rptr. 280.) Certainly it does no violence to the sense of "final" here, where the Board's determination of the applicability of section 3208.3 is crucial to whether or not Applicant can recover benefits for her psychiatric injury at all.
[4] For example, the statute also imposes restrictions on claims for injury to the psyche that are filed after the employee is fired or laid off (§ 3208.3, subd. (e)) and prohibits compensation for injury caused by a "lawful, nondiscriminatory, good faith personnel action" (Id., subd. (h)).
[5] Despite this deletion, it remains undisputed, as a general principle, that psychological injuries that are triggered by compensable physical injuries are also compensable (see generally 1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (rev.2d ed. 2002) Psychoneurotic and Emotional Injuries, § 4.69[1], pp. 4-92, 4-93) although they are often subject to particular scrutiny. (See, e.g., National Convenience Stores v. Workers' Comp. Appeals Bd. (1981) 121 Cal.App.3d 420, 175 Cal.Rptr. 378.)
[6] When physical injury results in psychiatric disability, the claim is sometimes referred to as "physical-mental." If a psychic injury causes the psychic disability, the claim is "mental-mental." (See Lockheed Martin Corp. v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1237, 1247, fn. 6, 117 Cal.Rptr.2d 865 (Lockheed Martin ).)
[7] Section 3208.3, subdivision (b)(2) creates a slightly more employee-favorable rule for claims arising out of violent occurrences. This was not relevant in Lockheed Martin.
[8] The Board had made similar recent rulings in several other cases, although it had also applied the statute in earlier cases. None of these matters resulted in published appellate opinions.
[9] If the argument were made that an accidental injury constitutes a "sudden and extraordinary employment condition," we would reject it. For one thing, such an interpretation would mean that psychological injuries resulting from accidents would not be subject to the six-month rule, but such injuries arising from cumulative physical injury would be governed by that limitation; this distinction would make no sense, and we are reluctant to attribute irrational intentions to the Legislature. (See Gregory v. State Bd. of Control (1999) 73 Cal.App.4th 584, 595, 86 Cal.Rptr.2d 575.) Furthermore, if the Legislature intended to except psychic claims derived from physical injuries from the operation of the statute, presumably it would have done so in a much less ambiguous manner. In our view, the "sudden and extraordinary" language is limited to occurrences such as gas main explosions or workplace violencethe type of events that would naturally be expected to cause psychic disturbances even in a diligent and honest employee.
[10] Amicus curiae for Applicant suggests that the phrase "psychiatric injury," as used in section 3208.3, is a term of artpresumably, that it means only "mental-mental" injuries. Our examination of the statutes indicates that this position is not tenable. If by "psychiatric injury" the Legislature meant only "mental-mental" claims, then subdivision (a)which establishes the compensability of "psychiatric injury" claimswould exclude "physicalmental" claims entirely. For the argument to assist Applicant, "psychiatric injury" would have to mean both "mental-mental" and "physical-mental" in the general compensability provisions of subdivision (a), but only "mental-mental" in the exclusion of subdivision (d). We decline to apply such a variable definition.
[11] This appears to be the Board's view as well. (See Curtis v. Workers' Comp. Appeals Bd. (1994) 59 Cal.Comp.Cases 927 [writ denied].)
[12] Amicus curiae for Applicant also argued that the Legislature could not have intended to deny benefits to large classes of workers who could not meet the six-month standard, such as seasonals, students, and those in the entertainment industry. However, that is the clear effect of section 3208.3, subdivision (d). There is no exception for "employees who would work more than six months if they didn't have to go back to school, or if the job lasted that long." Again, we stress that whether the statute could reasonably, or even wisely, be amended is not before us. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267033/ | 440 Pa. 607 (1970)
East Caln Township
v.
Carter, Appellant.
Supreme Court of Pennsylvania.
Argued January 22, 1970.
October 9, 1970.
*608 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Arthur F. Earley, for appellant.
Glenvar E. Harman, for appellee.
OPINION BY MR. CHIEF JUSTICE BELL, October 9, 1970:
In January and February of 1966, appellant Clayton Carter, Jr., and his wife purchased two adjacent tracts of land situated partially in Uwchlan Township and partially in East Caln Township. Parts of these tracts had been maintained as a trailer park by one of appellant's predecessors in title. Upon taking possession of the land, appellant began to improve it, intending to expand and develop this mobile home or trailer camp.
Attempts to persuade appellant to comply with zoning and other ordinances failed. In June 1966, East Caln Township, together with several individual plaintiffs, filed a bill in Equity which alleged that the appellant and his wife were establishing and maintaining a mobile home or trailer park in violation of the Zoning Ordinance of East Caln Township. Several hearings and preliminary injunctions followed. At one time, Carter was fined $500 for contempt of Court for moving additional trailers onto the land in violation of a preliminary injunction. After additional hearings, findings of fact and conclusions of law were made and a *609 Decree nisi was entered on April 8, 1968. The Court subsequently dismissed appellant's exceptions and on August 2, 1968, entered a final Decree.
The Decree provided, in pertinent part: ". . . Clayton Carter, Jr., and Loretta Carter, his wife, . . . are hereby restrained and enjoined from operating a trailer park upon their land or any part thereof situate in East Caln Township in this county, . . . and they are ordered and directed to forthwith remove any and all house trailers now used as places of human habitation from said tract, as well as all such trailers which are designed for or intended for such use,[*] and they are further ordered and directed to desist from the use of any pipes, wells, pumps, cesspools, septic tanks and any other facilities devoted to or designed for use as part of any sewage disposal system or water supply facility now located upon said tract. . . ."
On August 23, 1968, appellee filed in the lower Court a petition for contempt of Court and a petition for enforcement of the Court's Final Decree. In the meantime, appellants filed an appeal in this Court which we non prossed on January 23, 1969. On May 1, 1969, a hearing was held by the lower Court on the petitions for contempt of Court and for enforcement of the Final Decree. At this hearing, appellee presented testimony to prove that appellants had not removed the house trailers and mobile homes from their land as mandated by the Decree, but were continuing to operate the trailer park as before. Appellants presented evidence to show that they were installing sewage facilities to comply with the various public health ordinances involved, and testified that they had not pressed their appeal in this Court because they thought that the improvements which they made would satisfy all the terms and requirements of the Decree. Appellants further testified *610 that they had only become aware within the past week that any zoning matter was involved or included in the Decree.
On May 2, 1969, the lower Court entered an Order holding the appellant-husband in contempt of Court. The Court further provided (1) that appellant might purge himself of the contempt by removing all of the house trailers from the part of the trailer park situated in East Caln Township by June 1, 1969, and (2) that if the appellant refused to remove the trailers the following penalties would be imposed: $100 per day for the first week after June 1; $200 per day for the second week thereafter; and $300 per day for each subsequent day. The Court's lengthy Order further provided that if appellant failed to pay any of the penalties so assessed, he should be committed to the Chester County Farms until the penalties were paid or until he was otherwise discharged, with the further proviso that no single period of imprisonment should exceed three months in duration, but that if violations of the Decree continued beyond that three-month period, and if the payments were still not made, appellant would then be recommitted to Chester County Farms so long as that unfilled condition continued. It is from this Contempt Order that Carter appeals.
Appellant Carter presents two issues in this appeal. He first contends that the Contempt Order of May 2, 1969, was punishing him for an indirect criminal contempt, and, as such, exceeded the statutory limitations governing such punishment. We disagree; this was a civil contempt. He further contends that the lower Court erred in finding him in contempt because he had never been personally served with a copy of the Court's Order and did not have sufficient actual knowledge of its contents to make him liable for violating it. There is no merit, as we shall see, in any of appellant's contentions.
*611 I.
Contempt
This Court, in Brocker v. Brocker, 429 Pa. 513, 241 A. 2d 336, recently discussed at great length the subject of contempt. There we said (pages 519-521): "The Courts have always possessed the inherent power to enforce their Orders and Decrees by imposing penalties and sanctions for failure to obey or comply therewith. Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408, 184 A. 2d 270; Knaus v. Knaus, 387 Pa. 370, 127 A. 2d 669; Michaelson v. United States, 266 U.S. 42; Green v. United States, 356 U.S. 165; United States v. United Mine Workers of America, 330 U.S. 258; Commonwealth ex rel. v. Perkins, 124 Pa. 36, 16 Atl. 525; Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 114 Pa. Superior Ct. 7, 174 Atl. 11; Commonwealth v. Sheasley, 102 Pa. Superior Ct. 384, 157 Atl. 27.
"Contempt is divided legally into two classes: (1) Civil Contempt and (2) Criminal Contempt, (a) direct contempt and (b) indirect contempt. Knaus v. Knaus, 387 Pa., supra; Philadelphia Marine Trade Assn. v. International Longshoremen's Assn., 392 Pa. 500, 140 A. 2d 814; Commonwealth ex rel. Beghian v. Beghian, 408 Pa., supra; Marco Industries, Inc. v. United Steelworkers of America, 401 Pa. 299, 164 A. 2d 205.
"The dominant purpose[*] and objective of the Court's Order is the controlling[*] factor in the determination of whether the contempt was civil or criminal. Not only is the dividing line between civil and criminal contempt sometimes shadowy or obscure, but the same facts or conduct may constitute or amount to both civil and criminal contempt. United States v. United Mine Workers of America, 330 U.S., supra. Moreover, it is clear that a Court can for present or past acts of misbehavior *612 amounting to civil contempt impose an unconditional compensatory fine and/or a conditional fine and imprisonment, and such fine may be payable to the United States or to the Commonwealth or to the county or to the individual who was injured. United States v. United Mine Workers of America, 330 U.S., supra; McComb v. Jacksonville Paper Co., 336 U.S. 187; Gompers v. Bucks Stove & Range Co., 221 U.S. 418; Commonwealth ex rel. Beghian v. Beghian, 408 Pa., supra; Parker v. United States, 126 F. 2d 370.
". . .
"In United States v. United Mine Workers of America, 330 U.S., supra, the Supreme Court held that the trial Court properly found John L. Lewis guilty of indirect criminal contempt and the Union guilty of both civil and criminal contempt.[*] . . . The Court said, inter alia (pages 298-299, 303-304): `Common sense would recognize that conduct can amount to both civil and criminal contempt. . . . The trial court also properly found the defendants guilty of civil contempt. Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.[*] Gompers v. Bucks Stove & Range Co., supra, at 448, 449.'"
We said in Knaus v. Knaus, 387 Pa. 370, 127 A. 2d 669 (pp. 376-77): "The dominant purpose of a contempt proceeding determines whether it is civil or criminal. If the dominant purpose is to vindicate the dignity and authority of the court and to protect the interest of the general public, it is a proceeding for criminal contempt. But where the act of contempt complained of is the refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of a private *613 party, proceedings to enforce compliance with the decree of the court are civil in nature. The purpose of a civil contempt proceeding is remedial, and judicial sanctions are employed (1) to coerce the defendant into compliance with the court's order, and (2) in some instances to compensate the complainant for losses sustained."
This test and these legal principles have been iterated and reaffirmed on numerous occasions by the United States Supreme Court. In the recent case of Shillitani v. United States, 384 U.S. 364, the Court said (pages 369, 370-371): "`It is not the fact of punishment but rather its character and purpose that often serve to distinguish' civil from criminal contempt. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). . .
"The conditional nature of the imprisonment based entirely upon the contemnor's continued defiance justifies holding civil contempt proceedings absent the safeguards of indictment and jury, Uphaus v. Wyman, 364 U.S. 388, 403-404 (1960) (DOUGLAS, J., dissenting), provided that the usual due process requirements are met."
The three factors discussed in the appeal before us appear also in Brocker v. Brocker, 429 Pa., supra. In that case, as here, (1) the penalty was payable to the county; (2) imprisonment pending compliance was ordered; and (3) the appellant was given the opportunity to purge himself of the contempt. It is clear from the facts in this case that the dominant purpose and objective of the Court's Order of May 2, 1968, was to compel appellant Clayton Carter to comply with the injunctive Decree which ordered the removal of the trailers. This is made further evident by the final paragraph of the Court's Order: "We would point out further that if the defendants pursue the avenues open to them under the provisions of the Zoning Ordinance and obtain a valid *614 permit authorizing their continuance in or expansion of their business, they would then be in a position to seek a modification of the Final Decree. However, until that is done, or the Final Decree complied with as entered, Clayton Carter, Jr. is in contempt of Court."
That the dominant purpose and intent of the Court was to enforce compliance with its Order is further apparent from that part of its Contempt Order which gave Carter a grace period of one month to comply with the Order and the further opportunity to purge himself of all contempt of Court at any time thereafter by complying with and obeying the Court's Order. The conditional nature of the Contempt Order, which, we repeat, allowed appellant to purge himself of all contempt by complying with the Court's Order within a reasonable time, makes it clearly civil contempt.
II.
Notice
Appellant alleges that he should not be held in contempt of Court because he was not aware that the Decree required him to remove the trailers from that part of the trailer park situated in East Caln Township. The record clearly indicates that the appellant did attempt to provide water and sewage facilities for his trailer park, and he contends that he thought this was the sole problem involved. It is also true that the defendant was not personally served with a copy of the Decree.
This Court has previously held that before a defendant may be cited for contempt of an Order of Court it must be shown that he had actual knowledge of the Order. Messmore's Estate, 293 Pa. 63, 141 A. 724. The Third Circuit has recently reached a similar conclusion in In Re Rubin, 378 F. 2d 104 (3d Cir. 1967). In that case, the Court said (page 108): "In order to *615 cite a person for contempt for violating a court order, two principles, each a corollary of the other, must, among other requirements, be established. The first of these is that it must be proved that the alleged contemnor had knowledge of the order which he is said to have violated. [Citations omitted]
"The corollary of this proposition is that the order which is said to have been violated must be specific and definite. [Citations omitted]."
Appellant received no formal education beyond the sixth grade level. He works in a paper mill as an air hammer operator. However, during the course of this litigation he has had the assistance of no fewer than eight different attorneys. It is difficult to believe that none of these attorneys made him aware of the issue of zoning and the pertinent provisions of the Ordinance in this case. Moreover, discussions which took place at several hearings show that appellant had actual knowledge that he was violating the zoning ordinance by maintaining trailers in the park, and that enforcement of this Ordinance had been consistently required by the Orders of the Court.
The sentence of contempt was not only legally and Constitutionally valid, it was also fair and justifiable.
Order affirmed, appellant to pay costs.
Mr. Justice JONES and Mr. Justice COHEN concur in the result.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
In order for a contempt conviction to be valid, it must be shown that the defendant was either personally served with a copy of the decree upon which the contempt is based or had actual knowledge of the decree. Wilson v. North Carolina, 169 U.S. 586, 18 S. Ct. 435 (1898); In Re Rubin, 378 F. 2d 104 (3d Cir. 1967); Messmore's Estate, 293 Pa. 63, 141 Atl. 724 (1928). Appellant was never served with a copy of the *616 decree, and, contrary to the indications in the majority opinion, there is neither a finding by the trial court that the appellant knew of the decree nor any evidence upon which such a finding could be based. Since an essential precondition to a conviction for contempt is missing from this case, it would be pure caprice to affirm the conviction.
Accordingly, I dissent.
NOTES
[*] Italics in Brocker v. Brocker Opinion.
[*] Italics in Brocker v. Brocker Opinion.
[*] Italics in Brocker v. Brocker Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2759267/ | IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 159
OCTOBER TERM, A.D. 2014
December 10, 2014
DAREN SINGER, individually and in his capacity as
a manager of Beartooth Mountain Springs, LLC;
CLARK’S FORK CANYON SPRINGS, LLC; and
SUNLIGHT SPRINGS DISTRIBUTION, LLC,
Appellants
(Defendants),
S-14-0004
v.
PHILIPPE LAJAUNIE, individually and derivatively
as a member of Beartooth Mountain Springs, LLC
and AMERICAN SUMMITS, LLC,
Appellees
(Plaintiffs).
PHILIPPE LAJAUNIE, individually and derivatively
as a member of Beartooth Mountain Springs, LLC
and AMERICAN SUMMITS, LLC,
Appellants
(Plaintiffs),
v.
S-14-0005
DAREN SINGER, individually and in his capacity as
a manager of Beartooth Mountain Springs, LLC;
CLARK’S FORK CANYON SPRINGS, LLC; and
SUNLIGHT SPRINGS DISTRIBUTION, LLC,
Appellees
(Defendants).
Appeal from the District Court of Park County
The Honorable Steven R. Cranfill, Judge
Representing Daren Singer, Clark’s Fork Canyon Springs, LLC, and Sunlight Springs
Distribution, LLC:
Weston W. Reeves and Anna M. Reeves Olson, Park Street Law Offices, Casper,
Wyoming. Argument by Ms. Reeves Olson.
Representing Philippe Lajaunie and American Summits, LLC:
Larry B. Jones and Colin M. Simpson, Burg, Simpson, Eldredge, Hersh & Jardine,
PC, Cody, Wyoming; Brian K. Matise, Burg, Simpson, Eldredge, Hersh &
Jardine, PC, Englewood, Colorado. Argument by Mr. Matise.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.
[¶1] This dispute arose from an unsuccessful business venture involving the bottling
and sale of “premium bottled mineral water” by Beartooth Mountain Springs, LLC.
Philippe Lajaunie and Daren Singer were owners and co-managers of Beartooth.
Mr. Singer ran the day to day aspects of the business. In 2011, Mr. Lajaunie1 filed suit
against Mr. Singer 2 claiming that Mr. Singer had breached his fiduciary duties as a
manager and member of Beartooth. Mr. Singer responded with a counterclaim based on
a theory of promissory estoppel. He subsequently sought to amend the counterclaim to
allege a cause of action based on fraud.
[¶2] The district court granted summary judgment in favor of Mr. Lajaunie on
Mr. Singer’s counterclaim, and denied Mr. Singer’s motion to amend his counterclaim to
add a claim of fraud. In Docket No. S-14-0004, Mr. Singer challenges the district court’s
decisions on these motions. In the trial on Mr. Lajaunie’s claims, the jury awarded
$14,604.63 in damages. In Docket No. S-14-0005, Mr. Lajaunie seeks a new trial
contending that the district court admitted irrelevant evidence which improperly
influenced the jury and negatively impacted the jury verdict. We reverse and remand for
further proceedings in both dockets.
ISSUES
[¶3] In Docket No. S-14-0004, Mr. Singer presents these issues:
1. Did the district court err by granting summary
judgment to Mr. Lajaunie on Mr. Singer’s promissory
estoppel counterclaim?
2. Did the district court err in finding that Mr. Singer’s
proposed amended counterclaim would not withstand a
motion to dismiss?
3. Did the district court abuse its discretion when it
denied Mr. Singer’s request to delay consideration of
1
Mr. Lajaunie sued both in his personal capacity and in his capacity as a member of Beartooth. Our
references to Mr. Lajaunie in this opinion include both capacities unless otherwise noted. The other
plaintiff, American Summits, LLC, is a limited liability company. Mr. Lajaunie is a member and chief
executive officer of American Summits.
2
Also sued as defendants were Clark’s Fork Canyon Springs, LLC, and Sunlight Springs Distribution,
LLC. Mr. Singer is a member and the manager of both companies.
1
Mr. Lajaunie’s motion for summary judgment until after
discovery was completed?
[¶4] In Docket No. S-14-0005, Mr. Lajaunie presents issues that we summarize as
follows:
1. Did the district court abuse its discretion by admitting
irrelevant evidence that prejudiced Mr. Lajaunie?
FACTS
[¶5] In the 1980s and 1990s, Mr. Singer spent considerable time and effort analyzing
the water from springs located on his family’s ranch near Clark, Wyoming, and learning
how to operate a premium bottled water business. In 2005, he and his brother, Steve
Singer, acquired ownership of the ranch and placed it in a limited liability company,
Clark’s Fork Canyon Springs, LLC. They also formed Yellowstone Headwaters, LLC, a
company that hand-bottled spring water for sale.
[¶6] In 2006, Mr. Lajaunie, a restaurateur from New York, ordered some Yellowstone
Headwaters spring water. He had been interested for some time in establishing his own
brand of premium-quality bottled spring water, and found the Yellowstone Headwaters
product promising. He contacted Mr. Singer, and the two agreed to form a new business
venture. The parties formed Beartooth Mountain Springs, LLC, in 2007. Mr. Lajaunie
owned 40% of the company, Mr. Singer 30%, Yellowstone Headwaters 20%, and
Mr. Singer’s brother 10%. In exchange for their ownership interests, Mr. Lajaunie
contributed $300,000, and Mr. Singer and his brother contributed “knowledge, know
how, contacts, relationships and business acumen.” Yellowstone Headwaters contributed
access to the spring water.
[¶7] Mr. Lajaunie and Mr. Singer served as co-managers for Beartooth, but Mr. Singer
was responsible for running its day-to-day operations, and had control of Beartooth’s
bank accounts and financial records. The Beartooth office was located in Mr. Singer’s
home, and Mr. Singer used some of his personal vehicles when conducting Beartooth
business. Mr. Lajaunie took a more passive role. Shortly after Beartooth was formed, it
entered into a distribution agreement with American Summits, LLC. American was to
purchase bottled water from Beartooth for retail distribution.
[¶8] In 2008, Beartooth purchased Edelweiss, Inc., a company that owned and operated
a bar, convenience store, and gas station located near the Beartooth bottling plant in
Clark, Wyoming. Beartooth purchased Edelweiss to promote the spring water and as a
staging area for future shipments by truck. There was a lease agreement between
Beartooth and Edelweiss, but according to Mr. Singer, Edelweiss could never afford to
pay Beartooth because it never made a profit.
2
[¶9] In May of 2009, Beartooth was in need of additional funds, and its members
agreed to contribute more capital. Mr. Lajaunie agreed to contribute $74,376, but when it
came time to make the payment, Mr. Lajaunie gave himself credit for a $54,768 loan he
had previously made to Beartooth. As a result, his cash contribution was in the amount
of $19, 608.
[¶10] Also in 2009, Beartooth applied for a bank loan to allow it to expand its
operations. The bank, in reviewing the loan, sought information on potential markets and
sales. Mr. Lajaunie sent an email message stating, “in terms of volume, I guarantee one
truck a day (14,400 bottles), 5 days a week. . . . I can sign a yearlong recurrent Purchase
Order with no problem.” The loan of $875,000 was finalized in August of 2009. The
bank required Mr. Lajaunie to execute an unlimited personal guarantee of the loan, and
his company, American Summits, placed a $46,000 certificate of deposit as collateral for
the loan. In addition, Mr. Singer and his brother agreed to pledge the Singer Ranch as
collateral.
[¶11] Although Mr. Singer had anticipated that Mr. Lajaunie, through American
Summits, would begin purchasing Beartooth water soon after the distribution agreement
was finalized in 2007, the first order was not made until January of 2010. When the
water was delivered to New York, however, several bottles were frozen, and American
Summits refused to pay for the shipment. In September of 2010, American Summits
ordered another truckload of Beartooth water. When it arrived, American Summits again
refused to pay for the shipment. Mr. Lajaunie complained that the water had a musty
smell, labels were off, water levels were inconsistent, and the carbonation was irregular.
[¶12] At some point, because Beartooth was not doing well financially, Mr. Singer
formed Sunlight Springs Distribution, LLC, and planned to sell Beartooth water through
that company. Mr. Singer also planned for Sunlight Springs to loan Beartooth money to
allow Beartooth to make loan payments to the bank. Mr. Singer did not inform
Mr. Lajaunie about the creation of Sunlight Springs until several months after it went into
business.
[¶13] As mentioned above, Mr. Singer ran Beartooth’s day-to-day operations, and he
had control of Beartooth’s bank accounts and financial records. In June of 2010,
Mr. Lajaunie came to Wyoming to review Beartooth’s financial documents.
Mr. Lajaunie became concerned that Mr. Singer had been using Beartooth funds to pay
personal expenses. After discussing these concerns with Mr. Singer, Mr. Lajaunie claims
that Mr. Singer cut off his access to Beartooth’s financial records. Mr. Singer’s version is
that he took that step because Mr. Lajaunie had unilaterally charged Beartooth $4,500
“for his unwanted ‘bookkeeping services.’”
[¶14] The bank eventually foreclosed on Beartooth’s assets and collateral. Mr. Lajaunie
3
purchased the Beartooth assets from the bank, along with the Singer Ranch. As of the
date of trial, he was the owner of both.
[¶15] In his complaint, filed in March of 2011, Mr. Lajaunie claimed that Mr. Singer
breached his fiduciary duties by using Beartooth company funds to pay for insurance on
his personal vehicles, insurance and utilities for his home, and accounting services for
Clark’s Fork Canyon Springs. Mr. Lajaunie further contended that Mr. Singer had failed
to collect rent from Edelweiss, and that his creation of Sunlight Springs led to lost income
and business opportunities for Beartooth.
[¶16] As part of his counterclaim, Mr. Singer contended that Mr. Lajaunie’s statement,
“I guarantee one truck a day,” was a promise that induced Mr. Singer to take out the bank
loan and pledge the ranch as collateral. Mr. Singer asserted that Mr. Lajaunie had
breached the promise by failing to buy the water, ultimately causing Beartooth to default
on the bank loan and fail as a business. In September of 2012, Mr. Lajaunie moved for
summary judgment on Mr. Singer’s counterclaim, arguing that his “guarantee” was not a
promise, but only his prediction of the potential market for Beartooth water. He also
asserted that Mr. Singer could not have relied on his statement because it was made after
the loan application had been submitted. Mr. Singer opposed summary judgment on his
promissory estoppel claim, and also moved to amend his counterclaim to add a claim of
fraud and to include his brother as a counterclaimant.
[¶17] The district court held a hearing on the motions in January of 2013. Less than a
month later, Mr. Singer supplemented his opposition to summary judgment and motion to
amend the counterclaim with evidence purporting to show that although Mr. Lajaunie had
refused to pay for the two shipments of Beartooth water, he had actually sold that water
in his restaurants. Mr. Singer asserted that this provided further support for his
promissory estoppel and fraud counterclaims. In February of 2013, the district court
issued a ruling granting summary judgment in favor of Mr. Lajaunie on Mr. Singer’s
promissory estoppel counterclaim, and denying Mr. Singer’s motion to amend the
counterclaim.
[¶18] A three-day jury trial was held in May of 2013 on Mr. Lajaunie’s claims against
Mr. Singer. The district court had previously ruled on summary judgment that
Mr. Singer had breached his fiduciary duties by using Beartooth funds to pay for
accounting services for Clark’s Fork Canyon Springs, LLC. On this claim, the jury
awarded damages of $1,604.63 to Beartooth, but no damages to Mr. Lajaunie personally.
The district court had also ruled that Mr. Singer had breached his fiduciary duties by
interfering with Beartooth’s business opportunities when he formed Sunlight Springs
Distribution, LLC. On this claim, the jury awarded no damages. The jury found that
Mr. Singer had breached his fiduciary duties by using Beartooth assets to benefit
Edelweiss, Inc. It awarded $13,000 in damages to Beartooth, but no damages to
Mr. Lajaunie. The jury found that Mr. Singer had not breached his fiduciary duties by
4
using Beartooth assets to pay for home utility expenses or personal automobile expenses,
and it found that Clark’s Fork Canyon Springs and Sunlight Springs Distribution had not
been unjustly enriched by Mr. Singer’s conduct. The district court entered judgment in
accordance with the jury’s verdict. Both parties filed timely appeals.
DISCUSSION
A. Docket No. S-14-0004
1. Promissory Estoppel
[¶19] In his first issue, Mr. Singer challenges the district court’s grant of summary
judgment against him on his promissory estoppel claim. We review a district court’s
summary judgment decision using the following standard of review:
Summary judgment is appropriate when there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. W.R.C.P. 56(c); Metz
Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9,
39 P.3d 1051, 1055 (Wyo. 2002). “A genuine issue of
material fact exists when a disputed fact, if it were proven,
would establish or refute an essential element of a cause of
action or a defense that the parties have asserted.” Id.
Because summary judgment involves a purely legal
determination, we undertake de novo review of a trial court’s
summary judgment decision. Glenn v. Union Pacific R.R.
Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo. 2008).
Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d
125, 128-129 (Wyo. 2008). We consider the record from a viewpoint most favorable to
the party opposing summary judgment, giving to him all favorable inferences that can be
drawn reasonably from the facts set forth in the affidavits, depositions, and other material
properly appearing in the record. Lever v. Community First Bancshares, Inc., 989 P.2d
634, 637 (Wyo. 1999).
[¶20] Promissory estoppel is an equitable remedy for detrimental reliance upon a
promise that does not rise to the level of a formal contract. Michie v. Board of Trustees
of Carbon County School Dist. No. 1, 847 P.2d 1006, 1009 (Wyo. 1993).
“Promissory estoppel is a doctrine incorporated in the law of
contracts.” B & W Glass, Inc. v. Weather Shield Mfg., Inc.,
829 P.2d 809, 813 (Wyo. 1992). Its general theory is that,
“‘[i]f an unambiguous promise is made in circumstances
5
calculated to induce reliance, and it does so, the promisee if
hurt as a result can recover damages.’” Id. (quoting Goldstick
v. ICM Realty, 788 F.2d 456, 462 (7th Cir. 1986)). . . . The
elements of promissory estoppel are:
“(1) the existence of a clear and definite promise
which the promisor should reasonably expect to induce
action by the promisee; (2) proof that the promisee
acted to its detriment in reasonable reliance on the
promise; and (3) a finding that injustice can be avoided
only if the court enforces the promise.”
City of Powell v. Busboom, 2002 WY 58, ¶ 8, 44 P.3d 63, 66
(Wyo. 2002) (quoting Roussalis[ v. Wyoming Med. Ctr., Inc.],
4 P.3d [209,] 253 [(Wyo. 2000)]). The party asserting
promissory estoppel has the burden of establishing each
element under a burden of strict proof. Busboom, 2002 WY
58, ¶ 8, 44 P.3d at 66. The first two elements are questions of
fact for the fact-finder; the third element is a question of law
for the court. Id.; Loya v. Wyoming Partners of Jackson
Hole, Inc., 2001 WY 124, ¶ 22, 35 P.3d 1246, 1254 (Wyo.
2001).
Birt v. Wells Fargo Home Mortg., Inc., 2003 WY 102, ¶ 26, 75 P.3d 640, 651 (Wyo.
2003).
[¶21] Mr. Singer contends that Mr. Lajaunie made a clear and definite promise when he
informed the bank, in connection with the loan, that “in terms of volume, I guarantee one
truck a day (14,400 bottles), 5 days a week. . . . I can sign a yearlong recurrent Purchase
Order with no problem.” Mr. Lajaunie insists that the statement was not a promise, but
“only a prediction of what the market fortunes might bring when the facility was
operating and able to sell product to the nationwide market.”
[¶22] The district court ruled that, whether or not this statement and others constituted
clear and definite promises, Mr. Singer could not have relied upon them:
The evidence on this issue is scarce. An email from
Mr. Lajaunie to Mr. Singer . . . dated January 8, 2009 states,
“I guarantee one truck a day (14,400 bottles), 5 days a week,
with no distributor involved.” However, an email dated
February 24, 2009 from Mr. Lajaunie to Mr. Singer and [the
bank] states[,] “it is immensely helpful to know that the loan
6
was approved in principle, with an amount ($850K) that will
enable us to produce and ship a profitable flow of water.” . . .
From the dates of these emails, the Court will have to
agree with [Mr. Lajaunie] that the guarantee of one truckload
of water per day was made while the application for the loan
was already pending. [Mr. Singer] does not refute or clarify
timing in his brief, and consequently has not met his burden
of proof. Mr. Singer cannot claim he relied on this guarantee
after he already agreed to the [bank] loan.
We would agree with the district court that the evidence on this issue is “scarce.” There
is no question that a loan application was submitted by Beartooth, but the specific date of
that application has not been identified by the parties. Our review of the record has failed
to disclose the date of the application. While it appears that the email messages were sent
after the loan application process had begun, we are unable to ascertain the status of the
loan at the time the email messages were sent. It is undisputed that Mr. Singer agreed to
pledge the ranch as collateral, but from this record, we are unable to determine when that
decision was made.
[¶23] Mr. Singer ultimately must prove reliance if he is to succeed in his promissory
estoppel claim. However, it was Mr. Lajaunie who moved for summary judgment, and at
that point, he had the burden to prove that there were no genuine issues of material fact
regarding Mr. Singer’s reliance. Verschoor v. Mountain West Farm Bureau Mut. Ins.
Co., 907 P.2d 1293, 1297 (Wyo. 1995). As we have explained before, on a summary
judgment motion, the movant has the burden of establishing his prima facie case. Only
then does the burden shift to the opposing party to establish through “specific facts” that
a material question of fact remains. Sierra Club v. Wyo. Dep’t of Environmental Quality,
2011 WY 42, ¶ 25, 251 P.3d 310, 317 (Wyo. 2011).
[¶24] Mr. Lajaunie did not carry that burden. Mr. Singer contended that he relied on
Mr. Lajaunie’s January 8, 2009 email message when he agreed to pledge the Singer
Ranch as collateral for the Beartooth loan. In order to establish that there was no genuine
issue regarding detrimental reliance, it was incumbent upon Mr. Lajaunie to establish the
date of the loan application, and when Mr. Singer agreed to pledge his ranch as collateral.
The email messages relied upon by the district court are conclusive only if the terms of
the loan had been agreed to prior to the emails. Mr. Lajaunie did not produce any
evidence establishing the date of the loan application, whether any loan agreement had
been reached at the time of the emails, or when Mr. Singer made the decision to pledge
the ranch as collateral. It may be that Mr. Lajaunie can supply the missing dates and
establish that he is entitled to summary judgment in this case. On the record before us
now, however, we must conclude that the district court erred in granting summary
judgment on the promissory estoppel claim.
7
2. Motion to Amend Counterclaim
[¶25] As his second issue, Mr. Singer contends that the district court erred when it
denied his motion to amend the counterclaim to add a claim of fraud and to add
Mr. Singer’s brother as a counterclaimant.
The law in Wyoming is well settled that the decision to
allow amendment to pleadings is vested within the
sound discretion of the district court. That decision
will be reversed only for an abuse of discretion shown
by clear evidence.
Ekberg v. Sharp, 2003 WY 123, ¶ 9, 76 P.3d 1250, 1253
(Wyo. 2003). Leave to amend pleadings “shall be freely
given when justice so requires.” W.R.C.P. 15(a). We have
identified the “proper test as to what the trial court should
consider when an amendment is proffered” to be the
following:
“*** If the underlying facts or circumstances relied
upon by a plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his claim on
the merits. In the absence of any apparent or declared
reason – such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment,
etc. – the leave sought should, as the rules require, be
‘freely given.’ ***”
Beaudoin v. Taylor, 492 P.2d 966, 970 (Wyo. 1972) (quoting
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9
L.Ed.2d 222 (1962)).
Armstrong v. Hrabal, 2004 WY 39, ¶ 11, 87 P.3d 1226, 1230-1231 (Wyo. 2004). The
same standard applies when a counterclaimant seeks to amend a counterclaim. See
Hawkeye-Security Ins. Co. v. Apodaca, 524 P.2d 874, 879 (Wyo. 1974) (A counterclaim,
“because it asks for affirmative relief, casts plaintiff-type burdens upon the
counterclaimant.”).
[¶26] The elements of fraud are:
8
(1) the defendant made a false representation intended
to induce action by the plaintiff; (2) the plaintiff
reasonably believed the representation to be true; and
(3) the plaintiff relied on the false representation and
suffered damages.
Birt, ¶ 42, 75 P.3d at 656. In order to prove intentional
misrepresentation, the plaintiff must show that the
misrepresentation was made intentionally, with knowledge of
its falsity, or that the maker of the misrepresentation was at
least aware that he did not have a basis for making the
statement. Id.; Restatement (Second) of Torts § 526 (1977).
Fraud must be proven by clear and convincing evidence, as
opposed to by a preponderance of the evidence for negligent
misrepresentation claims. Birt, ¶ 42, 75 P.3d at 656. Fraud
must be pled with particularity. W.R.C.P. 9(b).
Excel Construction, Inc. v. HKM Engineering, Inc., 2010 WY 34, ¶ 33, 228 P.3d 40, 48-
49 (Wyo. 2010).
[¶27] The proposed fraud counterclaim rested on essentially the same statements that
were at issue in the promissory estoppel counterclaim, including Mr. Lajaunie’s
“guarantee” of purchasing a truckload of water per day. Mr. Singer also alleged that
Mr. Lajaunie planned to take over Beartooth from the very beginning of their
relationship, and took actions intended to force Beartooth to default on its bank loan,
ultimately leading to Mr. Lajaunie’s purchase of the Beartooth assets and the Singer
Ranch.
[¶28] The district court’s decision to deny the motion to amend the counterclaim was, in
large measure, tied to its grant of summary judgment on the promissory estoppel claim.
That decision was based on the district court’s conclusion that Mr. Singer could not
establish detrimental reliance on Mr. Lajaunie’s statements. The district court concluded
that the fraud claim would fail for the same reason, and, in part, denied the motion to
amend on the basis of futility. As previously discussed, however, the district court erred
in concluding that there was no genuine issue of material fact with regard to Mr. Singer’s
reliance on the statements. Accordingly, the district court’s decision denying the motion
to amend the counterclaim must also be reversed.
[¶29] We also note that Mr. Singer sought to add his brother as a counterclaimant
because, like Mr. Singer, the brother held a 50% ownership interest in the Singer Ranch
and allegedly agreed to pledge his 50% interest as collateral for Beartooth’s bank loan in
reliance upon the statements by Mr. Lajaunie. This issue became moot when the district
9
court granted summary judgment on the promissory estoppel claim and denied the motion
to amend the complaint. In light of our decision, this issue is no longer moot and must be
addressed by the district court on remand.
3. Premature Summary Judgment
[¶30] Mr. Singer’s final claim is that the district court erred by granting summary
judgment before the completion of discovery. Because we have determined that the
summary judgment order must be reversed on other grounds, we do not consider this
third issue. We assume that on remand the district court will permit such discovery as is
reasonably necessary to address the fraud and promissory estoppel claims.
B. Docket No. S-14-0005
1. Inadmissible Evidence
[¶31] Mr. Lajaunie contends that the district court allowed Mr. Singer to introduce
irrelevant and prejudicial evidence at trial.
Generally, decisions regarding the admissibility of
evidence are entrusted to the sound discretion of the
district court. We afford considerable deference to the
district court’s decision and, as long as a legitimate
basis exists for the district court’s ruling, it will not be
reversed on appeal. Under the abuse of discretion
standard, our primary consideration is the
reasonableness of the district court’s decision. The
burden of establishing an abuse of discretion rests with
the appellant.
If we find that the district court erred in
admitting the evidence, we must then determine
whether or not the error affected [the appellant’s]
substantial rights, providing grounds for reversal, or
whether the error was harmless. The error is harmful
if there is a reasonable possibility that the verdict
might have been more favorable to [the appellant] if
the error had never occurred. To demonstrate harmful
error, [the appellant] must prove prejudice under
circumstances which manifest inherent unfairness and
injustice, or conduct which offends the public sense of
fair play.
10
Proffit v. State, 2008 WY 103, ¶ 12, 191 P.3d 974, 977-978 (Wyo. 2008) (internal
citations and quotation marks omitted).
[¶32] Before trial, the district court granted summary judgment in favor of Mr. Lajaunie
on his claims that Mr. Singer had breached his fiduciary duties by his use of Beartooth
funds to pay accounting expenses for Clark’s Fork Canyon Springs, LLC, and by creating
Sunlight Springs Distribution, LLC, without notice to Mr. Lajaunie. The district court
did not decide damages for these breaches, and did not decide whether Mr. Singer had
breached fiduciary duties by other actions. Consequently, as Mr. Lajaunie explains in his
brief, the issues remaining at trial were these:
1. [T]he amount of damages, if any, resulting from
[Mr.] Singer’s breach of his fiduciary duty by using
[Beartooth] funds to pay accounting expenses of his business,
[Clark’s Fork Canyon Springs, LLC];
2. [T]he amount of damages, if any, resulting from
[Mr.] Singer’s breach of his fiduciary duties by taking
advantage of business opportunities by creating [Sunlight
Springs Distribution, LLC,] without disclosure to [Mr.]
Lajaunie, and using the [Beartooth] trademark, “Sunlight
Springs,” for his new business;
3. Whether [Mr.] Singer breached his fiduciary duties by
using [Beartooth] funds to pay for his utilities, auto expenses,
insurance expenses, and similar personal expenses and if so,
the amount of damages;
4. Whether [Mr.] Singer breached his fiduciary duty by using
[Beartooth] property rent-free to operate a gas station, bar,
and convenience store that he owned know[n] as “Edelweiss,”
and if so, the amount of damages;
5. Whether [Mr.] Singer breached his fiduciary duty by using
[Beartooth] funds to pay for a trip to Mexico over
Thanksgiving, 2009, and if so, the amount of damages; and
6. Whether [Clark’s Fork Canyon Springs, LLC] or [Sunlight
Springs Distribution, LLC], or both, were unjustly enriched as
a result of Mr. Singer’s breach of fiduciary duty, and if so, the
amount of restitution that each should pay to [Beartooth].
Notably, at trial, Mr. Lajaunie expressly disclaimed any attempt to prove that Beartooth
11
had failed as a result of Mr. Singer’s breaches of fiduciary duty, and did not seek
damages for the value of Mr. Lajaunie’s lost investments, lost future profits, or other
consequential damages. Instead, Mr. Lajaunie sought damages only for the specific
breaches he alleged, and in the discrete amounts caused by such breaches.
[¶33] Because the issues were so limited, Mr. Lajaunie filed a motion in limine seeking
to exclude evidence relating to Mr. Singer’s dismissed counterclaim. In particular, he
moved to exclude evidence that he purchased the assets of Beartooth and the Singer
Ranch from the bank after the bank had foreclosed on those assets. He sought to exclude
evidence of his alleged “guarantee” to purchase Beartooth water, and evidence suggesting
that he had long held a scheme to take over the Beartooth business to the exclusion of
Mr. Singer. The district court indicated that it would limit Mr. Singer’s ability to elicit
testimony about these topics, although it suggested that it might allow an instruction
informing the jury that Mr. Lajaunie eventually purchased the assets. Mr. Lajaunie
contends, however, that the district court failed to exclude such evidence during trial
despite Mr. Lajaunie’s objections.
[¶34] Our first step in evaluating Mr. Lajaunie’s claim is to consider whether the
evidence was relevant and properly admitted, or was irrelevant and should have been
excluded. W.R.E. 402 provides that evidence “which is not relevant is not admissible.”
W.R.E. 401 defines relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
[¶35] As mentioned above, the issues at trial related to Mr. Singer’s alleged breach of
his fiduciary duties as a member of Beartooth. Evidence of Mr. Singer’s actions was
obviously relevant, because it tended to make it more or less probable that those actions
breached his duties of loyalty and responsibility to Beartooth. However, we agree with
Mr. Lajaunie that evidence of his conduct was not relevant.
[¶36] In his counterclaim and proposed amended counterclaim, Mr. Singer asserted that
Mr. Lajaunie breached a promise to purchase a truckload of Beartooth water per day, had
a long-held scheme to take over the Beartooth business, and purchased the Beartooth
assets after foreclosure. Even if true, however, those facts have no relevance to the
question of whether Mr. Singer breached his fiduciary duties. They do not justify or
explain Mr. Singer’s conduct, or make it more or less likely that Mr. Singer was acting
with the required loyalty and responsibility toward Beartooth. They have no tendency to
increase or mitigate damages. They do not provide a defense to the claims that have been
asserted. In sum, such evidence is not relevant.
[¶37] Mr. Singer does not make a serious claim that the evidence is relevant for any
particular issue. He contends that it is properly received as “background” and was
properly admitted because Mr. Lajaunie “opened the door” to such evidence. Mr. Singer
12
points out that, when one litigant offers evidence on an issue that is otherwise irrelevant
or inadmissible, he cannot complain on appeal “if the opposing party introduces evidence
on the same subject.” Francis v. Clark Equip. Co., 993 F.2d 545, 550 (6th Cir. 1993).
We have recognized that a litigant “may open the door to otherwise inadmissible
testimony when he inquires about a particular subject.” Roden v. State, 2010 WY 11,
¶ 14, 225 P.3d 497, 501 (Wyo. 2010). Mr. Singer maintains that Mr. Lajaunie opened the
door to evidence of his “guarantee” to purchase a truckload of Beartooth water per day
rendering such evidence relevant and admissible.
[¶38] At trial, counsel for Mr. Singer referred to Mr. Lajaunie’s email about the
guarantee, and asked Mr. Lajaunie, “Isn’t it true that you told [Mr. Singer] in terms of
volume you guaranteed a truck a day?” Counsel for Mr. Lajaunie objected, and the
district court excused the jury from the courtroom to allow argument on the objection.
The district court observed that “when we get into whether or not there was a particular
guarantee, then I think I need to know, before the jury can hear that, exactly how that
relates to the breach of fiduciary duties.”
[¶39] Counsel for Mr. Singer responded as follows:
We have heard from [Mr. Lajaunie] that he’s been
abused, that he’s been cheated, that he didn’t know what was
going on, he was apparently naïve, or distant; that this
program was hijacked from him, that he was cut off from
access to the company books. Because of his complaint about
[Mr. Singer’s] expenses and I think critical to the reasons for
. . . voting him out, the motivation for that, these clients’
thinking and response to his conduct relates directly to this
guarantee. . . .
What happened yesterday, I think, was really amazing.
We heard testimony that implies [Mr. Lajaunie] lost I don’t
know how many hundreds of thousands of dollars. It’s just
part of the general background.
You can’t, as a plaintiff, make po[t] shots like that and
say the business was hijacked. . . . You can’t do things like
that and then close the door.
Counsel for Mr. Lajaunie responded that the email “guarantee” was relevant only to the
dismissed counterclaim, and was irrelevant to the breach of fiduciary duty claims. He
continued:
13
Now, with regard to [counsel’s] argument that we
opened the door by presenting background information . . .
about Mr. Lajaunie’s investment in the business, the sole
purpose for that was to, number one, provide the jury with
background that he was in fact a voting member, was in fact
[a] manager, and is able to assert these claims in a derivative
capacity on behalf of Beartooth Mountain Springs here.
That doesn’t open the door to whether or not, in 2009,
he guaranteed a truckload a day. [That c]an’t excuse the
breach of fiduciary duty. It’s irrelevant to the claims
remaining and it’s highly prejudicial, I think, and it’s
confusing to the jury.
The district court then ruled:
You may not have opened the door, but you cracked a
window and you were looking out. I think, just in order to be
fair and to allow [counsel for Mr. Singer] to examine the
areas that you brought up, he can go in some of these
areas. . . . I’m going to allow you to proceed when we come
back with that question.
After the jury returned, the email “guarantee” was admitted into evidence.
[¶40] We have reviewed the record, and question the characterization of this testimony
by Mr. Singer’s counsel. More significantly, we are at a loss to understand how any
“background” testimony opened the door for admission of the challenged evidence.
Mr. Lajaunie was entitled to present evidence of the damages caused by Mr. Singer’s
breaches of fiduciary duty. By providing such evidence, whether it is viewed as
“background” or otherwise, he did not open the door to the admission of otherwise
irrelevant evidence concerning Mr. Lajaunie’s “guarantee.” That evidence does not have
any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable. Under the circumstances, it was not
reasonable to admit irrelevant evidence that might distract the jury from focusing on
Mr. Singer’s actions and allow Mr. Singer to try to shift blame onto Mr. Lajaunie. The
district court abused its discretion in admitting such evidence.3
[¶41] Having determined that the evidence was wrongly admitted, we must determine
3
We note that this evidence may be relevant and admissible if there is a new trial that includes
Mr. Singer’s promissory estoppel and fraud claims.
14
whether the error was harmful. The error is harmful if there is a reasonable possibility
that the verdict might have been more favorable to Mr. Lajaunie if the error had not
occurred. Proffit, ¶ 12, 191 P.3d at 977. Demonstrating harm can be a difficult task, but
Mr. Lajaunie has done so in this case. He points out that counsel for Mr. Singer, in
closing argument, reminded the jury of the erroneously-admitted evidence of
Mr. Lajaunie’s “guarantee.” He told the jury that Mr. Lajaunie “breached the deal” by
“not buying water, not buying water, not buying water.” He characterized Mr. Lajaunie’s
actions as “deceit” and “chiseling.”
[¶42] This emphasis on the irrelevant evidence seems reasonably likely to have
influenced the jury. The district court ruled as a matter of law that Mr. Singer had
breached his fiduciary duties by using Beartooth assets to pay for accounting services for
Clark’s Fork Canyon Springs, LLC, and by creating Sunlight Springs Distribution, LLC,
to take advantage of Beartooth’s business opportunities. The only question before the
jury on these claims was the amount of damages. On the first claim, Mr. Lajaunie
provided evidence of approximately $3,200 in damages. The jury awarded only
$1,604.63. On the second claim, evidence presented by Mr. Lajaunie would have
supported damages ranging from $34,000 to $61,000. The jury awarded no damages on
this claim. The jury found that Mr. Singer had breached his fiduciary duties on the claim
that Edelweiss had not paid rent to Beartooth. The evidence presented by Mr. Lajaunie
was that the rent should have been $2,800 per month, and went unpaid for 36 months.
Using straightforward multiplication, the jury could have found damages of $100,800. It
awarded $13,000.
[¶43] Mr. Lajaunie’s evidence on damages was not undisputed. We cannot be certain
why the jury chose lesser damages on these three claims. We can say, however, that it is
reasonably likely that the irrelevant evidence, admitted by the district court and
emphasized by Mr. Singer’s counsel in closing, contributed to that result.
CONCLUSION
[¶44] In Docket No. S-14-0004, we reverse the district court’s grant of summary
judgment in favor of Mr. Lajaunie on Mr. Singer’s promissory estoppel claim, and its
denial of Mr. Singer’s motion to amend his counterclaim. In Docket No. S-14-0005, we
reverse the judgment entered by the district court. The case is remanded to the district
court for further proceedings consistent with this opinion.
15 | 01-03-2023 | 12-10-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1360233/ | 606 S.E.2d 191 (2004)
Judy SKINNER, Plaintiff,
v.
QUINTILES TRANSNATIONAL CORP., Defendant.
No. COA04-15.
Court of Appeals of North Carolina.
December 21, 2004.
Roger W. Rizk, Charlotte, for plaintiff-appellee.
*192 Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Rosemary G. Kenyon, J. Mitchell Armbruster and Kathryn R. Valeika, Raleigh, for defendant-appellant.
THORNBURG, Judge.
Defendant appeals from an order denying their motion for judgment on the pleadings. Defendant moved for such a judgment based on the contention that the final judgment issued in the prior case Judy Skinner v. Quintiles Transnational Corp., Case No. 1:01-CV-01123, 2002 WL 32065740 (M.D.N.C.), entered on 19 March 2003, barred plaintiff's state claims under the doctrine of res judicata.
Plaintiff was employed by defendant for about six years, from April 1994 until October 2000, in various administrative positions, which required extensive amounts of typing. In early 1995, plaintiff began to experience pain in both of her arms. After a medical evaluation, plaintiff was diagnosed with bilateral ganglion cysts. Defendant provided plaintiff with a new mouse, a new chair with arm rests and occasional help from an assistant. Plaintiff's pain diminished.
In early 2000, plaintiff was promoted to the Information Technology Software Quality Control Department as the documentation processor. Plaintiff began to experience pain in her arms, hands and shoulders. After reporting this pain to defendant on 3 March 2000, plaintiff encountered problems with management in her department and eventually transferred to a different department. Despite repeated discussions with her managers, plaintiff was still given tasks that required extensive typing and computer work, which aggravated her condition. Plaintiff sought medical treatments and was diagnosed with ganglion cysts, torn ligaments in her right hand, tendinitis, bursitis and carpal tunnel syndrome. Plaintiff filed a workers' compensation claim for her condition in March 2000.
Plaintiff contacted defendant's human resources director in an attempt to find a position that would not require typing all day. Upon the director's recommendation, plaintiff sought training for an open Clinical Research Assistant position. On 19 October 2000, while in a training session, plaintiff was asked to attend a meeting with management. Plaintiff was informed that she was being laid off from her current position due to reduction in staff. Plaintiff was offered a new position as a Project Associate, which plaintiff felt she could not perform given the position's requirements and her medical condition. At the conclusion of the meeting, defendant told plaintiff that she had 24 hours to make a decision concerning the Project Associate position.
Plaintiff immediately went to the North Carolina Department of Labor to file an employment discrimination complaint under North Carolina's Retaliatory Employment Discrimination Act ("REDA"), N.C. Gen.Stat. § 95-240, et seq. (2003). An investigator for the Department of Labor contacted defendant's Human Resources Department to inquire about the status of plaintiff's employment. The investigator was told that plaintiff would not be required to accept or reject the new position within 24 hours and that plaintiff would, in fact, not have to respond until someone from defendant got in touch with plaintiff. Several weeks later, sometime in November 2000, plaintiff also filed a charge of discrimination with the United States Equal Employment Opportunity Commission, claiming that defendant had violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (2000). On 22 December 2000, plaintiff received her last paycheck from defendant. On 18 January 2001, defendant informed plaintiff that she had been terminated after she failed to accept the offered job position.
On 24 July 2001, plaintiff filed a complaint in the United States District Court for the Eastern District of North Carolina, alleging that defendant had violated provisions of the ADA in that defendant failed to provide reasonable accommodations for plaintiff's disability and had discharged plaintiff without accommodating her disability. On 17 December 2001, the matter was transferred to the United States District Court for the Middle District of North Carolina, due to the fact that all matters giving rise to the action occurred in Durham County and Durham County is located in the Middle District. *193 Defendant moved for summary judgment on all of plaintiff's claims. Summary judgment was granted and plaintiff's complaint was dismissed with prejudice on 19 March 2003.
Plaintiff commenced the instant action on 17 January 2003, alleging that defendant violated REDA in that defendant discharged plaintiff in retaliation for a work injury and her attempt to secure workers' compensation benefits. Defendant answered plaintiff's complaint and asserted as a defense that plaintiff's claim was barred by res judicata due to the final judgment of the District Court for the Middle District of North Carolina in the first case. Defendant then moved, pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(c), for a judgment on the pleadings based on the res judicata defense. This motion was denied on 4 September 2003. Defendant appeals.
"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." N.C. Gen.Stat. § 1A-1, Rule 12(c) (2003). The function of this section of the rule is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). In determining whether the trial court erred in its ruling on a Rule 12(c) motion, this Court applies the following standard:
A motion for judgment on the pleadings, or a Rule 12(c) motion, is proper when all the material allegations of fact are admitted on the pleadings and only questions of law remain. The movant must show, even when viewing the facts and permissible inferences in the light most favorable to the nonmoving party, that he is clearly entitled to judgment as a matter of law. Because judgment on the pleadings is a summary procedure and the judgment is final, the movant is held to a strict standard and must show that no material issue of fact exists.
DeTorre v. Shell Oil Co., 84 N.C.App. 501, 504, 353 S.E.2d 269, 271 (1987) (internal citations omitted).
Defendant argues on appeal that the trial court erred in concluding that plaintiff's claim was not barred by res judicata and, thus, erred in denying defendant's motion for a judgment on the pleadings.
We first note that an order denying a Rule 12(c) motion is interlocutory and that there is generally no right to appeal an interlocutory order. There are two exceptions to this general rule:
[F]irst, where there has been a final determination of at least one claim, and the trial court certifies there is no just reason to delay the appeal, [N.C. Gen.Stat. § 1A-1, Rule 54(b) (2003)]; and second, if delaying the appeal would prejudice a "substantial right."
Country Club of Johnston County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C.App. 159, 162, 519 S.E.2d 540, 543 (1999) (quoting Liggett Group v. Sunas, 113 N.C.App. 19, 23-24, 437 S.E.2d 674, 677 (1993)), disc. review denied, 351 N.C. 352, 542 S.E.2d 207-08 (2000). Defendant notes that this Court has held that the denial of a motion for judgment on the pleadings based on res judicata affects a substantial right and is immediately appealable. Clancy v. Onslow Cty., 151 N.C.App. 269, 271, 564 S.E.2d 920, 922 (2002). However, another panel of this Court has limited such interlocutory appeals to situations where the prior decision involved a jury verdict. Country Club, 135 N.C.App. at 167, 519 S.E.2d at 546. We need not attempt to resolve this apparent conflict, because we choose to exercise our discretion to hear this appeal pursuant to Rule 2 of the Rules of Appellate Procedure.
The doctrine of res judicata is intended to force parties to join all matters which might or should have been pleaded in one action. Clancy, 151 N.C.App. at 271-72, 564 S.E.2d at 922-23. Res judicata is a bar to subsequent action when there is a final judgment on the merits in a prior action, both actions involve the same parties and both actions involve the same cause of action. Id. at 271, 564 S.E.2d at 922. A final judgment bars not only all matters actually determined or litigated in the prior proceeding, but also all relevant and material matters within the scope of the proceeding which the parties, in the exercise of reasonable diligence, could and should have brought forward *194 for determination. Rodgers Builders v. McQueen, 76 N.C.App. 16, 22, 331 S.E.2d 726, 730 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986).
It is clear that there was a final judgment entered in plaintiff's federal claim and that plaintiff and defendant are the same parties as in the federal claim. However, the two actions do not involve exactly the same issue. Thus, the question becomes whether the instant action was a "relevant and material [matter] within the scope of the proceeding which [plaintiff], in the exercise of reasonable diligence, could and should have brought forward for determination." Id. Plaintiff contends that the instant claim is separate and distinct from the claim brought in the federal action. Plaintiff argues: (1) that claims under the ADA and REDA require proof of different facts, thus making them different claims; and (2) that plaintiff had no REDA claim to assert in the federal action because she had not received a right-to-sue letter from the North Carolina Department of Labor at the time of filing the federal action.
Our courts have not adopted the "transactional approach" to res judicata in which all issues arising out of a single transaction or series of transactions must be tried together as one claim. Bockweg v. Anderson, 333 N.C. 486, 493-94, 428 S.E.2d 157, 162-63 (1993). In Bockweg, the Court determined that res judicata was inapplicable because plaintiffs sought separate remedies for distinct acts of negligence leading to separate and distinct injuries. Id. at 496, 428 S.E.2d at 164. However, "[t]he defense of res judicata may not be avoided by shifting legal theories or asserting a new or different ground for relief...." Rodgers, 76 N.C.App. at 30, 331 S.E.2d at 735. In the instant action, while plaintiff has brought claims under two different statutes, her claims stem from the same relevant conduct by defendant. In the first complaint, plaintiff specifically alleged that:
28. The Defendant has violated [the ADA] by retaliating against the Plaintiff for filing her initial charge of discrimination by terminating the Plaintiff.
(Emphasis added). In the instant action, plaintiff alleged:
16. The [REDA] prohibits the discharge of an employee in retaliation for a work injury and an attempt by the employee to recover workers [sic] compensation benefits. The Defendant has violated the provisions of such act by terminating the Plaintiff in retaliation for her work related injury and her attempt to secure workers [sic] compensation benefits.
(Emphasis added). Further, the United States Magistrate Judge, in an opinion fully adopted by United States District Judge Frank W. Bullock, Jr., spent several pages discussing the termination aspect of plaintiff's ADA claim. It is clear that each of plaintiff's two claims are based upon her termination by defendant and that the instant action merely presents a new legal theory as to why plaintiff was terminated by defendant. See Rodgers, 76 N.C.App. at 30, 331 S.E.2d at 735.
However, before res judicata can bar the instant action, this Court must also decide whether plaintiff, with reasonable diligence, could and should have brought the claims included in the instant action with the first action. Plaintiff argues that she could not have included her current claims in the first action because she had not yet received a right-to-sue letter from the North Carolina Department of Labor.
"An employee may only bring an action under this section when he has been issued a right-to-sue letter by the [North Carolina Labor] Commissioner." N.C. Gen.Stat. § 95-243(e) (2003). N.C. Gen.Stat. § 95-242(a) (2003) requires the Commissioner of Labor to make a determination on a complaint no later than 90 days after the filing of the complaint. However, this Court has concluded that the time limit is not mandatory because the statute fails to provide any ramifications in the event the Commissioner fails to take action. Commissioner of Labor v. House of Raeford Farms, 124 N.C.App. 349, 477 S.E.2d 230 (1996). "An employee may make a written request to the Commissioner for a right-to-sue letter after 180 days following the filing of a complaint if the Commissioner has not issued a notice of conciliation *195 failure and has not commenced an action pursuant to G.S. 95-242." N.C. Gen.Stat. § 95-242(c) (2003).
The Commissioner did not issue plaintiff a right-to-sue letter until 23 October 2002. However, plaintiff filed her complaint on 21 October 2000, and was thus entitled to request a right-to-sue letter on or about 21 April 2001, before she filed the complaint in the original federal action. While the administrative investigation process set up under REDA is a valid and useful part of pursuing employment discrimination claims, plaintiff chose the path of litigation of her claims regarding her termination when she filed her original complaint. We do not believe, in this case, that requiring plaintiff to request a right-to-sue letter in order to bring all of her related claims in one action places an unnecessarily burdensome responsibility upon plaintiff. Thus, we conclude that, with reasonable diligence, plaintiff could and should have brought the claims that make up the instant action as part of her original federal action.
Defendant has shown that plaintiff's claims are barred by res judicata. Accordingly, we reverse and remand to the trial court to enter an order granting a judgment on the pleadings to defendant.
Reversed and remanded.
Judge GEER concurs in a separate opinion.
Judge LEVINSON concurs.
GEER, Judge concurring.
I concur with the foregoing opinion, but write separately to address further the fact that a right-to-sue letter had not yet been issued at the time plaintiff filed her ADA suit. Plaintiff's appeal places two policy considerations squarely in conflict.
On the one hand, dismissing this action based on res judicata would undermine the administrative scheme established by the General Assembly. By requiring the parties to proceed administratively before the Department of Labor prior to filing suit, the General Assembly-like Congress, before it, in enacting Title VII-recognized the value of having an administrative body investigate claims and, if appropriate, attempt to resolve them without the need for litigation.
On the other hand, the common law rule against claim-splitting is well-established in North Carolina and holds that "all damages incurred as the result of a single wrong must be recovered in one lawsuit." Bockweg v. Anderson, 333 N.C. 486, 492, 428 S.E.2d 157, 161 (1993) (emphasis omitted). To allow a person to seek damages for a termination of employment based on one theory and then, after an adverse decision on that theory, seek the same damages under another theory raises the specter of repetitive litigation, duplicative discovery, possibly inconsistent results, and no assurance of finality.
I believe the two policies must be reconciled. The question is whether the policy underlying REDA's administrative review process trumps traditional claim-splitting principles. In this case, as the majority opinion explains, plaintiff was permitted by state law to request a notice of right to sue in order to include the REDA claim in her federal lawsuit. If she preferred to continue the administrative process, she had the option, as defendant suggests, (a) to seek a stay of the pending action in order to allow completion of the administrative process or (b) to move to amend the complaint once the notice of right to sue was received. Plaintiff, however, took no steps at all to try to include the REDA claim in the pending action. Significantly, the federal district court did not enter summary judgment on plaintiff's ADA claim until 19 March 2003, five months after plaintiff received her notice of right to sue with respect to the REDA claim.
I would also observe that while North Carolina courts have not previously addressed the issue before this Court, numerous other courts have considered closely analogous circumstances and overwhelmingly have reached the same conclusion as this Court. See, e.g., Wilkes v. Wyo. Dep't of Employment Div. of Labor Standards, 314 F.3d 501, 506 (10th Cir.2002) (holding that a Title VII lawsuit was barred by res judicata since plaintiff could have requested a right-to-sue letter or sought to stay a prior Equal Pay Act lawsuit pending completion of the EEOC *196 administrative process), cert. denied, 540 U.S. 826, 124 S.Ct. 181, 157 L.Ed.2d 48 (2003); Churchill v. Star Enters., 183 F.3d 184, 193-94 (3d Cir.1999) (when a jury had rendered a verdict in a case alleging that plaintiff's termination violated the FMLA, plaintiff's second action challenging the discharge under the ADA was barred by res judicata; plaintiff should have requested a right-to-sue letter from the EEOC or sought a stay of the FMLA action pending receipt of the letter); Hapgood v. City of Warren, 127 F.3d 490, 494 (6th Cir.1997) (wrongful discharge ADA claim was barred by res judicata because of entry of summary judgment in a state court action alleging discharge in retaliation for workers' compensation claim even though plaintiff did not have right-to-sue letter from the EEOC; holding that plaintiff should have sought to amend the state complaint upon obtaining the letter), cert. denied, 523 U.S. 1046, 118 S.Ct. 1361, 140 L.Ed.2d 511 (1998).
Because I find these cases persuasive in balancing the conflicting policies, I join the majority opinion. I would, however, urge trial courts to view favorably motions to stay proceedings and motions to amend complaints in these circumstances. See Churchill, 183 F.3d at 194 ("We believe that district courts are likely to look favorably on applications for stays of FMLA proceedings while plaintiffs promptly pursue administrative remedies under Title VII and similar state laws and we urge them to do so."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360239/ | 375 P.2d 990 (1962)
Rex SUTTON, Plaintiff-Respondent,
v.
D. A. BROWN, Mrs. D. A. Brown, Brian Webb, Mrs. Brian Webb, Dale Peringer, Mrs. Dale Peringer, Melvin D. Brittain, Mrs. Melvin D. Brittain, Bert Bellis, Mrs. Bert Bellis, George T. Carr, Mrs. George T. Carr, Mark James, Mrs. Mark James, G. W. Selves, Mrs. G. W. Selves, George Hawkins, Mrs. George Hawkins, Park Gardner, Mrs. Park Gardner, Robert F. Goldsworthy, Mrs. Robert F. Goldsworthy, Jack Shaw and Mrs. Jack Shaw, Defendants-Appellants.
No. 9218.
Supreme Court of Idaho.
November 7, 1962.
*991 McNaughton & Sanderson, J. Ray Cox, Jr., Coeur d'Alene, for appellants.
J. Henry Felton, Lewiston, for respondent.
KNUDSON, Justice.
Respondent, Rex Sutton, commenced this action by complaint filed June 23, 1961, wherein he alleged that he purchased from the State of Idaho, during the 1940s, a water pipeline and diversion works on Cougar Creek, Bonner County, Idaho; that respondent's ownership of said pipeline and diversion works was contested in a case entitled "Rex Sutton, plaintiff vs. Les Tovey, J. E. Rosenberger, and Arthur Wilson, defendants" being case No. 7596, in the District Court, Bonner County, and it was therein decreed to be the property of respondent; that appellants have conspired together and have connected onto said pipeline belonging to respondent; that they have damaged respondent in the sum of $10,000.00; that they refuse to disconnect from said pipeline and that respondent will be further damaged unless appellants are restrained from using respondent's pipeline and diversion works.
Appellants filed three motions (1) motion for more definite statements; (2) motion to drop all defendants but one or to specify alleged conspiring acts of each defendant, and (3) motion to strike (a) paragraph II of the complaint for the reason that it appears by the complaint that none of appellants was a party to suit No. 7596, and (b) the words "have conspired together" on the ground that they are mere conclusions of law and no acts of conspiracy are alleged.
Thereafter and prior to any consideration or disposition of the motions filed by appellants and prior to the filing of an answer by appellants, respondent filed motion for summary judgment. The trial court concluded that the pleadings, affidavits, records and files in the action did not show that there existed any issue of fact to be tried and granted said motion on June 4, 1962.
This appeal is from the judgment entered upon said motion.
The salient issue here presented requires that we determine if the trial court erred in so concluding.
The affidavits filed herein in support of, and in opposition to, the motion for summary judgment were executed by attorneys of record of the respective parties. With no intent of questioning the competency of either such affiants to testify as to the matters set forth in their respective affidavits (as required under I.R.C.P., Rule 56(e)) we consider it prudent to call attention to the possibility of an attorney, under such circumstances, being called to testify whereby his right to conduct the trial of his client's case, after appearing as a witness, may be questioned. However, the affidavits here involved are entitled to equal dignity.
In respondent's complaint it is alleged that he acquired title to the pipeline and diversion works by purchase from the State of Idaho, and that his ownership thereto was contested and determined in case No. *992 7596 hereinbefore mentioned. The affidavit of J. H. Felton filed in support of the motion states that "the defendants therein [referring to case No. 7596] represented the supposed rights of the defendants in this suit." By the affidavit of J. Ray Cox, it is denied that any of the rights of appellants in the present action was involved in said case No. 7596, and it is stated in said affidavit that the appellants in this action had no notice of any such suit which would affect their rights.
It is convincing that the trial court was substantially influenced by the findings and decree entered in said case No. 7596. Its entire record has been furnished for our examination.
The original complaint in said case named "The State of Idaho" as the only defendant. Under the second amended complaint (upon which the case was tried) only three individuals, to-wit: Les Tovey, J. E. Rosenberger and Arthur Wilson, are named as defendants. There is no allegation that they, or either of them, are made parties in any official capacity or as representatives of any person, corporation, organization or body politic. There is nothing whatever in said second amended complaint, or in the defendants' answer to indicate that the three defendants therein named are made parties in any capacity other than as individuals. In the findings of fact and conclusions of law or decree in said action there is no mention of or reference to the appellants in the instant case to indicate that they were in any respect involved in that action.
From a careful examination of the record in case No. 7596 we are unable to find, nor is our attention called to, any support for a conclusion that the defendants in that case were authorized in any respect to represent the appellants named in this action as to their claimed rights to the pipeline, diversion works or water rights there or here involved. Nor is there any showing that the defendants in case No. 7596 undertook to or did in any respect represent these defendants.
Notwithstanding the issue of fact created by said contradictory statements contained in the affidavits as to representation of parties, the court in the instant case found that "the defendants therein [case No. 7596] represented the supposed rights of the defendants in this suit." Such action of the court was not authorized. From such finding it must be assumed the court concluded that the defendants in this action had been represented in case No. 7596 and their rights to the subject of this lawsuit had there been adjudicated.
We do not agree with a contention that the judgment in case No. 7596 has any "res judicata or collateral estoppel effect" between the parties to the present action. In 6 Moore's Federal Practice, Second Edition, 2257-2258, the general rule applicable is stated as follows:
"Under general basic principles that control the grant or denial of summary judgment, a motion for summary judgment on the basis of a prior judgment should be denied if the prior judgment has no res judicata or collateral estoppel effect between the parties to the present action; or if there is a genuine issue of material fact as to the validity of the prior judgment, its scope and coverage, privity, or whether it was on the merits so that it is controlling in the case at bar."
On motion for summary judgment the court is authorized to determine whether there is an issue to be tried, but not to try the issue. Miller v. Miller, 74 App.D.C. 216, 122 F.2d 209; Ramsouer v. Midland Valley R. Co., D.C., 44 F.Supp. 523; Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657.
Fact allegations contained in an affidavit opposing a motion for summary judgment must be accepted as true. The affidavits and evidence presented must be liberally construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences which might reasonably be drawn from the evidence. *993 Mabe v. State, 83 Idaho 222, 360 P.2d 799; Carr v. City of Anchorage, 17 Alaska 116, 243 F.2d 482; 3 Barron & Holtzoff, Federal Practice & Procedure, 138, § 1235.
Considering the affidavits and record in accordance with said rules we find that a number of other issues of fact exist in this case, some of which are: (1) In Mr. Felton's affidavit it is asserted in substance that the defendants are leaseholders and as such they cannot acquire water rights in connection with their leases. This assertion is denied by the affidavit of Mr. Cox; (2) The supporting affidavit asserts that the water rights of the defendant lessees, are subject to the will of the State Land Commissioner; that defendants' established connections to the pipeline here involved were made by consent of the State Land Commissioner and such right is revocable at any time. The opposing affidavit denies such contention; (3) It is contended in Mr. Felton's affidavit that copies of defendants' leases have been admitted in evidence in this case. Mr. Cox denies that such leases have ever been admitted or have even been offered in evidence in this case; (4) In contradiction to the contention of respondent that defendants have no rights to the pipeline and water involved, the opposing affidavit states:
"that many of the defendants named in the present lawsuit had been using water for a long time prior to the time that the plaintiff herein ever saw the land in question, and that many of these defendants had connected to said pipe before Rex Sutton ever began to use it; that any rights that said Rex Sutton might have acquired in said line would, under law, be subsequent to those rights which were prior to his;"
In this regard it is further stated in said affidavit:
"Further answering said Affidavit this affiant states that the use of said water by all of the parties has been open and notorious at all times since the beginning of their use, and the only thing which gave rise to a formal claim was the demand by said Rex Sutton to remove their pipes from said pipeline."
In referenec to the finding by the court in case No. 7596, the affiant states:
"The Finding that he had exclusive right to the use of the diversion structure and pipes which he had used since the early 1940s, cannot defeat the rights of the defendants herein, who had been using water from said pipes for some time prior to the claim of Sutton, * * *"
Just what, if any, disposition was intended to be made of respondent's claim of conspiracy or for damages does not appear from the record. The only mention made in the findings of fact regarding said claim is that:
"No proof has been made upon any conspiracy or upon any damage alleged to have been sustained by the plaintiff."
No mention is made of either such claim in the conclusions of law and the decree. If respondent voluntarily waived or dismissed as to the allegations of the complaint regarding a conspiracy and damages, the record should be amended to show such action.
With one exception appellants' assignments of error challenge certain findings and the decree entered by the trial court, all of which have been hereinbefore considered. Under the remaining assignment it is contended that the court erred in assuming jurisdiction to adjudicate a claim of title to state lands in the case of Sutton v. Tovey, et al. (case No. 7596). We shall not consider said assignment for the reason that any issue as to the validity of the proceedings and judgment in that case is not before us.
We conclude that the trial court erred in holding that the record shows there is no issue as to any material fact.
*994 The judgment is reversed and the cause remanded for further proceedings consonant with the views herein expressed. Costs to appellants.
SMITH, C. J., and TAYLOR, McQUADE and McFADDEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360249/ | IN THE MATTER OF: A.E.
No. COA08-556
Court of Appeals of North Carolina
Filed October 21, 2008
This case not for publication
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for petitioner-appellee.
Mercedes O. Chut for respondent-appellant mother.
Levine & Stewart, by James E. Tanner III, for respondent-appellant father.
Pamela Newell Williams for appellee Guardian ad Litem.
GEER, Judge.
Respondents mother and father appeal from an order adjudicating their son, A.E. ("Andrew"), neglected.[1] We agree with respondents that the trial court failed to make sufficient findings of fact to support its adjudication of neglect. Specifically, the trial court's order lacks any determination whether Andrew suffered harm or was at a substantial risk of harm in respondents' care. We must, therefore, remand for further findings of fact.
Facts
In 2005, the Chatham County Department of Social Services ("CCDSS") assumed custody of respondents' two oldest children following a drug raid at their home. Those two children were later adjudicated neglected.
Andrew was born on 16 March 2006. When Andrew was one week old, CCDSS removed him from respondents' home and filed a juvenile petition, alleging that respondents' history of domestic violence, drug use, and drug dealing placed Andrew at risk of harm. After a permanent planning conference on 28 March 2006, Andrew was returned to respondents' custody.
In October 2006, an incident of domestic violence occurred between respondents. When CCDSS learned of this incident, it did not remove Andrew, but rather increased services to the family. Because of these services, the family began to make some progress, and in February 2007, Andrew's two older siblings were returned to respondents for a trial period.
On 15 March 2007, at about 10:00 p.m., Officer Kevin Dodson of the Siler City Police Department stopped respondents because of a suspicious license plate. In a search of the car, officers found a prescription pill bottle containing 101 Oxycontin pills in the name of James Howard, an empty prescription pill bottle in the name of Linda Alston, about a gram of marijuana residue, and some rolling papers. As a result of this stop, respondents were charged with fictitious registration plates, felony possession of Oxycontin, trafficking in Oxycontin, and misdemeanor possession of marijuana. On 16 March 2007, the day after the stop, CCDSS removed all three children from respondents' home.
On 20 March 2007, CCDSS filed a second petition regarding Andrew, alleging that Andrew was a neglected juvenile in that he did not "receive proper care, supervision, or discipline from [his] parent, guardian, custodian, or caretaker" and he "live[d] in an environment injurious to [his] welfare." CCDSS alleged that Andrew's parents had "a long history of domestic violence and drug use" and that his brother and sister had been removed from respondents' home following a drug raid at the home prior to Andrew's birth. CCDSS asserted that the second petition had been filed "as a result of the Respondent's [sic] having been recently charged with possession of marijuana and prescription drugs." CCDSS concluded that "[g]iven the Respondent's [sic] continuing use and/or sale of illegal drugs, and their obvious lack of progress, the juvenile is at risk in their custody."
At the adjudication hearing, beginning on 1 June 2007, the trial court heard testimony from two law enforcement officers regarding the traffic stop on 15 March 2007. Officer Phillip Cook, who searched respondents' car that day, testified that he was familiar with respondents because he had previously investigated their involvement in drug deals in Chatham County. Officer Cook testified that he had used undercover informants to purchase cocaine, marijuana, and Oxycontin from respondents in the past. The officer also testified that during the drug raid on respondents' home in 2005, officers found drug paraphernalia, tool sused to grow and cultivate marijuana, and a loaded gun hanging on the back of a door in reach of the children. CCDSS also called as witnesses respondent father's probation officer, a foster care social worker, and respondent mother's former employer.
Mr. James Howard, the person to whom the prescription found in respondents' car was written, testified on behalf of respondents. He stated that he employed respondent mother as a private nurse; that on 15 March 2007, she had driven him to an appointment earlier in the day; and that he had left his Oxycontin in the car by accident.
At the end of the first day of the hearing, the trial court decided to defer any further hearing until after the completion of the criminal proceedings. The District Attorney's Office ultimately dismissed all the drug-related charges against respondents.
When the abuse, neglect, and dependency hearing resumed, CCDSS called as witnesses two psychologists, the social worker who had previously testified, and a visitation supervisor. Respondents in turn offered the testimony of their individual therapists, respondent father's probation officer, and the family physician. The Guardian ad Litem also testified. On 29 February 2007, the trial court entered an order determining that Andrew was a neglected child and ordering that he be placed in CCDSS custody with supervised visitation. Respondents timely appealed to this Court.
Discussion
"The role of this Court in reviewing an initial adjudication of neglect and abuse is to determine (1) whether the findings of fact are supported by clear and convincing evidence, and (2) whether the legal conclusions are supported by the findings of fact." In re D.S.A., 181 N.C. App. 715, 717, 641 S.E.2d 18, 20 (2007) (internal quotation marks omitted). In a non-jury neglect and abuse adjudication, "'the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.'" Id. at 717-18, 641 S.E.2d at 21 (quoting In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997)).
I
Respondents first contend that the trial court's findings of fact are insufficient to support its adjudication of Andrew as a neglected juvenile because the trial court failed to make findings that there existed a risk of repeated neglect in the future if Andrew was left in respondents' care. The test recited by respondents, however, was adopted for termination of parental rights proceedings and not initial abuse, neglect, and dependency proceedings. See In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) ("We hold that evidence of neglect by a parent prior to losing custody of a child including an adjudication of such neglect is admissible in subsequent proceedings to terminate parental rights. The trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.").
In an abuse, neglect, and dependency proceeding, the trial court first determines whether the juvenile met the definition of a neglected juvenile under N.C. Gen. Stat. § 7B-101(15) (2007) at the time the petition was filed. That statute defines a neglected juvenile to be:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
Id. In this case, the trial court made sufficient findings of fact relating to whether Andrew met the statutory definition of a neglected juvenile.
The trial court's inquiry, in these cases, does not, however, end with the definition of a neglected juvenile. Our appellate courts have further held that "[i]n order to adjudicate a child to be neglected, the failure to provide proper care, supervision, or discipline must result in some type of physical, mental, or emotional impairment or a substantial risk of such impairment." In re C.M., 183 N.C. App. 207, 210, 644 S.E.2d 588, 592 (2007). The trial court has "'some discretion in determining whether childrenare at risk for a particular kind of harm given their age and the environment in which they reside.'" Id. (quoting In re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999)). Moreover, "[a]n adjudication of neglect may be based on conduct occurring before a child's birth." Id.
In this case, however, the trial court failed to make any finding that respondents' neglect had resulted in any impairment or substantial risk of impairment to Andrew. Because of the absence of such findings, we must remand for further findings of fact on that issue. See In re E.P., M.P., 183 N.C. App. 301, 307, 645 S.E.2d 772, 775-76 (upholding trial court's dismissal of juvenile petitions because there was no evidence that parents' substance abuse had harmed children or created substantial risk of harm), aff'd per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007).
Respondents contend that we should simply reverse the decision below since the record contains insufficient competent evidence of neglect at the time of the adjudication hearing. Respondents have focused on the wrong time frame. In an initial adjudication proceeding, in contrast to the dispositional stage, the trial court "is limited to a determination of the items alleged in the petition." In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 14 (2006) (holding that trial court did not err in concluding "that the relevant time period for adjudication was from the birth of the child to the filing of the petition"). Thus, the question presented by this case is whether Andrew was a neglected child at the time CCDSS took custody of him in March 2007. The record contains evidence that would support although not require such a finding of neglect. We, therefore, vacate the order and remand for further findings of fact.
II
Nonetheless, we must address respondents' further arguments regarding the trial court's findings of fact in order to determine which of the existing findings may properly still be considered on remand. Respondents both contend that the trial court erred in making findings regarding Andrew's siblings because their circumstances are not relevant to the question whether Andrew was a neglected juvenile.
This contention overlooks the portion of the statutory definition of a neglected juvenile providing that "it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home." N.C. Gen. Stat. § 7B-101(15). See In re A.S., ___ N.C. App. ___, ___, 661 S.E.2d 313, 320 (2008) (holding that trial court "was permitted, although not required, to conclude that [the juvenile] was neglected based on evidence that respondent had abused [other children]"); In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (holding that trial court properly considered parents' prior care of other children in making adjudication of neglect); In re E.N.S., 164 N.C. App. 146, 150, 595 S.E.2d 167, 170 (upholding adjudication of neglect that was based in part on "circumstances regarding respondent's oldest child being adjudicated neglected and dependent"), disc. review denied, 359 N.C. 189, 606 S.E.2d 903 (2004). Thus, in determining whether Andrew was neglected, the trial court could properly consider the prior neglect adjudication as to Andrew's siblings and the care given those children.
Respondents next argue that the trial court erred in incorporating by reference in its findings of fact the report of Dr. Karin Yoch. This Court has explained that "although the trial court may properly incorporate various reports into its order, it may not use these as a substitute for its own independent review." In re M.R.D.C., 166 N.C. App. 693, 698, 603 S.E.2d 890, 893 (2004), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005). Thus, because a trial court "may not delegate its fact finding duty[,]" a court "should not broadly incorporate . . . written reports from outside sources as its findings of fact." In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004) (emphasis added).
In this case, the trial court did not delegate its fact-finding responsibility. The court made the following finding of fact regarding Dr. Yoch and her report:
Dr. Karin Yoch, a psychologist, is recognized by this Court as an expert in psychology qualified to perform psychological evaluations. Dr. Yoch completed psychological evaluations on both Respondent mother and Respondent father. Her findings are included in a report submitted to the Court and the findings in her report are included herein as though fully set forth as Findings of Fact.
The trial court then continued its order with the following finding of fact: Based upon Dr. Yoch's report the Court specifically finds:
a) Respondent mother takes Percosets [sic] for back pain.
b) Respondent mother has a past history of marijuana use.
c) Respondent mother has significant mental health issues and personality traits which have interfered with her ability to profit from treatment to the degree necessary that she would be capable of parenting.
d) Respondent mother suffers from dysthymic disorder, panic disorder, obsessive compulsive disorder, specific phobias, cannabis dependence and paranoid personality disorder. These mental health issues impair her ability to parent.
e) Respondent father has "serious" substance and alcohol problems. He suffers from dysthymic disorder, anxiety disorder and anti-social disorder.
f) Respondent mother does not think smoking marijuana is bad.
g) Respondent mother takes no responsibility for her role in neglecting her children.
h) Respondent mother and Respondent father have been violent with each other in the presence of the children.
The trial court's incorporation of Dr. Yoch's report served the same purpose as if the court had summarized the contents of that report in order to describe the evidence before it _ much like an order's summarizing what a witness testified. Although the first finding of fact does state that "the findings in [Dr. Yoch's]report are included herein as though fully set forth as Findings of Fact[,]" which could be read as the delegation of fact-finding prohibited by J.S., the finding of fact appearing immediately afterwards demonstrates that the trial court did not just adopt Dr. Yoch's findings as its own findings of fact, but rather made independent findings of fact based on the evidence of Dr. Yoch's conclusions. Thus, although the drafting of the order could have been more precise, the trial court's incorporation of the report was not in error. See In re C.M., 183 N.C. App. at 212-13, 644 S.E.2d at 593-94 (holding that the trial court did not improperly incorporate the social worker's report, the GAL's report, and psychological evaluations when it set them out and then made subsequent independent findings).
Respondents also contend that many of the trial court's findings of fact are not supported by competent evidence. After careful review of respondents' contentions and the record, we agree that certain portions of the findings of fact are not supported by the evidence presently in the record.
First, in finding of fact 8, the trial court stated that "[t]here is no credible evidence before the Court that Respondent mother suffers from any of these ailments" for which respondent mother was prescribed Percocet. Respondent mother's physician Dr. Holt testified that he had prescribed Percocet for her when she complained of back pain and that she had been injured after some physical activity. The record contains no evidence from any other physician, or other witness competent to address this issue suggesting that respondent mother did not suffer from physical conditions warranting a prescription for Percocet. Given the record, the trial court's finding constitutes speculation.
In finding of fact 13, the trial court stated:
This family has a child protective services history dating back to the year 2000 prior to the birth of [Andrew]. Throughout this Child Protective Service history, the continuing and consistent issues have been domestic violence between the Respondents in the presence of the children; drug abuse and other drug activity including growing marijuana, selling and transporting drugs; maintaining firearms within reach of the juveniles; failure to provide needed services to the juveniles; lack of employment; lack of cooperation and assaultive behavior at school and at the mental health center; and poor parenting.
While the record contains evidence regarding specific incidents of the behavior described in finding of fact 13, the record does not support a finding that this behavior occurred continuously and consistently from 2000 through the date of the hearing. It appears that this finding may be founded on information contained in the court files for Andrew's siblings. The trial court did not, however, take judicial notice of those records, and they are not otherwise part of the record in this case. This finding of fact may be accurate, but it is not supported by the record as it currently exists in this case.[2] Respondent father challenges the portion of finding of fact 19(e) stating that he has "'serious' substance and alcohol problems." Respondent father argues that the record does not indicate that he has an alcohol problem. Although the record does support a finding that respondent father had serious substance abuse problems, the only reference to alcohol is in Dr. Yoch's report, where she stated that respondent father told her he drank when he was younger, but has little interest in alcohol now and does not drink. Thus, the evidence does not support a finding that respondent father has a serious alcohol problem.
We also agree that finding of fact 20 is not supported by evidence to the extent that it finds that respondent mother has "chosen not to seriously seek nor comply with intense, long-term treatment for [her] mental health and substance abuse issues." The record contains evidence indicating that respondent mother has attended therapy consistently for two years for her mental health issues and that she has participated in other group therapy, completed anger management training, and provided drug screens when requested by CCDSS, all of which produced negative results. Respondent mother's therapist also testified that she did not need further treatment "in the area of substance abuse" and characterized respondent mother's participation in therapy as "full and complete." We have found nothing else in the record that would support a finding that respondent mother did not seriously seek or comply with treatment for mental health and substance abuse issues.
Finally, respondents challenge findings of fact 6 and 7 regarding the traffic stop on 15 March 2007, which state:
6. After the car was stopped, it was searched, and traces of marijuana were found in the floor of the car, in the passenger seat and on the arm rest between the passenger seat and drivers [sic] seat, along with plastic baggies containing J & B rolling papers. Also found in the car was an empty pill bottle prescribed to Linda Alston for Oxycotin [sic]. The date of the prescription was March 2, 2007 and it was originally filled with 101 pills. Another pill bottle was found containing 181 Oxycotin [sic]. It was in the name of James Howard and it was filled on November 11, 2007. Respondent mother carried $680.00 in cash in her purse.
7. James Howard testified that he takes 180 Oxycotin [sic] pills each month due to chronic pain. It is unanswered by Respondents why a prescription filled on November 11, 2007 would still contain 181 Oxycotin [sic] pills and would be in the possession of Respondent parents. It is likewise unanswered by Respondent parents why a prescription for 101 Oxycotin [sic] pills prescribed on March 2, 2007 would be empty on March 15, 2007 and would be in the possession of Respondent parents. From this evidence, the Court can and does conclude that Respondent parents were illegally in possession of Oxycotin [sic].
Respondents acknowledge that the record contains evidence to support these findings, but argue that the evidence relied on by the trial court in making those findings was not competent because it was inadmissible hearsay. At the adjudication hearing, the officers who stopped and searched respondents testified that they found a prescription bottle bearing the name of James Howard and containing 101 Oxycontin pills, and another empty prescription bottle bearing the name of Linda Alston. The officers were not, however, able to remember the dates of either prescription, what Linda Alston's prescription was for, or what quantity of Oxycontin James Howard was prescribed. The trial court allowed one of the officers to telephone the Siler City Police Department to obtain that information. After making the phone call, the officer testified, over objection, that the sergeant in charge of the evidence room told him that the empty bottle with Linda Alston's name on it was filled on 2 March 2007 and was for 100 units of Oxycodone. He also testified that he was told that James Howard's prescription had been filled on 24 November 2006 and that it had been for 180 pills.
We agree with respondents that the officer's testimony regarding what the sergeant told him over the telephone was hearsay. See N.C.R. Evid. 801(c) ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). As such, it was inadmissible under N.C.R. Evid. 802 unless it fell within one of the exceptions to the hearsay rule. Neither CCDSS nor the GAL has pointed to any applicable exception, and we have been unable to identify one. The testimony was, therefore, inadmissible. See, e.g., In re Mashburn, 162 N.C. App. 386, 391, 591 S.E.2d 584, 588 (holding testimony as to what victim told witness during the witness' investigation of the crime was inadmissible hearsay), appeal dismissed, 603 S.E.2d 884 (2004); Thomas v. State Bd. of Alcoholic Control, 258 N.C. 513, 515, 128 S.E.2d 884, 886 (1963) (holding testimony by officers as to what accused told them when they stopped him was inadmissible hearsay). As a result, findings of fact 6 and 7 are unsupported by competent evidence to the extent they recite the dates that the prescriptions were filled, the drug in the Alston bottle, and the amounts originally contained in the bottles.
As to the other findings of fact assigned as error which include those relating to respondents' progress in therapy, their parenting skills, their psychological disorders, their history with CCDSS, their attitudes toward drugs and tendencies for violence, the credibility of respondents' witnesses, and the circumstances surrounding the stop on 15 March 2007 our review of the record shows that they are supported by competent evidence. Respondents have challenged the trial court's determinations regarding credibility, the weight given various pieces of evidence, and the inferences to be drawn from the evidence. As to the inferences, our review of the evidence reveals that they were reasonable. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365-66 (2000) ("If different inferences may be drawn from the evidence, the trial judge must determine which inferences shall be drawn and which shall be rejected."). With respect to the credibility and weight determinations, those issues are solely for determination by the trial court. Id., 539 S.E.2d at 365. We note, however, that a number of these findings relate to events and circumstances that occurred subsequent to the filing of the petition. Although those findings are relevant to the disposition stage of this case, they are not pertinent to the adjudication, except to the extent they reflect on Andrew's status as of the date of the petition.
Conclusion
In sum, we vacate the order and remand to the trial court for its determination whether Andrew was impaired or at substantial risk of impairment as a result of respondents' neglect as of the time the petition was filed. In considering this issue, the trial court is limited to those findings of fact we have held to be supported by competent evidence and any additional findings of fact it may make. We leave to the discretion of the trial court whether to accept further evidence on remand.
Vacated and remanded.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
NOTES
[1] The pseudonym "Andrew" has been used throughout the opinion to protect the privacy of the child and for ease of reading.
[2] The GAL, in arguing that finding of fact 13 is supported, relies on the allegations in the juvenile petition and the GAL report. The petition is not evidence and cannot constitute support for the trial court's findings of fact. See In re R.P.M., 172 N.C. App. 782, 787, 616 S.E.2d 627, 631 (2005) (stating petition is like a criminal indictment and its purpose is to give notice to juvenile and parents); In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004) (stating juvenile petition serves as the pleading). With respect to the GAL Report, it does not appear that the report was admitted with respect to the adjudication proceeding (as opposed to the disposition), although the record is not entirely clear. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360269/ | 667 S.E.2d 305 (2008)
D & R CONSTRUCTION CO., INC., Plaintiff,
v.
BLANCHARD'S GROVE MISSIONARY BAPTIST CHURCH, an unincorporated association; Trustees of Blanchard's Grove Missionary Baptist Church; Leon Holley, Chairman Trustee; Curtis Holley, Jr., Trustee; Samuel Easton, Trustee; and Barbara Holley, Trustee, Defendants. and
RBC Centura Bank, Additional Defendant.
No. COA08-94.
Court of Appeals of North Carolina.
October 21, 2008.
*306 Ericka Young James, Elizabeth City, for plaintiff-appellant.
Hornthal, Riley, Ellis & Maland, L.L.P., by M.H. Hood Ellis and L. Phillip Hornthal, III, Elizabeth City, for defendant-appellee.
STROUD, Judge.
Plaintiff appeals order and judgment allowing defendants' "Motion to Confirm and Enter Judgment on Arbitration Award" and denying plaintiff's "Motion to Vacate Arbitration Award and Demand for Trial De Novo." The dispositive issue before this Court is whether the arbitration was conducted pursuant to the correct law. For the following reasons, we affirm the order and judgment of the trial court.
I. Background
On 3 June 2003, plaintiff and Blanchard Grove Missionary Baptist Church ("Church") by Leon Holley, Curtis Holley, Jr., and Barbara Holley entered into a "Contractual Agreement" ("contract"). The contract read in pertinent part,
The parties, Blanchard Grove and Trustees ("Buyer(s)"), and D & R Construction Co., Inc ("Contractor"), in consideration for the promises and covenants made herein, agree that the Contractor shall build a new construction church sanctuary for the Owners, according to the terms set forth below:
. . . .
9. Arbitration: Any disagreement arising out of this Agreement or the application of any provisions thereof shall be submitted to an Arbitrator(s) not interested in the finances of the contract. The parties may agree on an Arbitrator, or may select one each and these two shall select a third. Any such arbitration award shall be binding and have the same weight and effect as a legal decision.
During construction of the church building, a dispute developed between plaintiff and defendants regarding payment. Plaintiff filed liens on defendants' real property, and on 3 August 2004, plaintiff filed a verified "COMPLAINT, MOTION TO STAY PENDING ARBITRATION, MOTION TO APPOINT ARBITRATOR AND MOTION FOR PARTIAL SUMMARY JUDGMENT[.]" (All caps in original.) In its complaint plaintiff brought claims for breach of contract, unjust enrichment, and a lien judgment on the property. Plaintiff also requested that the trial court stay the litigation pending arbitration, appoint an arbitrator, and grant partial summary judgment.
On 12 October 2004, defendants answered plaintiff's complaint alleging several defenses and counterclaiming for breach of contract. On 13 December 2004, plaintiff filed "MOTIONS, REPLY TO COUNTERCLAIM, AFFIRMATIVE DEFENSES AND THIRD PARTY COMPLAINT[.]" (All caps in original.) In July of 2005, RBC Centura Bank ("RBC") filed a motion to intervene as a defendant and an answer to plaintiff's complaint.
On 3 March 2006, the trial court by consent order allowed RBC to intervene, stayed the action pending arbitration, ordered disputes to be submitted to arbitration "in accordance with Section 9 of the June 3, 2003 `Contractual Agreement' between D & R Construction Co., Inc. and Blanchard's Grove Missionary Baptist Church and Article 45C of Chapter 1 of the North Carolina General Statutes[,]" appointed an arbitrator, and ordered costs of the arbitration to be split equally between plaintiff, the defendant Church, and RBC. Arbitration was held on 1 March 2007 and the arbitration decision was filed on 11 April 2007. The arbitration decision determined that plaintiff had breached its contract with defendants, and therefore plaintiff was not entitled to any recovery from defendants and its claims of lien were void. Based on plaintiff's breach, the arbitration award assessed damages in the *307 amount of "$62,422.56 with interest thereon at the rate of 8% per annum to run from February 14, 2004 until paid together with the costs of this action" to be paid by plaintiff to defendants.
On 2 May 2007, defendants filed a motion for confirmation of the arbitration award and entry of judgment in accordance with the award ("defendants' motion for confirmation of the award"). On 9 May 2007, plaintiff filed a "DEMAND FOR TRIAL de NOVO . . . and NOTICE OF SUBSTITUTION OF COUNSEL" ("plaintiff's motion for new trial") and a "MOTION TO VACATE ARBITRATION AWARD & NOTICE OF SUBSTITUTION OF NEW COUNSEL" ("plaintiff's motion to vacate"). (All caps in original.) On 22 May 2007, defendants filed a motion to deny and strike plaintiff's two motions and to impose sanctions ("defendants' motion to deny"). On 4 June 2007, a notice of hearing was filed regarding both of plaintiff's motions and defendants' motion to deny.
On 9 July 2007, a consent order was filed allowing plaintiff to substitute counsel and the trial court heard defendants' motion for confirmation of the award and both of plaintiff's motions. On 10 July 2007, the trial court entered its order which denied both of plaintiff's motions and allowed defendants' motion for confirmation of the award. Plaintiff appeals from the 10 July 2007 order. For the following reasons, we affirm the order and judgment of the trial court.
II. Law Applied at Arbitration
Plaintiff's first three arguments are all variations of the same issue: whether the arbitration was conducted pursuant to the correct law. Plaintiff first argues that "the trial court erred in refusing to hear any evidence from plaintiff on it's [sic] motion to vacate, including the testimony of a material witness present pursuant to subpoena, thereby violating plaintiff's substantive rights and preventing plaintiff's ability to establish a record for review." Plaintiff claims that its previous attorney, James Laurie ("Mr.Laurie"), was present to testify regarding "confusion as which set of rules would apply" at the arbitration. Plaintiff claims that this confusion arose because the construction contract was entered on 3 June 2003, when the
applicable arbitration statute in effect . . . was the Uniform Arbitration Act, now repealed. N.C. Gen.Stat. § 1-567.2 (2001). The arbitration statute in effect at the time the matter was brought before the courts was the Revised Uniform Arbitration Act ("RUAA"), under Chapter 1, Article 45C of the North Carolina General Statutes. Because the parties' contract predated the RUAA, and because the contract itself did not clearly specify the scope and terms of the arbitration, and did not specify the applicable rules for arbitration, the parties had to supply these terms post-contract.
"The law of contracts governs the issue of whether there exists an agreement to arbitrate. Accordingly, the party seeking arbitration must show that the parties mutually agreed to arbitrate their disputes." Burgess v. Jim Walter Homes, Inc., 161 N.C.App. 488, 490-91, 588 S.E.2d 575, 577 (2003) (citations omitted). However, in this case, plaintiff does not dispute that it agreed to submit the dispute to arbitration, and plaintiff did not appeal from the consent order which directed the case to arbitration. Plaintiff disputes only that it agreed to be bound by the Revised Uniform Arbitration Act, Article 45C, as opposed to the Uniform Arbitration Act, which was in effect at the time of entry of the construction contract.
In this case, the parties entered into two agreements to arbitrate: first, the construction contract in 2003, and second, the consent order in 2006. As plaintiff notes in its brief as to the specific rules to govern the arbitration, the "parties had to supply these terms post-contract[,]" and the parties did actually "supply these terms" in the consent order. Here the arbitration hearing was convened "pursuant to the Order of the Court filed on March 3, 2006, and consented to by the Parties." The Uniform Arbitration Act which was in effect in 2003 was Article 45A of Chapter 1. The 3 March 2006 consent order requires the arbitration to be "in accordance with . . . Article 45C of Chapter 1 of the North Carolina General Statutes." (Emphasis added.) The provisions of the order are clear and unambiguous. Any "confusion" *308 which an individual may have had about what rules would apply is not relevant, given the clear terms of the consent order. Martin v. Martin, 26 N.C.App. 506, 508, 216 S.E.2d 456, 457-58 (1975) (citations omitted) ("A consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties. Where the language of a contract is plain and unambiguous, the construction of the agreement is a matter of law; and the court may not ignore or delete any of its provisions, nor insert words into it, but must construe the contract as written, in the light of the undisputed evidence as to the custom, usage, and meaning of its terms.") We conclude that the trial court did not abuse its discretion in refusing to allow Mr. Laurie to testify as to the alleged "confusion" as such testimony would be irrelevant. This argument is meritless.
Plaintiff's next argument is closely akin to the previous argument in that plaintiff again claims there was confusion as to the applicable rules as "[a]rbitrator Michael announced in open court that he would be applying the Rules for Court Ordered Arbitration in North Carolina" instead of Article 45C of Chapter 1 of the North Carolina General Statutes. Plaintiff claims the arbitrator exceeded his authority "[b]y acting contrary to the express authority conferred" in the 3 March 2006 consent order. However, as we have already determined, the consent order directed that the arbitration be conducted pursuant to Article 45C of Chapter 1 of the North Carolina General Statutes. Plaintiff does not argue that the arbitrator failed to apply the provisions of Article 45C properly. This argument is also meritless.
Plaintiff finally contends that the "confusion" over which rules the arbitrator was applying resulted in "no meeting of the minds as to the application of the appropriate rules." Again, a meeting of the minds as to the applicable rules is evidenced by the 3 March 2006 consent order which required Article 45C of Chapter 1 of the North Carolina General Statutes to govern the arbitration proceedings. Plaintiff has not appealed from the consent order and has not alleged that there was any defect in the entry of the consent order, and thus this argument is also meritless.
III. Conflicting Law
Lastly, plaintiff contends that N.C. Gen.Stat. §§ 1-569.3(b) and -569.4(c) are in conflict with each other and incapable of being read harmoniously.
N.C. Gen.Stat. § 1-569.3 reads,
(a) This Article governs an agreement to arbitrate made on or after January 1, 2004.
(b) This Article governs an agreement to arbitrate made before January 1, 2004, if all parties to the agreement or to the arbitration proceeding agree in a record that this Article applies.
N.C. Gen.Stat. § 1-569.3 (2003).
N.C. Gen.Stat. § 1-569.4(c) reads,
(c) A party to an agreement to arbitrate or to an arbitration proceeding may not waive, or the parties shall not vary the effect of, the requirements of this section or G.S. 1-569.3(a) . . . . Any waiver contrary to this section shall not be effective but shall not have the effect of voiding the agreement to arbitrate.
N.C. Gen.Stat. § 1-569.4(c) (2003).
Plaintiff contends, "The provision at N.C.G.S. § 1-569.3(b) allows for waiver of the provision at N.C.G.S. § 1-569.3(a). In contrast, the provision at N.C.G.S. § 1-569.4(a)(c) [sic] prohibits the variance or waiver of the terms in the provision found at N.C.G.S. § 1-569.3(a)." We see no conflict between the two provisions. First, N.C. Gen.Stat. § 1-569.3(a) applies to agreements "to arbitrate made on or after January 1, 2004[;]" N.C. Gen.Stat. § 1-569.3(b) applies to agreements "to arbitrate made before January 1, 2004." N.C. Gen.Stat. § 1-569.3(a), (b) (emphasis added). Also, N.C. Gen.Stat. § 1-569.4(c) does not list § 1-569.3(b) as one of the "nonwaivable" provisions contained in Article 45C; it lists only subsection (a). See N.C. Gen.Stat. § 1-569(4)(c). In any event, the consent order to arbitrate in this case was entered after January 1, 2004; therefore N.C. Gen.Stat. § 1-569.3(b) is not applicable. Only N.C. Gen.Stat. § 1-569.3(a) applies, and the parties did not even attempt to waive any of the provisions of Article 45C, but instead *309 expressly agreed to their application. This argument is meritless.
IV. Conclusion
For the reasons as stated above, we deem all of plaintiff's arguments to be unsupported by the record and the law and without merit. We affirm the trial court order and judgment.
AFFIRMED.
Judges McGEE and McCULLOUGH concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360270/ | 380 S.C. 17 (2008)
667 S.E.2d 548
In the Matter of Deborah A. KOULPASIS, Respondent.
No. 26548.
Supreme Court of South Carolina.
Submitted August 11, 2008.
Decided September 29, 2008.
*18 Lesley M. Coggiola, Disciplinary Counsel, and Barbara M. Seymour, Deputy Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.
Desa Ballard, of West Columbia, for Respondent.
PER CURIAM:
In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel have entered into an Agreement *19 for Discipline by Consent (Agreement) pursuant to Rule 21, RLDE, Rule 413, SCACR. In the Agreement, respondent admits misconduct and consents to the imposition of any sanction provided for in Rule 7(b), RLDE, Rule 413, SCACR. We accept the agreement and suspend respondent from the practice of law in this state for two years, retroactive to the date of her interim suspension.[1] The facts, as set forth in the Agreement, are as follows.
FACTS
I. Guilty Plea
Respondent pled guilty to one count of breach of trust in an amount not less than $1,000 but not more than $5,000 related to taking fees paid in cash to her law firm and depositing them into her personal account. She was sentenced to two years in prison, suspended, and payment of court costs.
II. Domestic Matters
Respondent was hired to represent Client A in a divorce matter. The parties to the divorce agreed to mediation without the presence of their attorneys; however, the mediation process was unsuccessful because, according to the mediator, Client A was not adequately prepared or advised. From that point on, Client A had difficulty communicating with respondent. Client A fired respondent, at which time Client A learned that three months earlier respondent left the firm she was employed by and left Client A's file with that firm.
Respondent was hired to represent Client B in another divorce matter. For several months, respondent exchanged correspondence regarding settlement with Client B's husband and later with the husband's attorney. However, thereafter, Client B had difficulty communicating with respondent. Client B filed a pro se complaint for child support, which was granted at a hearing where she appeared unrepresented. Thereafter, respondent contacted Client B and advised her to hold off on any further action until one year of continuous separation had expired. However, Client B did not hear from *20 respondent after the time period expired. Client B fired respondent and asked for a refund of her fee. Respondent had left Client B's file with the law firm where she had been employed, and the law firm gave the file to Client B and refunded the fee.
Respondent was hired by Client C to represent him in a domestic matter. Respondent filed for an emergency hearing and filed a summons and complaint on Client C's behalf. Emergency relief was granted. Opposing counsel filed responsive pleadings, including a counterclaim. Respondent filed a reply. A temporary hearing was held. Respondent was in the process of trying to get opposing counsel to agree to a proposed order when she was fired by the law firm at which she had been employed. Respondent and the law firm wrote separate letters to Client C advising him of respondent's departure from the firm. The firm also sent a letter to Client C and opposing counsel advising that another attorney in the firm would be handling Client C's matter until Client C made a decision. Neither respondent nor the other attorney from the firm heard anything from Client C and assumed the other was handling the matter. The other attorney from the firm got the temporary order signed and filed, but took no further action. Neither respondent nor the other attorney from the firm moved to be relieved from the case. At Client C's request, respondent took the case back up and filed for a final hearing. That hearing was continued at least three times because of respondent's difficulties with her pregnancy and maternity leave. After the third continuance, respondent changed her membership in the South Carolina Bar to inactive status. She did not timely inform Client C or the court of her change in status. Thereafter, the court issued a 365 day notice. Client C then went back to the other attorney from respondent's former firm, who negotiated a new fee agreement and pursued the case to final decree.
Law
Respondent admits that by her conduct she has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (a lawyer shall provide competent representation to a client); Rule 1.3 (a lawyer shall act with reasonable diligence and promptness in representing *21 a client); Rule 1.4 (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, keep the client reasonably informed about the status of the matter, and promptly comply with reasonable requests for information); Rule 1.16(a)(2) (a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client); Rule 1.16(b)(1) (a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client); Rule 1.16(c) (a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation); Rule 1.16(d) (upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred); Rule 3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); Rule 8.4(a)(it is professional misconduct for a lawyer to violate the Rules of Professional Conduct); Rule 8.4(d)(it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(e)(it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).
Respondent admits her misconduct constitutes grounds for discipline under the following provisions of Rule 7, RLDE, Rule 413, SCACR: Rule 7(a)(1) (it shall be a ground for discipline for a lawyer to violate the Rules of Professional Conduct); Rule 7(a)(4) (it shall be a ground for discipline for a lawyer to be convicted of a crime of moral turpitude or a serious crime); and Rule 7(a)(5) (it shall be a ground for discipline for a lawyer to engage in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute).
*22 Conclusion
We find a two year suspension, retroactive to the date of interim suspension, is the appropriate sanction for respondent's misconduct. Accordingly, we accept the Agreement for Discipline by Consent and suspend respondent accordingly. Respondent shall not be eligible for reinstatement or readmission until she has successfully completed all conditions of her sentence, including, but not limited to, any period of probation or parole. Rule 33(f)(10), RLDE, Rule 413, SCACR. Within fifteen days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that she has complied with Rule 30, RLDE, Rule 413, SCACR.
DEFINITE SUSPENSION.
TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
NOTES
[1] Respondent was placed on interim suspension, with her consent, on June 26, 2007. In the Matter of Koulpasis, 374 S.C. 163, 648 S.E.2d 582 (2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360330/ | 667 S.E.2d 388 (2008)
MEMAR
v.
STYBLO et al.
No. A08A1054.
Court of Appeals of Georgia.
September 12, 2008.
*389 Edmond & Jones, Craig T. Jones, Atlanta, for appellant.
Allen & Weathington, Hunter S. Allen Jr., Carole M. Osborne, Samuel F. Doster, Atlanta, for appellees.
ANDREWS, Judge.
Does the five-year statute of repose in OCGA § 9-3-71(b) bar a medical malpractice action filed within the repose periodbut not brought by the real party in interestwhen the real party in interest is substituted as the proper party plaintiff after expiration of the repose period? On the present facts, we find that it does not.
Ali Memar was the plaintiff named in the caption of a complaint filed on June 6, 2002, which set forth two separate medical malpractice actions against Toncred M. Styblo, M.D. and others.[1] One action alleged that Dr. Styblo negligently caused the wrongful death of Memar's wife, Zeinab Broomand,[2] and another action alleged that Broomand's estate was entitled to recover for her pain and suffering prior to death and for medical and funeral expenses. See Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867, 463 S.E.2d 5 (1995) (actions for personal injury and for wrongful death arising out of the same alleged medical malpractice are separate and distinct causes of action even though asserted in the same complaint). This appeal concerns only the action seeking to recover damages for the estate.
Although no other entity was named in the caption of the complaint as a plaintiff along with Ali Memar, the substance of the complaint rather than the caption controls, and the substance of the allegations in the complaint shows that the separate malpractice action seeking to recover for Broomand's *390 pain and suffering prior to death and for medical and funeral expenses was brought by "the estate of Zeinab Broomand." Anderson v. Bruce, 248 Ga.App. 733, 735-736, 548 S.E.2d 638 (2001). The estate of Broomand, however, was not the proper party plaintiff to bring this action because "[a]n estate is not a legal entity which can be a party plaintiff to legal proceedings," and the exclusive right to bring an action on behalf of Broomand's estate resided in the estate's legal representative, executor, or administrator. Orange County Trust Co. v. Estate of Takowsky, 119 Ga.App. 366, 166 S.E.2d 913 (1969). Neither was Ali Memar the proper party plaintiff to bring the action for Broomand's estate when the complaint was filed in June 2002 because, at that time, he was not the legal representative, executor, or administrator of the estate. The record shows that, after Broomand died intestate in August 2001, her son, Farid Memar, was appointed administrator of her estate in a March 2003 probate court order. At that point, Farid Memar became the proper party plaintiff to bring an action for the estate, but he was never substituted as the plaintiff. After Farid Memar resigned as administrator of the estate, Ali Memar was appointed on July 20, 2006, as administrator of the estate by order of the probate court. On July 25, 2006, Ali Memar amended the complaint to show that, as administrator of the estate, he was bringing the malpractice action for the estate. On this record, Dr. Styblo and the two Emory defendants filed a motion for partial summary judgment in August 2006, seeking dismissal of the estate's malpractice action on the basis that it was barred by the five-year statute of repose in OCGA § 9-3-71(b).[3] This appeal is from the trial court's order granting the motion and dismissing the estate's action.
The statute of repose in OCGA § 9-3-71(b) provides that "in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred." The estate's action was filed in June 2002, within five years of any alleged negligent or wrongful act or omission which could have occurred during the period of time that Dr. Styblo treated Broomand from May 2000 to March 2001, but the July 2006 amendment substituting the estate's administrator as the party plaintiff was not filed until after the expiration of the five-year repose period. At issue under these circumstances is whether the estate's malpractice action was timely brought within the five-year repose period in OCGA § 9-3-71(b).
Although the Civil Practice Act requires that an action be brought by a real party in interest, it also allows "for amendment to substitute the real party in interest if incorrectly named." Block v. Voyager Life Ins. Co., 251 Ga. 162, 163, 303 S.E.2d 742 (1983); Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 540, 314 S.E.2d 903 (1984); OCGA §§ 9-11-9(a); 9-11-15(a); 9-11-17(a); Youmans v. Riley Properties, 180 Ga.App. 176, 177, 349 S.E.2d 1 (1986); Adams v. Cato, 175 Ga.App. 28-29, 332 S.E.2d 355 (1985). Even where, as here, the plaintiff initially bringing the complaint is not a legal entity capable of bringing suit, if the plaintiff "is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment." Block, 251 Ga., at 163, 303 S.E.2d 742 (allowing amendment to substitute the legal representative of the estate as the proper party plaintiff in place of the estate).[4] Under OCGA § 9-11-9(a),
[w]hen a party desires to raise an issue as to the legal existence of any party, the *391 capacity of any party to bring or defend an action, or the authority of a party to bring or defend an action in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
The failure to raise this issue in responsive pleadings does not automatically bar the party from raising it before or during trial, but the failure to do so prior to judgment results in waiver. Patterson v. Duron Paints of Ga., 144 Ga.App. 123-124, 240 S.E.2d 603 (1977); Adams, 175 Ga.App. at 28-29, 332 S.E.2d 355. Moreover, OCGA § 9-11-17(a) provides that
[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Here, Dr. Styblo and the other defendants first raised the real party in interest issue in their August 2006 motion for partial summary judgment filed after the repose period had expired and after the complaint was amended in July 2006 to reflect that Ali Memar, as administrator of Broomand's estate, was proceeding in that capacity to bring the estate's action. In light of the above Civil Practice Act provisions, we find that, even though the estate's malpractice action was not initially brought by the real party in interest in June 2002, the real party in interest was timely substituted in the action by the July 2006 amendment. Pursuant to OCGA § 9-11-17(a), this had "the same effect as if the action had been commenced in the name of the real party in interest."[5] The effect in this case is to merely allow an amendment to substitute the administrator of the estate as the proper party plaintiff in the same cause of action against the same defendants brought more than five years earlier in the name of the estate. Under these circumstances, the amendment did not require the defendants to defend against new claims first brought more than five years after the occurrence of the alleged negligent act or omission; therefore there was no erosion of the protection afforded by the five-year repose period in OCGA § 9-3-71(b). See Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 658, 437 S.E.2d 308 (1993) (identifying interests protected by the repose period in OCGA § 9-3-71(b)); compare Wesley Chapel Foot and Ankle Center v. Johnson, 286 Ga.App. 881, 650 S.E.2d 387 (2007) (after the five-year repose period in OCGA § 9-3-71 (b) had expired, this Court allowed the estate representative's pending medical malpractice action for injuries incurred during the decedent's life to be amended by adding a new medical malpractice action by the surviving spouse seeking wrongful death damages arising from the same alleged negligence).
Accordingly the estate's malpractice action was timely brought within the five-year repose period in OCGA § 9-3-71(b), and the trial court erred by dismissing the action. Rooks v. Tenet Health System GB, 292 Ga. App. 477, 664 S.E.2d 861 (2008).
Judgment reversed.
JOHNSON, P.J., and RUFFIN, P.J., concur.
NOTES
[1] The action was also brought against The Emory Clinic, Inc. and Emory Healthcare, P. C., d/b/a Emory University Hospital on the basis that these entities were liable for Dr. Styblo's alleged malpractice on the basis of respondeat superior.
[2] As Broomand's surviving spouse, Ali Memar was the proper party plaintiff to bring the malpractice action seeking recovery of wrongful death damages. OCGA § 51-4-2.
[3] Although the defendants' motion also sought dismissal of the action on the basis that the two-year statute of limitation in OCGA § 9-3-71(a) expired before the action was filed, this claim was withdrawn, and the sole issue on appeal relates to operation of the statute of repose.
[4] A misnomer of this nature may be corrected without leave of court before entry of a pretrial order pursuant to the liberal amendment provisions of OCGA § 9-11-15(a). Block, 251 Ga. at 163, 303 S.E.2d 742; U.S. Xpress v. W. Timothy Askew & Co., 194 Ga.App. 730, 731, 391 S.E.2d 707 (1990); OCGA § 9-11-15(a). Where the effort is not to correct a misnomer but to add or substitute a new party by amendment, OCGA § 9-11-15(a) must be read in pari materia with OCGA § 9-11-21, which requires a court order. Valdosta Hotel Properties v. White, 278 Ga.App. 206, 209-210, 628 S.E.2d 642 (2006).
[5] Since the real party in interest existed and was substituted prior to the trial court's judgment, this effect is not altered by the fact that no real party in interest with a legal right to bring the subject action existed until an estate administrator was appointed in March 2003, nine months after the action was filed in June 2002. See First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 655 S.E.2d 605 (2008) (discussing application of OCGA § 9-11-17(a) where no real party in interest existed at the time of the judgment). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360551/ | 589 F.3d 319 (2009)
In re LIFE INVESTORS INSURANCE COMPANY OF AMERICA; Aegon USA, Inc., Petitioners.
Anthony E. Gooch, Plaintiff-Appellee,
v.
Life Investors Insurance Company Of America and AEGON, Inc., Defendants-Appellants.
Nos. 09-5598, 09-5868, 09-6357.
United States Court of Appeals, Sixth Circuit.
Argued: November 19, 2009.
Decided and Filed: December 17, 2009.
*321 ARGUED: Markham R. Leventhal, Jorden Burt LLP, Miami, Florida, for Appellants. Thomas O. Sinclair, Leitman Siegal Payne & Campbell, P.C., Birmingham, Alabama, for Appellee. ON BRIEF: Markham R. Leventhal, Julianna Thomas McCabe, Richard J. Ovelmen, Jorden Burt LLP, Miami, Florida, Thomas H. Dundon, A. Scott Ross, Neal and Harwell, PLC, Nashville, Tennessee, for Appellants. Thomas O. Sinclair, Miles Clayborn Williams, Leitman Siegal Payne & Campbell, P.C., Birmingham, Alabama, Eric L. Buchanan, Eric Buchanan & Associates, Chattanooga, Tennessee, for Appellee.
Before: MARTIN, BOGGS, and COLE, Circuit Judges.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
In Case Number 09-5598, defendants-petitioners Life Investors Insurance Company of America and its parent company AEGON USA, Inc.[1] seek various forms of mandamus relief from the district court's orders and general case management approach. In Case Number 09-5868, the Company appeals the order of the district court enjoining the Company from continuing with the settlement process in a parallel class action in Arkansas state court. Finally, seven days prior to oral argument on Case Numbers 09-5598 and 09-5868, the Company filed a third appeal, Case Number 09-6357, this time taking issue with the district court's denial without prejudice of the Company's motion to dissolve a preliminary injunction. For the reasons set forth below, we DENY mandamus relief in No. 09-5598, REVERSE and VACATE the injunction in No. 09-5868, and AFFIRM in No. 09-6357.
I.
Because this case comes before us on interlocutory review, the facts do not provide the fixed target that we prefer when setting forth the factual and procedural history of a case on appeal. Thus, we provide only a brief summary of the allegations and an overview of where the litigation stands and then incorporate additional facts where necessary in the analysis.
The substance of this case revolves around how the Company administers supplemental "cancer only" insurance policies that it has sold to individuals, such as plaintiff Anthony Gooch, and specifically *322 how it calculates reimbursement for certain costs. Although some of the reimbursements provided under the policy are in fixed amounts, other reimbursements are keyed to the "actual charges"[2] incurred by the insured for certain services, such as radiation, chemotherapy, or ambulance transportation.
The Company contends that for several years it accepted, as proof of "actual charges," statements from hospitals and doctors that set forth "list prices" for a given treatment or service. The Company further contends that these "list prices" are pure fiction because they are not actually billed to anyone, and no one actually pays those prices. Instead, the Company contends, hospitals and doctors routinely agree to accept a lesser amount from the patient's primary insurer, similar to the difference between the sticker price for a car and the price that people actually pay for that car. Thus, the Company claims that it was erroneously providing windfalls to its customers by reimbursing them based on the list price when they actually only incurred costs based on the amount the doctor or hospital agreed to accept. The Company alleges that, after it realized this error during the course of an investigation into why premiums were rising, it changed its practice to require a showing of actual proof of loss for reimbursement. Now, the Company claims that instead of reimbursing the insured based on the list price, the Company reimburses based on whatever the medical provider agreed to accept as payment in full. The Company asserts that this is in complete accord with the terms of the insurance policies.
Gooch disagrees. In short, he contends that the policies require that the Company reimburse policyholders for the amount the medical provider says it is owed, regardless of whether the provider subsequently agrees to accept less from the insured's primary insurer. He further contends that, even if the provider agrees to accept less than its full price from an insurance company, the individual still remains liable for the difference. Thus, Gooch asserts that the Company breached its policy when it began refusing to reimburse for whatever amount the provider initially says that it is owed.
Gooch therefore brought this suit seeking declaratory, injunctive, and monetary relief from the Company's alleged breach of the insurance contract. He also seeks to pursue these claims on behalf of a nationwide class of individuals that had purchased identical policies from the Company. Gooch filed his complaint on March 30, 2007. The early months of the case saw a flurry of activity, including a motion to dismiss from the Company and motions for partial summary judgment on the meaning of the policy, a preliminary injunction, and class certification from Gooch. However, the case has languished for more than two years, with numerous partial or complete stays punctuated by random bursts of rulings, orders, and discovery. From our review of the docket sheet, it appears that a substantial amount of discovery and pretrial filings remains before this matter is ready for trial.
II.
A. Case Number 09-5598-Petition for Writ of Mandamus
In May of 2009, the Company petitioned this Court for a writ of mandamus. The issues for which the Company seeks mandamus relief may be broken up *323 into three general categories: (1) the district court's ruling granting partial summary judgment to Gooch on the interpretation of the policy, and its treatment of that ruling as "law of the case"; (2) the district court's decision to defer ruling on the Company's motion to dissolve a preliminary injunction, requiring the Company to continue reimbursing Gooch according to the old method, until a hearing on class certification and permanent class-wide injunctive relief; and (3) the district court's various discovery rulings, which the Company describes as one-sided. Before we address these three issues, however, we review the general standards concerning the availability of mandamus relief, taken from our recent decision in In re Professionals Direct Insurance Co., 578 F.3d 432 (6th Cir.2009):
This Court has authority to issue a writ of mandamus under 28 U.S.C. § 1651 and Federal Rule of Appellate Procedure 21. However, a writ of mandamus is an extraordinary remedy that we will not issue absent a compelling justification. Traditionally, writs of mandamus were used "only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Accordingly, "[t]he writ of mandamus is not to be used when the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction." Schlagenhauf v. Holder, 379 U.S. 104, 112, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). Rather, "only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). And, because mandamus is a discretionary remedy, a Court may decline to issue the writ if it finds that it would not be "appropriate under the circumstances" even if the petitioner has shown he is "clear[ly] and indisputabl[y]" entitled to it. Cheney v. U.S. Dist. Court, 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459(2004).
In evaluating whether to issue a writ of mandamus, we consider five factors:
(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired; (2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal after a final judgment; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order contains an oft-repeated error, or manifests a persistent disregard of the federal rules; (5) whether the district court's order raises new and important problems, or legal issues of first impression.
John B. v. Goetz, 531 F.3d 448, 457 (6th Cir.2008). Not every factor need apply (four and five tend to point in opposite directions, for example), but together they must present extraordinary circumstances to justify issuance of the writ. In re Perrigo, 128 F.3d 430, 435 (6th Cir.1997).
With narrow exceptions, a party has no right of appeal until after a final judgment on the merits, and mandamus is not intended to substitute for appeal after a final judgment. Thus, a court may only exercise its mandamus jurisdiction when a party is in danger of harm that cannot be adequately corrected on appeal and has no other adequate means of relief. The first two factors in *324 the five-factor test are aimed at preventing the end-run around the final judgment rule that might otherwise occur. And, as a result, courts generally ask whether the first two prongs of the test have been satisfied before addressing the merits of the errors alleged in the petition. See, e.g., In re Gregory Lott, 424 F.3d 446, 449-52 (6th Cir.2005).
578 F.3d at 437-38.
1. Rulings Regarding Interpretation of the Insurance Policy
The central issue in this case is whether the Company's new approach to reimbursements is permissible under the language of the policy. It is not surprising, then, that this issue is the primary motivator for the Company's request for mandamus relief. The Company complains about the manner in which the district court has gone about interpreting the policy. We set forth the facts relevant to this issue below.
The Company responded to Gooch's complaint by moving to dismiss[3] on the basis that the four corners of the insurance policy precluded Gooch's claim. Gooch responded and also cross-moved for partial summary judgment on the interpretation of the policy, for a preliminary injunction requiring the Company to continue reimbursing him under the old process, and for class certification. Gooch submitted a significant amount of evidence in support of these motions.
The Company argued that Gooch's motions were premature, and the district court agreed. It stayed discovery for the most part, subject to reopening if the court found that it needed evidence to rule on the meaning of the policy. The court further ordered that, if it denied the motion to dismiss, the Company's responses to Gooch's motions would be due 150 days after the court ruled on the motion to dismiss. We presume that this 150-day window was to allow the parties to conduct the discovery necessary to complete the briefing on Gooch's motions.
Relatively little occurred over the next seven months while the district court considered the Company's motion to dismiss. Then, on March 6, 2008, the court issued a ruling on several of the outstanding motions, including Gooch's class certification, partial summary judgment, and preliminary injunction motions that it had previously indicated were stayed. The upshot of this combined ruling was that the district court agreed with Gooch's interpretation of the insurance policy. Importantly, the court partially relied upon matters outside of the pleadings and the four corners of the policythe evidence submitted by Goochin coming to its conclusions, without having permitted the Company an opportunity to take discovery or offer any contradictory evidence.[4] The court therefore *325 denied the Company's motion to dismiss, granted partial summary judgment in favor of Gooch, and entered a preliminary injunction requiring the Company to reimburse Gooch under its prior procedures. The court also certified the class that Gooch sought to represent.
The Company reacted defensively. It quickly moved, on March 18th, to set aside the class certification[5] and, on March 20th, to set aside the partial summary judgment. Approximately one month later, on April 11th, the court held a status conference. During that conference, the court, for reasons that are not apparent from the record, stayed all discovery indefinitely and vacated all pending deadlines.
In February 2009, approximately ten months after the April 11, 2008 status conference, the court entered an order vacating the partial summary judgment that it had entered for Gooch approximately one year earlier and that the Company had sought to vacate eleven months earlier. Nevertheless, approximately one month later, during a March 2009 status conference, the court announced that, although it had vacated the partial summary judgment to Gooch on the interpretation of the policy (which it had arrived at by relying, at least in part, on evidence submitted by Gooch without the Company having had the opportunity to submit rebutting evidence), it intended to treat its interpretation of the policy as the "law of the case."
It is in light of this fact pattern that the Company makes its first and most vehement request for mandamus relief. It is clear from the Company's submissions on appeal that it is highly frustrated with the manner in which the district court has managed this case. We do not find the Company's frustration altogether unreasonable, although our review of the record from the district court leads us to believe that the Company itself is not completely innocent with regard to the disjointed manner in which this case has progressed.
But, in any event, frustration with the manner in which a district court is managing a case is not grounds for mandamus relief. Essentially, we are presented with (1) a premature entry of summary judgment that has now been mooted by a subsequent vacation of that summary judgment and (2) a court that indicates that it nevertheless intends to treat the substance of that mooted order, i.e. its reading of the insurance policy, as "law of the case." As to the first situation, the entry of partial summary judgment, mandamus relief is clearly inappropriate as the district court corrected its own error. Thus, we are left with the question whether the court's indication that it intends to treat its interpretation of the insurance policy as "law of the case" amounts to the wholesale "judicial usurpation of power" necessary to invoke our mandamus jurisdiction. In re Prof'ls Direct Ins. Co., 578 F.3d at 437 (citing Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)).
Based on our review of the record, we do not interpret the district court's statement as invoking the formal "law of *326 the case" doctrine.[6] Instead, we interpret it as being a sort of shorthand legal slang to signal that the court simply does not intend to revisit the issue of contract interpretation. When viewed in this light, we do not believe that mandamus relief is warranted. Even accepting the Company's position that the court's interpretation of the policy is incorrect (a matter on which we offer no opinion), all we would have before us is an incorrect interlocutory ruling by the district court. Stated differently, "the most that could be claimed" is that the district court erred on a matter within its jurisdiction, In re Prof'ls Direct Ins. Co., 578 F.3d at 437 (citing Schlagenhauf v. Holder, 379 U.S. 104, 112, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)), which is not a sufficient predicate for mandamus relief.
Turning to the five mandamus factors set forth by our prior cases, allegedly incorrect interlocutory rulings are common on direct appeal in civil casese.g., the court denies a motion to dismiss, the case goes to trial and results in a verdict, then we determine on direct appeal that the complaint indeed failed to state a claim and thus the district court incorrectly denied the motion to dismiss. Thus, under the first and second of the five mandamus factors, the relief sought by the Company is clearly available on direct appeal. Even more compelling, however, is the third mandamus factor, which asks whether the district court's order is clearly incorrect as a matter of law. First, there is currently no incorrect order to speak of, as the court vacated the partial summary judgment. Instead, the most we have is an allegedly incorrect interpretation of the policy, set forth in a now mooted order, and an indication that the court is not inclined to change its mind. And second, given the unsettled state of the pleadings and discovery, we cannot determine whether the district court's interpretation of the policy is correct or incorrect. It therefore follows that it is not currently clear that the court's interpretation is incorrect as a matter of law.
In sum, because the first three mandamus factors all cut strongly against issuing mandamus relief on the issue of policy interpretation, we decline the Company's request.
2. Deferring Ruling on the Motion to Dissolve Preliminary Injunction
The second matter for which the Company seeks mandamus relief is a preliminary injunction that the court entered at the same time that it denied the Company's motion to dismiss and prematurely entered summary judgment and class certification for Gooch. The injunction essentially requires that the Company continue reimbursing Gooch under its old method pending the outcome of the litigation. The court issued this injunction in March of 2008, but the Company did not seek immediate interlocutory appeal.
Almost one year later, the Company moved to dissolve the preliminary injunction.[7] Gooch did not immediately respond to the merits of the Company's motion. *327 Instead, he moved to combine briefing and ruling on the motion to dissolve with the already pending motions for class certification and for class-wide injunctive relief. The basis for Gooch's motion was as cavalier as it was candid: ruling on the motion to dissolve "may have the undesired effect of" allowing the Company to bring an interlocutory appeal under 28 U.S.C. § 1292. (Docket No. 244.)[8] In other words, Gooch was asking the court to delay ruling on the motion to dissolve in order to prevent the Company from having an immediate basis for appellate jurisdiction. The Company predictably responded that forestalling an appeal is not a proper basis for a court to defer ruling on a motion in due course. Nevertheless, the court granted Gooch's motion in July of 2009, thereby combining the motion to dissolve with Gooch's motions for class certification and class-wide injunctive relief. As of this writing, the court has not ruled on any of these motions, so the injunction remains in place.
Importantly, however, the court did not base its decision to defer ruling on the motion to dissolve on Gooch's rationale of staving off an appeal. Instead, the court stated "this motion is granted to the extent that the Defendants' motion to dissolve will be heard with the motion on class certification as these motions possess related issues." (Docket No. 308 (emphasis added).) Though the order does not indicate what these related issues are, we do not find it unreasonable to accept that such issues exist. Thus, it is apparent that the court did not grant the motion for the allegedly improper reason of preventing the Company from seeking interlocutory appellate review; it granted the motion for the wholly proper purpose of conserving judicial resources by considering related issues together. Because the district court did nothing improper in this respect, we have no basis to exercise our mandamus jurisdiction.[9]
3. Mandamus Relief as to Discovery Issues
The final matter for which the Company seeks mandamus relief is a generalized *328 grievance that the district court is ruling on discovery issues in a one-sided manner in favor of Gooch. As evidence of this general observation, the Company points to several discrete instances, such as when the Court partially lifted a discovery stay for Gooch but not for the Company or when the Court ruled on Gooch's discovery motions within days and failed to rule on the Company's motions for months. Gooch contends that the Company is mischaracterizing the proceedings in the district court and that the Company has earned any discovery adversity that it may face by virtue of its supposedly abusive approach to discovery.
But this is of little import because the Company has made no request for any particularized discovery relief amenable to our mandamus authority. In the context of discovery, mandamus is typically only available in those most extreme situations in which the district court has ordered a party to disclose something that it absolutely should not have to disclose. See, e.g., In re Prof'ls Direct Ins. Co., 578 F.3d at 443 (denying mandamus relief where party sought review of order requiring disclosure of information the party believed was protected by the work product doctrine); John B., 531 F.3d at 457 (granting mandamus relief when an erroneous discovery order likely would have required disclosure of confidential state information or private personal information unrelated to the lawsuit, and observing that "[t]his court has recognized that mandamus may be used as a means of immediate appellate review of orders compelling the disclosure of documents and information claimed to be protected from disclosure by privilege or other interests in confidentiality") (citations and internal quotations omitted). In other words, there typically must be a discrete discovery ruling that we can look to and find to be so incorrect and prejudicial as to justify exercising our mandamus jurisdiction.
Here, the Company does not point to any instances in which the district court has ordered it to produce information that is privileged or otherwise immune from disclosure. Nor does the Company point to any order denying it access to certain information. At most, the Company complains that the district court has thus far restricted its access to certain information, but there is no indication that the court has denied access to this information permanently, much less that this information is of such great magnitude to justify mandamus relief. Because we are not inclined to move into the practice of issuing generalized mandamus orders directing district courts to go forth and manage discovery correctly, we decline to grant the Company mandamus relief in this case.
B. Case No. 09-5868-Injunction of Settlement Proceedings in Arkansas State Court
1. Background Relevant to the Injunction
Gooch's case is not the only case in which the Company is being sued over its new approach to reimbursement under the policy. In fact, there are several cases pending in various state and federal courts across the country that advance the same general allegations and claims, some initiated before Gooch filed his complaint and some initiated after Gooch filed his complaint. One such case was filed in the Circuit Court of Pulaski County, Arkansas under the caption Runyan v. Transamerica Life Insurance Co., No. CV-09-2066-3.
The Runyan action was filed well after Gooch filed his complaint and encompasses class action allegations materially identical to those set forth in Gooch's complaint. In May of 2009, the Company notified Gooch *329 and the district court that it had reached a settlement in the Runyan action that would encompass all of the members of Gooch's putative class as well as Gooch himself. The Arkansas state court had already granted preliminary approval of the settlement and had scheduled a final fairness hearing to take place in July of 2009. The Company therefore moved the district court to stay the class action aspect of Gooch's claim. Gooch and his counsel responded with a flurry of pleadings opposing the Company's motion to stay the class-related claims, culminating in a June 23, 2009 "emergency" motion seeking injunctive relief under the All Writs Act, 28 U.S.C. § 1651(a), preventing the Company from going forward with the Runyan settlement.
The common theme of these various filings is Gooch's theory that the Runyan case is a sham engineered by the Company to gut the district court's unfavorable interpretation of the insurance policy. Gooch maintains that the settlement "is nothing more than the result of a `fire sale' by certain plaintiffs' lawyers who are looking more for a fee[purportedly more than $3.5 million (Docket No. 265 ¶ 4)]than they are for real relief to people dying of cancer while their insurance company commits fraud against them." (Docket No. 265 ¶ 8.) He theorizes that the Company recruited unscrupulous plaintiffs' attorneys in Arkansas by offering them a windfall in terms of attorneys' fees in return for filing the Runyan action in state court. Under Gooch's theory, immediately upon Runyan filing suit, the Company would consent to class certification and then join with Runyan in seeking approval of a class-wide settlement. Gooch's counsel portray the settlement as "an abuse of the judicial system and an egregious compromise of putative class members' due process rights" and as being "intended solely to divest this Court of its authority to preside over this national class action particularly where it ratifies the Defendants' breach in contravention of this Court's March 6, 2008 Orderand that the settlement is manifestly improper." (Docket No. 265 at 1-2.) Gooch therefore vigorously opposed the Company's motion to stay the class proceedings in the district court and later moved to enjoin the Company from proceeding with the Runyan settlement.
In his motion for injunctive relief under the All Writs Act, Gooch asked the district court to enjoin the Company from proceeding with final settlement of the Runyan action. Gooch argued that the injunction was "necessary in aid of [the court's] jurisdiction" and thus proper under the Anti-Injunction Act, 28 U.S.C. § 2283, which greatly curtails a federal court's ability to enjoin state court proceedings except in three enumerated circumstances. The district court agreed and, on July 24, 2009, issued an order enjoining the Company and all of those working for or with it from seeking final approval of the Runyan settlement. This order followed a ruling from the bench in which the court expressed its belief that an injunction was necessary and proper under the All Writs Act and Anti-Injunction Act to protect the court's jurisdiction over the claims of both Gooch and the class. In a later order regarding scheduling, the court indicated that:
The Court remains gravely concerned, however, about the apparent efforts by the Defendants to circumvent this Court's jurisdiction through the Arkansas state court litigation. The potential preclusion of the Plaintiff's claims and those of the class through the impending approval of the settlement agreement in the Arkansas state court on November 9, 2009 would effectively render moot this Court's jurisdiction. This Court *330 does not believe that such a result would be just in the face of the Defendants' apparent procedural gamesmanship and attempts to circumvent the jurisdiction of this Court. The Court expresses the hope that these issues may be addressed in time to prevent a possible substantive injustice against the Plaintiff and potential nationwide class through procedural tactics. These issues will be addressed upon the disposition of the pending writ of mandamus before the Sixth Circuit.
(Docket No. 364.) The Company sought interlocutory review of this injunction. We consolidated that appeal with the Company's already pending petition for a writ of mandamus and expedited briefing.
2. Analysis
The Company primarily contends that the Runyan injunction greatly exceeds the court's power under the All Writs Act as limited by the Anti-Injunction Act. The All Writs Act provides that Article III courts generally "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). However, what appears to be broad discretion and authority has been greatly circumscribed, both by case law and by statute. As then-Chief Justice Rehnquist stated in his capacity as Circuit Justice for the United States Court of Appeals for the District of Columbia Circuit, the All Writs Act generally should only be used "sparingly and only in the most critical and exigent circumstances." Wisc. Right to Life, Inc. v. Fed. Election Comm'n, 542 U.S. 1305, 1306, 125 S.Ct. 2, 159 L.Ed.2d 805 (2004) (Rehnquist, C.J., in chambers).
With regard to the ability of a federal court to intercede in state court proceedings using its authority under the All Writs Act, the Anti-Injunction Act provides that "[a] Court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. The district court issued its injunction pursuant to the "in aid of its jurisdiction" exception to the Anti-Injunction Act. "Whether the district court's injunction falls within the permissible limits of the Anti-Injunction Act is a question of law and we therefore review the matter de novo." Hatcher v. Avis Rent-A-Car Sys., 152 F.3d 540, 543 (6th Cir.1998).
We have previously observed that the "in aid of jurisdiction" exception applies only in "two scenarios: where the case is removed from the state court, and where the federal court acquires in rem or quasi in rem jurisdiction over a case involving real property before the state court does." Martingale LLC v. City of Louisville, 361 F.3d 297, 302 (6th Cir. 2004). Furthermore, "a simultaneous in personam state action does not interfere with the jurisdiction of a federal court in a suit involving the same subject matter." Roth v. Bank of the Commonwealth, 583 F.2d 527, 535 (6th Cir.1978). Because this case is not an in rem action and was not removed from state court, all we have here is a parallel in personam action in state court. Our prior precedents, cited above, plainly prohibit injunctive relief in this situation.
In his appellate briefing, Gooch all but concedes this point. He opens his discussion of the Runyan injunction as follows:
The issue ultimately presented in the Insurance Company's appeal of the District Court's injunction under the All Writs Act is whether a defendant should be allowed to collude with plaintiffs having *331 pending actions in other federal courts to effectuate a proposed settlement in a state court beyond CAFA's watchful eye to escape an adverse ruling in a District Court. Stated differently, the question is whether federal law allows corporate defendants now to engage in the same "drive by" certifications (but for settlement purposes) they once vilified and sought to stop through passage of the Class Action Fairness Act. It may very well be that federal law, at least for now, allows this to occur. But if the law presently allows this dangerously unjust result, then the law should be changed.
(Appellee's Br. at 63 (emphasis added).)
Gooch then goes on to argue that we should expand the scope of the "in aid of jurisdiction" exception to encompass the situation allegedly presented by the Company's settlement in the Runyan action.[10] In support, Gooch cites cases from other circuits that have allowed a third use of the "in aid of jurisdiction" exception under which federal courts can essentially take ownership of complex, typically class action, cases to the exclusion of the state courts.[11]
Even if we were inclined to expand our interpretation of the scope of the "in aid of jurisdiction" exception to the Anti-Injunction Act, we do not see this case as being an appropriate candidate for such an extraordinary move because of the combined impact of two critical facts. First, the Runyan class action is an opt-out class action and, indeed, Gooch has opted out of the settlement. Thus, it is impossible for the Runyan settlement to affect Gooch's rights or claims. Second, despite the motion for class certification pending for well over two years now, the district court still *332 has not certified a class. Where a district court has not certified a class, it necessarily follows that the court has no cause to take extraordinary injunctive measures to protect the interests of a class. When there is no risk of harm to a party's rights and no risk of harm to the rights of a class that does not exist, we see no reason to extend the reach of the All Writs Act beyond our prior precedents.
In sum, the Runyan injunction was not authorized under our case law and we find no compelling reason to extend our precedents here. The injunction should therefore be vacated.
III.
For the reasons set forth above, we DENY the Company's petition for a writ of mandamus in Case Number 09-5598. In Case Number 09-5868, we REVERSE the decision of the district court and VACATE the injunction of the Runyan action. We AFFIRM in Case Number 09-6357.
NOTES
[1] Life Investors Insurance Company of America now trades as Transamerica Life Insurance Company. For purposes of this opinion, we refer to this entity and AEGON collectively as the Company.
[2] The term "actual charges" comes directly from the insurance policy, and it is the meaning of this term that is the heart of this case.
[3] The Company captioned its motion as a "Motion to Dismiss or, in the Alternative, for Summary Judgment." The Company submitted documents and affidavits along with its motion, but only in support of a choice of law issue. Its argument on the interpretation of the insurance policy relied solely upon the text of the contract. The Company also indicated in its motion that it would not oppose the conversion of its motion into a motion under Rule 56 for summary judgment provided that it have the opportunity to supplement its motion with evidence.
[4] In its order denying the motion to dismiss, granting Gooch partial summary judgment, entering a preliminary injunction, and certifying the class, the court indicated that briefing on the summary judgment, injunction, and class certification motions was complete and that the issues were therefore ripe for decision. This was incorrect as the court had previously ordered that the Company's responses to Gooch's motions were not due until 150 days after it ruled on the motion to dismiss.
[5] The court set aside its prematurely issued class certification the next day, March 19th. However, the court only gave the Company forty-five days to respond to the motion to certify the class, as opposed to the 150 days originally provided. The Company complains that forty-five days was insufficient to conduct class discovery and respond to the motion. However, it appears that, as of today, the court still has not ruled on the class certification motion, more than one and one half years after it set aside its certification order, and class certification is not one of the issues about which the Company seeks mandamus relief.
[6] The Company is indisputably correct that the formal "law of the case" doctrine does not apply to this situation, as a district court may always reconsider and revise its interlocutory orders while it retains jurisdiction over the case. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed.Appx. 949, 959 (6th Cir.2004); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir.1991). Thus, it is not true that the court is bound to its interpretation of the contract in any legally preclusive sense.
[7] Gooch makes much of the fact that the Company did not initially appeal the preliminary injunction and tries to characterize the later motion to dissolve as merely an attempt to revive its right to appeal the initial grant of injunctive relief. However the Company's motion to dissolve is not premised upon the argument that the initial ruling was incorrect. Instead, the motion purports to be based on "newly discovered evidence" that would tend to show that Gooch is not facing financial hardship and has submitted false and fraudulent insurance claims.
[8] Citations to the docket refer to the docket entries in Gooch v. Life Investors Insurance Co. of America, Case No. 1:07-cv-16 (E.D Tenn.).
[9] After the Company petitioned this Court for a writ of mandamus and appealed regarding the injunction of the action in Arkansas state court, the district court entered an order indicating that it would not entertain certain pending motions until we rule on the mandamus petition and the appeal of the Runyan injunction. The court thus denied those motions without prejudice and placed the entire case on its administrative docket.
One of those motions was the Company's motion to dissolve the preliminary injunction. Apparently construing this denial without prejudice as a ruling giving rise to a right to seek immediate interlocutory review under 28 U.S.C. § 1292, the Company filed a third appeal, which the Clerk docketed on November 16, 2009 as Case Number 09-6357. As of this writing, Gooch has moved to dismiss for lack of appellate jurisdiction and the Company has responded, but no merits briefs have been filed.
Nevertheless, the basis for the Company's appeal is the denial without prejudice of the motion to dissolve, which the district court has expressly indicated that it will take back up upon the issuance of this opinion. Thus, there is no ruling on the merits of the motion to dissolve that we may review for an abuse of discretion, and we find no abuse of discretion in the court's decision to deny the motion to dissolve without prejudice pending the outcome of the Company's two previous appeals. We therefore assume jurisdiction and affirm the district court's order in Case Number 09-6357 to the extent that it does not prejudice the Company's right to a timely decision on the merits of its motion.
[10] Gooch also argues that, although it was not the basis for the district court's order, the Runyan injunction was also proper "to protect or effectuate [the district court's judgment]," which is another exception enumerated in the Anti-Injunction Act. The "judgment" that Gooch seeks to protect and effectuate, of course, is the district court's ruling on the meaning of the insurance policy. There are two problems with this argument. First, Gooch did not make the argument below and it was not the basis of the district court's decision, so it is not properly before us. And second, as stated above, the district court has since vacated its entry of partial summary judgment for Gooch, which was the font of the district court's interpretation of the policy, so there is no formal judgment to protect. Thus, the injunction is also improper under this alternative theory.
[11] These cases arise in materially distinguishable factual circumstances, namely when numerous cases have been consolidated by the Multi-District Litigation panel, the MDL judge has put forth considerable effort coordinating discovery or settlement discussions, and the state court action could potentially affect the federal class and federal settlement. For example, in In re Diet Drugs, 282 F.3d 220 (3d Cir.2002), a federal court issued an injunction in an MDL nation-wide class action enjoining a Texas state court order that would have acted to opt-out all unnamed members of the Texas class action from the MDL class settlement. The Third Circuit affirmed, stating that "[u]nder an appropriate set of facts, a federal court entertaining complex litigation, especially when it involves a substantial class of persons from multiple states, or represents a consolidation of cases from multiple districts, may appropriately enjoin state court proceedings in order to protect its jurisdiction" and "maintaining the federal court's flexibility and authority to decide such complex nationwide cases makes special demands on the court that may justify an injunction otherwise prohibited by the Anti-Injunction Act." Id. at 235. And, in Newby v. Enron Corp., 338 F.3d 467 (5th Cir.2003), the Fifth Circuit affirmed a federal order enjoining a state court case because the same issues and parties were involved in the consolidated MDL Enron securities litigation class action. In both of these cases, the federal court was overseeing a coordinated class action under the authority of the MDL panel. This case, however, is missing these two main attributes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360277/ | In The Matter of E.A.S.H.
No. COA08-438
Court of Appeals of North Carolina
Filed October 21, 2008
This case not for publication
Office of the Wake County Attorney, by Roger A. Askew, Al Singer, and Scott W. Warren, for Wake County Human Services, petitioner-appellee.
Anthony H. Morris, for guardian ad litem.
Sofie W. Hosford, for respondent-appellant mother.
Lisa Skinner Lefler, for respondent-appellant father.
WYNN, Judge.
Under N.C. Gen. Stat. § 7B-1111(a) (2007), a trial court may terminate parental rights upon a finding of neglect. Here, Respondents, mother and father, argue that the trial court erred in finding that their minor child was neglected and in terminating their parental rights. Because we find that the trial court's findings of fact are supported by clear and convincing evidence, and the findings of fact in turn support the conclusion that the minor child was neglected, we affirm.
Respondents are the biological parents of minor child E.H. On 8 June 2005, Wake County Human Services filed a petition alleging neglect and dependency of minor child E.H. The petition alleged that Respondent-father "is currently homeless and unable to provide care" for the minor child, and Respondent-mother "exhibits mental health problems that contribute to her inability to provide appropriate care" to the minor child. Additionally, the attachment to the petition alleged that a report was received on 8 June 2005 that Respondent-mother and the minor child were physically fighting at the school where Respondent-mother worked and Respondent-mother grabbed the child's face "and shook her head vigorously." An order was filed on 17 October 2005 adjudicating the minor child neglected and dependent.[1]
Wake County maintained legal custody of the minor child throughout subsequent hearings. For reunification to occur, the court ordered Respondents to attend individual counseling, have a psychiatric evaluation if recommended, maintain stable housing and employment, pay child support, comply with the rules of visitation, participate in the minor child's therapy, and cooperate with Wake County Human Services.
Respondent-mother began receiving individual counseling on a regular basis in 2006. Her psychologist, Dr. Adam Adams, testified that Respondent-mother "never endorsed any wrongdoing," and refused to be assessed for medication; therefore, he discontinued treatment. After Respondent-mother brought inappropriate items to her visits with the minor child, the trial court suspended Respondent-mother's visitation with the child by order entered 8 November 2006.
Timothy Wampler, Respondent-father's therapist, testified at the hearing that he had seen Respondent-father for approximately thirty-eight sessions, and although Respondent-father had been diagnosed with Major Depressive Disorder and Post-traumatic Stress Disorder, he had made good progress. However, after a report that Respondent-father was sexually aroused during a visit with the minor child, the court suspended Respondent-father's visits with the minor child by order entered 12 March 2007.
On 25 July 2006, the trial court ordered that reunification efforts with the minor child's parents should cease, and the permanent plan should be "adoption with a concurrent plan of custody with a court approved caretaker." On 18 September 2006, Wake County filed a motion for termination of parental rights of both parents. Respondent-mother petitioned to have the case removed to federal court, but removal was found to be improper and the case was remanded to state court.
After a termination hearing, the trial court terminated the parental rights of Respondents by order entered 7 February 2008. The court found as fact that: the child had not visited with her mother since July 2006 and her father since December 2006; since the removal of the child from Respondent-mother's home, there has been a dramatic, positive change in the child's behavior; the child has made major progress in therapy; the child is stable, and feels loved, safe, and protected; and although foster parents have nocurrent plans to adopt the child and no prospective adoptive family has been identified, she has been able to form a strong bond with her foster parents. The trial court concluded that sufficient grounds existed for the termination of parental rights. Specifically, the court found that both parents neglected the child by failing to comply with court orders or demonstrate the ability to meet the child's needs, and both parents willfully left the child in foster care for more than twelve months. Respondents appeal.
On appeal, Respondent-mother argues the trial court (I) erred by concluding that grounds existed to terminate her parental rights because there was no evidence of neglect or that she willfully left the child in foster care for more than twelve months; (II) abused its discretion by concluding that it was in the child's best interest to terminate her parental rights; and (III) lacked subject matter jurisdiction because the motion for termination of her parental rights failed to allege sufficient facts.
In his appeal, Respondent-father argues the trial court erred by concluding that (I) grounds existed to terminate his parental rights because there was insufficient evidence of neglect and insufficient evidence that he willfully left the child in foster care for more than twelve months; and (II) it was in the minor child's best interest to terminate his parental rights.
Respondent-Mother's Appeal
I.
Respondent-mother first argues the trial court erred by concluding that grounds existed to terminate her parental rights. Specifically, Respondent-mother argues that because she complied with most of the family services case plan, there was no evidence of neglect or that she willfully left her child in foster care for more than twelve months. We disagree.
In the adjudicatory stage of a termination of parental rights proceeding,
the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists. We review whether the trial court's findings of fact are supported by clear and convincing evidence and whether the findings of fact support the conclusions of law.
In re Anderson, 151 N.C. App. 94, 97-98, 564 S.E.2d 599, 602 (2002) (citations omitted). "Clear, cogent, and convincing evidence `is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases.'" In re A.D.L., 169 N.C. App. 701, 710, 612 S.E.2d 639, 645 (citing In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984), disc. review denied, 359 N.C. 852, 619 S.E.2d 402 (2005)).
A trial court may terminate parental rights upon a finding of neglect. N.C. Gen. Stat. § 7B-1111 (2007). A neglected juvenile is defined as one
who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juveniles welfare; or who has been placed for care or adoption in violation of law.
Id. § 7B-101. Although a prior adjudication of neglect may be considered by the trial court in ruling upon a later petition to terminate parental rights, "[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (citation omitted).
Here, Respondent-mother argues there was insufficient evidence of neglect at the time of the termination hearing because she complied with the case plan by attending visitations with the minor child, bringing the minor child snacks and gifts, and attending therapy sessions and parenting classes. Respondent-mother challenges, inter alia, the trial court's findings that Respondent-mother: did not successfully engage in individual counseling or have a psychiatric evaluation as ordered by her counselor, and therefore could not participate in the minor child's therapy; maintains that she does not have any mental health conditions other than stress brought about by the removal of the minor child from the home; failed to comply with some of the visitation rules and did not consistently demonstrate appropriate parenting skills during visitation; and has not attended a treatment team meeting since summer 2007.
After a review of the transcript and record, we find that the trial court properly considered the prior adjudication of neglect, the case history, and the current circumstances to find by clear and convincing evidence that the minor child was neglected. Indeed, Kimberly Newsome, the social worker assigned to the minor child, testified that Respondent-mother violated visitation rules in 2006 by initiating physical contact with the minor child on multiple occasions and giving the child Respondent-mother's phone number and address. Ms. Newsome also testified that Respondent-mother attended treatment meetings sporadically after her visitation was suspended. During treatment meetings she attended, rather than provide feedback, Respondent-mother would make "comments about people having lies and there being a conspiracy against her[.]" Additionally, Respondent-mother's psychologist, Dr. Adams, testified that Respondent-mother refused a psychiatric medication assessment, and because she failed to take responsibility for difficulty with her daughter, he had to discontinue treatment. Because Respondent-mother failed to participate in individual therapy, she could not participate in joint sessions with the minor child. These testimonies provided clear and convincing evidence to support the trial court's findings of fact, which in turn support its conclusion that the minor child was neglected.
"A finding of one statutory ground is sufficient to support the termination of parental rights. Upon a finding that at least one statutory ground for termination exists, the district court proceeds to the disposition stage[.]" In re A.D.L., 169 N.C. App. at 710, 612 S.E.2d at 645. Because we have found that the trial court did not err by concluding that the minor child was neglected, we will not address Respondent-mother's contention that the trial court erred by concluding that she willfully left her child in foster care for more than twelve months.
II.
Respondent-mother next argues the trial court abused its discretion by concluding that it was in the child's best interest to terminate her parental rights. We disagree.
In the dispositional stage of a termination of parental rights proceeding, the trial court "must consider whether terminating parental rights is in the best interests of the child. . . . We review the trial court's decision to terminate parental rights for abuse of discretion." In re Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602 (citations omitted). In determining whether terminating parental rights is in the child's best interest, a court must consider: (1) the age of the juvenile; (2) the likelihood of adoption of the juvenile; (3) whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile; (4) the bond between the juvenile and the parent; (5) the quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement; and (6) any relevant consideration. N.C. Gen. Stat. § 7B-1110 (2007).
Here, the trial court found that the minor child was nine years old at the time of the hearing, and although no prospective adoptive home has been identified, she had formed a strong bond with her foster family and feels loved, safe, and protected, and it is highly likely that she will be adopted. The trial court also found that the minor child has made major progress in therapy, and went from appearing socially backward to having many friends and considering herself to be popular. Finally, the trial court found that adoption is the permanent plan for the minor child and the termination of parental rights will aid in accomplishing that plan. Additionally, at the hearing, Ms. Newsome testified that although Respondent-mother and the minor child had a "mother-daughter bond," "there were still safety issues." Ms. Pirri, the minor child's therapist, testified that the minor child is no longer on medication, is calm, and enjoys school. Ms. Pirri stated that at this point, the minor child needs permanency and wants "a forever family."
Although Respondent-mother argues that she had a substantial bond with the minor child, based on the trial court's findings of fact and the record, we hold that the trial court did not abuse its discretion in terminating Respondent-mother's parental rights.
III.
Respondent-mother also argues that the trial court lacked subject-matter jurisdiction because the motion for termination of her parental rights failed to allege sufficient facts to warrant a determination that grounds existed for the termination of her parental rights. We disagree.
Section 7B-1104 of the North Carolina General Statutes states that a petition for termination of parental rights shall state "[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist." N.C. Gen. Stat. § 7B-1104(6). "While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue."In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002).
Here, although the petition lists only the statutory grounds for the termination of Respondent-mother's parental rights, attached to the petition are eight exhibits, including two custody orders, an order on adjudication and disposition, and three juvenile orders after review and permanency planning hearings. Because the petition incorporates seven attached orders and the orders state sufficient facts to warrant such a determination, this assignment of error is overruled. See In re Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160 (1992) ("We agree with respondent that petitioners' bare recitation in paragraphs A and B of the alleged statutory grounds for termination does not comply with the [statutory] requirement[.] . . . However, the petition incorporates an attached custody award, dated 8 August 1988, and the custody award states sufficient facts to warrant such a determination.").
Respondent-Father's Appeal
I.
Respondent-father first argues that the trial court erred by concluding that grounds existed to terminate his parental rights because Wake County failed to prove neglect by clear and convincing evidence. We disagree. In reviewing the adjudication phase of a termination of parental rights proceeding, this Court reviews "whether the trial court's findings of fact are supported by clear and convincing evidence and whether the findings of fact support the conclusions of law." In re Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602 (citation omitted). As noted above, a trial court may terminate parental rights upon a finding of neglect. See N.C. Gen. Stat. §§ 7B-1111 & -101(15) (defining "neglected juvenile"). Where a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, "a trial court may find that grounds for termination exist upon a showing of a history of neglect by the parent and the probability of a repetition of neglect." In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (citation & internal quotation marks omitted).
Here, the trial court found that Respondent-father: has admitted throughout the case that he was unable to provide care for his child; has a long history of unemployment, unstable employment, and unstable housing; only recently obtained suitable housing; often did not demonstrate appropriate parenting skills during visitation; and has not consistently engaged in the child's therapy sessions or team meetings. Respondent-father challenges these and other findings of fact as not supported by sufficient evidence; however, we find that the record contains sufficient evidence to support the trial court's findings of fact.
At the hearing, Ms. Pirri testified that Respondent-father participated in some joint therapy sessions with the minor child, but "had some attendance problems and some difficulty with some of the issues that we were dealing with; and, during one of the sessions, [the minor child] demonstrated some sexualized behavior[.]" Respondent-father testified that throughout the case, he lived in a storage shed and in other people's homes, but had obtained a two-bedroom apartment three weeks before the hearing. He also admitted that he had not been able to afford an apartment of his own when he was working full-time, making $10 per hour, and receiving $400 per month from Veteran's Administration. Based on the testimony of Ms. Pirri and Respondent-father, we find that clear and convincing evidence exists to support the trial court's findings of fact, which in turn support its conclusion that the minor child was neglected. This assignment of error is overruled.
"A finding of one statutory ground is sufficient to support the termination of parental rights." In re A.D.L., 169 N.C. App. at 710, 612 S.E.2d at 645. Because we have found that the trial court did not err by concluding that the minor child was neglected, we will not address Respondent-father's contention that the trial court erred by concluding that he willfully left the minor child in foster care for more than twelve months.
II.
Respondent-father next argues the trial court erred by concluding that it was in the minor child's best interest to terminate his parental rights. We disagree.
In the dispositional stage of a termination of parental rights proceeding, the trial court "must consider whether terminating parental rights is in the best interests of the child. . . . We review the trial court's decision to terminate parental rights for abuse of discretion." In re Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602 (citations omitted). In determining whether terminating parental rights is in the child's best interest, a court must consider: (1) the age of the juvenile; (2) the likelihood of adoption of the juvenile; (3) whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile; (4) the bond between the juvenile and the parent; (5) the quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement; and (6) any relevant consideration. N.C. Gen. Stat. § 7B-1110.
Here, as stated regarding Respondent-mother's appeal, the trial court found that the minor child was nine years old at the time of the hearing, and although no prospective adoptive home has been identified, she had formed a strong bond with her foster family and feels loved, safe, and protected, and it is highly likely that she will be adopted. Although Ms. Newsome opined that the minor child "has some bond with her father[,]" she also testified that the minor child viewed Respondent-father, "more as a peer," or "play buddy." "He oftentimes didn't redirect behaviors[.]" Ms. Newsome also stated that the minor child "would verbalize not feeling safe at times . . . and actually would verbalize feelings of confusion where it related to her father." We find that the trial court sufficiently considered the factors required under section 7B-1110, and its findings of fact support the conclusion that termination of Respondent-father's parental rights was in the minor child's best interests. Thus, the trial court did not abuse its discretion in terminating Respondent-father's parental rights.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
NOTES
[1] Respondent-mother appealed the 17 October 2005 order, which was affirmed by this Court on 3 April 2007. See In re E.H., 182 N.C. App. 528, 642 S.E.2d 550 (2007) (unpublished). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360288/ | 375 P.2d 225 (1962)
Armand J. HARVEY, Appellant,
v.
The STATE of Nevada, Respondent.
No. 4487
Supreme Court of Nevada
October 12, 1962
Dwight B. Claar, Jr., of Las Vegas, for Appellant.
Charles E. Springer, Attorney General; John F. Mendoza, District Attorney, Clark County; Charles L. Garner and William S. Barker, Deputy District Attorneys, for Respondent.
THOMPSON, Justice.
A jury found Harvey guilty of grand larceny. Judgment was duly entered upon the verdict and sentence imposed. He appeals. We believe the judgment of conviction must be reversed because of an error committed by the trial court while orally instructing the jury regarding the elements constituting the offense of grand larceny. A brief factual recitation will suffice for *226 the purpose of focusing attention upon the mistake made.
Victor Havas, the complaining witness, operated a used-car business in Las Vegas. He had inherited certain items of jewelry which were kept in his office desk. The defendant Harvey, whom he had met previously, called at his office to either appraise the jewelry or purchase it. Havas placed the jewelry on his office desk for examination by Harvey. After the lapse of a few minutes, Havas departed to attend a customer. When he later returned to his office, Harvey was gone. At that time Havas did not realize that his jewelry was also missing. He became aware of that fact later when Harvey telephoned him advising that he, Harvey, had an offer for the jewelry. Havas told Harvey to return immediately. Harvey did not return; instead, he sold the jewelry and left Las Vegas. He was subsequently apprehended in California and returned to Nevada to stand trial upon the charge of grand larceny.
Though Harvey did not testify at the trial, his theory of defense was clearly advanced by his counsel during cross-examination of the state's witnesses, by the jury instructions offered but refused, and by summation to the jury. It was that Harvey could not be convicted of the crime charged, grand larceny, because the specific intention to deprive Havas of the jewelry did not arise until after the telephone conversation and did not, therefore, coincide with the original taking and possession.
Several states have, by legislative enactment, combined the common-law crimes of larceny, false pretenses, and embezzlement into one offense under a general theft statute.[1] This legislation is designed to simplify procedure and to relieve courts from technical questions arising from contentions that the evidence shows the commission of one of these crimes other than that alleged in the information. Nevada is not, however, among these states. It is necessary, therefore, that upon a charge of one of these offenses the state establish all the elements required for a conviction under the common law. In this regard Nevada law is settled that, to constitute larceny, there must exist in the mind of the perpetrator, at the time of the taking, the specific intent to permanently deprive the owner of his property. A taking with the intention of returning the property, or a taking without the intent to permanently deprive the owner of his property, will not amount to larceny, even though the perpetrator, after gaining possession of the property, formed that intent. State v. Clifford, 14 Nev. 72, 33 Am.Rep. 526; State v. Ward, 19 Nev. 297, 10 P. 133; Robinson v. Goldfield Merger Mines Co., 46 Nev. 291, 213 P. 103. The requirement that the original taking and the felonious intent coexist in point of time was properly mentioned in the written instructions given in the instant case. Moreover, we recognize that the question of whether the property was originally taken with such intent is one of fact, the determination of which is to be made from a consideration of all the circumstances preceding, attending and following the taking of the property. State v. Cudney, 47 Nev. 224, 218 P. 736. In the case before us there was an arguable issue regarding the time when Harvey formed the intent to steal. Indeed, defense counsel in summation devoted particular attention to that issue. He argued, in substance, that though his client might be guilty of some crime, he was not guilty of larceny. Thus, when the case was submitted to the jury for deliberation, the theory of Harvey's defense had been made clear, and the jury had been properly instructed by the court. Had nothing further occurred our task would be easy. However, after the jury had deliberated for some time, it returned to court to ask a question.
"The Court: Do you have a question?
"Mr. Blair (Foreman): Yes. We have come to the point of we'd like a definition *227 of wrongful coming into possession. In other words, according to the record, we would like to know whether wrongful possession could mean at the time the telephone call was allegedly made * * * by the defendant to Mr. Havas, as well as in the beginning when the merchandise was first examined in his business."
The court answered the question orally, and at length. Its answer precipitated further questions or statements by the foreman, one of them being:
"The Foreman: This entire thing is complex in whether he either stole it or embezzled it."
It is not necessary to set out in full the discourse by the court in response to questions by the jury foreman. It comprises six pages of the transcript. It is sufficient to state that on three separate occasions the court, inter alia, informed the jury that it was immaterial when Harvey formed the intent to permanently deprive Havas of his jewelry. Furthermore, the court concluded with this statement: "You have to determine, plain and simple, whether at the time the jewelry was placed on the desk, as Mr. Havas testified, you have to determine from the evidence whether or not it was taken without his knowledge or consent by this defendant and whether it was worth $100 or under $100, that is what you have to determine." To this statement the foreman responded: "Gee! It would have been so simple!" The jury then retired, and promptly returned a verdict finding Harvey guilty of grand larceny. The Nevada cases which we have cited, State v. Clifford, 14 Nev. 72, 33 Am.Rep. 526; State v. Ward, 19 Nev. 297, 10 P. 133; Robinson v. Goldfield Merger Mines Co., 46 Nev. 291, 213 P. 103, establish that the oral instructions referred to were incorrect statements of the law. Moreover, they were in conflict with correct written instructions previously given.
In a criminal case, conflicting instructions upon a given subject, one correct and the other erroneous, are presumed to be injurious unless the record clearly shows otherwise. State v. Ferguson, 9 Nev. 106; State v. Scott, 37 Nev. 412, 142 P. 1053; State v. Milosovich, 42 Nev. 263, 175 P. 139. If the jury is misled by such conflicting instructions, a new trial is warranted. State v. McGinnis, 5 Nev. 337. The record before us reveals a perplexed jury. It could not decide the case until its confusion regarding the onset of Harvey's criminal intent was resolved. Upon being erroneously advised that their concern with this element of larceny was immaterial, they promptly concluded that the defendant was guilty.
In spite of this the state contends that the error was "harmless." NRS 169.110. Such contention cannot prevail where, as here, the record affirmatively discloses a prejudice to the defendant in respect to a substantial right.
Finally our attention is directed to the absence of any objection to the oral instructions given by the court or any exception thereto. Because of such failure to object or except, the state argues that we may not consider such instructions on review. By virtue of NRS 175.515 written instructions requested, whether given or refused, or given by the court of its own motion, need not be excepted to, and any error regarding them may be taken advantage of on appeal. However, oral instructions are not therein referred to. Nor do the provisions of NRS 175.500, 175.510, 175.520 and 175.525 dealing with matters deemed excepted to in criminal cases appear to include oral instructions given by the trial court.
However, NRS 175.165(6) does provide, in part: "* * * and in no case shall any charge or instructions be given to the jury otherwise than in writing, unless by the mutual consent of the parties."[2] The statutory *228 mandate is clear. In People v. Bonds, 1 Nev. 33, the statute was applied, the court finding prejudicial error where consent to the oral instruction did not affirmatively appear. See also State v. Fisher, 23 Mont. 540, 59 P. 919, annot., 115 A.L.R. 1337, where cases are collected. Notwithstanding People v. Bonds, supra, this court in the case of State v. Clarke, 48 Nev. 134, 228 P. 582, held squarely that oral instructions, when given without the mutual consent of the parties, are not deemed excepted to. For that reason, the court in Clarke, declined to decide whether the trial court's comment to the jury was an instruction and, if so, whether it violated a certain statute. Apparently the court in Clarke was not familiar with People v. Bonds, supra, for it was not cited.[3] In any event, the conflict is apparent.
The record here does not affirmatively show consent by the parties to the giving of any oral instruction. In Bonds the absence of such consent permitted appellate consideration. In Clarke the court apparently implied consent by reason of counsel's silence, and then imposed upon counsel the duty to object if he wished to preserve a point for later appellate review. We deem the holding in Bonds to be correct and the holding in Clarke to be wrong. The absence of mutual consent of the parties to an oral instruction must be considered as an objection to the giving of such instruction. A formal objection need not be stated nor exception taken. Manifestly, if written instructions, given after preparation and the opportunity for discussion and deliberation by court and counsel, are to be deemed excepted to, there is even more reason to apply the same rule to oral instructions which are sometimes given spontaneously. State v. Clarke, supra, is overruled insofar as it is inconsistent with the views expressed herein.
For the reasons stated, the judgment below is reversed and the cause remanded for a new trial. The custody of Armand J. Harvey shall be transferred from the warden of the Nevada State Prison to the sheriff of Clark County, Nevada, to be held by the latter until and during such new trial or further order, judgment or commitment of the trial court, unless sooner admitted to bail.
BADT, C.J., and McNAMEE, J., concur.
NOTES
[1] Ariz.Crim.Code, secs. 13-661 and 13-662; Calif.Pen.Code, secs. 484 and 490a; Mont.Rev.Codes, sec. 94-2701. See also V.A.M.S., sec. 556.200.
[2] The case of State v. Lewis, 59 Nev. 262, 271, 91 P.2d 820, 823, is of interest for it reflects the procedure one trial court employed when faced with the oral instruction problem.
[3] Indeed, in State v. Clarke, supra, the court based its conclusion in this regard upon State v. Clark, 36 Nev. 472, 135 P. 1083, which had been expressly overruled on rehearing. See State v. Clark. 38 Nev. 304, 149 P. 185. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360309/ | 667 S.E.2d 896 (2008)
SASTRE, et al.
v.
McDANIEL, et al.
No. A08A1485.
Court of Appeals of Georgia.
September 23, 2008.
*897 Clark & Williams, Jason R. Clark, Brunswick, James L. King, II, Frances W. Dyal, for appellants.
Charles B. O'Neill Jr., for appellees.
Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, amici curiae.
MILLER, Judge.
Iane and Lydia Sastre appeal from the trial court's order dismissing, without prejudice, their petition for adoption of A.L.R. (the "child"), arguing that the trial court erred in finding that the Sastres were not Georgia residents and in allowing the Lamar County Department of Family and Children Services (the "Department") to object to the adoption proceedings. Discerning error, we reverse.
"In matters of adoption, the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse." (Citation and punctuation omitted.) Smith v. Hutcheson, 283 Ga.App. 117, 118, 640 S.E.2d 690 (2006). When, as here, an appeal involves questions of law, we owe no deference to the trial court and apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000).
The record shows that after the child's birth on March 1, 2006, the Sastres were recognized by her biological parents as the child's godparents. In that capacity, the Sastres assisted in caring for the child for a period of two months while the biological mother coped with a substance abuse problem. On January 16, 2007, nunc pro tunc December 20, 2006, the Juvenile Court of Lamar County (the "juvenile court") issued a written order finding the child to be deprived as to her biological mother and father (the "parents") and placed the child in the temporary custody of the Department. In August 2007, while the child remained in the custody of the Department, the parents executed separate surrenders of their parental rights to the child in favor of the Sastres. These surrenders served as the basis for the instant petition for adoption filed by the Sastres in the Superior Court of Lamar County (the "superior court") on September 17, 2007. The Department filed its objection to the petition on October 15, 2007, alleging that the parents' surrenders of their parental rights *898 and the Sastres' adoption petition represented efforts to avoid their responsibilities under a case plan ordered by the juvenile court and to thwart any court-ordered termination of their parental rights.
On November 5, 2007, the Department filed a petition for the termination of the parents' parental rights in the juvenile court. The Sastres moved to intervene in the termination proceeding a month later, and in early January 2008, the Department filed a motion in the superior court to remand the case to the juvenile court for consolidation of the adoption and termination proceedings. The Department subsequently placed the child with the child's "foster to adopt" parents,[1] Charles S. and Kimberley A. McDaniel. On February 11, 2008, the McDaniels filed their answer, defenses, and motions to intervene and dismiss the Sastres' petition for adoption. Like the Department, the McDaniels asserted that the parents' surrenders of parental rights should be disregarded as executed to avoid and circumvent an involuntary termination of their parental rights in the juvenile court. Following a hearing, the superior court dismissed the Sastres' petition for adoption without prejudice, finding that the Sastres, who had moved to Tennessee from Georgia to permit Mr. Sastre to attend a seminary, were nonresidents of Georgia "as contemplated by OCGA § 19-8-3(a)(3)." The superior court also declined to stay the termination proceedings in juvenile court and found that all other issues pending in connection with the adoption action were moot.
1. The Sastres contend that the superior court erred in dismissing their petition for adoption upon finding that they were nonresidents of Georgia within the meaning of OCGA § 19-8-3(a)(3). We agree.
OCGA § 19-8-3(a)(3) provides that a person petitioning to adopt a child in Georgia must show that he or she "[h]as been a bona fide resident of this state for at least six months immediately preceding the filing of the petition." By their appellate brief, the Sastres correctly assert that the adoption statute, OCGA § 19-8-1 et seq., fails to define the words "bona fide resident" as set out therein, arguing that the word "resident" should be defined as it is in OCGA § 19-5-2 see Conrad v. Conrad, 278 Ga. 107, 108, 597 S.E.2d 369 (2004) ("As used in OCGA § 19-5-2, `resident' means `domiciliary.'") (citation omitted). As such, the Sastres assert that the dismissal of their petition for adoption was error because they remained domiciliaries of Georgia, even though they were living in Tennessee while Mr. Sastre completed his seminary education.
By their undisputed, verified petition for adoption, the Sastres averred that they have lived in White Oak, Georgia, since 2002; that they moved to Tennessee in November 2007 to permit Mr. Sastre to attend seminary; and that they will be returning to Georgia upon the completion of Mr. Sastre's seminary education.
While Chapter 8 of Title 19 of the Code does not define the phrase "bona fide resident" as it is used in OCGA § 19-8-3 (a)(3), we find no basis to depart from the definition our Supreme Court has given the same as to divorce for purposes of determining eligibility to adopt. Conrad, supra, 278 Ga. at 108, 597 S.E.2d 369. We also find such construction to be wholly consistent with the Department's interest in finding adoptive parents who are most able to provide for the welfare and best interests of children placed for adoption. Thus, we hold that the phrase "bona fide resident," as used in OCGA § 19-8-3(a)(3), requires a showing of status as a Georgia domiciliary for at least six months immediately before the filing of the petition for adoption. See OCGA § 19-2-1; see also Abou-Issa v. Abou-Issa, 229 Ga. 77, 78, 189 S.E.2d 443 (1972) ("[D]omicile refers to a single fixed place of abode with the intention of remaining there indefinitely, or the single fixed place of abode where a person intends to return, even though the person may in fact be residing elsewhere." (Citations omitted; emphasis supplied.)). Our prior decisions construing OCGA § 19-8-3(a)(3) are consistent with this construction of the words "bona fide resident." See, e.g., H.C.S. v. Grebel, 253 Ga. 404, 405, 321 S.E.2d 321 *899 (1984) (petitioners residing in Colorado); In re Stroh, 240 Ga.App. 835, 840(1)(a), 523 S.E.2d 887 (1999), rev'd on other ground, In the re T.M.G., 275 Ga. 543, 570 S.E.2d 327 (2002) (petitioners residing in Alabama).
Given the foregoing, we turn to a consideration of the question of whether the Sastres' move to Tennessee made them domiciliaries of Tennessee, requiring the dismissal of their petition for adoption. Grebel, supra, 253 Ga. at 405, 321 S.E.2d 321; Stroh, supra, 240 Ga.App. at 840(1)(a), 523 S.E.2d 887. Our Supreme Court has held, however, that "a concurrence of actual residence and [intent] to remain [is necessary] to acquire a domicile." (Citation and punctuation omitted.) Conrad, 278 Ga. at 108, 597 S.E.2d 369. Here, there is only evidence that the Sastres intend to return to Georgia upon the completion of Mr. Sastre's course of instruction in Tennessee. See Rolland v. Martin, 281 Ga. 190, 191, 637 S.E.2d 23 (2006) ("[R]egardless of the precise procedural context, a `verified complaint serves as both pleading and evidence.'" (citation omitted.))
As such, the record to this point shows that the Sastres, since 2002, have been and remain Georgia domiciliaries. See Abou-Issa, supra, 229 Ga. at 78, 189 S.E.2d 443. Accordingly, the trial court's dismissal of the Sastres' petition for adoption, without prejudice, must be and is reversed.
2. Inasmuch as it may become an issue on rehearing, we address the Sastres' further claim that the Department lacked standing to object to the adoption proceedings and find that it is without merit.
OCGA § 9-11-24(a)(2) provides that a party may intervene as a matter of right when an interest in the subject matter of the action will be impaired absent his or her participation, "unless the applicant's interest is adequately represented by existing parties." In this regard, the record shows that the juvenile court had adjudicated the child deprived and placed her in the temporary custody of the Department with direction that the Department prepare a reunification case plan for the benefit of the family. While the parents' surrenders of their parental rights was the basis for the adoption petition (OCGA § 19-8-4(a)(1)), the Department remained the temporary legal custodian of the child pursuant to the juvenile court's deprivation order which obligated it to implement the above-referenced case plan. Given that the Department's interest in the child as her temporary legal custodian was unrepresented in the adoption proceedings and at risk of impairment, the juvenile court did not err by allowing the Department to intervene through its objection to the adoption. OCGA §§ 9-11-24(a)(2) and 15-11-13; Smith, supra, 283 Ga.App. at 118, 640 S.E.2d 690.
Judgment reversed.
BLACKBURN, P.J., and ELLINGTON, J., concur.
NOTES
[1] The Department placed the child in the custody of the McDaniels on such basis upon its approval of their home in contemplation of an eventual adoption. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726115/ | 970 So. 2d 844 (2007)
GRIMSLEY
v.
STATE.
No. 5D07-2702.
District Court of Appeal of Florida, Fifth District.
December 26, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264926/ | 879 F. Supp. 49 (1995)
Corbett RICH, Plaintiff,
v.
SOUTHERN GULF OPERATORS, Defendant.
No. 1:94-CV-469.
United States District Court, E.D. Texas, Beaumont Division.
February 2, 1995.
*50 David Dies, Dies, Dies & Henderson, Orange, TX, for plaintiff.
Hubert Oxford, III, Mitchell W. Templeton, Benckenstein & Oxford, Beaumont, TX, for defendant.
MEMORANDUM OPINION
COBB, District Judge.
BACKGROUND
Plaintiff, Corbett Rich, was injured while aboard the M/V ALEUTIAN COMMAND. The M/V ALEUTIAN COMMAND is owned and operated by Defendant, Southern Gulf Operators. At the time of the injury the vessel was leaving dock from Eugene Island, which is located off the coast of Louisiana.
The M/V ALEUTIAN COMMAND regularly works off the coast of Louisiana and its home port is New Orleans. The Defendant's main office and corporate offices are in Lafayette, Louisiana. Defendant does not maintain an office in Texas. Plaintiff contends, however, that Defendant regularly *51 conducts business in the Eastern District of Texas and submits an affidavit to that effect; Defendant does not dispute that it conducts business in Texas.
Four of the fact witness identified by the parties reside in Louisiana, one in Mississippi and one in Florida; none reside in Texas. Five of the expert witnesses reside in Florida and one in Louisiana; none reside in Texas. Plaintiff is a resident of Florida.
Plaintiff brought an action in this court pursuant to the Jones Act. 46 App. U.S.C. § 688. Defendant seeks to transfer venue to the Western District of Louisiana, Lafayette Division, pursuant to 28 U.S.C. § 1404(a).[1] Defendant asserts that every factor which determines whether transfer of venue is proper weighs in favor of transfer. Plaintiff counters by responding that his choice of forum should be respected.
Because this court finds that this action has no connection with the state of Texas, Defendant's Motion to Transfer Venue is GRANTED, and this action is transferred to the Western District of Louisiana, Lafayette Division.
ANALYSIS
Transfer of venue is governed by 28 U.S.C. § 1404(a).
The first requirement of the statute is that venue be proper in the proposed district. This is met as Defendant's principal place of business is in Lafayette, Louisiana.[2]
The decision to transfer is within the sound discretion of the district court. Time Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1988). To determine whether venue should be transferred, the court should take into account factors which fall into two groups: (1) those relating to the convenience of the litigants; and (2) those relating to the public interest in the fair and efficient administration of justice. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947); Walter Fuller Aircraft Sales v. The Rep. of the Philippines, 965 F.2d 1375, 1389 (5th Cir.1992).
The convenience factors break down into the following: (1) plaintiff's choice of forum; (2) the ease of access to sources of proof; (3) the cost of obtaining attendance of witnesses and other trial expenses; (4) the place of the alleged wrong; and (5) the possibility of delay and prejudice if transfer is granted. Walter, 965 F.2d at 1389.
The public interest factors consists of: (1) the relative backlog and other administrative difficulties in the two jurisdictions; (2) the fairness of placing the burdens of jury duty on the citizens of the state with the greater interest in the dispute; (3) the local interest in adjudicating local disputes; (4) the appropriateness of having the jurisdiction whose law will govern adjudicate the dispute in order to avoid difficult problems in conflicts of laws. Walter, 965 F.2d at 1389.
The only factor which indicates this court should keep the case is plaintiff's choice of forum. Every other factor either strongly suggests a transfer of venue or is inconclusive.
The accident took place off the coast of Louisiana and the M/V ALEUTIAN COMMAND's home port is in New Orleans. The Louisiana courts are clearly better situated than is Texas to obtain evidence regarding the accident and other sources of proof.
Several of the witnesses, both fact and expert, reside in Louisiana. None reside in Texas. The Louisiana forum, therefore, offers lower costs for obtaining witnesses and other trial expenses.
The place of the alleged wrong is off the coast of Louisiana; again, Louisiana is favored over Texas. Additionally, the case is in the early stages, so there is little chance that a transfer of venue would create appreciable delay or prejudice.
*52 Louisiana's superior interest in adjudicating the dispute also weighs in favor of a Louisiana forum. The accident occurred off the coast of Louisiana and involves a shipping company that is a Louisiana resident. Louisiana's interest in ensuring that Louisiana corporations operating off its coast conform to a minimum standard of care is more compelling than an interest which could be proffered by the state of Texas. This is especially true in light of the fact that the ship in question is docked in New Orleans. Additionally, it is only fair that Louisiana citizens bear the burden of jury duty in this case since its citizens have more of an interest in ensuring that Defendant conducts itself properly than would a citizen of the state of Texas.
Furthermore, no conflicts of laws issues favor Louisiana over Texas. The same body of law, the Jones Act, will govern the dispute without regard to forum.
Accordingly, transfer to the Western District of Louisiana, Lafayette Division is warranted.
Defendant has asserted that this court does not have personal jurisdiction over it. Be that as it may, this court is free to transfer the case even if it does not have personal jurisdiction over the one of the parties. Goldlawr v. Heiman, 369 U.S. 463, 466, 82 S. Ct. 913, 915-16, 8 L. Ed. 2d 39 (1962); Bentz v. Recile, 778 F.2d 1026, 1028 (5th Car.1985); 28 U.S.C. 1406(a).
ORDER
Before the court is the Defendant's Motion for Transfer of Venue. After considering the Motion, this Court is of the opinion that the Motion should be GRANTED.
NOTES
[1] Title 18 U.S.C. § 1404(a) provides:
For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
[2] For suits brought under the Jones Act, venue is proper wherever the defendant "resides." That is, in any judicial district in which the corporation is doing business. Pure Oil Co. v. Suarez, 384 U.S. 202, 86 S. Ct. 1394, 16 L. Ed. 2d 474 (1966); 28 U.S.C. § 1391(c). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264927/ | 54 Cal. App. 4th 1457 (1997)
CAROLYN SINDELL, Individually and as Trustee, etc., et al., Plaintiffs and Appellants,
v.
GIBSON, DUNN & CRUTCHER et al., Defendants and Respondents.
Docket No. B098154.
Court of Appeals of California, Second District, Division Three.
May 15, 1997.
*1459 COUNSEL
Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, Amy Hsieh and Allen L. Michel for Plaintiffs and Appellants.
Gibson, Dunn & Crutcher, Richard D. Hall and Shelley R. Meacham for Defendants and Respondents.
OPINION
CROSKEY, J.
In this case we consider an appeal from an order sustaining the demurrer to a complaint for attorney malpractice not because it was filed *1460 beyond the applicable limitations period, but because it was filed too soon. Plaintiffs Carolyn Sindell and Cathleen Caballero are the adult daughters of Harold A. Caballero (Harold), now deceased.[1] They filed this action for professional malpractice against the defendants Gibson, Dunn & Crutcher, a law firm, and Shari Leinward, a partner in that firm (collectively, the defendants).
The gravamen of plaintiffs' action is that the defendants, who had been retained by Harold to prepare and document his estate plan, negligently failed to obtain a consent thereto from Harold's spouse, Kathleen.[2] As a result, litigation with Kathleen ensued following Harold's death over just what assets were properly to be included in and distributed from his estate. That litigation is still ongoing and is not yet resolved. Nonetheless, plaintiffs filed suit, alleging that they had already suffered an "actual injury" as a result of defendants' alleged negligence. The trial court sustained defendants' demurrer without leave to amend and dismissed the action without prejudice on the ground that until the litigation with Kathleen is finally resolved it cannot be determined whether or not plaintiffs have sustained any actual injury as a result of defendants' negligence.
Because we conclude that the plaintiffs have already sustained injury by virtue of having to litigate issues which, but for defendants' negligence, would have been resolved and that the outcome of the litigation with Kathleen is relevant only to the amount of plaintiffs' damages, not to the fact of their injury, we reverse the judgment and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND[3]
In 1989, Harold retained defendants to assist and advise him in connection with certain inter vivos transfers of wealth to his daughters, the plaintiffs herein, and for the benefit of his grandchildren, and in general to prepare an estate plan for him and his issue. At the time, virtually all of Harold's wealth, including real property interests, was held in the name of a business which he had previously inherited and then controlled, the Wilshire Ranch Company (WRC). This fact was known to the defendants.
*1461 Harold informed the defendants that he wanted his interest in WRC to pass to his issue with a minimum loss due to taxation and estate administration expense. Harold wanted to ensure that in his senior years, he would have the peace of mind and inner calm which would flow from the knowledge that his children, and their children, would be taken care of financially to the greatest extent he could accomplish.
Defendants claimed to have expertise in estate planning matters and they agreed to undertake the estate planning activities desired by Harold. In exchange, Harold agreed to pay, or cause to be paid, the legal fees charged by defendants. Defendants advised Harold that in order to accomplish his goals he should make certain gifts of interests he held in WRC. Relying upon the advice of defendants, he did so in late 1989 and early 1990. Under the plan crafted by defendants, Harold also sold certain interests in WRC to the plaintiffs.
Throughout this time, Harold was married to Kathleen who was not the mother of his children or the grandmother of the grandchildren for whom he wished to provide. Indeed, Kathleen had adult children of her own through a prior marriage. She also had substantial assets of her own which she either inherited or otherwise obtained prior to her marriage to Harold, and even had her own attorneys. These facts were known to defendants. At the time the estate plan was being implemented by the defendants, Kathleen was lucid and would have been willing to execute a written agreement which reflected her consent to the aforesaid gift and sale transactions. In other words, she was then perfectly willing to document her acknowledgment that the interests being transferred were Harold's sole and separate property or at least that she waived any community interest therein.
All of the documentation in connection with the transaction was prepared by defendants, and Harold and the plaintiffs signed such documents as defendants directed them to sign to effectuate the transactions. Although there was no negligence in the drafting of the documents actually prepared by the defendants, they failed to obtain or to advise Harold or the plaintiffs to obtain the written consent or acknowledgment of Kathleen, and the gift, sale and transfer transactions closed in the absence of any such written confirmation. The failure of the defendants to obtain the readily available evidence of Kathleen's consent to those transactions, or acknowledgment as to the separate nature of the property involved, was below the standard of care in the community and constituted negligence by the defendants. In short, the defendants breached their duty of due care by failing to secure Kathleen's consent prior to the time that she fell ill and became mentally incompetent to give it.
*1462 Harold caused approximately $50,000 to be paid to the defendants from WRC for their advice and legal work in connection with the estate plan devised by them. His estate the estate he was passing to his issue and grandchildren was diminished to that extent. In connection with the transaction, Harold also caused several thousand dollars to be paid from WRC to a business appraiser so that the transaction could receive approval from taxing authorities. This also diminished the estate he was passing to his children and his grandchildren. These expenditures would not have been incurred but for the transaction conceived and carried out by defendants. The total paid in 1989 and 1990 by Harold exceeded $100,000.
Three years after the transfers, on March 12, 1993, Harold was served with a family law action which sought, inter alia, to set aside the 1989 and 1990 transactions and to hold Harold, WRC, and the plaintiffs liable for a sum of money equal to Kathleen's purported community property interest in WRC and its assets. The action was filed on Kathleen's behalf by her children from a prior marriage. The children sued in Kathleen's name, she having lost her mental capacity due to illness and age. Kathleen's children alleged in the family law action that the property which was transferred by Harold was in fact the community property of Harold and Kathleen. In addition, other litigation also ensued in 1993 in the probate court where the parties conducted extensive discovery into issues relating to, inter alia, the nature and character of the transferred property and any oral or written agreements Kathleen may have made with Harold regarding her interest in such property. These two separate proceedings are hereafter referred to collectively as the "pending litigation."[4]
Had defendants obtained the properly acknowledged and witnessed consent of Kathleen to the 1989 and 1990 transactions, her children could not have prosecuted the family law action, or would have lost summarily on the issue of the character of the property transferred, or would have been willing to dismiss the action at a time when the attorneys fees would have been insubstantial. In other words, a written consent signed by Kathleen would have either prevented the litigation or brought it quickly to an end at little expense. This was all reasonably foreseeable to the defendants in 1989 and 1990.
Plaintiffs filed this action on March 14, 1994, which was within one year of their becoming aware that the pending litigation had been filed for Kathleen by her children. However, as there were then active settlement negotiations which might have concluded that litigation, plaintiffs did not *1463 serve the complaint on defendants. Ultimately, those negotiations proved unsuccessful and so plaintiffs amended their complaint and served a first amended complaint on defendants in April of 1995. Defendants demurred, primarily on the ground that plaintiffs' complaint was premature. That demurrer was sustained by the trial court on June 12, 1995, with leave to amend.
Harold became very depressed about the expense of the pending litigation and the impact it was having on his plans and desires to provide for his children and grandchildren. He required hospitalization in 1994 and 1995 and died on May 2, 1995.[5] Thus, during the last two years of his life, and up to and including the day of his death, Harold did not know whether his children and grandchildren would receive the estate which was the subject of the defendants' estate planning efforts in 1989 and 1990 or whether the entire transaction would be set aside and substantial funds paid out to Kathleen and her children, despite his long-standing agreement with Kathleen that WRC and all of its assets were his sole and separate property.
Plaintiffs filed their second amended complaint on July 12, 1995. It alleged three causes of action: (1) legal malpractice, (2) negligent failure to secure available evidence and (3) breach of contract. The essence of the claim against the defendants, as alleged in this pleading, is that defendants either (1) failed to recognize the need to obtain Kathleen's written consent to the various estate planning gifts, transfers and sales which they had recommended, which consent she was then ready, willing and able to give or (2) the defendants did recognize the need for such consent but failed to follow through and obtain it. Either way, plaintiffs allege, defendants' actions fell below the standard of care and breached their agreement with Harold.
As a consequence of defendants' alleged breaches of duty and contract, plaintiffs claim to have suffered the following "actual injuries" and damages: (1) their payments of over $100,000 to defendants for legal services which have proved to have no value; (2) their payments to an appraiser for a plan which has not accomplished one of its main purposes; (3) attorney fees incurred in the pending litigation which they have paid to their counsel, (4) fees ordered paid to counsel for Kathleen in the family law portion of the *1464 litigation; and (5) the medical expenses sustained by plaintiffs as a consequence of Harold's hospitalization and medical care brought on by the depression and great emotional distress suffered by him in 1994 and 1995, which was caused by the pending litigation with Kathleen and her children.
Defendant filed a demurrer to plaintiffs' second amended complaint, again asserting that the action was premature. They argued that whether or not plaintiffs suffered any "actual injury" could not be determined until the pending litigation with Kathleen and her children was resolved. The trial court, relying on the Supreme Court's decision in ITT Small Business Finance Corp. v. Niles (1994) 9 Cal. 4th 245 [36 Cal. Rptr. 2d 552, 885 P.2d 965] (Niles), agreed and sustained defendants' demurrer without leave to amend. The court reasoned that until a malpractice plaintiff discovers an attorney's malpractice and suffers actual injury, any action for malpractice is premature. Since plaintiffs could not make an allegation of such injury until the conclusion of the pending litigation, their action was premature and could not be amended to state any cause of action. The trial court then entered an order of dismissal without prejudice.
Plaintiffs filed this timely appeal.
ISSUE PRESENTED
(1a) The issue before us is a simple one. Where an attorney has been hired to prepare, document and put into effect a client's estate plan, but negligently fails to obtain an available spousal consent to the gifts and transfers made in accordance with that plan and, as a result, those gifts and transfers are subsequently attacked in litigation filed by the spouse or her heirs, what event triggers the client's "actual injury" and the accrual of a claim for malpractice?
Predictably, the parties have differing views on the question. Plaintiffs claim that they suffered actual injury when the pending litigation was filed by Kathleen and her children. It was at that moment that the absence of the consent condemned plaintiffs to expensive and prolonged litigation. Plaintiffs contend that they have (1) incurred substantial legal fees in defending the plan (including attorney fees for the cost of Kathleen's representation in certain of the family law proceedings), (2) lost the value of the substantial sums paid to defendants and others to set up and put into effect the estate plan and (3) suffered other general and special damages. Defendants, on the other hand, argue that only if the pending litigation results in a judgment adverse to plaintiffs' claims as to the status and character of Harold's property will they suffer any actual injury. Only then will it be *1465 appropriate to claim that they have suffered a loss as a result of defendants' negligence. If they prevail in the pending litigation, then defendants' legal work will have been vindicated and plaintiffs will have sustained no actionable loss. In short, defendants contend that this case, like Niles, involves a disputed claim of negligent draftsmanship the liability for which will be resolved by the pending litigation. Plaintiffs counter that it does not matter how the pending litigation is resolved, they have suffered an actual injury either way. Its outcome will only determine the amount of their loss.
DISCUSSION
1. Standard of Review
This case comes to us on an appeal from the sustaining of a demurrer without leave to amend. (2) "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. `We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].) Irrespective of the labels attached by the pleader to any alleged cause of action, we examine the factual allegations of the complaint, to determine whether they state a cause of action on any available legal theory. (Ellengberger v. Espinosa (1994) 30 Cal. App. 4th 943, 947 [36 Cal. Rptr. 2d 360]; Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908 [274 Cal. Rptr. 186].) If they do, then the trial court's order of dismissal must be reversed. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal. App. 3d 1439, 1444 [266 Cal. Rptr. 601].)
(1b) In this case, the factual allegations of plaintiffs' second amended complaint clearly allege (1) the formation of the attorney-client relationship between the defendants and Harold, (2) the specific estate planning tasks which defendants agreed to undertake and the goals which they advised Harold could be achieved and (3) the defendants' negligence in carrying out the promised professional services; that is, their failure to meet the standard of care. All of this is alleged and must be assumed by us to be true. Also alleged and assumed to be true are the factual bases for plaintiffs' claim of actionable injury and that defendants' negligence was a legal cause thereof.
*1466 This leaves us with the only issue presented by this appeal. Do these admitted factual circumstances establish an actual injury to plaintiffs so that a cause of action for legal malpractice has accrued even though the pending litigation has not yet been resolved?
2. Rules Governing Accrual of an Action for Attorney Malpractice
In Budd v. Nixen (1971) 6 Cal. 3d 195 [98 Cal. Rptr. 849, 491 P.2d 433] (Budd), our Supreme Court outlined the general principles governing the accrual of a cause of action for malpractice. "Code of Civil Procedure section 312 provides, `Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.' (3) The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. [Citations.] [¶] If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citation.] The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm not yet realized does not suffice to create a cause of action for negligence. [Citations.] Hence, until the client suffers appreciable harm as a consequence of his attorney's negligence, the client cannot establish a cause of action for malpractice. Prosser states the proposition succinctly, `It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred.' [Citation.] [¶] The cause of action arises, however, before the client sustains all, or even the greater part, of the damages occasioned by his attorney's negligence. [Citation.] Any appreciable and actual harm flowing from the attorney's negligent conduct establishes a cause of action upon which the client may sue." (Id., at pp. 200-201, fn. omitted, italics in original.)
In Budd, supra, 6 Cal. 3d 195, the court reversed a summary judgment granted in favor of an attorney who had negligently failed to plead an available capacity defense for his client who thereafter, with new counsel, was unable to undo the harm and suffered a judgment for damages on a contract claim for which he was not personally responsible. The trial court had held that the cause of action accrued and the statute commenced to run at the time of the negligent act and since the client's malpractice action was *1467 filed more than two years later, it was barred by the then applicable statute of limitations.[6] In reversing, the Budd court made it clear that the cause of action did not accrue nor did the statute commence to run until the client suffered some appreciable damage. This would include (1) the attorney fees paid to the negligent attorney (to the extent that they exceeded the value of the legal services rendered), (2) attorney fees paid to new counsel hired to extricate the client from the problem created by the first attorney's negligence and (3) the amount of the adverse judgment which was suffered due to the negligence. However, the determination of when such damages were first in fact sustained raises a question of fact (Budd, supra, 6 Cal.3d at p. 202) which, if there is a material dispute on the point, would preclude summary judgment.
The accrual rule of Budd was later codified in Code of Civil Procedure section 340.6.[7] However, nothing in the legislative history of that statutory change in any way suggests that the Legislature intended to alter the second part of that rule: "[I]n legal malpractice actions statute of limitations issues, including injury, are at base factual inquiries." (Adams v. Paul (1995) 11 Cal. 4th 583, 588 [46 Cal. Rptr. 2d 594, 904 P.2d 1205] (Adams).)
A narrow exception to the general accrual rule of Budd was made by the Supreme Court in those cases where the alleged malpractice involved a claim that an attorney had negligently prepared legal documents which resulted in litigation testing their efficacy. In Niles, supra, 9 Cal. 4th 245, the court held that in transactional malpractice cases, in which the adequacy of the documentation is the subject of the dispute, the action accrues on entry of an adverse judgment, settlement, or dismissal of the underlying action, since it is at this point that the client "has discovered the fact of damage and suffered `actual injury' due to the" defendant's malpractice. (Id. at p. 258.) The court cautioned, however, that its holding was a narrow one and was "limited to the circumstances typified by this case." (Ibid.)
In Niles, the attorney had negligently prepared loan documents which resulted in ITT having to defend the adequacy of that documentation in an adversary bankruptcy proceeding brought by the debtor to whom it had *1468 loaned the money.[8] Ultimately, that adversary proceeding was settled adversely to ITT. Its malpractice action was filed less than two months after the settlement but over two years after commencement of the adversary proceeding. Niles (the defendant attorney) argued that ITT first suffered appreciable actual injury when it incurred legal fees to defend the loan documentation in that adversary proceeding and so the malpractice cause of action accrued at that time and the statute of limitations commenced to run. As a result, he argued, the action was time-barred. The trial court agreed and granted summary judgment. The Supreme Court reversed, holding that until the efficacy of the loan documentation could be tested in the bankruptcy litigation brought by the debtor it would not be known whether any injury suffered by ITT (e.g., attorney fee expenditures) would be due to the attorney's malpractice. Until that time it could not be determined if an "actual injury" had occurred. In short, the determination of whether or not there had been any actual injury was dependent on the outcome of the litigation. Thus ITT's attorney fee expenses did not constitute such actual injury (although they might be included in ITT's total damages if the litigation were lost or adversely settled as it in fact was). Therefore, the action did not accrue or the statute commence to run until the date of the adverse settlement; thus, ITT's action was timely filed.
Defendants rely heavily on Niles to support their argument that plaintiffs' action has not yet accrued because plaintiffs have not yet suffered any "actual injury." Analogizing to Niles, defendants argue that their alleged failure to obtain Kathleen's consent to the implementation of Harold's estate plan was at most a flaw in their documentation of Harold's estate plan and whether or not it will make any difference to plaintiffs will depend upon how the pending litigation is resolved. Until then, the existence of an "actual injury" due to their malpractice cannot be determined. As already noted, the trial court agreed. We do not.
3. The Pending Litigation Resulting From Defendants' Negligence Is Not About the Efficacy or Adequacy of Defendants' Estate Plan Documentation
(1c) The issue raised in the pending litigation by Kathleen and her children does not involve the adequacy of defendants' estate plan documentation (e.g., its completeness as to formalities, its compliance with law, its *1469 specificity as to assets conveyed, its description of persons to be benefited or its usefulness in avoiding adverse tax consequences). Indeed, plaintiffs have alleged and conceded that defendants were not negligent in the drafting of the estate plan itself. The issue in the pending litigation relates solely to the community or separate status of the property which was the subject of the estate plan. Plaintiffs allege that in 1989 and 1990 Kathleen did not contest Harold's view that all of his interest in WRC was his sole and separate property. In fact, plaintiffs allege that Kathleen was then willing to sign a consent to the various gifts and transfers needed to implement the estate plan and thereby expressly waive any claim of community property which she might have otherwise asserted.
Thus, when defendants failed to obtain that consent, their negligence made possible litigation asserting a community property claim which could not have otherwise been raised. It is the validity of that claim now raised by Kathleen's children on her behalf which is the actual issue presented in the pending litigation.
There are undoubtedly legal malpractice cases where the underlying dispute focuses on the accuracy or inaccuracy of an attorney's written work, and where the client's victory in such litigation is ipso facto exoneration of the lawyer. Niles, supra, 9 Cal. 4th 245, would have been such a case had ITT prevailed in the underlying litigation, thus vindicating the efficacy of the attorney-drafted loan documentation. The present case, however, is not in that category. The language or contents of the estate plan documents are in no way being tested in the pending litigation. The issue here is not "are the documents valid to transfer Harold Caballero's estate to his heirs?" but rather "what assets are properly included in a listing of Harold Caballero's estate?" The charge of negligence here is based on the attorney's failure to obtain from a spouse written confirmation of a fact then known: that the assets were indeed Harold's, or if not, that Kathleen was willing to so treat them.
The effect of the failure to obtain the consent and waiver was not to change the nature of the assets they were whatever they were, community or separate. The failure merely allowed the foreseeable to occur: Kathleen, due to mental incapacity, became unable to confirm her view that she and Harold, at the time of the transactions, saw the property as Harold's. Later, Kathleen's children, claiming that Harold had taken advantage of their mother[9] and faced with no express and permanent memorialization to establish Harold's ownership of the disputed property, commenced litigation on her behalf. In other words, the purpose for obtaining the waiver from *1470 Kathleen would not be to make the transfer "valid" or "effective," but rather to render unlikely (or at least easy-to-defeat) subsequent litigation attacking Harold's implicit claim to sole and separate ownership of the assets to be conveyed. Where, as here, the purpose of a lawyer's retention is to place the client and his or her intended beneficiaries in a posture of quiet ownership of assets, and the lawyer negligently fails to obtain a simple written consent which would all but preclude costly litigation, the mere fact of such litigation is the unwanted consequence. The litigation represents the loss of the bargained-for benefit; the litigation itself is the event which constitutes damage. (See Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal. 2d 618, 620-621 [30 Cal. Rptr. 821, 381 P.2d 645].) It is not (as in Niles), a means of establishing whether there was any injury attributable to attorney malpractice.
4. The Attorney Fees Incurred by Plaintiffs in Defending the Pending Litigation Constitute Recoverable Damages
In our view, the case made by plaintiffs can be simply characterized. Plaintiffs hired and paid defendants to obtain and document a waiver by Kathleen of any claim of a community property interest she might have in Harold's separate estate. She was in 1989 and 1990 willing to do this. Defendants failed to obtain or even solicit such a waiver. As a direct result, plaintiffs are now engaged in expensive litigation over whether Kathleen in fact had any such community property interest. This lawsuit would not have been filed had the consent and waiver been obtained (or, if filed, it would have been summarily resolved). Contrary to defendants' arguments, the outcome of the pending litigation will not determine whether or not plaintiffs have suffered actual injury, it will only determine the amount of that injury. If plaintiffs prevail in the pending litigation, their loss will be limited to their attorney's fees and litigation costs. If they lose, they will have sustained not only those losses, but also the value of Harold's property which will have to be diverted to Kathleen and her children. It is only this latter event which we will not know until the pending litigation is resolved. That plaintiffs have already incurred substantial attorney fees in defending the pending litigation is established fact. Indeed, the estimates cited by plaintiffs' brief reflect that amount is in excess of $500,000 and counting. These fees are clearly damages resulting directly from the alleged negligence of defendants.
Under California law, it is a well-established principle that attorney fees incurred through instituting or defending an action as a direct result of the tort of another are recoverable damages. (Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d at pp. 620-621.) We see no reason not to apply this principle to legal malpractice actions. Defendants' alleged malpractice certainly would amount to a tort which has resulted in plaintiffs' having to defend the pending litigation initiated by Kathleen.
*1471 In Prentice, plaintiffs retained defendant title guaranty corporation to act as an escrow holder in connection with a sale of property. Due to defendant's negligence, plaintiffs were required to incur attorney fees in bringing a quiet title action against the purchaser in order to protect their interests. (4) The California Supreme Court made a clear pronouncement, which it has never overruled or undermined: "A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d at p. 620, italics added.) In a subsequent opinion, the Court of Appeal has explained the doctrine further: "The theory of recovery is that the attorney fees are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action. In such cases there is no recovery of attorney fees qua attorney fees.... [¶] [N]early all of the cases which have applied the doctrine involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees. [Citations.]" (Sooy v. Peter (1990) 220 Cal. App. 3d 1305, 1310 [270 Cal. Rptr. 151], italics added.)
In Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal. App. 3d 104 [128 Cal. Rptr. 901], the defendant attorneys negligently misrepresented the status of the partners of a partnership which they represented. As a result, the plaintiff, who had relied on that representation, was required to sue those partners in the hope of establishing that their partnership was a general rather than a limited partnership and sought the attorney fees and costs incurred in that action as one item of his out-of-pocket loss. Plaintiff would only suffer substantial damages if the outcome of the suit against the partners established that they were only limited partners. Nonetheless, the court recognized that "substantial legal expense will be incurred to secure this determination, even if that determination is favorable to him. Such legal expense is neither remote nor speculative, but must of necessity be incurred by plaintiff to make him whole." (Id. at p. 112, italics added; see also Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal. App. 3d 410, 419 [100 Cal. Rptr. 826].)
(1d) Thus, when the defendants' negligence resulted in the filing of the pending litigation, plaintiffs were required to defend their position that Harold's interest in WRC was his sole and separate property. They have incurred several hundred thousand dollars in expense in conducting that defense. This gave them an immediate cause of action against the defendants under the Prentice doctrine. (See Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal. 2d 618.)
*1472 5. In the Circumstances of This Case the Resolution of the Question of Actual Injury Cannot Be Resolved as a Matter of Law
In Adams, supra, 11 Cal. 4th 583, the court made it clear that the Budd holding, nearly 25 years before, was the proper one with respect to a determination of actionable harm in a legal malpractice case. Noting that Niles involved a very narrowly drawn circumstance, was not a paradigm and certainly "did not articulate a `rule for all seasons'" (Adams, supra, at p. 588), the court stated, "... depending upon the particulars, actionable harm may occur at any one of several points in time subsequent to an attorney's negligence. Hence, as with other causes of action, the determination is generally a question of fact." (Ibid.)
Although Adams is a "missed statute" case, we see no reason why its ruling and reasoning are not fully applicable here.[10] (5) Its significance in this case is that it underscored the very narrow application of Niles and reaffirmed four principles taken directly from the Budd decision: (1) determining when a plaintiff in a legal malpractice case has sustained actual injury is predominantly a factual rather than a legal determination (Adams, supra, 11 Cal.4th at pp. 585-586; Budd, supra, 6 Cal.3d at p. 202); (2) absent the narrow circumstances presented by Niles, the determination of actual injury does not depend upon or require a prior adjudication, judgment, or settlement (Adams, supra, at pp. 591-592; Budd, supra, at pp. 197-204); (3) an injury is not "actual" if it causes only nominal damages, speculative harm, or the threat of future harm (Adams, supra, at p. 589; Budd, supra, at p. 200); and (4) it is the fact of injury and not the amount of injury that is the relevant consideration (Adams, supra, at p. 589; Budd, supra, at p. 201).
As Justice Kennard points out in her concurring opinion in Adams, this decision undercuts one of the fundamental holdings of Niles, that "actual injury" depends upon the timing or outcome of a prior adjudication, judgment or settlement with a third party. (Adams, supra, 11 Cal.4th at pp. 595-596 (conc. opn. of Kennard, J.).) That, of course, is a central part of defendants' argument here. However, that rule only has application in that narrow circumstance where the fact of the attorney's negligence will itself be determined in such prior litigation. (See Van Dyke v. Dunker & Aced (1996) 46 Cal. App. 4th 446, 454-455 [53 Cal. Rptr. 2d 862].) As we have pointed out, that is not the case here. The outcome of the pending litigation is relevant only to the amount of plaintiffs' damages. Plaintiffs have sustained actual injury whether they win or lose.
*1473 In Foxborough v. Van Atta (1994) 26 Cal. App. 4th 217 [31 Cal. Rptr. 2d 525], a very similar problem was presented. An attorney's negligence resulted in the client's loss of an unrestricted right to annex subsequent development of a retained parcel to an existing apartment complex. The court held that the client suffered actual injury when the three-year period during which an automatic annexation could have occurred expired. As a result, the client was required to commence litigation to obtain the desired annexation. This was a more onerous, expensive, and unpredictable task and it was the very problem that the attorney had been hired to avoid. The court stated, "... when malpractice results in the loss of a right, remedy, or interest, or in the imposition of a liability, there has been actual injury regardless of whether future events may affect the permanency of the injury or the amount of monetary damages eventually incurred. [Citations.] This approach promotes the legislative goal of requiring diligent prosecution of known claims to provide finality and predictability in legal affairs, and to ensure that claims are resolved while evidence remains reasonably available and fresh. [Citation.]" (Id., at p. 227, italics added.)
(1e) Whether plaintiffs have in fact sustained the damages which they claim, and when, are matters which they will have to prove. We hold only that such damages, in the context of this case, if proven, would constitute an actual injury for purposes of the accrual of their claim for attorney malpractice. Thus, their action is not premature.[11] The trial court's order sustaining defendants' demurrer was error.
DISPOSITION
The judgment is reversed. Plaintiffs shall recover their costs on appeal.
Klein, P.J., and Aldrich, J., concurred.
NOTES
[1] Plaintiffs have sued not only in their individual capacity but also as the trustees of their respective children's trusts and as co-executors of Harold's estate. Harold was alive at the initiation of this action and was a named plaintiff. However, he passed away prior to the filing of the second amended complaint, a fact which is alleged in that pleading.
[2] Harold's spouse, Kathleen Caballero, is his second wife and is not the mother of plaintiffs.
[3] The facts which we recite are taken from the second amended complaint which is the operative pleading before us. As we are required to do, we assume the truth of these allegations.
[4] We have previously had occasion to consider some of the issues raised in this family dispute. (See In re Marriage of Caballero (1994) 27 Cal. App. 4th 1139 [33 Cal. Rptr. 2d 46].)
[5] As already noted, Harold had been a named plaintiff in the original and first amended complaints filed in this matter. Upon his death, plaintiffs, as co-executors of his estate, succeeded to his interest and position in this action. Whether that change was procedurally accomplished as required by statute is an issue which was raised below by the defendants. However, it is not before us in this appeal and we need not address it. Indeed, the order of dismissal signed by the trial court expressly states that plaintiffs are "deemed" to have sued not only in their individual and trustee capacities, but also as the personal representatives of Harold's estate. Whatever issue remains on the point can be resolved on remand.
[6] At that time, the statute of limitations applicable to attorney malpractice was two years. (Code Civ. Proc., § 339, subd. 1.) That was subsequently changed by the Legislature when it adopted Code of Civil Procedure section 340.6. (See fn. 7, post.)
[7] Code of Civil Procedure section 340.6 provides, in relevant part (§ 340.6, subd. (a)(1)): "An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury...."
[8] The issue presented in that litigation was whether the attorney's documentation of the loan was sufficient to preserve ITT's expected first security position with respect to certain "machinery, equipment, furniture, fixtures, inventory, accounts receivable, and leasehold improvements" which the debtor had offered as collateral but which secured position the debtor challenged after it filed for bankruptcy. (Niles, supra, 9 Cal.4th at pp. 248-249.)
[9] See, for example, In re Marriage of Caballero, supra, 27 Cal. App.4th at pages 1143-1144 and 1146-1148.
[10] Indeed, the defendants' failure to timely obtain Kathleen's consent to the transfers and gifts contemplated by Harold's estate plan is very analogous to the "missed" opportunities malpractice presented in both Adams and Budd.
[11] However, since it does appear that the full extent of plaintiffs' damages cannot be determined until the resolution of the pending litigation, the trial court has the inherent authority to stay this action pending that event. (See Adams, supra, 11 Cal.4th at p. 593 and cases cited thereat.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264937/ | 6 F. Supp. 244 (1933)
In re ROTHBELL.
No. 54797.
District Court, S. D. New York.
November 13, 1933.
Mortimer Kraus, of New York City, for trustee.
Gettinger & Gettinger, of New York City, for petitioner.
PATTERSON, District Judge.
Application is made by the Continent al Bank & Trust Company for leave to file an amended proof of claim. The adjudication in bankruptcy occurred on September 2, 1932. On October 27, 1932, the bank filed a petition asking that it be permitted to examine the bankrupt under section 21a of the Bankruptcy Act, 11 USCA § 44 (a). The petition itself made no specific mention that the bank was a creditor, but in the verification it is referred to as a creditor of the bankrupt. The petition was granted, the order stating that the application was by a creditor. Thereafter the attorneys for the bank examined the bankrupt before one of the referees, the attorney for the trustee participating in the examinations. No formal proof of claim was filed within six months from adjudication. On September 14, 1933, more than one year after adjudication, the bank attempted to file with the referee a proof of claim based on a promissory note signed by the bankrupt, but the referee rejected it as offered too late. The present application makes the point that the bank's petition for examining the bankrupt and the examinations thereunder within the six-month period may be deemed a sufficient filing of a claim to permit an amendment of the claim to be filed at the present time.
The prohibition against proving claims more than six months after adjudication (section 57n of the Bankruptcy Act, as amended by Act May 27, 1926, 11 USCA § 93 (n) is peremptory. In re Lago (D. C.) 38 F.(2d) 887. But where a proof of claim has been filed within the permissible time, it may be amended after the expiration of the time. Hutchinson v. Otis, 190 U.S. 552, 23 S. Ct. 778, 47 L. Ed. 1179. The courts have gone far in applying this rule as to amendments. The tenor of the cases is that any assertion of the claim by the creditor that was made within the required period and that appears in the records of the bankruptcy proceeding, whether or not intended as a proof of claim, will serve as a basis for an amended proof of claim.
There are many instances of such accidental proofs of claim. A paper filed by a creditor in support of an alleged lien on a special fund, though never intended as a proof of claim, is sufficient if it shows the existence of a claim against the bankrupt. In re Roeber (C. C. A.) 127 F. 122. See, also, In re Faulkner (C. C. A.) 161 F. 900. But see In re Ragan (C. C. A.) 2 F.(2d) 785. Testimony taken before the referee to determine the validity of an assignment may *245 amount to a proof of claim sufficient to support a later amendment. In re Salvator Brewing Co. (C. C. A.) 193 F. 989. Likewise as to letters written by the claimant to the trustee in bankruptcy in which the existence of a claim against the bankrupt is mentioned or asserted. In re Patterson-MacDonald Shipbuilding Co. (C. C. A.) 293 F. 190; Scottsville Nat. Bank v. Gilmer (C. C. A.) 37 F.(2d) 227. The same is held of a statement of the claim in an involuntary petition in bankruptcy. In re Fant (D. C.) 21 F.(2d) 182. It was held in Re Lipman, 65 F.(2d) 366, decided this year by the Circuit Court of Appeals of this Circuit, that specifications filed in opposition to confirming a composition, the specifications stating that the concern filing them was a "creditor" of the bankrupt, constituted proof of claim sufficient to warrant the filing of an amended proof of claim after the expiration of the six-month period.
In certain cases it has been said broadly that wherever there is anything in the record of the case that establishes a claim against the bankrupt, it may be used as a basis for amendment after the expiration of the required time for proving claims, provided substantial justice will thereby be promoted. In re Fant (D. C.) 21 F.(2d) 182, 183; Cotton v. Bennett (C. C. A.) 59 F.(2d) 373, 375. Under such a rule it would seem that the mere listing of a claim in the bankrupt's schedules would be enough; the creditor could years later file what he might call an "amended proof of claim" and obtain its allowance. If this be the law, there is almost nothing left in the requirement that claims be proved within six months after adjudication. I know of no case in this circuit that goes to such a length. In all of them there was an assertion by the creditor of a claim within the required period, and I take it that some such action on the part of the creditor is necessary to permit an amendment.
In the present case the bank filed a petition for examination of the bankrupt and in the verification of the petition it is referred to as a creditor. The order entered upon the petition recites that it is entered on motion of a creditor. The nature and amount of the claim are nowhere stated, and it is manifest that the bank never intended that this petition be deemed a proof of claim. But it was certainly as efficacious as the specifications in opposition to a composition in the Lipman Case, supra. It was a declaration by the bank that the relationship of creditor and debtor existed between it and the bankrupt; it is part of the record in the bankruptcy proceeding; it was made within six months after adjudication. Under the authorities referred to above, particularly the Lipman Case, it is a sufficient proof of claim for the purpose of allowing an amendment after the expiration of the statutory period for proving claims. The application will therefore be granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264947/ | 54 Cal. App. 4th 1419 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
RAYMOND HENRY CALLAHAN, Defendant and Appellant.
Docket No. F025194.
Court of Appeals of California, Fifth District.
May 14, 1997.
*1420 COUNSEL
Victor S. Haltom, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edgar A. Kerry, Jane A. Cardoza and Robert P. Whitlock, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[]]
OPINION
ARDAIZ, P.J.
Appellant, Raymond Henry Callahan, was charged by an amended criminal complaint filed in Tulare County Municipal Court, Tulare-Pixley Division, with one count of selling or transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), a felony; one count of possessing an injection device in violation of Health and Safety Code section 11364, subdivision (a), a misdemeanor; one count *1421 of possessing less than 28.5 grams of marijuana in violation of Health and Safety Code section 11357, subdivision (b), a misdemeanor; and using or being under the influence of a controlled substance in violation of Health and Safety Code section 11550, also a misdemeanor. Appellant entered not guilty pleas to each of the offenses and the matter proceeded to preliminary hearing.
On the date scheduled for that hearing, appellant brought a motion to suppress pursuant to Penal Code section 1538.5.[1] After appellant's motion to suppress was denied, he pleaded guilty to one count of simple possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a); one count of possessing an injection device in violation of Health and Safety Code section 11364, subdivision (a); and one count of using or being under the influence of a controlled substance in violation of Health and Safety Code section 11550. It was agreed that the remaining marijuana possession charge would be dismissed at sentencing.
On the date set for imposition of judgment, appellant asked that he be allowed to withdraw his plea because he felt that the issue regarding his consent to search was not pursued aggressively enough. He also stated his belief that, despite the court's ruling to the contrary, the officers did not have grounds to stop him in the first instance. The judge, who happened to be the same judge who heard and ruled on appellant's suppression motion, denied appellant's request to withdraw his plea on this ground. At the request of defense counsel, the court indulged appellant and allowed him to personally voice his concerns over its ruling on the motion to suppress. After appellant explained his position, the sentencing court advised him that his remedy, if he believed the court's ruling erroneous, was to appeal that decision. The sentencing judge again denied appellant's motion to withdraw his plea and proceeded to impose judgment.
The court granted appellant probation on the condition, inter alia, that he serve a total of 180 days in the local jail. It then dismissed the marijuana possession charge. In response to defense counsel's request that appellant be granted a stay of his sentence pending a ruling by the appellate court, the sentencing court stayed the sentence for a period of just under one month and indicated that it would make "whatever further orders [were] needed" if appellant subsequently satisfied the court that he had actually filed a notice of appeal.
Appellant did not renew his motion to suppress in the superior court.
A notice of appeal was timely filed with the superior court on December 29, 1995.
*1422 DISCUSSION
Appellant raises, in essence, three issues on appeal: (1) whether his counsel's failure to renew his motion to suppress in the superior court precludes him from raising the issue here; (2) if not, did the lower court err when it denied his motion based on its belief that appellant's consent to search was voluntarily obtained; and (3) if we answer the first question affirmatively, did defense counsel's failure to renew the motion in superior court amount to ineffective assistance of counsel. We find that we have jurisdiction to hear this appeal and affirm the judgment.
I
Issues Bearing on Our Jurisdiction to Hear This Appeal
(1) It is well settled that the right to appeal is not constitutionally mandated but is instead statutorily governed; it is therefore subject to complete legislative control. (E.g., People v. Chi Ko Wong (1976) 18 Cal. 3d 698, 709 [135 Cal. Rptr. 392, 557 P.2d 976], disapproved on other grounds in People v. Green (1980) 27 Cal. 3d 1, 33-34 [164 Cal. Rptr. 1, 609 P.2d 468]; Trede v. Superior Court (1943) 21 Cal. 2d 630, 634 [134 P.2d 745]; Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384, 386 [264 P. 488]; In re Rottanak K. (1995) 37 Cal. App. 4th 260, 265 [43 Cal. Rptr. 2d 543]; In re Conley (1966) 244 Cal. App. 2d 755, 759 [53 Cal. Rptr. 321], and cases cited therein.) The Legislature has the power to change the procedure, limit the right, or even abolish the right to appeal altogether. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 2, p. 33, and § 37, p. 60.)
The Legislature has used this power to limit our ability to hear criminal appeals that follow the entry of a guilty plea. In such cases, the defendant must, as a general rule, obtain a certificate of probable cause from the trial court before he or she will be allowed to appeal from the judgment of conviction based on the entry of such a plea. (§ 1237.5.) (2) One exception to this requirement can be found in section 1538.5, subdivision (m) which provides that "[a] defendant may seek ... review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the ... suppression of the evidence." (§ 1538.5, subd. (m); accord, People v. Panizzon (1996) 13 Cal. 4th 68, 74 [51 Cal. Rptr. 2d 851, 913 P.2d 1061]; Cal. Rules of Court, rule 31(d).)
*1423 Appellant concedes that he did not renew his motion in superior court[2] and acknowledges the general rule that a defendant must tender the illegality of a search to the superior court in order to preserve the issue for appeal (citing People v. Lilienthal (1978) 22 Cal. 3d 891, 896-897 [150 Cal. Rptr. 910, 587 P.2d 706]; People v. Burns (1993) 20 Cal. App. 4th 1266, 1272 [25 Cal. Rptr. 2d 230]; People v. Dossman (1991) 235 Cal. App. 3d 1433, 1437 [1 Cal. Rptr. 2d 489]; and People v. Kain (1989) 212 Cal. App. 3d 816, 821 [260 Cal. Rptr. 838]), but insists that the general rule has no application here. He instead believes that section 1538.5, subdivision (m), when read in conjunction with the 1992 amendments to sections 859a and 1466, provides for direct review of the municipal court's ruling on his motion to suppress where, as here, the ruling on the suppression motion, the taking of the plea, and the imposition of judgment all occur before the same municipal court judge.
Respondent contends section 859a clearly states the municipal court has the power to certify the case to the court where imposition of judgment is to occur and that, in the event it retains the case, then any future proceedings shall be deemed as though they were conducted in that court. Respondent notes that the case was certified to the superior court and thus reasons that the imposition of judgment took place in the superior and not the municipal court. Accordingly, respondent argues that People v. Lilienthal, supra, 22 Cal.3d at p. 896; People v. Gonzales (1991) 233 Cal. App. 3d 1428, 1432 [285 Cal. Rptr. 218]; and People v. Kain, supra, 212 Cal. App.3d at pages 820-821, required appellant to renew his motion in superior court or be precluded from doing so on appeal. Respondent sees no difference between the sequence of events in this case and those of People v. Burns, supra, 20 Cal. App. 4th 1266, 1270, where the appellate court found that the defendant's failure to raise the suppression issue in superior court was a procedural defect which proved fatal to the appeal. Respondent asks that we adopt the rationale of Burns and dismiss this appeal.
We believe that section 1538.5, subdivision (m), when read in light of section 1462 and the 1992 amendments to sections 859a and 1466, provides *1424 for direct review of a municipal court's ruling on a section 1538.5 motion to suppress where, as here, the ruling on the suppression motion, the taking of the plea, and the imposition of judgment all occur within the municipal court.
As previously noted, a criminal defendant may seek review of the validity of the search and seizure provided "that at some stage of the proceedings prior to the conviction he or she has moved for the ... suppression of the evidence." (§ 1538.5, subd. (m), italics added.) In Lilienthal, our high court interpreted the italicized language to mean only those proceedings conducted in superior court. (People v. Lilienthal, supra, 22 Cal.3d at p. 896; accord, People v. Burns, supra, 20 Cal. App.4th at p. 1271.) But we cannot blind ourselves to the circumstances in which the high court made this decision.
In Lilienthal, the defendant brought a motion to suppress in municipal court where it was denied and he was held to answer on all charges. (People v. Lilienthal, supra, 22 Cal.3d at p. 895.) In the superior court, he moved to dismiss the information pursuant to section 995 on the ground that the only substantial evidence in support of the information was obtained in violation of the Fourth Amendment. (22 Cal.3d at p. 895.) When that motion was denied, he pleaded guilty to one count, the remaining counts were dismissed, and he was ultimately sentenced to prison. (Ibid.)
The defendant appealed from the judgment pursuant to section, inter alia, 1538.5, subdivision (m), raising only the search and seizure issue. (People v. Lilienthal, supra, 22 Cal.3d at p. 895.) The People disputed his right to appeal on this basis arguing that section 1538.5 should not be read in a manner that would allow him to bypass the superior court. (22 Cal.3d at pp. 895-896.) The high court agreed noting "that it should be interpreted to require that the matter be raised in the superior court to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention." (Id. at p. 896.)
At the time Lilienthal was decided, section 859a provided that upon acceptance of a guilty plea to a felony offense not punishable by death, the magistrate "may then fix a reasonable bail as provided by this code, and upon failure to deposit such bail or surety, shall immediately commit the defendant to the sheriff and certify the case, including a copy of all proceedings therein and such testimony as in his discretion he may require to be taken, to the superior court, and thereupon such proceedings shall be had as if such defendant had pleaded guilty in such court." (§ 859a, subd. (a), as amended by Stats. 1970, ch. 373, § 1, p. 789, italics added.) The certification *1425 to superior court was necessary because the magistrate had no authority under the pre-1992 amendment to section 1462 to impose judgment in noncapital felony cases. Its sentencing jurisdiction, in criminal matters, was limited to those cases involving misdemeanors and/or violations of city or county ordinances which occurred within its district. (Former § 1462.)
The process by which to appeal a municipal court judgment was set forth in section 1466. At the time of Lilienthal, that section provided that "[a]n appeal may be taken from a judgment or order of an inferior court, in a criminal case, to the superior court of the county in which such inferior court is located ... [b]y the defendant [f]rom a final judgment of conviction. A sentence [or] an order granting probation ... shall be deemed to be a final judgment within the meaning of this section."
In 1991, the Legislature enacted Assembly Bill No. 195 which redefined the roles of the superior and the municipal courts by adding subdivisions (b) and (c) to section 1462. As pertinent, those subdivisions now provide:
"(b) Each municipal ... court shall have jurisdiction in all noncapital criminal cases to receive a plea of guilty or nolo contendere, appoint a time for pronouncing judgment under Section 859a, pronounce judgment, and refer the case to the probation officer if eligible for probation.
"(c) The superior courts shall have jurisdiction in all misdemeanor criminal cases to receive a plea of guilty or nolo contendere, appoint a time for pronouncing judgment, and pronounce judgment."
Then, in 1992, the Legislature enacted Senate Bill No. 839 which amended section 859a, to provide as follows:
"(a) If the public offense charged is a felony not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him or her whether he or she pleads guilty or not guilty to the offense charged therein.... While the charge remains pending before the magistrate and when the defendant's counsel is present, the defendant may plead guilty to the offense charged, or, with the consent of the magistrate and the district attorney... plead ... guilty ... to any other offense the commission of which is necessarily included in that with which he... is charged.... Upon accepting the plea of guilty ... the magistrate shall certify the case, including a copy of all proceedings therein and any testimony that in his or her discretion he or she may require to be taken, to the court in which judgment is to be pronounced at the time specified under subdivision (b), and thereupon the proceedings shall be had as if the defendant had pleaded guilty in that court. ...
*1426 "(b) Notwithstanding Section 1191 or 1203, the magistrate shall, upon the receipt of a plea of guilty or nolo contendere ... immediately appoint a time for pronouncing judgment in the superior court, municipal court, or justice court and refer the case to the probation officer if eligible for probation, as prescribed in Section 1191." (§ 859a, as amended by Stats. 1992, ch. 78, § 1, italics added.)
Senate Bill No. 839 also amended section 1466 so that its relevant provisions now read:
"(a) An appeal may be taken from a judgment or order of an inferior court, in an infraction or misdemeanor case, to the superior court of the county in which the inferior court is located, in the following cases:
".... .... .... .... .... .... ....
"(2) By the defendant:
"(A) From a final judgment of conviction. A sentence, an order granting probation, ... shall be deemed to be a final judgment within the meaning of this section....
"(B) From any order made after judgment affecting his or her substantial rights.
"(b) An appeal from the judgment or appealable order of an inferior court in a felony case is to the court of appeal for the district in which the court is located." (§ 1466, as amended by Stats. 1992, ch. 78, § 2, italics added.)
In passing the 1992 legislation that amended sections 859a and 1466, the Legislature expressly declared that "[e]xisting law provides that an appeal may be taken from a judgment or order of an inferior court in a criminal case to the superior court, as specified. [¶] This bill would, instead, specify that an appeal may be taken in an infraction or misdemeanor case to the superior court [and] would also provide that an appeal from the judgment or appealable order of an inferior court in a felony case is to the court of appeal for the district in which the court is located." (Legis Counsel's Dig., Sen. Bill No. 839, Stats. 1992, ch. 78.)
This expression of legislative intent, and the statutory language used to accomplish this goal, clearly show the Legislature intended to alter the appellate process for guilty pleas in noncapital felony cases that result in a judgment of conviction being entered in the municipal court. In light of these changes, we believe section 1538.5's language requiring the defendant to raise the validity of the search "at some stage of the proceedings" as a *1427 prerequisite to appellate review must now be read to include those motions made in the municipal court but only if the entry of the plea and the imposition of judgment both occur in the municipal court.
The next question the parties urge us to decide is whether the judgment of conviction issued in this case emanated from the municipal court. The parties agree that the hearing on the suppression motion and the taking of the plea both occurred before Judge Staven sitting as a municipal court judge. They also agree that Judge Staven presided over the sentencing proceedings. Where they disagree is whether he did so as a municipal or superior court judge. Their disagreement is well founded as the record related to these proceedings is far from clear as to which capacity Judge Staven was acting when he imposed judgment in this case.
The reporter's transcript of the suppression motion indicates that it was heard in department 2 of the municipal court before Judge Staven. According to the printed portion of the minute order that reflects the denial of the motion and the entry of the plea, the matter was heard in the municipal court and certified to the superior court for all further proceedings. The handwritten portion of this same minute order, however, shows that appellant entered his plea in the Tulare-Pixley District of the Tulare Courts and that appellant was ordered to appear at the "Tulare Court," and not the superior court, for his sentencing hearing on October 31, 1995. The language identifying the superior court as the sentencing court was actually lined out in this document. The printed minute order for the sentencing hearing indicates that those proceedings were conducted in department 2 of the superior court before Judge Staven but the reporter's transcript shows that it was conducted in department 2 of the municipal court before Judge Staven.
For our purposes, what is clear is that everything occurred before Judge Staven. Judge Staven is presumed to know of his power to impose judgment under sections 859a and 1462, subdivision (b). (See Evid. Code, § 664 [in the absence of any indication to the contrary we presume official duties are properly performed]; People v. Wader (1993) 5 Cal. 4th 610, 661 [20 Cal. Rptr. 2d 788, 854 P.2d 80] [same]; People v. Visciotti (1992) 2 Cal. 4th 1, 49 [5 Cal. Rptr. 2d 495, 825 P.2d 388] [same].) The fact that he retained jurisdiction over the matter suggests that he was aware of this authority. Indeed, it would be nonsensical for him to retain jurisdiction over the case in which he acted as a municipal judge only to sentence appellant in his capacity as a superior court judge particularly since he was not required to do so under the current versions of sections 859a and 1462. The bottom line to all of this is that the ruling on the motion, the entry of the plea, and the judgment of conviction came out of but one court. The result is that the judgment of conviction is appealable under section 1538.5, subdivision (m).
*1428 Respondent's reliance on People v. Lilienthal, supra, 22 Cal. 3d 891, People v. Burns, supra, 20 Cal. App. 4th 1266, People v. Kain, supra, 212 Cal. App. 3d 816, and People v. Gonzales, supra, 233 Cal. App. 3d 1428 is misplaced in that none of these cases interpreted section 1538.5's requirements for appellate review in light of section 1462 and the 1992 amendments to sections 859a and 1466. "`It is axiomatic,' of course, `that cases are not authority for propositions not considered.' ..." (People v. Jones (1995) 11 Cal. 4th 118, 123, fn. 2 [44 Cal. Rptr. 2d 164, 899 P.2d 1358], citation omitted.)
II
Issues Bearing on Appellant's Consent to Search[3][*]
.... .... .... .... .... .... .... .
III
Issues Bearing on the Competency of Counsel Claim
Appellant contends that trial counsel's failure to take the steps necessary to preserve the suppression issue for appeal constitutes "patently prejudicial incompetence." He maintains that the simple fact he was denied his right to review is all that he need show to establish prejudice.
Respondent urges us to deny appellant's ineffective assistance of counsel based on his failure to show that he was prejudiced as a result since the motion was properly denied below.
In light of our finding that appellant has the right to appeal the lower court's denial of his motion to suppress, there is no need to address appellant's claimed deprivation of effective counsel. The judgment is affirmed.
Stone (W.A.), J., and Thaxter, J., concurred.
A petition for a rehearing was denied June 9, 1997, and appellant's petition for review by the Supreme Court was denied August 20, 1997.
NOTES
[] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
[1] All future statutory references are to the Penal Code unless otherwise indicated.
[2] In the alternative, appellant argues that, due to the trial court consolidation which occurred after these events and a blanket assignment then in effect that "cross-designat[ed]" Judge Staven as both a municipal and superior court judge, all of the relevant events in this case took place before a superior court judge. As such, he reasons that the general rule has thus been satisfied and the appeal is properly before us.
We do not believe that trial court consolidation would change the characterization of events which preceded its implementation. As to the other point raised by appellant we note that he has failed to identify any authority for the proposition needed to support his claim that once a judge has been empowered to act as a municipal and a superior court judge, that said judge will thereafter act in both capacities in all of the pre-trial-court-consolidation cases that come before him or her. Consequently, we need not address this contention. (People v. Hardy (1992) 2 Cal. 4th 86, 150 [5 Cal. Rptr. 2d 796, 825 P.2d 781], citing People v. Wharton (1991) 53 Cal. 3d 522, 563 [280 Cal. Rptr. 631, 809 P.2d 290].)
[3] In the unpublished portion of this opinion we conclude the trial court was correct in upholding the search in the instant case.
[*] See footnote, ante, page 1419. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264965/ | 6 F. Supp. 37 (1934)
UNIVERSAL OIL PRODUCTS CO.
v.
STANDARD OIL CO. OF INDIANA (GERMAN, Intervener).
No. 121.
District Court, W. D. Missouri, W. D.
February 27, 1934.
*38 R. R. Brewster, of Kansas City, Mo., and Charles H. Mayer, of St. Joseph, Mo., for plaintiff.
Cyrus Crane (of Lathrop, Crane, Reynods, Sawyer & Mersereau), of Kansas City, Mo., for defendants.
OTIS, District Judge.
The Universal Oil Products Company filed in this court August 7, 1916, its bill in equity alleging that the defendant, Standard Oil Company of Indiana, had infringed a patent belonging to the plaintiff and praying injunctive relief and damages. An answer having been filed, a master was appointed to take testimony. For a period of years the case pended before the master. Finally, before any hearing by the court and, of course, before any decree, a settlement out of court was effected between the parties. Thereupon the plaintiff sought to dismiss its bill here.
Mr. Charles W. German was one of the attorneys for the plaintiff. Before any order of dismissal was made, and none has been made, he filed in the case what was styled an "intervening petition," the general purpose of which was to obtain an order or decree of court requiring the plaintiff, before final order of dismissal, to compensate the intervener for his legal services. It was attacked by a motion to dismiss. That motion was overruled by the judge of this court, Honorable Albert L. Reeves, before whom the case was then pending. The plaintiff was required to and did answer. The issues made by the intervening petition and the answer were set for trial. Before the trial date Judge Reeves disqualified and the writer of this opinion was designated by the Senior Circuit Judge to take over the case and to proceed with it. The trial date was reset. Shortly before that date was reached Mr. German filed a second amended intervening bill which the plaintiff has moved to strike.
The motion to strike has been treated by the parties as a motion to dismiss and it will be so considered here. The prime question raised by this motion is whether the claim of an attorney for compensation rendered a client in a given case, where the client is the plaintiff, who has settled with the defendant out of court and before judgment, may be enforced in the manner here attempted, that is, by an intervening bill in the case itself? Counsel for Mr. German contend that it may be so enforced and that it might be enforced *39 upon a mere motion in the case. It is contended, on the other hand, by counsel for the plaintiff, that such a claim can be enforced only by an independent suit at law or in equity.
I consider then in what manner under the law an attorney may enforce as against his client a claim for compensation for legal services rendered in a case begun in the courts, partially prosecuted, and settled between the parties before final judgment or decree? That he may enforce it by an independent suit for breach of express or implied contract of course is certain. That he may enforce it by an independent suit in equity to foreclose an attorney's lien if he has such a lien also is certain. That the law gives him these good and generally sufficient remedies none questions. Does he have also a remedy in the very case in which services have been rendered and, if so, of what character is it and under what circumstances may it be secured?
The Attorney's Lien Statute.
1. In support of the contention that there is such an alternative remedy, counsel first relies on the Missouri attorney's lien statute. I proceed therefore to a consideration of that statute. It is section 11716, R. S. Mo. 1929 (Mo. St. Ann. § 11716), and reads: "The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment."
It is to be observed at once that this statute, although creating an attorney's lien, makes no provision whatever for its enforcement, nor does any other Missouri statute fill up this omission. If then there is a remedy for the enforcement of the attorney's lien, that remedy must be found in the general law or in established principles of equity.
Laying aside for the time those judicial opinions which interpret this and similar attorney's lien statutes, and looking now only at the language used in the statute, we perceive that it gives an attorney a lien only upon one thing; that is, the "client's cause of action." It provides indeed that the lien so given shall attach to a verdict, report, decision, or judgment in the client's favor, but it is still a lien only upon the cause of action. It was quite logical, although perhaps unnecessary, to provide that the lien should attach to a verdict, report, decision, or judgment, for each of these is the immediate progeny of the cause of action, or, more accurately, each of these is the cause of action in a metamorphosed and perfected state. That is true too of the proceeds of a verdict, report, decision, or judgment to which also the lien attaches. The lien does not attach to any other thing than those specified, for expressio unius exclusio alterius est. The lien is only upon the cause of action and it attaches only to the objects expressly named.
There is only one reference in the statute to a settlement between the parties. Although the context shows that the possibility of a settlement before or after judgment and the effect thereof upon the security intended to be given the attorney were present in the minds of the lawmakers and to some extent provided for in the same sentence as that creating the lien and declaring the objects to which it shall attach, still neither an agreement of settlement nor the proceeds thereof are included among the objects to which the lien will attach.
The one reference to a settlement is this: "(The lien upon the client's cause of action) cannot be affected by any settlement between the parties before or after judgment." If it is not affected, then it is neither enlarged nor lessened. It is still upon the client's cause of action and that only. It still attaches to a verdict, report, decision, judgment, and their proceeds and to them only.
Something, however, was intended to be accomplished by the provision last quoted. It was assumed by the lawmakers that except for that provision the attorney's lien would be affected by, for example, a settlement before judgment. The assumption was justified by the doctrine that a settlement extinguishes a cause of action, although, perhaps more accurately it should be said, when there has been a settlement of a cause of action the cause of action merges in the agreement of settlement. What the lawmakers intended to make clear was that the lien given upon the cause of action would continue although the cause of action was merged in an agreement of settlement.
A cause of action is a right which the law gives and which the law will enforce, a right to recover something from another. There are two ways in which he who has such a right may obtain satisfaction from him obligated. One of these is through the courts. *40 The other is by private negotiation with the party from whom satisfaction is demanded. He who has the right may seek satisfaction in either of these ways or in both at the same time. If he has called to his aid an attorney and that attorney institutes a lawsuit to enforce the client's right, then from the commencement of the action the attorney has a lien upon the cause of action. The lien is upon the cause of action; that is, the right of the client under the law to recover something from his adversary. The lien is not restricted to the cause of action in so far only as it may be enforced in the courts, but is upon the cause of action without any such limitation; that is to say, it is upon the cause of action, whether prosecuted in the courts or by private negotiation out of court. However, there is this distinction to be drawn: So far as the cause of action is asserted in the courts it is subject to the jurisdiction of the courts. Any interest in the cause of action to the extent that the cause of action is in the courts (and a lien upon a cause of action is an interest in it) possibly also is subject to the jurisdiction of the courts and possibly is determinable and may be enforced by the courts in the same case in which the cause of action is prosecuted. But if the cause of action is prosecuted by private negotiation out of court, then the court has no jurisdiction whatever over such prosecution, the incidents thereof, the interest of the plaintiff or any other therein. No court can compel, prevent, or condition such a prosecution. Since the court can have no jurisdiction over the prosecution of a cause of action by private negotiation, it cannot have any jurisdiction to enforce an attorney's lien upon a cause of action so prosecuted.
The situation just described is quite comparable with this: B has given his promissory note in the amount of $1,000 to A. It is due and unpaid. A has a cause of action against B. He employs C as his attorney and agrees to pay him as compensation for his services 25 per cent. of whatever is recovered. Thereupon C brings suits for A against B in two courts at the same time, in the circuit court of X county and in the circuit court of Y county. Two prosecutions are thus instituted, although there is only one cause of action, and upon that cause of action C has an attorney's lien. If A obtains a judgment in the circuit court of X county to which C's lien would immediately attach, no one would urge that the circuit court of Y county has any jurisdiction whatever to enforce that lien. If there is jurisdiction in any court summarily to enforce the lien, it is in the circuit court of X county and not in the circuit court of Y county. The situation would not be different because the cause of action has been prosecuted, not in the circuit court of X county, but by private negotiation or before a nonofficial arbitrator selected by the parties. In either case, the prosecution which has resulted in a disposition of the controversy has never been conducted and neither it nor its incidents ever have been within the jurisdiction of the circuit court of Y county.
We may suppose another case which equally makes clear the conclusion that a court does not have the power summarily to enforce an attorney's lien where a settlement has been made outside of court and before judgment.
Assume there is no statutory attorney's lien. An attorney is employed by a client who has a cause of action against another for specific performance of a contract to sell land. The client agrees to pay his attorney for his services the sum of $1,000 and gives him a demand note for that amount, secured by a contract lien on his cause of action and whatever is recovered through its prosecution. A decree for specific performance is obtained. The defendant, complying with the decree, executes the deed to the land in question. Now the attorney has a lien on the land to secure the note and he demands payment of the note. He has a cause of action now against his client on the note and to foreclose his lien. Can he proceed against his client by intervention or by motion or in any other way? If not, why not? The simple answer is: Because the attorney's cause of action is wholly distinct from the client's cause of action. One who goes into court to sue another subjects himself to being sued by that other in a lawful counterclaim, but he certainly does not subject himself to suits against himself without lawful service of process upon him by all who may have causes of action against him. What difference does it make that this attorney has a contract lien instead of a statutory lien? The remedies available for the enforcement of a lien, whether arising out of contract or out of statute, if the liens are otherwise identical, cannot be different unless in the case of the statutory lien some special statutory remedy has been provided.
I cannot find then in the language of the Missouri attorney's lien statute nor in the character of the lien therein created any support whatever for the contention that it provides a lien enforceable summarily by an attorney for a plaintiff in a case in which the plaintiff outside of court has entered into an *41 agreement of settlement with the defendant and has received the proceeds of that settlement.
The Missouri Cases.
2. I turn now to the decisions of the Missouri courts which interpret the attorney's lien statute of this state and which discuss what remedies are available for the enforcement of the attorney's lien. It may be said at once that there is not one of them in which it is ruled or asserted even by way of dictum that an attorney for a plaintiff may have summary enforcement of his lien against the plaintiff in the plaintiff's case against the defendant where the parties have entered into an agreement of settlement out of court. But counsel point to the case of State ex rel. Anderson v. Roehrig, 320 Mo. 870, 8 S. W. (2d) 998, 1000, and urge that the opinion and decision in that case support in principle such a theory. It seems to me to give it no support whatever.
All that was held in State ex rel. Anderson v. Roehrig was that in a case where a plaintiff has obtained a judgment against a defendant, and where the amount of that judgment has been paid into court by the defendant, the plaintiff's attorney may, by motion in the case, assert and have determined his lien and have the lien enforced against the amount paid into court. That a court of general jurisdiction has authority, "in such circumstances, to fix an attorney's fee and make the necessary orders to enforce its payment, is incident," it is said in the opinion in that case, "to the control it has over its own judgment and records." There is no further discussion in the opinion of the source of the asserted jurisdiction.
It is impossible to see in this decision and in the reasons given for it any support for the contention that a court of general jurisdiction may enforce an attorney's lien in a case in which there has been no judgment and in which nothing has been paid into court on account of any judgment. A jurisdiction which depends upon the fact that there has been a judgment certainly cannot exist where there has been none.
It is true that the doctrine in the Anderson opinion is not limited to a case in which the amount of the judgment has been paid into court. The whole amount may have been paid by the defendant to the plaintiff and the plaintiff may have satisfied the judgment. In that situation the plaintiff's attorney may move the court to set aside the satisfaction pro tanto and to award execution to the extent of his lien. That was ruled in Young v. Renshaw, 102 Mo. App. 173, 76 S.W. 701, cited and quoted with approval in State ex rel. Anderson v. Roehrig, 320 Mo. loc. cit. 876, 8 S.W.(2d) 998. This jurisdiction of the court also arises from the control it has over its judgment. It has authority to see to it that the judgment is paid to those who are entitled to be paid, including the attorney who has an interest by virtue of his lien in the judgment. Obviously, however, a jurisdiction which is bottomed on the control which a court has over its judgments does not extend to nor by analogy support a jurisdiction over an agreement of settlement between the parties made outside of court and before any judgment is rendered. Moreover, even if a settlement were made after judgment and a remedy was available to the attorney through the court's control of its judgment, no remedy would be available against the attorney's client by that method. The control of the court over its judgment against a defendant never could extend to a rendition of judgment against the plaintiff.
I do not overlook the point that an order of dismissal in a case in a sense is a judgment in the case. Such a judgment, like any other, is subject to the control of the court; but an attorney's lien certainly does not attach to such a judgment, for it is not a judgment in favor of the plaintiff nor one which has any pecuniary value to the plaintiff. It is a judgment in favor of the defendant.
The Anderson Case was not one in which settlement was made between the parties before judgment. Gillham v. Railway, 282 Mo. 118, 221 S.W. 1, the one other Missouri case to which I make reference, was such a case. There the attorney for the plaintiff sought to enforce his lien, not against the plaintiff, but against the defendant, and he undertook to do that by moving to set aside an entry of dismissal which had been made, for the reinstatement of the case and for judgment in the case against the defendants for the attorney's fee claimed. The Supreme Court, in its decision in the case, said in effect that where a settlement was made before judgment, the attorney could not recover even against the defendant by summary procedure in the principal case, but that his remedy was either by an independent action at law for the value of the lien of which he was deforced or by an independent suit in equity to foreclose his lien. The Anderson Case is to be read with this case. The opinion in each was written by the same judge. The two together declare the law of Missouri to be that an attorney for a plaintiff may by motion *42 in the plaintiff's case have determined and have judgment for the amount of his fee, and have it enforced against a fund paid into court by the defendant, or if the judgment has been paid to the plaintiff, then he may have that judgment set aside and execution pro tanto awarded to him against the defendant; but if the controversy between the parties has been settled before judgment, then the attorney can have no relief in the case, even against the defendant. He must resort to an independent action.
Cases from Other Jurisdictions.
3. Not only do the Missouri cases lend no support to the contention made here, but also it must be said that there is no case in any jurisdiction which lends any support to it. The cases in other jurisdictions most relied on are Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N.Y. 492, 66 N.E. 395, 396; Byram v. Miner (C. C. A. 8) 47 F.(2d) 112; Middlestadt v. City of Minneapolis, Minnesota, 147 Minn. 186, 179 N.W. 890, 892; Davis v. Great Northern R. R. Co., 128 Minn. 354, 151 N.W. 128, 129. None of them supports the contention made.
In Fischer-Hansen v. R. R. the attorney for plaintiff sought to enforce his lien, not against the plaintiff, but against the defendant. He sought to enforce it, not by intervention or motion in the original case, but by an independent proceeding. The case came to the Court of Appeals of New York from a judgment on demurrer. The argument for the demurrer was that an independent proceeding was not the proper remedy for enforcement of an attorney's lien. The only question decided was whether an independent proceeding was proper. It was held proper. There is dictum in the opinion that a summary proceeding under the New York attorney's lien statute also would have been proper, but that dictum is based upon the express language of the New York statute to the effect that "the court upon the petition of the client or attorney may determine and enforce the lien." Laws 1899, c. 61, p. 80, § 1. The Missouri statute, which otherwise is identical with the New York statute, omits the express provision which alone supports the dictum in the New York case.
Byram v. Miner is no more in point than is Fischer-Hansen v. R. R. In the first place, the question of the propriety of a summary procedure in behalf of an attorney in his client's case is not discussed in the opinion and was in no way involved in the decision. In the second place (certainly this is the reason the question was not discussed and was not involved), the Minnesota attorney's lien statute (General Statutes of Minnesota 1923, § 5695) expressly provides that the lien there created "may be established, and the amount thereof determined, by the court, summarily, in the action or proceeding, on the application of the lien claimant. * * *"
The cases of Davis v. Great Northern Ry. Co. and Middlestadt v. City of Minneapolis, Minnesota, may be considered together. The latter adds nothing to the former and need not specifically be reviewed. The attorney's lien statute which was in force when Byram v. Miner was decided had not yet been enacted when these cases were decided. The attorney's lien statute then in force in Minnesota (section 4955, General Statutes Minn. 1913) did not provide for a summary proceeding in the client's case to enforce the attorney's lien. That statute, like the Missouri statute, made no special provision for the enforcement of the lien created by it. It merely gave to the attorney a lien "upon the cause of action from the time of the service of the summons therein."
The Davis Case was this: One Haynes had brought a suit for damages for personal injuries against the Great Northern Railroad Company. Davis was his attorney. Outside of court the parties settled the controversy and a certain sum was paid to Haynes. Davis then brought an independent action against the railroad company to recover for the value of his services to Haynes. He recovered judgment. The assignment of error upon which the case went to the Supreme Court of Minnesota was that the attorney could not maintain an independent action to recover his compensation or to enforce a lien, but was confined to a proceeding in the original action. All that was decided by the court was that an independent action against the defendant in the original case was a proper procedure. The court said: "The statute creating the lien under which plaintiffs claim does not prescribe a remedy for its enforcement, and we think, and so hold, that the attorney in such case may elect whether to proceed by independent action, or in the original suit." But it is quite clear that the dictum that the attorney might proceed "in the original suit" means only that he might proceed by prosecution of his client's cause of action to a judgment where the settlement by the parties was made for the purpose of cheating and defrauding the attorney. It does not mean that he might have a summary determination and enforcement of his lien in the original proceeding.
*43 The Officer of the Court Theory.
4. A second contention which is made by counsel for Mr. German is that wholly without regard to the statutory attorney's lien and what remedies may be used to enforce that lien, there is jurisdiction in any court to protect the interests of an attorney as an officer of the court and, therefore, to make such orders in any case in which he is employed as will secure for him from his client payment of compensation owing to him. If it is meant by this contention that a court has power to forbid a party to a lawsuit settling his controversy with his adversary out of court unless he pays his attorney what is owing to him, or if it is meant that a court has power to say to a party bringing a suit in court, "You cannot dismiss this case unless you pay your attorney what you owe him," then the contention has no support either in precedent or principle. No precedent has been cited supporting any such contention and I have found none. The attorney is indeed an officer of the court and entitled to the court's protection, but that he is entitled to a different procedure for the enforcement of his contracts than that to which other citizens must resort is a doctrine which does not appear ever before to have been asserted.
Intervention in an Equity Suit.
5. I think it is unnecessary to discuss more than very briefly whether counsel for a plaintiff in a patent suit or for that matter in any suit in equity may intervene in that suit to enforce against the plaintiff his claim for compensation for legal services under Equity Rule 37 (28 USCA § 723). The right of intervention given by that rule (and there is no other right of intervention in the technical sense in a federal equity case) is restricted to him who has "an interest in the litigation." This phrase, "an interest in the litigation," is to be read in connection with the preceding language of the rule: "All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff." The "interest in the litigation" which will support intervention must be some legal or equitable interest in the subject of the action which a decree might or would affect. While an attorney has in Missouri a lien upon his client's cause of action and therefore in a sense an interest in the cause of action, he does not have either a legal or equitable interest in the subject of the action and his interest in the cause of action cannot be affected by any decree rendered. However, in this opinion I have chosen to consider, not whether the claimant could assert his cause of action by intervention in the technical sense, but whether by any method he could have it determined and enforced summarily in the principal case.
The Law of the Case.
6. Finally it has been contended by counsel for Mr. German that even if it should be my conclusion that the present motion to dismiss the second amended intervening bill should be sustained, I am precluded from so ruling by the law of the case already established by an order of Judge Reeves overruling a motion to dismiss the original intervening bill. Such decisions, among others, as Plattner Implement Co. v. International Harvester Co. (C. C. A. 8) 133 F. 376, 378; Commercial Union v. American Bank (C. C. A. 2) 10 F.(2d) 937; and Hardy v. North Butte Mining Co. (C. C. A. 9) 22 F.(2d) 62, are cited.
From the first of the cited cases, a decision of the Circuit Court of Appeals for the Eighth Circuit, the opinion in which was written by Judge Walter H. Sanborn and which (for both reasons) is especially authoritative and persuasive I quote language setting out the rule relied on: "That rule is `that the various judges who sit in the same court should not attempt to overrule the decisions of each other * * * except for the most cogent reasons.' * * * The rule * * * is a rule of comity and of necessity. * * * By its terms it permits the `most cogent reasons,' such as a certainty that a previous ruling was erroneous * * * to present exceptions to it. But the rule itself, and a careful observance of it, are essential to the prevention of unseemly conflicts, to the speedy conclusion of litigation, and to the respectable administration of the law, especially in the national courts, where many judges are qualified to sit at the trials, and are frequently called upon to act in the same cases."
Before this rule can govern a decision made by a judge who succeeds another in the same case, it must appear that that decision is of the same matter decided by his predecessor and that cogent reasons are not present justifying a different decision than that made by the predecessor judge. One possible such cogent reason, said Judge Sanborn, is a certainty that the earlier ruling was erroneous. Another possible cogent reason, which undoubtedly would be sufficient to justify *44 a departure from the rule, is a conclusion reached by the succeeding judge that the court has no jurisdiction either of the parties or the subject-matter. Unless the rule is reasonably interpreted, unless it is subject to the "cogent reasons" qualification stated by Judge Sanborn, it would reduce the succeeding judge to the character of mere automaton; it might compel him, for example, to go through the farce of the long trial of a case upon a petition which he knows states no cause of action or of which he knows the court has no jurisdiction whatever.
While this case was yet pending before Judge Reeves and before he disqualified, a motion to dismiss the original intervening bill filed by Mr. German was argued, submitted to him, and overruled. After he disqualified and the case was assigned to me, I was asked orally to consider again the same matters which had been presented to Judge Reeves. I did not do that. Then a second amended intervening bill was filed, in which, in my judgment, an entirely different cause of action is stated. It is this amended bill which is attacked by the present motion.
Whether the court has jurisdiction of the cause of action now stated never was decided by Judge Reeves. He decided an attack made on a different bill. It may be that in support of that attack the same arguments were made as have been made in support of the present attack, and that the same arguments were made contra; it may be that the same authorities were cited for and against that motion. As he understood the law Judge Reeves applied it to that motion. So far as the law of the case was thereby established, it was to the extent only that the original bill was good as against the motion attacking it. Finality was given only to that particular decision. The arguments and reasoning and the application of precedents which led to that decision were not given sanctity and such a character of conclusiveness as that when a motion to dismiss a different bill is before a succeeding judge he is bound by them. He who would take advantage of the law of the case must not abandon that to which the law of the case attached.
Not only does the rule have no application here for the reason that a wholly different matter than that decided by Judge Reeves is now for decision, but even if it were the same matter the law of the case rule does not restrict a succeeding judge in passing on a question of jurisdiction. Whether a court has jurisdiction is always an open question. And the question here is one of jurisdiction, not merely one of procedure, nor merely one such as some ordinary demurrer or motion might raise. It is a question of jurisdiction. Whether an attorney's cause of action against his client for compensation for services rendered may be ingrafted on the client's cause of action against another for patent infringement obviously is a question of jurisdiction. The two causes of action are wholly distinct from and independent of one another. So far as subject-matter is concerned, the jurisdiction of the court in the original case is limited by the pleadings of the original parties and by interventions proper under Equity Rule 37 (28 USCA § 723). Any other subject-matter cannot be thrust into the case except in some way the court's jurisdiction of the new subject-matter be established. The essence of this motion is that jurisdiction of this new subject-matter does not exist.
Conclusion.
My conclusion is that an attorney for a plaintiff in a patent infringement suit who out of court has settled his controversy with the defendant in that suit and has asked an order of dismissal cannot, over the objection of his client, summarily proceed against him in the patent suit to collect compensation for legal services rendered in that suit, and that the court in which the patent suit is pending has no jurisdiction in that suit on intervention, petition, or motion of the attorney to determine what compensation the attorney has earned and to give judgment therefor against the plaintiff. The remedy of the attorney against his client is by an independent action at law upon contract or at equity to foreclose his attorney's lien.
Order.
The motion of plaintiff, Universal Oil Products Company, to dismiss the second amended intervening bill of Charles W. German, having been duly considered by the court, and the court being fully advised in the premises, is by the court sustained and the bill dismissed. An exception is allowed. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360365/ | 190 Kan. 386 (1962)
375 P.2d 622
J.A. TUGGLE, Appellee,
v.
JOE C. JOHNSON, Defendant, JANE NAIL, Formerly Known As Carrol J. Johnson, Appellant, MARION BARLOW, d.b.a. The Barlow Agency, Appellee.
No. 42,677
Supreme Court of Kansas.
Opinion filed November 3, 1962.
Jack A. Quinlan, of Topeka, argued the cause, and Myron L. Listrom and Elwaine F. Pomeroy, of Topeka, were with him on the briefs for the appellant.
John W. Brand, Jr., of Lawrence, argued the cause, and Richard B. Stevens and John W. Brand, of Lawrence, were with him on the brief for appellee J.A. Tuggle.
D.S. Hults, of Lawrence, argued the cause, and was on the brief for appellee Marion Barlow, d.b.a. The Barlow Agency.
The opinion of the court was delivered by
WERTZ, J.:
This was an action for recovery of money, and to quiet title, and defendant Jane Nail appeals from an order of the trial court sustaining plaintiff's motion for judgment on the pleadings.
*387 J.A. Tuggle, plaintiff (appellee), brought this action against defendants Joe C. Johnson, Jane Nail, formerly Carrol J. Johnson, appellant herein, and Marion A. Barlow, d.b.a. The Barlow Agency, alleging in pertinent part that plaintiff was the owner of certain described real estate, and that he entered into a written agreement with defendant Joe C. Johnson for the sale of real estate for a stated amount therein, of which $1,000 was earnest money escrowed with defendant Barlow. The agreement was made a part of the petition, and provided that plaintiff was to build and complete a dwelling house according to plans and specifications, and, on compliance with other provisions of the contract, defendant Joe C. Johnson was to pay the purchase price. In the event Johnson failed to perform his obligations under the terms of the agreement, he was to forfeit the escrow deposit.
The agreement further provided that Joe C. Johnson should not be obligated to complete the purchase of the property or incur any penalty or forfeiture of the earnest money deposited unless the plaintiff delivered to the purchaser a written statement issued by the Federal Housing Commissioner setting forth the appraised value of the property for mortgage insurance purposes of not less than the stated amount, and that said contract should extend and be obligatory upon the heirs and assigns of the respective parties.
The petition then alleged that Joe C. Johnson neglected and refused to carry out the terms of the agreement; that plaintiff was willing to, and did, comply with the agreement; that The Barlow Agency had in its possession, as escrow agent, $1,000 earnest money; and that as a result of the default of Joe C. Johnson, the plaintiff is entitled to the $1,000 forfeiture money.
The petition further alleged that defendant Jane Nail, formerly Carrol J. Johnson, claimed some right, title or interest in the said agreement, but if she had any right or title it was inferior to the claim of the plaintiff; and further, that Jane Nail had no right, title or claim to the thousand dollars earnest money.
Plaintiff asked judgment against defendants for $1,000, and that defendants Joe C. Johnson, Jane Nail, formerly Carrol J. Johnson, and Marion A. Barlow be precluded from any right, title or interest in and to said $1,000 escrow earnest money.
Defendant Jane Nail filed her unverified answer and cross petition in which she denied all of the allegations of plaintiff's petition except as admitted. She admitted that the $1,000 was paid as *388 earnest money to the defendant Barlow, but specifically denied that the $1,000 earnest money was paid by defendant Joe C. Johnson and alleged that the same was paid by her. She further alleged that she was the actual purchaser of the property described in the petition, that she was entitled to the return of the $1,000 earnest money so deposited, and sought judgment against plaintiff and the other defendants for the $1,000.
Defendant Nail's cross petition against the plaintiff and the other two defendants contained the following allegations: That defendant Barlow was employed by, and the agent of, plaintiff Tuggle at all times mentioned; that defendant Barlow, acting as the agent of Tuggle, persuaded the answering defendant to purchase the property described in the contract; that she did agree to purchase it subject to her being able to obtain a standard FHA insured mortgage loan in the stated amount; that the plaintiff agreed to sell the said property to her under said terms and conditions; that the contract between Tuggle and Johnson was incomplete in that it did not show defendant Nail as a purchaser, it did not show that she paid the earnest money, and it did not contain the condition that the contract was subject to obtaining an FHA loan; that at the time the contract was signed defendant Nail protested that it was incomplete, but appellee advised that it was necessary for the contract to be written in this manner to obtain the necessary FHA financing; that at two later dates she paid Tuggle a total of $1,887.65 for extras included in said property, and that Tuggle permitted her to move into the property and charged her four months' rent totaling $520; that this answering defendant was unable to obtain the necessary FHA financing and, therefore, said contract should be canceled and set aside and held for naught; that the interest money deposit of $1,000 now held by the defendant Marion Barlow should be returned to this answering defendant; and the payment made by this answering defendant to the plaintiff in the total sum of $2,407.65 should be returned to this answering defendant.
The defendant Barlow answered admitting the execution of the written contract and the receipt of earnest money. By counterclaim he asked for an $875 real estate commission.
Plaintiff Tuggle joined issues by filing a reply to defendant Nail's answer and cross petition in which he specifically denied each and every averment contained in the answer and cross petition, and renewed his prayer for judgment in accordance with the petition.
*389 Subsequently plaintiff filed his motion for judgment on the pleadings as against defendant Nail for the reason that the answer of defendant Nail raised no issue of fact for trial and failed to state any defense for plaintiff's cause of action as set forth in his petition.
From an order of the trial court sustaining this motion, defendant Nail has appealed.
Plaintiff, in justification of the trial court's ruling, contended that because the answer and cross petition of Nail was not verified she admitted the execution of the contract and all its contents, and, therefore, failed to state facts sufficient to constitute a defense or valid counterclaim. This contention was predicated on G.S. 1949, 60-729, which provides that in actions founded on a written instrument for the unconditional payment of money the answer must be verified. Assuming that a verification to the answer was necessary, we must consider that when the answer and cross petition was filed plaintiff did not challenge its sufficiency either by demurrer or motion, but chose to plead over by filing a reply denying the new matter and renewing the prayer of his petition. By pleading over, plaintiff waived lack of verification of the answer and cross petition. We stated in Brandtjen & Kluge, Inc., v. Lucas, 153 Kan. 138, 109 P.2d 197:
"Where in an action in which an answer should ordinarily be verified as provided in the latter sentence of G.S. 1935, 60-729, the defendant files an unverified answer and cross petition, and the plaintiff does not challenge the sufficiency thereof either by demurrer, motion or otherwise, but pleads over by filing a reply putting in issue the new matter alleged and renewing the prayer of his petition, the plaintiff waives the lack of verification." (Syl. 3.)
See, also, Schreiner v. Rothgarn, 154 Kan. 20, 114 P.2d 834; Cook v. Donner, 145 Kan. 674, 676, 677, 66 P.2d 587; Greensburg Production Credit Ass'n v. Buckner, 152 Kan. 398, 103 P.2d 881. The plaintiff, by filing the reply, waived the lack of verification in the answer and cross petition of Nail, and the motion for judgment on the pleadings should not have been sustained.
In his petition the plaintiff elected to make Jane Nail a party defendant and alleged that she had an interest or claimed some interest to the $1,000 escrow fund. In her answer and cross petition defendant Nail denied plaintiff's claim, set up her interest, and alleged that she had deposited the $1,000 and was entitled to it. Certainly the pleadings, as joined, raised issuable facts. Ordinarily a motion for judgment on the pleadings invokes the judgment of the trial court on questions of law as applied to the pleaded and conceded facts. *390 A judgment on the pleadings is rendered not because of lack of evidence or proof but because of lack of issue of fact. If there is no issue of material fact presented by the pleadings, then it becomes a question of law as to which party is entitled to judgment; but, if a material issue of fact is presented and remains undetermined, a judgment on the pleadings is improper. This court has repeatedly held that a motion for judgment on the pleadings should be denied where the petition states a cause of action, the answer states a defense, and the reply denies every material allegation of the answer inconsistent with the allegations of the petition. Such a motion cannot be sustained when issues of fact upon which a valid judgment might be based are joined by the pleadings. (Manning v. Woods, Inc., 182 Kan. 640, 642, 324 P.2d 136, and cases cited therein.) See, also, Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 337 P.2d 992; Clark Lumber Co. v. Passig, 184 Kan. 667, 339 P.2d 280; and Young v. Barker, 185 Kan. 246, 250, 342 P.2d 150.
In view of what has been said, the judgment of the trial court is reversed and the cause is remanded with directions to set aside the order sustaining plaintiff's motion for judgment on the pleadings and proceed with the trial.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360367/ | 667 S.E.2d 85 (2008)
CUYUCH
v.
The STATE.
No. S07G1789.
Supreme Court of Georgia.
September 22, 2008.
*86 Carlton Crow Carter, Canton, for appellant.
Garry Thomas Moss, Dist. Atty., Wallace W. Rogers Jr., Samuel Kevin Barger, Asst. Dist. Attys, for appellee.
SEARS, Chief Justice.
We granted certiorari in this case to consider whether the Court of Appeals erred in affirming the trial court's admission into evidence of statements made to police officers by the victim and one of the victim's friends.[1]*87 Because the statements were inadmissible under Crawford v. Washington[2] and its progeny, we reverse the Court of Appeals' judgment.
1. Officer Isin of the Canton Police Department testified that, on September 30, 2001, about 1:30 a.m., he was approached by 16-year-old Juan Pasqual, who was bleeding heavily from a cut on his left arm. Officer Isin asked Pasqual what had happened, and Pasqual told him that his roommate, later identified as the appellant, Leonardo Cuyuch, had cut him. Officer Isin asked Pasqual where he lived and if his roommate was still home. Pasqual told Isin that he lived at 280 Scott Mill Road and that his roommate was still home. Officer Isin testified that the address was only about 300 feet from where he first encountered Pasqual.
At that point, another officer, Sergeant Lummus of the Canton Police Department, arrived on the scene as backup. Officer Isin testified that he stayed with Pasqual while Sergeant Lummus drove toward the address given by Pasqual to see if Cuyuch was still there. Officer Isin testified that, as a medical unit arrived and was treating Pasqual, Sergeant Lummus called Isin and told him that he (Lummus) had arrested Cuyuch. Officer Isin then drove Pasqual to his residence "to identify the person." According to Isin, when they arrived, Cuyuch was handcuffed and sitting in the back of Sergeant Lummus's car, and Pasqual identified Cuyuch as the person who had cut him. Sergeant Lummus testified that, as he drove toward the address that Pasqual had given, he saw a man, Francisco Lorenzo, standing on the side of the road yelling that his friend needed help. Sergeant Lummus added that there was a language barrier and that he could not understand who needed help. Lummus then had Lorenzo get in his car and show him where he wanted to go. Lorenzo took him to 280 Scott Mill Road. Officer Lummus added that, when they arrived at the residence, "whatever happened had already happened prior to [his] arrival," that Cuyuch was sitting on a sofa, that another person was sitting in a chair across from Cuyuch, and that the two of them were watching television. Officer Lummus also testified that, during his ensuing investigation, the person sitting across from Cuyuch did not appear to be afraid of Cuyuch and that Cuyuch never tried to leave the premises.
Once Sergeant Lummus and Lorenzo went into the house, Lorenzo repeated that his friend needed help and pointed to Cuyuch. Because Cuyuch did not appear to need help, Lummus contacted a translator in the hope of better understanding what Lorenzo was trying to communicate. Sergeant Lummus testified that he asked the translator to help Lorenzo explain who needed help. Sergeant Lummus added that, after the translator spoke to Lorenzo, the translator told Lummus that Lorenzo said that "his friend Pasqual" was the one who needed help, that "he had been badly cut," and that "the person sitting on the couch [i.e., Cuyuch] was the person who had cut him." The translator also told Sergeant Lummus that Lorenzo knew where the weapon was thrown, and Lummus had Lorenzo show him where the weapon was. Sergeant Lummus recovered the weapon, a carpenter's knife, in the yard.
Pasqual and Lorenzo apparently could not be located at the time of trial and did not testify. Similarly, the translator did not testify. Based on the foregoing evidence, Cuyuch was convicted of aggravated battery. On appeal, the Court of Appeals affirmed.
2. Under Crawford v. Washington, "the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination."[3] Statements made by witnesses to police officers investigating a crime are testimonial in nature "when the primary purpose" of the statements is "to establish or prove past events potentially relevant to later criminal prosecution."[4] Such testimonial statements *88 may not be admitted into evidence unless the requirements of Crawford are satisfied.[5] On the other hand, however, statements made by witnesses to questions of investigating officers are nontestimonial when they are made primarily "to enable police assistance to meet an ongoing emergency."[6] Such nontestimonial out-of-court statements are admissible if they meet one of this State's hearsay exceptions.[7] Moreover, as the Supreme Court emphasized in Davis, when police questioning of a witness exists, "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate."[8]
An examination of the Supreme Court's application of these principles to Davis and its companion case, Hammon v. Indiana, is useful to resolving the present case. In Davis, a woman, Michelle McCottry, called 911 and described an ongoing emergency to the 911 operator, telling the operator that "he" was hitting her and "jumpin' on" her. In response to a question by the operator, the caller gave the operator the perpetrator's name, Adrian Davis, and then told the operator that he had run out the door and left in a car.[9]
In Hammon, the police responded to a report of domestic abuse and found Ms. Hammon on the front porch of her home. She told the officer that there was nothing wrong, but when the police entered the house (with Ms. Hammon's permission), they saw broken glass on the floor and a damaged gas heating unit. Mr. Hammon, who was in the kitchen, told the officers that he and his wife had been in an argument but that he had not physically assaulted her. Upon questioning by one of the officers, however, Ms. Hammon stated that Mr. Hammon had broken the furnace, hit her in the chest, and thrown her onto the broken glass.[10]
In Davis, the Court concluded that the questions by the 911 operator had not produced testimonial statements. The Court reasoned that statements made during an interrogation that established "facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator" would be testimonial.[11]
The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" [Crawford v. Washington, 541 U.S. at 51, 124 S.Ct. 1354].[12]
To support this conclusion, the Court noted that
[t]he solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e.g., United States v. Stewart, 433 F.3d 273, 288 (C.A.2 2006) (false statements made to federal investigators violate 18 U.S.C. § 1001).[13]*89 In examining McCottry's statements in Davis, the Court concluded that because "McCottry was speaking about events as they were actually happening, rather than `describ[ing] past events,'"[14] and because she was facing and attempting to resolve an ongoing emergency, she was not attempting to be a witness against Davis, and her statements thus were not testimonial.[15] The Court did note, however, that during such an emergency, some statements could be considered testimonial and some nontestimonial and that the testimonial statements should be excluded from evidence.[16]
In Hammon, the Court concluded that Ms. Hammon's statements were testimonial, as there was no emergency in progress and as the statements she made in response to police questions recounted "potentially criminal past events."[17] The Court stated that, because Ms. Hammon's statements "were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were `initial inquiries' is immaterial" and did not detract from the conclusion that the statements were testimonial.[18]
3. In the present case, we assume without deciding that the primary purpose of Pasqual's statements to Officer Isin that his roommate had cut him and was still at home were made to enable Officer Isin to meet an ongoing emergency and thus were nontestimonial in nature. It is clear, however, that the primary purpose of Pasqual's identification of Cuyuch at the crime scene was to establish past facts with a view to a future prosecution. As such, Pasqual's statement identifying Cuyuch was testimonial in nature and thus inadmissible hearsay since Cuyuch did not have a prior opportunity to cross-examine Pasqual.
Moreover, evaluating Lorenzo's statements when he and Sergeant Lummus arrived at the residence where the crime occurred, we acknowledge that it is possible that Sergeant Lummus thought he was dealing with a crime victim other than Pasqual at the residence and thus thought he might be dealing with an ongoing emergency. However, as Davis counsels, "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate."[19] Thus, we must determine whether Lorenzo, in response to Sergeant Lummus's and the translator's questions, was primarily attempting to deal with an ongoing emergency, as was McCottry in Davis, or whether he was attempting to describe past events and serve as a witness against Cuyuch.
We conclude that the record shows that, in critical part, Lorenzo was primarily describing past events and was attempting to provide evidence against Cuyuch. At the outset, we note that Lorenzo's statements were not made to curtail any emergency threat from Cuyuch, as the uncontradicted testimony is that, while Lorenzo and Sergeant Lummus were in the house, Cuyuch was calmly watching television with another person. Admittedly, the record does not show whether Lorenzo knew whether Pasqual was still at the residence or had left the residence when he and Sergeant Lummus arrived. Thus, it is unclear whether Lorenzo was attempting in any way to obtain emergency aid for Pasqual by identifying Pasqual as the person who needed help.
In any event, however, Lorenzo's statements that he knew that the knife was in the front yard and that Cuyuch was the person who had stabbed Pasqual cannot be said to have been given primarily to assist in providing aid to Pasqual. Instead, these statements, made in response to a question by Sergeant Lummus through the translator as to who needed help, were describing past events and identified and reported Cuyuch as *90 the perpetrator of a past crime. At that point, Lorenzo was effectively "acting as a witness"[20] against Cuyuch. As noted in Davis, reporting to an officer that a person has committed a past crime is a solemn act that can have severe consequences if false.[21] For the foregoing reasons, we conclude that these solemn declarations of Lorenzo were testimonial in nature. Accordingly, Lorenzo's out-of-court statements were inadmissible since Cuyuch had not had a prior opportunity to cross-examine Lorenzo.
Because the inadmissible hearsay statements of Pasqual and Lorenzo may not be considered in evaluating the sufficiency of the evidence to support Cuyuch's conviction,[22] and because, without that evidence, the evidence is wholly insufficient for a rational trier of fact to have found Cuyuch guilty of aggravated assault beyond a reasonable doubt,[23] we must reverse Cuyuch's conviction.
Judgment reversed.
All the Justices concur.
NOTES
[1] Cuyuch v. State, 286 Ga.App. 629, 649 S.E.2d 856 (2007).
[2] 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
[3] Pitts v. State, 280 Ga. 288, 288, 627 S.E.2d 17 (2006). See Crawford, 541 U.S. at 68, 124 S.Ct. 1354.
[4] Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Accord Hester v. State, 283 Ga. 367, 370-372, 659 S.E.2d 600 (2008); Pitts, 280 Ga. at 289-291, 627 S.E.2d 17; Brawner v. State, 278 Ga. 316, 318-319(2), 602 S.E.2d 612 (2004); Bell v. State, 278 Ga. 69, 71-72, 597 S.E.2d 350 (2004).
[5] Davis, 547 U.S. at 821, 126 S.Ct. 2266.
[6] Id. at 822, 126 S.Ct. 2266. Accord Hester, 283 Ga. at 370, 659 S.E.2d 600.
[7] Pitts, 280 Ga. at 288, 291, 627 S.E.2d 17.
[8] Davis, 547 U.S. at 822, n. 1, 126 S.Ct. 2266. See Robert P. Mosteller, Softening the Formality and Formalism of the "Testimonial" Statement Concept, 19 Regent U.L.Rev. 429 (2006-2007) (focusing on a single perspective the intent of the declarant or the questioner is not required under Confrontation Clause and focusing on intent of declarant is appropriate).
[9] Davis, 547 U.S. at 817-818, 126 S.Ct. 2266.
[10] Id. at 819-820, 126 S.Ct. 2266.
[11] Id. at 826, 126 S.Ct. 2266.
[12] Id. at 827, 126 S.Ct. 2266.
[13] Id. Similarly, in Georgia, "[a] person who willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state is guilty of a misdemeanor." OCGA § 16-10-26.
[14] Id. at 827, 126 S.Ct. 2266 (quoting Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)).
[15] Id. at 827-828, 126 S.Ct. 2266.
[16] Id. at 828, 126 S.Ct. 2266.
[17] Id. at 830, 126 S.Ct. 2266. Accord Pitts, 280 Ga. at 291, 627 S.E.2d 17.
[18] Davis, 547 U.S. at 832, 126 S.Ct. 2266.
[19] Id. at 822, n. 1, 126 S.Ct. 2266.
[20] Id. at 828, 126 S.Ct. 2266.
[21] Id. at 826, 126 S.Ct. 2266; OCGA § 16-10-26 ("A person who willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state is guilty of a misdemeanor.").
[22] Woodruff v. Woodruff, 272 Ga. 485, 488, 531 S.E.2d 714 (2000); Walsh v. State, 269 Ga. 427, 428, 499 S.E.2d 332 (1998).
[23] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360520/ | IN RE: D.H., C.H., J.H., E.H.
No. COA08-667
Court of Appeals of North Carolina
Filed October 21, 2008
This case not for publication
Robert A. Lester, for petitioner-appellee Rowan County Department of Social Services.
Jon W. Myers, for respondent-appellant mother.
David A. Perez, for respondent-appellant father.
Pamela Newell Williams, for guardian ad litem.
STEELMAN, Judge.
The trial court's findings of fact were supported by clear, cogent and convincing evidence that supported its conclusion that grounds existed to terminate father's parental rights to these four juveniles. The trial court did not abuse its discretion in determining that termination was in the juveniles' best interests.
I. Factual and Procedural Background
The Rowan County Department of Social Services ("DSS") has been involved with respondents' family since 1998. DSS's involvement with the family continued in 2004 and 2005 following substantiated reports of domestic violence and substance abuse. On 1 March 2006, a DSS social worker received a call regarding a domestic dispute at respondents' home. When the social worker arrived at respondents' home, she found the home to be in "complete disarray with beer cans in the kitchen/living room area, trash to include an old pizza box stuffed with trash and food about the home." Additionally, respondents had "three small pigs, several dogs, a bird and a cat living in the home." The social worker observed "animal feces throughout the home." Moreover, the juveniles were found sleeping on a pallet on the floor.
Father reported to the social worker that mother was "harassing him for prescription medication and had locked him out of the home." The social worker observed bruises and scratches on mother's arm. Mother told the social worker that father had been "slamming her arm in the door in an attempt to get her to give him his keys and cell phone." Mother claimed that she and the juveniles slept in a locked bedroom because "drug addicts and drug dealers come in and out of her home, and she does not feel safe." The children were placed with the maternal grandmother for the night.
Father and mother met with the social worker the next day. The social worker requested that they both take a drug screen. On the way to the screening, father "ripped up the drug screen voucher and jumped out of his car. . . ." He then returned and informed the social worker that the children and the maternal grandmother were on their way to Tennessee. The social worker received a call from the maternal grandmother, who was in Boone, North Carolina. Grandmother told the social worker that father had given her $200.00 to take the children to Tennessee and planned to meet them there. She agreed to return the juveniles to the social worker. On 3 March 2006, DSS filed a petition alleging that D.H., C.H., J.H., and E.H. were neglected juveniles. DSS assumed custody of the children under a non-secure custody order.
On 2 June 2006, the juveniles were adjudicated neglected by consent order and custody was continued with DSS. The court ordered that father: (1) obtain a substance abuse evaluation and comply with all recommendations; (2) complete parenting classes; (3) submit to professional counseling to address his parenting skills and his enabling of mother's substance abuse; (4) attend counseling with the children as deemed appropriate by the children's therapist; (5) maintain a safe and clean home environment, free of illegal controlled substances; (6) submit to random drug screens; and (7) address domestic violence issues in group therapy. Additionally, the court ordered that mother: (1) obtain a substance abuse evaluation and comply with all recommendations; (2) complete parenting classes; (3) receive counseling as appropriate; (4) attend counseling with the children as deemed appropriate by the children's therapist; (5) obtain and maintain stable housing and employment, should she not reconcile with father; (6) submit to random drug screens; and (7) address domestic violence issues in group therapy.
A permanency planning review hearing was held on 13 July 2006. The trial court found that mother had refused to cooperate with DSS and had made "little progress" towards reunification efforts. Accordingly, the court authorized DSS to cease reunification efforts with mother.
On 25 and 26 January 2007, the trial court held another permanency planning review hearing. The trial court made findings regarding a trial placement of the children with father that began on 24 August 2006, and ended on 2 November 2006. The court found as fact that during the trial period, father "did not consistently keep a safe and clean home. . . ." DSS received reports of drug use in the home, further instances of domestic violence, and of the home being "dirty and messy." When DSS arranged for in-home aide services, father missed appointments. When a note was left for father informing him that he was "non-compliant" with services, he responded with an "angry and belligerent" message. The children were missing school unnecessarily. On 20 October 2006, during an unannounced visit, DSS observed father and a female guest in an impaired condition. DSS visited the home again on 27 October 2006 and found the home in "disarray." On 2 November 2006, DSS arrived at the home with law enforcement to end the trial placement. Father locked the door and refused entry into the home. Eventually he allowed entry to the DSS workers.
Another review hearing was held on 26 April 2007. The trial court found that father had tested positive for cocaine on several occasions. Father had also failed to attend all of his twelve-step and domestic violence support group meetings. The court also made findings concerning father and mother's turbulent home life, including continuing substance abuse and domestic violence. The court concluded that father and mother were unable to achieve a safe, permanent home for the children within a reasonable time. Accordingly, the trial court changed the permanent plan for the children to adoption.
On 21 June 2007, DSS filed a petition to terminate father's and mother's parental rights. DSS alleged that they had neglected the juveniles within the meaning of N.C. Gen. Stat. § 7B-101(15), and that the probability that neglect would be repeated was "very high." DSS further alleged that the juveniles had been placed in the custody of DSS and that mother, for a continuous period of six months immediately preceding the filing of the petition, had failed to pay a reasonable portion of the cost of care for the juveniles although physically and financially able to do so, pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).
Hearings were held on the termination petition on 1 November 2007, 19 November 2007, 20 December 2007, and 24 January 2008. The trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to terminate both father's and mother's parental rights, and grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) to terminate mother's parental rights. The court further concluded that it was in the juveniles' best interests that both father's and mother's parental rights be terminated. Father and mother appeal.
III. Analysis
A. N.C. Gen. Stat. § 7B-1111(a)(1)
In his first argument, father contends that the trial court's conclusion that there were statutory grounds to terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) was unsupported by competent evidence in the record. We disagree.
N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). The court may terminate the parental rights upon a finding that the parent has abused or neglected the juvenile as defined by Chapter 7B of the North Carolina General Statutes. N.C. Gen. Stat. § 7B-1111(a)(1)(2007). The trial court concluded D.H., C.H., J.H., and E.H. were neglected juveniles. "Neglected juvenile" is defined in N.C. Gen. Stat. § 7B-101(15) as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15). "The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law." In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9, 10 (2001)).
1. Challenged Findings of Fact
Father challenges findings of fact 13 and 16 as unsupported by clear, cogent and convincing evidence. The challenged portions of finding of fact 13 read:
[R]espondents have neglected the juveniles, continue to neglect the juveniles, and the probability of the repetition of neglect . . . is very high. . . . [E]vidence presented to the court establishes this ground for termination as described below:
. . .
b. [Father] . . . agreed and the court ordered [him] to complete substance abuse evaluations and to follow recommendations of the assessments, to complete parenting classes, to receive counseling, to attend counseling with the children as appropriate, to maintain safe, clean homes free of illegal drugs, to submit to random drug screens as requested, and to address domestic violence issues. [Father] ha[s] not satisfied the requirements of the court, although over twenty-two months have now passed since the juveniles were taken into nonsecure custody.
c. [Father] has [not] remained free of illegal drugs during the time that the children have been in nonsecure custody. Although drug abuse did not appear to be a problem for [him] when the children first came into nonsecure custody, [father] began to test positive for illegal controlled substances in the beginning of 2007. [Father] tested positive for cocaine on January 5, 2007, March 5, 2007, and April 4, 2007. He tested positive for cocaine and opiates on April 16, 2007. He tested positive for benzodiazepines, morphine, and methadone on August 27, 2007. [He] completed drug treatment recommended by Alternatives Counseling, Inc. on June 20, 2007. Alternatives recommended that [father] continue to attend Narcotics Anonymous groups. [Father] never provided documentation to Social Worker Wright that he attended NA groups. [Father] admits that he continues to "lock up" his prescription medication so that [mother] will not have access to them. When asked by Social Worker Wright why he began to abuse drugs when drugs were not a problem for him early in the case he responded that he couldn't beat it, so he joined [mother]. . . .
d. [Respondents] continue to have unresolved domestic violence issues between them. Since March 2, 2006 [mother] has indicated to Social Worker Wright and others on numerous occasions that [father] has physically abused her. On November 30, 2006, Social Worker Wright observed [mother] at Day mark with bruises on her head, arms, and legs. When asked about the marks, [mother] responded, "You know what happened." [Mother] went on to explain that [father] was angry that Social Worker Wright had recently been out to the home and had taken his anger out on [her]. On December 31, 2006 [mother] reported to the hospital in Iredell County. She called Social Worker Wright from the hospital, indicating that [father] had assaulted her again and that she was afraid of him. In April of 2007 police responded to a domestic call at [father's] residence. [Mother] had indicated to law enforcement that [father] had hit her in the throat with toothpaste. [Father] was observed by law enforcement to be impaired. [Mother] told law enforcement that [father] sold pills from the residence and drove without insurance. On July 13, 2007 law enforcement responded to another domestic violence call at [father's] residence. [Mother] reported that [father] had slapped her in the face and had cut her hair. [Mother] was impaired and had a lock of hair in her hand. She told law enforcement that she was afraid of [father] and wanted him to be arrested. [Respondents] argued in front of law enforcement about whether or not [mother] lived at the residence. During the weekend of October 26, 2007 [father] called 911 to report that [mother] was threatening suicide. [Mother] denied a suicidal threat. On November 2, 2007 and into the morning of November 3, 2007 [father] again called 911 indicating that [mother] was threatening to kill herself. Law enforcement arrived and found a large amount of blood in the home and on [mother], but none on [father]. [Mother] maintains through testimony that she was not truthful when she complained of [father] battering her. She maintains that if [father] refused to give her pills she would call law enforcement and make false accusations against him. . . . Whether or not [father] has assaulted [mother] in the past, their relationship has been and continues to be unpredictable, dysfunctional, and unhealthy. Raising children in such a volatile, unstable environment is not in the best interests of the children.
e. Neither respondent has completed domestic violence treatment as ordered by the court. [Father] was specifically ordered . . . to complete an intensive domestic violence program for batterers. [Father] was referred to Genesis, A New Beginning, in Cabarrus County. He completed an assessment on April 3, 2007 but attended only five groups. He did not appear for eight groups at all, and cancelled on two other occasions. The abuser treatment program requires that he complete all groups within thirty weeks. [Father] was re-evaluated to begin his groups again on October 22, 2007 and attended his first group on October 30, 2007, two days before the first day of trial in this TPR hearing. During the evaluation process. . ., [father] blamed others, including [DSS], for his problems. He reported that he gave pills to his wife to prevent fights and admitted to verbal and physical abuse between himself and [mother]. He acknowledged being an enabler of his wife's drug abuse and admitted that his actions had affected his family. [Father] minimized his own drug problem, admitting . . . only to using cocaine on one occasion for toothache pain. . . .
f. [Respondents] have serious trust and honesty issues, a constant theme and hindrance to progress throughout this case. [Father] was given the opportunity to have a trial placement with the children from August 24, 2006 until November 2, 2006. Since [mother] was not attending court during the time leading up to the trial placement, was not in contact with [DSS], was not completing any of the court's orders, and was not actively in drug treatment, the court ordered as a condition of the trial placement that [father] not allow [mother] to be in the family home or to have any contact with the children. [DSS] began to receive information that [mother] was having unauthorized contact with the children. [Father] eventually admitted that he was allowing [mother] to be in the home and to have contact with the children, although each time he spoke about the contact he changed his story regarding how frequently [mother] was in the home. [Father] was dishonest . . . about his drug use. He and [mother] have disagreed throughout the history of this case and before about whether or not [mother] lives in the residence. . . . [DSS] has never known for sure the address of [mother]. [Respondents] have been home on occasions when Social Worker Wright would attempt to visit the home but have refused to answer the door. . . .
g. The juveniles have been in the nonsecure custody of [DSS] for nearly two years at this time, and the respondents are not in any better position today than they were in March 2006 to parent the children. It is not likely that the children would be able to return home within six months.
Father contends that the evidence showed that he completed parenting classes as required by DSS; he completed substance abuse treatment per the recommendations of his assessment; he was not requested to participate in the children's counseling; his home was clean, safe and drug free at the time of the termination hearings; he was no longer enabling mother in her drug use; he was making significant progress towards the domestic violence concerns; and his failure to complete the domestic violence sessions earlier was due to circumstances beyond his control. He further asserts that there was no competent evidence to show that he was using drugs or allowing others to use drugs in his home at the time of those hearings.
Having reviewed the record, including mother's testimony and the testimony of law enforcement officers and social workers, we conclude that the above findings are each supported by clear, cogent and convincing evidence. To the extent that there were inconsistencies in the testimony, or that different inferences arose from the evidence, it was the role of the trial court to resolve those differences. See In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (it is the trial judge's duty to "weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom"). Finding of fact 13, discussed supra, in turn supports finding of fact 16, where the court found that "Statutory grounds exist for terminating [father's] parental rights . . . as to all four juveniles, namely N.C.G.S. 7B-1111(a)(1)." We hold that findings of fact 13 and 16 are supported by clear, cogent and convincing evidence. D.J.D., 171 N.C. App. at 238, 615 S.E.2d at 32.
2. Challenged Conclusions of Law
In the remainder of his argument, father contends that the trial court erred in terminating his parental rights because the neglect was not continuing at the time of the termination hearing. He also challenges the trial court's conclusion regarding probability of repetition of earlier neglect.
A parent's failure to make progress towards reunification is some evidence of continued neglect. See In re C.M., 183 N.C. App. 398, 644 S.E.2d 630 (2007) (affirming termination where there was evidence that the parent failed to show an ability to properly parent the children by using the skills that had been taught in the various programs that the parent attended); In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000) (affirming termination where respondent was not able to demonstrate that she could adequately provide for her child's needs, even after nearly two years of "diligent efforts" by DSS). The trial court found that father tested positive for illegal substances on 27 August 2007, two months after completing substance abuse treatment and four months after the court changed the permanent plan to adoption. The trial court further found that father twice called police in the two months preceding the termination hearings to report that mother was threatening suicide:
During the weekend of October 26, 2007 [father] called 911 to report that [mother] was threatening suicide. [Mother] denied a suicidal threat. On November 2, 2007 and into the morning of November 3, 2007 [father] again called 911 indicating that [mother] was threatening to kill herself. Law enforcement arrived and found a large amount of blood in the home and on [mother] but none on [father].
Father's contention that he was making significant progress towards resolving domestic violence concerns ignores the detrimental impact of episodes such as this one that created an environment injurious to children.[1] We hold that the trial court's detailed findings of fact amply support its conclusions that the juveniles were neglected, that father neglected the juveniles, and that there was a "very high" probability that father's neglect would be repeated. Accordingly, we hold that sufficient grounds existed for termination of father's parental rights under N.C. Gen. Stat. § 7B-1111(a)(1).
B. Best Interests Analysis
In father's second argument, and mother's sole argument, respondents contend that the trial court abused its discretion in concluding that it was in the best interests of the juveniles to terminate their parental rights. We disagree.
Mother contends that she was making progress and there was a reasonable hope that the family could be reunified. She further contends that the trial court failed to consider the likelihood that J.H. would be adopted. Father disputes the "adoptability" of J.H., noting that J.H. and C.H. were no longer in a viable adoptive placement. Father argues that termination of his parental rights was an "unnecessary severance" which did not achieve the best interests of the children, particularly J.H. and C.H.
"The trial court has discretion, if it finds that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the [juvenile's] best interests." In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). Factors to consider in determining the juvenile's best interests include: (1) the age of the juvenile; (2) the likelihood of adoption; (3) the impact on the accomplishment of the permanent plan; (4) the bond between the juvenile and the parent; (5) the relationship between the juvenile and a proposed adoptive parent or other permanent placement; and (6) any other relevant consideration. N.C. Gen. Stat. § 7B-1110(a)(2007). The court is to take action "which is in the best interests of the juvenile" when "the interests of the juvenile and those of the juvenile's parents or other persons are in conflict." N.C. Gen. Stat. § 7B-1100(3)(2005). The determination that termination of a parent's rights is in the child's best interest is a discretionary one, and the ruling will not be disturbed on appeal unless it "is so arbitrary that it could not have been the result of a reasoned decision." In re J.B., 172 N.C. App. 747, 751, 616 S.E.2d 385, 387, aff'd, 360 N.C. 165, 622 S.E.2d 495 (2005) (citations and internal quotations omitted).
In the instant case, the trial court's detailed findings of fact reveal that the trial court considered the factors required by N.C. Gen. Stat. § 7B-1110(a). The trial court made specific findings regarding the age of each child. Additionally, the trial court found that:
1. The juveniles are doing well in their foster care placements. . . .
2. D.[H.] has been in the care of the [] foster family since November 2, 2006, approximately fourteen months. D.[H.] is [] years old and has her ups and downs in the foster home, but she is happy and has learned how to become a child. She has learned to play, as opposed to acting like an adult as she did when she first began to live with the [foster family]. She is now able to focus on normal childhood activities such as soccer, cheer leading, girl scouts, softball, camping, and hiking. D.[H.] is able to visit with her siblings regularly. She has a hard time coping and readjusting after having contact with her biological parents. . . . After visits and phone calls she is irritable and withdrawn for a while. D.[H.] is in counseling. . . .
3. The [foster family] and D.[H.] are very bonded. The [foster family is] interested in adopting D.[H.] They love her and wish to provide a permanent home for her.
4. [Ms.] K. is the foster parent for C.[H.], J.[H.], and E.[H.] She is very interested in adopting E.[H.] She loves all three children and feels very bonded to them, but C.[H.] and J.[H.] have very high needs that Ms. K. does not feel she can meet long-term.
. . .
6. Terminating the parental rights of the respondents is necessary to accomplish the best permanent plan for the juveniles which is adoption.
7. [D.H.'s foster family is] able and willing to provide a permanent home for D.[H.] and [Ms.] K. is able and willing to provide a permanent home for E.[H.] Terminating the parental rights of the respondents as to C.[H.] and J.[H.] as early as possible will enable the juveniles the best chance possible to be placed in an adoptive home as soon as possible.
From these findings, it is clear that the trial court considered the likelihood of adoption and whether the termination of parental rights would aid in achieving the permanent plan of adoption. We find respondents' argument that the lack of an adoptive placement is a bar to termination to be unavailing. The record is replete with evidence that the children suffered severely from their upbringing with their parents and further trauma from the trial placement returning them to father's home. Such evidence is properly considered in evaluating the bond between the child and the parent, which is another factor to be considered by the court. N.C. Gen. Stat. § 7B-1110(a)(2007). Moreover, the incidents ofdomestic disputes, the parents' unwillingness or inability to take accountability for their actions and take advantage of offered services, the continued spiral of drug use and addiction were all proper "other relevant considerations" for the trial court to factor into its ruling. N.C. Gen. Stat. § 7B-1110(a)(2007).
The trial court, sitting as finder of fact in an extensive termination hearing, heard the witnesses, passed upon their credibility, and determined the "weight to be given their testimony and the reasonable inferences to be drawn therefrom." Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435. Having carefully reviewed the record, briefs and contentions of the parties, we can discern no abuse of discretion.
AFFIRMED.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
NOTES
[1] It is clear from the transcripts that the court's findings were limited to those necessary to support its ruling. A pattern of prior traumatic episodes disclosed by the children appear in the record. This episode merely illustrates the continued risk of neglect to these children. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2100225/ | 920 N.E.2d 815 (2010)
IN RE A.F.
No. 45A03-0907-JV-349.
Court of Appeals of Indiana.
January 26, 2010.
ROBB, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
BAKER, C.J., concurs.
BAILEY, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264960/ | 6 F.Supp. 428 (1934)
LAWRENCE
v.
TRAVELERS' INS. CO. et al.
No. 17744.
District Court, E. D. Pennsylvania.
March 16, 1934.
*429 Edward A. Collins, Jr., and Hepburn & Norris, all of Philadelphia, Pa., for plaintiff.
Charles B. Ermentrout, of Philadelphia, Pa., for defendants.
KIRKPATRICK, District Judge.
This is an interpleader, under which the life insurance company has paid the face value of the policy into court, and the only question is whether the fund shall be paid to the assignee of the policy or to the administrator of the insured.
The parties waived jury trial, and on the hearing the only evidence offered was a stipulation in which all material facts were agreed upon. This stipulation is adopted by the court as findings of fact and may be taken as a special verdict.
Summarized, the facts are that on August 13, 1925, one Walter Scholes took out a policy of life insurance upon his own life in the amount of $10,000, payable to his executors, administrators or assigns. Six days later he assigned the policy by an absolute assignment to Geraldine Lawrence, which assignment was delivered to her on August 27th. Miss Lawrence had not, and has never had, any insurable interest in the life of the insured, and for that reason the company would not have allowed the insured to designate her as beneficiary in the policy. The assignment was without consideration. Thereafter all notices of premium were sent to the insured until the date of his death, and he paid all the premiums until February 13, 1933, when, being unable to pay the premium then due, he instructed the plaintiff to pay it, promising to reimburse her. For this purpose the plaintiff borrowed upon the policy, and with money so borrowed paid the premium due as well as the next two premiums. Scholes died September 12, 1933, while the policy was in full force.
Whether an assignee who has no insurable interest may recover upon a policy of life insurance is a question which has been before the courts of the country on many occasions, and the decisions are in conflict. The cases are collected and digested in a very complete case note to be found in 73 A. L. R. at page 1036, and the earlier cases may be found listed in the opinion in Gordon v. Ware National Bank (C. C. A.) 132 F. 444, 67 L. R. A. 550. It would serve no purpose to review them here.
Even if it be assumed that, as the defendant argues, Pennsylvania is one of the jurisdictions in which the assignee under the facts of this case may not recover, this court would not be bound by those rulings. The question is clearly one of general law not involving local statutes or usages or settled rules of property, and therefore one upon which the federal courts must exercise independent judgment. Russell v. Grigsby (C. C. A.) 168 F. 577, 580 (unaffected upon this point by the reversal); Gordon v. Ware National Bank, supra. In the absence of controlling federal decisions, we should of course, if possible, follow the Pennsylvania rule, unless it appeared to be clearly wrong. But the Supreme Court of the United States and the Circuit Court of Appeals for this circuit have taken a different view, and of course we are bound by their decisions.
In Grigsby v. Russell, 222 U. S. 149, 32 S. Ct. 58, 59, 56 L. Ed. 133, 36 L. R. A. (N. S.) 642, Ann. Cas. 1913B, 863, the court, overruling at least the dicta of Warnock v. Davis, 104 U. S. 775, 26 L. Ed. 924, and other earlier cases, held the general rule to be that the fact that an assignee has no insurable interest does not, upon any ground of public policy or otherwise, prevent recovery by him. The court allowed what is, in all jurisdictions which have adopted the same rule, held to be an exception that, where the whole transaction from the beginning is entered into as a mere cover for a wager or gambling transaction, the assignment is void. As Mr. Justice Holmes puts it: "* * * Cases in which a person having an interest lends himself to one without any, as a cloak to what is, in its inception, a wager, have no similarity to those where an honest contract is sold in good faith."
It is true that facts before the court in Grigsby v. Russell showed affirmatively that the policy was originally taken by the insured without any immediate idea of assignment, for it appeared that, after he had paid two premiums and a third was overdue, being in want and needing money for a surgical operation, he asked the assignee to buy the policy, and sold it to him for $100. However, the opinion is based upon much broader grounds, and the discussion of the public policy involved shows beyond question that the court intended to lay down a general rule in favor of such assignments, and was not merely dealing with an exception, based upon the facts of that case, to a general rule the other way. The importance of having a correct view of Grigsby v. Russell upon this point appears in the present case, because here there is no evidence one way or the other as to the motivating cause for taking *430 out and assigning this policy and none as to the circumstances surrounding the transaction. If I have correctly understood Grigsby v. Russell as laying down the general rule, then we must take the position that the transaction is to be sustained unless the defendant shows that it was "in its inception, a wager."
The assignment was in point of time very close to the issuance of the policy, and it may well have been (although there is no evidence on the point) that, when the insured took out the policy, he intended to assign it to the plaintiff. This, however, would not be sufficient. If it is to be shown that he, in the words of Mr. Justice Holmes, lent himself to one without an insurable interest as a cloak to a gambling transaction, it must appear that the assignee participated in some way. But she did not buy the policy or give any consideration for its assignment to her. So far as it appears, she did not even know that it had been taken out until the assignment was delivered to her nearly a month after it had been applied for. She paid no premiums and invested nothing in the contract until financial difficulties nearly eight years later compelled the insured to appeal to her, and even then she merely acted as a medium through which he was enabled to borrow upon the policy. These admitted facts do much more than overcome any suspicion of collusion to evade the law which might arise from the proximity in time of the issuance of the policy and the assignment.
Another point made by the defendant is based upon the agreed fact that the company would not have written the policy with the plaintiff as the beneficiary because of her lack of insurable interest. Consequently, the defendant argues, the insured must have adopted the course he did in order to circumvent this rule or policy of the company. Even so, he was not violating any rule of law or public policy, because it is everywhere conceded that a man has an insurable interest in his own life and may legally name whomever he pleases as beneficiary. Haberfeld v. Mayer, 256 Pa. 151, 100 A. 587; Steen v. Lowry, 85 Pa. Super. Ct. 365. So far as the company is concerned, by paying the money into court, it has waived any objection arising from infraction of its rules or of the terms of the policy.
From what has been said it follows that the plaintiff is entitled to recover.
Judgment may be entered for the plaintiff upon the special verdict in the amount claimed with interest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264962/ | 6 F.Supp. 401 (1934)
UNITED STATES
v.
BOARD OF COM'RS OF COMANCHE COUNTY, OKL.
No. 5047.
District Court, W. D. Oklahoma.
February 10, 1934.
Wm. Earl Wiles, Asst. U. S. Atty., of Oklahoma City, Okl.
Dwight Malcolm, Co. Atty., of Lawton, Okl., for defendant.
VAUGHT, District Judge.
This is an action by the plaintiff on behalf of its Indian ward, Neda Birdsong, née Parker, against Comanche county, Okl., to recover $986.23 taxes paid on account of taxing her allotment during the period of 1918 to 1925, inclusive, together with interest on said taxes so paid.
The following facts are stipulated:
That Neda Birdsong is the daughter of Quanah Parker, and is an adult member of the Comanche Tribe of Indians in Oklahoma, allottee No. 2249. That, under the Act of *402 Congress approved June 6, 1900 (31 Stat. 672), the said Neda Birdsong was allotted the northeast quarter of section three, township 2 north, range 14 west of the Indian Meridian, in Oklahoma. On the 25th day of August, 1901, the United States of America issued to said allottee, Ne-dale or Laura Parker, now known as Neda Birdsong, a trust patent for said lands containing the restriction clause, said restriction running for twenty-five years. The trust period contained in said trust patent was extended by Executive Order to August 25, 1936. That on or about the 24th day of August, 1917, during said trust period, without any application on behalf of or consent by said allottee, the Secretary of the Interior issued and delivered to said allottee a fee-simple patent to said lands, which was recorded in Book 147, p. 443, of the land records of Comanche county. The county assessor of said county, for the years 1918 to 1925, inclusive, assessed said lands for taxation purposes, and there was levied and collected on said lands during said term of years $986.23. That on June 2, 1927, said fee-simple patent was canceled and since that date said lands have been removed from the tax rolls of said county. In addition to the stipulation, evidence discloses that the allottee protested vigorously the issuance of the fee-simple patent and that the patent was issued over her protest and without her application and delivery was made to her over her protest, and, at the time of the delivery, that the allottee was advised that, if this fee-simple patent were not placed of record, the allottee would be in grave danger of losing her allotment. These facts were testified to by the allottee as well as by the Superintendent of the Kiowa Indian Agency, who handled the matter.
The Superintendent testified: "When these patents came out, * * * I went to her home and offered her the patent, and she declined to accept it; protested very strenuously and then I went down to the telegraph office at the railroad station at Cache and sent to the Commissioner of Indian Affairs at that time a long telegram, in which I transmitted Mrs. Birdsong's refusal to accept the patent, and likewise my own protest over the action that had been taken by the Department, and analyzed the reason for my protest. In other words, I objected to the issuance of this patent just as much as Mrs. Birdsong did, * * * but I received a telegram from Washington directing me to deliver the patent."
After receipt of the telegram, the delivery is described by the Superintendent as follows: "I went to Mrs. Birdsong's home and told her the Department had directed me to deliver the patent and here it was, and I then forced the patent on her, that was all. I had been directed so to do, and I forced the patent on her. * * * In accordance with our practice, I notified the County Assessor that the patent had been issued, and it has always been my impression that the land went on the tax rolls based on my letter to the County Assessor, rather than upon any recording of the patent. I have never known whether the patent was recorded."
The allottee testified as follows:
"Q. Tell the court under what circumstances it was left with you [referring to the patent]. A. He just left it on the table; that is, just left it there at my place and I told him I didn't want it, and they just left it and drove off. * * *
"Q. What did you do about putting it on record? A. Well, they told me I had to put it on record, so I went to the courthouse and told them I was putting it on record, but I was protesting it all the way through.
"Q. What did Mr. Stinchcomb (the Superintendent) tell you about putting it of record? A. He told me I had to put it on record."
With reference to the payment of the taxes the allottee testified:
"Q. Did you make any written or formal protest with the County Treasurer at the time you paid the taxes? A. No, but I never failed to tell every time I paid my taxes that I was paying under protest.
"Q. Verbal protest? A. In writing; a lot of my receipts were marked `Under protest', and when I didn't write it I told her.
"Q. How were these receipts designated as being protested; was it in the form of checks? A. No, most of them were written on the checks, on the bottom of the checks, and some of them were written on the tax receipts, and then I told her besides.
"Q. Paid under protest? A. Yes."
There is little or no contention in this case that this patent was not issued by the government over the protest, without the consent, and without any application on the part of the allottee.
It is clear that this allottee was allotted her lands under the provision of the General Allotment Act of February 8, 1887 (24 Stat. 388), and under that act she had a right to maintain her lands as restricted and free *403 from all taxation. This right was a vested property right to her, and she could not be divested of it even by Congress without her consent. See Morrow v. United States (C. C. A.) 243 F. 854; United States v. Benewah County (C. C. A.) 290 F. 628; Iyall v. Yakima County, 130 Wash. 537, 228 P. 513; Choate v. Trapp, 224 U. S. 665, 32 S. Ct. 565, 56 L. Ed. 941; English v. Richardson, 224 U. S. 680, 32 S. Ct. 571, 56 L. Ed. 949; Carpenter v. Shaw, 280 U. S. 363, 50 S. Ct. 121, 74 L. Ed. 478.
The refusal to accept a patent by the Indian renders the patent void, and his lands are not subject to taxation. See citations above.
The government recognized its mistake in issuing this patent by later canceling the patent, as above set out, and in the court's judgment the reason why the government canceled the patent was that it recognized that it was a void patent.
The question most strongly urged by the defendant is that the statute of limitations interferes with granting the relief prayed for. The statute of limitations, however, does not apply where the United States is a party. United States v. Minnesota, 270 U. S. 181, 46 S. Ct. 298, 70 L. Ed. 539.
This action was instituted by the government in its governmental capacity on behalf of its ward, and the limitations do not operate against the United States when the action is brought in public interest. United States v. Rickert, 188 U. S. 436, 23 S. Ct. 478, 47 L. Ed. 532; United States v. Kagama, 118 U. S. 375, 6 S. Ct. 1109, 30 L. Ed. 228; United States v. Nice, 241 U. S. 597, 36 S. Ct. 696, 60 L. Ed. 1192. Neither can laches be pleaded against the United States. United States v. Dewey County, S. D. (D. C.) 14 F.(2d) 784; United States v. Insley, 130 U. S. 263, 9 S. Ct. 485, 32 L. Ed. 968.
The court is of the opinion, therefore, that these lands were not taxable because the patent was void and not binding as a valid patent against the allottee.
On the question of interest, the court appreciates the position of the defendant. Where taxes are paid under protest, the collecting authority can only hold them in trust, and since Comanche county would be regarded in this case as a trustee, this court knows of no provision for the payment of interest except by taking the interest from some other fund whose application had been provided by statute.
Judgment will be rendered in favor of the plaintiff and against the defendant in the sum of $986.23 and for the cost of this action. A proper form of judgment may be submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360405/ | 667 S.E.2d 212 (2008)
ANDREWS
v.
The STATE.
No. A08A1240.
Court of Appeals of Georgia.
August 27, 2008.
Donna Avans Seagraves, for appellant.
Richard King Bridgeman, Dist. Atty., Kristopher Michael Bolden, Asst. Dist. Atty., for appellee.
SMITH, Presiding Judge.
James Rondy Andrews appeals from his conviction for possession of methamphetamine. In his sole enumeration of error, he asserts that the trial court erred by failing to inform him and his counsel about a question submitted by one or more members of the jury after the close of evidence. We affirm, because Andrews has failed to meet his burden of demonstrating error based upon the record before us.
The record shows that after the jury left the courtroom to deliberate, the trial court instructed counsel to "assemble the evidence and certify to the Court that the evidence turned over to the bailiff is all duly admitted...." The trial transcript then states:
THE COURT: ... All right. The jury is starting to deliberate at five minutes after 4:00. 4:05.
(Whereupon, a brief break was taken.)
THE COURT: I don't know the source of this. It was handed to me just as the jury was walking out, which is obviously too late *213 to give anybody a consideration. But it is a question. I will simply make it a part of the record. We don't have a C-1 here, do we?
COURT REPORTER: No, sir.
(Whereupon, Court's Exhibit No. 1 was marked for identification.)
(Whereupon, a brief break was taken.)
Exhibit C-1 is a handwritten note that states, "Why were they out at 3:00?"
Following his conviction, Andrews filed a motion for new trial in which he asserted the trial court "committed an error of law warranting a new trial." The trial court held a hearing and denied the motion for new trial in a one-sentence order that did not include an explanation of the judge's reasoning. The record before us does not include a transcript of the motion for new trial hearing, and communication with the superior court clerk's office has confirmed that the motion for new trial hearing was not taken down by a court reporter.
Andrews relies upon the following mandate by the Georgia Supreme Court in support of his claim that he is entitled to a new trial:
[W]e take this opportunity to require trial courts to have jurors' communications submitted to the court in writing; to mark the written communication as a court exhibit in the presence of counsel; to afford counsel a full opportunity to suggest an appropriate response; and to make counsel aware of the substance of the trial court's intended response in order that counsel may seek whatever modifications counsel deems appropriate before the jury is exposed to the instruction.
Lowery v. State, 282 Ga. 68, 76(4)(b)(ii), 646 S.E.2d 67 (2007). Andrews asserts that the trial court violated this mandate by placing the question on the record outside the presence of counsel. The State disputes this claim and asserts that both counsel were present. There is no notation in the trial transcript that counsel were either present or absent when the question was made a part of the record.
Because we cannot determine from the record before us whether appellant's counsel was present or absent, we must affirm. "An appellant bears the burden of showing error affirmatively by the record." (Citation and footnote omitted.) Benton v. State, 286 Ga.App. 736, 649 S.E.2d 793 (2007). In this case, the trial transcript standing alone cannot satisfy this burden. While this issue may have been addressed in the motion for new trial hearing, no transcript exists for that hearing. Because the trial transcript does not affirmatively show that the trial court placed the question in the record outside the presence of counsel, we must apply the presumption that the trial court discharged his duties properly and affirm. See id. at 736-737, 649 S.E.2d 793.
Judgment affirmed.
MIKELL and ADAMS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360387/ | 375 P.2d 402 (1962)
Donna M. LANDIS, Appellant,
v.
AMERICAN POTASH & CHEMICAL CORPORATION, a Corporation, and A.J. Carrado, Respondents.
No. 4451
Supreme Court of Nevada
October 25, 1962
George Rudiak, of Las Vegas, for Appellant.
Morse & Graves, of Las Vegas, for Respondents.
BADT, Chief Justice.
This appeal requires the construction of a collective bargaining agreement entered into by a labor union and the employer, with particular reference to the employer's agreement *403 to continue in effect certain group insurance, as well as the construction of the group insurance policy itself. Both parties agree that the collective bargaining agreement and the policy of group insurance must be considered and construed together.
All emphasis appearing in the opinion has been supplied by the court, as key words and key phrases, whether relied upon by the respective parties or by the court's opinion, are to a large extent determinative of the conclusions reached.
The action was brought by the widow as third-party beneficiary, appellant here, against the employer, respondent here,[1] for damages for the employer's alleged breach of the collective bargaining agreement to maintain the group insurance for the benefit of the plaintiff's late husband. The alleged breach was respondent's wrongful termination of the group policy of life insurance, under which the widow would have been entitled to recover a death benefit of $6,500. Respondent had terminated the group policy when the deceased and his fellow employees had been out on strike for some three months.
Specifically, Article X of the collective bargaining agreement provided: "The group insurance plan as agreed upon for the employees covered by this agreement will be continued during the life of this agreement." The collective bargaining agreement ran for a term of two years from April 1, 1958, to April 1, 1960, and provided for successive extensions for additional terms of one year. It provided that either party might reopen the agreement within 60 days prior to April 1, 1959, "for the purpose of negotiating changes in straight-time hourly rates of pay only," and that if agreement should not be reached within such 60-day period either party might thereafter relieve itself of the obligations of the clause prohibiting strikes and lockouts.
It was stipulated by the parties that the union called a strike on or about April 20, 1959, to enforce its demands for "changes in straight-time hourly rates of pay" and that all conditions precedent to the calling of such strike had been complied with by the union. The strike continued until September 22, 1959. It was further agreed that during the entire period of the strike the collective bargaining agreement remained in full force and effect.
Landis, as one of the striking employees, absented himself from work commencing April 20, 1959, performed picket duty during the strike, and intended to return to work for respondent upon the termination thereof. He secured temporary employment elsewhere for a period of one week.
Respondent had procured a group insurance policy under which an appropriate certificate had been issued to Landis.
The effective date of the policy is May 16, 1956, and such certificate, with the full terms of the policy, was in Landis's hands at the time the collective bargaining agreement was entered into in 1958.
The policy of insurance contained the following provisions:
"TERMINATION OF INSURANCE. The Employee's Group Life Insurance will automatically terminate if his employment terminates as defined below, or if he ceases to be a member of the classes of Employees eligible for the insurance, or if the provisions of the Group Policy for the insurance terminate, or (should the insurance be on a contributory basis) if he fails to make, when due, any required contribution.
"Termination of employment will, for all purposes of the Employee Group Life Insurance, be deemed to occur when an Employee ceases to be actively engaged in work on a full-time basis with the Policyholder. However, in the case of Employees who are disabled, granted a leave of absence, temporarily laid off, placed on a part-time employment basis or retired, the Policyholder may, acting on a basis precluding individual *404 selection, consider such Employees as still employed on a full-time basis for a limited period as specified in the Employee Group Life Insurance provisions of the Group Policy."
Upon the cover page of the certificate is printed: "Should you cease active work for any reason, contact the Policyholder at once to determine what arrangements, if any, can be made to continue your insurance." A pamphlet entitled "Your Group Insurance Plan," published by respondent for distribution to its employees, contains the following paragraph:
"TERMINATION OF INSURANCE Insurance for yourself and your dependents will terminate if you discontinue your contributions, if your employment terminates, or if the Group Policies terminate. * * *"
From the inception of the strike, April 20, 1959, until July 20, 1959, respondent accepted from Landis and the other striking employees their share of the insurance premiums and paid the employer's share, thus allegedly maintaining the group insurance in force. On July 20, 1959, however, the employer sent the following letter to its striking employees:
"To Our Striking Employees:
"Since April 20 when the strike started, the Company has continued to make group insurance coverage available to you and your eligible dependents.
"For over three months the Company has continued to pay the major portion of the premium costs of this insurance, although you have not been actively working with us since April 20; and we have made these payments in spite of the fact that many of you have been employed by others. Therefore, we regret that we are unable to justify further extension of this insurance coverage for you and your dependents. This letter is to advise you that your group coverage will terminate on July 31, 1959.
Very truly yours, A.J. Carrado, Manager Administrative Services"
After July 31, 1959, respondent refused to accept further contributions from Landis of his portion of the premiums and canceled the group insurance policies as of July 31, 1959.
After settlement of the strike, September 22, 1959, respondent reinstated the insurance coverage for all striking employees who returned to work.
Appellant's claim to the insurance company was rejected on the ground that the coverage was not in force on September 3, 1959, the date of her husband's death. This action followed, and the court made the following findings, among others:
"XII. By reason of said strike, and not otherwise, Rudy J. Landis, as a striking employee of the Company, was absent from his employment with the Company, commencing on April 20, 1959. During said strike, Rudy J. Landis obtained temporary employment as a plumber for a period of about one week with a plumbing contractor in Las Vegas. Said employment was outside his usual occupation and trade as a pipefitter, and was obtained solely to supplement his income during the period of the strike, and with the intention on his part of returning to work for the Company when the strike terminated. Rudy J. Landis performed picket duty during the continuance of the strike, and up to the time of his death.
* * * * *
"XX. The clause of said Group Insurance Policy Certificate entitled `Termination of Insurance' contained, inter alia, the following agreement:
`Termination of employment will, for all purposes of the employee group life insurance, be deemed to occur when an employee ceases to be actively engaged in work on a full-time basis with the policyholder.'
* * * * *
"XXII. The above agreements were understood by the Company and by the Union when they executed the contract of insurance *405 to be a binding and effective part of said insurance contract.
* * * * *
"XXIV. Striking employees are not `actively engaged in work on a full-time basis with the policyholder' within the meaning of those words as expressed in the contract of Group Insurance entered into between the Company and the Union; therefore, the deceased, when he came to his demise on September 3, 1959, was not an active employee on a full time basis within the meaning of the contract of insurance and the intention of the parties to that contract as expressed therein.
"XXV. By accepting premiums from its striking employees, adding its own contributions thereto, and transmitting such premiums to the insurer during the first three months of the strike, the Company acted fairly with its employees, did not recognize any contractual obligation to keep the group insurance in force, and did not intend a waiver of its rights.
"XXVI. The Company acted fairly and within the terms of the contract of insurance."
It entered judgment in favor of respondent, and the widow appealed.
Appellant assigns as error (1) the court's entry of such judgment; (2) its finding of the first paragraph of the "termination of insurance" hereinabove quoted, and its failure to recite the second paragraph commonly called the "election clause"; (3) that the other findings as numbered above are not supported by the agreed and stipulated facts and are contrary to the evidence and that such purported findings of facts are really conclusions of law; (4) that the trial court erred in failing to find in accordance with the stipulated facts that the employer's pamphlet "Your Group Insurance Plan" "says nothing about the policy terminating in the event of a strike or if the employee ceases to be `actively engaged in work on a full-time basis'"; and (5) certain alleged errors in the admission of evidence.
The assignments of error do not present a complete picture of appellant's theory of the case. Briefly such theory may be stated as follows: The collective bargaining agreement obligated respondent to keep the group insurance in force for the life of the agreement. Under the terms of the collective bargaining agreement, reserving to the union the right to strike over the question of straight-time hourly rates of pay, it was clearly the intention of the parties to keep the group insurance policy in force, notwithstanding the fact that the employees may have been temporarily idled by the strike. Respondent therefore had impliedly agreed to exercise the right of election in such a way as to keep the group insurance in effect and therefore the employees temporarily idled by such lawful strike are on leave of absence, and respondent was contractually bound to elect so to consider them. By accepting premiums from the striking employees and adding its own contributions thereto and submitting same to the insurer for the first three months of the strike, respondent recognized that the employment relationship continued notwithstanding the strike, even though the striking employees could not be said to be "actively engaged in work on a full-time basis." This was an election to keep the policy in force and constituted respondent's practical construction of the contract as obligating it so to do. Having thus elected, it would be bound by way of waiver, even if not actually bound so to elect by the terms of the contract. The subsequent cancellation of the group insurance therefore constituted a violation of the collective bargaining agreement for which appellant, as the wife of the insured employee and as beneficiary under the group insurance policy, was entitled to recover against the employer. Lastly, it is contended that such cancellation was a willful, wrongful, malicious, and oppressive act intended to coerce a strike settlement, thus entitling defendant to punitive damages.
Appellant supports her argument, first, by the assertion that a strike does not interrupt the employer-employee relationship. *406 The authorities support this view and we may accept the same. We may also accept the fact that the employer-employee relationship is a status which was not destroyed by the strike.
Appellant further asserts that if we interpret the termination clause as interpreted by the trial court, we reach an unreasonable construction, namely, that the employer's covenant to keep the insurance in effect during the life of the collective bargaining agreement was taken away by the termination clause.
Appellant further contends that the right to strike under the conditions recited in the collective bargaining agreement was equivalent to a provision that when the employees were on strike they were on leave of absence, and that under the election clause the employer was obligated and bound to consider them as such.
She further contends that it is evident that the employer's agreement to keep the insurance in force was inserted at the insistence of the employees, through the union, at the bargaining table, and that this is the more evident because the insurance contract had been in force for a long period of time before the collective bargaining agreement was executed.
We turn now to the authorities on which appellant relies. Her greatest reliance is on the language used in Degnan v. Metropolitan Life Insurance Co., 178 Misc. 312, 34 N.Y.S.2d 238, and on Tedesco v. Turner & Seymour Mfg. Co., 19 Conn. Supp. 192, 110 A.2d 650. In Degnan the New York court held in favor of the defendant insurance company but against the employer. The case is not in point because it contained no clause similar to the provision contained in the policy here, its termination clause providing only for termination of the employee's coverage upon termination of his employment. The court held simply that the employment of striking employees did not terminate merely by reason of the fact that they went out on strike. As we have seen, termination of employment in the case at issue is directly defined as occurring "when an Employee ceases to be actively engaged in work on a full-time basis with the Policyholder." As this situation was the basis of respondent's cancellation of the insurance policy, its absence in Degnan deprives that case of value as authority here.
In Tedesco, as in Degnan, the court denied relief against the insurance company but granted relief against the employer. The employee had legally absented himself from work by engaging in a strike permitted under the provisions of the collective bargaining agreement. The employer had canceled the insurance simply because the employee was on strike. The group insurance policy in that case provided coverage for "part-time workers" and "full-time workers." The court rejected the contention that the word "active" should be implied to qualify the term "workers" upon the general ground that the parties could have expressed such qualification in the contract if it had been their intent so to do. As in Degnan, there was no such definition of termination of employment as is the case here.
Other cases relied upon are likewise distinguishable. The case of Chrosniak v. Metropolitan Life Ins. Co., 121 Misc. 453, 201 N.Y.S. 211 (affd. without op.), 209 A.D. 846, 204 N.Y.S. 898, affords complete support for the trial court's conclusion. The group life insurance policy in that case provided: "Upon termination of active employment, the insurance of any discontinued employee under this policy automatically and immediately terminates." It will be noted that the clause is not so strong as the one we are considering, defining the termination of employment as occurring when an employee ceases to be actively engaged in work. Again appellant distinguishes this case because the suit was against the insurance company. However, in view of the agreement of appellant that the terms of the insurance policy must be considered in connection with the employment agreement, the court's holding that, as the plaintiff's husband had died while he was still out on *407 strike, his active employment had terminated, precluding the recovery of the death benefits under the group life insurance policy, finds full support in Chrosniak. The case is authority for the proposition that a striking employee is not engaged in active employment while out on strike and, a fortiori, in the present case that he is not actively engaged in work while out on strike. It may be noted that the dissenting justice in Degnan points out that in Chrosniak the policy used the words active employment as naturally not including a strike period, while in Degnan the term used was simply employment, a term broad enough to include the employer-employee relationship existing while the employee was still on strike.
Elsey v. Prudential Insurance Company of America, 262 F.2d 432 (10th Cir.1958) (which involved a policy defining eligibility for insurance when an employee has completed "three months of continuous service on a full-time basis with the Policyholder"), affords us a construction of a clause virtually identical to the one herein involved. In holding that the coverage was not in effect at the time of the insured's death, the court said, id. 435, "Being `actively at work' on October 26, 1957, was a condition precedent to an effective contract as of that date. [Citing authorities] `Actively at work on full time' means actually on the job and performing the employee's customary work."
[Headnote 2]
Appellant's final contention and the one most strenuously argued by her is that Landis, while on strike for a lawful cause, should be considered as being on "leave of absence," and that in any event the employer's agreement to keep the insurance in force during the life of the collective bargaining contract bound him to elect that Landis was, during such strike, on "leave of absence." This contention is closely connected with the contention that the payment of premiums by the employer for the first three months of the strike constituted such election. We turn, then, to the "election clause" upon which appellant relies.
After providing that the insurance will terminate if the employment terminates and that such termination is deemed to occur when an employee ceases to be actively engaged in work on a full-time basis with the employer, the provision then proceeds as follows: "However, in the case of the Employees who are * * * granted a leave of absence * * * the Policyholder may * * * consider such Employees as still employed on a full-time basis for a limited period as specified in the Employee Group Life Insurance Provisions of the Group Policy."
It should be noted, first, that the election is not to grant a leave of absence but simply to consider as still employed on a full-time basis for a limited period such employees who are granted a leave of absence. Be that as it may, we are not persuaded by appellant's argument that though "not actively engaged in work on a full-time basis within the meaning of the termination clause of the group insurance policy, [a striking employee is nevertheless] one `granted a leave of absence' within the meaning of the election clause immediately following it."
Nor can we agree with appellant's argument that the provision of the collective bargaining agreement permitting the parties under certain conditions to open up negotiations toward changing the straight-time hourly rates of pay, and permitting under certain circumstances a strike or lockout, must be considered an implied agreement that the employer "would treat such authorized strike as a `leave of absence' * * * and that it would exercise its right of election under the terms of the policy to keep the policy in force during the period of such authorized absence from work." No authority is cited in support of such argument, or in support of the argument that the definition of termination of insurance "when an employee ceases to be actively engaged in work on a full-time basis" is to be construed as though it read, "when an employee ceases permanently to be actively engaged in work on a full-time basis"; or in support *408 of the statement that "the respondent must be deemed to have agreed to treat employees temporarily idled by such strike as being on `leave of absence.' * * *." These contentions simply read into the policy of insurance words that are not there. Appellant does not even contend that an election so made would be effective against the insurance company as resulting in actionable coverage under the policy.
Appellant places great weight on Harlan v. Washington Nat. Ins. Co., 388 Pa. 88, 130 A.2d 140, which affirmed a death benefit under group insurance requiring the employee at the time of his death to be a full-time, permanent employee. The jury had found under the facts that the deceased was at the time a full-time, permanent employee and the policy in question provided that "Temporary layoff or leave of absence shall not be considered termination of employment for the purpose of this insurance, unless the employer shall so elect. In the instant case there was no layoff, no leave of absence, no such election.
Appellant contends that under respondent's covenant to keep the group insurance in force during the life of the agreement, it was bound to take all measures that it could legally take under the so-called election clause to keep the group insurance in force. There are four answers to this. First, it is to be noted that the permissive clause is not to grant a leave of absence but simply, in case a leave of absence has been granted, that the employer may consider such employees as still employed on a full-time basis for a limited period. Here the employer never granted appellant's decedent a leave of absence. There was, then, no basis for an election by the employer to consider the employee still employed on a full-time basis. Secondly, the election might be made not indefinitely but for a limited period only. The period was definitely limited in the present case, and the insurance terminated at the expiration of such period. It is obvious that the insurance company would not and did not provide for the employer's election to consider the insurance in effect indefinitely on an actual or implied granting of a leave of absence. Thirdly, any election, whether express or implied, would have to be an effective election, that is to say, an election that would be binding upon the insurance company so as to permit a recovery directly against the insurance company upon the policy. This obviously did not occur in the present case. When the question was put to counsel on oral argument, he frankly and conscientiously replied that he could not say that such was the case. Fourthly, no authorities have been cited, nor have we found any, in support of this contention.
The "termination of insurance" provisions are found in the group policy itself and not in the collective bargaining agreement, but, as we have seen, both parties have agreed that the two contracts must be considered together.[2]
Nor was the trial court compelled to find a waiver in the payment by the employer during the first three months of the strike of its share of the insurance premiums. The court's finding that by such action "the company acted fairly with its employees, did not recognize any contractual obligation to keep the group insurance in force, and did not intend a waiver of its rights" appears to have support in the agreed facts and the evidence. The court was justified in inferring that such action had been fair and that the temporary continuance of payments by the employer was voluntary and gratuitous on its part. Appellant was given ample notice of the discontinuance of such payments, and was not caused to change his position to his detriment in reliance on the asserted "waiver." Appellant argues that the terms of the policy giving him the right to convert to an individual *409 policy (for a larger premium and a diminished death benefit) was not available to him because such right was limited to employees who had been continuously insured for a period of at least five years. But with the termination of the group insurance the employee was always at liberty to seek other insurance. This applied to all employees. We do not feel that this contention adds anything to appellant's case.
Appellant assigns error to the admission in evidence of certain documents. Even without these documents, however, the record furnishes ample support for the court's findings. The case was tried to the court without a jury and the admission of the evidence, even if incompetent, would not require a reversal. The trial judge will be presumed to have relied only upon the admissible evidence without regard to any evidence that was inadmissible. Green v. Henderson, 66 Nev. 314, 208 P.2d 1058.
As to the assignment of error that the trial court recited in its findings only the first paragraph of the "termination of insurance" provision and not the paragraph that followed containing the "election clause," we find no prejudice. The entire policy was in evidence containing both paragraphs and, as will be noted, the election clause has had our full consideration.
The assignment that the findings are not supported by the agreed facts and are contrary to the evidence is, in our opinion, without merit. The same may be said of the assignment of error that the purported findings of fact are really conclusions of law. Nor is there any prejudicial error in the trial court's failing to find, in accordance with the stipulated facts, that the employer's pamphlet, "Your Group Insurance Plan," "says nothing about the policy terminating in the event of a strike or if the Employee ceases to be `actively engaged in work on a full-time basis.'" The termination provisions were fully within the knowledge of the employees.
The fact that the group insurance was one of the things discussed in the collective bargaining agreement and was one of the things that the union bargained for does not compel the conclusion, as urged by appellant, that the agreement that "the group insurance plan as agreed upon for the employees covered by this agreement will be continued during the life of this agreement," considered in connection with the other clauses discussed in this opinion, obligated the employer to maintain the insurance in effect indefinitely during a strike.
The judgment is affirmed with costs.
McNAMEE and THOMPSON, JJ., concur.
NOTES
[1] Respondent Carrado was the employer's manager of administrative services. American Potash & Chemical Corporation is the real respondent and will hereafter be referred to as such.
[2] Appellant says: "It must be conceded that when the parties, in Paragraph X of the collective bargaining agreement, used the words `group insurance plan as agreed upon * * * will be continued for the life of this agreement,' they were referring to the [group insurance] policy * * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360383/ | 60 Wash. 2d 733 (1962)
375 P.2d 509
In the Matter of the Guardianship of VICTORIA IVARSSON, a Minor.
E.K. HARRISON et al., Appellants.[*]
No. 36244.
The Supreme Court of Washington, En Banc.
October 30, 1962.
McMicken, Rupp & Schweppe and Hennings, Maltman & Weber, for appellants.
Stuart G. Oles, as guardian ad litem, pro se.
Bogle, Bogle & Gates and Thomas L. Morrow, for Julie Vance Ivarsson.
PER CURIAM:
This is an appeal from certain portions of the "ORDER ON FIFTH REPORTS OF CO-GUARDIANS" entered *735 "IN THE MATTER OF THE GUARDIANSHIP OF VICTORIA IVARSSON, A Minor."
We are concerned with the guardianship of the estate, and not with the guardianship of the person of Victoria Ivarsson (formerly Harrison), now ten years of age, who lives in Zermatt, Switzerland, with her mother and her mother's second husband (who is the ward's adoptive father) and five younger half brothers and half sisters. The mother is co-guardian, with a Seattle bank, of the ward's estate, the corpus of which now exceeds two and a half million dollars. The income was estimated by the trust officer of the bank at $60,000 a year gross, i.e., before taxes. The cash receipts, between February 2, 1959, and January 31, 1960, aggregated $66,872.30; and between February 1, 1960, and January 31, 1961, $73,123.76. This estate comes to the ward by inheritance through her father, who died shortly after she was born.
In addition to the co-guardians, a guardian ad litem has been appointed to continue in that position until the further order of the court.
The appeal, while nominally by the ward's paternal grandmother and her husband, is clearly intended not for their benefit, but for that of the estate of the child.
Many pages in the briefs are devoted to an analysis of cases, statutes, and rules to determine whether the grandmother is an aggrieved or an interested person, and thus entitled to appeal; all of which, it seems to us, misses the most important point.
[1] If there is an aggrieved or interested person entitled to appeal, it is the ward. It is her money that is being so freely and generously distributed. Her right to appeal must be conceded; but inasmuch as she is unable to exercise it, there must be a determination as to who is entitled to appeal in her behalf. The right of appeal by a prochein ami, or "next friend," in such circumstances, has long been recognized. William v. Cleaveland (1904), 76 Conn. 426, 56 A. 850, and cases cited.
This is, in substance and effect, an appeal by a "next friend" who conceives that the ward's estate is being *736 wrongfully dissipated and has so indicated to the probate court by chapter and verse. This appeal is properly before us, unless it is precluded by the fact that there are parents who would normally be the "next friends" of the child; also, co-guardians of the estate of the ward, and, further a continuing guardian ad litem.
The issues raised by this appeal put every one of the parties, who would normally be expected to be protecting the ward's interest in this estate, in an adverse position; the fees to the mother, as co-guardian, to her attorneys, and to the guardian ad litem are challenged, as is an allowance of $750 a month for the support and maintenance of the child (which allowance will be expended for the benefit of the entire family of which she is a part).
It is recognized that a guardian may be disqualified to appeal by an interest hostile to that of the ward, or may, for other reasons, be an improper or unsuitable person to prosecute such an appeal. Williams v. Cleaveland, supra.
The fees for the mother, as one of the co-guardians of the estate, and of her attorneys are specifically under attack by the notice of appeal. Her lack of interest in appealing the order entered by the trial court is patent; and her conflict of interest with that of the estate of her ward is clear. When a probate court is called upon to determine the fees of a guardian and of his attorneys, which are to be paid from the estate of his ward, this obvious conflict of interest has caused probate courts to appoint guardians ad litem to represent minor wards in the hearings on such interim accounts of their guardians, as the one now under consideration. Such an appointment tends likewise to protect the guardian and the attorneys, should the ward after attaining majority challenge the value of services rendered or the amount of the fees allowed.
The next question is: Does the appointment of a guardian ad litem, who clearly has a right of appeal[1], eliminate any necessity for permitting an appeal by a "next friend."
[2] The fee allowed the guardian ad litem may, as in *737 this case, be under attack. That a guardian ad litem may make a mistake in judgment, which brings about a situation which should be reviewed by an appellate court, is made clear in the recent case of Haden v. Eaves (1950), 55 N.M. 40, 47, 226 P. (2d) 457. In that case, it is said:
"... we fully approve the doctrine that courts of equity should not sit idly by and see guardians lose the estates of their wards through mistakes in judgment or neglect of their duties. We also approve the rule that a minor who has a case in court is represented not only by his guardian ad litem, but by the court itself. A guardian ad litem is an arm of the court whose function is to protect the ward, and a court must not permit its arm to strangle him.
"Here we have a case where the interests of the minor and his father [who was the guardian ad litem] are separable; both have appealed and we see what we believe to be a serious error made in the case against the interests of the minor. We cannot in good conscience sit with folded hands, adopt the attitude of umpires in a contest between adults, apply our ordinary rules of civil procedure and say that because of a mistake of the guardian ad litem in trying the case on an erroneous theory the minor must lose all...."
We have taken the same attitude, expressed in the foregoing quotation, relative to permitting "ordinary rules of civil procedure" to block appellate review of matters relating to the rights of minors. See In re Deming (1937), 192 Wash. 190, 200, 73 P. (2d) 764, 770.
In the Deming case, on an appeal from an order settling the account of successive guardians, there had been no cross-appeal by the guardian ad litem, representing the minors, from a portion of the decree that was adverse to them; and appellants (the guardians and their sureties) asserted that, there being no cross-appeal, no relief could be accorded the minors. We accorded this contention scant consideration, saying:
"... This argument is not sound. This court may notice and correct any evident error prejudicial to the minor respondents, even though they have not appealed. *738 In the case of Glade Coal Mining Co. v. Harris, 65 W. Va. 152, 63 S.E. 873, the court of appeals of West Virginia laid down the rule as follows:
"`... on appeal an infant will be given the benefit of every defense of which he could have availed himself, or which might have been interposed for him in the trial court; and that where the record shows error, as to a minor defendant, the judgment will be reversed, though there is no appeal on his part, it being the duty of the chancellor, as the guardian of infants, to protect their rights.'
"This doctrine is also supported by the following authorities: Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 P. 231; Kempner v. Dooley, 60 Ark. 526, 31 S.W. 145; Parken v. Safford, 48 Fla. 290, 37 So. 567."
If some phase of a guardianship proceeding is before an appellate court, it will act sua sponte to protect the apparent interests of the ward or wards; and it will not dismiss a meritorious appeal by a "next friend" in such a proceeding merely because a guardian ad litem has been appointed. To quote again the language of the New Mexico court in Haden v. Eaves, supra, we are not inclined to "adopt the attitude of umpires in a contest between adults" and to "apply our ordinary rules of civil procedure" to prevent meritorious appeals involving the rights and property of minors and incompetents.
[3, 4] It is urged that appeals by "next friends," in such cases, could flood the court with frivolous appeals by litigious individuals, designed, in some instances, to harass and embarrass the administration of estates. We have no such fears. Not only are there substantial expenses involved in any appeal, but there is the quick-sifting process by a motion to dismiss a frivolous appeal. Nor are we without means to prevent the abuse of the appellate process. We are satisfied that this appeal presents issues which should be determined.
The motion to dismiss the appeal is denied.
The "next-friend" appellants challenge, on this appeal, three specific payments authorized by the probate court, i.e., the co-guardian's fee of $3,500 for services between February 1, 1960, and January 31, 1961; her attorneys' fee *739 in the amount of $2,520 for the same period; and the guardian ad litem's fee of $1,500 and expenses in the amount of $151.99 for the same period. Also challenged is the ruling of the probate court that no receipts or accounting are required covering the expenditures of the $750 monthly allowance for the support of the ward, and that such amount is an appropriate allowance under the circumstances.
[5] We agree with the appellants that the fee of $3,500 to the mother of the ward, for services as co-guardian of the ward's estate, is not warranted. The guardian ad litem referred to the fee, in argument before this court, as "pointless"; and the probate judge, as shown by the record, has heretofore indicated that her services in managing or preserving the estate are valueless. Nor is she entitled to compensation as guardian of the person of her daughter, as there is no reason why she should be compensated for doing what any mother does. A nominal fee would seem to be adequate for the minimal duties entailed as a co-guardian of her daughter's estate, since the other co-guardian (the bank) does all the work. The guardian ad litem suggests that in this particular year the trip from Switzerland to California, occasioned by the litigation[2] commenced by the appellants in Placer County, California, presents a peculiar and "presumably nonrepetitive" circumstance that warrants special consideration. Complete expenses incurred in the trip by the mother *740 and her husband (the adoptive father) have been paid by the ward's estate.
Whether or not, as guardian of the person of her daughter, she was entitled to compensation for loss of time as well as travel expenses, was not presented to the probate court. We are here concerned solely with an award of $3,500 made for services as co-guardian of her daughter's estate for the period February 1, 1960, through January 31, 1961. We are satisfied that such an award for that purpose was without justification. The probate court should make a realistic reappraisal of the value, if any, of her services in that capacity to the estate of her ward.
It is, further, our conclusion that all other matters challenged on this appeal should also go back to the probate court for further consideration, in the light of the views hereinafter expressed.
The probate court made an allowance of $750 a month from the ward's estate for the care, support, maintenance, and education of the ward. We question whether any allowance was justified on the showing made. This we regard as the most important issue for the probate court's determination.
[6] The law is very clear that it is the obligation of parents to support their children and that there should be no support money paid from a child's estate, unless and until it is established that the parents are unable to adequately support that child. In re Deming (1937), 192 Wash. 190, 200, 73 P. (2d) 764; Goodwin v. American Surety Co. of New York (1937), 190 Wash. 457, 68 P. (2d) 619; In re Rohne (1930), 157 Wash. 62, 288 P. 269; In re King (1929), 151 Wash. 120, 275 P. 82, 67 A.L.R. 1397.
We have had occasion to comment on the difficulties presented where the estates of children are used to support impecunious parents in a manner beyond which their own resources would make possible. In re Rohne, supra.
Here we have parents who are by no means impecunious. There was recently before this court[3] an appeal from a *741 judgment dismissing an application to vacate the decree of adoption, dated January 20, 1954, by virtue of which Victoria was adopted by Karl Roy Ivarsson (then but recently married to Victoria's mother). His application for adoption alleged that he was:
"... ready, willing and financially able to provide said child with a good home and with proper care, maintenance and education in all respects as if the child had been born unto him."
The mother, concededly, has an income of $500 a month from what is referred to in the record as a half-milliondollar trust fund. She at no time has represented that she does not have other resources and means with which to support her children; indeed she quite frankly says, in a petition asking for the $750 allowance,
"... that Julie Vance Ivarsson and her husband, Karl R. Ivarsson, are without sufficient income in their own right without depleting their capital assets to care for and provide for said Victoria Ivarsson and there is more than ample income from the earnings of the assets of the estate of said minor for said purpose without any expenditure of principal." (Italics ours.)
[7] It is our view that parents with capital assets of half a million dollars, and indeed where the amount is much less, will not be heard to say that they should be permitted to live on the income of one of their children because they prefer not to use a portion of their capital assets for the support of the family.
Assuming that Mr. Ivarsson has, since 1954, somehow lost the "ready, willing and financially able" status, which he possessed or professed at the time of the adoption, the mother's ability to care for, support, maintain and educate her child merits further consideration.
The probate court erred in assuming that a parent's obligation to support his or her child does not go beyond the limits of their current income in the fortuitous circumstance that the child has an independent income. The real issue is: Do these parents, or either of them, have the *742 means and resources to adequately support Victoria without impoverishing themselves.
If, after further consideration of the assets and resources of the parents, the probate court is convinced that an allowance from Victoria's estate is necessary for her care, support, maintenance and education, we would make it clear that we are not quibbling as to the amount, and that we have no objection to an allowance in whatever amount may be found necessary to balance the family budget.
This balancing of the family budget by payments from the ward's estate is predicated upon the philosophy of the probate court: That this family should be kept together; that all of the children should be treated alike; and that Victoria should have no preferential treatment, at least while she remains in the home. It, therefore, follows that, if needed, a sufficient amount should be paid from Victoria's estate to maintain an appropriate standard of living for her, her mother, her adoptive father, and her five younger half brothers and half sisters.
It is not our function to agree, or disagree, with this philosophy; but the appellants are right in suggesting that the probate court ought to have something more convincing than the collection of figures said to represent the monthly expenses of this family of two adults and six children, then under eleven years of age[4] to justify pouring approximately *743 a thousand dollars[5] a month of Victoria's money into this home in Switzerland to balance a budget of $1,640 a month. We wonder (with the appellants) at the $100 a month for auto expense, when Zermatt has no automobiles; and $190 for rent when living in a hotel owned by Victoria's adoptive father.
[8] If an allowance is made for Victoria's support, we agree with the appellants' contention that an accounting should be made of the expenditures.
We share the probate court's impatience with the idea that there must be a voucher for every stick of gum, every hair ribbon, and every pair of stockings purchased for the ward, but we do not believe the appellants' contention goes to that extent. In any guardianship estate, the probate court may authorize the payment each month to the guardian or custodian of the ward of a designated amount (in the nature of a petty cash account) sufficient to cover a multiplicity of minor expenses, and the guardian or custodian's receipt therefor is the only voucher required.
We disagree, however, with the view that there is one rule applicable to small estates and another to large estates; and would not agree that a receipt from the mother, as guardian of the person of the ward, is all the receipt that is necessary for a monthly allowance of $750 for support paid by the estate. There should be a receipt for all expenditures, except those from the petty cash account.
There remains for consideration only the question of the fees of the guardian ad litem and the attorneys for Julie Vance Ivarsson, as co-guardian of the estate.
As to the guardian ad litem, if the hearing within the area which we have indicated should be explored (relative to the capital assets of Mr. and Mrs. Ivarsson) and should require more time and effort on his part, the probate court should determine compensation commensurate therewith. *744 We find no basis for the objections made by the appellants to either the fee allowed or his expenses.
[9] As to the fee of $2,520 allowed the attorneys for the co-guardian, Julie Vance Ivarsson, it may well be a reasonable fee under the circumstances, but the evidence offered in support thereof seems inadequate.
The attorneys for the bank, the co-guardian who actually administers the guardianship estate, received a fee of $1,750.
It may be that the problems of advising Mrs. Ivarsson what not to do, as co-guardian, are more onerous and complex than advising the bank what it can and should do; but that was not made clear.
The only testimony offered in support of the attorneys' fee of $2,520 was that a member of the firm had put in:
"... 71 3/4 hours part-time figured at the rate of $35, amounting to $2,476.25; associate's time of 1 3/4 hours at $25, $43.75, totalling $2,520."
The time required is only one factor in determining the reasonable value of services; further evidence should be presented as to what problems of Mrs. Ivarsson, in her capacity as co-guardian of the estate, were involved.
While we are here concerned with the guardianship of the estate of Victoria Ivarsson, and not of her person, we suggest that the probate court in determining what expenditures are to be made on behalf of the ward is entitled to know something of the home conditions, the educational advantages being accorded the ward, and what the future plans are to fit her for the tremendous responsibilities that a fortune such as hers entails.
The case is remanded to the superior (probate) court for further proceedings in connection with the fifth report of the co-guardians, taking into consideration the views herein expressed.
DONWORTH, J., did not participate.
December 13, 1962. Petition for rehearing denied.
NOTES
[*] Reported in 375 P. (2d) 509.
[1] See Annotation in 115 A.L.R. 571, beginning at 575.
[2] The litigation to which reference is made was by the appellants, Mr. and Mrs. E.K. Harrison (she being the paternal grandmother of Victoria Ivarsson), in an attempt to prevent the return of Victoria, who was then visiting them, to her mother and adoptive father in Switzerland; and an attempt to make her a ward of the Superior Court of the State of California for Placer County. This necessitated that Mr. and Mrs. Ivarsson come from Switzerland to regain their daughter. The cost of this litigation to the estate in travel expenses, attorneys' fees, expert witnesses, and the like was in excess of $12,000.
We can understand some of the feeling (which we detect) against the intervention in this proceeding of the appellants whose well-intentioned, but misguided, efforts have cost the estate (they are now endeavoring to protect) a very considerable amount. Past mistakes have no bearing on the merits of the present controversy.
[3] In re Ivarsson (August 23, 1962), ante p. 417, 374 P. (2d) 179.
[4] Rent ................................... $ 190.00
Medical and dental ..................... 100.00
Clothing ............................... 200.00
Groceries .............................. 320.00
Taxes and insurance .................... 250.00
Auto expense ........................... 100.00
Miscellaneous household expenses ....... 100.00
Entertainment, recreation, sports and
travel (exclusive of traveling to
the United States, which has been
paid for from the ward's estate) .... 150.00
Church and charity ...................... 30.00
Nurses and household help ............... 200.00
_________
TOTAL ............................................. $1,640.00
[5] We arrive at this figure because the family income, as testified to, was: Mr. Ivarsson $200 a month; Mrs. Ivarsson $500 a month; leaving $940 a month to come from the estate. The probate court met this with a $750 a month allowance for Victoria's support and a $3,500 fee to Mrs. Ivarsson as co-guardian of the estate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360384/ | 375 P.2d 6 (1962)
TERRITORY OF HAWAII, by Edward N. SYLVA, its Attorney General
v.
Mary A. MENDONCA, Francis K. Sylva, Edward N. Sylva, Trustees under that Certain Deed of Trust Dated January 2, 1929, and Recorded in the Bureau of Conveyances at Honolulu, in Liber 995, Page 101.
No. 4156.
Supreme Court of Hawaii.
September 20, 1962.
Rehearing Denied October 12, 1962.
*7 Walter D. Ackerman, Jr., Honolulu, for defendants-appellants.
Shiro Kashiwa, Atty. Gen., and Daniel D.S. Moon, Deputy Atty. Gen., Honolulu (Lawrence H. Kam, Honolulu, with them on the brief), for plaintiff-appellee.
Before TSUKIYAMA, C.J., WIRTZ, J., Circuit Judge HAWKINS, in place of CASSIDY, J., disqualified, Circuit Judge HEWITT, in place of LEWIS, J., disqualified, and Circuit Judge JAMIESON, in place of MIZUHA, J., disqualified.
WIRTZ, Justice.
This is an appeal from the judgment entered in the Circuit Court of the First Circuit in an eminent domain proceeding brought by the plaintiff-appellee, herein referred to as the Territory, to acquire a parcel of land owned by appellants, herein referred to as the Mendonca Estate, for the construction of "the Kalihi Valley Road, Federal Aid Secondary Project No. S-0630(1)," known as Likelike Highway. Under its petition, filed on September 8, 1954, the Territory sought to condemn a 118,073 square foot strip through a larger tract of land owned by the Mendonca Estate, thus cutting the remaining land into two parts, "together with all of those certain abutter's rights or easements of vehicle access appurtenant to the remaining lands.[1]" One of the findings of fact made *8 by the trial judge was that "the highway contemplated by said condemnation in this action is, and will be, a limited access highway that is to say, access to said highway will be limited to such cross streets or entrances as shall be designated by the Territorial Highway Department, pursuant to law, and, in the case of [the remaining lands of defendants], the only vehicular access or right of ingress and egress to and from said highway now contemplated by said improvement from or to any portion of said [remaining lands] will be confined or limited to the entrances delineated on said map, Exhibit A, where Valley View Drive intersects said highway."
The parties stipulated that the value of the 118,073 square foot strip of land taken by condemnation was $28,435. They have also stipulated that there was no severance damage to the remaining lands of the Mendonca Estate. The evidence was conclusive that the value of benefit to the remaining lands was in excess of $28,435. The trial court found this benefit to be special and entered its judgment on June 24, 1959 "that it having been found by uncontradicted evidence that the taking of said parcel and access rights for the construction of the proposed public improvement caused the market value of the remaining portions of the tract of land not taken by Plaintiff to have a greater aggregate market value after the taking than the value of the entire tract before the taking, said Defendants are not entitled to any compensation for the taking of said parcel and access rights." On this appeal, the Mendonca Estate contends that all of the benefit was general, rather than special, and, as such, not properly deductible from or to be offset against the value of the land taken.
Before attempting to define special benefits and to distinguish them from general benefits the question first arises as to the legal effect to be given to special benefits in an eminent domain proceeding. It was conceded that in this jurisdiction, except in projects involving the widening or realignment of existing ways, the condemning authority in eminent domain has the statutory right to offset special benefits to the remaining land in partial taking cases against the total damages to the property owner, including the value of the land taken. R.L.H.1955, § 8-21.[2] It was further *9 conceded that this setting off of special benefits against the value of the land taken and any damages to the remaining land in partial taking cases not involving the widening or realignment of existing highways does not conflict with the just compensation guaranteed under the Constitution of the United States. Bauman v. Ross, 167 U.S. 548, 17 S. Ct. 966, 42 L. Ed. 270; see Norwood v. Baker, 172 U.S. 269, 19 S. Ct. 187, 43 L. Ed. 443. Thus, the only issue presented under this appeal is whether or not the trial court properly decided that the benefit to the remaining lands of the Mendonca Estate was special rather than general.
Initially, the Territory contends that "the matter of special benefits is a question of fact and not a question of law. By uncontroverted evidence, the trial court having found that the Mendonca Estate property did receive special benefits, Rule 52(a)[3] of the Hawaii Rules of Civil Procedure should be invoked so as not to disturb its findings."
While it is true that the existence and extent of a benefit is a question of fact, yet the nature and definition of a special benefit, as contrasted with that of a general benefit, is a question of law. Here the facts are not in dispute as to the existence and extent of the benefit. The only question at issue is whether or not under these facts the benefit is special or general as a matter of law. Cf., City & Co. of Hon. v. Barros, 40 Haw. 615. Deciding this question does not necessarily require that the findings of fact of the trial court be disturbed; rather, it merely requires a determination as to whether the trial court applied the correct principles of law in reaching its conclusion that, under the facts, the benefit in question was special rather than general.
In his findings of fact, the trial judge set forth and adopted the opinion, and the bases therefor, of the two real estate appraisers who testified as expert witnesses that no general benefits resulted from this improvement and consequently the increased value of the remaining land could only be attributable to special benefits.[4] The only factual finding as to the nature of the benefit was that "this special *10 benefit is access which otherwise would have had to be paid for by the owners of the land in order to make the highest and best use of it." In his conclusions of law he simply stated that "the benefits accruing to the remainder of said tract by reason of such taking of Parcel 105 and the construction of the proposed improvement were and are special and not general benefits." The trial judge rejected a requested finding of fact as to the increase in value of Valley View Tract lots, holding that the benefits which these lots each received from the improvement, even though they were not situated on the highway, were special benefits, and further holding that "the fact that the neighboring tract, known as the Valley View Tract, abutting on this larger tract in controversy, was also substantially benefited, does not render the benefit to such larger tract general rather than special." Nowhere in the findings of fact or conclusions of law are set forth the legal bases for the conclusion of the trial judge that this benefit of "access" was special rather than general.
In order to better understand the true nature of this "access," unexplained in the findings of fact or conclusions of law, it becomes necessary to review the evidence showing the development of the Mendonca Estate property as well as the adjoining Valley View Tract. The Mendonca Estate land was previously a portion of a larger tract owned by a Mr. Antonio Rodrigues. In 1909, after the death of Mr. Rodrigues, the larger tract was partitioned among his heirs and divided into several acreage lots; each lot was given access to Kalihi Valley Road, a public highway, over a 12-foot roadway known as Numana Road. Title to this 12-foot roadway was held in common by the Rodrigues heirs, the Mendonca Estate being the successor in interest to one of these heirs.
Around 1939, prior to the establishment of effective Planning Commission rules and regulations, the owners of one of these partitioned Rodrigues lots subdivided it. This subdivision was known as Valley View Tract and was adjacent to the Mendonca Estate land. It is served by the following streets: Valley View Drive, Kuahiwi Way, Holua Way, Laelae Way and Kua Pohaku Drive and Numana Road. In 1952 all of these streets in this tract, except Numana Road, were accepted by the City and County of Honolulu and dedicated to the Territory as public highways. These streets were all paved but did not have curbs, gutters or sidewalks.
The principal street in this tract is Valley View Drive. It borders upon the Mendonca *11 Estate property at the boundary line between it and the Valley View Tract.
On the date of condemnation approximately fifty per cent of the lots in Valley View Tract had homes upon them. The only access which Valley View Tract, as well as the Mendonca Estate property, had at that time to downtown Honolulu was along Numana Road. This road had been widened and paved where it runs through the Valley View Subdivision but thereafter for approximately three-tenths of a mile until it reached Kalihi Valley Road it was a winding 12-foot wide, poorly improved, country road, which did not admit of passage by two automobiles traveling abreast. Kalihi Valley Road, where Numana terminated, afforded good transportation to downtown Honolulu.
The Mendonca Estate property totalled 31.61 acres. On the date of condemnation the highest and best use of this land fell into three categories: (1) "forest conservation" as to approximately 9½ acres of pali or cliff land; (2) "agriculture" as to about 6½ acres situated above the 500-foot elevation, and (3) "residential" as to the balance. The trial court found, "as a matter of law, that under the laws, ordinances and subdivision regulations in effect on September 8, 1954, the owners of the larger tract could not legally have subdivided said tract using only Numana Road as access thereto, in view of its narrow and substandard character and the fact that it was on that date in part at least a private road." The Mendonca Estate does not take issue with this ruling as it concedes that the construction of a bridge over Kalihi Stream would have been the economically superior way to develop their tract for subdivision purposes. This bridge "access" was one of the assumptions used by the real estate appraisers in determining the "before value" of the Mendonca Estate property.
The purpose of this condemnation suit was to acquire land for the construction of Likelike Highway, which is the highway connecting Honolulu via the Kalihi tunnels to Windward Oahu. Likelike Highway is a limited access highway. Under and by virtue of the condemnation proceedings, the two parcels of Mendonca Estate property remaining after the condemnation are denied all rights of vehicle access onto Likelike along the whole length of their boundaries abutting on Likelike. However, traffic from Valley View Drive is permitted access onto Likelike and since the remaining Mendonca Estate land which lies below Likelike is situate on Valley View Drive, and Valley View Drive is a public highway, it is thus afforded indirect access via this public street onto Likelike. This access is enjoyed by all the lots of Valley View Tract in the general area which are presently being served by Valley View Drive and its tributary public streets. As to the other remaining land of the Mendonca Estate, which lies above Likelike, it would have been entirely "landlocked" from all existing or possible roadways except for the fact that prior to condemnation the Mendonca Estate, with the Territory's assistance, secured easements from owners of adjacent lands for access over these adjacent lands to a permitted access point, where the upper terminus of Valley View Drive corresponded with the upper boundary of Likelike.
Two real estate appraisers, Messrs. Lockhart and Mendonca, testified for the Territory as expert witnesses. The Mendonca Estate did not put on any expert witnesses but rely, in support of their contention, on facts elicited from the Territory's expert witnesses on cross-examination. Both expert witnesses appraised the Mendonca Estate property as of the time immediately preceding condemnation and then appraised the remaining property as of the time immediately after condemnation.[5] Under the *12 appraisals made by both witnesses the after values exceeded the before values. No one questions the existence or the extent of the benefit inuring to the Mendonca Estate from the construction of Likelike Highway.
On cross-examination these witnesses admitted that the lots in the Valley View Tract would be similarly benefited when served by access to Likelike via Valley View Drive; that Valley View Tract lots, like the proposed Mendonca Estate lots, comparably increased in value as a result of Likelike Highway "tapping" Valley View Drive and thus afforded them better transportation facilities to Honolulu. It was also brought out that residential lots adjoining a limited access highway to which they had no direct access enjoyed no benefit and according to one of the witnesses such location of the lots in close proximity with the highway, in fact, created a nuisance condition.
Turning now to the consideration of the nature of special benefits and considering the general law on the subject, since this court has not had the occasion heretofore to interpret the meaning of "specifically benefited"[6] as used in the eminent domain statute, we are immediately confronted with this observation made by one of the leading authorities in the field:
"* * * Upon this subject there is a great diversity of opinion and more rules, different from and inconsistent with each other, have been laid down than upon any other point in the law of eminent domain." 3 Nichols, Eminent Domain, 3rd Ed., § 8.62, p. 39.
This observation was made by the author after an exhaustive research of the case law and he concludes:
"The most satisfactory distinction between general and special benefits is that general benefits are those which arise from the fulfillment of the public object which justified the taking, and special benefits are those which arise from the peculiar relation of the land *13 in question to the public improvement." 3 Nichols, Eminent Domain, 3rd Ed., § 8.6203, p. 45.
This definition of and distinction between general and special benefits, while fundamentally sound, is too general to admit of ready application to specific situations. The difficulty arises not so much from recognition of the basic principles categorizing special and general benefits as in the application of the same to particular factual situations. The application of the distinction between general and special benefits is influenced by the nature of the eminent domain proceedings and the manner in which special benefits are to be utilized.
The determination of what shall constitute a special benefit, to be used as an offset to the value of the property taken under the limitation that only special benefits shall be so used, is governed by the equitable principle which serves to justify the limitation, namely, that it is unfair for a land owner to be taxed specially through the reduction or refusal of compensation by offsetting benefits which his neighbors, whose lands are not taken, nonetheless receive free of charge. It is to avoid the unfairness of making one man pay in land for that which another receives free that special benefits are narrowly conceived.
"Viewed as a matter of justice, it seems much fairer to exclude the general benefits. They are very difficult to assess accurately, and, as they usually arise from an increase in population or business prosperity expected to follow the improvement, they will never be received if the results hoped for do not follow. Moreover, the owner whose land is taken is placed in a worse position than his neighbor whose estate lies outside the path of the improvement and who shares in the increased values without any pecuniary loss. The owner may also well argue that the general taxes which he pays are justified only by the general benefit that he receives from the undertakings and improvements made under public authority." 3 Nichols, Eminent Domain, 3rd Ed., § 8.6205, p. 58.
"It can more easily be determined as to what are special benefits and general benefits if we inquire: What are the reasons for the rule that general benefits may not be deducted and special benefits may be deducted from consequential damages?
"Why are general benefits not deducted? `General benefits * * * may never be realized, and, if they are, it is unjust that one person should be obliged to pay for them by a contribution of property while his neighbor whose property is not taken enjoys the same advantages without price.' 2 Lewis, Eminent Domain, 3d Ed., 1198. See 18 Am.Jur. 944, sec. 299; Chicago K. & N.R. Co. v. Wiebe, 25 Neb. 542, 41 N.W. 297; 3 Sedgwick, Damages, 9th Ed., 2299." Prudential Ins. Co. v. Central Nebraska Pub. P. & I. Dist., 139 Neb. 114, 296 N.W. 752, 145 A.L.R. 1.
The rationale supporting the special benefit rule led early in highway cases to a well-recognized distinction between special and general benefits received by property abutting upon an improved way. The benefits were thus segregated: first, the special and direct benefit arising from its own position upon the way itself; and, second, the general benefit, not arising from location on the way, but from the facilities and advantages occasioned by the way. Hilbourne v. Suffolk County, 120 Mass. 393, 21 Am.Rep. 522; see Annotation, 145 A.L.R. 7, 101.
The foregoing case laid down the rule, which is fundamental, that special benefits resulting from the fact that land abuts on a proposed road do not become general benefits merely because other properties which also front on the road and receive these same benefits have not been required to contribute to the road in property. This is a situation that occurs most frequently in street widening and realignment cases where not all the properties abutting the *14 widened or realigned highway have been required to contribute a portion of their lands for its construction. It is significant that the legislature has seen fit in such situations to further limit the use of special benefits only for the purpose of minimizing damages to the remaining lands and thus insuring the owner payment in cash for the value of the land taken. R.L.H.1955, § 8-21. This is legislative recognition of the equitable principle that it is unfair to make one person pay in land for that which another receives free.
All of the highway condemnation cases that have come to our attention follow this definition of a special benefit as being "the special and direct benefit arising from its own position upon the way itself" as distinguished from those benefits "not arising from location on the way, but from the facilities and advantages occasioned by the way" which affects all estates in the neighborhood equally, if not in language at least upon the facts presented in each case.
Typical is Wilson v. Greenville County, 110 S.C. 321, 96 S.E. 301, 303, where the court said:
"The enhancement in value of lands through which an improved highway is located is a benefit to the owner. * * The proposition is so well recognized that, in some circumstances, it is made the ground of assessing the owner to pay for it, at least in part. The benefits derived from such improvements are classed as general and special. The general are such as are enjoyed by all people in the community. The special are such as are peculiar to one or more persons by reason of the more favorable location of their lands with reference to the highway. Those who own lands immediately on a highway derive advantages which are not shared by others in the same community. These special benefits usually find concrete expression in a comparatively greater increase in the value of such lands, though that may not be, and often is not, the only special benefit which they enjoy. But certainly, to the extent that the benefits accruing to those who own lands on the highway exceed those of their neighbors whose lands are off the highway, they are special. A benefit that is limited in enjoyment to one or more persons is special to him or them. Therefore the fact that all persons who own lands adjacent to the road enjoy special benefits does not make such benefits general. A special benefit to one tract on the highway does not become general, because a like benefit is enjoyed by many tracts that are also contiguous to the highway. The benefit accruing to each tract is special to it."
The case of State ex rel. State Highway Commission v. McCann, (Mo.), 248 S.W.2d 17, involved a public highway which crossed defendant's farm. It was conceded that all of the property in the general area was greatly benefited by this new highway development. The government attempted to prove that defendant was specially benefited because he could create houselots on either side of the new road. However, the upper court held that the enhancement of the value of his tract was not in a manner peculiar to it, but was common to and enjoyed by other tracts throughout the neighborhood, no part of whose lands were taken. The court succinctly set forth the principles involved:
"We think the law is well settled that `special benefits' are such as are peculiar to a particular tract of land, enhances the value of such property in a manner peculiar to it, and not common to and enjoyed by other tracts in the same neighborhood, no part of which is taken.
* * * * * *
"A `general benefit', as applied to a person whose property is being condemned for a highway, is one common (though it may be in a greater or lesser degree) to all other landowners in the vicinity of such road, including those whose land is not taken as well as those whose land is partly taken. A landowner *15 from whom some land is taken is chargeable with the value of special benefits but not the value of general benefits. To charge a tract of land with the value of general benefits is to require its owner to pay for a benefit common to others who are themselves exempt from such payments. [Citing Missouri cases.]
"But it is also the law that a benefit accruing to all lands similarly situated and bordering on a highway may, nevertheless, be special as to each of them, provided, they are not also benefits accruing to lands in the community which do not border on the highway, and, consequently, no part of which is taken."
The court in State ex rel. State Highway Commission v. Williams, Mo.App., 69 S.W.2d 970, 972, was terse and to the point in its direction to the trial judge that "* * * an instruction should be so framed in these cases as to make clear to the jury that a special benefit to land adjoining a highway, though shared by other lands similarly situated, remains a special benefit for which the condemnor is entitled to credit if such special benefit is not shared generally by other lands in the community affected by the highway and not so situated."
The Territory, while unable to cite to this court any case holding contrary to the rule that benefits which inure to both abutting and non-abutting properties are general and not special, contends that this rule is applicable only to conventional type highways where every party fronting it is entitled to free and open access to the highway and has no application to a limited access type highway such as Likelike Highway. The only case dealing with a limited access highway situation that has come to our attention is State By and Through State Highway Commission v. Bailey, 212 Or. 261, 319 P.2d 906, where the court refutes the contention of the Territory in the following language:
"Evidence of general benefits may not be considered. Benefits which are common to the public or which the land of defendant shares in common with lands of others in the community which do not abut upon the highway may not be considered.
* * * * * *
"They may consider evidence of improved outlet to market to said premises, of higher and better use, as for subdivision, residential or commercial purposes, frontage on a better road, modes of access, and in general any substantial evidence that the improvement will add to the convenience, accessibility, use and value of the land if such benefit is not shared by non-abutting lands. The fact that other lands abutting on the improvement are also specially benefited is immaterial."
The Territory insists that the words "if such benefit is not shared by nonabutting lands," used by the court in the Bailey case, were inadvertently included therein and are inconsistent with the other language used. It takes comfort in the fact that the court refused to rule as a matter of law that no special benefits could be shown and returned the case for a new trial to permit the jury to consider factors of access as possibly constituting special benefits. However, in that case the condemnor had provided several points of access from the proposed highway directly to the condemnee's remaining land. These points of access were peculiar to the remaining land and served only this land, and under these circumstances evidence might well be adduced to indicate a special benefit. In our case, however, no access is provided from Likelike directly to the remaining lands of the Mendonca Estate; on the other hand, such access is expressly prohibited. The access afforded is not to the remaining lands of the Mendonca Estate but rather to Valley View Drive which serves not only the Mendonca Estate lands but also through its tributary streets the entire Valley View Tract. In other words, the access here provided is shared in common by the lands of the Mendonca *16 Estate and the various lots in the Valley View Tract. It is in no way peculiar to the Mendonca Estate Tract.
Although the expert witnesses differed in their estimate of the proportionate monetary appreciation in value of the Valley View Tract lots and the remaining Mendonca Estate property as a result of the access afforded through Valley View Drive into Likelike Highway,[7] they were in agreement on the proposition that this access afforded to the Valley View Tract lots to Likelike Highway was equal to that afforded to the projected Mendonca Estate lots. Under these circumstances, and since the benefit of access is shared equally by the remaining land of the Mendonca Estate adjoining Likelike Highway with lots of the Valley View Tract not abutting on the highway, we can only conclude under the applicable law above set forth that this benefit of access was general rather than special. As such, its cost is properly allowable generally to all taxpayers to avoid the inequity of requiring the Mendonca Estate to pay in land for a benefit received without cost by all the owners of lots in the Valley View Tract.
True, such access now permits the Mendonca Estate to subdivide its remaining lands in accordance with their highest and best use without the necessity of itself providing sufficient access to satisfy the requirements of the City Planning Commission. This undoubtedly is a valuable benefit and could very well be considered a special benefit were it ascertainable as such under the evidence. In this record, its existence and extent is indistinguishable from the general benefit reflected in increased market value flowing from the access provided to Likelike Highway through Valley View Drive accruing to the lands served thereby. The burden of establishing special benefits rests upon the condemning authority. 5 Nichols, Eminent Domain, 3rd Ed., § 18.5, pp. 198, 201; 29 C.J.S. Eminent Domain § 184, p. 1067; 18 Am.Jur., Eminent Domain, § 342, p. 985.
It was the view of the court below, as the Territory now contends, that the rule of the Hilbourne case, as confirmed in the Bailey case, is a technical one and should not be employed in this particular situation. Rather than technical, it is the only logical approach, as only property which lies in the path of a proposed highway is subject to condemnation. Remnants from such land alone are subject to consideration of special benefits. Naturally they abut on the proposed highway and it is only logical that, in determining whether the benefit is peculiar to such lands because of the construction of the proposed highway, comparison should be made with properties similarly situated, as contrasted with those not similarly located.
The trial court held, as the Territory now contends, that if this rule is to be applied in this jurisdiction the Valley View Tract should be considered as a unit, and as such, it would be comparably situated with the remaining Mendonca Estate property along the highway, thus rendering the access benefit a special one to the Mendonca Estate. In the absence of any reasonable relationship and pertinency to the issues, courts cannot indulge in such assumption as the condemning authority must accept the physical facts as they existed on the date of condemnation for purposes of determining just compensation. There is no valid reason for so considering the Valley View Tract. On the contrary, on the date of condemnation it was physically subdivided and comprised five full blocks divided into residential lots, almost entirely separately owned, on half of which were built houses occupied as homes, which were served by five public *17 streets. Further, several Valley View Tract lots lying in the course of Likelike Highway were also condemned and were not there considered as part of a larger, integrated unit of land, but as separate tracts of land enjoying separate ownership. Under these circumstances there would be no justification for considering the Valley View Tract as a unit for the purpose of comparison with the Mendonca Estate property in the determination of the nature of the access benefit. The physical facts of ownership and individual use existing on the date of condemnation are usually controlling in determining just compensation, including the existence of special benefits. R.L.H.1955, § 8-22; 3 Nichols, Eminent Domain, 4th Ed., § 8.5, p. 17; 4 Nichols, Eminent Domain, 4th Ed., § 12.23, p. 72; Cf., City of Los Angeles v. Geiger, 94 Cal. App. 2d 180, 210 P.2d 717.
Reversed and remanded for entry of judgment for defendants in the sum of $28,435, being the stipulated value of the land taken, together with interest thereon at the rate of five per cent. per annum from the date of possession on July 20, 1955.
PETITION FOR REHEARING
PER CURIAM.
The petition for rehearing sets forth matters which have already been fully considered by the court. The "projected" Mendonca Estate lots were utilized under the evidence merely to determine the nature and extent of the benefit of access to the remaining lands of the Mendonca Estate as an entity and not as subdivided lots.
Accordingly, the petition for rehearing is denied without argument.
NOTES
[1] The petition discloses that "the public purpose for which Plaintiff has been and is now desirous of purchasing and condemning the aforesaid rights or easements of vehicle access of ingress and egress over and across those certain courses in the metes and bounds description of Parcel 105 and more fully delineated in Exhibit `A' is to control the highway and to promote the security and safety of members of the public using the highway."
[2] "§ 8-21. Damages assessed, how. In fixing the compensation or damages to be paid for the condemnation of any property, the value of the property sought to be condemned with all improvements thereon shall be assessed, and if any of the improvements are separately owned, the value thereof shall be separately assessed. If the property sought to be condemned constitutes only a portion of a larger tract, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvements in the manner proposed by the plaintiff shall also be assessed, and also how much the portion not sought to be condemned will be specifically benefited, if at all, by the construction of the improvement proposed by the plaintiff. If the benefit shall be equal to the amount of compensation assessed for the property taken, and for damages by reason of its severance from another portion of the same tract, then the owner shall be allowed no compensation, but if the benefits shall be less than the amount so assessed as damages or compensation, then the former shall be deducted from the latter and the remainder shall be the amount awarded as such compensation or damages. * * * In case condemnation shall be for the purpose of widening or realigning any existing highway or other public road, the owner of the property condemned shall be entitled to full compensation for the property actually taken and special benefits shall be considered only in so far as the value of such benefits shall not exceed the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvements in the manner proposed by the plaintiff, i.e., if the special benefits shall be equal to such severance damages the owner of the parcel shall be allowed no compensation except the value of the portion taken but if the special benefits shall be less than such severance damages the former shall be deducted from the latter and the remainder shall be the only damages allowed in addition to the value of the land taken."
[3] The rule provides in part that "findings of fact shall not be set aside unless clearly erroneous."
[4] The appraisers concluded that the appreciation of value in the "after" valuation (the remaining land) reflected special benefits only as the general benefits were included in both the "before" and "after" valuations and consequently cancelled out. Apart from legal considerations, the factual bases for this opinion seem open to criticism as being irreconcilable with the "before" and "after" appraisal method utilized. It is difficult, if not impossible, even on the basis of assumption, to include general benefits resulting from the construction of the improvement in the "before" evaluation which is made on the basis that the improvement is non-existent. The "after" value of the remaining land, being market value, necessarily contemplates the existence of the improvement, together with all benefits flowing therefrom, both general and special. These values should reflect market values, which necessarily include all aspects of damages and benefits. Cf., Territory v. Adelmeyer, 45 Haw. 144, 363 P.2d 979. In that case the "before" and "after" method of evaluation was criticized because of the statutory requirement for the segregation of damages resulting from the taking and special benefits. The same criticism may well apply here in view of the statutory necessity to differentiate the nature of the benefits.
The general benefits referred to by the witnesses as included in both the "before" and "after" values seem to have no reference to the construction of Likelike Highway as illustrated by the testimony of Mr. Lockhart:
"A. The entire Kalihi Valley area since World War II, at the conclusion of World War II, has been in transition to new higher residential use. It was converted from an agricultural, pig farm, chicken raising area into a full blown residential community. There has been many factors that influenced this growth. Probably one of the, probably the single most important factor is the influence of government insured and guaranteed loans on protecting the purchasers so he can buy land and build his house. A typical 1955, $18,000 house could be purchased for possibly $2,000 or less down under an F.H.A. loan and at the time under our V.A. no down payment loans, the veteran could have purchased a home for closing costs only. Other factors that influenced this same growth pattern was Kam IV widening, the activity of the City and County insofar as two new schools, a park and a playground in the Upper Kalihi Valley, the development of Improvement District 95 with good service roads and the highway itself which provided a better and faster access from Honolulu proper into this valley area. These are all influences that have tended to collectively increase property values in Kalihi. These are the sum total, in my opinion, of all general benefits by reason of the tunnel highway and all other influences. These general benefits are directly reflected in the sales data I used. The people were buying and selling with the knowledge of these benefits in their possession. Therefore, if any other value enhancement is detected afterwards, after the taking, but it was not there before the taking, it has to be a special benefit. It cannot be anything else. I have considered all the general benefits in my original comparison data before the taking. They are in there. The general benefits are also in the after value but because they are in the before and after value they both algebraicly [sic] cancel themselves out so if there is an excess of money, it has to be a special benefit."
[5] In arriving at their values, both appraisers laid out mythical subdivisions and from a computed total sales figure of the subdivided lots deducted the costs of subdivision and all expenses, including a subdivider's profit. No objection was made to this appraisal method which might be questionable under the rule in Hawaii Housing Authority v. Rodrigues, 43 Haw. 195. There was also evidence adduced by both appraisers relative to the assumed "bridge access" utilized to determine the "before" values, not only as to costs but as to the acquisition of land between the stream and Kalihi Valley Road not owned by the Mendonca Estate. This, likewise, might have been questioned as speculative.
[6] In the street assessment case of Widening of Alakea Street, 8 Haw. 122, this court passed on the construction of the term "especially benefited," under an act of the legislative assembly at its session in 1870 providing that "whenever a Commission shall be appointed * * *, to assess the value of private property, required for public use, in the laying out of a new road or highway, the Commission shall determine what estates are especially benefitted [sic] by such road or highway, and the amount of especial benefit accruing to each" (emphasis added), holding that only estates abutting on the proposed street were so benefited. In this connection the court had this to say:
"The point for decision in this matter as it was presented on appeal is solely whether estates or lots not abutting on the street which has been widened shall be assessed for the betterment.
"The authorities are agreed that such terms as `especially benefited' must be construed to mean something different from the general benefit to the city at large, and from the locality near the street which has been improved by widening.
"Chief Justice Gray, in Upham vs. Worcester, 113 Mass., 97, says: "The benefits which may accrue to any estate from the laying out of a highway are of three kinds: 1st. Those directly occasioned to an estate bounding upon the highway, and peculiar to the estate itself as distinguished from other estates not bounding thereon. 2nd. Those shared by the estate in common with other estates in the neighborhood. 3rd. Those which extend to all estates in the same town or city. Benefits of the first kind only can be allowed by way of set-off against the damages awarded to the owner under the Highway Act for taking part of the estate and injuring it.'"
The determination of special benefits in assessment cases, however, is governed by considerations which differ from those present in eminent domain proceedings. Cf., Schnack v. City & County, 41 Haw. 219; 42 Haw. 76.
[7] Mr. Mendonca attributed his disproportionate monetary appreciation in value to the fact that the streets in Valley View Tract were without curbs, gutters and sidewalks and that the tract was not a modern subdivision inasmuch as many of the buildings located therein were unattractive and substandard while the proposed Mendonca Estate subdivision would have all these modern conveniences. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2570586/ | 7 P.3d 783 (2000)
2000 UT 58
Peter LYSENKO, Plaintiff and Petitioner,
v.
Mitchell J. SAWAYA and Lillie Marie Sawaya, Defendants and Respondents.
No. 990240.
Supreme Court of Utah.
July 11, 2000.
*784 Leslie W. Slaugh, Provo, for plaintiff.
Stephen B. Mitchell, Salt Lake City, for defendants.
*785 ON CERTIORARI TO THE UTAH COURT OF APPEALS
RUSSON, Associate Chief Justice:
¶ 1 On writ of certiorari, plaintiff Peter Lysenko seeks review of the court of appeals' decision affirming the trial court's award of damages to Lysenko for conversion. Lysenko claims that the trial court applied an incorrect measure of damages and that the court of appeals improperly affirmed.
BACKGROUND
¶ 2 In May 1978, defendants Mitchell J. Sawaya and Lillie Marie Sawaya (the "Sawayas") leased property (the "premises") in Orem, Utah, to the Burger King Corporation ("Burger King") on which Burger King intended to construct a restaurant building. The lease term was for fifteen years. Under the lease, any additions or improvements that Burger King made to the premises would become the property of the Sawayas if not removed within fifteen days of termination of the lease.
¶ 3 On February 6, 1979, after constructing a restaurant building on the premises, Burger King entered into a sublease agreement with plaintiff Peter Lysenko. The sublease permitted Lysenko to operate a restaurant in accordance with a franchise agreement into which he entered with Burger King. The sublease provided that any personal property installed on the premises by Lysenko would remain his property after the sublease ended. Lysenko purchased and installed the necessary equipment and opened for business.
¶ 4 Lysenko's purchase of equipment was financed by a loan from Central Bank and Trust ("Central Bank"). Central Bank filed a UCC-1 financing statement in connection with the loan to Lysenko. The collateral listed in the financing statement included the restaurant equipment, fixtures, furniture, signs, improvements, accessories, accessions, and additions.
¶ 5 On February 22, 1992, Lysenko and Burger King executed an agreement in which Burger King agreed to sell, and Lysenko to purchase, the restaurant building. The agreement provided that in case of default, the nondefaulting party could terminate the agreement if the defaulting party did not cure the default within five days of receiving notice of default. The agreement also stated that Burger King's interest in the premises was still subject to Burger King's lease with the Sawayas.
¶ 6 In February 1993, after Lysenko failed to cure monetary defaults to Burger King, Burger King terminated Lysenko's franchise agreement, sublease of the premises, and agreement for sale of the restaurant building. Lysenko closed the restaurant in April 1993.
¶ 7 Before the fifteen-year term of the Sawayas' lease to Burger King expired on February 6, 1994, the Sawayas informed Central Bank, Burger King, and Lysenko that all improvements, personal property, and equipment were to be removed from the premises. The Sawayas warned that any improvements, personal property, or equipment not removed within fifteen days after February 6, 1994, would be forfeited to the Sawayas. Burger King informed the Sawayas that at that time, Lysenko's claim to the equipment was subject to Central Bank's and Burger King's interests, and as a result, Lysenko was in no position to remove his equipment from the premises. When Lysenko then requested permission to remove his equipment from the premises, the Sawayas refused.
¶ 8 Meanwhile, Lysenko arranged for one of his former employees, Curtis Loosli, to purchase Central Bank's security interest in the restaurant equipment. On February 8, 1994, Central Bank sold its security interest in the equipment to Loosli, who then conveyed his interest to Lysenko. Lysenko never successfully entered the premises to remove the equipment after the lease terminated.
¶ 9 Thereafter, the Sawayas leased the premises to another tenant, HB Properties, which began operating a restaurant on the site in September 1994. HB Properties discarded some of Lysenko's equipment that remained on the premises but retained and used most of it.
*786 ¶ 10 Lysenko filed an action against the Sawayas, arguing that they had unlawfully prevented him from removing his equipment, and in fact had converted the equipment.[1] Lysenko sought either possession of the equipment or its equivalent value. At trial, Lysenko's expert witness testified regarding two methods for determining the value of the equipment that remained in the restaurant: (1) "in-place" value, measuring the value of the equipment as a going concern; and (2) "salvage" value, measuring the value of the equipment if it were removed from the restaurant and sold.[2] The expert stated that the value of the equipment if left in place was $35,185 and the value of the equipment if removed and sold was $10,980. Lysenko urged the trial court to award damages based on the in-place value of the equipment. The Sawayas did not contest the expert's figures at trial but argued that Lysenko was not entitled to any damages. In the alternative, the Sawayas contended that the salvage value of the equipment was the proper measure of damages.
¶ 11 The court granted judgment to Lysenko. In its findings of fact and conclusions of law, the court stated that Central Bank had obtained a perfected security interest in the equipment and that its perfected security interest was properly assigned to Loosli and then to Lysenko. Moreover, Lysenko's perfected security interest entitled him to possession of the equipment, and by interfering with Lysenko's recovery attempts and receiving benefit from the continued use of the equipment, the Sawayas had converted the equipment.
¶ 12 The court determined, from the testimony of Lysenko's expert, that the value of the equipment if left in place in the restaurant was $35,185 and the value of the equipment if removed and sold was $10,980. Reasoning that the objective of damages for conversion is to compensate the plaintiff for "actual losses," the court concluded that Lysenko was entitled to $10,980, the salvage value of the equipment if it were removed from the restaurant and sold. In addition, the court determined that the value of Lysenko's equipment that HB Properties had discarded was $2000 and thus awarded a total of $12,980 to Lysenko as damages for conversion, plus prejudgment interest and costs.
¶ 13 Lysenko appealed to this court, and we transferred the matter to the court of appeals pursuant to Utah Code Ann. § 78-2-2(4) (1996). Before that court, Lysenko argued that he was entitled to the in-place value of the equipment because the equipment was still in place and in use at the restaurant.[3] The court of appeals disagreed and affirmed the trial court's decision to award salvage value. See Lysenko v. Sawaya, 1999 UT App. 031, ¶¶ 10-12, 973 P.2d 445. The court of appeals stated that "because the adequacy of a damage award is a factual question, we will not reverse the trial court's findings unless they are clearly erroneous," id. at ¶ 6, 973 P.2d 445, and then concluded that Lysenko failed to show that the trial court's decision to award salvage value rather than in-place value was clearly erroneous, see id. at ¶ 12, 973 P.2d 445. One judge dissented, contending that the proper measure of damages presented a question of law and that in-place value should have been awarded because the equipment was still in place and in use at the restaurant. See id. at ¶¶ 18-21, 973 P.2d 445 (Orme, J., dissenting).
*787 ¶ 14 Before this court on certiorari, Lysenko contends that the court of appeals applied an incorrect standard of review to the trial court's decision to award salvage value. He argues that the trial court's decision involved a legal question reviewable for correctness, and that since the equipment was still in place and in use, the proper measure of damages was in-place value.
ANALYSIS
¶ 15 On certiorari, we review the decision of the court of appeals, not of the trial court. See Esquivel v. Labor Comm'n, 2000 UT 66, ¶ 11, 7 P.3d 777. Initially, we examine whether the court of appeals applied the correct standard of review to the trial court's decision to award the salvage value of Lysenko's equipment as damages for conversion. The court of appeals stated that Lysenko's request on appeal for in-place value instead of salvage value involved a dispute as to the "adequacy" of the trial court's damage award, which the court of appeals deemed a factual determination entitled to deference on appeal and not reversible absent clear error. See Lysenko, 1999 UT App. 031 at ¶ 6, 973 P.2d 445.
¶ 16 The court of appeals correctly noted that "the adequacy of a damage award is a factual question." Id. (citing In re Knickerbocker, 912 P.2d 969, 981 (Utah 1996)). However, the adequacy of the trial court's damage award was not at issue before the court of appeals. Indeed, Lysenko proffered evidence at trial, through his own expert, of the proper amount of damages awardable under either of two measures of damages, and the trial court's findings of fact incorporated both amounts. The question properly before the court of appeals was which measure of damages was appropriate, not the adequacy of the trial court's factual findings underlying the damage award. We therefore must determine whether the trial court's choice between the two measures of damagesin-place value and salvage value involved a question of law or fact.
¶ 17 Questions of fact "are generally regarded as entailing the empirical, such as things, events, actions, or conditions happening, existing, or taking place, as well as the subjective, such as state of mind." State v. Pena, 869 P.2d 932, 935 (Utah 1994). Legal questions, in contrast, "are defined as those which are not of fact but are essentially of rules or principles uniformly applied to persons of similar qualities and status in similar circumstances." Id. Thus, to determine whether the measure of damages in the instant case presented the trial court with a legal question, as Lysenko argues, we must determine whether there is a "rule[] or principle[]" governing the measure of damages that can be "uniformly applied to persons of similar qualities and status in similar circumstances." Id.
¶ 18 As a general rule, the measure of damages for conversion is "the value of the property at the time of the conversion, plus interest." Broadwater v. Old Republic Sur., 854 P.2d 527, 531 (Utah 1993). In McKeon v. Williams, 312 Or. 322, 822 P.2d 699, 699-701 (1991), which, like the case before us, dealt with a landlord's conversion of a tenant's personal property that remained on the premises, it was held that the appropriate method for determining the value of property at the time of conversion depended upon whether the tenant had a right to possess the premises when the conversion occurred. In that case, tenants leased a building for the purpose of operating a restaurant. Before their lease terminated, the tenants closed the restaurant and eventually stopped paying rent to the landlord, who then filed an action for restitution of the building. The court determined that the tenants' right to possess the premises had ended and ordered them to turn over the building to the landlord. Thereafter, the tenants requested permission from the landlord to remove their restaurant equipment, but the landlord denied their request. The landlord then leased the building to a new tenant who operated a restaurant on the premises using the same equipment.
¶ 19 In an action that followed, the jury found that the landlord converted the tenants' equipment, and awarded damages to the tenants for the value of the converted equipment. The court instructed the jury that the proper measure of damages for conversion *788 was the "fair market value of the property after removal from [the landlord's] premises." Id. at 700 (emphasis added). On appeal, the tenants argued that they were instead entitled to the in-place value of the equipment because the landlord leased the building to a new tenant who continued to use the equipment.
¶ 20 The McKeon court affirmed, noting that the important factual distinction to be made is when the conversion occurred. Examining rulings from other state courts, the McKeon court concluded in this regard:
1. If a landlord converts a tenant's on-premises personal property while a tenant has the right to possess the premises, the measure of damages is the "in-place" fair market value of the converted property.
2. If a landlord converts a tenant's personal property left on the premises after the tenant's right to possession has ended, the measure of damages is the fair market value that the property would have, if removed from the premises.
Id. at 701 (citing Stein v. McDonald, 149 So. 2d 77, 78 (Fla.Ct.App.1963) (awarding removal value when tenant attempted to remove property after right to possess premises ended); Smyth v. Stoddard, 203 Ill. 424, 67 N.E. 980, 982 (1903) (affirming award of in-place value of tenants' property when landlord sold premises before lease term expired); Independence Flying Serv., Inc. v. Ailshire, 409 S.W.2d 628, 629 (Mo.1966) (awarding in-place value when landlord converted property before lease terminated); I. Tanenbaum Son & Co. v. C. Ludwig Baumann & Co., 261 N.Y. 85, 184 N.E. 503, 504-05 (1933) (awarding removal value when personal property was converted after right to possess premises ended)).
¶ 21 Leading treatises dictate the same method of measuring damages when a landlord converts a tenant's property that remains on the premises:
A landlord who refuses to permit a tenant to take his removable fixtures at the end of the term is liable to the tenant for the value of the fixtures as used property, i.e., in their dismembered state, rather than their value in place, because this is their maximum value to tenant if removal had been permitted.
2 Milton R. Friedman, Friedman on Leases § 24.2, at 1424 (4th ed.1997).
[W]hen the property so in place can no longer be there used by the owner and he is subject to summary removal its value will be estimated in case of conversion with reference to these facts; it will be estimated with reference to the condition in which the property will be when removed or as subject to the obligation or necessity of removal.
4 J.G. Sutherland, A Treatise on the Law of Damages § 1114, at 4231 (4th ed.1916), quoted in McKeon, 822 P.2d at 702.
¶ 22 This rule serves the fundamental purpose of compensatory damages, which is to place the plaintiff in the same position as if the tort had not been committed. See Restatement (Second) of Torts § 903 cmt. a (1979). If, on the one hand, the conversion occurs while the plaintiff is still entitled to possess the premises and use the personal property in place (or if the plaintiff is entitled to assign or sublet the premises, to sell the property in place to the assignee or sublessee), then the plaintiff is entitled to the value of the property in place. If, on the other hand, the plaintiff's right to occupy the premises has ended, such as after the termination of a lease, the plaintiff no longer possesses the right to use the personal property in place, but is entitled only to remove the property and sell it.
¶ 23 This rule of damages when a landlord converts a tenant's property left on the premises is "uniformly appli[cable] to persons of similar qualities and status in similar circumstances." State v. Pena, 869 P.2d 932, 935 (Utah 1994). As a result, the trial court's determination of the appropriate measure of damages in this case involved a legal determination, not a factual determination as the court of appeals concluded. The court of appeals thus erred when it applied a clearly erroneous standard of review to the trial court's conclusion of law when a correction-of-error standard was appropriate.
¶ 24 The court of appeals nevertheless reached the correct result. At the time of *789 the conversion, Lysenko was entitled only to remove the equipment from the premises because his sublease had been terminated. Therefore, the correct measure of damages was the value that Lysenko's equipment would have if removed. Accordingly, the court of appeals correctly affirmed the trial court's decision to award the equipment's salvage value. We thus affirm the court of appeals as to the result it reached but for the reasons stated in this opinion.
¶ 25 Chief Justice HOWE, Justice DURHAM, Justice DURRANT, and Judge ALLPHIN concur in Associate Chief Justice RUSSON's opinion.
¶ 26 Having disqualified himself, Justice WILKINS does not participate herein; District Judge MICHAEL G. ALLPHIN sat.
NOTES
[1] Lysenko's former employee, Loosli, originally instituted this action. On October 3, 1996, prior to trial, Lysenko was substituted for Loosli as plaintiff by stipulation of the parties and order of the court.
[2] According to traditional usage, "salvage" value (also referred to as "scrap" value) describes "[t]he value of an asset after it has become useless to the owner" or "the amount expected to be obtained when a fixed asset is disposed of at the end of its useful life." Black's Law Dictionary 1550 (7th ed.1999). The term "salvage" value is a misnomer in the instant case because Lysenko's expert employed the term to describe the fair market value that Lysenko's undamaged, usable equipment would have if removed from the premises. Nonetheless, to avoid confusion, we will use the term "salvage" value in this opinion for the limited purpose of describing the valuation measure offered by Lysenko and ultimately adopted by the trial court.
[3] Lysenko did not appeal as to the trial court's award of $2000 for the equipment that HB Properties discarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726118/ | 970 So. 2d 834 (2007)
WHITSETT
v.
STATE
No. 2D07-1300.
District Court of Appeal of Florida, Second District.
December 14, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264885/ | 879 F. Supp. 1341 (1995)
Theodore Whitmore STANLEY, Jesse Barber, Joyce Franklin, J.W. Mack; et al., Plaintiffs,
United States of America; Intervenor-Plaintiff,
v.
DARLINGTON COUNTY SCHOOL DISTRICT, a public body corporate; The State of South Carolina; The Department of Education for the State of South Carolina; The Board of Education for the State of South Carolina; William P. Beckham, III, In Official Capacity as Member of the State Board of Education; Samuel M. Greer, In Official Capacity as Member of the State Board of Education; Joseph Peeler Stabler, Colonel, In Official Capacity as Member of the State Board of Education; Cleveland L. Sellars, In Official Capacity as Member of the State Board of Education; Austin Floyd, In Official Capacity as Member of the State Board of Education; Julian B. Wright, In Official Capacity as Member of the State Board of Education; Brenda K. Vernon, In Official Capacity as Member of the State Board of Education; Earl Bostick, Sr., In Official Capacity as Member of the State Board of Education; Maxie Duke, In Official Capacity as Member of the State Board of Education; Laura M. Fleming, In Official Capacity as Member of the State Board of Education; Frank M. Hart, In Official Capacity as Member of the State Board of Education; Beth Pinson, In Official Capacity as Member of the State Board of Education; W. Gregory Horton, In Official Capacity as Member of the State Board of Education; Robert W. Owen, In Official Capacity as Member of the State Board of Education; Ruby Matthews, In Official Capacity as Member of the State Board of Education; Celia Gettys, In Official Capacity as Member of the State Board of Education; Thomas E. McInville, In Official Capacity as Member of the State Board of Education; David M. Beasley, in his Official Capacity as Governor of the State of South Carolina and as Chairman of the State Budget and Control Board; and Barbara S. Nielsen, in her Official Capacity as State Superintendent of Education for the State of South Carolina; The State Budget and Control Board for the State of South Carolina; Grady L. Patterson, Jr., Earle E. Morris, James M. Waddell, Jr., and William D. Boan, In Their Official Capacities as Members of the State Budget and Control Board for the State of South Carolina, Defendants.
DARLINGTON COUNTY SCHOOL DISTRICT; Cross-Claimant,
v.
The STATE OF SOUTH CAROLINA; The Department of Education for State of South Carolina; William P. Beckman, III, In Official Capacity as Member of the State Board of Education; Samuel M. Greer, In Official Capacity as Member of the State Board of Education; Joseph Peeler Stabler, Colonel, In Official Capacity as Member of the State Board of Education; Cleveland L. Sellars; In Official Capacity as Member of the State Board of Education; Austin Floyd, In Official Capacity as Member of the State Board of Education; Julian B. Wright, In Official Capacity as Member of the State Board of Education; Brenda K. Vernon, In Official Capacity as Member of the State Board of Education; Earl Bostick, Sr., In Official Capacity as Member of the State Board of Education; Maxie Duke, In Official Capacity as Member of the State Board of Education; Laura M. Fleming, In Official Capacity as Member of the State Board of Education; Frank M. Hart, In Official Capacity as Member of the State Board of Education; Beth Pinson, In Official Capacity as Member of the State Board of Education; W. Gregory Horton, In Official Capacity as Member of the State Board of Education; Ruby Matthews, In Official Capacity as Member of the State Board of Education; Robert W. Owen, In Official Capacity as Member of the State Board of Education; Celia Gettys, In Official Capacity *1342 as Member of The State Board of Education; Thomas E. McInville, In Official Capacity as Member of the State Board of Education; David M. Beasley, in his Official Capacity as Governor of the State of South Carolina and as Chairman of the State Budget and Control Board; Barbara S. Nielsen, in her Official Capacity as State Superintendent of Education for the State of South Carolina; The State Budget and Control Board; Grady L. Patterson, Jr.; Earle E. Morris; James M. Waddell, Jr.; William D. Boan; In Their Official Capacities as Members of the State Budget and Control Board for the State of South Carolina, Cross-Defendants.
Civ. A. No. 4:62-7749-22.
United States District Court, D. South Carolina, Florence Division.
March 1, 1995.
*1343 *1344 *1345 *1346 *1347 *1348 *1349 Gary Haugen, Michael S. Maurer, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, for U.S.
Dennis D. Parker, N.A.A.C.P. Legal Defense and Educational Fund, Inc., New York City, Arthur C. McFarland, Charleston, SC, for class plaintiffs.
State of S.C., J. Emory Smith, Jr., Office of Atty. Gen., Columbia, SC, for State of S.C. and all State defendants except State Dept. of Educ.
George C. Leventis, Office of General Counsel, Columbia, SC, for State of S.C. Dept. of Educ.
John M. Milling, Darlington, SC, Alfred A. Lindseth, Sutherland, Asbill and Brennan, Atlanta, GA, for defendant, Darlington County School Dist.
I. BACKGROUND ...................................................... 1351
A. CASE HISTORY PRIOR TO 1970 ................................... 1351
B. THE 1970 DESEGREGATION ORDER ................................. 1352
C. CASE HISTORY SINCE THE 1970 ORDER ............................ 1353
D. INTERVENTION BY THE UNITED STATES ............................ 1355
II. MOTION TO DISMISS BY STATE DEFENDANTS ........................... 1356
A. GENERALLY .................................................... 1356
B. STANDING ..................................................... 1356
1. GENERALLY ................................................. 1356
2. DISTRICT'S STANDING TO SUE ON ITS OWN BEHALF .............. 1356
3. DISTRICT'S STANDING TO SUE ON BEHALF OF CHILDREN IN
DISTRICT ................................................. 1358
4. DISTRICT'S STANDING TO SUE UNDER FEDERAL STATUTES AND
CONSTITUTIONAL PROVISIONS ................................ 1359
C. ELEVENTH AMENDMENT IMMUNITY ISSUES ........................... 1360
1. GENERALLY ................................................. 1360
*1350
2. EX PARTE YOUNG EXCEPTION ................................... 1360
3. CONGRESSIONAL ABROGATION EXCEPTION .................... .... 1363
a. Generally ............................................... 1363
b. Title VI ................................................ 1364
c. EEOA .................................................... 1365
D. RES JUDICATA, COLLATERAL ESTOPPEL, LAW OF THE CASE AND
JUDICIAL ESTOPPEL ........................................... 1367
1. GENERALLY ................................................. 1367
III. PROPOSED CONSENT ORDER AND TRIAL ................................ 1368
A. GENERALLY .................................................... 1368
IV. ISSUES FOR TRIAL ................................................ 1369
A. GENERALLY .................................................... 1369
V. EVIDENTIARY ISSUES DURING TRIAL ................................. 1370
A. GENERALLY .................................................... 1370
VI. APPROVAL OF THE CONSENT ORDER AND ISSUANCE OF INTERIM JUNE
23, 1994, ORDER ................................................ 1370
A. GENERALLY .................................................... 1370
B. PROCEDURES AND CONSIDERATIONS GOVERNING CONSENT ORDER ........ 1370
C. REASONABLENESS OF THE CONSENT ORDER .......................... 1371
D. NOTICE TO CLASS MEMBERS AND FAIRNESS HEARING ................. 1372
E. MOTION FOR NEW TRIAL/ALTER OR AMEND THE JUDGMENT ............. 1373
F. INTERIM JUNE 23, 1994, ORDER ................................. 1374
VII. MAYO HIGH SCHOOL AS A MAGNET .................................... 1375
A. GENERALLY .................................................... 1375
B. RETENTION OF RACIAL IDENTIFIABILITY .......................... 1375
1. GENERALLY ................................................. 1375
C. DISTRICT'S FAILURE TO ENFORCE SCHOOL ATTENDANCE ZONE
LINES ....................................................... 1376
1. 1988-1991 ................................................. 1376
2. 1991-1994 ................................................. 1377
D. SCHOOL RESOURCES AND FACILITIES .............................. 1377
1. GENERALLY ................................................. 1377
2. FACILITIES ................................................ 1377
3. RESOURCES ................................................. 1379
4. CURRICULUM ................................................ 1379
5. INSTRUCTIONAL QUALITY ..................................... 1381
E. ASSIGNMENT OF PERSONNEL ...................................... 1381
1. PRINCIPALS ................................................ 1381
2. FACULTY ................................................... 1381
3. CLASSIFIED STAFF .......................................... 1382
F. CLOSING OF MAYO .............................................. 1382
1. GENERALLY ................................................. 1382
2. BURDEN ON BLACK COMMUNITY ................................. 1382
3. FAILURE OF DISTRICT TO SEEK PRIOR APPROVAL FOR
PREVIOUS CLOSINGS ........................................ 1383
4. CLOSING OF BUTLER HIGH SCHOOL ............................. 1383
5. APPROPRIATENESS OF MAYO MAGNET ............................ 1384
G. CONCLUSIONS OF LAW ........................................... 1386
1. GENERALLY ................................................. 1386
2. LEGAL AUTHORITY FOR ORDERING OF MAGNET AND
APPROPRIATENESS OF DEDICATED MAGNET AT MAYO .............. 1387
VIII. PROCEDURES FOR IMPLEMENTING A DEDICATED MAGNET AT MAYO .......... 1389
A. GENERALLY .................................................... 1389
IX. LIABILITY OF STATE DEFENDANTS ................................... 1390
A. DISCRIMINATORY ACTIONS OF STATE .............................. 1390
1. GENERALLY ................................................. 1390
2. STATE-MANDATED SCHOOL SEGREGATION PRIOR TO 1954 ........... 1390
3. RESISTANCE FROM 1954-1970 ................................. 1392
a. Generally .............................................. 1392
b. Legislative Action and Political Activity .............. 1392
c. The Activities of the Gressette Committee .............. 1397
*1351
d. The State School Building Program ............................ 1398
4. POST-1970 ERA AND DISCHARGE OF AFFIRMATIVE DUTY ................. 1400
a. Generally .................................................... 1400
b. Education Finance Act ........................................ 1401
c. Education Improvement Act .................................... 1401
d. State Board of Education and State Department of Education ... 1401
B. MITIGATING FACTORS AFFECTING STATE LIABILITY ........................ 1402
1. ACTIVE SEGREGATIVE PRACTICES OF DISTRICT PRIOR TO 1970 .......... 1402
2. DISTRICT'S ABILITY TO DESEGREGATE ............................... 1403
3. PRIMARY CAUSAL RESPONSIBILITY OF DISTRICT FOR
"VESTIGES" ..................................................... 1403
4. POST-1970 DISCRIMINATION BY DISTRICT ............................ 1404
5. DISTRICT'S DISCRIMINATION IN STUDENT ASSIGNMENTS ................ 1404
6. DISTRICT'S DISCRIMINATION IN PRINCIPAL ASSIGNMENTS .............. 1405
7. DISTRICT'S FAILURE TO COMPLY WITH 1970 ORDER .................... 1405
8. DISTRICT'S DISCRIMINATION IN CURRICULUM ......................... 1406
9. DISTRICT'S DISCRIMINATION IN FACILITIES ......................... 1406
10. DISTRICT'S PRIMARY RESPONSIBILITY FOR STIGMATIZING
EFFECT ......................................................... 1407
11. DISTRICT'S HISTORICAL RESISTANCE TO EFFORTS TO
DESEGREGATE .................................................... 1408
C. CONCLUSIONS OF LAW ON STATE LIABILITY ............................ 1408
D. CONCLUSIONS OF LAW ON MITIGATING CIRCUMSTANCES ................... 1414
X. APPORTIONMENT OF COSTS BETWEEN SCHOOL DISTRICT AND STATE ............ 1415
A. GENERALLY ........................................................ 1415
1. TRANSPORTATION COSTS .......................................... 1417
2. CAPITAL COSTS AND OPERATING EXPENSES .......................... 1418
XI. CONCLUSION ......................................................... 1419
CURRIE, District Judge.
I. BACKGROUND
A. CASE HISTORY PRIOR TO 1970
On May 29, 1962, black students in the Darlington County School District (hereinafter the "District") sued the District for "operating the public school system ... on a racially segregated basis," and for "refus[ing] to present a plan for desegregating the public schools." Complaint at 2, 5 (5/29/62). On July 13, 1964, the court found that the District was violating the Constitution by its operation of a dual system of education. See Order at 6-7 (7/13/64). Accordingly, the court enjoined the District from discriminating on the basis of race, and ordered the District to desegregate its school system.
The first plan proposed by the District was a "Free Transfer" plan, which was approved by the court on July 13, 1964. Order (7/13/64). Two years later, however, on August 25, 1966, the court vacated the order implementing the plan because it found that the plan failed to effectively desegregate the school system.[1] The court ordered the District to submit another plan. The District submitted plans on January 27, 1967, and March 10, 1967, each of which was found by the court to be constitutionally defective. See Order at 2 (3/10/67). Finally, on March 10, 1967, the court ordered the District to implement a "Freedom of Choice" plan. One year later, however, the court found that the "Freedom of Choice" plan, though once considered constitutionally valid, did not in practice achieve the desegregation requirements articulated by the Supreme Court in Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968). Order at 1-2 (9/13/68).
*1352 The District responded by resubmitting its old "Freedom of Choice" plan. On March 31, 1969, the court again declined to find that plan constitutional. Order at 9-10 (3/31/69). The court then ordered the District to work with the Department of Health, Education and Welfare (HEW) to come up with a new plan. Id. If the District and HEW could not agree on a plan, the court directed that HEW submit a plan for the District. Id. In fact, the District refused to accept HEW's recommendations, and HEW submitted its report on June 2, 1969.[2]
At a hearing on July 14, 1969, the District rejected the HEW report and submitted yet another "Freedom of Choice" Plan. The court, per Judge Martin, approved the District's plan and stated that "the School District is operating in good faith to fulfill its primary responsibility for abolishing the system of segregated schools as required by Brown." Order at 4 (7/28/69). On appeal, the Fourth Circuit vacated Judge Martin's order, and on January 19, 1970, the Court of Appeals ordered the District to implement a desegregation plan based upon HEW Plan B, or any other plan that would create a unitary school system. See Stanley v. Darlington County Sch. Dist., et al., 424 F.2d 195, 196-97 (4th Cir.), reh'g denied, 424 F.2d 198 (per curiam), cert. denied, 398 U.S. 909, 90 S. Ct. 1690, 26 L. Ed. 2d 67 (1970).
B. THE 1970 DESEGREGATION ORDER
In response to the Fourth Circuit's order, Judge Martin held a hearing on February 3, 1970. At the hearing, Judge Martin considered three plans submitted by the parties: (1) a freedom of choice plan favored by the District; (2) "Plan A" favored by Plaintiffs, and (3) a plan based on HEW's "Proposal B," the District's alternate submission to its freedom of choice plan.[3]
The original, unmodified HEW Plan B was contained in pages 48a through 49j of the HEW report. Plan B contained zone maps delineating new attendance zones which HEW believed might desegregate the schools. Plan B also projected the number of black and white students that would attend each school as a result of the new zoning.
At the hearing on February 3, 1970, Judge Martin rejected the District's plea for another "Freedom of Choice" plan, and indicated his preference for the original HEW Plan B. Hearing Tr. at 43, 61. Accordingly, Judge Martin asked the District why it had changed HEW Plan B. Id. at 61.
In response, the District asserted that it had "not changed the HEW plan B"; rather, the District claimed that the maps submitted to the court by the District simply superimposed Plan B's general lines upon specific streets. See Id. at 62-64. Moreover, the District claimed that the "corrected" projections were simply a more accurate head count of the students within each attendance zone. Id. at 62. Plaintiffs, on the other hand, pointed out changes to the original Plan B zone lines, and indicated that the effect of these changes on desegregation could not be assessed because the District had not provided spot maps to indicate the race of the children in various school zones. Id. at 32-34.
At the conclusion of the hearing, Judge Martin, relying upon representations of the District's attorneys, ordered implementation of "Proposal B submitted by HEW with the specifications and details as provided by the Darlington School Board and such plans and specifications are hereby incorporated into, attached to and made a part of this order." See Id. at 64-69. Judge Martin emphasized, *1353 however, that the zone lines submitted by the District were only provisionally approved depending on what kind of results the lines produced: "I just don't want to give the impression that this is the finality regardless of what might arise, because it's a continuing situation." Id. at 70.
Examination of the District's maps, attached to the 1970 order, reveals that the revisions submitted by the District were in fact quite different from the HEW Plan B zone lines.
In addition to containing provisions regarding student assignment, the 1970 desegregation order also contained provisions relating to faculty assignment, transportation, curriculum, student activities, services, and vocational programs. Order at 2-3 (2/5/70). In regard to faculty assignment, the order required that the faculty race ratio at each school be "approximately the same as the ratio throughout the system." Id. at 3.
The court-ordered plan was promptly implemented. When the District reported back to the court on April 30, 1970, with the results of the "modified" Plan B, the District's data revealed the following:
1. Every historically black elementary school remained between 80% and 100% black in its student enrollment.
2. Every historically black secondary school remained between 92% and 99% black in its student enrollment.
3. Nine of the seventeen historically white schools remained racially identifiable in student assignment (i.e., departing from the district-wide average by more than 20%).
4. Fifteen of the District's twenty-eight schools were out of compliance with the order's requirement that their faculty race ratios be approximately the same as the district-wide average (i.e., departing from the district-wide average by 10% or more).
C. CASE HISTORY SINCE THE 1970 ORDER
One year after the court issued its 1970 desegregation order for Darlington County, the Supreme Court decided Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). In Swann, the Supreme Court addressed "the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system." Id. at 18, 91 S. Ct. at 1277. The Court recognized that, up to that time, district courts "had to improvise and experiment [with desegregation remedies] without detailed or specific guidelines." Id. at 6, 91 S. Ct. at 1271.
After the Supreme Court articulated the new standard for what constituted a constitutionally effective plan in Swann and Davis v. Board of Sch. Comm'rs., 402 U.S. 33, 91 S. Ct. 1289, 28 L. Ed. 2d 577 (1971), the Fourth Circuit ordered all school districts awaiting approval of desegregation plans to rewrite their plans in accordance with the two decisions.[4] Specifically, the Court of Appeals sought to insure implementation of the following principles:
1. "`The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.'" Adams, 444 F.2d at 100 (quoting Davis, 402 U.S. at 37, 91 S. Ct. at 1292).
2. "The school authorities and the district court should consider the use of all techniques for desegregation, including pairing or grouping schools, noncontiguous attendance zones, restructuring of grade levels, and the transportation of pupils." Id. at 101.
3. "If the district court approves a plan achieving less actual desegregation than would be achieved under an alternate proposed plan, it should find facts that are thought to make impracticable the achievement of a greater degree of integration, *1354 especially if there remain any schools all or predominantly of one race." Id.
Shortly after Swann and Davis were decided, Plaintiffs filed a motion for further relief on July 31, 1971, contending that the 1970 order needed to be examined against the standards of effectiveness set forth by the Supreme Court in those two cases. By order of April 23, 1973, Judge Simons, to whom the case had been reassigned, stated that, subject to the addition of a Majority-To-Minority Transfer provision, "the Order of this court of February 5, 1970, ... ordering the implementation of HEW Plan B as directed by the Fourth Circuit Court of Appeals, is not constitutionally defective on its face." Order at 3. The 1970 Order however, had not ordered "implementation of HEW Plan B as directed by the Fourth Circuit"; rather, it ordered implementation of HEW Plan B as modified by the District. It does not appear that Judge Simons was aware of the discrepancy between HEW Plan B lines and the modified plan approved by Judge Martin.
The court also denied Plaintiffs' motion for partial summary judgment. Judge Simons indicated that "many of the basic facts ... are not in dispute. However, the inferences to be drawn from them are disputed. The plaintiffs will be given an evidentiary hearing to prove, if they can, any failure to comply with the 1970 Order of this court." Order at 3 (4/23/73).
Plaintiffs' application to the Fourth Circuit for an interlocutory appeal on the denial of the motion for summary judgment was denied. In denying permission for an interlocutory appeal, the Court of Appeals expressed no opinion regarding the constitutional effectiveness of the 1970 Order. Order (7/1/73).
When the matter came before him again on February 22, 1974, Judge Simons found HEW Plan B, with the addition of the Majority-to-Minority Transfer provision, constitutionally adequate. He then ordered full discovery, to be completed within 30 days, on the principal issue remaining for trial, the District's compliance with the Plan. Order (2/22/74).
On October 2, 1974, the parties again appeared before Judge Simons who considered another request by Plaintiffs for a new plan. After reviewing the case history, Judge Simons reiterated his prior findings:
So the Court still stands by its position. I don't know on what basis you went to the trouble and the expense to have experts prepare a new desegregation plan which you proposed to be implemented by the Court, because the Court has already found unequivocally, definitely and positively that the previous plan as amended is constitutionally sound.
Hearing Tr. at 5. He then informed Plaintiffs:
I have issued the final order rejecting your motion to implement the new plan. You can go to the appellate court on that, or your alternative request asked for this court for the opportunity of presenting evidence to see if you can establish that the previous plan is not being properly implemented. That's the two alternatives that are open to you now. You'll have to make a decision. I would give you, if you would like, thirty days to consider it.
Id., at 7-8.
When Plaintiffs neither appealed the finding of constitutionality nor pursued the issue of non-compliance, Judge Simons ordered the case placed on the inactive docket in 1976 with both parties having the option of moving to reopen the case. Minute Order (4/29/76).
The case remained inactive until 1983, when Plaintiffs filed another motion challenging the validity of the plan and alleging that the District had failed to comply with the court-ordered plan. In a hearing on February 7, 1984, Judge Houck, the third judge to preside over the case, stated that Judge Simons had found the plan constitutional and given Plaintiffs 30 days to contest its implementation, but that Plaintiffs had not done so. Thus, Judge Houck held that the decision that the plan was constitutional was final, and had become the law of the case. Hearing Tr. at 10-12 (2/7/84). With respect to the compliance issues, Judge Houck gave Plaintiffs another opportunity to prove their allegations of non-compliance.
*1355 On or about April 5, 1984, Plaintiffs submitted an Offer of Proof regarding their noncompliance claim, which specifically alleged non-compliance with the 1970 court-ordered desegregation plan in the following areas:
1) Construction and closing of school facilities, including specifically the construction of St. John's High School, the construction of the career center in Darlington, the construction of several elementary schools in the Hartsville area, and the closing of Butler High School;
2) Inconsistencies in attendance zone lines between HEW Plan B and the attendance zones used by the District including the attendance zone boundaries between the Carolina and Washington Street Elementary Schools;
3) The assignment of residents in the Country Club Estates area to the school zone containing St. John's High School, Brunson-Dargan Junior High School and Spring Elementary School;
4) The boundary lines between St. John's Elementary School, St. John's High School and Brunson-Dargan Junior High School, and Brockington Elementary School, Pine Middle School and Mayo High School;
5) The system-wide assignment of principals;
6) The system-wide assignment of teachers; and
7) The locations of the program for the gifted and talented in the elementary grades.
(Plaintiff's Offer of Proof, April 5, 1984).
After discovery, Judge Houck held a hearing on February 17, 1985, in which Plaintiffs abandoned their claims of non-compliance and moved to withdraw their Motion for Relief. After further exchanges between the court and counsel, the court entered an order dated September 27, 1985, which stated that Plaintiffs advised "the court that Defendants had produced for inspection the various records sought and that counsel had spent numerous hours reviewing these records." Based on the "entire record in the case," the court held:
[T]his Court is firmly convinced that Plaintiffs should be permitted to withdraw the Motion for further relief since it appears that the Defendants are not out of compliance of the existing Orders of this Court up to the present date.
This matter is, therefore, dismissed as to any claim of non-compliance up to the date of this Order.
Order at 3 (9/17/85).
Plaintiffs did not challenge or appeal Judge Houck's order.
D. INTERVENTION BY THE UNITED STATES
In 1990 the United States moved for leave to intervene. In its Complaint-In-Intervention, the United States requested, among other things, that the court order Defendants "to adopt and implement a plan that will eliminate the aforementioned discriminatory practices and fully desegregate the public schools of Darlington County." Complaint-In-Intervention at 7 (8/15/91). At a hearing on August 15, 1992, the court granted the United States' Motion for Leave to Intervene. See Hearing Tr. at 46-47 (8/15/91).
At this same hearing, Judge Houck made clear that he never conducted an evidentiary hearing to determine the District's compliance with the Order or the Order's constitutional effectiveness. Hearing Tr. at 43 (8/11/92). Referring to the 1985 order, the court stated: "I did not have an evidentiary hearing at that time, and made my ruling primarily, if not all together, upon the basis that the plaintiffs stated in open court that they could not prove that non-compliance of Judge Martin's 1970 order existed." Id. at 16, 43.
By order of May 14, 1993, the court also granted the District's motion to join the State of South Carolina as a defendant, pursuant to Rule 19, Fed.R.Civ.P., Order (5/14/93).
At a hearing on September 24, 1993, the court denied various motions and scheduled the case for trial. In so doing, the court addressed the District's assertions that the court had previously found the District in compliance with the February 5, 1970, desegregation plan:
*1356 .... Let's seize on that statement so there won't be any misunderstanding. Nobody has ever found that this plan has been complied with. Nobody. I haven't. Judge Simons hasn't. Judge Martin hasn't. Nobody has. Nobody has ever asked to do that. The plaintiffs have raised that issue on several occasions, and defaulted, withdrawn the issue, whatever, but no court that I've been able to find has ever factually determined that the plan has been complied with, and I don't think you can show me where they have.... There's never been any finding of fact made, period, since the order was signed.
Hearing Tr. at 34-35 (9/24/93).
In March 1994 the case was reassigned to the undersigned. Pretrial-trial hearings were held on April 12 and April 29, 1994. At the latter hearing, this court, inter alia: (1) ordered that the liability and remedial issues be consolidated into a single trial; (2) granted the United States' motion to preclude the District from introducing evidence and testimony, including results of a public opinion survey commissioned by the District, purporting to show that further desegregation measures at racially identifiable schools would be impractical or infeasible because of resulting "white flight" from the District;[5] and (3) ruled that the prior rulings of the court did not preclude a full evidentiary hearing on the District's activities from 1970 through the present.
II. MOTION TO DISMISS BY STATE DEFENDANTS
A. GENERALLY
The State Defendants (hereinafter "The State") contend that (1) the District lacks standing to sue in its own right or on behalf of its residents; (2) the State is immune from suit under the Eleventh Amendment; and (3) the doctrines of law of the case, res judicata, collateral estoppel, and judicial estoppel bar the claims of the District. The State filed a Motion to Dismiss that the court denied except as to State Budget and Control Board and its members.
B. STANDING
1. GENERALLY
The State contends that the District lacks standing to assert the cross-claims. However, the court concludes that the District has standing to sue on its own behalf and on behalf of children in its District. See, e.g., School Bd. v. Baliles, 829 F.2d 1308, 1310-11 (4th Cir.1987); Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285, 1289-91 (6th Cir.), cert. denied, 417 U.S. 932, 94 S. Ct. 2644, 41 L. Ed. 2d 236 (1974); Brewer v. Hoxie Sch. Dist. No. 46, 238 F.2d 91, 104-5 (8th Cir.1956); Board of Sch. Directors v. Wisconsin, 649 F. Supp. 82, 94-97 (E.D.Wis. 1985); Bradley v. School Bd., 338 F. Supp. 67, 229 (E.D.Va.), rev'd on other grounds, 462 F.2d 1058 (4th Cir.1972), aff'd by an equally divided court, 412 U.S. 92, 93 S. Ct. 1952, 36 L. Ed. 2d 771 (1973). See also Board of Educ. v. Allen, 392 U.S. 236, 241 n. 5, 88 S. Ct. 1923, 1925 n. 5, 20 L. Ed. 2d 1060 (1968) (local school board assumed to have standing to challenge constitutional validity of state statute).
2. DISTRICT'S STANDING TO SUE ON ITS OWN BEHALF
In School Board of the City of Richmond v. Baliles, 829 F.2d 1308 (4th Cir. 1987), the Richmond school board asserted claims against the Governor of Virginia, the state board of education and others alleging *1357 (1) that the state defendants' failure to discharge their affirmative obligation to eliminate the vestiges of state-imposed segregation had impeded the local school board's ability to carry out its own constitutional duty to redress the effects of segregation; and (2) that the state defendants' unconstitutional conduct had caused direct economic injury to the local school board, requiring large expenditures for compensatory education and other educational services. 829 F.2d at 1311. The Fourth Circuit found standing for the school board on several grounds. One basis for standing was the school board's allegation that state defendants' actions had impeded its ability to carry out its own constitutional duty. Thus, the school board had standing to sue based on the direct violation of its own rights. Id. Similarly, in this case, the District alleged and proved state actions that impeded its ability to desegregate. Therefore, under Baliles the District has standing to sue the State in its own right.
The Fourth Circuit's analysis in Baliles is consistent with Supreme Court standing cases. In order to determine whether a party has the requisite standing to sue, the Supreme Court uses a three-pronged test to ensure the existence of a case or controversy under Article III of the Constitution. The test requires that the local school district have "[1] suffered some actual or threatened injury ... [2] [that] fairly can be traced to the challenged action and [3] [that] is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982), quoted in Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 714 F.2d 946, 948 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S. Ct. 2398, 81 L. Ed. 2d 354 (1984). Here, the District has satisfied all three elements of this test.
First, the School District has allegedly suffered a "distinct and palpable" injury. Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324-25, 82 L. Ed. 2d 556 (1984). In this case, the State's actions have made it more difficult and expensive to desegregate the Darlington County schools. These are precisely the types of injuries that furnished standing under Baliles. Other courts have also found that local school districts have standing to sue state defendants in furtherance of their affirmative duty to eliminate segregation. See, e.g., Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 584 F. Supp. 328, 352 (E.D.Ark.), rev'd, remanded, 738 F.2d 82 (8th Cir.1984); Board of Sch. Directors v. Wisconsin, 649 F. Supp. 82 (E.D.Wis.1985).
Second, the alleged injury for which the District seeks redress was caused by the intentional conduct of the State in creating the dual school system initially, in actively resisting and thwarting prior attempts to desegregate the public schools, in failing to discharge its affirmative duty to erase all vestiges of state-imposed segregation, and in implementing discriminatory statutes, regulations and policies. Thus, the District's injury is traceable to the challenged action. See, e.g., Los Angeles Branch NAACP, 714 F.2d at 948.
Third, the District's injuries are redressable, as required. The State does not specifically challenge the court's power to fashion an appropriate remedy for the injuries allegedly suffered by the District. Innumerable cases have demonstrated a court's equitable and legal powers to remedy precisely the type of injury alleged here. Given the role of each of the state defendants in the governance of South Carolina, their presence in this case is essential to enable the court to fashion an effective remedy.
A second ground for standing articulated in Baliles was the school board's incurring of additional expenses arising from the state defendants' conduct. Baliles, 829 F.2d at 1311. Thus, although the rights violated in Baliles were those of the school children, the school board also sustained injury from the state defendants' unconstitutional conduct, which gave the school board standing to sue. Id. Here, the court finds that the State has violated the constitutional rights of children residing in the District, and that the District has standing to sue for additional sums it will be required to expend because of the State's violations. The court thus finds that the District has standing to sue under this theory as well.
*1358 3. DISTRICT'S STANDING TO SUE ON BEHALF OF CHILDREN IN DISTRICT
When a party seeks to advance the constitutional rights of others, sometimes called the jus tertii doctrine, two inquiries must be made: (1) whether the party has suffered some injury in fact so the claim meets the constitutional case-or-controversy requirement; and (2) whether prudential considerations permit the litigant to advance the claim. Caplin & Drysdale v. United States, 491 U.S. 617, 623 n. 3, 109 S. Ct. 2646, 2651 n. 3, 105 L. Ed. 2d 528 (1989); Singleton v. Wulff, 428 U.S. 106, 112, 96 S. Ct. 2868, 2873, 49 L. Ed. 2d 826 (1976).
Here, the District has suffered injury in fact because of the State's actions and omissions, thus meeting the constitutional requirement. With respect to the second inquiry, the Supreme Court has identified three prudential factors that must be considered: (1) the relationship of the litigant to the person whose rights are being asserted; (2) the ability of the person to advance his own rights; and (3) the impact of the litigation on third-party interests. Caplin & Drysdale, 491 U.S. at 623-24, n. 3, 109 S. Ct. at 2651, n. 3; Singleton, 428 U.S. at 113-18, 96 S. Ct. at 2873-76. These factors are discussed below.
The key aspects of the relationship factor are "a common link to the right asserted, consistency of the parties' interests, and effective advocacy โ not the intimacy of the relationship per se." Amato v. Wilentz, 952 F.2d 742, 752 (3d Cir.1991). Here, the duties of the District are interwoven with the rights of the school children and their parents.[6] All have an interest in providing the school children an excellent education in desegregated schools. Further, they have an interest in ensuring that the costs of desegregation are equitably distributed between the District and the State. Because of this identity of interests, the District has ample incentive to forcefully advocate the rights of the parents and students. The relationship between the District and the parents and students therefore supports jus tertii standing.
The second factor, the ability of the parents and children to advance their own rights, also weighs in favor of permitting third-party standing. Courts applying this factor have held that the obstacle to suit by the third party need not be insurmountable; a practical disincentive to sue may suffice. See Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Here, the obstacles to suit are substantial, and the children and parents could well decline to litigate because the amount at stake for any one household would not justify the time and expense involved in joining this litigation. See Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285, 1289 (6th Cir.) (parents' concern unlikely to be aroused because of the small size of area to be transferred from district and minimal present impact), cert. denied, 417 U.S. 932, 94 S. Ct. 2644, 41 L. Ed. 2d 236 (1974); Bradley v. School Bd., 338 F. Supp. 67, 230 (E.D.Va.) ("were school boards not to be accorded standing, serious deprivations to constitutional rights might occur, especially in situations wherein individual plaintiffs might well lack the resources to bring and maintain the type of mammoth law suit involved"), rev'd on other grounds, 462 F.2d 1058 (4th Cir.1972), aff'd by an equally divided Court, 412 U.S. 92, 93 S. Ct. 1952, 36 L. Ed. 2d 771 (1973).
Indeed, neither the NAACP Legal Defense Fund nor the Justice Department, which otherwise represent the children's interests in this litigation, have shown any willingness to represent the children in their claims against the State. In fact, they have expressly declined to do so. Therefore, as a practical *1359 matter, unless the District is allowed to pursue the claims against the State, it is likely that no one will.
The third factor, the impact of the litigation on third-party interests, is closely linked to the relationship factor. Amato, 952 F.2d at 749, n. 7. Because the District is in a position to be an effective advocate for the parents and children, and because the parents and children are unlikely to assert their rights for themselves, the court concludes they will benefit from the District's assertion of third-party standing.
All three of the prudential factors identified by the Supreme Court support third-party standing in this case. The court therefore concludes that the District has standing to sue for the injuries sustained by the children residing in the district.
In Baliles, the Fourth Circuit also held that a school board may sue on behalf of its students. The court noted that it had implicitly ruled in Bradley v. School Bd., 462 F.2d 1058 (4th Cir.1972), aff'd, 412 U.S. 92, 93 S. Ct. 1952, 36 L. Ed. 2d 771 (1973), that the school board had standing to bring claims against the state on behalf of Richmond's white and black students. School Bd. v. Baliles, 829 F.2d 1308, 1310 (4th Cir.1987). In Bradley, the Fourth Circuit left undisturbed the district court's holding that the defendant school board had standing to file a cross-claim against the state and county defendants. See Bradley v. School Bd., 338 F. Supp. 67, 229-30 (E.D.Va.), rev'd on other grounds, 462 F.2d 1058 (4th Cir.1972), aff'd by an equally divided Court, 412 U.S. 92, 93 S. Ct. 1952, 36 L. Ed. 2d 171 (1973). In Bradley, the district court noted that the school board's cross-claim was "brought in the capacity of the Board as guardian, as it were, for the pupils in the Richmond city schools, and as such its action is brought on behalf of the white and the black students." Id. at 230. The Fourth Circuit in Baliles affirmed this reasoning. 829 F.2d at 1311. Therefore, under the authority of Baliles, the court concludes that the District can assert claims on behalf of the children residing in the district.
The State contends that because the District is a political subdivision, it may not make claims as parens patriae on behalf of its residents. This argument has been rejected by Baliles and Bradley, which permitted the school board to represent students' interests. To the extent the parens patriae decisions cited by the State purport to state a rule of third-party standing, it is a rule of practice only and may be outweighed by the need to protect fundamental rights. See Barrows v. Jackson, 346 U.S. 249, 257, 73 S. Ct. 1031, 1035, 97 L. Ed. 1586 (1953).
4. DISTRICT'S STANDING TO SUE UNDER FEDERAL STATUTES AND CONSTITUTIONAL PROVISIONS
The District's claims for relief are based upon the Fourteenth Amendment (U.S. Const.Amend. XIV), Title VI (42 U.S.C. ง 2000d), and the Equal Education Opportunity Act (EEOA, 20 U.S.C. 1703). Federal courts have inherent authority to compel compliance with constitutional provisions. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392, 91 S. Ct. 1999, 2002-2003, 29 L. Ed. 2d 619 (1971); Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979); Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). The District, as shown above, is clearly entitled to assert claims for injunctive relief to remedy the State's alleged violations of the Fourteenth Amendment.
The District, as an entity, has standing to sue on its own behalf under Title VI for the reasons stated in Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702 (2d Cir.), cert. denied, 459 U.S. 857, 103 S. Ct. 127, 74 L. Ed. 2d 110 (1982). In Hudson Valley a not-for-profit theater company that sought to reach and involve the black and Hispanic communities had standing to sue under Title VI based on alleged racially-motivated discrimination in the provision of government funding for the company. The court reasoned that Title VI does not say that "[n]o person in the United States shall, on the ground of his race, color, or national origin" be subjected to discrimination under a program receiving federal financial assistance. Id. at 705. Thus, an *1360 entity may sue under Title VI when it sustains injury as the result of racial discrimination in program funding. The District therefore may sue under Title VI based on the injuries it has sustained here.[7]
C. ELEVENTH AMENDMENT IMMUNITY ISSUES
1. GENERALLY
The State also contends that the District's claims are barred by the Eleventh Amendment. The impetus for Eleventh Amendment was the prevention of federal court judgments that must be paid out of a state's treasury. Hess v. Port Authority Trans-Hudson Corp., ___ U.S. ___, 115 S. Ct. 394, 130 L. Ed. 2d 245 (1994). However, the Eleventh Amendment does not bar all actions against a state or its agencies and officials in federal court. Two well-established exceptions apply in this case. The Ex parte Young exception authorizes this suit to proceed against the individual state officials named in the cross-claim (i.e., the Governor, the State Board of Education members, and the State Department of Education Superintendent (the "Superintendent"). Moreover, the congressional abrogation exception authorizes this suit to proceed against the state entities (i.e., the State of South Carolina, the State Board of Education (the "State Board"), the State Budget and Control Board, and the State Department of Education (the "Department of Education").
2. EX PARTE YOUNG EXCEPTION
When a state official is sued in his official capacity in a suit that seeks the recovery of money from the state, the state will be deemed to be the real and substantial party in interest and may invoke its Eleventh Amendment immunity as a defense even though individual officials are the named defendants. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 350-51, 89 L. Ed. 389 (1945).[8] However, that principle provides no immunity for officials here because the District is seeking primarily prospective injunctive relief against the State to end an alleged continuing violation of constitutional and federal law.
Prospective compliance suits of this sort are specifically authorized under a long line of cases extending back to the Supreme Court's landmark decision in Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). There, the Supreme Court carved out an important exception to Eleventh Amendment immunity by holding that a suit to enjoin the unconstitutional acts of a state official is not a suit against the state and is, therefore, not barred by the Eleventh Amendment. 209 U.S. at 159-60, 28 S.Ct. at 453-54. This holding rested on the theory that an unconstitutional statute is void and, therefore, does not "impart to [the official] any immunity from responsibility to the supreme authority of the United States." 209 U.S. at 160, 28 S.Ct. at 454.
In repeatedly reaffirming Young's prospective compliance exception, the Supreme Court has established that the Eleventh Amendment does not prevent federal courts from entertaining suits that seek prospective injunctive relief against state officials who are sued in their official capacity to prevent a continuing violation of federal law. E.g., Papasan v. Allain, 478 U.S. 265, 282, 106 S. Ct. 2932, 2942-43, 92 L. Ed. 2d 209 (1986); Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 425-26, 88 L. Ed. 2d 371 (1985); see also Wu v. Thomas, 863 F.2d 1543, 1550 (11th Cir. 1989). Indeed, the Supreme Court has recognized that "[r]emedies designed to end a *1361 continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." 474 U.S. at 68, 106 S.Ct. at 426 (citation omitted).
The State contends that the District's claims are in essence claims for money damages, and that the Ex parte Young exception does not apply. However, "relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury." Papasan, 478 U.S. at 278, 106 S. Ct. at 2940 (emphasis added). Thus, in Edelman v. Jordan, 415 U.S. 651, 664, 94 S. Ct. 1347, 1356, 39 L. Ed. 2d 662 (1974), the court recognized that injunctive relief may have serious fiscal impact on a state because it prevents the collection of substantial monetary penalties that otherwise would have enriched the state treasury. 415 U.S. at 667, 94 S.Ct. at 1357-58. Edelman found, however, such impact permissible:
But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young.
415 U.S. at 667-68, 94 S. Ct. at 1357-58 (emphasis added).
The Supreme Court has expressly held that relief identical to that sought in this case fits within the Ex parte Young exception to the Eleventh Amendment. In Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977) (*hereinafter "Milliken II"), the Supreme Court held that the state defendants (including the governor of Michigan, the attorney general, the state board of education, and the state superintendent) could be required to pay half the cost of the various educational components that were part of a local school desegregation plan imposed by the district court. Even though the state would be required to expend substantial sums of money, the Supreme Court found that the Eleventh Amendment was not violated because:
The decree to share the future costs of educational components in this case fits squarely within the prospective-compliance exception reaffirmed by Edelman. That exception, which had its genesis in Ex parte Young, permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury. The order challenged here does no more than that. The decree requires state officials, held responsible for unconstitutional conduct, in findings which are not challenged, to eliminate a de jure segregated school system. More precisely, the burden on state officials is that set forth in Swann โ to take necessary steps to "eliminate from the public schools all vestiges of state-imposed segregation."
Milliken II, 433 U.S. at 289-90, 97 S. Ct. at 2761-62 (citations omitted).
Likewise, in Papasan v. Allain, 478 U.S. 265, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986), a case addressing a disparity in the distribution of educational funds in Mississippi arising out of actions that occurred a century earlier, the Court underscored the continuing strength of Milliken II and Ex parte Young. In Papasan, the Supreme Court held that the alleged constitutional violation โ the state's unequal distribution of benefits โ was precisely the type of continuing violation for which a remedy could be fashioned under Ex parte Young. The Court stated:
[T]he essence of the equal protection allegation is the present disparity in the distribution of the benefits of state-held assets and not the past actions of the State. A remedy to eliminate this current disparity, even a remedy that might require the expenditure of state funds, would ensure "`compliance in the future with a substantive federal-question determination'" rather than bestow an award for accrued monetary liability. This claim is, in fact, in all essential respects the same as the equal protection claim for which relief was approved in Milliken.
*1362 Papasan, 478 U.S. at 282, 106 S. Ct. at 2942 (citation omitted; emphasis altered).
The State also argues that the Ex parte Young exception does not apply because the state officials either lack personal involvement as to the matters alleged in the cross-claim or lack authority over these matters. It asserts that the Governor has "no personal or individual involvement, or any powers as to matters alleged in the Cross-Claim." (State Memorandum in Support of Motion to Dismiss, at 12-13.) As to the Superintendent and State Board members, the State does not allege lack of personal involvement on their behalf, but instead asserts that they "have no enforcement authority as to future matters such as pupil assignments and school consolidations to make them subject to an injunction for future conduct." (Id., at 13.)
The State's argument that the Governor lacks personal involvement in the constitutional wrongs alleged misconceives the scope of the Ex parte Young exception. Ex parte Young does not require that a state official have personal involvement in the alleged constitutional violation to fall within the exception to immunity under the Eleventh Amendment. Ex parte Young requires only that the state official who is sued must "by virtue of his office ha[ve] some connection" with the unconstitutional act or conduct complained of. Ex parte Young, 209 U.S. 123, 157, 28 S. Ct. 441, 453, 52 L. Ed. 714 (1908). As explained in Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir.1988), reh. denied, 896 F.2d 479 (11th Cir.1989), cert. denied, 495 U.S. 957, 110 S. Ct. 2562, 109 L. Ed. 2d 744 (1990), "All that is required is that the official be responsible for the challenged action." In Luckey, indigent plaintiffs sued the governor and other state officials to compel them to provide adequate legal representation. The Eleventh Circuit held that the Ex parte Young "connection" requirement was satisfied as to the governor because he is responsible for law enforcement, is charged with executing the laws faithfully, has residual power to commence criminal prosecutions, and has final authority to direct the attorney general to prosecute on behalf of the state. Luckey, 860 F.2d at 1016. See also Board of Pub. Educ. v. Georgia, No. CV 490-101, slip op. at 11-12, 1990 WL 608208 (S.D.Ga. Sept. 24, 1990) (connection requirement met with respect to governor, comptroller and fiscal division director, in part because of their fiscal responsibilities concerning education); Dekalb County Sch. Dist. v. Rogers, No. 1:90-cv-1769-WCO, slip op. at 15-17 (N.D.Ga. March 27, 1991) (same).[9]
In the present action, most of the state officials named as defendants have an adequate connection to the unlawful acts alleged in the Cross-Claim to establish the "connection" required by Ex parte Young. The Constitution and statutes of the State of South Carolina place substantial responsibilities upon the Governor in the area of education. *1363 The South Carolina Constitution provides that the Governor is the chief magistrate of the State of South Carolina with the duty to faithfully execute the laws of the State. S.C. Const. Art. IV, งง 1, 15. The State Board has the power to approve, alter, or deny annual education budgets. The State Board also oversees all federal and state aid to local school districts and reviews the annual perweighted-pupil budget estimates as submitted by the State Board. S.C.Code Ann. ง 1-11-25 (Law.Co-op.1976); Cross-Claim, ง 7.
The Superintendent and State Board members also are closely tied to the constitutional violations alleged by the District. The Superintendent is charged with the responsibility of administering, through the Department of Education, all policies and procedures adopted by the State Board. S.C.Code Ann. ง 59-3-30 (Law.Co-op.1976). The Superintendent also is directed to supervise and manage all public school funds provided by the state and federal governments. Id. The State Board has the broad power to adopt policies, rules and regulations for the state's public schools. S.C.Code Ann. ง 59-5-60 (Law.Co-op.1976). The State Board approves the Department of Education's budget before its submission to the Budget and Control Board and the General Assembly. Id. The State Board also is charged with responsibility for making plans for construction of public school buildings and seeking more efficient operation of the pupil transportation system. S.C.Code Ann. ง 59-5-100 (Law.Co-op.1976). Its responsibilities with respect to transportation are quite broad. South Carolina law provides that "[t]he control and management of all school bus transportation in the State shall be vested in the State Board of Education." S.C.Code Ann. ง 59-67-410 (Law Co-op.1976).
However, with respect to the State Budget and Control Board for the State of South Carolina and its members, the court concludes the Ex Parte Young exception does not apply and therefore, the claims against the Board and its members must be dismissed. The State Budget and Control Board and its members have no authority over education matters, nor do they have any authority to appropriate money. Under Act No. 132, 1993 S.C. Acts 246, authority of the State Budget and Control Board over budgetary matters was given to the Governor. Accordingly, because the court finds no close connection between the matters at issue in this case and the responsibilities of the State Budget and Control Board and its members, all cross-claims against those parties are dismissed.
3. CONGRESSIONAL ABROGATION EXCEPTION
a. Generally
Just as the Ex parte Young exception removes any Eleventh Amendment immunity of the state officials, the court concludes that the congressional abrogation exception overcomes the Eleventh Amendment defenses asserted by the state defendant entities. The abrogation doctrine recognizes that a state's Eleventh Amendment immunity may be nullified when Congress acts pursuant to its enforcement power under ง 5 of the Fourteenth Amendment. As the Supreme Court stated in Fitzpatrick v. Bitzer:
[W]e think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of ง 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. ... We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.
427 U.S. 445, 456, 96 S. Ct. 2666, 2671, 49 L. Ed. 2d 614 (1976) (citations omitted).
In the present action, the two federal statutes upon which the District relies, Title VI and the Equal Educational Opportunity Act (EEOA), represent instances in which Congress has exercised its authority under ง 5 of the Fourteenth Amendment to abrogate the *1364 Eleventh Amendment. These statutes thus permit the District's assertion of cross-claims against the State of South Carolina, the State Board and the Department of Education as defendants, notwithstanding the immunity ordinarily afforded to states and state entities under the Eleventh Amendment.
The State contends that Title VI's abrogation of Eleventh Amendment immunity does not apply to those defendants because they allegedly are not currently engaged in unconstitutional conduct and because the cross-claim does not allege discrimination "under any program or activity receiving Federal financial assistance." 42 U.S.C. ง 2000d. As to the District's EEOA cross-claim, the State contends that the EEOA fails to meet the test for implied abrogation of the Eleventh Amendment and that the District's allegations fail to state a claim against the Superintendent and State Board under the EEOA. For the following reasons, the court rejects each of these arguments.
b. Title VI
Title VI contains a broad prohibition against race discrimination under any program or activity receiving federal financial assistance. 42 U.S.C. ง 2000d. Because state and local governments receive federal funding for education, Title VI is frequently invoked by plaintiffs in school desegregation cases. See, e.g., Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974); Reed v. Rhodes, 500 F. Supp. 404, 416 (N.D.Ohio 1980), aff'd, 662 F.2d 1219 (1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1713, 72 L. Ed. 2d 135 (1982). Eleventh Amendment immunity is not a defense to a Title VI action because Congress expressly abrogated Eleventh Amendment immunity for suits brought under Title VI as to any violations that occur in whole or in part after October 21, 1986. See Civil Rights Remedies Equalization Act, 42 U.S.C. ง 2000d-7.[10]
Because the State of South Carolina and its educational agencies are recipients[11] of federal funds for educational purposes, they are subject to suit under Title VI. Furthermore, their continuing failure to take affirmative actions to dismantle the former dual school system constitutes an ongoing violation of Title VI occurring in whole or in part after October 21, 1986. See Parents for Quality Educ. with Integration, Inc. v. Fort Wayne Community Schs. Corp., 662 F. Supp. 1475 (N.D.Ind.1987), dismissed, 728 F. Supp. 1373 (N.D.Ind.1990). Because Congress expressly abrogated Eleventh Amendment immunity for such violations, this action can be brought directly against the State of South Carolina and its educational agencies, the State Board, and the Department of Education.
The State argues that Title VI does not apply to them because the District's allegations of discrimination do not relate to a program or activity receiving federal financial assistance. This argument ignores the Civil Rights Restoration Act of 1987, 42 U.S.C. ง 2000d-4a, which overturned Grove City College v. Bell, 465 U.S. 555, 104 S. Ct. 1211, 79 L. Ed. 2d 516 (1984), and significantly broadened the scope of Title VI. In Grove City, the Supreme Court narrowly construed the phrase "program or activity," giving it a *1365 "program-specific" interpretation that differed from the broader interpretation adopted by most lower courts. The Civil Rights Restoration Act reinstates the broader concept of "program or activity" by adding to Title VI an explicit definition for that phrase. The new definition specifies that entire entities receiving federal funds โ whether governmental entities, school systems, or universities โ must comply with Title VI, rather than just the particular program or activity that actually receives the funds.[12]See Radcliff v. Landau, 883 F.2d 1481 (9th Cir.1989); United States v. Louisiana, 811 F. Supp. 1151 (E.D.La.1992), vacated on other grounds 9 F.3d 1159 (5th Cir.1993).
Because the State and its educational agencies are proper Title VI defendants, they are subject to liability under the statute and its implementing regulations.[13] In addition to prohibiting specific discriminatory actions, the regulations also impose an affirmative duty upon recipients who have a history of previous discrimination. This duty is expressed as follows:
In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
34 C.F.R. ง 100.3(b)(6) (emphasis added).[14]
In summary, the State, the State Board, and the Department of Education are clearly subject to suit under Title VI. See Board of Pub. Educ. v. Georgia, No. CV 490-101, slip op. at 13-16 (S.D.Ga. Sept. 24, 1990); Dekalb County Sch. Dist. v. Rogers, No. 1:90-cv-1769-WCO, slip op. at 8-11 (N.D.Ga. March 27, 1991).
c. EEOA
The EEOA, like Title VI, was enacted by Congress pursuant to its enforcement authority under ง 5 of the Fourteenth Amendment. 20 U.S.C. ง 1702(b); Castaneda v. Pickard, 648 F.2d 989, 1008 n. 9 (5th Cir.1981); Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 714 F.2d 946, 951 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S. Ct. 2398, 81 L. Ed. 2d 354 (1984). The EEOA expressly permits individuals who have been denied an "equal educational opportunity," as defined in the EEOA, to sue state and local educational agencies in federal court.
Like the employment discrimination statute interpreted by the Supreme Court in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976) (Title VII), the EEOA fails to contain an express abrogation of Eleventh Amendment immunity. However, an explicit statutory reference to state sovereign immunity is not required by the abrogation doctrine. Dellmuth v. Muth, 491 U.S. 223, 233, 109 S. Ct. 2397, 2403, 105 L. Ed. 2d 181 (1989) (Scalia, J. concurring); Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 (1989). All that is required is a statement of Congressional intent "in unmistakable language in the statute itself." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S. Ct. 3142, 3148, 87 L. Ed. 2d 171 (1985).
The EEOA clearly manifests Congress' intent to abrogate Eleventh Amendment immunity for suits brought under the EEOA. *1366 Furthermore, at least two federal circuit courts specifically have held that the EEOA abrogates Eleventh Amendment immunity; none have held otherwise. See Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1037 (7th Cir.1987); Los Angeles Branch NAACP, 714 F.2d at 951 (holding that Congress has provided for desegregation suits against state educational agencies under EEOA). In both cases, motions to dismiss by the state boards of education and the state departments of education on Eleventh Amendment immunity grounds were rejected. See also Board of Pub. Educ. at 16-18; Dekalb County Sch. Dist. at 11-15.
Section 1703 of the EEOA provides, in pertinent part, as follows:
No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin by โ
(a) the deliberate segregation by an educational agency of students on the basis of race, color, or national origin among or within schools;
(b) the failure of an educational agency which has formerly practiced such deliberate segregation to take affirmative steps ... to remove the vestiges of a dual school system.
20 U.S.C. ง 1703 (emphasis added). Section 1720 of the EEOA provides that, for purposes of Section 1703, the term "educational agency" means a "state educational agency" or a "local educational agency," as those terms are defined in Section 801 of the Elementary and Secondary Education Act of 1965, 20 U.S.C. ง 1720). Section 801 of the referenced Act (20 U.S.C. ง 3381) adopts the definitions found in 20 U.S.C. ง 2891. The term "state educational agency" is defined in Section 2891 to mean "the officer or agency primarily responsible for the State supervision of public elementary and secondary schools." (20 U.S.C. ง 2891(23) (emphasis added)).
Finally, and of critical importance in evidencing congressional intent to abrogate, Section 1706 of the EEOA specifically provides that:
An individual denied an equal educational opportunity, as defined by [20 U.S.C. ง 1703], may institute a civil action in an appropriate district court of the United States against such parties, and for such relief, as may be appropriate.
20 U.S.C. ง 1706 (emphasis added). The "appropriate parties" against whom such a civil action may be instituted are those upon whom the statutory obligations and prohibitions are imposed โ namely, the "State,"[15] the "State educational agency," and the "local educational agency." Thus, like Title VII, which was held to have abrogated the Eleventh Amendment in Fitzpatrick v. Bitzer, the EEOA clearly ordains that suit may be brought in federal court against state entities that might ordinarily be immune under the Eleventh Amendment. In addition, Section 1708 of the EEOA provides:
The appropriate district court of the United States shall have and exercise jurisdiction of proceedings instituted under Section 1706 of this Title.
20 U.S.C. ง 1708 (emphasis added). Since "the proceedings instituted under Section 1706" expressly contemplate state entities as defendants, the court finds that this is the kind of "unmistakable" language that suffices to show Congress' intent that the Eleventh Amendment should not be viewed as an impediment to the jurisdiction of federal district courts. See Dellmuth v. Muth, 491 U.S. at 240, 109 S. Ct. at 2406-07 (express reference to the Eleventh Amendment not required).
The clarity of this statutory language fully satisfies the stringent test adopted in the most recent Supreme Court decisions on abrogation.[16] To hold otherwise would nullify *1367 one-half of the EEOA's definition of "educational agency" and could leave the victims of EEOA violations with no alternative forum in which to press their EEOA claims against the appropriate state agencies. This is so because, unlike the Education of the Handicapped Act ("EHA") that was at issue in Dellmuth, the EEOA does not create any administrative remedy and does not provide for suit in state court.[17] Unless abrogation is recognized, the EEOA could be rendered totally meaningless as to state educational agencies โ a result that Congress clearly did not intend.
In summary, the court finds that the Congressional abrogation doctrine overcomes the Eleventh Amendment defenses asserted by the State of South Carolina, the Board of Education for the State of South Carolina and the Department of Education. Title VI expressly abrogates the Eleventh Amendment and affords a clear statutory basis for holding the State liable for discriminatory acts and omissions. The EEOA also manifests Congress' intent to abrogate in unmistakably clear language. Thus, the EEOA provides an additional statutory basis for imposing liability on the State.
D. RES JUDICATA, COLLATERAL ESTOPPEL, LAW OF THE CASE AND JUDICIAL ESTOPPEL
1. GENERALLY
The State contends that the District's cross-claim is barred by the doctrines of res judicata, collateral estoppel, law of the case and judicial estoppel. However, the court finds that none of these doctrines apply.
The elements of res judicata are: (1) a judgment on the merits in a prior suit resolving; (2) claims by the same parties or their privies; and (3) a subsequent suit based on the same cause of action. Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.1990). See also Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979) ("Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action"). The most obvious flaw in the State's res judicata defense is that neither they nor their privies were parties to this action when the previous rulings were made. Another defect is that previous decisions in this case have not involved the same claims asserted in the cross-claim. The res judicata defense therefore must fail.
*1368 Collateral estoppel bars re-litigation of issues of fact or law when (1) such issues were actually determined in the first action, (2) the issues in the two actions are in substance the same, (3) resolution of the issues was necessary to the decision in the first action, (4) resolution of the issues in the first action is determined to be sufficiently firm to be accorded conclusive effect, and (5) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issues in the first action. Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332, 343-47 (4th Cir.1992), vacated on other grounds, 1993 WL 524680 (4th Cir.1993). However, the State does not contend, nor could it, that its liability has been actually determined by this court. Collateral estoppel thus cannot apply here.
The law of the case doctrine provides that a court's legal determination is binding throughout the litigation unless different evidence is produced, the applicable law changes, or the decision is clearly erroneous. White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). See also Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391, 75 L. Ed. 2d 318 (1983); Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir.1988), cert. denied, 498 U.S. 810, 111 S. Ct. 43, 112 L. Ed. 2d 19 (1990). The State correctly states that, under the law of the case doctrine, the District has responsibility for desegregating its schools. This point does not, however, support the conclusion that the State has no liability, because the court has never held that the District has exclusive responsibility for desegregation in the district. The District contends that the State must share responsibility for remedying the vestiges of segregation. Because this court has never previously determined the State's liability, the law of the case does not bar the District's claim.
Finally, the State raises the doctrine of judicial estoppel, which in essence prevents a party from taking conflicting legal positions in the same or related litigation. Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir.1982). The State asserts that by not joining it before now, the District has conceded that the State does not share responsibility for desegregation in the district. The District has, however, never taken the position before this court or elsewhere that the State was not responsible for its unconstitutional acts. In this case, the District seeks to impose on the State its fair share of the responsibility for desegregation, going forward. The State's judicial estoppel argument is therefore also without merit.
Accordingly, the Motion to Dismiss by the State Defendants is granted with respect to the State Budget and Control Board and its members and denied in all other respects.
III. PROPOSED CONSENT ORDER AND TRIAL
A. GENERALLY
The case was set for non-jury trial before the undersigned on May 23, 1994. On that date counsel for the United States, Plaintiffs and the District advised the court that a partial settlement of the case had been reached. A proposed consent order was submitted which contained a stipulation of facts and a remedial plan. Under the stipulation of facts, the parties agreed that the District had not fully complied with the 1970 desegregation order and federal law, and that vestiges of the prior dual system remained in the District. The proposed consent order further stipulated that the District had not achieved unitary status and must take further steps to achieve the maximum degree of desegregation practicable. The proposed order then set forth the specific racially identifiable schools which the parties agreed were considered vestiges of the prior dual school system and in need of remedial measures. Further, the parties stipulated that the District had not fully complied with the court's 1970 order and federal law regarding the assignment of principals, faculty and staff.
The remedial plan contained in the proposed consent order consists of consolidations and pairings of various elementary and secondary schools within the District, and well as new efforts by the District to eliminate a correlation between the historical racial identity of schools and the race of principals, faculty and staff. Compensatory curricular enhancements for minority students *1369 are provided, as well as elimination of certain ability-grouping practices which have tended to segregate students.
The parties proposed that the plan be approved by the court, pursuant to Fed. R.Civ.P. 23(c), and ordered implemented for the opening of the 1994-1995 school year, except for those provisions relating to new school consolidations which would require construction of new facilities.
The United States and Plaintiffs however took the position that the plan did not resolve all issues in the case. They alleged that the plan did not address the racial stigma, or stigma of inferiority, that remained after 1970 at Mayo High School. These parties contended that in order for the desegregation plan to be constitutionally adequate, a county-wide magnet high school should be opened on the former site of Mayo High School.
The State of South Carolina was not a party to the consent order, and took no position on it.
The District contended that the proposed consent order provided an adequate desegregation plan, and that a magnet school was not needed at Mayo High School. The District agreed that the only issue to be tried by the court was whether the remedial plan would disproportionately burden minority school children without a magnet school at Mayo.[18] Accordingly, trial on this remaining issue and the issue of the liability of the State of South Carolina commenced on May 23, 1994, and concluded on June 3, 1994.
IV. ISSUES FOR TRIAL
A. GENERALLY
In the Consent Order submitted to the court on June 3, 1994, the parties stipulated that "the Darlington County School District has not fully complied with the desegregation order and federal law in this case, and that vestiges of the prior dual system remain in the Darlington County School District." Consent Order at 2 (6/3/94).
The parties further stipulated that Mayo High School is one of eleven racially identifiable schools in the District that remain as vestiges of the prior dual system and which are in need of remedial measures. Consent Order at 2 (6/3/94).
The Consent Order provides that Mayo and St. John's High Schools are to be consolidated at the present St. John's site. The new consolidated high school, to be called Darlington High School, will serve Darlington area students in grades 9-12. The parties were unable to agree on the future of the present Mayo High School facility. Plaintiffs and the United States contend that a desegregation remedy for the secondary schools in the Darlington area requires not only a consolidated high school on the St. John's High School campus, but also a district-wide magnet school on the Mayo High School campus. They submit that a desegregation remedy which closes Mayo High School would not prove to be truly effective in eliminating the vestiges of the prior dual school system in Darlington, and would disproportionately burden minority school children. The District disputes the need for a Mayo magnet, and contends that the Consent Order provides an adequate desegregation remedy. Thus, the issues to be heard and decided by this court were the following:
1. Should the proposed Consent Order be approved?
2. If the Consent Order is approved, does an effective desegregation remedy require a district-wide magnet school on the Mayo High School campus?
3. If a magnet school is to be implemented, under what standards and procedures shall it operate?
4. Are the State Defendants liable to participate in the desegregation of the District?
5. If so, what share of the desegregation costs should be borne by the State Defendants?
*1370 V. EVIDENTIARY ISSUES DURING TRIAL
A. GENERALLY
The State objected on relevancy grounds to most of the District's exhibits relating to pretrial-1970 actions by the State. However, the court finds that evidence of the pretrial-1970 activities by the state is relevant. This includes evidence of the actions of the Gressette Committee and other state political leaders, the State building program, the State's efforts to equalize school facilities in order to avoid the impact of Brown and to retain separate schools, and the efforts of the State to provide tuition grants to enable children to avoid desegregated schools. This and other historical evidence is relevant to the issue of state liability.
The State further contends that the news articles tendered by the District are hearsay, and should be excluded. However, the Federal Rules of Evidence expressly provide that "statements in a document in existence twenty years or more the authenticity of which is established" are an exception to the hearsay rule. Fed.R.Evid. 803(16). The comments to the federal rules clearly indicate that newspaper articles fall within this exception. See Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir.1961) (58 year-old newspaper article admissible). Because newspapers are self-authenticating under Fed.R.Evid. 902(6), the court finds that the newspaper articles offered by the District are admissible. Therefore, for the reasons expressed above, the court admitted into evidence the District's Exhibits 100-430.
VI. APPROVAL OF THE CONSENT ORDER AND ISSUANCE OF INTERIM JUNE 23, 1994, ORDER
A. GENERALLY
To resolve the claims of the private plaintiffs and the United States against the District, those parties entered into good faith negotiations, which resulted in stipulations and the remedial plan set forth in the June 3, 1994, Consent Order.
The court finds those terms of the Consent Order appropriate for remedying most of the vestiges of segregation in the stipulated schools. The Consent Order desegregation plan promises to effectively desegregate the District and eliminate vestiges of segregation in faculty and staff. In addition, if provisions regarding student assignment, faculty and staff assignment, transportation, curriculum and extra curricular activities are implemented in good faith, the Consent Order promises to effectively desegregate the schools to the maximum degree practicable. (TR. III at 106, 107, 114, 117)[19] As acknowledged above, the Consent Order provides for consolidation of St. Johns and Mayo high schools at the former St. John's site. Plaintiffs and the United States contend that closure of Mayo would place a disproportionate share of the burden of desegregation on minority school children. This issue is addressed in Section VII, F.2. infra.
B. PROCEDURES AND CONSIDERATIONS GOVERNING CONSENT ORDER
In determining whether to approve the proposed consent order, the court utilized F.R.Civ.P. 23(c). Accordingly, on May 23, 1994, the proposed consent order was received by the court, and notice and hearing procedures were immediately instituted. Pursuant to the court's orders, notice of the proposed consent order was published in three newspapers of general circulation within the District. Flyers describing the availability of copies of the proposed consent order for inspection within the District as well as notice of two hearings scheduled on the proposed consent order were distributed to all school children in the District. Pursuant to the court's direction, counsel for the United *1371 States, Plaintiffs and the District conducted a public hearing in the District in which they responded to questions concerning the proposed consent order. Thereafter, this court conducted a hearing at which 18 persons addressed the court, in addition to counsel for the settling parties, concerning the appropriateness of the proposed consent order.
Based upon the stipulations of the parties, evidence heard during the trial, this court's inspection of a number of school facilities in the District, a complete review of the entire record in this case since 1962, and the information received by the court at the fairness hearing and in written submissions, the court determines that the settlement encompassed by the proposed consent order is fair, reasonable and adequate. In making this determination this court has considered the following factors:
1. The Plaintiffs' likelihood of success on the merits versus the amount and form of relief offered in the settlement;
2. The complexity, expense and likely duration of the litigation, and the stage of proceedings and amount of discovery completed;
3. The judgment of experienced trial counsel who have evaluated the strength of the case; and
4. Any objections raised by class members or the public.
Flinn v. FMC Corp, 528 F.2d 1169, 1173 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S. Ct. 1462, 47 L. Ed. 2d 734 (1976). This court also considered whether the proposed consent order was a product of arm's length rather than collusive bargaining. Finally, the court determined whether the proposed settlement was consistent with the public interest. After assessing the proposed consent order by considering all requisite factors, this court came to one conclusion. The proposed consent order is a fair, reasonable and adequate resolution of most of the allegations of Plaintiffs and United States. This conclusion was based on the court's familiarity with the issues presented in this case, the discovery conducted and the character of the negotiations. The court concluded that the proposed settlement is neither illegal nor tainted with collusion. Moreover, based on the evidence adduced at the fairness hearing, the court concluded the proposed settlement is fair, adequate, and reasonable. Accordingly, the court adopted the proposed consent order as a Consent Decree and it was approved and filed on June 3, 1994. As provided in the Consent Order, this court shall retain jurisdiction over the Consent Order during its term.
The primary objection to the proposed consent order expressed at the hearing on June 2, 1994, and in written submissions received by the court was that Mayo High School should not be closed as a regular high school. For reasons given below, the court concludes that the only way to achieve desegregation to the maximum extent practicable at the high school level in Darlington is to consolidate the two high schools, St. John's and Mayo. All parties agree that, because of its size limitations, Mayo cannot be considered as a site for the new consolidated Darlington High School. Although closure of the Mayo High School facility (the last historically black high school remaining in Darlington County) places a disproportionate share of the burden of desegregation upon the race disfavored by the District's former dual system, the court concludes that establishment of a county-wide dedicated magnet school for grades nine through twelve at the Mayo High School site is the most appropriate manner in which to share the burdens of desegregation and remedy the racial stigma suffered by the Mayo community. Consequently, when considered in tandem with this court's conclusions regarding the Mayo High School site, the proposed consent order is fair, reasonable and adequate.
C. REASONABLENESS OF THE CONSENT ORDER
A premise of our legal system is that settlements by agreement of the parties are favored. To approve an agreement reached by arms length negotiations, a trial court need only determine that the proposed settlement is not unconstitutional, unlawful, contrary to public policy or unreasonable. See United States v. Miami, 614 F.2d 1322, 1333 (5th Cir.1980). Settlements are especially *1372 preferred in discrimination cases, where the consensual nature of an approved settlement provides, in comparison with a court order, a much surer foundation for fundamental change, and fosters the chances for voluntary compliance by the parties.
Once a consent decree meets the four requirements outlined in Miami, it is entitled to a presumption of validity, meaning that the district court must have a "principled reason" for refusing to sign it. Miami, 614 F.2d at 1333. A refusal to sign a consent decree based on generalized notions of unfairness is unacceptable. Rather, the court must state specific reasons why a proposed consent decree unduly burdens one class or another. Id. In sum, when the remedy jointly proposed by the parties is within reasonable bounds and is not illegal, unconstitutional, or against public policy, the court should give it a chance to work. Id.
Where, as here, one of the plaintiffs is the department of the United States government charged with insuring that federal non-discrimination laws are enforced, the court "can safely assume that the interests of all affected have been considered." Miami, 614 F.2d at 1332.
In the instant case, the court notes that the Department of Justice Civil Rights Division and the NAACP Legal Defense and Educational Fund, Inc. have extensive experience in litigating school desegregation cases, and the Consent Order was entered into by attorneys who have litigated this particular matter for several years and know the issues involved.
In addition, the proposed Consent Order represents the culmination of extensive negotiations between parties who understand the strengths and weaknesses of their respective positions and embodies a comprehensive desegregation plan that "promises realistically to work." See United States v. Louisiana, 527 F. Supp. 509, 511 (E.D.La.1981) (citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S. Ct. 1267, 1276, 28 L. Ed. 2d 554 (1971)). Indeed, by its terms, the remedial plan contained in the proposed Consent Order is designed "to achieve the maximum degree of desegregation practicable" in Darlington County, Consent Order at 3, and the plan's combination of pairings, consolidations and curriculum enhancements further that end. The stipulations preceding the plan provide a foundation for the District's liability, and a basis for the proposed remedial measures.
Under these circumstances, the court is unable to find any basis upon which to reject the Consent Order with its stipulations and remedial plan.
D. NOTICE TO CLASS MEMBERS AND FAIRNESS HEARING
Rule 23(e), Fed.R.Civ.P., requires that a class action not be compromised without the court's approval, and that notice of the proposed compromise be given to all members of the class "in such manner as the court directs." Although Rule 23 gives wide discretion to the district court as to the form and content of the notice of proposed settlement, due process requires its constitutional adequacy. Mendoza v. United States, 623 F.2d 1338 (9th Cir.1980). Notice is intended to encourage those with divergent views to come forward, "helping the trial court to identify possible inadequacies in the settlement." Mendoza, 623 F.2d at 1351.
In Bronson v. Board of Educ., 604 F. Supp. 68, 72 (S.D.Ohio 1984), the court held that a flyer sent home with students notifying parents and guardians of the proposed settlement and publication in area newspapers met this requirement. Similarly, in Mendoza, 623 F.2d at 1351, the court approved a notice of a proposed school desegregation class action settlement that was published in two major newspapers, aired by local broadcast media, and distributed to locations throughout the class members' community.
Here, as detailed below, the extensive notice provided to class members satisfied not only Rule 23(e), but the more rigorous standard for class notification set forth in Rule 23(c), which requires that the court direct to the members of the class "the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort."
*1373 First, flyers to parents or guardians of students were distributed at school to each student of the Darlington County School District. The flyers notified all recipients that (1) a public hearing would be held to provide information regarding the proposed settlement of the desegregation lawsuit against the District; (2) a separate fairness hearing would be held to permit class members and citizens to address the court regarding the proposed settlement; and (3) copies of the proposed settlement were available for review at a specified location. The flyers stated that they were being provided by attorneys for the District, the United States, and the private plaintiffs.
Second, formal notices were published in the largest regional newspaper, the Florence Morning News, and two local newspapers within Darlington County, the Hartsville Messenger and the Darlington News and Press.
Finally, class members received informal notice of the proposed settlement through the daily coverage of the trial and reporting of the upcoming public hearing and fairness hearing by the Florence Morning News; through the near daily coverage by The State newspaper and regional media outlets, including WPDE-TV and WBTW-TV; and through the coverage by the Hartsville Messenger (publishing on Mondays and Wednesdays) and the Darlington News and Press (publishing on Wednesdays).
Based on the foregoing, the court concludes that the notice of the proposed settlement agreement and the scheduled fairness hearing, given to members of the class, was the "best notice practical under the circumstances," Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 657-58, 94 L. Ed. 865 (1950), and sufficient to allow persons to frame a response. The lawyers for the United States, private plaintiffs, and the District attended the public hearing on Tuesday, May 31, 1994. The Consent Order was read aloud and explained by an attorney for the United States, and questions were taken from the audience. All interested persons were also given the opportunity to speak at the fairness hearing, which was held in open court on Thursday, June 2, 1994. By any reasonable standard, ample notice was provided to members of the class and to the community at large. Accordingly, the court finds the notice of proposed settlement was reasonably calculated to and did reach the members of the class.
E. MOTION FOR NEW TRIAL/ALTER OR AMEND THE JUDGMENT
Following the trial of this matter, on June 17, 1994, five individuals purporting to be class members filed a "Motion for a New Trial and/or to Alter or Amend Judgment," in which they asked the court to reconsider its decision, announced at the close of the trial, that the court would accept the Consent Order terms closing Mayo High School. Following the court's Interim June 23, 1994, order indicating that Mayo High School would be reopened as a dedicated magnet school, these same individuals amended their Motion as a "Second Motion for New Trial," and urged the court to order that Mayo operate as a magnet within a high school offering traditional classes.
Accordingly, this motion poses the following question:
Have the proposed plaintiffs presented an adequate basis for reconsideration of the court's decision, and, if so, should Mayo be operated in the fashion urged by them?
The Fourth Circuit recognizes only three grounds for granting such a motion under Rule 59: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993). These circumstances are absent here.
Notwithstanding the three bases enunciated by the Fourth Circuit for the grant of a Rule 59 motion, the proposed plaintiffs would have the court adopt a fourth ground, namely, the "misapprehen[sion] of the position of many members of the class." Mem. at 3. Although the court declines to establish new grounds under Rule 59, it has considered the proposed plaintiffs' motion in the context of preventing "manifest injustice."
*1374 In both their June 17 and June 24 filings, the proposed plaintiffs offer nothing more than excerpts of the evidence adduced at trial by the United States and private plaintiffs (e.g., the District's operation of attendance zone lines, closing of historically black schools, and allocation of resources for Mayo). The claims raised by the proposed plaintiffs were litigated over several years, fully aired during the nine-day trial held from May 23 to June 3, 1994, and were among the matters considered by the court prior to entering the Consent Order on June 3, 1994 and its Interim Order of June 23, 1994.
The proposed plaintiffs' assertion that the court misapprehended the position of "several" members of class, Mem. at 4, highlights a flaw in their motion: What was most clear from the fairness hearing was that there was no single view among members of the plaintiff class โ or among the citizens of Darlington County, for that matter โ as to the appropriate remedy for 40 years of discrimination by the District. The Consent Order signed by the parties and approved by the court represents the informed judgment of the parties, including the Department of Justice and the NAACP Legal Defense and Educational Fund, Inc., as to how best to remedy the District's acknowledged liability.
In essence, the proposed plaintiffs' motion is nothing more than the expression of one dissenting viewpoint by five citizens of Darlington County. However, as the Fourth Circuit has recognized, "mere disagreement" with the court's action does not support a Rule 59 motion. Hutchinson, 994 F.2d at 1082. The proposed plaintiffs' failure to present any new evidence further underscores that what the proposed plaintiffs have offered is "mere disagreement" with the outcome of the settlement and trial, not with the underlying evidentiary or legal foundations.
A disagreement among class members dictates neither an amendment of judgment nor the ordering of a new trial. It also does not indicate that counsel for the private plaintiffs failed to discharge their responsibilities, since "[c]lass counsel's duty to the class as a whole frequently diverges from the opinion of either the named plaintiff or other objectors." Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 964 (1983), reh'g denied (3d Cir.1984). Given that disagreement among class members is almost inevitable, "it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole." Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S. Ct. 1020, 59 L. Ed. 2d 74 (1979). See also TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 462-63 (2d Cir.1982) (per curiam) (holding that majority opposition may not serve as a bar to a settlement that the district court determines is reasonable after considering the relevant circumstances).
Accordingly, the court finds that the proposed plaintiffs have not presented a basis for amending or altering the court's Interim June 23, 1994, order.
F. INTERIM JUNE 23, 1994, ORDER
By order filed June 23, 1994, the court announced its rulings on the issues submitted for trial. The court directed all counsel to submit proposed findings of fact and conclusions of law, pursuant to Rule 52, Fed.R.Civ. P., addressing several conclusions reached by the court. Counsel submitted the proposed findings of fact and conclusions of law on or before July 25, 1994.
The interim conclusions announced by the court in the June 23, 1994, order, which are discussed more fully in the instant order, included, among others, the following:
1. that a desegregation remedy closing Mayo High School places a disproportionate share of the burden of desegregation on the black community;
2. that the most appropriate manner to remedy the Mayo stigma is to establish a dedicated magnet school there;
3. that the State of South Carolina is liable to contribute to the costs of desegregation in Darlington County to the extent of 15%, and to the extent of 100% for transportation costs historically borne by the State.
*1375 VII. MAYO HIGH SCHOOL AS A MAGNET
A. GENERALLY
The issue of what is to be done with Mayo High School required the court to evaluate the evidence to determine the nature and scope of the District's alleged violations regarding Mayo High School. The court heard lengthy testimony and received and reviewed numerous exhibits and stipulated deposition and other testimony. Based upon this entire record, this court finds that:
1. the District has, by action and inaction, perpetuated a vestige of the former dual school system by stigmatizing Mayo High School as an inferior black school.
2. a desegregation remedy which simply closes the Mayo High School facility, the last historically black high school remaining in Darlington County, places a disproportionate share of the burden of desegregation upon the race disfavored by the District's former dual system.
3. the most appropriate manner in which to share the burdens of desegregation and to remedy the racial stigma suffered by the Mayo community is to establish a county-wide, dedicated magnet school for grades nine through twelve at the Mayo High School site.
The United States, Plaintiffs and the District have stipulated in the Consent Order that Mayo High School remains a vestige of the former dual school system. Had HEW Plan B been implemented as proposed, Mayo High School would have remained a predominately black high school, but there would have been a significantly larger number of white students assigned for attendance there. The modifications to HEW Plan B proposed by the District and implemented, perhaps inadvertently, by the court's Order of February 5, 1970, resulted in the vast majority of white children in the City of Darlington being zoned for St. John's High School rather than Mayo. Thus, by the terms of the court's Order of February 5, 1970, Mayo was destined to remain an essentially all black high school.
Once the zone lines were set by the 1970 Order, however, the Districts' actions and inactions regarding Mayo stigmatized it as an inferior black school. For example:
โ the District carved out an exception to its own attendance zone lines to allow white children in the Country Club area to avoid the Mayo attendance zone;
โ the District perpetuated a racially identifiable faculty and staff at Mayo through its assignment of a disproportionate number of black principals, teachers and staff members to Mayo High School;
โ the District permitted the physical plant at Mayo to deteriorate dramatically and failed to provide comparable facilities to those at St. John's;
โ the District denied Mayo adequate resources, e.g., computers, text books and library material, such that the school was not comparable to other high schools in the District;
โ at times the District failed to provide an academic curriculum as rigorous as that of the other high schools in the District; and
โ at times basic maintenance needs were not provided at Mayo.
When the District elected to build a new St. John's High School in the 1970s, it rejected any plan to build a new consolidated high school. Thus, the contrast between the physical facilities at St. John's and the other District high schools and Mayo became even more dramatic.
B. RETENTION OF RACIAL IDENTIFIABILITY
1. GENERALLY
Mayo High School, designated as the "black school" during the de jure segregation period, retains its racial identifiability. Student enrollment figures for the period 1970-1994 show Mayo's racial identifiability as constant. The link between the de jure system and the current disparity has never been broken. Govt.Exh. 43.
The 1970 Order required that students attend school according to the "geographic zon[e]" in which their "residence" was located. Stanley v. Darlington County Sch. Dist., et al., No. 7749, slip op. at 2, ถ I (D.S.C. Feb. 5, 1970).
*1376 The Darlington County School Board has sole authority for transferring and assigning pupils. Govt.Exh. 19 at ง C.4.
Examination of the District's attendance zone map shows that the "residences" of students living in the area known as the Darlington "Country Club" are located in the attendance zones of historically and identifiably black schools, i.e., Mayo, B.A. Gary and Cain.
The following streets, included in the "Country Club" area, all lie on the Mayo-B.A. Gary-Cain side of the attendance zone boundary, which separates these schools from the St. John's High-Brunson-Dargan-Spring school zones: Ervins Pasture Road, Tee Circle, Fairway Drive, Green Drive, parts of Country Club Road, Arapaho Circle, Roanoke Drive, Woodcreek Road, Wyandot Street, Shoshone Drive, Nez Perce Road, and Iroquois Street. Govt.Exh. 17, 18, 18a, 18b; TR I at 134-135. Students residing on these streets are, however, assigned to St. John's High, Brunson-Dargan and Spring schools. Govt.Exh. 18.
The residents of the "Country Club" area are white. TR I at 136-137.
On several occasions, District officials were advised of possible changes in school assignments of Country Club area students, but directed that the matter not be pursued further because of perceived political repercussions. TR I at 138-139.
If the students living in the Country Club area attended the schools that the 1970 Order required them to attend based on the location of their "residences", further desegregation at the racially identifiable black schools of Mayo, B.A. Gary and Cain would have been achieved. TR I at 139-140.
The District never sought or received from the court any special attendance zone dispensation to the "Country Club" area residents.
The District therefore undermined desegregation of the Darlington County schools and perpetuated the stigma of inferiority on Mayo High School by assigning the "Country Club" area students to the historically white schools outside the attendance zone line established by the 1970 order.
C. DISTRICT'S FAILURE TO ENFORCE SCHOOL ATTENDANCE ZONE LINES
1. 1988-1991
Dr. Grier, the former District Superintendent for the period 1988-1991, testified that, based on his observations and experiences, when he arrived in the District in 1988 the District was not properly enforcing the school attendance zone lines. TR I at 116.
Enforcement of the attendance zone lines was not a priority at that time in the District. Enforcement was "loose," and no procedures were in place to monitor compliance. TR I at 123-124.
Dr. Grier personally investigated issues relating to zone line compliance, including meeting with parents and school officials, reviewing permanent records, and driving through neighborhoods and visiting alleged residences. Based on his personal investigations and observations, Dr. Grier concluded a significant problem existed with regard to students not attending schools within their proper zones. TR I at 124-125.
The predominant race of those attending schools not within their proper zones was white, and the schools these individuals sought to avoid were the historically black schools, including Mayo High School.
District officials were made aware of the zone attendance problem on several occasions. TR I at 128.
A perception existed that the schools avoided by whites, like Mayo, were inferior in terms of facilities and curriculum. TR I at 129.
In 1988 Deputy Superintendent Jimmy Newsom was made specifically responsible for enforcing attendance zone lines in the District. TR II at 90; TR V at 123. Between 1988-1991, several procedures were adopted to enforce the attendance zone lines, including requiring parents to fill out verification forms and present proof of residence (e.g., a utility bill). TR II at 91; TR V at 122; Dist.Exh. 93 at 3. Notwithstanding implementation of these procedures, significant *1377 problems persisted with attendance zone line compliance.
2. 1991-1994
Dr. Cox, the District superintendent between 1991-1994, testified that, upon arriving in the District in 1991, she received a number of complaints about students attending schools outside of the attendance zones in which they resided. TR II at 125-126. Although both Dr. Cox and Jimmy Newsom, Deputy Superintendent, investigated these complaints, certain attendance zone lines, particularly Mayo, were not consistently or aggressively enforced by the District during 1991-1994. TR II at 144.
D. SCHOOL RESOURCES AND FACILITIES
1. GENERALLY
A discrepancy has existed between the facilities and curriculum at Mayo and the facilities and curriculum at other schools in the county. TR I at 129. Compared with St. John's High School, Mayo was perceived in the community as an inferior school. Mitchell Dep. at 112.
The District stigmatized Mayo as an inferior black school by providing the school with inferior maintenance, a poor physical appearance, inadequate instructional materials, inferior grounds, inferior resources and substandard facilities. The Mayo High School facility is of substantially inferior quality to every other high school in the District. Until recently, Mayo was not provided with adequate instructional supplies, including current library materials, apparatuses for science instruction, and a computer lab, whereas the St. John's High School had an abundance of these resources. In addition, Mayo had certain curriculum deficiencies. For example, Mayo students who wanted to take courses offered only at St. John's High School had to be bussed to St. Johns in the middle of the school day, causing Mayo students to lose a portion of their instructional day. TR III at 183.
2. FACILITIES
Facilities at Mayo have not been maintained to the standard existing at other schools in the District. For example, lockers with doors ripped off and profanities scrawled on them, doors ripped off bathroom stalls, and a new science wing devoid of Bunsen burners, beakers and other laboratory materials were common shortcomings. This all contrasted starkly with the other three high schools. Several witnesses corroborated the extent of deficiencies in Mayo maintenance. TR I at 131-157; Heatley Dep. at 62-63.
Former Mayo principal Dr. Connie Hathorn testified, "I walked into that school [in 1989], and it almost brought tears to my eyes to see someone being educated like that under those conditions." Dr. Hathorn testified that:
Sad to say in the 1960's in Mississippi it was better than it was at Mayo [in 1989]. Even though I went to an all-black school, our facilities were at least a little better than that.
Hathorn Dep. at 12-14.
Mayo had a rusted covered walkway behind it that provided no protection from rain. Inside the classrooms, ceilings had not been dropped and lacked florescent lights; no computer lab existed; the media center was "dark and bleak," and had tables in extreme disrepair; science tables that were also in disrepair and lacked gas connections; many electrical outlets were inoperable; and there was an absence of adequate paint work. TR I at 141.
Mayo's roof leaked, and the surrounding grounds were often submerged because of improper drainage. No other high school suffered similar problems. TR I at 143.
The gymnasium and locker rooms at Mayo were inadequate, and one witness compared Mayo's facilities to those of the other high schools as "like night and day." TR I at 161.
In 1988, Mayo did not have a marquee in front of the school, even though the other three high schools did. TR I at 142. A marquee was added later, however.
The neglect of facilities at Mayo was the type that had been pervasive for many years. TR II at 71.
*1378 At Dr. Grier's initiative, the District took some steps to redress some of the problems at Mayo High School. For example, the covered walkways were replaced; the ceilings were dropped; a computer lab was installed; the tables from the media center were removed and refinished; paint was provided and members of the community came in and painted the hallways and classrooms (even though historically and identifiably white Pate elementary school had been painted twice in two years by the District's staff); Mayo's then-principal, Dr. Connie Hathorn, organized Sunday clean-ups at Mayo, where members of the community came in and landscaped the grounds; a commons area with paved walkways and picnic tables was built behind the school; a marquee was erected in front of the school; and $50-60,000 was spent over a two-year period to upgrade Mayo's media center and replace old reference materials. TR I at 157.
At the same time, the curriculum at Mayo was being upgraded. TR I at 193.
The School Board has ultimate authority in the District for maintaining and upgrading the District's facilities, because no money can be spent unless approved by the Board. TR I at 114; TR II at 122, 147.
Typically, maintenance is performed at a school after the principal submits a work order to the maintenance department. It is not usually the superintendent's job to get involved in the day-to-day maintenance of schools, as that responsibility has been delegated to the Assistant Superintendent for Operations. However, because of the many complaints she received about work not being performed, Dr. Cox was involved in the maintenance of schools almost on a daily basis. TR II at 145, 155; TR VII at 35.
In general, schools with predominantly black student enrollments received less attention from the maintenance department than other schools. Often the work did not get done or, if it did, it was done in an inferior manner. TR II at 146. Of all the schools in the District, Mayo received the least attention from the maintenance department. TR II at 147.
As justification for the inadequate maintenance, the Assistant Superintendent for Operations and Maintenance expressed the opinion that significant maintenance work at Mayo was futile because vandals tore up the work and people did not take care of the facility. TR II at 147; TR V at 207.
Dr. Cox disagreed with the Assistant Superintendent for Operations's assessment of the problems at Mayo, and emphasized that the problem at Mayo was not vandalism, but poor workmanship by the District's maintenance department. TR II at 147, 165, 206.
The court finds that, in comparison with St. John's High School, the facilities at Mayo are "significantly inferior" and that Mayo has far greater facilities needs than any other high school in the District. The magnitude of the maintenance problems at Mayo is more extensive than at any other high school in the District. TR II at 148, 152, 158.
Both the District's maintenance office and school board members have been made aware of Mayo's maintenance needs on many occasions. TR II at 149, 152, 158.
Maintenance needs at Mayo went unmet for a considerable time. For example, among the needs that had gone unmet for two years were those involving health and safety of the students and staff, including the replacement of outdoor security lights; the replacement of outside gym doors; and the repairs of hazardous floor conditions in one of the buildings. TR II at 204.
Mayo was the only high school that routinely had no hot water in its gymnasium showers. This problem was eventually rectified after the matter was brought to the Board's attention in the fall of 1993. TR II at 166; TR III at 49; TR VIII at 14.
Although the District's Exhibit 86 purported to represent a list of current maintenance needs for Mayo, the court finds that list incomplete. The document did not reflect Mayo's needs for: carpeting; repairs to or replacements of inside doors, including gym doors; ventilation in the gym and agriculture facilities; painting; re-roofing, including repairs of the roof of the administrative building, which leaks; a covered walkway from the administrative building to the other part *1379 of the campus; plastering; elimination of the flooding of Mayo's grounds; new lights in the gym and library; science equipment; and the addition of a weight room, because Mayo is the only high school in the District without one. TR II at 179, 187.
The District's failure to properly maintain and make critical repairs at Mayo has had a detrimental impact on Mayo's students. As Dr. Cox testified:
When you're there year after year and you see a building falling apart, then it certainly makes you question, whether you're an educator or whether you're a student, what value is my education here? How good is this school? .... [T]he students and the staff there start to question if people can allow my school to get in this condition, then how good am I as a student there? I must not be very valued to be in that school.
TR II at 160.
The District's attitude of neglect of Mayo's maintenance needs had a negative effect on the schoolchildren, and contributed to their reduced self-esteem. Mitchell Dep. at 58.
3. RESOURCES
The Darlington County School Board has ultimate authority for the allocation of resources throughout the District. TR I at 114, 115; TR II at 122.
Mayo's library books and reference books were considerably more dated than those of the three other high schools. TR I at 130.
Although a "uniform textbooks adoption process" was adopted during Dr. Grier's tenure to insure that all schools had the same textbooks for the courses, this process is ongoing. Mayo High School still uses older textbooks. TR VIII at 85.
Dr. Grier's administration also initiated a process of allocating resources uniformly, a process that is also ongoing. Mayo still lags behind the other high schools in terms of the resources that have been allocated to it. TR VIII at 94.
When Dr. Grier arrived in the District in 1988, Mayo had no computer lab even though the other three high schools did. In 1992, when Mr. Mitchell became the Mayo principal, there was still no computer lab at Mayo, and the science equipment was totally inadequate, with basic resources such as microscopes and dissecting equipment lacking. TR I at 142; Mitchell Dep. at 76.
The court finds the District neither allocated the same resources to Mayo as were provided to other high schools, nor allocated adequate resources to Mayo to redress past deficiencies at that school. TR I at 143-145.
The District previously imposed fees on students to help pay for such things as books, computers and other educational equipment. Because Mayo students are generally from lower economic backgrounds, many were unable to pay these fees. Thus, because the District was allocating money to schools on a per pupil basis, Mayo was shortchanged because it was already behind the other schools in terms of facilities and resources, and because per pupil allocations failed to provide for Mayo students what other high schools were being provided through the payments of fees. This practice was changed during Dr. Grier's tenure, with greater allocations being made by the District to schools with children of lower socio-economic backgrounds.
4. CURRICULUM
The School Board is responsible for choosing the curriculum offered at each school in the District. The School Board has ultimate authority to insure the uniformity of curriculum throughout the District. TR I at 191-192; TR II at 122.
The Darlington County School District's Board Policy Manual ("the Manual") requires that every student be afforded "equal educational opportunities regardless of ethnic or racial background." Gov.Exh. 19 at JAA.
The Manual also states: "This concept of equal educational opportunity serves as a guide for the board and the staff in making decisions related to school facilities, employment of personnel, selection of educational materials, equipment, curriculum and regulations affecting students." Gov.Exh. 19 at JAA. The court finds that the District has, however, violated its own policies by denying equal educational opportunities to students at Mayo High School. See TR II at 201.
*1380 In 1988, Superintendent Grier requested and the Darlington County School Board approved the commissioning of a system-wide curriculum audit. TR I at 147. The audit was conducted by a team of five independent education professors and consultants under the auspices of the National Academy For School Executives (NASE) of the American Association of School Administrators (AASA). The auditors were selected by the NASE-AASA and were governed by such principles as expertise, independence, objectivity and consistency. Gov.Exh. 45 at 4, 6-7; TR I at 149.
The auditors examined all aspects of the District, including (1) reviewing Board policies, curriculum guides, budgets, student data, test scores and other reports and documents; (2) interviewing School Board members, District administrators and staff, and parents; and (3) visiting all schools in Darlington County. Gov.Exh. 45 at 7-8; TR I at 148.
The testimony of Dr. Grier and Dr. Cox that the curriculum offered at Mayo High School was inferior to that offered at St. John's High School was corroborated by the results of the Curriculum Audit. The Curriculum Audit found wide discrepancies among the schools in Darlington County. For example, the Audit found that, "in no way could the students at Mayo High School, an all black secondary school of approximately 450 students in grades 9-12, be receiving the same quality program as students at St. John's High School, or any other high school in the district...." Gov.Exh. 45 at 13; TR I at 151; TR II at 188.
The Curriculum Audit found "many more citations of inadequate curriculum" at Mayo than at St. John's, and concluded that "the type of curriculum and program available and being pursued at Lamar and Mayo High Schools was decidedly less academically rigorous and demanding than that offered and being pursued at St. John's and Hartsville High Schools." These findings were corroborated by Dr. Grier and Dr. Cox. Gov.Exh. 45 at 13, 50 (emphasis in original); TR I at 153-155; TR II at 190.
The District's own witness, Ms. Harrison, acknowledged that, as of 1989, a uniform curriculum did not exist at all grade levels in the District; that teachers selected their own textbooks and resources; and that the Curriculum Audit correctly identified the absence of uniformity as a problem. TR VIII at 90.
The other three high schools in the District offered a larger number and a greater variety of courses than Mayo. TR III at 93; Mitchell Dep. at 54.
During Dr. Cox's tenure, Mayo did not offer the same number of Advanced Placement courses as St. John's High School and did not offer Mayo students the courses required to obtain A.P. credit in some disciplines. TR II at 217-218.
Although Mayo students can travel to St. John's High School to take courses that are not offered at Mayo, and can even request the school to offer a particular course, in practice some students are unwilling to travel to another school for a course and there has not been an occasion where students have requested the Board to offer a particular course. In short, students often do not enroll in a course if it is not offered at their school. Even if they do enroll in such a course, they will lose some class time commuting to the other location. TR III at 77.
A smaller student enrollment at Mayo compared to St. John's High School does not necessarily justify disparate offerings. In addition, the failure to offer such educational basics as advanced placement courses, current textbooks and a computer lab when these are provided at the other three high schools is not a function of the size of Mayo. TR I at 152.
Dr. Grier initiated a process of developing uniform curriculum guides throughout the District, a process that Dr. Cox accelerated upon her arrival. TR II at 187-188; TR VIII at 79-80, 89-90.
Although some uniformity and enhancement of the curriculum at Mayo occurred during Dr. Grier's tenure, when he left the District in 1191 Mayo's curriculum was still not comparable to that of the other three high schools. TR I at 194; TR II at 77.
*1381 Nothing prevented the Darlington County School Board, as the entity ultimately responsible for curriculum at each school in the District, from insuring that the curriculum offered at Mayo High School was comparable to that offered at St. John's High School. TR I at 191-192.
5. INSTRUCTIONAL QUALITY
The court finds that the School Board followed a pattern of assigning less competent or problem teachers to historically black schools, particularly Mayo High School. Mayo has been perceived as, and to some extent has been, a "dumping ground" for years for teachers, particularly white teachers, who were not performing satisfactorily elsewhere. TR I at 164-165; TR II at 7, 190.
When Mr. Ervin Mitchell arrived as the new principal at Mayo in 1992 he assessed the Mayo teaching faculty as "very poor." In his experience, "there were obvious cases of teachers not teaching, kids sitting around doing nothing." In his opinion, "warehousing kids" was "very much" a problem at Mayo. According to Mr. Mitchell, there seemed to be a pattern in which teachers who were unsuccessful at other schools in the District were transferred to teach at Mayo. In Mr. Mitchell's words, Mayo had the District's "second-hand teachers." Mitchell Dep. at 41-43, 47, 119-120.
The Board has ultimate responsibility for the assignment of personnel, and nothing prevented it from assigning quality instructors to Mayo High School. TR 190-191.
E. ASSIGNMENT OF PERSONNEL
1. PRINCIPALS
The Darlington County School Board has sole authority for hiring and assigning principals in the School District. Gov.Exh. 19 at GBC/GBD; id. at GBC-R/GBD-R, at 3 ("[T]he final decision regarding employment in the school district shall be made by the board."); TR II at 191.
The Darlington County School District's own policies require that professional personnel, including principals, be hired "on the basis of qualifications and merit," and that "minority educators receive fair and equal treatment ... including ... employment opportunities." Gov.Exh. 19 at GBC/GBD. Furthermore, the District "is committed to providing an educational experience enhanced by the professional contributions of different races, creeds, sexes and ethnic backgrounds." Gov.Exh. 19 at GBC-R/GBD-R.
The District followed a pattern of assigning black principals to "black" schools and white principals to "white" schools. In the twenty-four years since the 1970 court order, Mayo High School never had a white principal, and St. John's High School never had a black principal. Gov.Exh. 37; TR V at 136.
Efforts by Dr. Grier to assign black principals to "white" schools and white principals to "black" schools were blocked by the Darlington County School Board, which told Dr. Grier that he could not assign a white principal to Mayo. TR I at 161-163.
Nothing prevented the Darlington County School Board from assigning principals to any school without regard to race. TR I at 198.
By assigning only black principals to Mayo High School, the District stigmatized Mayo as a school for black children. This practice of assigning only black principals to Mayo contributed to the school retaining its racial identity as a black school. Gov.Exh. 39, Nos. 4, 5; TR III at 183.
2. FACULTY
The 1970 court order required that the faculty of each school "shall be integrated so that the ratio of Negro and white faculty members of each school shall be approximately the same as the ratio throughout the system." Stanley v. Darlington County Sch. Dist., et al., Order at 3 (2/5/70).
The Darlington County School Board has final authority to hire professional/certified teaching personnel, based on the recommendation of the superintendent. Gov.Exh. 19 at GBD.
Throughout the 1980s, the percentage of black faculty at Mayo was more than twice that of the district-wide average. Gov.Exh. 39, No. 2.
*1382 The District stigmatized Mayo by assigning a disproportionate number of black faculty and staff to the school, contrary to the terms of the 1970 order. Gov.Exh. 39, No. 2; TR III at 182; TR IV at 172-174.
Dr. Grier testified that, when he arrived in the District in 1988, the District was not even close to being in compliance with the 1970 order, and that he transferred 35 teachers to try to bring about compliance. One school board member, Edward Hursey, introduced a motion at a board meeting to try and block the transfers, and another board member, Thelma Dawson, succeeded in blocking transfers of white teachers to Mayo. Thus, Mayo remained out of compliance with the 1970 order. TR I at 194-195; Gov.Exh. 39, No. 2.
3. CLASSIFIED STAFF
The Darlington County School Board, based upon recommendations of the superintendent, is responsible for hiring classified personnel. Gov.Exh. 19 at GCC/GCD. Classified personnel include teacher aids, library aides, secretaries, clerks and other assistants. Gov.Exh. 19 at GC.
The personnel office is responsible for assigning classified personnel "to the various schools/departments." Gov.Exh. 19 at GCE.
Mayo has always had a disproportionately high number of black classified staff. TR V at 137.
F. CLOSING OF MAYO
1. GENERALLY
According to Dr. Gordon, a school desegregation expert, a desegregation remedy for the secondary schools in the Darlington area requires not only a consolidated high school on the St. John's High School campus, but also a district-wide magnet school on the Mayo High School campus. A desegregation remedy that simply closes Mayo High School would not prove to be truly effective in eliminating the vestiges of the prior dual school system in Darlington. A magnet at Mayo is essential for a successful desegregation remedy for Darlington because: (1) it would enhance desegregation by attracting white students back into the public schools in the Darlington area; (2) it would remedy the stigma of racial inferiority inflicted upon the Mayo community by the District's treatment of the school; and (3) it would provide for an equitable sharing of the burdens of desegregation between the white and black communities in Darlington County. TR III at 130-131, 202.
2. BURDEN ON BLACK COMMUNITY
The relative distribution of the burdens of desegregation on minority children does not appear to have been one of the criteria used by the School Board for closing schools in the District. TR V at 132, 183. This conclusion is drawn from a review of the history of school closings in the District.
Historically, the District operated four secondary schools for black children: Butler Junior/Senior High (in Hartsville); Mayo High (in Darlington); Rosenwald Junior/Senior High (in Society Hill); and Spaulding Junior/Senior High (in Lamar). The District operated three secondary schools for white children: Hartsville High, Lamar High, and St. John's High (in Darlington).
Every time the District decided to consolidate high schools, it did so by closing the historically black facility. Of the four historically black secondary schools, the District closed two and downgraded one, leaving only Mayo. The District has continued to operate all three historically white secondary schools, and, in fact, constructed a new facility on a different site in 1977 for St. John's High School. Gov.Exh. 35; TR III at 192.
When Rosenwald High School was closed after the 1981-82 school year, it had a total enrollment of 283 students, of whom 87% were black. Gov.Exh. 43.
When Butler Junior/Senior High School was closed after the 1981-82 school year, it had a total enrollment of 400 students, of whom 97% were black. Gov.Exh. 43.
When Spaulding High School was consolidated with Lamar High School and downgraded to a junior high school after the 1982-83 school year, Spaulding had a total enrollment of 250 students, of whom 96% were black. Gov.Exh. 43.
The closings of Rosenwald and Butler disproportionately burdened black students, *1383 who were displaced by the hundreds. TR VII at 51.
Neither Mr. Newsom nor Mr. Stone, both of whom were serving as administrators in the District at the time Rosenwald and Butler were closed, were able to identify any steps taken, or any funds allocated by the District, to assist the displaced black students or to preserve the heritage of Rosenwald and Butler, respectively. TR V at 130-13; TR VII at 51, 53, 63-64.
The school colors and mascots of Rosenwald and Butler were abandoned by the District when the schools were closed. The historically white high schools to which the black children were reassigned, St. John's and Hartsville, respectively, retained their pre-existing colors and mascots. TR VII at 51; TR III at 190-191, 192; Heatley Dep. at 33-35.
According to Mr. Stone, the only legacy of Rosenwald's tradition and heritage was that St. John's basketball team "improved tremendously after Rosenwald joined us." TR VII at 51-52.
3. FAILURE OF DISTRICT TO SEEK PRIOR APPROVAL FOR PREVIOUS CLOSINGS
The School Board did not obtain court approval for closing schools in the District. TR V at 100, 133.
The School District closed historically black Rosenwald High and Butler High, and consolidated historically black Spaulding High, all without obtaining court approval or even providing notice to the court. See Transcript of Motion Hearing before Judge C. Weston Houck at 38 (8/11/92) (statement by the court that no such approval has ever been given).
4. CLOSING OF BUTLER HIGH SCHOOL
According to Dr. Gordon, the Butler High School facility could have been used as a consolidated junior high for the Hartsville area, rather than using the historically white Hartsville Junior High, which Dr. Gordon characterized as "the least desirable site" of any that he had seen. TR III at 192; Heatley Dep. at 37-38.
Hartsville Junior High is located in a "neutral zone" between the black and white communities in downtown Hartsville, while Butler is located in a black community. TR V at 189-190.
Mr. Stone, witness for the District, conceded that the acreage at Butler and Hartsville Junior was "basically the same as far as size is concerned"; the buildings "were basically the same"; each facility had a gym, a vocational building, and a band/choral room; and Butler had a superior library. TR V at 187.
Dr. Gordon testified that, in his view, Butler was a better facility and is located on a better site than Hartsville Junior High. TR IV at 169-170.
According to the District's own figures, the Butler facility had a permanent classroom capacity of 1,080 students and the Hartsville Junior High facility had a permanent classroom capacity of 1,005 students. Thus, the total capacity at Butler was actually 75 persons higher than at Hartsville Junior High. Gov.Exh. 111 at 3; Gov.Exh. 35 at 48; TR VII at 65-66.
The undisputed student enrollment data show that from the 1982-83 school year (the first year of the consolidation of Butler and Hartsville Junior High) through the 1993-94 school year, the total student enrollment at Hartsville Junior High has been well below the total capacity of Butler. In 1982-83, for example, the combined enrollment at Hartsville Junior High was 897, or 183 students below Butler's capacity; in 1993-94, for example, the enrollment at Hartsville Junior High was 800, or 280 students below Butler's capacity. Gov.Exh. 43; TR VII at 66-68.
Even though the Butler and Hartsville Junior High facilities were comparable, the District chose to abandon Butler and spend $1.17 million beginning in June 1986 to "completely renovate" the main building of the formerly all-white Hartsville Junior High School. Gov.Exh. 39, No. 9.
In addition to the $1.17 million spent by the District to completely renovate the main building at Hartsville Junior High, the District also spent considerable additional sums there. The District spent $15,452 for roof *1384 work; installed heat pumps as part of a four-school project costing $628,101; painted two other buildings on the campus for $7,500; and converted one building into a science department at a cost to the District of $49,480. Gov.Exh. 39, No. 9.
Moreover, even assuming that the construction of ten more classrooms would have been needed at Butler to accommodate all the junior high school students in the Hartsville area, the cost of such construction, in Mr. Stone's estimation, would have totaled about $550,000. In contrast, the District spent over $1.4 million over the course of several years to renovate and upgrade Hartsville Junior High School. TR VII at 68, 75-76; Gov.Exh. 39, No. 9.
During the 1986-87 school year, when Hartsville Junior High was being renovated, the School District used the Butler facility to house Hartsville Junior High students. During the time the School District was using the Butler facility to house Hartsville Junior High students, the facility was called "Hartsville Junior High School Annex." Heatley Dep. at 36.
Dr. Grier made recommendations and initiated discussions with school board members about reopening the Butler facility, which he believed was suitable for regular classes and could have relieved overcrowding at other schools. Nothing came of these discussions. TR I at 159.
5. APPROPRIATENESS OF MAYO MAGNET
Based on his extensive experience with school desegregation plans, Dr. Gordon testified that, in order for a desegregation plan to be viable for the Darlington area, the black community must have a sense of ownership of the plan. According to Dr. Gordon, such a sense of ownership could be achieved only if the historically black Mayo High School facility was given a constructive role in the plan as a county-wide magnet school. TR III at 130-131.
A dedicated magnet high school at Mayo High School would remedy the injuries and stigma inflicted upon the Mayo community by the District by transforming the traditional black school in the Darlington area from an inferior school to a school of exemplary educational quality. TR III at 193-194.
The District's consultant, Dr. David Armor, testified that a dedicated magnet school at Mayo was unnecessary for remedial purposes. Dr. Armor testified that such a program was not necessary for remedying any alleged stigma inflicted upon the Mayo community by the District. The court, however, finds Dr. Armor's testimony unpersuasive.
First, although Dr. Armor acknowledged that the Supreme Court's desegregation mandate in Brown was, in part, predicated upon a belief that segregation stigmatized black schools and damaged the self-esteem of black children, he stated that he was not convinced that segregation did, in fact, harm the self-esteem of black students. Consequently, Dr. Armor simply does not accept the Supreme Court's view of the "injuries and stigma" inflicted upon "the disfavored race" by segregation. Dr. Armor is not persuaded that desegregation improves academic achievement, self-esteem, or race relations for students of the "once disfavored race." In Dr. Armor's opinion, there has been a "failure to document definitive and meaningful educational and social benefits from induced school desegregation policies." The court rejects Dr. Armor's conclusions. TR VI at 182-185, 244-245.
Second, while Dr. Armor admitted that Mayo is a vestige of the prior dual system in terms of student assignment, faculty, principals, and the quality of the facility, he does not believe that Mayo High School has been stigmatized by the District. Dr. Armor testified that a school community cannot be suffering under a stigma if that community continues to take pride in its school and wants to keep the school open. Thus, even though Dr. Armor admitted that Mayo is perceived as an inferior school by the Darlington community, he testified that the school was not suffering from stigma because the students and parents of Mayo wanted to keep the school open. The court rejects such a view. As Dr. Gordon testified, black citizens attending schools under even the harshest segregated conditions still cherished their schools and took pride in their achievements, often opposing the closing of their community schools. Such *1385 resilience, however, does not nullify the Supreme Court's finding that the principal harm of the operation of racially segregated schools is the injury and stigma inflicted upon the black community. Finally, Dr. Armor's testimony that he did not believe that the District had stigmatized Mayo in the past is given little credence, given his admission that he "didn't know very much" about how Mayo was treated from 1970 to 1988. TR VI at 58, 62-63, 193-194, 201-204, 212, 226-227, 245-246; TR III at 210; TR VI at 194-196, 217-218.
A dedicated magnet school at Mayo is necessary to insure that the burdens of secondary school desegregation in the Darlington area are shared equitably between the white and black communities. A desegregation plan that consolidated the Darlington high schools by simply closing Mayo High School would unfairly place upon the black community the entire burden of the consolidation, eliminating from the black community its educational center, its primary social and recreational facility, and its central repository of community heritage. Nor would the loss of the community high school be compensated for by the placement of the consolidated junior high at the historically black B.A. Gary Middle School. As Dr. Gordon testified, the high school, as the terminal point of education for so many people, has a distinctive place in the community that cannot be replaced by a junior high. To close Mayo High School would simply consummate the stigma that has been inflicted upon Mayo; that is, the perception that Mayo does not have the same value as other schools. As Dr. Gordon testified: "When you shut down that school, you say to Darlington County folks, `You're right. That school was substandard, and we got rid of it.'" TR III at 188-189; TR IV at 127-128, 188.
Dr. Armor testified, however, that keeping Mayo open as a dedicated magnet school was not necessary for the purposes of balancing the burdens of desegregation between the white and black community. According to Dr. Armor, the fact that the District would continue to operate the historically black middle school (B.A. Gary) as a consolidated junior high school obviated the need to take any further steps to equalize the burdens of the desegregation plan. The court does not agree. Both Dr. Armor and Dr. Gordon testified that a high school has a very different community standing from a junior high school. Consequently, the maintenance of a historically black junior high school cannot be assumed to compensate for the burden incurred by the closing of the community high school. Furthermore, Dr. Armor admitted that he did not know if the District had considered the balance of burdens between the white and black community when it closed all other historically black high schools in the county. TR VI at 48-49, 191, 206.
A dedicated magnet at Mayo can work and could enhance desegregation by attracting white students who currently attend private schools or schools in other counties back into the District, particularly in the predominantly black Darlington attendance area. TR III at 131-133; TR IV at 148; TR I at 174, 175, 188; TR II at 199; TR VI at 193.
Dr. Grier testified that based on his experience with magnet schools in Akron, Ohio, a magnet school could work at Mayo. TR I at 173-175; 179-180; TR II at 199.
A dedicated magnet program can be funded in a variety of ways, including federal grants and grants from local businesses and industries. TR I at 175. Federal funds can be used to cover start-up costs associated with magnet schools. TR I at 190.
During her tenure in Darlington County, Dr. Cox had submitted a proposal for a Padaiae program, to be located at St. David's Academy in Society Hill. Society Hill is about twenty minutes from Hartsville, twenty minutes from Darlington, and nearly forty minutes from Lamar. In studying the feasibility of and the interest in such a program, Dr. Cox found significant parental support in all communities of the county for the proposal notwithstanding these distances. TR II at 194-195, 196-197. Thus, it appears a dedicated Mayo magnet will attract students from all parts of the District.
Similarly, the District currently operates an alternative-type school for at-risk and expelled students, located at St. John's High *1386 School, which attracts students from throughout the county who volunteer to attend. TR II at 198-199.
Among the types of magnets that could work at Mayo are an aeronautical engineering program in conjunction with Florence-Darlington Technical College; a program in medical sciences in conjunction with area hospitals; a performing arts program; and an international baccalaureate program. TR I at 177-178; TR II at 201-202.
G. CONCLUSIONS OF LAW
1. GENERALLY
In 1954, the United States Supreme Court declared that a racially segregated school system violated the Constitution. Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (Brown I). The Court subsequently held that school district authorities "denied Negro children equal protection of the laws" by establishing a "pattern of separate `white' and `Negro' schools," and it made clear that more is required of the offending school district than simply putting an end to its segregative practices. Green v. County Sch. Bd., 391 U.S. 430, 435-37, 88 S. Ct. 1689, 1692-94, 20 L. Ed. 2d 716 (1968).
A school district that violates the Constitution must remedy its violation by eliminating the pattern of racially identifiable schools. Id. at 436-37, 88 S. Ct. at 1693-94 (citing Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955) (Brown II)). As the Supreme Court reiterated in Freeman v. Pitts, 503 U.S. 467, 485, 112 S. Ct. 1430, 1443, 118 L. Ed. 2d 108 (1992), "The duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system."
The Supreme Court has repeatedly emphasized that "the measure of any desegregation plan is its effectiveness." Davis v. Board of Sch. Comm'rs, 402 U.S. 33, 37, 91 S. Ct. 1289, 1292, 28 L. Ed. 2d 577 (1971). The Court has made equally clear that if the plan proves ineffective it must be replaced with a plan that is effective โ "if it fails to undo segregation, other means must be used to achieve this end." Green, 391 U.S. at 440, 88 S. Ct. at 1695 (citation omitted). Moreover, a school district "must be required to formulate a new plan and ... fashion steps which promise realistically to convert promptly to a system without a `white school' or a `[black]' school, but just schools." Id. at 442, 88 S. Ct. at 1696.
In each case, the desegregation plan submitted by the school district and approved by the district court is simply a means to an end; that is, a means by which the district hopes to achieve the required remedy. The Supreme Court has stated that "whatever plan is adopted will require evaluation in practice, and the [district] court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed." Id. at 438, 88 S. Ct. at 1694.
The school officials are under a "continuing duty to take whatever action may be necessary to create a `unitary, non-racial system.'" Id. at 439-440, 88 S. Ct. at 1695 (citations omitted).
A school district does not discharge its duty to remedy its constitutional violation by simply implementing a court-ordered plan. As the Fourth Circuit stated, "the mere implementation of a desegregation plan does not convert a dual system into a unitary one." Riddick v. School Bd. of Norfolk, 784 F.2d 521, 533 (4th Cir.), cert. denied 479 U.S. 938, 107 S. Ct. 420, 93 L. Ed. 2d 370 (1986). See also United States v. Lawrence County Sch. Dist., 799 F.2d 1031, 1037 (5th Cir.1986) ("It should go without saying that a system does not become unitary merely upon entry of a court order intended to transform it into a unitary system."); Vaughns v. Board of Educ. of Prince George's County, 758 F.2d 983, 989 (4th Cir.1985) ("[I]mplementation of the court ordered plan alone could not relieve the Board of all future responsibility to bring about a unitary system.").
The only way the district can discharge its legal duty is to actually remedy the violation; that is, to implement a plan that "proves effective" in eliminating the racial identifiability of its schools.
The school district continually bears the burden of proving that it has effectively *1387 remedied its original violation. Implementation of a court ordered plan creates no presumption that the district has remedied the effects of its prior segregated system; for even after a plan has been approved by a court as one which "promises" to work, it is the district which must prove that it has actually worked in practice. The district court, therefore, "`should address itself to whether the Board ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.'" Freeman, 503 U.S. at 492, 112 S. Ct. at 1446 (emphasis added). In the final analysis, the school district "bears the burden of showing that any current racial imbalance is not traceable, in a proximate way, to the prior violation." Freeman, 503 U.S. at 494, 112 S. Ct. at 1447.
Moreover, the mere passage of time does not absolve the school district of its affirmative obligations. The "lingering effects" of segregation do not "magically dissolve" without affirmative efforts by the school district, and the Constitution "does not permit the courts to ignore today's reality because it is temporally distant from the initial finding that the school system was operated in violation of the constitutional rights of its students." Brown v. Board of Educ., 978 F.2d 585, 590 (10th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 2994, 125 L. Ed. 2d 688 (1993).
The school district is also obligated to properly implement and monitor the attendance zone lines ordered by the court. Davis v. Board of Sch. Comm'rs, 430 F.2d 883, 888 (5th Cir.1970), aff'd in part & rev'd on other grounds, 402 U.S. 33, 91 S. Ct. 1289, 28 L. Ed. 2d 577 (1971).
Having established the school district's obligation to desegregate its system and eliminate the racial identity of its schools, the Supreme Court has further defined the scope of this remedial obligation: "Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Davis, 402 U.S. at 37, 91 S. Ct. at 1292 (emphasis added).
The Fourth Circuit has instructed district courts that they may approve a plan that "achieve[s] less actual desegregation than would be achieved under an alternate proposed plan," only if the court "finds facts" that prove the alternate plan is "impracticable." Adams v. School Dist. No. 5, 444 F.2d 99, 101 (4th Cir.1971).
The school district's obligation to effectively eliminate the racial identifiability of schools goes beyond student assignment. As the Supreme Court explained in Green, schools in a segregated system acquired a racial identity that was based on more than just the race of the student enrollment. "Racial identification of the system's schools was complete, extending not just to the composition of the student bodies ..., but to every facet of school operations โ faculty, staff, transportation, extracurricular activities, and facilities." Green, 391 U.S. at 435, 88 S. Ct. at 1693.
2. LEGAL AUTHORITY FOR ORDERING OF MAGNET AND APPROPRIATENESS OF DEDICATED MAGNET AT MAYO
It is well settled that in school desegregation cases, in which the court sits in equity, "the nature of the violation determines the scope of the remedy." Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S. Ct. 1267, 1276, 28 L. Ed. 2d 554 (1971). Once liability has been determined, the remedy must be tailored to correct "the condition that offends the Constitution." Id. at 16, 91 S. Ct. at 1276.
For example, in addition to the traditional Green factors discussed above, the Supreme Court has also held that a district court may appropriately examine the "quality of education" offered at various schools. See Freeman, 503 U.S. at 491-92, 112 S. Ct. at 1446. A district court may also examine any "other elements" of a school district "to determine whether minority students [are] being disadvantaged in ways that require[ ] the formulation of new and further remedies to insure full compliance with the court's decree" to desegregate its schools to the maximum degree practicable. Id.
*1388 The court must, therefore, fashion a remedy that redresses the specific constitutional violations found. Here, the evidence shows that the District stigmatized Mayo as an inferior black school. If the "nature of the violation" was the District's discrimination against Mayo, then the remedy cannot be one that rewards the District by closing the school. To allow the District to close the last remaining historically black secondary school in the county would be to consummate, not remedy, the stigma and injury inflicted upon "the race disfavored by the violation." Freeman, 503 U.S. at 485, 112 S. Ct. at 1443.
As the Court stated in Swann, where, as here, the school authorities have defaulted on their affirmative obligations to eradicate all vestiges of segregation, and once a right and a violation have been shown, "the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann, 402 U.S. at 15, 91 S. Ct. at 1276. See also id. at 16, 91 S. Ct. at 1276 (district court "has broad power to fashion a remedy that will assure a unitary school system"); Riddick, 784 F.2d at 535 (same); Vaughns, 758 F.2d at 993 (relief granted must be "reasonably related to the objective of desegregation").
In discussing the duty of a formerly segregated school district to eliminate all the vestiges of its unconstitutional system, the Supreme Court stated:
This is required in order to insure that the principal wrong of the de jure system, the injuries and stigma inflicted upon the race disfavored by the violation, is no longer present.
Freeman, 503 U.S. at 485, 112 S. Ct. at 1443.
The Supreme Court has emphasized that "[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment." Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459, 99 S. Ct. 2941, 2947, 61 L. Ed. 2d 666 (1979) (emphasis added) (citations omitted).
Accordingly, the court must fashion a remedy that redresses the injuries and stigma inflicted upon the disfavored race by the District's operation of an inferior "black school" at Mayo High School.
In desegregation cases, it is incumbent on the court to insure that the burdens associated with any remedial actions are allocated equitably between the black and white communities. See Diaz v. San Jose Unified Sch. Dist., 861 F.2d 591, 596 (9th Cir.1988).
The law is clear that if a consolidation requires the closing of a predominantly black school and the relocation of students to a predominantly white school, the school district "bears a `very heavy burden of justification'" to explain why the predominantly black school was chosen for closing rather than the predominantly white school. Lee v. Macon County Bd. of Educ., 448 F.2d 746, 753, reh'g and reh'g en banc denied (5th Cir.1971) (citation omitted). The school district bears "a heavy burden to explain the closing of facilities used for the instruction of minority children." Arvizu v. Waco Indep. Sch. Dist., 495 F.2d 499, 505 (5th Cir.1974).
When a school district that is under a court order decides to close a facility "used for the instruction of minority children," it must do more than provide post hoc justifications for its action. Rather, it must present evidence to the court showing the need for the proposed closing, whether other alternatives were considered, and why other alternatives were rejected. See United States and Webb v. School Dist. of Omaha, 575 F. Supp. 1398, 1407 (D.Neb.1983) (citing Davis v. Board of Educ., 674 F.2d 684, 688 (8th Cir.1982)). See also Fitzpatrick v. Board of Educ., 578 F.2d 858, 861 (10th Cir.1978) (setting forth six-part test for determining whether proposed closing violates federal law).
Because the closing of a school necessarily involves the alteration of attendance zone lines, school districts operating under desegregation plans must obtain court approval for such action, typically through a motion to amend the desegregation plan. See, e.g., Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090, 1093, 1095 (11th Cir. 1992) (school board filed petition for approval of proposed consolidation); Davis, 674 F.2d at 685 (school district sought permission to *1389 revise its desegregation plan); Tasby v. Wright, 585 F. Supp. 453, 454 (N.D.Tex.1984) (school district filed "Motion to Revise Feeder Patterns").
In determining whether to allow the District to close the one remaining historically black high school in the county, therefore, this court must consider the District's history regarding Mayo and the other black high schools, as well as the relative burdens of desegregation. Cf. Valley v. Rapides Parish Sch. Bd., 702 F.2d 1221, 1228, reh'g & reh'g en banc denied, 705 F.2d 112 (per curiam), 707 F.2d 115 (per curiam) (5th Cir.1983) (the court "was impelled to seek out, within practical limitations, an equitable allocation of the burden of desegregation by declining to close a second majority black school").
In its decisions to close historically black Rosenwald and Butler High Schools and to downgrade Spaulding High School, the District neither sought nor obtained the court's approval as required by federal law, nor made any effort to preserve the traditions and heritage of these institutions. Particularly in the case of Butler, which could have served as the consolidated junior high school in the Hartsville area, the District was obligated to explain why the predominantly black school was closed rather than the predominantly white school. The District failed to meet this burden.
Magnet schools should be a supplement to a mandatory desegregation plan based to a reasonable extent on the mandatory reassignment and pairing and clustering of schools. United States v. Pittman, 808 F.2d 385, 390 (5th Cir.1987). Here, the proposed magnet school will be just one tool used to remove the vestiges of the dual system in Darlington County, and will supplement the other remedial measures set forth in the Consent Order, many of which involve pairing and clustering of schools, and faculty and student reassignment. Further, because of the voluntary desegregative nature of attendance at a magnet school, the establishment of a magnet school is an effective tool to promote community support for desegregation. Morgan v. Kerrigan, 401 F. Supp. 216 (D.Mass.1975), aff'd, 530 F.2d 401 (1st Cir.1976). Such voluntary techniques as magnet schools have a place in a desegregation plan where they have the promise of aiding a school district to move towards full compliance, Coalition to Save Our Children v. State Bd. of Educ. of Delaware, 757 F. Supp. 328 (D.Del.1991). Here the court finds a dedicated magnet school at Mayo will assist the District in moving toward full compliance.
Accordingly, it is within the court's discretion to grant the request of the United States and Plaintiffs Stanley, et al., and to order that a dedicated magnet program be implemented at the Mayo High School facility, to be named "Mayo School", to further desegregate the District, remedy past stigma and injury, and equitably distribute the burdens of desegregation.
VIII. PROCEDURES FOR IMPLEMENTING A DEDICATED MAGNET AT MAYO
A. GENERALLY
The dedicated magnet at Mayo School shall be implemented beginning in the 1995-96 school year.
Within sixty (60) days of the date of this order, the District shall file with the court and submit to all parties:
(a) a magnet proposal, including but not limited to (i) the type of program, (ii) projected costs, (iii) projected enrollment, by race and area of residence; (iv) projected staffing and resource needs; (v) proposed timetable for the implementation of each stage of the process, and (vi) proposed efforts to garner community interest and support;
(b) a proposed plan for upgrading Mayo's facilities and resources to accommodate a magnet program and to conform with federal and state requirements;
(c) proposed criteria for selection to the magnet program that insure that selections will not have a disparate impact on black students or on the desegregation of the county's other high schools;
*1390 (d) proposed criteria for the selection of magnet school administrators and staff; and
(e) proposed changes/additions to the Board Policy Manual, as appropriate, regarding the governance of the magnet school.
Based upon the commitment by State Superintendent of Education Nielson, the South Carolina Department of Education shall provide expert assistance in all facets of the magnet school proposal and implementation.
The Darlington County School District shall, commencing sixty (60) days after the filing of the information set forth above, and then every sixty (60) days thereafter leading up to the opening of the magnet school, file with the court and submit to the parties reports on the District's progress in implementing the magnet plan.
Beginning with the first year of the magnet school in 1995-96, the District shall file with the court and submit to the parties, at the end of each semester, and thereafter at the end of every year, relevant data on the magnet program, including but not limited to (a) race and residence area of every participating student; (b) number of applicants, by race and residence area; (c) selection criteria and results; (d) performance/progress results; (e) costs of programs and outstanding needs; and (f) racial breakdown of administrators and certified faculty in the magnet program.
IX. LIABILITY OF STATE DEFENDANTS
A. DISCRIMINATORY ACTIONS OF STATE
1. GENERALLY
The court finds that the State of South Carolina created the dual school system; that the State, both before and after the decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) ("Brown I"), took actions to perpetuate racially dual school systems; that the effects of the State's actions persist to the present; and that, although most active resistance had ceased by the mid 1970s, the State has done little or nothing since then to eliminate the vestiges of the dual school system created and perpetuated by them, despite an affirmative duty to do so. Accordingly, the court holds that there is ample precedent for holding the State liable to participate in the desegregation plan for the District.
The facts underlying state liability are for the most part undisputed and a matter of historical record. Based on such evidence, the State has failed to fulfill its duties in the area of school desegregation. The State has engaged in virtually every kind of conduct that the state liability cases, cumulatively, have identified as violative of the affirmative duty to desegregate. The specific actions and omissions of the State that support this finding of liability are set forth below.
2. STATE-MANDATED SCHOOL SEGREGATION PRIOR TO 1954.
South Carolina was the first of seventeen states to recognize segregation as a matter of law. Dist.Exh. 253 at 6. South Carolina required all public schools in the state to be racially segregated. Article XI, ง 7 of South Carolina's 1895 Constitution provided:
Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school provided for children of the other race. See Const. 1868 Art. X, ง 10.[20]
Pursuant to the state constitutional provision, state statutes mandated a racially dual school system in South Carolina and imposed sanctions for defying this mandate. State law adopted the constitutional prohibition of racially mixed schools. S.C.Code Ann. ง 21-751 (1952). In addition, another provision required that drivers of school buses had to *1391 be the same race as the children riding in the buses. S.C.Code Ann. ง 21-809 (1952).[21]
These and other statutes withdrew authority from local school districts to act contrary to the state mandate of segregated schools and facilities, and injected the state into the areas of student assignment, teacher compensation, transportation and school facilities.
Prior to 1954, the State of South Carolina maintained its racially separate schools under the "separate but equal" doctrine enunciated by the Supreme Court in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). This doctrine permitted states to provide certain services on a racially separate basis as long as equal services were provided. Although the "separate but equal" doctrine announced in Plessy applied only to accommodations on public conveyances such as railroads, it was relied upon to justify widespread segregation in public schools.
Despite the Supreme Court's emphasis in Plessy on the equality of treatment guaranteed by the Fourteenth Amendment, the racially separate public schools in South Carolina were anything but equal. (Busbee Dep. at 17; Dist.Exh. 372). Black schools were substantially inferior to white schools in almost all respects, including their facilities, funding, transportation, curricula, and other elements crucial to education. Dist.Exh. 110 at 2; Dist.Exh. 179 at 7; Dist.Exh. 421.
The State was aware of this unequal and therefore unconstitutional situation. Dist. Exh. 105 at 5-6. In defending the system, one Governor declared to the South Carolina Education Association:
Should the Supreme Court decide this case [Brown] against our position, we will face a serious problem. Of only one thing can we be certain. South Carolina will not now nor for some years to come, mix white and colored children in our schools.
. . . . .
If the Court changes what is now the law of the land, we will, if it is possible, live within the law, preserve the public school system, and at the same time maintain segregation. If that is not possible, reluctantly we will abandon the public school system.
Dist.Exh. 105 at 7.
Led by high ranking officials, the State of South Carolina set out to preserve segregation in the event the State lost the Brown case. Afraid that the inequality of the schools would compel the abandonment of the separate but equal doctrine, the State commenced a massive program to equalize school facilities as a strategy to maintain segregated schools. Dist.Exh. 102 at 3; Dist.Exh. 109; Dist.Exh. 103 at 5-6; Dist. Exh. 114.
This massive school building program, known as the South Carolina Education Program, was financed by a statewide 3% retail sales tax. Dist.Exh. 109; Dist.Exh. 110; Dist.Exh. 114 at 9; Dist.Exh. 193 at 7. Under the auspices of the program, the state established the State Education Finance Committee ("SEFC"), and with it, state control over school facilities, teachers' salaries and school transportation. S.C.Code Ann. ง 21-52 et seq. (1952); Dist.Exh. 101; Dist. Exh. 114 at 9. The SEFC approved and funded on a segregated basis new construction, equipment, and "such other improvements as are necessary to enable all the children of South Carolina to have adequate and equal educational advantages." It assumed control of the school transportation system for the entire state, a system previously operated locally. S.C.Code Ann. ง 21-833 (1962). Thus, by 1952, the mechanism was in place to build a new generation of segregated schools. This state building program is largely responsible for many of the racially identifiable school buildings remaining in Darlington County.
As the first state to recognize legal segregation, South Carolina also was the first state to establish a legislative committee to preserve it in the event of an "adverse" decision in Brown. Dist.Exh. 253 at 5-6. In 1951, the State instituted the "South Carolina School Committee" to advise the legislature "on the course to be pursued by the State in *1392 respect to its educational facilities in the event that the Federal Courts nullify the provisions of the State Constitution requiring the establishment of separate schools for the children of the white and colored races." This committee, led by Senator L. Marion Gressette, came to be known popularly as the "Gressette Committee" or the "Segregation Committee." It is credited with the "success" South Carolina had in avoiding any desegregation until 1962. Dist.Exh. 320 at 3-D.
In 1952, the State, anticipating Brown, repealed a section of the State Constitution requiring the General Assembly to provide a system of free public school education. 1954 S.C.Acts 653. This repeal was proposed to unfetter the General Assembly in the event the United States Supreme Court held segregation unconstitutional. Dist.Exh. 120 at 2.
In 1954, the United States Supreme Court held in Brown I that the "separate but equal" doctrine had no place in public education. The justices unanimously held that the equal protection clause of the Fourteenth Amendment prohibited state-sponsored segregation in public education. Brown I, 347 U.S. at 493, 74 S. Ct. at 691. One year after the Supreme Court declared segregated public education unconstitutional in Brown I, the Court directed that segregated school systems be dissolved with "all deliberate speed." Brown v. Board of Educ., 349 U.S. 294, 301, 75 S. Ct. 753, 756-57, 99 L. Ed. 1083 (1955) ("Brown II"). The Court required a "prompt and reasonable start toward full compliance" with Brown I and directed "good faith compliance at the earliest practicable date." Id. 349 U.S. at 300, 75 S. Ct. at 756. The Court also stated that, "[a]ll provisions of federal, state, or local law requiring or permitting such discrimination must yield" to the principles enunciated in Brown I. Id. 349 U.S. at 298, 75 S. Ct. at 755. The Court made clear that "the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Id. at 300, 75 S. Ct. at 756.
3. RESISTANCE FROM 1954-1970
a. Generally
Despite the Brown decisions, the State of South Carolina refused to desegregate its schools, and took steps for over 15 years to maintain segregated public education under the cloak of state law. Some of the principal actions are discussed below.
b. Legislative Action and Political Activity
In 1955, the Gressette Committee proposed six changes in state laws in response to the Brown decision, i.e., (1) the repeal of the compulsory attendance law; (2) the establishment of a system of "visiting teachers" in lieu of the attendance teachers; (3) a grant of authority to local school trustees to "operate or not operate" public schools, and with authority to assign and transfer students in the "best interests of education"; (4) a grant of authority to school trustees to lease as well as sell school property; (5) a grant of permission for the transfer of students to counties in which their parents did not have property; and (6) the repeal of the county board of education's authority to regulate opening and closing of school terms. Dist. Exh. 136 at 14; Dist.Exh. 192; Dist.Exh. 244. Every one of these measures was enacted into law. Dist.Exh. 145; Dist.Exh. 185. However, all were intended to preserve segregation, not dismantle it as commanded by Brown.
The legislature also adopted an amendment proposed by the Gressette Committee to the annual State Appropriations Bill which provided that state funds be denied to any school forced to accept students by court order. The Appropriations Bill provided:
[S]tate aid for teachers' salaries and all other appropriations for the operation of the public school system shall cease and become inoperative for the time that any pupil or pupils shall by order of any court attend a school other than that which he or she is now attending or may be assigned by local board of trustees.
See S.C.Code Ann. ง 21-2 (1962). This amendment was clearly aimed at preventing the implementation of Brown. See Dist.Exh. 134. It made court-ordered integration impossible, even if local school officials wanted to comply. Dist.Exh. 143. It was not repealed until 1972. 1972 S.C.Acts 1307.
*1393 These laws were enforced, and their impact was felt everywhere, including Darlington County. In 1954, immediately after Brown, the State Superintendent issued specific orders to the Darlington County District to continue to operate its schools on a segregated basis. The August 18, 1954, Minutes of the Darlington County Board of Trustees show that it adopted a resolution to continue to operate segregated schools under orders of the State Superintendent and the mandate of state law. Dist.Exh. 425. The minutes state:
Mr. Martin moved, seconded by Mr. Auman, that the following resolution be submitted to the County Attorney for his approval before incorporation in these minutes, and if he says there is nothing illegal in the resolution, we proceed to incorporate it in the minutes:
That this Board instructs the Area Superintendents that in the event a Negro child applies for admission to a White school in the Darlington County School System at the beginning or during the school session 1954-55, the Area Superintendents are authorized by this Board to advise the applicant that in keeping with instructions from the State Superintendent of Education, our understanding of the law is that the South Carolina Schools are being operated for the year 1954-55 under South Carolina law which requires segregation of the races, and refuse admittance of the applicant. Motion carried.
Quoted below is a letter from Mr. Paul A. Sansbury, County Attorney, in connection with the above motion, dated August 24, 1954:
Reference is made to motion by Mr. Martin to be incorporated in the minutes of your Board, if nothing is found to be illegal therein, to the effect that any negro children applying for admission to white schools during the fiscal year 1954-55 be refused admission. The original motion in question is attached hereto.
Your attention is called to Section 7 of Article XI of the Constitution of South Carolina, vis: "Separate schools shall be provided for children of white and colored races, and no child of either race shall ever be permitted to attend the school provided for the other race." Your attention is also directed to the recent decisions of the United States Supreme Court which hold that segregation of public schools is invalid (Brown vs. Board of Education, 74 S. Ct. 686; Bolling vs. Sharpe, 74 S. Ct. 693). In both of these cases the Supreme Court merely laid down the principle that separate educational facilities are inherently unequal, but restored both cases to the docket for reargument on questions relative to the forming of an appropriate decree. Until this decree has been formed and a procedure outlined for the ending of segregation, it is my opinion that your Board must follow the State constitutional provision hereinabove quoted. Accordingly, I see nothing illegal in the motion of Mr. Martin attached hereto.
Dist. Exh. 425 at 3-4 (emphasis added); Dist. Exh. 156 at 1; Dist. Exh. 158; Dist. Exh. 164 at 6.
The efforts of the State to preserve and maintain segregated schools did not cease in 1955. Instead, the segregation laws were strengthened in subsequent years.
In 1956, the State gave definite legal status to the Gressette Committee, and extended its life indefinitely. Dist. Exh. 187. It enacted a joint resolution drafted by the Gressette Committee "condemning and protesting the usurpation and encroachment on the reserved powers of the states." 1956 S.C.Acts 914 (R.645, S. 514). This joint resolution declared "[t]he right of each of the States to maintain at its own expense racially separate public schools." Dist. Exh. 184. The resolution, adopted unanimously by both the House and the Senate, declared that the General Assembly had never surrendered the right to maintain segregated public facilities, and would "exercise the powers reserved to it under the Constitution to judge for itself of the infractions and to take such other legal measures as it may deem appropriate to protect its sovereignty and the rights of its people." Dist. Exh. 188.
The general appropriations bill was also amended to provide for automatic closings of institutions of higher learning threatened by *1394 the court-ordered admissions of any student. In addition to requiring the closing of any institution to which a court might order admission of a student, the bill required the closing of South Carolina State College, a black college. 1956 S.C.Acts 813 at 1948 (H-1896). Dist. Exh. 190.
Bills were also passed prohibiting membership in the NAACP by any state, school district or other public employee, Dist. Exh. 182; Dist. Exh. 183; Dist. Exh. 190; empowering school officials to remove and transfer students if they had reason to believe that the enrollment of students in a particular school might present a danger of riot or breach of peace, 1956 S.C.Acts 1715; and authorizing a committee to investigate the activities of the NAACP, Dist. Exh. 190; Dist. Exh. 192. The latter law is still in effect. S.C.Code Ann. ง 59-63-480 (Law.Coop.1976).
The 1957 legislative session saw the passing of additional bills aimed at preserving segregation. These included the retention of the segregation requirements in the State Appropriations Bill, 1957 S.C.Acts 347, Dist. Exh. 213; an anti-barratry law aimed at suppressing the NAACP, 1957 S.C.Acts 25 at 23, Dist. Exh. 208 at 6; and a bill giving the governor plenary authority to control violence or threatened violence, 1957 S.C.Acts 349; S.C.Code Ann. ง 1-128 (1957), Dist. Exh. 209, Dist. Exh. 218.
In 1958, sentiment in the legislature against desegregation continued to run strong. In a letter to Senator Gressette, a senior House member urged the Gressette Committee to propose an insertion to the State Appropriation Bill that would provide for the closing of all black schools in the state in the event a black enrolled in a white college on court order. The letter stated:
A large group of negro teachers would like to see negro students admitted to our white colleges. They believe in integration. They do not believe in it to the extent that they would want all of the negro schools closed and that they would lose their jobs.... These negro teachers cannot do without their salaries.... They would lose their cars and the other property that they have purchased if they lose their jobs.
Dist. Exh. 224. The Gressette Committee considered this proposal, as it did all similar proposals, but did not recommend it. Dist. Exh. 224. However, the General Assembly enacted a law authorizing the Attorney General to investigate the records of all foreign and domestic non-profit corporations. Dist. Exh. 231. This law was aimed at the NAACP, which was pressing for school desegregation.
In April 1960 a desegregation lawsuit was filed in Summerton, Clarendon County. Dist. Exh. 267. In response, the Gressette Committee recommended two changes to that year's State Appropriations Bill: (1) that the clauses providing that the educational appropriations be for segregated facilities be grouped in one section only; and (2) that the State Budget and Control Board be authorized to supervise the expenditure of funds appropriated for public education.
The first change regarding the grouping of clauses was designed to thwart any attempt to bypass the state courts and allow school desegregation suits directly into federal courts. It did this by strengthening a 1956 law which required that applicants for school reassignments pursue administrative and state court remedies before entering federal court, and thus forced individual desegregation suits into state courts and forestalled class actions.
The second recommendation transferred the legislative authority to cut off school appropriations to the State Budget and Control Board, and thus retained to the State the power to cut off appropriations where desegregation was threatened. Dist. Exh. 266; Dist. Exh. 268 at 10. The General Assembly approved both changes. Dist. Exh. 264. The legislative session ended with the remainder of the school segregation laws unaltered. Dist. Exh. 275 at 15.
Thus, South Carolina's laws passed after Brown I were enacted to enable schools to continue on a segregated basis. If a federal court ordered the transfer of a child to a school for children of another race, both the school transferred from, and the school transferred to, would have their appropriations *1395 terminated. They would cease to operate as public institutions, and the property could be sold or leased to segregated private schools. This would continue until the state withdrew completely from public education. It was acknowledged by some that South Carolina was a "pioneer" among Southern states in taking action to forestall integration. Dist. Exh. 170.
As a result of these actions, South Carolina was the last of the states to desegregate in any fashion whatsoever. Dist. Exh. 297. Schools in South Carolina opened for the 1962-63 school year on a completely segregated basis. Dist. Exh. 290 at 9.[22] On January 28, 1963, Harvey Gantt, a black transfer student from Iowa State College, was admitted to Clemson College under court order. It was the first school desegregation in South Carolina since Reconstruction. Dist. Exh. 297. Nevertheless, the vice chairman of the Gressette Committee assured legislators that Gantt's admission into Clemson did not change the state's policy in favor of segregated schools. Dist. Exh. 297 at 9.
On January 30, 1963, two days after Harvey Gantt entered Clemson, the House introduced a bill to provide scholarship grants to students wishing to attend private schools, H. 1155; Dist. Exh. 295. This proposal had been under study by the Gressette Committee for some time. See Dist. Exh. 232 at 14; Dist. Exh. 292 at 8; Dist. Exh. 296; Dist. Exh. 297 at 8; Dist. Exh. 298 at 14. The General Assembly approved the bill in May, 1963. 1963 S.C.Acts 297; S.C.Code Ann. 21-297 (1962); S.C.Code ง 59-41-10 et seq. (Law Co-op.1976). Although the law made no mention of race, it was perceived as a "safety valve" in the event of public school desegregation. Dist. Exh. 299 at 14.
When the Charleston School District admitted 11 black students into its white schools in September 1963 under federal court order, it became the first school district to desegregate in South Carolina. Dist. Exh. 301 at 1, 22. The plaintiffs there reached federal court only after finally exhausting the administrative remedies and barriers provided for in the South Carolina Pupil Assignment Law, which mandated that students challenging pupil assignments seek administrative review in the county boards of education and state courts before seeking relief in federal court, S.C.Code ง Ann. 21-247 (1956). Dist. Exh. 302 at 16.
In response, the school districts in Charleston County and other counties made application to the State Department of Education to operate under the tuition grant program. Dist. Exh. 301, at 22-23; Dist. Exh. 371. The 1964 General Assembly appropriated $250,000 for the tuition grants program. Dist. Exh. 313. By September of that year, over one hundred applications for such grants had been forwarded to the State Department of Education. Dist. Exh. 315; Dist. Exh. 317; Dist. Exh. 319.
The State Superintendent of Education announced that the Department of Education had approved state tuition grants for three schools that had opened the previous fall. Dist. Exh. 321. Thus, on March 3, 1965, South Carolina paid its first tuition grants to private school students. As the school boards rushed to distribute the checks, the NAACP sought injunctions in federal court to prevent payment of the funds, and federal marshals attempted to serve school officials with restraining orders. However, the NAACP's efforts were too late to prevent some parents from cashing the checks. On March 9, when Judge Martin issued the temporary injunctions sought by the NAACP, money had already been disbursed in Orangeburg and Sumter school districts. Dist. Exh. 325.
Even after Judge Martin had issued the injunctions against Orangeburg and Sumter school districts, however, the State Department of Education defiantly continued processing applications for tuition grants, and on March 12, mailed to the Charleston Treasurer a total of $15,383.88 in grants for 151 students in three Charleston school districts. However, the NAACP sought and obtained an injunction against the Charleston districts *1396 involved and the State Superintendent. Dist. Exh. 325.[23]
No new segregation laws were passed from 1967 to 1969. However, the schools remained largely segregated, except for the limited desegregation brought about under "freedom of choice" plans.
In March 1967, Senator Gressette, then Chairman of the Senate Judiciary Committee, proposed and defended bills that would allow local school districts to delay implementation of desegregation until 1974. Dist. Exh. 333. In the same year, South Carolina's Attorney General criticized federal officials for denying federal education funds to South Carolina schools, and defended the freedom of choice plan. Dist. Exh. 334. Also in 1967, the nation's top school desegregation official, the Director of the Equal Education Opportunity Division of the United States Office of Education, described South Carolina as "one of a small group of states in serious trouble" in school desegregation. Dist. Exh. 335. He blamed the tardy response on the lack of educational leadership in the State. Id. He further described that there was "little assumption of responsibility within the state for bringing about change." Id. The desegregation official noted that South Carolina was the only state in the South that had failed to develop training programs for school personnel faced with the problems of desegregation. Id.
In 1970, the General Assembly created the State Board of Education ("SBE"). 1970 S.C.Acts 2503; S.C.Code Ann. งง 59-5-90 et seq. (Law Co-op.1976). The General Assembly also enacted laws prohibiting all pupil assignments based on race, except with the "express approval of a board having jurisdiction." S.C.Code Ann. ง 59-63-50 (Law Co-op.1976). Although on the surface the law appeared to be a desegregation measure, in reality it was designed to discourage "busing" desegregation remedies. The law, still in effect today, prohibits assigning students on the basis of their race "for the purpose of achieving equality in attendance or increased attendance or reduced attendance, at any school, of persons of one or more particular races." It also prohibits the establishment of school districts or attendance areas for the purpose of achieving racial equality.
High ranking state officials, including South Carolina governors, resisted desegregation. Some of South Carolina's governors publicly advocated the maintenance of segregated schools and resisted desegregation of the state's public schools. Thus, in 1959 South Carolina's Governor was able to say that, because of sound state government, state-provided transportation and the school building program, school segregation persisted in South Carolina. Dist. Exh. 242, at 4-5, 8.
Despite contentions by the State during the trial that the District should have gone beyond the requirements of the court's 1970 order to attain more desegregation in later years, State officials did not begin actively promoting desegregation. Although one governor acknowledged that school districts had to comply with the Civil Rights Act, he urged that the school districts proceed cautiously and refrain from adopting overly ambitious desegregation plans, and he "urged school districts not to adopt plans that go beyond those ordered by the courts". Dist. Exh. 327 at 18.
The court finds that during this unfortunate period of history the State, which had previously led the movement resisting desegregation, did not actually disavow its prior stance and encourage local schools to desegregate to the extent they could. Accordingly, the court finds the State's actions and inactions a significant factor in delaying desegregation in the District.
One State Attorney General opined that the State could continue funding local school districts even though the school districts were not eligible for funds under federal law because of their failure to desegregate their schools. Dist. Exh. 374. He advised the *1397 Governor that "the failure of a school district to receive federal assistance does not jeopardize the receipt by that school district of State-appropriated funds." Dist. Exh. 374. Thus, a school district could continue to discriminate with the assurance it would not lose state funding. This law and the interpretation accorded it, delayed desegregation.
When the Fourth Circuit Court of Appeals ordered the Darlington County schools desegregated in January 1970, the General Assembly passed a resolution attacking court decisions requiring students to be bused between communities to obtain racial balance. Dist. Exh. 336. Although state officials acceded to the court's order, they continued to express preference for freedom of choice plans, expressly rejected for Darlington County by the Fourth Circuit. Dist. Exh. 337. Parents of white children in Darlington County were assured by the highest ranking state officers that the State would not enforce its compulsory attendance law, and that enforcement of the law would be left up to the local school district. Dist. Exh. 339.
When violence erupted at Lamar High School in Darlington County, leading to the overturning of two school buses and national attention, the Governor closed the school until peace could be restored and ordered protection for persons and property in the area. Dist. Exh. 341 at 1. Despite these efforts by state officials to maintain peace, substantial federal law enforcement assistance was necessary.
The tide of desegregation resistance began to turn in 1971. South Carolina's new Governor called for an end to segregation. However, the State did little to bring about that result. Dist. Exh. 342; Dist. Exh. 343; Dist. Exh. 344; Dist. Exh. 346.
In summary, the court finds that beginning even before Brown I was decided, and continuing through the early 1970s, the State of South Carolina and its officials and departments deliberately defied their obligations to desegregate South Carolina's public schools, and instead took many actions to thwart desegregation.
c. The Activities of the Gressette Committee.
The court finds that the Gressette Committee was perhaps the most important element of South Carolina's resistance to desegregation. After Brown, the Gressette Committee lead the state's fight against desegregation. It worked closely with the Attorney General. Dist. Exh. 116; Dist. Exh. 117, It also worked with governors and state education officers. Dist. Exh. 126. It considered suggestions and proposals from individuals and groups within and outside the state, worked closely with school boards, and directed studies. Dist. Exh. 148; Dist. Exh. 149. It hired the services of educational consultants and a legal staff. As a consequence, every legislative recommendation it made was adopted into law. Dist. Exh. 167; Dist. Exh. 245.
In addition to its legislative activity, the Gressette Committee hired a six-lawyer legal staff to provide legal services to school boards to assist them in their efforts to preserve segregation. Dist. Exh. 150; Dist. Exh. 152; Dist. Exh. 161 at 20-A; Dist. Exh. 200. The Gressette Committee's legal staff represented school districts, including Darlington County, and state universities in the most significant desegregation cases of the era. Dist. Exh. 347; Dist. Exh. 355. When this action was filed in May 1962, Dist. Exh. 286, the Gressette Committee assigned an attorney from its legal staff to assist the District in its defense, without cost to the District. Dist. Exh. 349; Dist. Exh. 350; Dist. Exh. 351.
The Gressette Committee acted as a voice of the state. In a series of interim reports issued from 1954 until it was dissolved in 1966, the Committee chronicled the State's resistance to desegregation and counseled segregationists' future actions. Dist. Exh. 127; Dist. Exh. 176 at 8; Dist. Exh. 177; Dist. Exh. 178; Dist. Exh. 226; Dist. Exh. 246; Dist. Exh. 247 at 9.
The Gressette Committee met often with white citizens councils and other groups from other states. It was supported by the South Carolina Citizen's Council, which had as its objective the "peaceful preservation of segregated *1398 society." Dist. Exh. 194; Dist. Exh. 287.
In February 1961, Senator Gressette summarized the Committee's achievements to date, and reiterated South Carolina's stance against integration. In a speech, he stated that South Carolina was in an exceptionally strong position to resist integration in the public schools. He cited the elimination of the compulsory attendance provisions in the constitution and law, the broad powers of the school boards, and the law requiring closure of any schools forced to integrate. Dist. Exh. 273; Dist. Exh. 282; Dist. Exh. 294.
In 1966, the Gressette Committee was dissolved. Dist. Exh. 330, Dist. Exh. 353. However, in its final report, the Committee urged the continuing fight for state autonomy and against federal control. Dist. Exh. 331. South Carolina's schools continued to be largely segregated.
d. The State School Building Program.
The School Building program was South Carolina's main hope to preserve segregation. One official stated, "I believe the vast majority of Negroes in South Carolina would prefer to send their children to the splendid schools now being constructed for them. My hope is that the final decision of the Court will be such that our people will be able to find a way to live within the law of the land and still preserve our separate school system." Dist. Exh. 123 at 14. A chairman of the Gressette Committee wrote:
I think it is essential that the school building program go forward immediately so that these Trustees will have adequate school buildings with which to work. If we decline funds for a negro high school in a school district, the Trustees will have no alternative but to mix the children. If we provide the high school, the chances are that most of the negroes will prefer their children to go to this new school.
Dist. Exh. 348. Some saw the school equalization program as South Carolina's "only hope" to continue segregation. Dist. Exh. 169.
The State continued administering the school building and expansion program after Brown. In fact, after Brown, it modified its policies to more carefully locate proposed schools where they would logically serve a racially homogeneous community. Dist. Exh. 124 at 13. Thus, the State, over Brown's mandate condemning state-sponsored segregation of schools, deliberately continued to build new and segregated schools in racially segregated communities. Dist. Exh. 256 at 16. The court finds that the School Building program fostered the construction of school buildings intended to serve segregated communities, and thus spawned many of the "vestiges" existing today.
Millions of dollars were spent to build segregated schools after Brown. Such spending continued until at least 1964, and appropriations were made each year from 1954 to 1963 for the construction of segregated schools. Dist. Exh. 128 at 14; Dist. Exh. 154; Dist. Exh. 160; Dist. Exh. 162; Dist. Exh. 166; Dist. Exh. 173; Dist. Exh. 175; Dist. Exh. 181 at 7-8; Dist. Exh. 198; Dist. Exh. 199; Dist. Exh. 204; Dist. Exh. 217; Dist. Exh. 219; Dist. Exh. 228; Dist. Exh. 217; Dist. Exh. 235 at 5; Dist. Exh. 242 at 4; Dist. Exh. 256 at 16; Dist. Exh. 269 at 10; Dist. Exh. 277 at 13; Dist. Exh. 288; Dist. Exh. 300; Dist. Exh. 305 at 8-A; Dist. Exh. 311; Dist. Exh. 316; Dist. Exh. 318.
Because of this massive infusion of state funds into the educational system, no federal funds were sought or desired. In fact, the State did not qualify for the program of federal aid for school construction. Dist. Exh. 165. This served to entrench the pattern of building schools on a racially segregated basis, rather than on a desegregated basis, as would have been required under federal funding laws.
The impact of the state building program on Darlington County was dramatic. The following segregated schools were either built or significantly expanded from 1951 to 1963:
*1399
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Schools in the Dates of Page of
Darlington and Major Construction DCSD Survey,
Society Hill Area (From 1951-1963) Volume II
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Brockington Elementary 1953, 1956 p. 5,
Dist. Exh. 359
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Cain Elementary 1953 p. 5
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Pate Elementary 1956 p. 5
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Rosenwald Elementary 1952, 1954, 1967 p. 6
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Spring Elementary 1962 p. 6
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St. David 1957 p. 6
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Pine (B.A. Gary) Middle School 1963 p. 7
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Brunson-Dargan (Expansion) 1958 p. 8
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Mayo High School (Expansion 1954, 1956 p. 8
only)
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Rosenwald High School 1957 Dist. Exh. 219
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Schools in the
Hartsville Area
============================================================================
Antioch Elementary 1953 p. 10
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Sonavista 1952 p. 12
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Southside Elementary 1959, 1960 p. 12
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Washington Street Elementary 1962 p. 13
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West Hartsville Elementary 1956 p. 14
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Hartsville Senior High 1962 p. 16
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Schools in the
Lamar Area
=============================================================================
Lamar Elementary 1952 p. 17
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Spaulding Elementary 1953 p. 18
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Spaulding High 1954 p. 19
=============================================================================
Most of the schools built in Darlington County under the program were segregated black schools. Dist. Exh. 228.[24]
Several of these schools, namely, Brockington, North Hartsville, Washington Street, and West Hartsville Elementary Schools, B.A. Gary Middle School, and Mayo High School have proved difficult to desegregate, and are vestiges of the former dual school system. The vestiges of the dual school system that remain in these schools are directly traceable, in whole or in part, to the state building program. West Hartsville, B.A. Gary and Washington Street were built as segregated schools with state funds after segregated schools had been declared unconstitutional in the 1954 Brown I decision. Although Brockington school was built prior to Brown, it was built under a state program specifically designed to keep the schools segregated in the event the Brown case was decided adverse to the State of South Carolina. Mayo was built in 1944 as a segregated school, but was significantly expanded after the Brown decision using state funds.
The State Education Finance Commission (SEFC) was a state commission specifically created to encourage and pay for the construction of segregated schools in racially "homogeneous," i.e., racially segregated neighborhoods in the hopes that "separate but equal" schools could be maintained. The SEFC was created in anticipation of Brown, and, even after Brown, it continued to build or expand segregated schools in segregated neighborhoods.
As outlined above, the state played an unfortunate and important role in the building *1400 of these schools as segregated schools, even after Brown resolved that such state-sponsored construction violated the Constitution. The court thus holds that the State's actions in funding and requiring the construction of such schools in racially segregated neighborhoods and in identifying them as "black" or "white" schools not only created the segregated schools, but impeded their effective desegregation from 1970 to date. Because of the schools' locations in racially-segregated neighborhoods and their racial designation, the burden of desegregating these schools has been rendered more difficult. Indeed, the significant white "no shows" following the 1970 order were due, at least in part, to the historical racial identity and location of these schools, as well as the encouragement received from state officials. Accordingly the court finds that the failure of white students to enroll, and the continuing racial identity and locations of the schools, have had a significant impact on both the type and expense of the remedial action necessary today.
The court finds that the impact of state actions until 1970 was clear. From 1954 to 1963, no desegregation whatsoever occurred in South Carolina's schools. From 1963 to 1970, little desegregation took place. The court further finds that even after the February 1970 desegregation order was implemented in Darlington County, many schools remained racially identifiable because of their construction and location in racially-segregated neighborhoods under the auspices of the SEFC. In addition to the State's actions and laws to thwart desegregation, the District took its own actions to defer desegregation in Darlington County. The court finds that although officials actively resisted desegregation, the State's active encouragement reinforced the local resistance. As a result, it is appropriate that the State participate in the elimination of the dual school system created and perpetuated by it.
4. POST-1970 ERA AND DISCHARGE OF AFFIRMATIVE DUTY
a. Generally
Active forms of state resistance to school desegregation had largely ceased by the early 1970s.[25] However, the court finds that the State and its officials did little after 1970 to eliminate the remaining vestiges of the former dual school system, as was their duty. The evidence shows that the State has never promoted desegregation with anything approaching the degree of energy and involvement it brought to the mission of preserving segregation. For example, a South Carolina statute enacted to provide state funds for schools forced to desegregate, S.C.Code Ann. ง 21-2 (1962), was not repealed until 1972. 1972 S.C.Acts 1307. A law authorizing the investigation of the activities of the NAACP is still in effect today. S.C.Code Ann. ง 59-63-480 (Law Co-op.1976). Another law, currently in effect, which was designed to discourage "busing" desegregation remedies, prohibits the assignment of students on the basis of race "for the purpose of achieving equality in attendance or increased attendance or reduced attendance, at any school, of persons of one or more particular races." S.C.Code Ann. ง 59-63-50 (Law Co-op.1976). It also prohibits establishing school districts or attendance areas to achieve racial equality.
There is no evidence of any significant efforts by the State to encourage local districts, including Darlington County, to desegregate. Since 1954, there have been several major educational initiatives by the governors and the General Assembly to improve or restructure education in South Carolina. However, none of these programs provided any funding for desegregation programs or any incentives or directives for local districts to desegregate. TR VIII at 113, 120-123.
Accordingly, the State has not fulfilled its affirmative duty to encourage or promote desegregation or to encourage or assist local school districts in their efforts to eliminate the vestiges of the dual school system.
*1401 b. Education Finance Act
The Education Finance Act of 1977, S.C.Code Ann. ง 59-2-10 et seq. ("EFA"), is the primary vehicle for state funding of local school districts. Sweatman Dep. at 5-6. Funds under this program average 70% of the local school districts' total funds. Dist. Exh. 418 at 2; Nielsen Dep. at 19; Sweatman Dep. at 6. The EFA is an equalization program, or one that allots funds according to the wealth of the local school districts, with wealthier districts receiving less than 70% of their funding from the program, and poorer districts receiving more. See S.C.Code Ann. 59-20-30; Dist. Exh. 418 at 2-4; Sweatman Dep. at 6-7. Darlington County receives close to the average funding for the state.
The state funding formulas under EFA do not take into account needs relating to desegregation. Nielsen Dep. at 25. No funds are provided for magnet or other types of programs designed to encourage desegregation at the local or state level. Sweatman Dep. at 11-12, 16, 18. Therefore, the EFA will provide no additional funding for the Mayo magnet school or the other measures approved by the court.
c. Education Improvement Act
The other state finance law for school districts is the Education Improvement Act of 1984 ("EIA"). Regulations administering the EIA are established by the State Department of Education. State Regs. 43-202.1; Dist. Exh. 430. Under the EIA, funds are available to the school districts under about 24 sub-funds or strategies, allocated differently. See generally Dist. Exh. 418 at 5-32; Sweatman Dep. at 19-20. These funds are granted for specific programs. Sweatman Dep. at 20.
EIA funds go to the schools regardless of the desegregation status or efforts of the schools. Grier Dep. at 25; TR VIII 119. No EIA funds are specified for desegregation purposes. Nielsen Dep. at 25-26, 33. The only funds potentially available for desegregation purposes are grants from federal and specialty programs already available to the schools. Nielsen Dep. at 33-34, 36-38. A court-ordered magnet will not be eligible for additional funds from such existing programs. Nielsen Dep. at 38-39; see also Sweatman Dep. at 24-25.
d. State Board of Education and State Department of Education
The State Board of Education ("SBE") has authority to establish and enforce minimum standards for the operation of all phases of public school operations. Its powers and duties are set forth in S.C.Code Ann. ง 59-5-60 (Law Co-op.1976) and SBE Policy ABB, State Board of Education Powers and Duties, Dist. Exh. 388; Dist. Exh. 391. The powers and duties of the State Superintendent are set out in SBE Policy CEB, State Superintendent of Education โ Powers and Duties, Dist. Exh. 383. The SBE can enforce its standards by withholding state funds. Grier Dep. at 30-31; Nielsen Dep. at 19.
Neither the SBE nor the SDE it governs has a written policy on desegregation. Nunnery Dep. at 18; Coles Dep. at 21, 40; Nielsen Dep. at 20. In fact, during the mid-sixties, ten years after the Brown decisions, the SDE was segregated, and accredited schools on the basis of race. See, e.g., Dist. Exh. 373. Although a policy articulating a passive stance on desegregation was proposed in 1969, it was never adopted. Dist. Exh. 400. SBE Policy JAA, Equal Education Opportunity, Dist. Exh. 390, which is the only SBE policy concerning racial discrimination, does not articulate that the SBE encourages desegregation, or that it forbids or discourages discrimination. Rather, the policy is simply a description of existing federal law against discrimination.
Although the SBE and the SDE regulate local school districts in almost every area of their operations, they do not require the local school districts to have a policy against segregation. Nielsen Dep. at 23. Neither the SBE nor SDE has ever adopted any minimum standards for local school districts regarding desegregation. Dist. Exh. 384. In the SBE's Defined Minimum Program, there are no policies encouraging integration. Dist. Exh. 414. Although it has the power, the SBE has never adopted a policy forbidding local districts from discriminating on the basis of race as a condition for receiving state funds. Grier Dep. at 17. Nor do any *1402 provisions in the EFA or EIA predicate state funding on meeting minimum desegregation requirements. Indeed, the failure of a local district to desegregate does not appear to violate SBE policy. Grier Dep. at 26-27.
The SBE has not assumed any responsibility for desegregation. Grier Dep. at 32-33; Dist. Exh. 361; Dist. Exh. 362; Dist. Exh. 364. It considers desegregation a matter solely between the federal government and the local district with its role as an observer and facilitator only. Coles Dep. at 24; Nielsen Dep. at 14-16. Through the years, SBE has received various reports on desegregation from the local school districts. See Dist. Exh. 364; Dist. Exh. 365; Dist. Exh. 366; Dist. Exh. 367; Dist. Exh. 401-409; Dist. Exh. 412. However, it never acted on those reports. Busbee Dep. at 41-42; Dist. Exh. 405.
The SBE has provided no funds to assist a school district in desegregating. Grier Dep. at 24. No SDE employees are responsible for implementing or assisting desegregation in the school districts. Nielsen Dep. at 13-14. Moreover, despite heavy resistance and many years of delay by local school districts, no evidence exists that the SBE ever withheld funds from any local district for refusing to desegregate. See Coles Dep. at 26.
The SBE must approve all land acquisitions by school districts. Tudor Dep. at 7; Dist. Exh. 382. It has full authority to approve or veto the sites on which new schools are built. Tudor Dep. at 5-6; Stone Dep. of August 31, 1993 at 67. However, it does not consider desegregation a factor in the approval of new school sites. Tudor Dep. at 8-9; Dist. Exh. 382 at 2-3. Thus, when the District built a new St. John's High School in the mid-1970s and made additions to Mayo High School instead of consolidating the schools as a desegregation measure, the state did not consider the segregation impact and approved such building plans.
The SBE also provides incentive grants to local districts to encourage school consolidations, but does not consider, or condition receipt of state funds on, the segregative or desegregative impact of the consolidation. See Grier Dep. at 24, 26-27; Coles Dep. at 26; Dist. Exh. 410.
An Office of Technical Assistance ("OTA") within SBE was established in 1967 through a federal grant. It sponsored workshops and seminars throughout the state. The OTA, established in 1967, was the only state program on desegregation.[26] Busbee Dep. at 21-23; Richardson Dep. at 17-19. Busbee Dep. at 23; Nunnery Dep. at 9, 14, 25-27; Coles Dep. at 20-21, 26-28, 30-35; Richardson Dep. at 14-16. SDE budgets showing allocations for the OTA reflect that no state appropriations were ever made for "Special Items," the appropriations category "to provide technical assistance to local educational agencies for the implementation of desegregation plans." Dist. Exh. 358; Dist. Exh. 375-381.
Except for a few seminars and workshops, no evidence exists that the OTA did anything to encourage desegregation. Rather, the OTA may have existed to "soothe feelings." Busbee Dep. at 14. Further, OTA assistance was rendered only upon local district initiative. Nunnery Dep. at 11, 15. The OTA took the position that it was not its responsibility to encourage districts to comply with the law. Nunnery Dep. at 18, 23.
In summary, the court finds ample evidence that the State first created and then maintained a system of segregated schools for many years, even though state-sponsored segregation in education had been ruled unconstitutional in 1954. The court further finds that State has not fulfilled its affirmative duty to eliminate vestiges of the dual school system. This obligation remains unsatisfied with respect to a number of schools in Darlington County, and therefore, the State must participate with the District in remedying the vestiges of segregation.
B. MITIGATING FACTORS AFFECTING STATE LIABILITY
1. ACTIVE SEGREGATIVE PRACTICES OF DISTRICT PRIOR TO 1970
Although the court has found that the State is liable to participate with the *1403 District in remedying the vestiges of segregation, this liability is mitigated and reduced by significant acts and omissions of the District that have had a causative effect on segregated conditions in the District. Many of these acts and omissions occurred during a time in which the District had responsibility for desegregation of the formerly de jure school system, and an affirmative obligation to desegregate. Complaint on Cross-Claim at 7, งง 7 and 9; Consent Order (6/3/94).
The District operated completely segregated white and black schools in the 1950's and early 60's, until restrained from refusing to admit students on the basis of race by order of this court. State's Exh. 3-18 A; Order (7/13/64). Although the State approved the sites of those segregated schools and contributed money for their building, the District determined their sites, made the plans for the buildings and approved the construction contracts. State's Exh. 27 A; Busbee Dep. at 20; Stipulated Testimony as to Office of School Planning and Building.
One such building plan was the "new elementary negro school," Washington Street, in 1961-1962. State's Exh. 29 A. This school was discussed at the same Board meeting at which the Board voted to hire a lawyer regarding the unsuccessful attempt of plaintiffs in this case to transfer their children to the white elementary school, St. Johns. State's Exh. 29 A. During and following the 1950's and early 1960's the District built additions to historically-segregated schools, and renovated them repeatedly, particularly since 1970. State's Exhs. 27 B and 60.
Although this court ordered a plan for the desegregation of the District in 1970, the District admits that it did not fully comply with that Order. Consent Order (6/3/94). The District's continued resistance to desegregation after 1970 is discussed below.
2. DISTRICT'S ABILITY TO DESEGREGATE
Under South Carolina law, and according to testimony of the witnesses, the District has the power to assign students and faculty members, determine the sites of its schools, construct and maintain its buildings, determine how curriculum and instruction are delivered, determine its budget and set the necessary tax millage and otherwise operate its schools without review by another governmental body. S.C.Code Ann. ง 21-230 (1952); State's Exh. 21; S.C.Code Ann. ง 59-19-90 (Law Co-op.1976); Act No. 588, ง 5, 1992 S.C.Acts 3603. The District, after 1896, had power over students, faculty and buildings. 1896 S.C.Acts 150, State's Exh. 1 B. The 1964 Order in this case found that the County Board of Education had "the ultimate authority and responsibility to operate and maintain schools in Darlington." Order (7/13/64). The District's authority to assign students and faculty is exclusive. TR V at 151. The District is fiscally autonomous. Act No. 588, 1992 S.C.Acts 3603. It also has the authority to hold a bond referendum to raise its debt limit, or to enter a lease purchase arrangement without a referendum. TR. at 160. See also Caddell v. Lexington County School District No. 1, 296 S.C. 397, 373 S.E.2d 598 (1988).
Until 1993, the District never requested state assistance with desegregation. TR. I at 38, 40, 232; State's Exh. 47; Horsey Dep. at 11; Howell Dep. at 5. In 1993, after trial appeared imminent, assistance was sought. State's Exh. 48; TR. I at 97-99.
3. PRIMARY CAUSAL RESPONSIBILITY OF DISTRICT FOR "VESTIGES"
Dr. David Armor, the District's expert, considered Pate Elementary, Brockington Elementary, B.A. Gary Middle School, Mayo High, North Hartsville/Sonovista Elementary, Washington Street Elementary, West Hartsville, and Spaulding Elementary vestiges. TR. VI at 156-160. Thus, even under Dr. Armor's analysis, the District contributed causally to each of these vestiges.
Dr. Armor's conclusions were based on his opinion that these schools were either not designed to be integrated by the original desegregation order of 1970, or they became segregated immediately thereafter. TR. VI at 131. Clearly, he looked to what desegregation was projected under the 1970 order. TR. VI at 157; Dist. Exh. 75 A-O. The racial character of the student body was affected by the 1970 order and by demographic *1404 change afterward. TR. VI at 230-231. Therefore, if the plan did not attempt desegregation of a school, the school is a vestige.
As noted, Dr. Armor found Brockington, Gary, Mayo, Washington Street, West Hartsville, Pate, North Hartsville, and Spaulding to be vestiges. TR. VI at 162-163. See also Dist. Exhs. 75o, p, q, s, t and v. Dr. Armor used a plus or minus 20% variance standard from the district-wide proportions of black and white students TR. VI at 152. All of these schools would have been above that range.
The court finds that HEW Plan B would have desegregated Brockington and Gary, and would have had a greater desegregative effect at Mayo. Dist. Exhs. 68 and 75o, p & q. However, the District's plan, which modified HEW Plan B, used a system of historically white elementary schools as feeders for the historically white junior high and high school in the Town of Darlington whereas HEW Plan B used a mix of the historically one race schools as feeders. Although HEW Plan B would have had a more desegregative effect, no plan was proposed by the District that attempted to desegregate all of the schools, despite the order to desegregate: The court has weighed the fact that the State did not participate in the formulation of the 1970 Order, and that it is largely because of the 1970 Order that these schools remain vestiges.
The court finds that reasonable alternatives existed before now for the District to desegregate these schools, yet the District has failed to do so. For example, according to Dr. Armor's testimony, the reason that Pate is a vestige is that more whites showed up at the school after the 1970 order than had been anticipated, and the District could have rectified the error then but failed to do so. TR VI at 162-163.
According to Dr. Armor, Mayo was also a vestige in terms of the assignment of samerace principals to that school and in terms of the poor maintenance of the facility. TR. VI at 201-204. Principal assignments and maintenance were solely within the control of the District. This pattern of discrimination also affected other schools that were poorly maintained, such as Washington Street, and extends to other schools that always had principals of the same race as the race of the majority of the student body, such as St. Johns High, B.A. Gary, Southside, Brockington, Pate, West Hartsville, and Washington Street.
4. POST-1970 DISCRIMINATION BY DISTRICT
Until recently the District perpetuated a segregated system. Heatley Dep. at 6-8, 62-64, 66-68. Connie Hathorn, a principal of Mayo in 1989, and Joanne Smith, the Washington Street principal in 1989, also corroborate this pattern of recent segregation. Hathorn Dep. at 7, 12, 14, 57-59, 70-71; Smith Dep. at 8-9. Vance Kimbrell, the Personnel Director, testified about discriminatory hiring practices from 1980 to 1988. See Kimbrell Dep. at 59, 63, 65. The SACS Study, the Curriculum Audit, and the Strategic plan all identified desegregation needs in the late 1980's. Govt. Exh. 45 at 59-62, 103, 105 & 118; Govt. Exh. 46 at 160 & 161; Govt. Exh. 47, Part IV, Summary, and Govt. Exh. 48. Former Superintendents Grier and Cox also testified to problems related to desegregation in the District in the late 1980's and 1990's.
5. DISTRICT'S DISCRIMINATION IN STUDENT ASSIGNMENTS
Dr. Armor, the District's expert, testified that Brockington, Pate, Gary, Mayo, Washington Street, Spaulding Elementary, and other schools had never been desegregated. This testimony is supported by Dist. Exh. 75 A-O and by the enrollment data in Govt. Exh. 43. A comparison of the percentage black enrollment of the schools in the District in 1970-71, after the court-approved plan became effective, and in 1993-94, is shown as follows:
1970-71 1993-94
Brockington Elementary 92% 85%
Lamar Elementary 63% 50%
Pate Elementary 32% 30%
*1405
1970-71 1993-94
Southside Elementary 93% 80%
Spaulding Elementary 100% 97%
Washington Street Elementary 100% 100%
West Hartsville Elementary 24% 12%
Brunson-Dargan Junior High 38% 54%
B.A. Gary (Pine) Middle 88% 84%
Mayo High 95% 89%
St. Johns High 31% 50%
____________________________ _______ _______
District averages 55% 54%
Many of these schools are in close proximity to each other such as: Brockington and Pate (.9 miles) and Lamar and Spaulding (.7 miles). All of the schools in the Town of Darlington are within a two mile radius of each other. TR. IV at 57-58. The court finds that redrawing attendance lines would have promoted desegregation in these schools at no appreciable cost, but the District failed to do so. TR. VII at 55-57, 88-89.
Although the Country Club area is clearly in the Mayo zone, it was assigned to the St. John's High School zone. Govt. Exhs. 14, 18. Although the explanation was based on school bus transportation needs, school buses have not run into the Country Club area for two years. Govt. Exh. 18 A; TR. I at 136-137; State's Exh. 75. Dr. Grier testified that he was told not to pursue the matter of sending Country Club students to the correct school because parents would not tolerate their children being sent to Mayo. TR. I at 139. The District did not seek court approval to deviate from the 1970 Order in this regard.
Dr. Grier found a significant problem of white students attending schools out of their assigned zone in order to avoid attendance at predominantly black schools. TR. I at 116, 124-126; TR. II at 19-21. Dr. Cox's investigations corroborated out of zone violations and loose enforcement of zone lines. TR. II at 129, 144. Dr. Cox also believed that out of zone attendance was such a significant problem she undertook a personal investigation of the matter. TR. II at 125, 127.
6. DISTRICT'S DISCRIMINATION IN PRINCIPAL ASSIGNMENTS
Numerous schools in the District that are predominately or historically one race have never had a principal of another race. These schools include: Brockington, Brunson-Dargan, Cain, Gary, Lamar Elementary, Mayo, Pate, Southside, Spaulding Elementary, Springs, St. John's High, Washington Street, West Hartsville. Govt. Exh. 37. No reason exists why principals could not have been assigned without regard to race, but the District chose not do so. TR. IV at 32. The reason the District did not assign principals of different races to these schools was because of the concern of public reaction. TR. I at 199. Blacks were replaced with blacks and whites were replaced with whites because of community demands. Kimbrell Dep. at 59-60. In particular, Dr. Grier was told that he could not place a white principal at Mayo. TR. I at 162.
7. DISTRICT'S FAILURE TO COMPLY WITH 1970 ORDER
Faculty discrimination existed for years in Darlington County. Alvin Heatley testified about discrimination in the 1960's after the District was involved in this litigation. Heatley Dep. at 16. The District refused to adopt an affirmative action plan for faculty in the 1980's. Kimbrell Dep. at 63-65. When Dr. Grier came to the District in 1988, the District was not in compliance with the 1970 order as to faculty assignment. TR. I at 194-195. When he transferred teachers to try to bring the District into compliance, it "evoked the anger and discomfort of many Board members." TR. I at 195.
Mayo was above a 15% deviation in faculty from 1982-83 through 1991-92, although it had been in compliance in 1971-72. TR. IV at 37, 38; Govt. Exh. 39. Therefore, the District allowed Mayo to resegregate at least as far as the percentage of black faculty at *1406 the school. In 1986, Mayo had a 63% black faculty whereas St. Johns had a 29% black faculty. Govt. Ex. 39. Nevertheless, Dr. Grier and Dr. Hathorn were threatened with their jobs if more black faculty were moved out of Mayo. TR. II at 88-89.
When Dr. Grier came in 1988, B.A. Gary, Cain, Mayo, Rosenwald, and Spaulding Junior High were over 15% out of compliance with the 1970 Order. Govt. Exh. 39. In addition, using the 10% standard of the 1970 Order, Brockington, Carolina, Hartsville Career Center and Hartsville Junior High were also out of compliance. Govt. Exh. 39. Other than specialization considerations, no obstacle prevented the District from bringing faculty figures into compliance. TR. IV at 39-40. The District produced no evidence that specialization concerns justified the deviations in faculty ratios. Because the District bore sole responsibility for hiring of faculty and administration, it bears the responsibility for these violations. TR. VII at 89.
In addition to the problem of ratios in assignment of faculty, the quality of personnel was perceived as inferior at predominately black schools. Mayo, Washington Elementary, Cain and Spaulding Elementary were regarded as schools to which inferior or problem faculty were transferred. TR. I at 164; TR. II at 7; see also Curriculum Audit, Govt. Exh. 53 at 54. The Mayo faculty was not considered as good as that of other schools. Mitchell Dep. at 12, 41-43; Hathorn Dep. at 38-39, 44; TR. II at 190; TR. III at 82. Dr. Grier found teachers idle. TR. I at 156-157. Washington Elementary teachers were also considered deficient in quality between 1989-1991. Smith Dep. at 28-29. Nothing prevented the District from assigning higher quality personnel to these schools. TR. II at 191.
8. DISTRICT'S DISCRIMINATION IN CURRICULUM
The School Board had responsibility for determining how curriculum and instruction were delivered in the District. TR. I at 191, TR. VII at 89-90. Dr. Gordon testified that the curriculum enhancement in the Consent order was needed because of deficiencies in the past and stigmatization of predominately black schools. TR. IV at 74-75, 77. Before Dr. Grier came in 1988, black students did not receive the same educational opportunities as white students as far as books, supplies and expectations. See also TR. I at 155; Heatley Dep. at 51-54. Dr. Grier found that the curriculum was at an inadequate level for learning. TR. II at 17-18.
Problems in the predominantly black schools were significant. The Curriculum Audit found Mayo's curriculum to be inferior and found discrepancies in other schools as well. TR. I at 151; Govt. Exh. 45 at 13-14. Carolina had better programs than Washington Street when Joanne Smith was principal at Washington, which caused black students to transfer from Washington Street to Carolina. Smith Dep. at 30, 82. Instruction was poor at Washington Street, Cain and Spaulding Elementary when Dr. Grier came to the District. TR. II at 7. The B.A. Gary library and science areas were inferior to those at Brunson-Dargan, but Brunson-Dargan had poor physical education facilities. TR. IV at 40. St. Davids and Rosenwald did not have comparable equipment and materials to other schools. TR. at 76-77. Although remedial work was needed in some schools, it was not provided. TR. at 18. No reason was proffered why the District could not have addressed these deficiencies. TR. at 18.
Problems were especially acute at Mayo. Teachers were idle, and students were allowed to roam out of class. TR. I at 156, 164. Although Dr. Grier took some steps to improve the school's conditions, Dr. Cox, who arrived later, still found Mayo inferior with fewer course offerings. TR. I at 156-159; TR. II at 118-189. If quality programs had been provided at Mayo, some of the students might have followed and enrolled in those programs. TR. IV at 84.
These problems should not have existed. The curriculum and instruction should have been relatively uniform. TR. IV at 43. Nothing prevented the District from correcting or at least attempting to correct these disparities. Id.
9. DISTRICT'S DISCRIMINATION IN FACILITIES
Mayo had been neglected long before Dr. Grier came in 1988. See Heatley Dep. at 54-55. *1407 Dr. Grier found it to be an inferior facility with old books, lab and computer equipment lacking, and terrible facility conditions including doors ripped off lockers and bathroom stalls. TR. I at 130-131. Mr. Hathorn described his sad arrival at Mayo in 1989. Hathorn Dep. at 12-13.
Although Pate was painted twice by professionals, the citizens of black community painted Mayo. TR. I at 157-158.
Although Dr. Grier instituted some improvements, more was needed when he left. Dr. Cox found the predominately black schools to be significantly inferior. TR. II at 148. She described Mayo as being significantly inferior to St. Johns with "many, many needs that have either not been addressed by the District, or, if they were, the work was ... inferior...." TR. II at 148. Mayo remained substantially inferior in 1991-92, with the District's own expert, Dr. Armor, finding it not up to par and a "vestige." TR. III at 184-187; TR IV at 203-204; Mitchell Dep. at 40.
Dr. Cox made the maintenance department aware of Mayo's problems many times. TR. II at 149. Nevertheless, predominately black schools received less maintenance attention. Id. at 146. In addition to Mayo, Washington Street Elementary had poor conditions in 1989. Smith Dep. at 59-61. Nothing prevented equal maintenance of Mayo and other facilities. TR I at 143, 192; TR. II at 150-152.
In addition to allowing maintenance problems to persist, the District misused the capacity at the schools. Portable classrooms were used at predominantly white schools even though excess capacity existed at nearby predominantly black schools. Govt. Exh. 81; TR. IV at 43, 46-51, 57. Great disparities in capacity existed between historically black and historically white schools. Govt. Exh. 81. Adjustments in attendance lines could have been made to eliminate those situations. TR. IV at 51. Brockington, for example, had empty classes, and a one million dollar addition to nearby Pate, in 1993 would have been unnecessary if lines had been adjusted or a pairing had been made with Brockington. TR. II at 35, 220; State's Exh. 60. The District did not consider alternatives to the Pate construction. Deloach Dep. at 23. Similarly, Washington Street had vacant rooms in 1989 even though it had undergone a $755,000 addition in 1988. Smith Dep. at 31; State's Exh. 60.
Deputy Superintendent Stone could not explain the discrepancies between the schools in terms of undercapacities at predominantly black schools and overcapacities at predominantly white schools. Dr. Gordon testified that most principals prefer to operate at 90% capacity. Six of the seven predominantly black elementary schools were at less than 90% capacity. TR. IV at 48; Govt. Exh. 81.
10. DISTRICT'S PRIMARY RESPONSIBILITY FOR STIGMATIZING EFFECT
The effect of these acts and omissions of the District as to students, faculty, principals, curriculum and facilities was to stigmatize the predominantly black schools as inferior. Dr. Gordon testified that Mayo had been systematically stigmatized as an inferior black school. TR. III at 130. Stigmatization occurred through the proposal of the modified HEW Plan B line which indicated that Mayo was a black school for black children, by the assignment of black principals, black staff and black faculty to Mayo, by the assignment of Country Club students residing in the Mayo zone to St. Johns, and by the poor maintenance of the school. TR. III at 181-187; see also TR II at 191-193. Further stigmatization resulted from not assigning students to utilize excess capacity at predominantly black schools, thus indicating that those schools were not schools for whites. TR. IV at 51. Differences in curriculum and instruction also had a stigmatizing effect. TR. IV at 42-43. The assignment of principals to schools where the majority of the student body was of the same race as the principal also stigmatized black schools. TR. IV at 31-32.
The condition of the schools had an adverse impact upon the students. TR. II at 160-161. No reason was offered why the District could not have made improvements earlier. The perception in the community was that the white schools were better. Heatley Dep. at 89.
*1408 11. DISTRICT'S HISTORICAL RESISTANCE TO EFFORTS TO DESEGREGATE
In 1976, the District was asked by black citizens to build a consolidated high school in a centrally located area in the Town of Darlington, which would serve the entire town. The school was to be named Darlington High School. State's Exh. 27-B, 60 and 71. Even though this measure would have had a desegregative effect, the Board did not implement it. Id.; TR. IV at 53. Instead, the Board spent high school construction money on building a new St. Johns High School near the campus of Spring Elementary on the North side of town and spent over a million dollars on additions or renovations at Mayo in 1976 and 1987. Govt. Exh. 14; State's Exh. 60. Had the Board implemented the proposal of the black citizens in 1976, the Mayo and St. John's relief being approved and ordered would not be necessary today.
In 1977, the Survey Section of the Department of Education performed a study of the school facilities in the District at the District's request. Richardson Dep. at 32, State's Exh. 78; State's Exh. 43. The Survey Section was told that the District was satisfied with the desegregation order and that it did not want to make any changes. Id. Had the District wanted such advice, the Survey Section could have told it how it could have used its schools for desegregative purposes. Id. In fact, the Survey Section had advised another District how it could combine its two high schools into a single facility with a desegregative effect. Id.
The SACS Study (Southern Association of Colleges and Schools) in 1989 found that ethnic composition of the District's schools impeded the District's educational objectives and that the student population in each school was not representative of the entire District. Govt.Exh. 48, Part IV; TR. I at 202. The Board rejected those comments in the report. TR. I at 203. The 1988 Curriculum Audit made similar findings regarding segregation in the District, but the Board did nothing. Government Exh. 45; TR. I at 204. The Board did not adopt the measures in the audit's Strategic Plan for 1990-95, which called for pairings of numerous schools. State's Exh. 54; TR. II at 22-23. The reason that the Board did not adopt those measures was because it did not want to upset the community. Id.
The Board also rejected a number of additional desegregation measures, including the pairing of Carolina and Washington Street, suggested pairings and consolidations by Board member Stanton, and the Lamar/Spaulding pairing suggested by a Board member. TR. II at 42-43, 222-223. The District took no action on a proposed "Padaiae" magnet, and told Dr. Cox that the "choice" schools proposed by her that would have had a desegregative effect could not be discussed. TR. II at 225-227. Dr. Grier was directed not to do any further work regarding pairings.
The court finds no reason why the District could not have desegregated or consolidated the schools earlier to have achieved a better student population balance. TR. II at 231. No reason exists why faculty and principals could not have been assigned without regard to race. TR. II at 231. No reason exists why the District could not have improved curriculum and facilities at Mayo. TR. II at 214-215. Because of the District's failure to undertake these measures, and its systematic discriminatory assignment of students, faculty and principals, with poor maintenance of facilities and curriculum, the court finds that the District was the chief actor responsible for perpetuating and maintaining segregation in the District following the 1970 Order.
C. CONCLUSIONS OF LAW ON STATE LIABILITY
As stated above, until 1954 and for many years thereafter, the State of South Carolina required local school districts to segregate their students by race. Prior to 1954, the State purported to justify its dual system under the "separate but equal" doctrine enunciated in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), even though the State knew that the educational opportunities afforded to black children in South Carolina were grossly inferior to those of white children.
*1409 In 1954, the Supreme Court held in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) ("Brown I"), that state-sponsored segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment, even if the physical facilities and all other tangible factors were equal (which they were not in South Carolina). Id. at 493, 74 S. Ct. at 691. The following year the Supreme Court held that segregated school systems must be converted to nondiscriminatory school systems "with all deliberate speed" and "at the earliest practicable date." Brown v. Board of Educ., 349 U.S. 294, 300-301, 75 S. Ct. 753, 756-57, 99 L. Ed. 1083 (1955) ("Brown II").
Since that time, school desegregation litigation has passed through various stages or phases. The first concern was eliminating the physical separation of the races in public schools. See Georgia State Conference of Branches of NAACP v. Georgia, 570 F. Supp. 314, 318 (S.D.Ga.1983). It was thought that effective school desegregation could be accomplished simply by ordering local school systems to stop operating separate schools.
In 1968, however, the duty to desegregate broadened considerably when the Supreme Court held in Green v. County School Board, 391 U.S. 430, 437-38, 88 S. Ct. 1689, 1693-94, 20 L. Ed. 2d 716 (1968), that school officials were "charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green required school officials not only to stop current discrimination, but also to eliminate all "vestiges" of the dual school system. Id. at 439, 88 S. Ct. at 1694-95. Three years later, in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S. Ct. 1267, 1275-76, 28 L. Ed. 2d 554 (1971), the Supreme Court again stressed the affirmative duty to eliminate "vestiges" and authorized courts to impose a wide range of remedies, including busing, pairing and clustering, in order to ensure that complete desegregation would be accomplished. At the time of Green, South Carolina's public schools, including Darlington County, were still largely segregated.
Green and Swann ushered in the next generation of school desegregation cases. During this phase, courts began imposing more sophisticated remedies designed to eliminate the pervasive and deep-seated effects of past segregation. The efforts to eliminate "vestiges" led courts to examine state policies and conduct, which often played a significant role in perpetuating segregated schools even after Brown, and to hold states liable to share in the task of desegregating local school districts.
In one of the first state liability cases, Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977) ("Milliken II"), the Supreme Court upheld a remedial order requiring Michigan officials to pay one-half the costs of the "Milliken II" desegregation measures implemented in the Detroit School System. Since that time, numerous courts have required states to participate with local school districts in eliminating the vestiges of de jure segregation. These cases represent a "third generation" of school desegregation litigation in which states have been required to contribute substantial resources to local desegregation remedies.
Thus, in Jenkins v. Missouri, 639 F. Supp. 19, 23-24 (W.D.Mo.1985), aff'd in relevant part, 807 F.2d 657 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S. Ct. 70, 98 L. Ed. 2d 34 (1987), the court held the State of Missouri liable for extensive remedial measures, holding:
Since the minority students in the KCMSD are the victims of racial discrimination which was mandated by the Constitution and statutes of the State of Missouri, it is only equitable to place the burden of removing the vestiges of such discrimination and the continuing effects on the State rather than on those who are the victims.
In an earlier case, the State of Missouri had been held liable and ordered to share in the costs of desegregation remedies in St. Louis. In Liddell v. Board of Education, 491 F. Supp. 351, 359 (E.D.Mo.1980), aff'd, 667 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1091, 102 S. Ct. 656, 70 L. Ed. 2d 629 (1981), the court held that the affirmative duty enunciated in Green applied with equal force against states that formerly imposed a dual *1410 system of racially segregated education on local school systems. The court held:
A state, ..., which has in the past operated a racially dual system of public education, pursuant to state constitutional and statutory requirements, is and has been since 1954, under an additional constitutional obligation to take such affirmative measures as are necessary to disestablish that dual system and eliminate the continuing vestiges of that system.
491 F.Supp. at 359.[27]
The State of Ohio was also held liable to fund local desegregation costs, even though Ohio never mandated a dual school system. Nevertheless, in both Columbus and Cleveland, the state was held liable based on its conscious tolerance of local school segregation in the face of a constitutional duty to eliminate racial discrimination in Ohio's schools. Penick v. Columbus Bd. of Educ., 663 F.2d 24 (6th Cir.1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1713, 72 L. Ed. 2d 135 (1982); Reed v. Rhodes, 500 F. Supp. 404, 425 (N.D.Ohio 1980), aff'd, 662 F.2d 1219 (6th Cir.1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1713, 72 L. Ed. 2d 135 (1982).
More recently, the States of Arkansas and Georgia have been held liable to participate in local desegregation remedies in Little Rock and Savannah on the basis of state actions similar to those found by the court in this case. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 778 F.2d 404, 435-436 (8th Cir.1985), cert. denied, 476 U.S. 1186, 106 S. Ct. 2926, 91 L. Ed. 2d 554 (1986); Board of Educ. for City of Savannah and County of Chatham v. Georgia, No. 490-101, 1992 WL 699499 (S.D.Ga.Order dated August 11, 1992, appeal docketed, No. 93-9201 (11th Cir. Oct. 7, 1993).
These cases are consistent with precedent in this circuit. Although the states of Virginia and South Carolina were dismissed as defendants in two prior cases, they were dismissed only after a finding that the local school district had achieved unitary status. See School Bd. v. Baliles, 829 F.2d 1308 (4th Cir.1987) (Virginia); United States v. Charleston County Sch. Dist., 960 F.2d 1227 (4th Cir.1992) (South Carolina). In Baliles the court, based on its earlier 1972 ruling affirming state liability, found though that by 1987 the state had "adequately discharged its constitutional obligation." 829 F.2d at 1303.
The cases on which the State relies to avoid liability are instructive. United States v. Texas Educ. Agency, 790 F.2d 1262 (5th Cir.1986), cert. denied, 479 U.S. 1030, 107 S. Ct. 874, 93 L. Ed. 2d 828 (1987), involved a local system's attempt to recoup from the State of Texas monies expended between 1977 and 1984 for school desegregation measures that the local district had been ordered to implement in a long-standing desegregation case. Although the state had been a nominal defendant in the school desegregation case since 1970, no court had ever ruled upon its liability. Therefore, when the local school district in 1984 filed a "Motion to Divide Costs" between it and the state, the district court properly denied the motion and the Fifth Circuit affirmed on the ground that the state's liability had never been established. Distinguishing Milliken II, the Fifth Circuit noted that the state's liability in Milliken II had already been resolved adversely to the state at an earlier stage in the proceedings. 790 F.2d at 1264.
In the present action, the District has taken the crucial step of joining the state defendants and seeking to have the State's liability determined during this litigation. In addition, the District does not seek recoupment of any past costs.
*1411 Kelley v. Metropolitan County Board of Education, 836 F.2d 986 (6th Cir.1987), cert. denied, 487 U.S. 1206, 108 S. Ct. 2848, 101 L. Ed. 2d 885 (1988), rev'g 615 F. Supp. 1139 (M.D.Tenn.1985), is also distinguishable because the District here seeks no past costs, the primary issue in Kelley. To the extent Kelley purports to preclude state liability for prospective remedial measures, the court concludes that it was wrongly decided, a conclusion reached by several other courts. See, e.g., Board of Pub. Educ. v. Georgia, No. CV 490-101, slip op. at 8 (S.D.Ga. Sept. 24, 1990) ("This Court does not find the Sixth Circuit's reasoning persuasive"); San Francisco NAACP v. San Francisco Unified Sch. Dist., 695 F. Supp. 1033, 1043 (N.D.Cal.) ("The legal reasoning in Kelley is not persuasive"), rev'd on other grounds, 896 F.2d 412 (9th Cir.1990). The Sixth Circuit in Kelley erred by ignoring the state's separate and independent affirmative duty to eliminate the vestiges of state-imposed segregation and by improperly viewing the state's unfulfilled obligations as merely a past violation with no current or continuing significance. In this case, however, the court finds that the State is itself under an affirmative duty, separate and apart from the duty of the District, and that its past actions have continuing significance in the form of vestiges of the former dual school system caused, at least in part, by such state actions.
As with local school officials, the affirmative duty imposed on states that previously practiced de jure school segregation is derived from the Equal Protection Clause of the Fourteenth Amendment, as well as two federal statutes, EEOA and Title VI. The EEOA prohibits educational agencies from denying an equal educational opportunity to any individual on account of race. 20 U.S.C. งง 1701 et seq. The denial of equal educational opportunity is expressly defined to include:
the failure of an educational agency which has formerly practiced ... deliberate segregation to take affirmative steps ... to remove the vestiges of a dual school system.
20 U.S.C. ง 1703(b) (emphasis added).[28] The State, the State Board of Education, the State Department of Education, and the State Superintendent of Education all fall within the definition of "educational agencies" subject to the affirmative duty mandated by the EEOA. 20 U.S.C. ง 1720(a); 20 U.S.C. ง 2891(23).
Title VI, which prohibits discrimination on the basis of race under any program or activity receiving federal financial assistance, also imposes an affirmative duty upon recipients of federal funds who have a history of de jure discrimination.[29] 42 U.S.C. ง 2000d et seq. The Title VI regulations, which have the force and effect of law, require affirmative action, as follows:
In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
34 C.F.R. ง 100.3(b)(6) (emphasis added). Because the State of South Carolina, the State Board of Education and the State Department of Education are all recipients of federal funds for educational purposes and have a history of de jure discrimination, they are all subject to the affirmative duty imposed under Title VI.
A state cannot satisfy its constitutional obligations by merely ceasing its discriminatory activities. Dayton Bd. of Educ. *1412 v. Brinkman, 443 U.S. 526, 538, 99 S. Ct. 2971, 2979, 61 L. Ed. 2d 720 (1979) ("Dayton II"). In the face of an affirmative duty to desegregate, the state must "actively set out to dismantle the dual system." Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 461, 99 S. Ct. 2941, 2948, 61 L. Ed. 2d 666 (1979).
Where state officials have "abdicated their affirmative remedial duty," that failure to act, in and of itself, is a constitutional violation. Liddell v. Board of Educ., 491 F.Supp. at 359; accord Penick, 443 U.S. at 459, 99 S. Ct. at 2947. In other words, inaction in the face of an affirmative duty to act violates the Fourteenth Amendment. Milliken II, 433 U.S. at 267, 97 S. Ct. at 2750-51; see also Geier v. University of Tennessee, 597 F.2d 1056, 1067 (6th Cir.) ("The Constitution can be violated by inaction as well as by deeds."), cert. denied, 444 U.S. 886, 100 S. Ct. 180, 62 L. Ed. 2d 117 (1979); Reed v. Rhodes, 500 F. Supp. 404, 424 (N.D.Ohio 1980) (failure to demand compliance with state law prohibiting discrimination violated Fourteenth Amendment), aff'd, 662 F.2d 1219 (6th Cir. 1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1713, 72 L. Ed. 2d 135 (1982). Furthermore, "[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment." Penick, 443 U.S. at 459, 99 S. Ct. at 2947.
Part of the affirmative duty imposed on state officials includes the obligation not to take any action that impedes local efforts to disestablish the dual system. Dayton II, 443 U.S. at 538, 99 S. Ct. at 2979. State conduct that impedes local efforts to desegregate or which otherwise makes desegregation more difficult constitutes an additional basis for finding a constitutional violation, even if that conduct is undertaken for nondiscriminatory reasons. Penick, 443 U.S. at 464, 99 S. Ct. at 2950. Where officials have previously operated a dual school system, their actions must be judged according to whether they hinder or further desegregation; the test is the effectiveness, not the purpose, of their actions. Wright v. Council of Emporia, 407 U.S. 451, 462, 92 S. Ct. 2196, 2203, 33 L. Ed. 2d 51 (1972). Thus, post-Brown actions that have the effect of increasing or perpetuating segregation constitute a violation of the affirmative duty. Id.
To make out a prima facie case of State liability for the vestiges, the District was required to prove that South Carolina's public schools were racially segregated by law at the time of Brown I (which requires little proof because that is a matter of undisputed historical fact) and that current conditions within the District continue to require desegregation remedies. Once this required showing is made, a presumption arises that these present conditions are causally related to the former dual school system. The State then has the burden of proving that those conditions are not the result of the former state-imposed dual system or other state-level discrimination. Dayton II, 443 U.S. at 537, 99 S. Ct. at 2979; Brown v. Board of Educ., 892 F.2d 851 (10th Cir.1989). To meet this burden, the State must "show that the current segregation is in no way the result of [the state's] past segregative actions." Keyes v. School Dist. No. 1, 413 U.S. 189, 211 n. 17, 93 S. Ct. 2686, 2699 n. 17, 37 L. Ed. 2d 548 (1973). If the causal connection does exist, then "[t]he remoteness in time of the school authorities' intentionally discriminatory actions is irrelevant." Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d 945, 951 (11th Cir.1989).
If the conditions that are "vestiges" are causally related to the state's former dual school system or other past intentional discrimination by the State, then the District need not prove that the State presently intends to discriminate.[30]Id.; Georgia State Conference of Branches of NAACP v. Georgia, 570 F. Supp. 314, 317 (S.D.Ga.1983); Anderson v. Banks, 520 F. Supp. 472, 500 (S.D.Ga.1981). When present conditions are causally related to past intentional discrimination, *1413 "a present constitutional violation is established without proof or finding that the former de jure segregation was intentional, for it is so as a matter of law, and the fact that the school authorities may more recently have acted in good faith and had no segregative or discriminatory intent is not dispositive of whether an existing constitutional violation is present." Price v. Denison Indep. Sch. Dist., 694 F.2d 334, 378 (5th Cir.1982). "[I]n the presence of an unsatisfied duty to abolish a dual system, the test is the effectiveness, not the purpose of actions in increasing or decreasing the segregation caused by the dual system." Anderson, 520 F.Supp. at 500. Thus, "if present facially neutral actions serve to perpetuate past intentional discrimination, there is no requirement that intent be proved again." Id.
In the present case, the existence of the former de jure dual school system supplies the necessary element of intentional discrimination and gives rise to the affirmative duty to eliminate all vestiges of the dual system. That duty remains in effect as long as any of the current segregative conditions in the District can be shown to be causally related to the former dual school system. Georgia Branches, 570 F.Supp. at 326. In establishing this causal connection, the state's inaction in the face of its affirmative duty to assist with desegregation may be used "to trace the current, system-wide segregation back to the purposefully dual system of the 1950's." Dayton II, 443 U.S. at 541, 99 S. Ct. at 2981.
In this case, the court has found that vestiges of the former dual school system created and maintained by the State remain in Darlington County. However, the State denies responsibility for the current vestiges in Darlington County, contending that (1) the District had the means itself to desegregate without state assistance; and (2) the effects of any pretrial-1970 state actions were superseded by the post-1970 discriminatory acts of the District, which effectively severed any "causal link" to segregation caused by the State.
With respect to Mayo, the court has found post-1970 actions and inactions by the District which served to "stigmatize" Mayo. However, the court is unconvinced that, absent such District actions and inactions, Mayo would now be a desegregated school. The State argues that the link to pretrial-1970 segregation would have been broken, but for the post-1970 actions and inactions of the District. However, the State introduced no evidence to support this argument. In fact, the evidence was just the opposite and was unchallenged by anyone. Dr. David Armor, an expert in desegregation matters called by the District, testified that in his opinion the instances of non-compliance by the District alleged by the State would not have significantly changed the racial makeup of the school. TR. VI at 116-120. Dr. Armor testified that under the 1970 plan proposed by the District, Mayo was left a predominantly black school. Id. at 116-134; Dist. Exh. 75.[31] Proper assignment of the children from the Country Club area would have increased the white enrollment at Mayo by only about three percent, assuming they all showed up, which still would have left Mayo a predominantly black school. TR. VI at 120-121. Even if the District had pursued a more racially balanced faculty at Mayo after 1970, it was Dr. Armor's opinion, and this court agrees, that this would not have changed the essential racial makeup of the school. Id. at 128-134. Thus, while the court finds that the District's actions and inactions had significant negative impact on Mayo's status, the court rejects the State's argument that Mayo would have ceased to be a vestige but for the District's actions. Even if such actions had not taken place and HEW Plan B had been faithfully followed in every respect, this court concludes that Mayo would still be a vestige of the former dual school system and in need of a remedy today.[32] Therefore, the causal link to the pretrial-1970 *1414 dual school system created and fostered by the State has not been broken. TR. VI at 161-163.
D. CONCLUSIONS OF LAW ON MITIGATING CIRCUMSTANCES
Although the court has concluded above that the State has liability, school districts have the primary responsibility for school desegregation. Brown v. Board of Education (Brown II), 349 U.S. 294, 299, 75 S. Ct. 753, 755-56, 99 L. Ed. 1083 (1955). In South Carolina, school districts were recognized as "one of our most important political subdivisions." Patrick v. Maybank, 198 S.C. 262, 17 S.E.2d 530 (1941). School districts have had power over pupils, faculty and buildings since at least the Nineteenth Century, as indicated by the provisions of Act No. 63, 1896 S.C.Acts 150 (State's Exh. 1-B). Under these powers, the school districts built the schools, assigned the students, and hired the teachers. These powers were not curtailed before Brown v. Board of Education (Brown I), 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). See e.g. S.C.Ann.Code ง 21-230, (1952) (State's Exh. 21); see also State's Exh. 3-21 e. Although the court has found that the State School Building Program, see Section IX.A.3.d., infra, further entrenched the de jure system into South Carolina public education, the State's efforts were substantially aided and promoted by local District cooperation. One witness, Cyril Busbee, a District superintendent from the 1930's until 1967 and State Superintendent from 1967 to 1979, testified that school districts were "totally independent" from the state and determined the sites for school buildings long before Brown. The court does not agree totally with Busbee's characterization of the State's non-involvement based on the evidence of joint State-District cooperation in the School Building Program. Such testimony does, however, emphasize that the District had primary responsibility for site selection.
The school districts "that existed at the time of Brown I and Brown II were the primary units for pupil and teacher assignment. ..." United States v. Charleston County School District, 738 F. Supp. 1513, 1536 (D.S.C.1990); aff'd in part, 960 F.2d 1227 (4th Cir.1992). The District continued to choose school sites throughout the 1950's, 1960's and 1970's. The State exercised some control as to site selection, purportedly on the grounds of safety, size and later convenience of the school. State's Exhs. 3-21 e, Minutes, Darlington County Board of Education; see State's Exhs. 24-27; Stipulated Testimony as to Office of School Planning and Building. The court thus finds, based on all of the evidence in this case, that the State and the District jointly exercised responsibility as to site selection.
The District possesses the power to operate the schools. Where students actually attend school within the District is generally a matter to be determined by that school district. See Section IX.A.3.b., infra. Section 59-19-90(9) of the South Carolina Code states that "the Board of Trustees shall ... (9) ... transfer any pupil from one school to another so as to promote the best interest of education, and determine the school within its district in which any pupil shall enroll;" (emphasis added).[33] The District has exclusive control over principals and faculty. S.C.Code Ann. ง 59-19-90(2). The District also has the authority to provide for school buildings, and the authority to issue bonds for that purpose. S.C.Code Ann. ง 59-19-90(1); S.C. Const. art. X, ง 15 and Act No. 588, 1992 S.C.Acts 3603. The District has the power to acquire supplies and equipment, which it is to maintain in good repair. *1415 S.C.Code Ann. งง 59-19-130 and 59-19-150. The District is fiscally autonomous and has full authority to provide for its operating expenses. S.C.Code Ann. งง 59-19-10, 59-19-90(5) and (7), and Act No. 588, S.C.Acts 3603, ง 5. See discussion of state funding at IX.A.4.b., infra.
The District has, by entering into the Consent Order, admitted continuing liability. In the earlier order of July 11, 1964, Judge Martin found that the District was "completely segregated." The court further found that the District had denied the applications to transfer of five plaintiffs from "negro schools" to white schools. In a 1970 order, Judge Martin ordered that pupil assignments be based "upon proposal B submitted by HEW with the specifications and details as provided by the Darlington County School Board ..." and that the faculty be integrated so as to approximate the ratio of black and white faculty members throughout the system. Segregation or discrimination was barred in academic curricula or in a school facility or program. The school board was given responsibility for administrative problems arising from implementation of the plan. Therefore, the District, as well as the State, has had historic responsibility for segregation in the District.
The District failed to comply with the 1970 order in terms of pupil assignments, faculty and other programs. Although the 1970 order was inadequate to desegregate the student bodies of the schools included in the proposed Consent Order under the plus or minus 20% standard, the District exacerbated the situation by moving the Country Club students out of the Mayo zone and not enforcing proper attendance of out of zone students. Faculty ratios were out of balance on a number of occasions. Principal assignments were made on a racial basis so as to have student bodies and principals of the same race. These problems are all violations of the 1970 order and were matters entirely within District's control. In addition, the predominantly black schools, particularly Mayo, had inferior facilities, curriculum and instruction.
The District has repeatedly taken steps to thwart further desegregation in the District despite notice of the need to do so and requests to do so in numerous reports from officials and community members. Although this court does not find that the acts and omissions of the District completely vitiate the State's liability, the court concludes that the actions and inaction of the District contributed most significantly as a cause of the continuing vestiges of the dual system in the District. In other words, the District's acts and omissions have had the most significant causal association with the current segregation existing in the District. See Dayton, 443 U.S. 526, 538, 99 S. Ct. 2971, 2979 (1979); Brown v. Board of Education of Topeka, 892 F.2d 851, 877 (10th Cir.1989). This conduct of the District thus mitigates the extent of the State's liability for segregation now existing. As stated in Board of Public Education for City of Savannah and County of Chatham v. State of Georgia, Op. No. CV 490-101, 1992 WL 322299 (N.D.Ga. October 16, 1992):
[t]he State could have used its influence to encourage desegregation after Brown, but real change would have had to come from the School Board, elected by the local community. Without local action, change could come only by Court Order. Accordingly, the Court holds that the responsibility for the vestiges of the dual system rests primarily with the School Board.
Order at 4.
Therefore, this court finds that the primary responsibility for the present vestiges rests with the District. As in Savannah, this court will require the State to contribute 15% of the cost of the desegregation plan contained in the Consent Order and this court's order, with the exception of 100% of the transportation costs which have historically been the responsibility of the State.
X. APPORTIONMENT OF COSTS BETWEEN SCHOOL DISTRICT AND STATE
A. GENERALLY
The court has found that vestiges exist of the former dual school system. These vestiges are traceable to the State's creation of the dual school system and its failure to *1416 discharge its affirmative duty to eradicate those vestiges in Darlington County. Given these factors, the court concludes it is appropriate for the State to participate financially and otherwise in certain desegregation measures. Although the District's actions in failing to pursue and promote desegregation, and in failing to seek approval for deviation from the 1970 Order are substantial, those actions do not exonerate the State from liability for its own unlawful actions and inactions. Liddell v. Board of Educ., 667 F.2d 643 (8th Cir.) (state and local boards jointly and severally liable), cert. denied 454 U.S. 1091, 102 S. Ct. 656, 70 L. Ed. 2d 629 (1981).
Because the State actively participated in creating, maintaining, and perpetuating a dual school system, the District and its taxpayers should not alone be obligated to bear the entire burden of remedying the effects of state-imposed segregation. The State is jointly responsible for the problem, and is jointly liable for the remedy.
Apportionment of liability on the State has been effected in several cases. See, e.g., Milliken II, 433 U.S. at 289, 97 S. Ct. at 2761-62; Jenkins v. Missouri, 639 F. Supp. 19 (W.D.Mo.1985), aff'd in relevant part, 807 F.2d 657 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S. Ct. 70, 98 L. Ed. 2d 34 (1987); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 778 F.2d 404, 435-36 (8th Cir. 1985), cert. denied, 476 U.S. 1186, 106 S. Ct. 2926, 91 L. Ed. 2d 554 (1986); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d 1296, 1307 (8th Cir.), cert. denied, 488 U.S. 869, 109 S. Ct. 177, 102 L. Ed. 2d 146 (1988); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert. denied, 469 U.S. 816, 105 S. Ct. 82, 83 L. Ed. 2d 30 (1984); United States v. Board of Sch. Comm'rs, 677 F.2d 1185 (7th Cir.), cert. denied, 459 U.S. 1086, 103 S. Ct. 568, 74 L. Ed. 2d 931 (1982).
The key factor applied in apportioning liability on the State is its prominence in education in the state. See Brown v. Board of Educ., 892 F.2d 851, 888 n. 102 (10th Cir.1989), vacated, 503 U.S. 978, 112 S. Ct. 1657, 118 L. Ed. 2d 381 (1992); Liddell v. Board of Educ., 667 F.2d 643 (8th Cir.1981). As noted above in section IX. A., South Carolina exerts significant control over the local school systems.[34] In fact, in several important respects, South Carolina's role has been more prominent than that in other states which have been held liable for desegregation costs. In South Carolina, for example, the State owns and operates the bus system which transports students to and from school. The State owns the buses and maintenance facilities; state employees maintain the buses, and the State pays bus driver salaries, the costs of fuel and other operational costs.
The State was jointly responsible for building most of the schools which today represent vestiges of the dual school system. The State's efforts in the School Building Program were described fully in section IX.A.3. The State embarked upon a massive building program in the 1950's and 1960's to build segregated schools specifically designated for black or white students. If it had not been for this effort by the State and the District to build segregated schools, even many years after such schools had been declared illegal, Darlington County would not be facing the problems it faces today. Of the schools which the court has found to be vestiges, most were either built or significantly expanded through the auspices of the SEFC.
The relief sought is entirely consistent with the State's customary role in local educational matters and will not turn student assignments into a State function. The State already provides all transportation for regular school programs and a substantial portion of the funding for other programs. There is no reason why it should not bear the same burden for desegregation related programs. By enforcing the dual system, the State injected itself into local educational affairs. The remedy ordered by the court is certainly no more intrusive.
The District contends that the State should pay 100% of the transportation costs, 75% of the annual magnet operating costs, and 50% *1417 of the capital costs incurred in connection with the desegregation plan, and argues that in all but one case in which a state has been held liable for desegregation costs, the state has been ordered to pay between 50% and 100% of the costs of desegregation. The District's argument is not without support. In Southern states, where State officials and government played a major role in resisting desegregation, the courts have, with the one exception noted below, held those states liable for more than fifty percent of the costs of desegregation. Little Rock, 778 F.2d 404; Liddell v. Missouri, 822 F.2d 1446 (8th Cir. 1987); Jenkins v. Missouri, 855 F.2d 1295, 1308 (8th Cir.1988); Milliken II, 433 U.S. at 289, 97 S. Ct. at 2761-62; Brinkman v. Gilligan, 610 F. Supp. 1288 (S.D.Ohio 1985); Penick v. Columbus Bd. of Educ., 519 F. Supp. 925 (S.D.Ohio), aff'd, 663 F.2d 24 (6th Cir. 1981); Reed v. Rhodes, 500 F. Supp. 404 (N.D.Ohio 1980), aff'd, 662 F.2d 1219 (1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1713, 72 L. Ed. 2d 135 (1982).
After carefully examining the authorities cited by the District and the State, the court concludes that none of the cases except Board of Educ. for City of Savannah and County of Chatham v. Georgia, C.A. No. CV-490-101 (S.D.Ga.) (Order 10/11/92), is analogous to the situation here and relevant to this court's calculation of the percentage share of state liability. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 778 F.2d 404 (8th Cir.1985), involved an interdistrict violation, and Liddell v. Missouri, 822 F.2d 1446 (8th Cir.1987), presented a consent order settlement of most issues. Other cases from Ohio and Michigan involved states which possessed significantly more current control over education than does South Carolina. To the extent that the foregoing cases suggest that the degree of state involvement in the constitutional violation and educational processes is a relevant factor in determining a state's share of liability, the court has followed their example, factoring this into the assessment of mitigating circumstances, addressed fully in Section IX.B.
In Board of Educ. for City of Savannah and County of Chatham v. Georgia, Civil Action No. CV-490-101 (S.D.Ga.) (Order 10/11/92), the court ordered the State of Georgia to pay 15% of certain desegregation costs. For reasons set forth below, the court finds that order persuasive.
1. TRANSPORTATION COSTS
As in South Carolina, Georgia officials in Savannah created the dual system with local support, and then encouraged local districts to continue to operate in segregated fashion even after Brown. See Savannah, 10/11/92 Order at 7. Also as in South Carolina, local districts are primarily responsible for operation of the schools on a daily basis. Id. at 9-10.
In South Carolina the State is primarily responsible for provision of student transportation. Several current and former employees of the SDE, including Ralph Hendrix, the State's Director of Transportation during most of the period in issue, testified that it has been the State's policy to provide desegregation-related transportation, if part of a court-ordered plan. Tudor Dep. at 14-15; Hendrix Dep. at 11, 16-17, 20, 22; Bookout Dep. at 22, 47.
At trial, Frank Alford, the Route Coordinator for School Bus Routes for the SDE, testified that the State provides transportation for paired schools in other districts and that he did not know of any instances where such transportation was not being provided. TR. VIII at 112, 123-24. Barbara Nielsen, the State Superintendent, refused to concede that the State should provide such transportation, but acknowledged that she had never known the State not to provide transportation for court ordered desegregation. TR. VII at 188. Because the transportation relating to the pairings and consolidations, as well as the Mayo magnet, are all part of a court-ordered plan, the State's policy would appear to require that such transportation be provided. For the State to change its policy as applied to Darlington County would impede desegregation in the District.
The State first acquired control of the school transportation system under the SEFC "Separate But Equal Program," and maintained a dual transportation system until the late 1960's. Hendrix Dep. at 8-9. Today, the State remains primarily responsible for school transportation. Bookout Dep. *1418 at 48. It owns and maintains the approximately 6000 school buses in the State, pays and trains the bus drivers, furnishes liability insurance and a student injury policy, and assists school districts in drawing the routes for the buses. It also contracts for transportation if school buses are not available. The only responsibilities of the local school district are to hire the bus drivers, supervise students and employees, and maintain the school grounds where the buses load and unload. Bookout Dep. at 8-10. Although bus drivers are considered school district employees, they are supervised, paid, and trained by the SDE. Brigman Dep. at 6-7. All employees in the Transportation Office are State employees. Id. at 5. Accordingly, given this deep involvement by the State in student transportation and its policy of providing transportation to support court-ordered desegregation plans, the court finds it entirely appropriate that the State provide 100% of all necessary transportation to support the District's desegregation plan. Accordingly, the State Defendants are ordered to provide all transportation services necessary to support the desegregation measures set forth in the Consent Order and this Order.
2. CAPITAL COSTS AND OPERATING EXPENSES
After careful consideration of the mitigating circumstances detailed in section IX.B., the court concludes that the appropriate level of State liability for capital costs and operating expenses for desegregation measures in the Consent Order and this order is 15%. In determining that the District should bear the primary responsibility for such desegregation costs, the court has recognized that the State's liability is primarily based on remote events and a failure to pursue an affirmative duty to desegregate. Swann, 402 U.S. at 15, 91 S. Ct. at 275-76. In contrast, the District violated the terms of the 1970 Order in numerous respects as outlined in Section VII. A-F, infra, and failed to seek court approval for its variances from the terms of the Order. Accordingly, the 85%-15% apportionment reflects this court's assessment of the relative culpability of the State and the District for constitutional violations based on the evidence adduced at trial.
As to capital costs and operating expenses, they may be classified as follows:
i. Mayo Magnet Program Costs. The State Defendants are ordered to pay 15% of the capital costs and operating expenses incurred by the District to implement and operate the Mayo magnet program. In addition, in accordance with Dr. Nielsen's offer, the State Department of Education shall make available the services of its consultants and staff, at state expense, to assist the District in the design, planning and implementation of the Mayo magnet program.
The District shall make good faith efforts to locate additional sources of funding. For example, the District may obtain grant and other special money for development of the Mayo magnet. (Nielsen Dep. at 36, 38, 51). If any such monies are awarded for magnet development, or other desegregation purposes, they shall be deducted from the State's 15% share.
ii. Compensatory Education Programs. The State Defendants are hereby ordered to pay 15% of all costs associated with the compensatory education programs specified in the Consent Order for Rosenwald and St. David's Elementary Schools and St. John's High School. As discussed above, ample precedent exists for requiring the State to bear part of the cost of such Milliken II-type remedies. Compensatory education programs are needed because of the attendance by students at vestige schools continuing to provide inferior education opportunities after the 1970 order.
iii. Consolidation/Pairing Costs. The State Defendants are ordered to pay 15% of the costs incurred by the District to implement the school consolidations and pairings set forth in the Consent Order. Such pairings are the most effective method of eliminating vestiges which continued to exist after the 1970 order.
iv. Renovations to Southside Elementary School. Under the Consent Order, Southside Elementary is to become a preschool center for four and five year old children. In order to meet State regulations, substantial renovations must be made to increase the *1419 size of the classrooms and to install a rest room in each classroom, as well as meet other requirements. Because these expenditures are directly related to the elimination of vestiges, the State Defendants are ordered to pay 15% of such renovation costs.
XI. CONCLUSION
Based on the foregoing reasons and the cited authorities, the court orders as follows:
1. the Motion to Dismiss by the State Defendants is GRANTED with respect to the State Budget and Control Board and its members, and DENIED in all other respects;
2. the Consent Order filed June 3, 1994, is approved, and shall be implemented according to its terms;
3. the "Motion for a New Trial and/or to Alter or Amend Judgment," and the "Second Motion for New Trial," filed by five individuals purporting to be class members, is DENIED;
4. the District shall establish a magnet school at Mayo in accordance with the terms of this Order, and shall file a Magnet Proposal with the court within sixty days of the filing of this Order;
5. the State Defendants shall participate jointly with the District in the desegregation remedies set forth in the Consent Order and this Order;
6. the State Defendants shall provide all transportation services and facilities necessary to accomplish the desegregation measures in the Consent Order and this Order;
7. the State Defendants shall pay 15% of the capital costs and operating expenses of the desegregation remedies contained in the Consent Order and this Order, and the State Department of Education shall make available the services of its consultants and staff in the design, planning, and implementation of the Mayo magnet program;
8. the District shall, within sixty days of the filing date of this Order, file and serve a First Proposed Comprehensive Budget. The District and the State shall confer about the budget in a good faith attempt to resolve differences. The State shall file any objections to the First Proposed Comprehensive Budget within thirty days from the filing date of the Budget. The District shall file its response within thirty days of the filing date of the State's Objections;
9. this court shall maintain continuing jurisdiction in this case until the District achieves unitary status.
IT IS SO ORDERED.
NOTES
[1] "It is beyond question that the plan in its present form does not, as a matter of law, conform to the directives and decisions handed down after the plan was imposed.... The Court finds as a fact that in two years of operation the plan has not accomplished orderly, significant desegregation of public schools." Memorandum Order at 3 (8/25/66).
[2] The HEW report was entitled "A Desegregation Plan For Darlington County Public School District," and contained two plans, later referred to as "HEW Plan A" and "HEW Plan B."
[3] Two weeks prior to the February 3, 1970, hearing, the District's attorney had sent a revised set of pupil projections and maps to the court and to Plaintiffs' attorneys. Plaintiffs' attorney, Mordecai Johnson, acknowledged receipt of the revised projections and maps in Plaintiffs' Response to the School District's Proposed Plan filed with the court on January 30, 1970, in which he stated: "Defendants, by letter to the clerk dated January 23, 1970, pointed out that it has previously, ... transmitted a corrected projected statistics relating to HEW Plan B, consisting of completed building information form and maps of the three areas of the School District." (emphasis added).
[4] "We are now convinced that all of these judgments must be vacated, ... and we must remand to the respective district courts with instructions to receive from the respective school boards new plans which will give effect to Swann and Davis." Adams v. School Dist. No. 5, 444 F.2d 99 (4th Cir.), cert denied, 404 U.S. 912, 92 S. Ct. 230, 30 L. Ed. 2d 186 (1971).
[5] Evidence purporting to show "white flight" can be considered by a school district, not under a desegregation order, that is trying to voluntarily maximize racial balance, see Riddick v. School Bd. of Norfolk, 784 F.2d 521, 539-40 (4th Cir.), cert. denied, 479 U.S. 938, 107 S. Ct. 420, 93 L. Ed. 2d 370 (1986); and it can be considered by a court when choosing between constitutionally permissible desegregation plans where each plan would desegregate every racially identifiable school to the extent practicable. See Stell v. Savannah-Chatham County Bd. of Educ., 888 F.2d 82, 84-85, reh'g and reh'g en banc denied, 891 F.2d 907 (11th Cir.1989). However the Supreme Court and the Fourth Circuit have made clear that evidence purporting to show "white flight" is not relevant to the question whether further desegregation measures are practicable or feasible at schools that remain racially identifiable in a former de jure system. See United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 491, 92 S. Ct. 2214, 2218, 33 L. Ed. 2d 75 (1971); Riddick, 784 F.2d at 539.
[6] See Brewer v. Hoxie Sch. Dist. No. 46, 238 F.2d 91, 104-05 (8th Cir.1956) (school board had standing to assert students' Fourteenth Amendment rights); Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285 (6th Cir.) (school board had standing to assert Fourteenth Amendment rights of students and parents), cert. denied, 417 U.S. 932, 94 S. Ct. 2644, 41 L. Ed. 2d 236 (1974); Pierce v. Society of sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (corporations owning private schools had standing to assert Fourteenth Amendment rights of parents and guardians of school children). See also Regents of the University of Minnesota v. National Collegiate Athletic Ass'n, 560 F.2d 352, 363-64 (8th Cir.1977) (regents of public university had standing to assert rights of student athletes).
[7] The one case cited by the State with respect to Title VI, United States v. Alabama, 791 F.2d 1450 (11th Cir.1986), cert. denied, 479 U.S. 1085, 107 S. Ct. 1287, 94 L. Ed. 2d 144 (1987), presented the question whether a State university, as a creature of the State, had standing to sue another state entity and is therefore inapplicable. Moreover, in light of Hudson Valley, there is no reason a school district cannot be considered a "person" under Title VI.
[8] Although numerous cases recite the proposition that a suit against a state official in his or her official capacity is in essence a suit against the state, these same cases go on to observe that an official-capacity suit for prospective injunctive relief is not barred by the Eleventh Amendment and provides the vehicle through which the Ex parte Young exception, described in the text above, is effectuated. E.g., Kentucky v. Graham, 473 U.S. 159, 169 n. 18, 105 S. Ct. 3099, 3107 n. 18, 87 L. Ed. 2d 114 (1985).
[9] Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 714 F.2d 946 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S. Ct. 2398, 81 L. Ed. 2d 354 (1984), provides further guidance on the proper application of the Ex parte Young "connection" requirement. In that case, the State School Superintendent was retained as a defendant over an objection that he did not have a sufficient connection with the alleged unconstitutional acts to meet the requirements of Ex parte Young. The Ninth Circuit rejected this argument on the basis that "past superintendents helped to authorize and maintain a racially segregated school system in Los Angeles ... and the [present] Superintendent allegedly has not attempted to remedy this segregation." 714 F.2d at 952. Significantly, the court accepted the argument as to the governor โ but only because there was no evidence that present or former governors, as contrasted to state school superintendents, had done anything to promote segregation. In the absence of any such evidence, the court concluded that the governor's general duty to enforce state law alone did not establish the necessary connection with the unconstitutional acts alleged by the plaintiff.
In the present case, however, there is evidence that Governors of South Carolina had the same type of connection with the unconstitutional acts alleged here as proved sufficient to deny the state superintendent's motion to dismiss in Los Angeles Branch NAACP. Unlike the school district in Los Angeles Branch NAACP, the District here does not rely simply upon the Governor's general obligation to enforce the laws of the state, but instead relies upon evidence of discriminatory acts by the Governor's predecessors as well a continuing failure to remedy the effects of the past acts. In summary, the Governor of South Carolina has more than sufficient connection with the subject matter of this lawsuit to make him a proper party under the Ex parte Young exception.
[10] The Civil Rights Remedies Equalization Act expressly abrogates Eleventh Amendment immunity for suits brought under Title VI, stating in relevant part:
(a)(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of ... Title VI of the Civil Rights Act of 1964 [42 U.S.C. งง 2000d et seq.].
(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.
(b) The provisions of subsection (a) of this section shall take effect with respect to violations that occur in whole or in part after October 21, 1986. 42 U.S.C. ง 2000d-7.
[11] The Title VI regulations define "recipient" to mean "any State ... or instrumentality of any State ... to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any ... transferee thereof...." 34 C.F.R. ง 100.13(i) (emphasis added). The State of South Carolina and its educational agencies receive federal funds for educational purposes.
[12] The Civil Rights Restoration Act states that the terms "program or activity" and "program" mean all of the operations of:
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
42 U.S.C. ง 2000d-4a (emphasis added).
[13] Title VI regulations have the force and effect of law and a violation of the regulations constitutes a viable cause of action. Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974).
[14] The State argues that Title VI does not make them accountable to the District for their own alleged discrimination (State Memorandum in Support of Motion to Dismiss, at 14-15). The court finds the State is accountable for its own misconduct in violation of Title VI. Further, the State's contention that the District does not allege discrimination in pupil and school assignments also is misguided, because of the State's affirmative obligation under 34 C.F.R. ง 100.3(b)(6) to overcome the effects of its prior discrimination.
[15] The State argues incorrectly that the District does not assert a claim against the State under the EEOA. The cross-claim should be read as asserting claims against certain named State educational agencies, their officers, and the State. (See Cross-Claim, งง 42, 44.)
[16] Unlike the provisions of the Rehabilitation Act which the Supreme Court addressed in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985), sections 1703 and 1706 of the EEOA do not simply authorize relief against a general, undefined class of defendants that may or may not include the state and its agencies. In Atascadero, the relevant statute stated only that suit could be brought against "any recipient of federal assistance." The Supreme Court held that this language was too general to constitute congressional abrogation of Eleventh Amendment immunity. In contrast, the EEOA expressly provides that "educational agency" includes certain state agencies and officials. There can be no mistaking Congress' focused intent to provide a remedy against the State. The EEOA also has the specificity that was found lacking in 42 U.S.C. ง 1983. See Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979) (ง 1983 not intended to abrogate sovereign immunity); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974) (same).
[17] The Supreme Court held in Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 110 S. Ct. 1566, 108 L. Ed. 2d 834 (1990), that in order to give federal courts exclusive jurisdiction over a federal cause of action, Congress must "affirmatively divest state courts of their presumptively concurrent jurisdiction." 494 U.S. at 821, 110 S.Ct. at 1567. The EEOA contains several provisions that may be construed as divesting state courts of concurrent jurisdiction. For example, 20 U.S.C. ง 1753 provides that, "The rules of evidence required to prove that State or local authorities are practicing racial discrimination in assigning students to public schools shall be uniform throughout the United States." Such uniformity in the rules of evidence can be accomplished only if the federal courts have exclusive jurisdiction over EEOA cases, because Congress cannot mandate rules of evidence for state courts. In addition, the EEOA contains numerous sections referring to "courts of the United States" in contexts that suggest that state courts are not to have concurrent jurisdiction over cases brought under the EEOA. Specifically, these EEOA sections provide guidelines and limitations to be observed by "courts of the United States" in formulating remedial orders. These restrictions make sense only in the context of an exclusive federal remedy. See, e.g., 20 U.S.C. งง 1712, 1713, 1714, 1716, 1754.
Even without deciding the exclusive jurisdiction issue, this court can look to the referenced sections for additional evidence that Congress clearly intended that state educational agencies be subject to suit in federal court, notwithstanding the Eleventh Amendment. 20 U.S.C. ง 1753, quoted above, is particularly persuasive evidence of that intent.
[18] As counsel for the District noted, "The only issue is in order to have equity, is this required, and I think that is the limited issue before the court at this point." (TR. at 50).
[19] To facilitate reference to the ten volumes of trial transcript in this matter, the court adopts the following citation procedure:
"TR. I" is 5/23/94 transcript,
"TR. II" is 5/24/94 transcript,
"TR. III" is 5/25/94 transcript,
"TR. IV" is 5/26/94 transcript,
"TR. V" is 5/27/94 transcript,
"TR. VI" is 5/31/94 transcript,
"TR. VII" is 6/1/94 transcript,
"TR. VIII" is 6/2/94 transcript,
"TR. IX" is 6/3/94 transcript.
[20] The 1868 South Carolina Constitution provided for desegregated schools. However, this constitutional provision was never implemented or enforced by the state's General Assembly. Holler v. Rock Hill Sch. Dist., 60 S.C. 41, 38 S.E. 220 (1901).
[21] This latter provision was not repealed until 1978. 1978 S.C.Acts 622.
[22] Although there were also no blacks in Alabama's white schools that school year, the University of Alabama was under court order to admit blacks, and a black woman had attended in 1956 before leaving in the middle of riots. Dist. Exh. 297.
[23] The law enabling these tuition grants, 1963 S.C.Acts 297, codified as S.C.Code Ann. ง 21-297 et seq. (1962), was held unconstitutional in Brown v. South Carolina State Board of Education, 296 F. Supp. 199 (D.S.C.), aff'd, 393 U.S. 222, 89 S. Ct. 449, 21 L. Ed. 2d 391 (1968). However, it remains a part of the South Carolina Code. S.C.Code Ann. งง 59-41-10 et seq. (Law Co-op.Supp.1994).
[24] A complete account of the school construction in Darlington County financed through the state school building program may be found in the composite of Darlington County School District minutes from 1951 to 1962, contained in Dist. Exh. 424.
[25] In the spring of 1970, one prominent state official, who urged citizens to comply peacefully with the Fourth Circuit Order to desegregate immediately, nevertheless telegraphed President Nixon urging a postponement to the desegregation mandate. Dist. Exhs. 336 & 337.
[26] The South Carolina School Desegregation Consulting Center is not associated with the State, and is federally funded. Winecoff Dep. at 9, 12.
[27] In Keyes v. School Dist. No. 1, the Supreme Court stated:
Where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown I, the State automatically assumes an affirmative duty "to effectuate a transition to a racially nondiscriminatory school system." ...
413 U.S. 189, 200, 93 S. Ct. 2686, 2693, 37 L. Ed. 2d 548 (1973), quoting Brown II, 349 U.S. at 301, 75 S. Ct. at 756-57. See also United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 488, 92 S. Ct. 2214, 2216-17, 33 L. Ed. 2d 75 (1972) (actions of state legislatures are not on any different footing than actions of school boards in matters of school desegregation).
[28] Section 1703 of the EEOA provides, in pertinent part, as follows:
No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin by โ
(A) The deliberate segregation by an educational agency of students on the basis of race, color, or national origin among or within schools;
(B) The failure of an educational agency which has formerly practiced such deliberate segregation to take affirmative steps ... to remove the vestiges of a dual school system.
20 U.S.C. ง 1703.
[29] Because state and local governments receive federal funding for education, Title VI is frequently invoked by plaintiffs in school desegregation cases. See, e.g., Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974); Reed, 500 F.Supp. at 416; Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1416-17 (11th Cir.1985).
[30] The Supreme Court consistently has held that plaintiffs must prove the existence of some discriminatory intent or purpose in order to establish a federal constitutional violation that will support a court-ordered desegregation remedy. See, e.g., Crawford v. Board of Educ., 458 U.S. 527, 544, 102 S. Ct. 3211, 3221, 73 L. Ed. 2d 948 (1982). However, it is well settled that creating and maintaining a dual school system fulfills that requirement because it is discriminatory as a matter of law. See, e.g., Price v. Denison Indep. Sch. Dist., 694 F.2d 334, 378 (5th Cir.1982).
[31] Dr. Armor also testified that, in his opinion, it would not have made any difference which plan, HEW Plan B or the modified HEW Plan B approved by the 1970 Order, had been implemented because Mayo was projected to be a majority black school under both plans. TR. VI at 111-120; Dist. Exh. 68.
[32] If the District had constructed a consolidated high school in 1976, Mayo would have been closed as a high school. While closing Mayo would have required court approval and may have been found to unfairly burden the Black community, it cannot be disputed that students attending the consolidated high school would have benefitted from equal educational opportunities. Instead, those who attended Mayo from 1976 to the present received grossly disparate educational opportunities. This convinces the court that the District is primarily responsible for Mayo continuing to exist as a vestige. The fact that the District failed to pursue consolidation in 1976, however, does not absolve the State of liability, but rather mitigates that liability.
[33] The Darlington County Board of Education has the authority of a school district board of trustees under Act No. 588, ง 5, 1992 S.C.Acts 3603. See Act No. 748, 1978, S.C.Acts 2413.
[34] With respect to transportation, South Carolina exercises primary control through its ownership and maintenance of the bus system, and payment of drivers and other transportation related employees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264888/ | 879 F. Supp. 666 (1995)
CYRIX CORPORATION, Plaintiff,
Texas Instruments Inc., SGS-Thomson Microelectronics, Inc., and International Business Machines, Corporation, Intervenors,
v.
INTEL CORPORATION, Defendant.
No. 4:92cv52.
United States District Court, E.D. Texas, Sherman Division.
January 3, 1995.
Order Denying Reconsideration February 27, 1995.
George Allan Van Fleet, Erica L. Krennerich, Vinson & Elkins, Houston, TX, Albert E. Fey, Laurence S. Rogers, Kelsey I. Nix, Elaine A. Drager, Fish & Neave, New York City, Joseph Wilbur Wolfe, Wolfe Clark & Henderson, Sherman, TX, Richard Allan Sayles, Steven E. Aldous, Sayles & Lidji, Dallas, TX, for Cyrix Corp.
Frank Finn, Thompson & Knight, Dallas, TX, for SGS-Thomson Microelectronics Inc.
Ernest Ryan Higginbotham, Strasburger & Price, Dallas, TX, Evan R. Chesler, Richard *667 W. Clary, Robert H. Baron, Philip C. Koroglogos, Suja A. Thomas, Cravath Swaine & Moore, New York City, Donald J. Rosenberg, John C. Scheffel, III, White Plains, NY, for International Business Machines Corp.
Danny Lloyd Williams, Wayne Manford Harding, James Joseph Elacqua, Henry A. Petri, Jr., Thomas A. Miller, Arnold White & Durkee, Houston, TX, Carl Silverman, Intel Corp., Santa Clara, CA, Patricia A. Hubbard, Alan H. Blankenheimer, Daniel P. Quigley, Jonathan M. James, Chad S. Campbell, Steven R. Rodgers, Paul F. Eckstein, Brown & Bain, Phoenix, AZ, Stephen H. Cagle, Arnold White & Durkee, Houston, TX, Clyde Moody Siebman, Siebman & Reynolds, Sherman, TX, Joseph Kattan, Morgan, Lewis & Bockius, Washington, DC, for Intel Corp.
MEMORANDUM OPINION AND ORDER
PAUL N. BROWN, District Judge.
Pending before the Court are Intel Corporation's Motion for Summary Judgment that Cyrix Microprocessors Made by Affiliates of SGS-Thomson Microelectronics, Inc. are Not Licensed by Intel and SGS-Thomson Microelectronics, Inc.'s Motion for Summary Judgment and Supplemental Motion for Summary Judgment. The Court having considered the motions, the responses, the briefs and arguments of the parties and all of the summary judgment evidence, is of the opinion, for the reasons stated below, that Intel's motion should be denied and intervenor SGS-Thomson Microelectronics, Inc.'s supplemental motion should be granted.
BACKGROUND
In 1977, Intel Corporation ("Intel") and Mostek Corporation ("Mostek") entered into a Cross License Agreement ("the License Agreement"), the terms of which provided that each party granted to the other a license "to make, to have made, to use, to sell (either directly or indirectly), to lease and to otherwise dispose of licensed products." The original term of the License Agreement was ten years, but the Agreement was extended to 22 years pursuant to an amendment in November 1982.
This License Agreement has been assigned to SGS-Thomson Microelectronics, Inc. ("ST") and is a valid and binding agreement between ST and Intel.
This Court has previously determined that the License Agreement is not ambiguous and is to be governed and interpreted by the law of Delaware.
ST is now having SGS-Thomson Microelectronics S.r.L., Agrate, Italy ("ST-Italy") manufacture for Cyrix Corporation ("Cyrix") microprocessor wafers ("wafers"). ST claims that this arrangement with ST-Italy for the manufacture of these wafers is a valid exercise of its have-made rights under the License Agreement. Intel contends that ST has exceeded its have-made rights. Intel claims that the prohibition against sublicensing contained in the License Agreement, in addition to the inherent nonexclusive nature of the license, acts to limit ST's "have-made" rights. Intel argues that the transactions between ST and Cyrix and ST and ST-Italy for the manufacture of these wafers are merely a facade; that in effect Cyrix is buying the wafers directly from ST-Italy; and that ST-Italy is not producing the wafers for ST, the original licensee, but for its own use.
Both Intel and ST have submitted a statement of undisputed facts in support of their respective motions, and from these statements and the responses to the statements, it is evident that the parties are in substantial agreement on the material facts. However, Intel contends that ST's undisputed facts are, in reality, erroneous conclusions that are contrary to controlling legal principles, and in opposition to Intel's statement, ST contends that Intel's undisputed facts are immaterial and irrelevant because the Court is only confronted with a purely legal issue of contract interpretation. ST also argues that some of Intel's alleged undisputed facts are inaccurate.
SUMMARY JUDGMENT STANDARD
The granting of summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The trial court must resolve all reasonable doubts in favor of the *668 party opposing the motion. Casey Enterprises, Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.1981) (citations omitted). The party seeking summary judgment carries the burden of demonstrating that there is no actual dispute as to any material fact in the case. This burden, however, does not require the moving party to produce evidence showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). The moving party satisfies its burden by "pointing out to the district court ... that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party has satisfied its burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). If the nonmovant fails to set forth specific facts in support of allegations essential to that party's claim and on which that party will bear the burden of proof, then summary judgment will be appropriate. Celotex, 477 U.S. at 321-24, 106 S. Ct. at 2552-53. Even if the nonmovant brings forth evidence in support of its allegations, summary judgment will be appropriate "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (citations omitted).
DISCUSSION
Intel contends ST has assumed the position of a broker and the transaction paperwork for the manufacture of the wafers is passed through ST solely in order to bypass the prohibition against sublicensing contained in the License Agreement. Intel argues the manufacturing arrangement between ST and ST-Italy is prohibited under the controlling Delaware law as expounded by the Delaware Supreme Court in E.I. du Pont de Nemours and Co. v. Shell Oil Co., 498 A.2d 1108 (Del.1985).
In analyzing the claims of Intel, the Court must answer two questions: first, for whom are the wafers actually made, and second, by whom are they actually sold? The Court is able to answer both of these questions from facts that are undisputed in the summary judgment evidence. The following facts are undisputed:
1. In late 1992 ST began manufacturing wafers for Cyrix at its Carrollton, Texas, facility. The manufacture and sale of these wafers by ST to Cyrix was permitted under the License Agreement.
2. In mid-1993, ST-Italy, an affiliate of ST, began manufacturing some of the wafers for ST due to a temporary limitation in the capacity of ST to manufacture enough wafers in Carrollton, Texas, to meet its contractual obligations to Cyrix. It is disputed whether this limitation in capacity was created by an actual lack of manufacturing capacity or because of a reallocation of products manufactured at the Carrollton facility. At that time ST provided the process technology, database tapes, and technical assistance necessary to enable ST-Italy to manufacture the wafers for ST.
3. All products manufactured by ST-Italy were first prototyped at ST, and all production commitments were made by ST. ST further authorized Cyrix and ST-Italy to communicate with one another on technical issues and production scheduling. Wafers made for ST by ST-Italy are also made by ST in Carrollton, Texas.
4. Once wafers were manufactured by ST-Italy, they were shipped to ST's warehouse in Phoenix, Arizona, or to Carrollton, Texas. No ST affiliate has ever shipped wafers to Cyrix. The shipping operation is performed exclusively by ST.
5. ST-Italy invoices ST for all wafers manufactured in Italy and ST-Italy does not invoice Cyrix for any wafers.
6. ST invoices Cyrix for all wafers out of ST's shipping and receiving departments.
7. The terms and conditions of sale for all wafers sold by ST to Cyrix, including price, warranty and risk of loss, are negotiated between ST and Cyrix, and are the same *669 regardless of whether ST or ST-Italy manufactures the wafers.
Intel argues that the transactions between Cyrix and ST and ST and ST-Italy are a mere "paper shuffle" without substance, and in support of this argument submits the following conclusions drawn from statements from depositions and other discovery conducted by Intel in this case:
1. Cyrix characterizes ST-Italy as Cyrix's own "Subcontractor" and ST as a "Broker".
2. The paper transactions effectuating the arrangement among Cyrix, ST, and ST-Italy are merely a facade.
3. Nonconforming microprocessors are returned by Cyrix to ST-Italy.
4. Cyrix is intimately involved in process engineering for its wafers in ST-Italy's Facility.
5. ST does not handle packages with Cyrix wafers as they are shipped by ST-Italy and forwarded by a Dallas customs broker to Cyrix.
The summary judgment evidence does not support some of the conclusions made by Intel and others are not relevant. Cyrix has no authority to direct the manufacturing activities of ST-Italy and does not. It does attempt to monitor the manufacturing process at ST-Italy in order to protect the quality of the wafers manufactured and help solve problems that may arise in the manufacturing process. All of the purchase orders for the wafers from ST-Italy are generated by ST and not by Cyrix. Cyrix does not require or request that particular wafers be manufactured by ST-Italy. As a matter of fact, the summary judgment evidence would indicate that Cyrix would prefer that all of their wafers be manufactured by ST at its Carrollton, Texas, facility. Nonconforming microprocessors were not, in fact, returned by Cyrix to ST-Italy, but were returned to ST in Carrollton. Intel's statement that ST does not handle packages with Cyrix microprocessors as they are shipped by ST-Italy and forwarded by a Dallas customs agent to Cyrix may be technically correct. However, the summary judgment evidence establishes that title to the wafers passes to ST and ST takes delivery of the wafers before it ships them to Cyrix. The wafers are not shipped directly to Cyrix by ST-Italy. The customs agent is hired by ST, reports to ST, receives instructions and authorizations only from ST, and holds ST's power of attorney for purposes of moving the wafers thorough U.S. Customs and on to Cyrix.
Intel contends that the manufacturing arrangement between ST and ST-Italy is almost exactly like the manufacturing arrangement considered by the Delaware Supreme Court in E.I. du Pont ibid. and found to be in violation of the patent licensing agreement between Shell Oil Company and E.I. du Pont. The facts and sequence of events in the du Pont case were as follows:
In 1968 Shell Oil Company ("Shell") obtained a nonexclusive license from E.I. du Pont de Nemours and Company ("du Pont") to make, have made, use and sell, for use and resale methomyl. In the 1970's Union Carbide Agricultural Corporation, Inc. ("Carbide") developed a product called Larven, an insecticide which used methomyl in its formulation. Carbide sought a ready supply of methomyl to use in the formulation of Larven. Carbide first requested a license from Shell to manufacture methomyl. Shell informed Carbide that it did not have the right to sublicense the manufacture of methomyl and that only du Pont could grant a license for the domestic manufacture of methomyl. As an alternative, Carbide investigated the possibility of buying from Shell quantities of methomyl sufficient to fill its needs, but learned that the Shell plant from which Carbide desired to obtain its supply did not have sufficient capacity to fill its needs. Shell then proposed to Carbide that Carbide would manufacture methomyl for Shell under the have-made provision of its license agreement with du Pont and Shell would then immediately sell the methomyl back to Carbide, using a separate purchase and sale agreement. Carbide initially rejected this proposal. Carbide then approached du Pont directly to obtain a license to manufacture methomyl. Carbide proposed that du Pont license Carbide for its use of methomyl in Larven, and in return Carbide would grant du Pont a license to sell Larven. Du Pont rejected this *670 proposal, but offered to sell Carbide methomyl at a favorable price. Carbide rejected this counter offer and then immediately recontacted Shell. Shell and Carbide then entered into a methomyl toll conversion agreement and a methomyl purchase and sale agreement. These agreements were negotiated, drafted and executed simultaneously. Both agreements covered the same period of time, terminating in 1988 when du Pont's methomyl patent expired. Under these agreements, Carbide was to construct a plant to manufacture 18,000,000 pounds of methomyl per year. In essence, the agreements provided that Carbide would produce methomyl for Shell's account, simultaneously buying back from Shell some or all of the methomyl Carbide manufactured. Under the agreements, Carbide would order from Shell the amount of methomyl it required, and Shell would convey such information back to Carbide so it could manufacture the required amount. Carbide would manufacture the methomyl and would place the methomyl in its own containers, which simultaneously effected both the delivery to Shell and redelivery to Carbide. Shell was obligated to sell to Carbide all of the methomyl which Carbide required, but was not obligated to sell unless Carbide performed its obligations under the toll conversion agreement.
The evidence in the du Pont case showed that the drafters of the agreements were concerned about the prohibition against sublicensing and drafted the agreements specifically to circumvent this provision. The Delaware Supreme Court concluded that Shell had, in effect, granted Carbide a sublicense which was prohibited by its licensing agreement with du Pont. The Court reasoned that the prohibition against the sublicensing of the patented product restricted the have-made rights of Shell so as not to permit the arrangement with Carbide. The Court concluded that "What Carbide bargained for was to pay Shell for use of its license rights under the du Pont patent" and that ultimately Carbide was producing methomyl not for Shell, but rather for itself.
The du Pont case required the Court to determine the limits of a licensee's right to manufacture, have made and sell a product under a grant of a nonexclusive license without a right to sublicense. This Court is required to make the same determination, however, the facts on which the du Pont court made its determination were far different from the facts in this case.
The du Pont case involved du Pont, who had granted a license to Shell to make and to have made licensed products, and a third party, Carbide, who was not licensed but was manufacturing a licensed product under an agreement with Shell. This case involves Intel, who has granted a license to ST to make, to have made, to use, to sell (either directly or indirectly), to lease and to otherwise dispose of licensed products, ST-Italy, who is not licensed and is manufacturing licensed products, and Cyrix, who purchases the products from ST.
When the substance of the transactions between Shell and Carbide and the substance of the transactions between ST, ST-Italy and Cyrix are compared, the following important differences are noted:
1. The arrangement between Shell and Carbide resulted from the failed efforts of Carbide to obtain a sublicense agreement from du Pont. The arrangement between ST and ST-Italy resulted from ST's need to have wafers manufactured by a third party in order to meet the needs of its customer Cyrix.
2. The two agreements between Shell and Carbide, one being a purchase-sale agreement and the other being a toll conversion agreement, were entered into simultaneously. ST and Cyrix had entered into an agreement for the manufacture by ST of wafers for Cyrix at a substantially earlier date than the date ST began having ST-Italy manufacture wafers.
3. The evidence showed that the Shell/Carbide agreements were drafted specifically in an effort to avoid the prohibition against sublicensing. There is no evidence that the agreement between ST and ST-Italy for the manufacture of wafers was entered into for any reason other than to meet the needs of ST's customer Cyrix.
4. ST-Italy manufactures wafers only when ordered by ST to meet the needs of *671 ST's customer Cyrix. Carbide manufactured methomyl for itself at any time it had a need for methomyl for its own operations.
5. The performance by Shell of its obligations under the purchase and sale agreement were conditioned upon Carbide's performance of its obligations under the methomyl toll conversion agreement. ST's obligations to Cyrix are not conditioned upon the performance by ST-Italy of its obligations to ST.
6. Carbide initiated the transactions for the sale and manufacture of methomyl. ST-Italy does not initiate the transactions for the manufacture of the wafers.
7. After Carbide manufactured methomyl, the methomyl never actually left Carbide's possession, but only a paper delivery was effected to Shell and then a paper redelivery to Carbide. After ST-Italy manufactures the wafers, they are delivered to ST and then ST delivers the wafers to Cyrix.
8. The agreements between Shell and Carbide were for a long term, continuing until du Pont's patent expired. Under the ST/ST-Italy arrangement, the wafers are manufactured pursuant to a series of purchase orders issued by Cyrix and ST and there is no long-term obligation on the part of any party. Under the Shell/Carbide arrangement, methomyl was manufactured by Carbide to meet its own needs in its own plant. Under the ST/ST-Italy arrangement, Cyrix places an order with ST for a certain quantity of wafers. ST may then manufacture such wafers in its own facility at Carrollton, Texas, or issue a purchase order to ST-Italy for the manufacture of the wafers. If the wafers are manufactured by ST-Italy, title to the wafers is delivered to ST in Italy and thereafter ST assumes all market risk with respect to the wafers.
Intel argues that the wafers are not licensed products because ST has not used the wafers and, therefore, they cannot be licensed unless they are made or sold by ST. Intel claims that ST merely shuffles paperwork and that the wafers were in fact made and sold by ST-Italy, an unlicensed third-party foundry. The summary judgment evidence does not support this argument, nor does it create a material issue of fact for trial with respect to who makes and sells the wafers. The substance of the arrangement between Cyrix and ST and ST and ST-Italy is that when Cyrix needs wafers, it issues a purchase order to ST. ST then either manufactures the wafers itself at its Carrollton, Texas, facility or arranges for ST-Italy to manufacture the wafers at its Italian facility. ST is selling wafers. It is not selling or receiving payment for the use of its license from Intel. It has not authorized ST-Italy to make the wafers for or sell them to anyone other than ST. The production of the wafers is for the use of ST, the original licensee, and not for the use of ST-Italy. This is a valid exercise of the have-made rights granted under the License Agreement and does not constitute a sublicense.
Intel seems to take the position that any exercise by ST of its have-made rights by having a third party manufacture a licensed product which it in turn sells to its customer is impermissible because of the prohibition against sublicensing. The Court disagrees. A prohibition against sublicensing does not invalidate have-made rights granted elsewhere in a licensing agreement. Carey v. United States, 326 F.2d 975, 164 Ct. Cl. 304 (1964); Southwire Co. v. U.S. Int'l Trade Com'n., 629 F.2d 1332 (C.C.P.A.1980).
CONCLUSION
ST-Italy is actually manufacturing the wafers for ST and the wafers prior to their manufacture have actually been sold by ST to Cyrix. ST has not attempted to grant ST-Italy a sublicense. It is exercising its have-made rights. Intel's Motion for Summary Judgment should, therefore, be denied and ST's Supplemental Motion for Summary Judgment should be granted.
Cyrix should submit to the Court a proposed form of judgment in this case on or before 20 days from the date of the signing of this Order.
IT IS SO ORDERED.
ORDER DENYING INTEL'S MOTION FOR RECONSIDERATION
Pending before the Court is Intel Corporation's Motion for Reconsideration of this Court's Memorandum Opinion and Order of January 3, 1995, granting Intervenor SGS-Thomson Microelectronics, Inc.'s Supplemental *672 Motion for Summary Judgment. The Court has carefully considered Intel's motion and the responses of the parties.
The Court has not considered the new documents submitted by Intel in support of its Motion for Reconsideration. These documents were in the possession of Intel for a considerable period of time prior to the filing of its motion for summary judgment and were not offered in support of its motions or in opposition to ST's motion for summary judgment. Intel has not shown to the Court any reason why it could not have submitted these documents for the Court's consideration at the time the Court ruled on the motions for summary judgment.
The Court remains persuaded that there are no material fact issues for trial and that the granting of Intervenor SGS-Thompson Microelectronics, Inc.'s Supplemental Motion for Summary Judgment was proper. In its motion Intel argues that the Court's ruling "... inflicts a grave and unintended injustice on patentee-licensors like Intel because it allows nonexclusive licensees like ST to `farm out' the ability to manufacture the patented product under license from Intel to an infinite number of foundries working on behalf of an infinite number of third parties. This result completely eviscerates any value in the licensed patent to the patentee-licensor, completely eviscerates any ability of the licensor to further license the patent, and is contrary to the very purpose of a nonexclusive license which grants have-made rights to a single party such as ST." This argument fails because of the extremely broad rights that were granted in the cross license agreement. Intel essentially received the same rights in the Mostek patents as Mostek received in the Intel patents. The cross license agreement contains few limitations, and the Court has concluded that the license agreement permits ST to have the microprocessors made by ST-Italy. Intel could have prevented this result by placing limitations in the cross license agreement. The Motion for Reconsideration should, therefore, be denied.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264901/ | 879 F. Supp. 841 (1995)
John CHITKIN and Nancy Chitkin, individually and as guardians ad litem for Danielle Chitkin, Plaintiffs,
v.
LINCOLN NATIONAL INSURANCE COMPANY, and Does 1-100, inclusive, Defendants.
LINCOLN NATIONAL INSURANCE COMPANY, Counterclaimant,
v.
John CHITKIN and Nancy Chitkin, individually and as guardians ad litem for Danielle Chitkin, a minor, Counterdefendants.
Civ. No. 90-1287-R (AJB).
United States District Court, S.D. California.
March 2, 1995.
*842 *843 *844 David Bacon, Richard T. Davis, Jr. and Cheryl A. DeBari, Adams, Duque & Hazeltine, Los Angeles, CA, for defendants and counterclaimant.
Donald M. de Camara, El Cajon, CA, for plaintiff and counterdefendant.
AMENDED ORDER GRANTING LINCOLN NATIONAL'S MOTION FOR SUMMARY JUDGMENT ON ITS COUNTERCLAIM
RHOADES, District Judge.
This matter comes before the Court on Defendant and Counterclaimant Lincoln National Insurance Company's ("Lincoln National's") Motion for Summary Judgment on its counterclaim.[1] For the reasons given below, *845 Lincoln National's Motion for Summary Judgment is granted.[2]
I. Background
On June 8, 1987, twenty-month-old Danielle Chitkin nearly drowned in a duck pond. Danielle wandered out of an open sliding glass door at the home of Ed and Judy Way while Nancy Chitkin visited with Judy Way. Danielle then made her way across the backyard, through an unlocked, unauthorized gate, and toward the duck pond, before falling into the pond. Danielle suffered severe brain damage as a result of the incident.
Lincoln National provided medical benefits to Danielle Chitkin because her father, John Chitkin, participated in a the Jerome's Furniture Warehouse Health VEBA Plan (the "Plan"). Lincoln National issued a group policy of insurance to the Plan. Lincoln National has paid claims totalling $701,048.66 under the Plan for medical treatment for Danielle.
The Plan includes a section entitled "Return of Over Payment." That section states in full:
Payment made for charges must be returned to Lincoln National if:
1. it is found that such charges were paid in error, or
2. a third party is determined to be liable for such charges.
If an individual insured under the policy has
a. medical or dental charges; or
b. loss of earnings;
as a result of the negligence or intentional act of a third party, and makes a claim to Lincoln National for benefits under the policy for such charges or such lost earnings, the insured individual (or legal representative of minor or incompetent) must agree in writing to repay Lincoln National from any amount of money received by the insured individual from the third party, or its insurer. The repayment will be to the extent of the benefits paid by Lincoln National, but will not exceed the amount of the payment received by the individual from the third party, or its insurer. However, the reasonable expenses, such as lawyers' fees and court costs, incurred in effecting the third party payment reimbursed to Lincoln National may be deducted from the repayment to Lincoln National.
The repayment agreement will be binding upon the insured individual (or legal representative of a minor or incompetent) whether:
a. the payment received from the third party, or its insurer, is the result of:
1) a legal judgment; or
2) an arbitration award; or
3) a compromise settlement; or
4) any other arrangement; or
b. the third party, or its insurer, has admitted liability for the payment; or
c. the medical or dental charges or loss of earnings are itemized in the third party payment.
On August 20, 1987, the Chitkins entered into a settlement agreement with Ed and Judy Way for $100,000, the maximum benefits available under the Ways' homeowners insurance policy.
*846 Beginning in late 1987, Lincoln National began to take steps to control its expenditures on behalf of Danielle Chitkin. In October 1987, for example, Lincoln National endeavored to reduce Danielle's nursing care from twenty-four to sixteen hours per day. According to the Chitkins, Lincoln National's efforts included its misrepresentation to Danielle's doctor that the Chitkins wanted to reduce Danielle's nursing care, when, in fact, the Chitkins wanted no such thing. Later, in November 1987, Lincoln National took the position that Danielle's care could be characterized as custodial only. Such a characterization again would save Lincoln National a substantial sum. Lincoln National did not retreat from its "custodial care" position until January 1989. In October 1988, an attorney for Lincoln National asked the Chitkins to consider a voluntary reduction in nursing care in order to prolong Danielle's entitlement to benefits because Lincoln National's expenditures on behalf of Danielle were approaching the lifetime maximum coverage limits set out in the Plan.
In December 1987, Lincoln National announced that it planned to raise medical rates substantially for employees of Jerome's Furniture because Jerome's was "a group where it has been difficult to proactively manage an ongoing claim." The Chitkins argue that the "ongoing claim" was Danielle's claim. Lincoln National does not dispute the Chitkin's interpretation. The Chitkins argue that this rate hike was the first significant step in Lincoln National's effort to terminate the Plan. According to the Chitkins, Lincoln National raised rates in an effort to force most employees out of the Plan. Once Plan membership fell below a certain level, Lincoln National could exercise its right under the Plan to terminate coverage. In December 1988, Lincoln National announced that it would raise rates again in February 1989 to a level almost three times the rate charged during 1987. John Chitkin was the only Jerome's employee who did not leave the Plan after the second rate increase. Lincoln National cancelled the Jerome's Furniture Policy on March 31, 1989.
Following Lincoln National's cancellation of the Plan, the Chitkins were able to obtain coverage through PacifiCare. Lincoln National, however, still retained some obligations toward Danielle under the terms of the Plan because Danielle was completely disabled at the time of the cancellation. Lincoln National's coverage was secondary to PacifiCare's coverage. PacifiCare's coverage of Danielle's physical therapy contained a limit of sixty days of therapy. Danielle soon exhausted these sixty days and turned to Lincoln National for payment for additional treatment under Lincoln National's secondary coverage, because the Jerome's Plan contained no limit on therapy benefits. Despite numerous inquiries by the Chitkins, their attorney, and Danielle's therapy provider, Lincoln National refused to assure the Chitkins or Danielle's therapy provider that it would pay any amount for Danielle's therapy.
On August 15, 1988, the Chitkins filed suit in San Diego Superior Court against a number of defendants, including Le Chateau Homeowners Association and the designer and builder of the Chitkins' subdivision, W. Wolf Industries, Inc.
On January 24, 1990, the Chitkins' counsel sent Lincoln National's counsel, Vicki Lai, a letter asking Lai to make someone available to participate in a mediation between the Chitkins and various tortfeasors. The mediation, however, did not take place as scheduled.
The Chitkins settled their disputes with W. Wolf Industries, Inc., Le Chateau Homeowners, Inc., A & P Management Company, Aquatic Life Services, and Martineau Landscaping in the spring of 1990 for $3,156,967.20, bringing their total recovery from all tortfeasors to $3,256,967.20. The Chitkins dismissed all but their strict liability cause of action against one of the tortfeasors, W. Wolf Industries, before settling.
The Chitkins' settlement agreement with W. Wolf Industries states that "settlement has been effected on the basis of exposure as a result of the strict liability cause of action." The Wolf Industries settlement makes up $1,950,000 of the Chitkins' total recovery from the various tortfeasors.
The Chitkins obtained an order approving a minor's compromise concerning structured *847 settlements on June 1, 1990. The parties to the settlements filed motions for determination of good faith settlement in June and July 1990. The Chitkins and the various defendants signed settlement agreements in June and July 1990.
Each of the Chitkins' settlement agreements, with the exception of that with Ed and Judy Way, apportions 8% of the damages to John and Nancy Chitkin and for their future wrongful death claims. The agreements also apportion 25% of Danielle's recovery to special damages (including both medical expenses and loss of income) and 75% to general damages.
On March 15, 1990, Lincoln National filed a notice of lien in Superior Court in the amount of $712,000 in an effort to assert reimbursement rights over a portion of the damages the Chitkins appeared likely to recover in their tort suits against various tortfeasors. The Chitkins' counsel argued, apparently successfully, to the various tortfeasor defendants that Lincoln National's lien was invalid and could be ignored. Even after Lincoln National's counsel contacted each of the defendants and asked them to place Lincoln National's name on the settlement drafts, none of the defendants appears to have given much consideration to Lincoln National's position.
The Chitkins filed suit against Lincoln National in state court on August 16, 1990. The Chitkins' complaint listed a number of causes of action including actions for bad faith, breach of the covenant of good faith and fair dealing, and for a declaration that the reimbursement provision in the Plan was invalid. On September 19, 1990, Lincoln National filed a notice of removal in this court, alleging diversity of citizenship and the existence of a federal question, namely whether ERISA preempted any or all of the Chitkins' causes of action.
Lincoln National filed an answer and counterclaim on September 26, 1990. In its counterclaim, Lincoln National alleges that it is entitled to enforce the reimbursement provision in the Plan. Lincoln National prays for $740,456.13, the amount Lincoln National claimed, at one time, to have paid the Chitkins in Plan benefits. The Chitkins filed an answer to Lincoln National's counterclaim on October 17, 1990. The Chitkins' answer includes fourteen affirmative defenses, including unclean hands and unjust enrichment.
On November 15, 1991, this Court issued a seventeen-page order regarding the Chitkins' and Lincoln National's motions for summary judgment. This Court granted Lincoln National's motion for summary judgment on the Chitkin's complaint, finding the Chitkins' state law causes of action were preempted by ERISA. This Court also granted the Chitkins' motion for summary judgment on Lincoln National's counterclaim and denied Lincoln National's cross motion for summary judgment on its counterclaim. This Court held that Lincoln National was not entitled to reimbursement under either a contract-based or unjust enrichment theory because it never required the Chitkins to execute the written repayment agreement called for by the Plan. On March 9, 1992, this Court denied the Chitkins' motion for attorney fees and granted Lincoln National's motion for entry of final judgment on its counterclaim.
Lincoln National filed a notice of appeal on March 26, 1992. On November 24, 1993, the Ninth Circuit reversed this Court in a Memorandum disposition with one judge dissenting. See Appendix (quoting the text of the Memorandum). In its Memorandum, the Ninth Circuit held that Lincoln National had standing to seek reimbursement as a Plan fiduciary even though it had ceased to serve as insurer for the Plan. In addition, the Ninth Circuit noted that "the appeal centered around an extremely poorly-drafted provision of the Plan's contract with Lincoln National," but nevertheless construed that provision to favor the insurance company. According to the Ninth Circuit, the clause in the reimbursement provision stating that the insured must agree in writing to reimburse Lincoln National was merely a condition precedent to Lincoln National's obligation to advance funds to cover medical expenses. The Ninth Circuit then held that Lincoln National was entitled to waive the condition precedent. As a result, the Ninth Circuit found, Lincoln National's failure to require the Chitkins to sign a written reimbursement agreement did not affect Lincoln National's *848 rights to reimbursement. According to the Ninth Circuit, the Chitkins could not use "the murky contract language" to their advantage, and they had no right "to a windfall in the form of a double reimbursement, once from Lincoln National and again from the third party tortfeasors."
The Ninth Circuit's November 24, 1993 Memorandum concludes with the following line: "The judgment of the district court is REVERSED and the case REMANDED for entry of judgment in favor of Lincoln National."
In December 1993, the Chitkins filed a petition for rehearing with suggestion for rehearing en banc. In their petition, the Chitkins argued, inter alia, that no court had ever ruled on their affirmative defenses and that numerous issues of fact lingered. The Ninth Circuit ordered Lincoln National to respond to the Chitkins' petition for rehearing on January 5, 1994. Lincoln National filed its answer to the Chitkins' petition on January 20, 1994.
On March 9, 1994, the Ninth Circuit issued a two-sentence Order Amending Memorandum that states:
The memorandum disposition filed on November 24, 1993 is amended:
The last paragraph is deleted and replaced with: "The district court's grant of summary judgment in favor of the Cbitkins (sic) is reversed. The case is remanded to the district court for further proceedings consistent with this memorandum disposition."
Lincoln National filed its motion for summary judgment the same day this Court issued its mandate hearing notice, April 18, 1994.
This Court has continued this matter a number of times to allow further briefing. The parties have submitted three rounds of briefs: The second and third rounds of briefs address specific questions posed by this Court.
II. Discussion
A. Summary Judgment Standard
Fed.R.Civ.P. 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986).
In considering a motion for summary judgment, the Court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material facts exists. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 325, 106 S. Ct. at 2553-54. If the moving party does not bear the burden of proof at trial, he may discharge his burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 at 325, 106 S. Ct. at 2554. The moving party is not required to produce evidence showing the absence of genuine issue of material fact on such issues, nor must the moving party support its motion with evidence negating the nonmoving party's claim. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885, 110 S. Ct. 3177, 3185, 111 L. Ed. 2d 695 (1990); United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S. Ct. 51, 107 L. Ed. 2d 20 (1989). Instead, "the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied." Lujan, 497 U.S. at 885, 110 S. Ct. at 3187 (quoting Celotex, 477 U.S. at 323, 106 S. Ct. at 2553).
Once the moving party meets the requirement of Rule 56 by either showing that no genuine issue of material fact remains or that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who *849 "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S. Ct. at 2511.
To make such the required showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S. Ct. at 2553-54. Such evidence need not be in a form admissible at trial to avoid summary judgment. Id. The moving party is entitled to judgment as a matter of law if the nonmovant fails to make a sufficient showing of an element of its case with respect to which it has the burden of proof. Id.
B. Law of the Case
Under the law of the case doctrine, an appellate court's determination of a legal issue "must be followed in all subsequent proceedings in the same case." Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir.1985) (internal quotation marks omitted), cert. denied, 475 U.S. 1064, 106 S. Ct. 1374, 89 L. Ed. 2d 601 (1986). The Waggoner court adds:
The law of the case controls unless the first decision is clearly erroneous and would result in manifest injustice, there has been an intervening change in the law, or the evidence on remand is substantially different.
Id. The law of the case extends beyond the explicit decisions of the appellate court to issues decided by necessary implication. Eichman v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir.1989) (internal quotation marks omitted). The trial court is not bound by issues not actually considered by the appellate court. Exxon Corp. v. United States, 931 F.2d 874, 877 (Fed.Cir.1991).
When this Court issued its November 15, 1991 Order regarding the cross motions for summary judgment, it granted the Chitkins' motion for summary judgment on Lincoln National's counterclaim and denied Lincoln National's cross motion. This Court found that although Lincoln National asserted five different causes of action in its counterclaim, only two appeared viable: a contract claim and an unjust enrichment claim.
As for the contract claim, this Court interpreted the contract to require Lincoln National to obtain a written agreement for reimbursement before it could perfect its right to reimbursement. Since Lincoln National did not obtain such a written agreement, this Court held that Lincoln National could not recover under what this Court described as a poorly worded contractual reimbursement provision.
This Court also rejected Lincoln National's unjust enrichment cause of action. Lincoln National argued that allowing the Chitkins to keep the amounts they recovered in tort for medical expenses (expenses that Lincoln National already had paid) would amount to a windfall for the Chitkins. This Court rejected Lincoln National's argument after comparing Lincoln National's cause of action with a cause of action asserted by an insurance company in a 1990 Fourth Circuit case, Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985 (4th Cir.1990), cert. denied, 498 U.S. 982, 111 S. Ct. 512, 112 L. Ed. 2d 524 (1990). Although this Court followed Waller in holding that ERISA allows an unjust enrichment cause of action, this Court proceeded to distinguish Waller and found that Lincoln National could not recover under an unjust enrichment theory. In this case, unlike Waller, any reimbursement could not possibly benefit the Plan because the insurance company had already stopped doing business with the Plan. In addition, this Court found that Lincoln National had not shown one of the elements of a classic unjust enrichment cause of action, i.e. that the Chitkins must reasonably have expected to pay. In fact, one of the trustees of the plan acknowledged that even she was unaware of the reimbursement provision until after Danielle Chitkin's injury. Finally, this Court *850 found that allowing any recovery on an unjust enrichment theory would subvert the contract because Lincoln National had not obtained a written agreement for reimbursement.
The Ninth Circuit reversed this Court. The Ninth Circuit's brief Memorandum disposition, including its later-added one-sentence Order Amending Memorandum, leaves many questions unresolved. This Court begins its analysis of the Ninth Circuit's orders by noting the issues on which the Ninth Circuit has issued definitive rulings:
This case concerns the interpretation of an ERISA plan.[3]
Lincoln National has standing to bring an action for restitution under 29 U.S.C. § 1132(a)(3).
The reimbursement provision was designed to benefit Lincoln National and Lincoln National may seek reimbursement even if it waived its right to a written agreement by the Chitkins to repay sums advanced for medical expenses.[4]
Allowing the Chitkins to retain the amounts they recovered from the tortfeasors for medical expenses would amount to a windfall in the form of a double reimbursement to the Chitkins.
The parties have devoted substantial portions of the first two rounds of briefs to their discussions of other conclusions that can be drawn from the Ninth Circuit's orders. In fact, both sides have read a considerable amount into the Ninth Circuit's decision to issue the Order Amending Memorandum. Both sides appear to be willing to accept the following limited interpretation of the Ninth Circuit's actions: When the Chitkins argued in their motion for rehearing that this Court never considered the validity of the Chitkins' affirmative defenses to Lincoln National's counterclaim, the Ninth Circuit decided to remand the case for a hearing on those defenses. Although this Court can only speculate, it appears that the Ninth Circuit was persuaded to change the last line of its opinion because of its prior holding in Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir.1988), aff'd sub nom. Stewart v. Abend, 495 U.S. 207, 110 S. Ct. 1750, 109 L. Ed. 2d 184 (1990). In Abend, the Ninth Circuit noted that outstanding affirmative defenses prevented it from ordering the district court to enter judgment for the side against whom the affirmative defenses had been raised.
The Chitkins offer an alternative, bolder approach to the Ninth Circuit's amending order. According to the Chitkins, the Ninth Circuit's amending order leaves the necessary implication that at least one of the Chitkins' affirmative defenses is not invalid as a matter of law. The Chitkins explain that if the Ninth Circuit thought all of the Chitkins' affirmative defenses were invalid under ERISA, the Ninth Circuit would not have remanded the case for further proceedings.
Lincoln National also takes an aggressive stand on the Ninth Circuit's decision to amend its memorandum opinion. Lincoln National points out that the parties fully briefed the affirmative defenses in this Court before this Court issued its Order granting the Chitkins' summary judgment motion. In light of this fact, Lincoln National argues *851 that if any of the Chitkins' affirmative defenses were valid as a matter of law, the Ninth Circuit would have had to uphold this Court's decision. Lincoln National argues that the amending order was meant merely to allow this Court to consider the Chitkins' twelfth affirmative defense which states that Lincoln National may not seek reimbursement for amounts that the Chitkins recovered through a strict liability settlement or that were allocated to damages other than medical expenses.
Lincoln National argues in the alternative that the Ninth Circuit realized after its first opinion that it had instructed this Court to grant summary judgment to Lincoln National even though Lincoln National did not (because it could not) appeal this Court's Order denying its motion for summary judgment. As a result, Lincoln National's most aggressive argument goes, the Ninth Circuit did not care about any remaining substantive issues when it issued its Order Amending Memorandum. Instead, Lincoln National contends, the Ninth Circuit merely wanted to correct its procedural misstep.
Although this Court, like the parties, can only guess at the reasons behind the Ninth Circuit's decision to amend its Memorandum, this Court concludes that the Ninth Circuit intended to allow this Court to consider the Chitkins' affirmative defenses. If the Ninth Circuit implied anything about the validity of the affirmative defenses, it appears to have been nothing more than that at least one of the Chitkins' affirmative defenses was not invalid as a matter of law. As a result, this Court must consider as part of its decision today whether any of the Chitkins' affirmative defenses defeats or undermines Lincoln National's reimbursement right.
C. Lincoln National's Unjust Enrichment Cause of Action
This Court's analysis of Lincoln National's reimbursement right begins, as it must begin, with 29 U.S.C. § 1132(a)(3) and the Supreme Court's decision in Mertens v. Hewitt Assoc., ___ U.S. ___, 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993).
The Ninth Circuit held in its Memorandum decision that Lincoln National has standing to bring an action for restitution under section 1132(a)(3). Section 1132(a)(3) states:
A civil action may be brought ... by a participant, beneficiary, or fiduciary (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.
In the case at hand, Lincoln National may seek "other appropriate equitable relief ... to enforce the ... terms of the plan," namely the reimbursement provision.
The Supreme Court's decision in Mertens addresses the meaning of the phrase "other appropriate equitable relief." According to the Supreme Court, the phrase means "categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Mertens, ___ U.S. at ___, 113 S.Ct. at 2069 (emphasis and parentheses in original). In Mertens, the Supreme Court held that the plaintiffs, a class of former employees, could not state a claim for breach of fiduciary duties against an actuary. The actuary provided services to the plan but was not considered a plan "fiduciary." The plaintiffs characterized their suit as one for equitable relief under § 1132(a)(3), but the Court found that the plaintiffs were seeking monetary damages, not traditional equitable relief such as an injunction or restitution. Id. at ___, ___, 113 S.Ct. at 2065, 2068. The Court held that the plaintiffs could not bring a cause of action against the actuary outside of ERISA's six civil enforcement provisions, and ruled that the plaintiffs' purported § 1132(a)(3) action did not state a claim for equitable relief. Id. at ___-___, 113 S.Ct. at 2066-68.
Following Mertens, the Ninth Circuit reconsidered its approach to ERISA cases in Watkins v. Westinghouse Hanford Co., 12 F.3d 1517 (9th Cir.1993). In Watkins, the Ninth Circuit rejected the Watkinses' cause of action based on equitable estoppel because that cause of action did not fall within one of ERISA's six civil enforcement provisions. *852 Id. at 1528. The Watkinses claimed that Mr. Watkins's employer was estopped from altering its original calculation of Mr. Watkins's retirement benefits, even though its initial calculation had been in error. Id. at 1522. The court considered whether any of the Watkinses' claims were viable under any of ERISA's six civil enforcement provisions. The court specifically rejected the district court's conclusion that the Watkinses could bring their equitable estoppel claim under § 1132(a)(3). Id. at 1528. The Ninth Circuit found that the Watkinses' claim was essentially one for damages which was barred by the Supreme Court's holding in Mertens. Id. at 1527-28 & n. 5.
In Watkins the Ninth Circuit appears to have acknowledged that many of its prior opinions dealing with ERISA might have been off base. Specifically, the Watkins court suggested that the Ninth Circuit might have taken too many liberties in expanding the scope of ERISA through decisions applying federal common law, especially common law relating to equitable estoppel. Id. at 1527. One of the decisions the Watkins court questioned because of the case's reliance on equitable estoppel is Ellenburg v. Brockway, Inc., 763 F.2d 1091 (9th Cir.1985).
In Ellenburg the Ninth Circuit started from the premise that actions based on equitable estoppel were permissible under or despite ERISA, but found that the plaintiff had failed to demonstrate that he was entitled to such relief. Id. at 1096. After Mertens and Watkins, it appears that any part of Ellenburg that suggests that causes of action based on equitable estoppel can be brought outside the context of one of ERISA's six civil enforcement provisions is no longer good law. Mertens, ___ U.S. at ___-___, 113 S.Ct. at 2066-68; Watkins, 12 F.3d at 1528.
Despite the Ninth Circuit's efforts in Watkins to circumscribe the availability of equitable causes of action, equitable causes of action still are available when brought pursuant to § 1132(a)(3). In fact, in a recent decision, the Ninth Circuit suggested in dicta that an insurer may bring an equitable action under § 1132(a) to enforce a reimbursement provision in an ERISA plan. Pacificare, Inc. v. Martin, 34 F.3d 834, 837 (9th Cir.1994).[5] The district court held in the plaintiff's favor, finding that the plaintiff could bring an action under the federal common law of ERISA for unjust enrichment. Id. at 836. The Ninth Circuit reversed on the grounds that Pacificare did not state a cause of action under § 1132(a)(3) because the complaint invoked Waller and its discussion of federal common law causes of action rather than § 1132(a)(3). Id. at 836, 838.[6] The court, however, left open the possibility that Pacificare could amend its complaint to state a claim "under § 1132(a) seeking equitable relief to enforce the terms of the plan." Id. at 838.
In the case at hand, the Ninth Circuit already has held that Lincoln National has standing to bring an action seeking restitution under § 1132(a)(3). Although the court did not expressly go beyond its holding that Lincoln National had standing to bring such a cause of action, language in the Memorandum suggests that Lincoln National's unjust enrichment cause of action has merit. The Ninth Circuit found that the Chitkins would receive a "windfall" in the form of a "double reimbursement" if they were not required to repay Lincoln National for the medical benefits it had extended to them. In fact, the Ninth Circuit found no "plausible justification" for allowing the Chitkins to defeat Lincoln National's reimbursement right. In light of this language in the Memorandum, and the dicta in Pacificare, this Court finds *853 that Lincoln National properly may seek restitution in an effort to enforce the terms of the Plan (which expressly provides for reimbursement) and to prevent the unjust enrichment of the Chitkins. This Court discusses Lincoln National's rights to reimbursement under the Plan more fully below. See infra part II.D.5.
D. Affirmative Defenses
Although the Ninth Circuit's discussion of equitable estoppel in Ellenburg has been undermined by its decision in Watkins, Ellenburg does not appear to have been completely invalidated by subsequent Ninth Circuit and Supreme Court decisions. For example, the reasoning behind Ellenburg's discussion of equitable defenses to equitable claims under ERISA still appears to be valid.
The Ellenburg court ruled that even if the plaintiff could have stated a claim under principles of equitable estoppel, plaintiff's claim would have been barred by the plaintiff's unclean hands. 763 F.2d at 1097. Ellenburg submitted a false birth certificate in order to increase the amount of retirement benefits he could obtain. This, the court found, dirtied his hands and prevented him from seeking relief under the doctrine of equitable estoppel. Id. The Ninth Circuit's finding that the doctrine of unclean hands barred the plaintiff's equitable cause of action did not depend on the validity of that equitable cause of action. Instead, the Ninth Circuit appears to have found simply that equitable defenses are appropriate under ERISA whenever a defendant faces equitable claims.
Other federal courts have recognized or assumed the validity of equitable defenses to equitable claims under ERISA. E.g., In re HECI Exploration Co., Inc., 862 F.2d 513, 523 & n. 18 (5th Cir.1988) (considering equitable defense of waiver to plan member's action under ERISA to recover benefits); Holt v. Winpisinger, 811 F.2d 1532, 1541-42 (D.C.Cir.1987) (considering, but rejecting, plan administrators' equitable defenses); Donovan v. Robbins, 99 F.R.D. 593 (N.D.Ill. 1983). In Donovan, the court refused to "banish[] to the hinterlands the traditional equitable analysis" simply because Congress determined in ERISA that equitable relief should be available. Id. at 598-99.
This Court finds that simple logic and principles of due process of law support the proposition that litigants must be able to raise equitable defenses to equitable causes of action. Mertens' crackdown on the creation of new causes of action through the expansion of federal common law does not affect the validity of equitable defenses. No new suits will be permitted just because equitable defenses are allowed. Instead, parties seeking equitable relief will simply have to show that the equities are in their favor.
1. Prior material breach
The Chitkins raise the defense of prior material breach in their answer to Lincoln National's counterclaim. The doctrine, however, does not apply here because Lincoln National must seek equitable, not contractual, relief under ERISA. This Court will consider the Chitkins' allegations about Lincoln National's refusal to pay certain benefits in connection with the Chitkins' unclean hands defense.
2. Unclean hands
In the case at hand, the Chitkins argue that Lincoln National's efforts to secure an improper lien on the Chitkins' settlements with various tortfeasors, among other misconduct, demonstrates Lincoln National's dirtying of its hands in connection with its efforts to seek reimbursement.
The Chitkins base their unclean hands affirmative defense on Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 65 S. Ct. 993, 89 L. Ed. 1381 (1945). The case includes sweeping language about the applicability of the unclean hands doctrine:
The guiding doctrine in this case is the equitable maxim that "he who comes into equity must come with clean hands." This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is *854 rooted in the historical concept of a court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith.
Id. at 814, 65 S. Ct. at 997.
The doctrine of unclean hands applies only when the plaintiff's allegedly unclean conduct was willful or fraudulent. Mere negligence is not sufficient. Id. at 815, 65 S. Ct. at 997-98; Eresch v. Braecklein, 133 F.2d 12, 14 (10th Cir.1943); 27 Am.Jur.2d Equity § 138 at 674 (2d ed. 1966).
Courts typically do not apply the doctrine of unclean hands where the defendant has suffered no harm as a result of the plaintiff's actions. 27 Am.Jur.2d Equity § 144 at 681 ("[I]t has been held that the maxim should not be applied where the defendant has not been seriously harmed and the wrong complained of can be corrected."); 2 Spencer W. Symons, Pomeroy's Equity Jurisprudence § 399 at 99 (5th ed. 1941) [hereinafter Pomeroy's Equity Jurisprudence] (defendant must show that he has been injured by plaintiff's improper conduct before court will apply doctrine).
In addition, the doctrine applies only when the plaintiff's fraudulent or deceitful conduct relates to the controversy in issue. Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir.1985). According to the Ellenburg court, "In applying the doctrine [of unclean hands], `[w]hat is material is not that the plaintiff's hands are dirty, but that he dirtied them in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendants.'" Id. at 1097 (quoting Republic Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 349 (9th Cir.1963)).
Other courts and commentators have imposed different requirements concerning the closeness of the connection between the unclean acts and the right asserted. Compare Christensen v. Felton, 322 F.2d 323, 327 (9th Cir.1963) (plaintiff cannot rely on his own wrongful act to make a recovery) with Precision Instrument, 324 U.S. at 814, 65 S. Ct. at 997 (plaintiff not entitled to equitable relief where he is "tainted with inequitableness or bad faith relative to the matter in which he seeks relief"); 27 Am.Jur.2d Equity § 142 at 679 (unclean hands doctrine applies when wrongful conduct is "connected with, or related to, the dispute between the complainant and the defendant"); and Pomeroy's Equity Jurisprudence § 399 at 95 (plaintiff's conduct must have "affected the equitable relations subsisting between the two parties").
Not surprisingly, Lincoln National relies on those cases requiring a close connection between the plaintiff's conduct and the right sued upon. In fact, Lincoln National bases the bulk of its analysis on a principle articulated in Am.Jur.2d: "[I]f the complainant's equity is shown to have been founded upon conduct which was not inequitable, relief will not be denied because of acts which the complainant subsequently did in furtherance of the claim." 27 Am.Jur.2d Equity § 143 at 681. According to Lincoln National, the doctrine of unclean hands does not apply in the case at hand because the Chitkins have not even alleged that Lincoln National acted improperly when it created the right on which it seeks relief the reimbursement clause in the Plan. Lincoln National points out that all of the Chitkins allegations center on Lincoln National's actions in connection with enforcement of its reimbursement right and allegedly unclean acts related to reimbursement.
Lincoln National also argues at length that this Court cannot consider the doctrine of unclean hands because Lincoln National is asserting a contract-based right. In support of this argument Lincoln National cites Manufacturers' Finance Co. v. McKey, 294 U.S. 442, 447-48, 55 S. Ct. 444, 446-47, 79 L. Ed. 982 (1935).
Manufacturers' Finance Co. involved a contract for the sale of accounts receivable. Id. at 443-44, 55 S. Ct. at 445. Under the terms of the contract, Manufacturers' Finance advanced a sum of money to the Grigsby-Grunow Company essentially in exchange for its accounts receivable. Id. at 444, 55 S. Ct. at 445. When a creditor brought suit against Grigsby-Grunow in federal district court, that court appointed receivers for the company. Id. Manufacturers' Finance's interests were adversely affected by the appointment of receivers. As a result, Manufacturers' *855 Finance intervened in the receivership action "with a petition seeking compliance on the part of the receivers with the terms of its contract." Id. at 445, 55 S. Ct. at 446.
The district court fashioned a decree under its powers in equity that did not give Manufacturers' Finance the damages to which it would have been entitled under the contract. Id. at 446, 55 S. Ct. at 446. The court of appeals affirmed. Id. The Supreme Court reversed, finding that the district court had erred by applying equitable principles, such as the doctrine of unclean hands, in a legal action. Id. at 448-49, 55 S. Ct. at 447. Although the Supreme Court found that Manufacturers' Finance brought its petition in a court of equity, it noted that the "petitioner here did not seek equitable relief." Id. at 449, 55 S. Ct. at 447. The Court added, "It seems plain enough that in no aspect of the case is any equitable principle involved." Id. at 451, 55 S. Ct. at 448.
Lincoln National also cites 11 B.E. Witkin, Summary of California Law Equity § 3 (9th ed. 1990) in support of its argument that equitable defenses should not apply to its contract-based equitable claim. That section, however, merely states that "there is no right to equitable relief or an equitable remedy when there is an adequate remedy at law." Id. (emphasis in original). In the case at hand, Lincoln National may assert its reimbursement right only through an equitable action. Mertens v. Hewitt Assoc., ___ U.S. ___, ___-___, 113 S. Ct. 2063, 2068-69, 124 L. Ed. 2d 161 (1993). Lincoln National has no adequate remedy at law. Its action, unlike that in Manufacturers' Finance, plainly involves equitable principles. Therefore, Lincoln National's reliance on Manufacturers' Finance does not help it convince this Court that it should have the right to assert an equitable claim but not be subject to traditional equitable defenses.
The Chitkins argue that Lincoln National dirtied its hands in a number of different ways. For example, the Chitkins argue that Lincoln National filed an improper lien, refused to pay therapy benefits, drastically raised rates for Plan members in an effort to cancel its insurance contract with the Plan, and repeatedly worked to reduce Danielle Chitkin's nursing care.
a. Lincoln National's $712,000 lien
According to the Chitkins, Lincoln National dirtied its hands by filing a notice of lien in state court in the amount of $712,000. The Chitkins argue that Lincoln National knew at the time it filed this lien that Lincoln National's right to reimbursement, if any, would be less than $712,000. According to the Chitkins, the Plan required Lincoln National to deduct some portion of the amount it could seek in reimbursement from an insured individual to account for the attorneys fees and costs the insured expended in obtaining a settlement. Since Lincoln National knew about the required deduction for attorneys fees, the Chitkins argue, Lincoln National acted improperly when it sought a lien for the full amount of benefits it paid on Danielle Chitkins' behalf. The Chitkins allege that Lincoln National's lien delayed final settlements in their tort cases, causing the Chitkins to lose interest they otherwise would have received on settlement funds. The Chitkins' counsel explains that after great effort on his part he finally succeeded in convincing the various tortfeasors to ignore the lien. According to the Chitkins, Lincoln National ultimately abandoned its lien.
The Chitkins also contend that the mere act of filing a lien in state court, regardless of the amount, soiled Lincoln National's hands. The Chitkins point out that federal courts have exclusive jurisdiction over civil actions brought under 29 U.S.C. § 1132(a)(3). 29 U.S.C. § 1132(e). As a result, the Chitkins contend, Lincoln National had to have known it improperly was invoking state court jurisdiction to obtain an unfair advantage when it filed its notice of lien.
Lincoln National counters that it filed its lien only after the Chitkins' counsel announced that the Chitkins would not cooperate with Lincoln National regarding Lincoln National's efforts to seek reimbursement. Lincoln National argues that it was forced to seek the full $712,000 because the Chitkins' counsel would not give Lincoln National information concerning the Chitkins' attorneys *856 fees and costs. Lincoln National stresses that it never abandoned its lien.
Although Lincoln National filed a lien for an amount in excess of what it properly could recover, this Court finds that its filing of the lien did not rise to the level of unclean hands. Lincoln National cannot bear the blame for the Chitkins' counsel's refusal to provide Lincoln National with crucial information about costs and attorney fees. In addition, this Court questions whether the amount of the lien caused any injury to the Chitkins that would not have resulted from a lien in the proper amount: A lien for a reduced amount almost certainly would have delayed settlement negotiations in the same way the $712,000 lien did.
Furthermore, this Court finds that Lincoln National did not fraudulently or willfully invoke the jurisdiction of the wrong court when it filed its notice of lien. Only after Mertens and Pacificare has it become clear that Lincoln National may assert its right to reimbursement only through an equitable action brought under § 1132(a)(3). At the time Lincoln National filed its lien, any number of possible avenues of recovery could have appeared available to reasonable attorneys and insurance companies. In short, Lincoln National's conduct did not sufficiently dirty its hands to deny it the right to assert its reimbursement right by filing a notice of lien in state court.
b. Lincoln National's refusal to pay therapy benefits
The Chitkins next contend that Lincoln National dirtied its hands when it refused to pay for Danielle Chitkin's physical and occupational therapy after Danielle used up her Pacificare therapy benefits. The Chitkins originally pointed to this conduct as part of a separate affirmative defense, prior material breach.
The Chitkins' unclean hands defense based on Lincoln National's conduct in connection with therapy benefits fails for two reasons. First, Lincoln National's refusal to pay therapy benefits has nothing to do with its right to seek reimbursement under the plan. According to the Memorandum disposition, Lincoln National held a right to future reimbursement when it paid for Danielle's medical care. Lincoln National's right to reimbursement matured when the Chitkins settled their tort cases with the various tortfeasors. Actions Lincoln National took other than those related to the creation and enforcement of this reimbursement right fall outside the scope of the doctrine of unclean hands. See Ellenburg, 763 F.2d at 1097; 27 Am.Jur.2d Equity § 143 at 681. Second, the Chitkins' affirmative defense based on Lincoln National's failure to pay therapy benefits would be more appropriately characterized as a cause of action under ERISA for failure to pay benefits. If this Court barred Lincoln National's unjust enrichment cause of action because of its unclean conduct in connection with payment of therapy benefits, it would grant the Chitkins a windfall. Under ERISA, the Chitkins may recover at most the value of the unpaid benefits, roughly $20,000. Under the Chitkins' analysis, the Chitkins could block Lincoln National's reimbursement right worth roughly $500,000. In effect, the Chitkins would recover the value of the unpaid benefits, plus some bonus amount due to Lincoln National's alleged bad faith conduct even though ERISA does not permit bad faith actions against ERISA-plan insurance companies. See 29 U.S.C. § 1132(a)(1)(B); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S. Ct. 1549, 1551-52, 95 L. Ed. 2d 39 (1987) (ERISA preempts all state common law causes of action, including those under which a participant could seek punitive or general damages).
c. Lincoln National's decision to raise rates
The Chitkins point to a third example of Lincoln National's unclean hands. The Chitkins contend that Lincoln National engaged in willful or tortious misconduct when it drastically raised the rates it charged Plan participants. Over the course of two years, Lincoln National nearly tripled the rates it charged Plan members. The Chitkins allege that Lincoln National increased the rates in an effort to force plan participation down to a level that would allow Lincoln National to cancel its contract with the Plan. In so doing, the Chitkins argue, Lincoln National terminated Danielle's coverage before she exhausted *857 her $1,000,000 lifetime limit of coverage, saving Lincoln National roughly $300,000.
Once again, the Chitkins' allegations in support of their affirmative defense sound more like a cause of action for denial of benefits than an affirmative defense to Lincoln National's reimbursement right. Even if Lincoln National deprived the Chitkins of their implied right to lifetime coverage when it terminated the Plan, Lincoln National's decision to terminate was at most tangentially related to its creation and enforcement of its reimbursement right.
d. Lincoln National's efforts to reduce nursing care
Finally, the Chitkins argue that Lincoln National dirtied its hands when it repeatedly endeavored to reduce Danielle Chitkin's nursing care. According to the Chitkins, Lincoln National first misled Danielle's doctor about John Chitkin's and Nancy Chitkin's positions on full-time nursing care in an effort to reduce the number of hours of care. The Chitkins add that Lincoln National also began to challenge doctors' characterization of Danielle's care as noncustodial in an effort to reduce Danielle's nursing care. Once again, however, Lincoln National's allegedly unclean conduct was collateral to its efforts to assert its reimbursement right.
3. Waiver, election of remedies, estoppel and res judicata
The Chitkins raise a number of additional affirmative defenses based on Lincoln National's filing of its notice of lien. In these defenses, the Chitkins argue that Lincoln National either should have pursued its lien in state court or that it never should have filed the lien in state court if it knew that this Court had exclusive jurisdiction over Lincoln National's claim.
As noted above, however, this Court will not exercise its equitable discretion to deny Lincoln National's right to reimbursement because of the lien. After Mertens, it is clear that Lincoln National may assert its reimbursement right only under § 1132(a)(3), a section subject to exclusive federal jurisdiction. At the time Lincoln National filed its lien, however, the law was much less certain. The Chitkins have not pointed to any evidence suggesting that Lincoln National knew at the time it filed its lien that a state court could not hear its complaint for reimbursement.
In addition, the Chitkins have not shown that they have a valid estoppel or election of remedies defense.[7] They have not demonstrated that they have been prejudiced by Lincoln National's decision to seek a remedy other than by way of its lien.
The Chitkins' argument that res judicata bars Lincoln National's counterclaim also is without merit. Lincoln National's right to reimbursement never was adjudicated and the only final judgment between the Chitkins and Lincoln National concerning the counterclaim has been reversed by the Ninth Circuit. Consequently, res judicata does not apply. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 & n. 4, 99 S. Ct. 645, 649 & n. 4, 58 L. Ed. 2d 552 (1979) ("Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.").
4. Unjust enrichment
In their seventh affirmative defense, the Chitkins argue that Lincoln National, not the Chitkins, would be unjustly enriched if this Court granted Lincoln National's motion for summary judgment. According to the Chitkins, Lincoln National recovered at least a substantial portion of its Chitkin-related expenses through huge rate hikes for Jerome's employees before Lincoln National terminated the Plan.
In response, Lincoln National argues that the Ninth Circuit already has rejected the Chitkins' unjust enrichment defense and that the Ninth Circuit's decision on the unjust enrichment issue binds this Court under the law of the case doctrine. According to Lincoln *858 National, the parties briefed the unjust enrichment affirmative defense to the Ninth Circuit, and the Ninth Circuit pointed out that the Chitkins would enjoy a windfall double recovery if they were not required to repay Lincoln National. In addition, Lincoln National argues, the Ninth Circuit would have been compelled to uphold this Court's decision if it found in the Chitkins' favor on their unjust enrichment defense: Had the Chitkins' unjust enrichment defense been valid, Lincoln National argues, the defense would have defeated Lincoln National's right to reimbursement.
The Chitkins maintain that the Ninth Circuit did not necessarily reject their unjust enrichment defense. They suggest, quite plausibly, that the Ninth Circuit did not consider the Chitkins' affirmative defenses until after the Ninth Circuit issued its Memorandum disposition. The Chitkins also argue that the Ninth Circuit would not have had to reject out of hand the Chitkins' unjust enrichment argument to reverse this Court's decision. Instead, according to the Chitkins, the Ninth Circuit could have reversed this Court and remanded to allow this Court to explore the facts surrounding the Chitkins' unjust enrichment defense.
This Court finds that the Chitkins have the better of the argument concerning the law of the case on the unjust enrichment affirmative defense. The Ninth Circuit did not expressly state that it found in Lincoln National's favor on the Chitkins' unjust enrichment affirmative defense. In addition, the Ninth Circuit would not have had to find in Lincoln National's favor on the unjust enrichment affirmative defense to reverse this Court: It only would have had to find that issues of fact still existed concerning the Chitkins' unjust enrichment affirmative defense.
Despite their success on the law of the case issue, the Chitkins still cannot prevail on their unjust enrichment affirmative defense. First, the Chitkins have not met the traditional standard for unjust enrichment. They have not shown that the circumstances that would surround Lincoln National's receipt of repayment would make it unjust for Lincoln National to retain reimbursed funds.
If anything, Lincoln National stands to be justly enriched. In order to obtain reimbursement, Lincoln National is seeking equitable relief in an effort to enforce the written terms of an ERISA plan a goal favored by the statute. See § 1132(a)(3). In fact, Lincoln National is attempting to enforce the same reimbursement provision that, among other provisions, allowed Lincoln National to charge Jerome's and its employees roughly 7% less than they otherwise would have had to pay.
The Chitkins' unjust enrichment defense also fails because they have offered speculation, but no firm evidence, regarding the extent to which Lincoln National recouped its expenses through increased premiums. Lincoln National, by contrast, has offered the declaration of its president, William L. Bogardus. In his declaration, Bogardus unequivocally states that Lincoln National received no reimbursement through the Plan or the Plan's pooling mechanism to offset its expenses on behalf of Danielle Chitkin. The Chitkins have not met the burden on them to come forward with evidence showing that material issues of fact exist concerning their unjust enrichment affirmative defense.
5. Allocation
In their twelfth affirmative defense and in their oppositions to both of Lincoln National's motions for summary judgment, the Chitkins have argued that Lincoln National is not entitled to full reimbursement. According to the Chitkins, the $1,950,000 they recovered from Wolf Industries is not subject to the Return of Over Payment clause, because the Chitkins recovered from Wolf on a strict liability cause of action. The Chitkins argue that the Return of Over Payment clause permits Lincoln National to seek reimbursement only from amounts insured individuals recover as a result of the negligent or intentional acts of third parties.
In addition, the Chitkins contend in their twelfth affirmative defense that Lincoln National's reimbursement right does not "apply to any recovery for anything other than medical expenses." With the exception of their settlement with Ed and Judy Way, all of the Chitkins' settlements with the various tortfeasors *859 apportion less than 25% of the settlement amount to medical expenses.
Under the Chitkins' analysis, Lincoln National would be entitled to recover an amount less than $250,000.[8]
Although the Chitkins' argument about the strict liability characterization of the Wolf settlement appears valid, their argument concerning the effects of the allocations between general and specific damages breaks down in the face of the Plan's language and the doctrine of unjust enrichment.
a. Construction of ERISA plan language
Courts interpreting repayment provisions in ERISA plans uniformly have held that the language of a plan's repayment provision establishes the extent of the plan's or insurance company's reimbursement right, even when the plan's or insurance company's cause of action is for unjust enrichment. When the reimbursement provision states that the plan may recover from any amount the insured may receive from a third party, courts have ignored the settling parties' allocation of the settlement and have awarded the plan full reimbursement. E.g., McIntosh v. Pacific Holding Co., 992 F.2d 882, 884 (8th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 441, 126 L. Ed. 2d 375 (1993); Singleton v. Board of Trustees, of IBEW Local 613, 830 F. Supp. 630, 632 (N.D.Ga.1993); Cutting v. Jerome Foods, Inc., 820 F. Supp. 1146, 1155 (W.D.Wis.1991), aff'd, 993 F.2d 1293 (7th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 308, 126 L. Ed. 2d 255 (1993); Dugan v. Nickla, 763 F. Supp. 981, 984 (N.D.Ill.1991); cf. U.S. Healthcare, Inc. v. O'Brien, 868 F. Supp. 607 (S.D.N.Y.1994) (ERISA plan not entitled to reimbursement from settlement in which no funds were allocated to medical expenses when right of recovery clause specifically limited plan's reimbursement right to amounts the insured received from a third party to compensate him for his medical expenses).
The McIntosh court held that the terms of the particular plan controlled the resolution of that case. McIntosh, 992 F.2d at 884. The court construed the plan's broad language to permit the plan to assert "entitlement to compensation, either for so-called `economic damages,' such as medical expenses and loss of earning capacity, or for so-called `noneconomic damages,' such as physical pain and suffering." Id. at 884.
The Singleton court granted summary judgment for an ERISA plan when the plan sought to recover its expenses for the insured's medical care from the insured's settlement for pain and suffering. Singleton, 830 F.Supp. at 632. The court explained that "when the plan summary and subrogation agreement provide in broad terms, such as any recovery relating to the injury, that settlement proceeds are to be repaid to the plan, such provisions are to be read to include all compensation received, including `non-economic damages' such as pain and suffering." Id. at 631-32 (emphasis in original). The Singleton court explained the rationale behind its ruling: "[F]ailure to repay all amounts received in settlement constitutes a double recovery, and ... Congress intended in ERISA `to ensure that plan funds are administered equitably, and that no one party, not even plan beneficiaries, should unjustly profit.'" Id. (quoting Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 993 (4th Cir.), cert. denied, 498 U.S. 982, 111 S. Ct. 512, 112 L. Ed. 2d 524 (1990)).
In U.S. Healthcare, Inc. v. O'Brien, 868 F. Supp. 607, 613-14 (S.D.N.Y.1994), the Southern District of New York analyzed the case before it under an unjust enrichment analysis and found that the language of the plan still controlled. In U.S. Healthcare, the ERISA plan contained a reimbursement provision permitting the plan to seek reimbursement only from amounts the insured received from tortfeasors "`(i) for hospital, medical or surgical services; and (ii) only to the extent that those services were provided by [the plan].'" Id. at 611 (quoting the right of recovery clause). Nevertheless, U.S. Healthcare attempted to recover payments it advanced to its insured even though the settlement *860 orders, approved by a state court, allocated none of the settlement between the insured and a tortfeasor to medical expenses. Id. at 609-10, 610-11. U.S. Healthcare argued that it should be able to recover the benefits it advanced under an unjust enrichment theory regardless of the language of the plan. Id. at 613-14. The Southern District of New York rejected U.S. Healthcare's analysis, because "according to the terms of the contract, USH should reasonably expect to be reimbursed, and the O'Briens should reasonably expect to reimburse USH, `only when' the O'Briens receive money for `hospital, medical or surgical services.'" Id.
These courts' analyses are consistent with the language of § 1132(a)(3) which allows fiduciaries to seek equitable relief in order to enforce the terms of ERISA plans. The statute itself indicates that the extent of the equitable relief available to the Plan turns on the language of the Plan. § 1132(a)(3)(B)(ii) (certain parties may seek equitable relief "to enforce ... the terms of the plan.").
b. Construction of the Return of Over Payment clause
In the case at hand, the Return of Over Payment clause in the Plan permits Lincoln National to seek reimbursement "from any amount of money received by the insured individual from the third party, or its insurer." (emphasis added). The Return of Over Payment clause continues, "The repayment will be to the extent of the benefits paid by Lincoln National, but will not exceed the amount of the payment received by the individual from the third party, or its insurer." The clause purports to be binding on the insured individual "whether ... the medical or dental charges ... are itemized in the third party payment." The language in the reimbursement provision in the Plan appears to favor the Plan to an even greater extent than plan language in McIntosh, Singleton, and Dugan. The terms of the Plan do not in any way imply that Lincoln National would be able to recover only from settlement funds allocated to medical expenses.
Language in the Plan limiting the Plan's right of recovery to medical or dental charges resulting from the negligent or intentional act of a third party suggests that the funds received by the Chitkins by way of their settlement with Wolf on a strict liability theory are not subject to the Return of Over Payment clause. Although the Plan does not expressly rule out the possibility that strict liability settlements are subject to the reimbursement provision, this Court will construe all doubts about this point in favor of the insured parties. See Saltarelli v. Bob Baker Group Medical Trust, 35 F.3d 382, 387 (9th Cir.1994).
c. The strict liability characterization of the Wolf settlement
Lincoln National contends that this Court should ignore the strict liability characterization of the Wolf settlement for two reasons. First, Lincoln National argues that the Wolf Settlement cannot properly be characterized as the settlement of a strict liability cause of action. Second, Lincoln National contends that it cannot be bound by the terms of the Chitkins' settlement with Wolf because Lincoln National was not a party to those proceedings.
Lincoln National argues that the strict liability provided for in Kriegler v. Eichler Homes, Inc., 269 Cal. App. 2d 224, 227, 74 Cal. Rptr. 749 (1969), applies only to mass produced items. Since the duck ponds were not mass produced, Lincoln National argues, Wolf could not be strictly liable for Danielle's injuries that resulted from falling in the pond.
Lincoln National's analysis is flawed. California courts did not stop at mass produced items. In Del Mar Beach Club Owners Assoc., Inc. v. Imperial Contracting Co., 123 Cal. App. 3d 898, 176 Cal. Rptr. 886 (1981), a California Court of Appeal held that the defendants, who "designed, developed, and constructed" the improvements on real property, could be held strictly liable for defects such as: "the cracking, chipping and peeling of the tennis court surfaces; the rusting and corroding of exterior railings and guardrails; the sinking of the pavement on the east side of the pool; the death of several trees; the subsiding of the grading and paving on the eastern portion of the realty; the leaking of water within the garage and miscellaneous stairwells; and the rusting and corroding of *861 numerous door and window sills throughout the units." Id. at 912-13, 176 Cal. Rptr. 886.
The Del Mar Beach Club court relied on Stuart v. Crestview Mut. Water Co., 34 Cal. App. 3d 802, 811, 110 Cal. Rptr. 543 (1973). Del Mar Beach Club, 123 Cal.App.3d at 913, 176 Cal. Rptr. 886. The Stuart case involved a single defective water distribution system. Neither the Stuart nor the Del Mar Beach Club court appears to have considered whether the defective items were "mass produced."
If a developer can be held strictly liable for game-threatening defects in tennis courts, a developer certainly can be strictly liable for life-threatening defects in duck ponds. The number of duck ponds produced by Wolf is irrelevant. Instead, the only relevant factors appear to be that Wolf had responsibility for producing the ponds and that a reasonable home buyer would not hire its own architect or engineer to evaluate the design of the ponds before purchasing a house in the development. See Del Mar Beach Club, 123 Cal.App.3d at 911-12, 176 Cal. Rptr. 886.
Lincoln National's argument that it should not be bound by the Wolf settlement because Lincoln National was not a party to the proceedings between the Chitkins and Wolf also fails to persuade this Court that it should ignore the strict liability characterization of the Wolf settlement. The Chitkins argue persuasively that Lincoln National could have asserted some control over litigation between the Chitkins and the tortfeasors by intervening in the litigation. Since Lincoln National did not attempt to intervene, the Chitkins argue, Lincoln National should not be heard to question the terms of the settlement.
California law offered Lincoln National at least a chance to intervene. California Code of Civil Procedure § 387(a) provides, in pertinent part, that "[u]pon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding." Courts interpreting section 387(a) have found that it vests discretion in the trial court to determine whether to permit intervention. E.g., California Physicians' Serv. v. Superior Ct., 102 Cal. App. 3d 91, 95, 162 Cal. Rptr. 266 (1980). Before deciding to allow a third party to intervene, courts must find that 1) "the intervener's interest in the litigation must be direct and immediate rather than consequential," 2) "the issues must not be enlarged by the intervention," and 3) "the reasons for intervention must outweigh the rights of the original parties to litigate in their own way." California Physicians,' 102 Cal.App.3d at 95, 162 Cal. Rptr. 266; People ex rel. Rominger v. County of Trinity, 147 Cal. App. 3d 655, 660-61, 195 Cal. Rptr. 186 (1983); Fireman's Fund Ins. Co. v. Gerlach, 56 Cal. App. 3d 299, 128 Cal. Rptr. 396 (1976).
In the case at hand, Lincoln National probably could have met the burden on it to show that it satisfied all three factors. Lincoln National's interest in the litigation obviously was substantial. Characterization of the Chitkin's cause of action against Wolf and the allocation of damages in all but one of the Chitkins' settlements with various tortfeasors have affected Lincoln National's reimbursement right under the plan. In addition, it appears that the same issues probably would have arisen in the underlying litigation had Lincoln National intervened; the issues simply might have been resolved differently. For example, the parties probably would have had to allocate amounts between general and specific damages. The allocation just might have been different with Lincoln National present. Finally, Lincoln National's interests in the settlements probably would have outweighed the interests of the Chitkins and the various tortfeasors in controlling the course of the litigation. The Chitkins had an obvious though not necessarily cognizable interest in keeping Lincoln National out of its settlement with Wolf: A settlement premised on strict liability would freeze out Lincoln National's reimbursement right. Wolf might have had a legitimate interest in characterizing the settlement as one for strict liability a settlement agreement acknowledging negligent conduct might have harmed its ability to obtain insurance at reasonable rates in the future. Nevertheless, Lincoln National's interest in protecting its legitimate reimbursement rights almost certainly would have trumped the Chitkins' and Wolf's *862 interests in pursuing litigation as they saw fit. In short, Lincoln National cannot say that any efforts it might have made to intervene in the state court proceedings would have been in vain. Unlike the insurance company in Provident Life & Accident Ins. Co. v. Linthicum, 930 F.2d 14, 15 (8th Cir. 1991), Lincoln National did not even attempt to intervene in the state court proceedings between the Chitkins and Wolf. Consequently, this Court will not permit Lincoln National to challenge, after the fact, the terms of the settlement, including the strict liability characterization.
d. Application of the Return of Over Payment clause to the facts at hand
The Fourth Circuit articulated a test for unjust enrichment in Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985 (4th Cir.1990). Waller involved an ERISA plan, an insurance company, an insured, and a reimbursement provision similar to that in the case at hand. Id. at 986. The court explained that "three elements encompass the equitable remedy of unjust enrichment and quasi-contract:"
the plaintiff must show that (1) he had a reasonable expectation of payment, (2) the defendant should reasonably have expected to pay, or (3) society's reasonable expectations of person and property would be defeated by nonpayment.
Id. at 993-94 (citing C. Kaufman, Corbin on Contracts § 19A, at 50 (Supp.1989)).
In Waller, as in the case at hand, the insurance company did not demand a written reimbursement agreement from the insured before advancing payments for medical care. Id. at 986. Nevertheless, the Fourth Circuit held in Provident's favor, noting that "the facts of the instant case fit the archetypal unjust enrichment scenario." Id. at 993. The Fourth Circuit found that Provident reasonably expected to be reimbursed; that Waller was aware of the "Acts of Third Parties" provision in the ERISA plan when she requested and accepted benefits; and society's interests in efficient ERISA plan administration would be served by allowing Provident to obtain equitable relief. Id. at 994.
The Chitkins' twelfth affirmative defense is valid in part and invalid in part under the Waller court's unjust enrichment analysis. On its face, the reimbursement provision appears to make any funds recovered through settlement subject to Lincoln National's reimbursement right, as long as those settlement funds were not obtained by way of a strict liability settlement. As a result, Lincoln National had a reasonable expectation of repayment from any settlement (with the exception of a strict liability settlement) regardless of any allocation within the settlement. In addition, the Chitkins had at least constructive notice that any amount they might recover would be subject to Lincoln National's reimbursement right. Finally, society would reasonably expect an insurance company to enforce the terms of an ERISA plan. If this Court were to construe the Plan in the manner suggested by the Chitkins, insured individuals could defeat their plan's interests by entering into collusive settlements. Collusive settlements would increase uncertainty, and uncertainty surrounding ERISA plans' rights to repayment ultimately would increase plans' costs, defeating society's reasonable interest in efficient ERISA plans.
The tortfeasors settled with the Chitkins for $3,256,967.20. The parties to the settlements allocated eight percent of each of the settlements (except the Ed and Judy Way settlement) to John and Nancy Chitkin's future wrongful death claims.[9] Of the $2,996,409.82 remaining, $1,794,000 (92% of $1,950,000) came from the Wolf strict liability settlement which is not subject to Lincoln National's reimbursement right. That leaves $1,046,409.82 from which Lincoln National may seek recovery. The Chitkins' attorney received $744,102.45 in attorneys fees on a contingent fee basis for obtaining a $2,996,409.82 recovery for the Chitkins. In other words, he received 24.8% of Danielle Chitkin's total recovery.
*863 Using the 24.8% figure, this Court finds that under the terms of the Return of Over Payment provision, Lincoln National must deduct 24.8% from its $701,048.66 reimbursement request to account for its pro rata share of attorneys fees. In other words, Lincoln National is entitled to $701,048.66 minus $173,860.08 (24.8% of $701,048.66) for a total of $527,188.60.
E. Attorney Fees and Costs
Lincoln National asks this Court to exercise its discretion under 29 U.S.C. § 1132(g)(1) to award it attorneys fees and costs. The Ninth Circuit articulated factors for district courts to consider when ruling on requests for attorney fees and costs in Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir.1980). The Ninth Circuit wrote:
[D]istrict courts should have guidelines to apply in the exercise of their discretion under § 1132(g). They should consider these factors among others: (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties' positions.
Id. at 453. Accord Losada v. Golden Gate Disposal Co., 950 F.2d 1395, 1401 (9th Cir. 1991); Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 590 (9th Cir.1984). The Ninth Circuit also has stated, however, that "[n]o one of the Hummell factors ... is necessarily decisive, and some may not be pertinent in a given case." Carpenters So. Cal. Admin. Corp. v. Russell, 726 F.2d 1410, 1416 (9th Cir.1984).
In considering a motion for attorneys fees, the district court "should apply its discretion consistent with the purposes of ERISA, those purposes being to protect employee rights and to secure effective access to federal courts." Smith, 746 F.2d at 589.
In the case at hand, the Hummell factors do not favor Lincoln National. First, Lincoln National argues that the Chitkins have recovered more than $3,200,000 through settlement but refuse to reimburse Lincoln National under the Plan. The Chitkins' refusal to pay, Lincoln National argues, demonstrates their bad faith. This Court, however, does not consider the Chitkins' refusal to forego their defense bad faith conduct. Due process guarantees the Chitkins the right to defend against Lincoln National's law suit, the right to point out the murky language of the Plan, and to challenge Lincoln National's conduct in enforcing the Plan.
As for the second factor, this Court will assume without deciding that the Chitkins could satisfy an award of attorneys fees.
The third factor requires this Court to determine whether an award of fees against the opposing parties would deter others from acting under similar circumstances. In the case at hand, this Court would not want to deter individuals in the Chitkins' position from mounting vigorous defenses. The Chitkins challenged a poorly worded term of a plan and an insurance company's right to recover based on that term. Their efforts might lead to more precision in the drafting of ERISA plans in the future. The Chitkins also raised novel defenses under ERISA and have helped flesh out the law of affirmative defenses under the statute.
The fourth factor favors Lincoln National. Lincoln National sought to enforce a term in an ERISA plan. By demonstrating the validity of the reimbursement provision, Lincoln National demonstrated that ERISA plans may use such cost-saving provisions. Lincoln National clearly took steps toward clarifying significant legal questions about ERISA.
Finally, this Court must consider the relative merit of the parties' positions. Lincoln National convinced two Ninth Circuit judges that it could bring an action for reimbursement. One Ninth Circuit judge and one district judge did not agree. In other words, Lincoln National is far from a clear winner in this case.
Although Lincoln National took steps toward clarifying the law of ERISA, Lincoln National has not shown that the Chitkins did *864 not also make a contribution to the law or that the Chitkins acted in bad faith in opposing Lincoln National's request for reimbursement. This is an exceptionally close case that has required extensive briefing of a number of complicated issues. The Hummell factors do not tip in Lincoln National's favor. Both sides should bear their own attorneys fees and costs.
IV. Conclusion
For the reasons given above, Lincoln National's motion for summary judgment is GRANTED. Lincoln National is entitled to restitution in the amount of $527,188.60. Lincoln National is not entitled to attorneys fees or costs under 29 U.S.C. § 1132(g)(1).
IT IS SO ORDERED.
ATTACHMENT
APPENDIX
On November 24, 1993 the Ninth Circuit issued the following order as a Memorandum:
Before: NORRIS, WIGGINS, and O'SCANNLAIN, Circuit Judges.
This case concerns the interpretation of a provision of an ERISA plan. The district court granted summary judgment in favor of the Chitkins on Lincoln National's counterclaim for reimbursement of money paid to cover their medical expenses. Lincoln National appeals the district court's judgment, and we reverse.
Lincoln National issued a group insurance policy to an ERISA employee benefit plan. Danielle Chitkin, the daughter of plan member John Chitkin, was injured in an accident, and Lincoln National paid $701,048.66 to the Chitkins to cover Danielle's medical expenses. The Chitkins eventually settled their claims against a number of third party tortfeasors, receiving a total of $3,256,967.20. Lincoln National asked the Chitkins to repay the sum they had received from the insurance company. The Chitkins refused. The Chitkins subsequently brought an action against Lincoln National, alleging that the insurer had breached its duties to them by terminating its coverage of the ERISA plan. Lincoln National filed a counterclaim, seeking reimbursement for monies the Chitkins recovered from the settlement with the third party tortfeasors.
The Chitkins argue that Lincoln National lacks standing, under 29 U.S.C. § 1132(a)(3), to bring its counterclaim for restitution of sums advanced because it is no longer a fiduciary of the ERISA plan. We disagree. A fiduciary's responsibilities do not suddenly terminate when the fiduciary ceases to serve as the insurer of the ERISA plan. They continue until all outstanding claims and issues between the insurer and the beneficiaries have been resolved.
The merits of this appeal center around an extremely poorly-drafted provision of the Plan's contract with Lincoln National. The provision states:
Payment made for charges must be returned to Lincoln National if:
. . . . .
2. a third party is determined to be liable for such charges.
If an individual insured under the policy has
a. medical or dental charges ...
as a result of the negligence or intentional act of a third party, and makes a claim to Lincoln National for benefits under the policy for such charges ..., the insured individual or legal representative of minor ... must agree in writing to repay Lincoln National from any amount of money received by the insured individual from the third party, or its insurer. The repayment will be to the extent of the benefits paid by Lincoln National, but will not exceed the amount of the payment received by the individual from the third party, or its insurer....
The repayment agreement will be binding upon the insured individual (or legal representative of a minor ...) whether:
a. the payment received from the third party, or its insurer, is the result of:
1) a legal judgment; or
*865 2) an arbitration award; or
3) a compromise settlement; or
4) any other arrangement
Had Lincoln National been less sloppy in its draftsmanship, we are confident that this entire dispute could have been avoided. Nonetheless, the case before us requires us to interpret the contractual provision as it exists, and it is to that task that we now turn.
The district court concluded, and the Chitkins argue on appeal, that under part 2.a. of the quoted provision, Lincoln National is entitled to reimbursement only if the Chitkins signed a written reimbursement agreement. Because they did not, the Chitkins argue that they are entitled to keep the sum Lincoln National had advanced to them to cover Danielle Chitkin's medical expenses.
The district court treated this contractual provision as if it were designed for the benefit of the Chitkins. We read it differently. In our view, it makes sense only if read as benefitting the insurance company. The provision creates an obligation on the insured, requiring it to sign a written reimbursement agreement as a condition precedent to Lincoln National's obligation to advance funds to cover medical expenses as incurred. Were the insured to refuse to sign such an agreement, it would breach the contract and the insurance company would be excused from its contractual obligation to pay the insured's medical expenses as incurred.
A condition precedent may, of course, be waived, which is precisely what Lincoln National did when it paid the Chitkins' medical expenses even though they did not sign a written reimbursement agreement. That waiver, however, did not transform the condition precedent into a right of the Chitkins to a windfall in the form of a double reimbursement, once from Lincoln National and again from the third party tortfeasors. In other words, there is no plausible justification for allowing the Chitkins to turn the murky contract language to their advantage by using it to defeat Lincoln National's right to recover the money it advanced to them before they were reimbursed by the third party tortfeasors.
The judgment of the district court is REVERSED and the case REMANDED for entry of judgment in favor of Lincoln National.
O'SCANNLAIN, Circuit Judge, dissenting:
We are faced with a reimbursement provision of an insurance policy, issued as part of an ERISA plan, that we all agree is rather poorly drafted. The majority believes, however, that there is only one reasonable interpretation of the provision and therefore reverses and orders that judgment be entered in favor of the insurance company that drafted the provision. I cannot agree with the majority that the insurer's interpretation of the provision is reasonable. For that reason, I respectfully dissent.
To recapitulate, the provision at issue here provides, in pertinent part, that:
Payment made for charges must be returned to Lincoln National if:
. . . . .
2. a third party is determined to be liable for such charges.
If an individual insured under the policy has
a. medical or dental charges ...
as a result of the negligence or intentional act of a third party, and makes a claim to Lincoln National for benefits under the policy for such charges ..., the insured individual (or legal representative of minor ...) must agree in writing to repay Lincoln National from any amount of money received by the insured individual from the third party, or its insurer....
The repayment agreement will be binding upon the insured individual (or legal representative of a minor ...) whether:
a. the payment received from the third party, or its insurer, is the result of:
...
3) a compromise settlement
*866 (Emphasis added). While this provision is far from pellucid, it is clear that the insured "must agree in writing to repay Lincoln National from any amount of money received by the insured individual from the third party, or its insurer." Once signed, this repayment agreement is binding on the insured.
I must confess to grave doubts when an insurance company tells me that express language in an ERISA plan drafted by that company serves no true purpose and is to be ignored. At oral argument before this court, Lincoln National was unable to identify for us the purpose underlying the requirement that a repayment agreement be executed by the insured. In fact, Lincoln National insisted that the requirement that a written repayment agreement be executed was merely an "historical relic" which we should disregard. I find Lincoln National's argument rather unpersuasive.
The district court read the reimbursement provision to require execution of a repayment agreement as a prerequisite to recovery. Accordingly, the district court held that Lincoln National's failure to request that the Chitkins sign a repayment agreement prevented the insurer from recovering under this provision of the ERISA plan.[1] The majority concludes that the district court's interpretation of the provision is unreasonable. To reach such a conclusion, the majority must agree with Lincoln National that the express requirement that the insured sign a repayment agreement, quoted above, is of no import. We are told, instead, that the only language that matters is that which suggests a general obligation to reimburse Lincoln National arises whenever payment is received from a third party. However, the language of the provision expressly indicates that the insured is obligated to sign a repayment agreement. Thus, I cannot agree with Lincoln National's characterization of the reimbursement provision.
We often apply the axiom that when the terms of an insurance policy are ambiguous they are construed against the insurer and in favor of the insured. See Commercial Union Ins. Co. v. Sponholz, 866 F.2d 1162, 1163 (9th Cir.1989). Lincoln National suggests that such a presumption carries no force when we interpret a provision in an ERISA plan. Regardless of the validity of that presumption in this context, Lincoln National agrees that we are to "interpret terms in ERISA insurance policies in an ordinary and popular sense as would a person of average intelligence and experience." Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir.1990) (quotation omitted). Here, the reimbursement provision clearly suggests that execution of a written repayment obligation is a prerequisite to reimbursement. I believe that a person of average intelligence and experience would not suspect that the written repayment agreement is merely a meaningless relic. In short, I believe the district court's interpretation of the reimbursement provision was reasonable.
Furthermore, the majority argues that the ambiguous language does serve a purpose, indeed that it is a condition precedent. Ironically, it took the majority to do what Lincoln National itself could not: come up with a justification for its own sloppy contractual language. The majority asserts that the language is a condition precedent but it has created this post hoc rationalization out of whole cloth. Lincoln National never even argued that the language was a condition precedent. Therefore, it is straining credulity to divine that the parties had this justification in mind when they signed this contract. It is incorrect to grant summary judgment to Lincoln National based on a contract interpretation which even it never envisioned.
*867 Not only do I disagree with the majority that Lincoln National's interpretation is reasonable, I also believe that the majority should have remanded this case for trial rather than ordering summary judgment entered in favor of Lincoln National. See Evanston Ins. Co. v. Fred A. Tucker & Co., Inc., 872 F.2d 278, 279 (9th Cir.1989) ("if, on the face of the contract, two reasonable and fair interpretations are possible, an ambiguity exists"); International Brotherhood of Elec. Workers v. Southern Cal. Edison Co., 880 F.2d 104, 107 (9th Cir.1989) ("When the meaning of an agreement is ambiguous on its face and contrary references as to the intent are possible an issue of material fact exists for which summary judgment ordinarily is inappropriate.") The best that can be said for the policy provision before us is that it is ambiguous. Thus, summary judgment in favor of Lincoln National is inappropriate.
I would go further. I would affirm. It is, it seems to me, more than reasonable to assume that the written repayment agreement requirement exists for a purpose. Thus, I believe that Lincoln National's interpretation, requiring us to read that obligation out of the provision, is simply unreasonable. I refuse to treat the express language of a provision drafted by a sophisticated insurance company as mere surplusage, especially where that language can only confuse plan participants. If the repayment agreement is truly a relic, entirely irrelevant to the insured's reimbursement obligation as Lincoln National contends, then Lincoln National should remove it from the reimbursement provision. See Slottow v. American Casualty Co., 10 F.3d 1355, 1358 (9th Cir.1993). Under these circumstances, I am particularly unsympathetic to Lincoln National's characterization.
Thus, while I join my colleagues in condemning the sloppy drafting of this reimbursement provision, I would do more than express disapproval. I see no reason to rescue Lincoln National from its own careless drafting.
I respectfully dissent.
On March 9, 1994, the Ninth Circuit issued an Order Amending Memorandum, which states:
Before: NORRIS, WIGGINS, and O'SCANNLAIN, Circuit Judges.
The memorandum disposition filed on November 24, 1993 is amended:
The last paragraph is deleted and replaced with: "The district court's grant of summary judgment in favor of the Cbitkins (sic) is reversed. The case is remanded to the district court for further proceedings consistent with this memorandum disposition."
NOTES
[1] Lincoln National's motion is its second for summary judgment on its counterclaim. This Court denied Lincoln National's first motion for summary judgment on its counterclaim on November 15, 1991 and granted Plaintiffs and Counterdefendants John and Nancy Chitkin's (the "Chitkins") cross motion for summary judgment on the counterclaim. The Ninth Circuit reversed this Court's November 15, 1991 Order on November 23, 1993. The Ninth Circuit remanded the case for further proceedings consistent with its Memorandum disposition after it issued an Order on March 9, 1994 amending its Memorandum. 15 F.3d 1083.
Many issues surrounding Lincoln National's motion for summary judgment center on the law of the case. This Court finds that these issues cannot be fully understood without the full text of the Ninth Circuit's Memorandum disposition. Although the Ninth Circuit did not designate its Memorandum for publication, this Court finds it appropriate to reprint the full decision in the Appendix to this Order to elucidate issues concerning the law of the case. See Ninth Circuit Rule 36-3.
[2] This Court entertained oral argument in this matter on July 18, 1994. Pursuant to Southern District of California Local Rule 7.1(d)(1), this Court finds this motion suitable for decision without further oral argument.
[3] The Chitkins still argue that this case involves the interpretation of an insurance contract with an ERISA plan, not the interpretation of an ERISA plan. Since the reimbursement agreement appears in the Plan, however, the Ninth Circuit's position enjoys substantial factual support.
[4] Less than one year after the Ninth Circuit issued its Memorandum decision, it adopted in an unrelated case "the doctrine of reasonable expectations [of the insured] as a principle of the uniform federal common law informing interpretation of ERISA-governed insurance contracts." Saltarelli v. Bob Baker Group Medical Trust, 35 F.3d 382, 387 (9th Cir.1994). If Saltarelli had constituted an intervening change in the law, this Court might have been tempted to revisit the Ninth Circuit's construction of the reimbursement clause. The Ninth Circuit, however, indicated two years before it issued its Memorandum disposition that all ambiguities in an ERISA contract must be construed in favor of the insured. Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 539 (9th Cir.), cert. denied, 498 U.S. 1013, 111 S. Ct. 581, 112 L. Ed. 2d 587 (1990). Since the law appears not to have changed markedly between Kunin and now, the law of the case would not permit this Court to reject the Ninth Circuit's interpretation of the reimbursement clause unless it found that the Ninth Circuit's interpretation was clearly erroneous. This Court is not prepared to make such a finding at this time.
[5] The Pacificare panel comprised the same three Ninth Circuit judges that reversed this Court in the case at hand. The Memorandum disposition in this case includes no indication of which Judge wrote the majority opinion. Judges Norris and Wiggins, however, were in the majority. Judge O'Scannlain vigorously dissented. In Pacificare, Judge O'Scannlain authored the majority opinion, Judge Wiggins joined Judge O'Scannlain in the majority, and Judge Norris dissented.
[6] Judge Norris argued in dissent that the court should have construed the complaint to state a cause of action for unjust enrichment under § 1132(a)(3). According to Judge Norris, the plaintiff's reliance on Waller was irrelevant because the plaintiff was not required to cite any authority in its complaint. Pacificare, 34 F.3d at 838 (Norris, J. dissenting).
[7] The doctrine of election of remedies has fallen into disfavor. Now courts apply estoppel analyses and consider not only the plaintiff's manifestation of choice, but also the effects of the choice on the defendant. 3 B.E. Witkin, California Procedure Actions § 138 at 167-68 (9th ed. 1987).
[8] The Chitkins acknowledge that this Court could not determine the exact amount without a fact-based inquiry into an allocation within an allocation: This Court would have to determine what portion of the specific damages in each settlement was for medical expenses as opposed to loss of income.
[9] Lincoln National has not challenged the allocation of funds to John and Nancy Chitkin. Lincoln National seeks recovery only from the funds allocated to Danielle.
[1] Presumably, if the company had requested that the Chitkins sign a repayment agreement prior to its payment of benefits or termination of their coverage and the Chitkins had refused, the Chitkins would have breached the provision and would be liable. The Chitkins concede as much in their brief. Thus, Lincoln National is not left without a remedy if it pays benefits before the execution of a repayment agreement. To receive reimbursement, it must simply request compliance with the provision's requirement before terminating coverage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264929/ | 879 F. Supp. 598 (1995)
Clara Clydell LADNER and Patrick Ladner
v.
ALEXANDER & ALEXANDER, INC., et al.
Civ. A. No. 94-1996.
United States District Court, W.D. Louisiana, Alexandria Division.
March 27, 1995.
Robert C Thomas, Thomas & Dunahoe, Natchitoches, LA, for Clara Clydell Ladner, Patrick Ladner.
*599 F. Drake Lee, Jr., Herschel E. Richard, Jr., Cook Yancey King & Galloway, P.C., Shreveport, LA, for Alexander & Alexander Inc.
James L. Fortson, Jr, Shreveport, LA, for Joe Callaway.
F. Drake Lee, Jr., Herschel E. Richard, Jr., S. Price Barker, Cook Yancey King & Galloway, P.C., Shreveport, LA, for Barbara Vercher.
RULING
LITTLE, District Judge.
For the following reasons, this court DENIES plaintiffs' motion to remand.
Clara Ladner and her husband, Patrick Ladner, brought this action in the Ninth Judicial District Court of Louisiana, Rapides Parish, asserting negligent misrepresentation against Alexander & Alexander, Inc., Barbara Vercher and Joe Callaway. Later, plaintiffs amended their petition to include a federal claim under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601, et seq. Defendants properly removed on the basis that a federal question had been asserted. 28 U.S.C. § 1441. The plaintiffs have moved to remand this action to state court, asserting that, although actions under the FMLA may be brought in federal court, they may not be removed once they are commenced in state court. Alternatively, they state that even if their federal claim is removable, this court should remand their state claims. Defendants oppose this motion to remand.
Upon reviewing the pertinent case law, this court discovers that federal courts have not addressed the section of FMLA entitled "Right of Action," that states in part "[a]n action to recover ... may be maintained ... in any Federal or State court of competent jurisdiction." 29 U.S.C.S. § 2617(a)(2). As the parties have pointed out, however, the same language can be found in the Fair Labor and Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq. Unfortunately, on the issue of removability, the courts have not reached unanimity.
Nevertheless, this court finds guidance in the removal statute which states that:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a). This section creates a broad right of removal. Baldwin v. Sears, Roebuck & Co., 667 F.2d 458, 459 (5th Cir. 1982). Unless Congress makes an express declaration to bar removal, "all types of civil actions, where there is concurrent original jurisdiction in both federal and state courts, are removable." Id. at 460. As the First Circuit has stated, "the words `may be maintained' are ambiguous; at best they are suggestive. They are[, however,] not an express provision barring the exercise of the right to removal." Cosme Nieves v. Deshler, 786 F.2d 445, 451 (1st Cir.), cert. denied, 479 U.S. 824, 107 S. Ct. 96, 93 L. Ed. 2d 47 (1986). Thus, this court DENIES plaintiffs' motion to remand.
In addition, the court concludes that this case does not meet the requirements of 28 U.S.C. § 1367(c) and will exercise pendent jurisdiction over plaintiffs' state law claims. Thus, the court DENIES plaintiffs' motion to remand their state law claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264970/ | 54 Cal. App. 4th 722 (1997)
MICHAEL NEWMAN, JR., Plaintiff and Appellant,
v.
JOHN F. BURNETT et al., Defendants and Respondents.
Docket No. F025174.
Court of Appeals of California, Fifth District.
March 26, 1997.
*723 COUNSEL
Valerie Ansel Karpman and William B. Boone for Plaintiff and Appellant.
Baker, Manock & Jensen, John H. Baker, Richard S. Salinas, James G. Van Beek and Glenn A. Rowley for Defendants and Respondents.
OPINION
VARTABEDIAN, Acting P.J.
In Woods v. Young (1991) 53 Cal. 3d 315 [279 Cal. Rptr. 613, 807 P.2d 455], the Supreme Court held that a 90-day *724 notice of intent to sue for medical malpractice (Code Civ. Proc., § 364, subd. (a)),[1] when served during the last 90 days of the 1-year statute of limitations period prescribed by section 340.5, tolls the statute of limitations for 90 days. Woods noted that the alternative three-year adult statute of limitations in section 340.5 was not before it in that case. Now pending before the Supreme Court is a case presenting the issue whether a section 364, subdivision (a) notice tolls the adult three-year statute in the same way it tolls the one-year statute. (Russell v. Stanford University Hospital[*] (Cal. App.), review granted Aug. 21, 1996.) The present case requires that we determine whether a section 364, subdivision (a) notice tolls the three-year statute of limitations for minors, also contained in section 340.5. We conclude service of an intent-to-sue notice during the last 90 days of the 3-year limitation period applicable to minors tolls the statute of limitations for 90 days; we reverse the judgment below.
Facts and Procedural History
Appellant Michael Newman, Jr., was 16 years of age when surgery was performed on him by respondent John F. Burnett on June 24, 1991. On June 23, 1994, appellant sent 90-day notices to respondents, Dr. Burnett, his surgical group and the hospital at which the surgery was performed. On September 22, 1994, appellant filed his complaint against respondents.
Respondents moved for summary judgment, arguing the complaint was not timely filed and the medical treatment was within the relevant standard of care. By order of September 19, 1995, the court granted summary judgment because the complaint was not timely filed. Judgment was entered in accordance with the order on September 20, 1995. The court denied appellant's "motion for new trial" on November 17, 1995. Appellant filed his timely notice of appeal on December 13, 1995.
Discussion
(1) Section 340.5, the statute of limitations for medical malpractice claims, was enacted as part of the 1975 Medical Injury Compensation Reform Act (MICRA). That section is composed of a substantive paragraph and two definitional paragraphs. We have divided the substantive paragraph into its component sentences, to which we have assigned numbers for ease of discussion. Section 340.5 provides, in relevant part:
"[Sentence 1] In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time *725 for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.
"[Sentence 2] In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.
"[Sentence 3] Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.
"[Sentence 4] Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence."
Also enacted as part of MICRA, section 364 requires that a plaintiff notify his health care provider at least 90 days before an action for negligence is filed against the provider. Section 364 provides, in relevant part: "(a) No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action. [¶] ... [¶] (d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice."[2]
In Woods v. Young, supra, 53 Cal. 3d 315, 319, the Supreme Court held that the one-year statute of limitations in section 340.5[3] is tolled by the provisions of section 364, subdivision (d), despite the language in that latter section that the time to file suit is "extended 90 days from the service of the notice." As a result of this tolling, the one-year limitations period is extended to one year and ninety days, regardless of when during the final *726 ninety days of the original limitations period the plaintiff serves the notice of intent to sue. (53 Cal.3d at pp. 325-326.)
Consequently, our reading of section 340.5, section 364 and Woods, taken together, indicates that, in a case not involving fraud or collusion, a minor plaintiff must sue within three years of "the alleged wrongful act" unless he serves his notice of intent to sue within ninety days of the end of the three year period; in the event of such timing of notice, he may sue within three years and ninety days of the alleged wrongful act.
Here, appellant served his notice of intent to sue one day short of the third anniversary of his surgery. The language of the relevant statutes, as construed by the Supreme Court, leads us to conclude that appellant, under these circumstances, was required to file suit after the 90th day following his notice of intent ("at least 90 days' prior notice") and before the 91st day after the third anniversary of the wrongful act. In the present case, this would limit appellant to filing on exactly the 90th day after the third anniversary, which is in fact the day upon which he filed suit.
However, respondent convinced the trial court that appellant filed suit 90 days too late. According to respondent, section 364, subdivision (d) does not in any manner extend the limitations period provided in Sentence 3 of section 340.5.
Respondent reaches this conclusion in reliance on Rewald v. San Pedro Peninsula Hospital (1994) 27 Cal. App. 4th 480 [32 Cal. Rptr. 2d 411]. In that case, the court considered the effect of section 364, subdivision (d) on a suit filed by an adult within three years and ninety days of his initial injury. The court noted that the applicable limitation period was established in that case by the second sentence of section 340.5. That sentence begins, "In no event shall the time for commencement of legal action exceed three years unless...." (Italics added.) Relying on Fogarty v. Superior Court (1981) 117 Cal. App. 3d 316 [172 Cal. Rptr. 594], the court held that "... the limiting language used in the three-year ... limitation portion of section 340.5 and the history of MICRA compel the conclusion that the ninety-day judicially construed tolling provision in section 364 is not applicable to the three-year period." (27 Cal. App.4th at p. 487.)
Two considerations convince us that Rewald is inapplicable to an interpretation of Sentence 3 of section 340.5. First, Sentence 3 lacks the limiting phrase "In no event...." It was this phrase that led the Fogarty and Rewald courts to conclude that Sentence 2 of section 340.5 reflected a specific legislative determination that only the tolling provisions of Sentence *727 2 itself should operate to extend the adult limitations period. Instead, in the present case, we have the Legislature's express statement in MICRA itself that section 364, subdivision (d) shall toll the "expiration of the applicable statute of limitations." Sentence 3 of section 340.5 is MICRA's "applicable statute of limitations" for minors.[4]
Secondly, MICRA's three-year statute of limitations "drastically curtailed the time within which a minor may bring an action...." (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal. 3d 46, 56 [210 Cal. Rptr. 781, 694 P.2d 1153].) As the court concluded in the Steketee case, "Nothing in the statutory *728 language or the legislative history suggests an intent to further limit the right of an injured minor to a judicial remedy by imposing additional restrictions intended for adults." (Ibid.) Instead, by following the plain language of section 364, subdivision (d) and tolling the "applicable statute of limitations" in the third sentence of section 340.5, we reconcile two important legislative goals of MICRA: giving minor plaintiffs a full three years in which to file their claims and "the legislative objective of allowing time for negotiations without the formal initiation of legal proceedings" during the ninety-day notice period. (See Woods v. Young, supra, 53 Cal.3d at p. 327.)
Accordingly, we decline to read into section 364, subdivision (d) an exception to its tolling provision otherwise applicable to minors. The trial court erred in granting respondents summary judgment based on the statute of limitations.
Disposition
The judgment is reversed. Costs on appeal are awarded to appellant.
Harris, J., and Wiseman, J., concurred.
A petition for a rehearing was denied April 14, 1997.
NOTES
[1] Further statutory references are to the Code of Civil Procedure unless otherwise noted.
[*] Reporter's Note: For Supreme Court opinion see 15 Cal. 4th 783.
[2] In Young v. Haines (1986) 41 Cal. 3d 883, 900-901 [226 Cal. Rptr. 547, 718 P.2d 909], the Supreme Court construed the exceptions to the adult three-year statute contained in sentence 2 of section 340.5, to be equally applicable to the statute of limitations for minors contained in sentence 3 of that section. The court adopted that interpretation to avoid a possible equal protection violation if minors were afforded less protection from fraudulent conduct than were adults. (41 Cal.3d at p. 901.) There is no claim of fraud or concealment in the present case.
[3] The Woods opinion states: "[S]ection 340.5 provides for a limitations period in medical malpractice cases of three years after the injury or one year after the plaintiff's discovery of the injury, whichever occurs first. The three-year limitations period is not in issue here." (53 Cal.3d at p. 319, fn. 1, italics added.)
[4] Fogarty involved the question whether the general tolling provision of section 352 (as then existing, tolling limitations periods for insane, minor or imprisoned plaintiffs; see now §§ 352, 352.1) operated to extend the limitations period for a person rendered incompetent as a result of brain damage inflicted during treatment for a heart condition. (117 Cal. App.3d at p. 318.) The court relied on the "In no event" limitation of section 340.5, Sentence 2, to conclude that no tolling provisions other than those contained in MICRA itself could abrogate the three-year limitation in Sentence 2 of section 340.5. It is questionable whether Fogarty provides any support for the conclusion reached in Rewald, since the tolling provision abrogated in Rewald was itself a part of MICRA, not a generalized tolling provision that conflicted with the purposes of MICRA as did section 352, in the eyes of the Fogarty court. In the present case, we do not address the correctness of the Rewald holding, since the Sentence 3 of section 340.5 does not include the limiting language of Sentence 2 of that section.
For similar reasons, we reject respondents' contention that Young v. Haines, supra, 41 Cal. 3d 883, 897-898, requires an interpretation of Sentence 2 that will shorten the limitations period otherwise provided by Sentence 3 and section 364, subdivision (d), in accordance with Woods v. Young, supra, 53 Cal.3d at page 319.
In Young v. Haines, the Supreme Court held that Sentence 2 of section 340.5 is applicable to minors as well as adults, and in the case of minors extends the three-year limitation of Sentence 3 if there is fraud, intentional concealment, or presence of a nontherapeutic, nondiagnostic foreign body. However, the Young v. Haines opinion only holds that Sentence 2 is applicable to minors to the extent it extends the applicable limitations period. To the extent Sentence 2 might be interpreted to shorten or conflict with the limitations period applicable to minors, the applicable period is established by the more specific provisions of Sentence 3. (41 Cal.3d at p. 897.)
As we have noted above, it is this three-year statute of limitations for minors that is extended by the express language of section 364, subdivision (d), in the relevant circumstances. The generally applicable "In no event" provision cannot operate in conjunction with the notice requirement of section 364, subdivision (d), to shorten the three-year period specifically granted to minors in Sentence 3 to two years and two hundred seventy-five days when a minor does not give notice of intent to sue before the final ninety days of the three-year limitation period. (See Woods v. Young, supra, 53 Cal.3d at pp. 325-326.) The express language of section 364, subdivision (d), precludes such an interpretation. (See Young v. Haines, supra, 41 Cal.3d at p. 897.)
Unlike the situation for legal malpractice under section 340.6, considered in Laird v. Blacker (1992) 2 Cal. 4th 606, 618 [7 Cal. Rptr. 2d 550, 828 P.2d 691], an additional 90-day tolling under some circumstances is expressly authorized "in the statute" itself: Both section 340.5 and section 364 are part of MICRA. Because there is no notice-of-intent requirement for legal malpractice claims, Laird's interpretation of section 340.6 is inapplicable to an interpretation of section 340.5. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360957/ | 234 P.2d 467 (1951)
LANGEN
v.
BADLANDS COOPERATIVE STATE GRAZING DIST.
No. 9054.
Supreme Court of Montana.
Submitted April 25, 1951.
Decided July 31, 1951.
*468 Thomas Dignan, Jr., Glasgow, for appellant.
John Marriott Kline, Glasgow, for respondent.
P. F. Leonard, Miles City, amicus curiae.
BOTTOMLY, Justice.
This is an appeal from a judgment in favor of B.P. Langen and against the Badland Cooperative State Grazing District, a corporation.
The Facts. June 30, 1946, B.P. Langen made written application to the board of directors of the Badland Cooperative State Grazing District for what he claimed was his permanent preferred rights to about 840 animal units which he claimed he had under the association. He also applied for a temporary grazing permit for the 1946-47 grazing period. After hearing, the board of directors of the district disallowed both applications, thereafter notifying Langen of its action. September 23, 1946, Langen submitted an amended application to the district and an appeal to the Montana Grass Conservation Commission; the application was denied by the board of directors of the district and Langen notified of said action.
The Montana Grass Conservation Commission heard the appeal November 19, 1946, and thereafter rendered and filed its findings, conclusions and decision, wherein it affirmed the action and decision of the district in disallowing Langen's applications, but without prejudice to Langen to make timely application for 1947 temporary grazing permit.
April 21, 1947, Langen appealed to the district court from the decision of the commission. The court after reviewing the testimony taken before the commission and some book entries of the district reversed the decision of the commission and entered the following decree:
"It is hereby ordered, adjudged and decreed: That appellant has class 1 preferred rights of 412 animal units in Badlands Cooperative State Grazing District, which the Board of Directors of said district shall recognize at once.
"It is further ordered, adjudged and decreed: That appellant have judgment against the respondent for his costs and disbursements here taxed and allowed in the sum of $85.00.
"Dated September 21st, 1950."
Under Chapter 66, Laws of 1933, the legislature authorized the formation of "Cooperative Grazing Association." Under the terms of this Act in 1934 an association was organized designated the "Bad-Land Cooperative Association." Chapter 66, Laws of 1933, was amended by Chapters 194 and 195, Laws of 1935. Under the provisions of the 1935 Acts, all associations which had been incorporated under Chapter 66, supra, were given 30 days after the approval of said Acts to incorporate under the 1935 Acts, and such incorporated entities were required to be designated" ____ Cooperative Grazing Associations." The Bad-Land Cooperative Grazing Association conformed to the 1935 Acts. Langen was a member of said association from 1936 until he left the association in 1938, because, as he testified, the range was a little over-grazed and he had the opportunity to lease a unit on the Fort Peck Indian Reservation which he obtained, consisting of 12,000 to 13,000 acres. At the time Langen left the Bad-Land Grazing Association, there was a charge against him of $9.72 for non-use in 1938, which he has consistently refused to pay.
Apparently in 1939 (the record is not definite) Langen made application for permanent preference rights in the Buggy Creek State Grazing District and to substantiate his application and right, submitted in his application his dependent commensurate property known as the Lewis-Wedum and *469 the Downing ranches. The Buggy Creek District granted Langen such preference rights and he is still a member of said district and exercising his preference in that district.
The legislature, after trying the law as provided by the 1933 and the 1935 Acts, and with the years of experience, repealed the foregoing Acts, together with all Acts or parts of Acts relating to state grazing districts, and wrote a completely new Act, to be cited as the "Grass Conservation Act," Chapter 208, Laws of 1939, which became effective March 17, 1939. This Act was amended by Chapter 199, Laws of 1945; such amendments are not pertinent to this inquiry. Such Act is now incorporated in Chapter 23, R.C.M. 1947, secs. 46-2301 to 46-2332, both inclusive.
Under the provisions of the Montana Grass Conservation Act, all grazing associations which had been formed under the 1933 or the 1935 Acts were granted six months to reincorporate under the provisions of Chapter 208, supra, and to conform with the provisions thereof. The Bad Land Cooperative Grazing Association reincorporated on August 15, 1939, in conformity with the requirements of Chapter 208, incorporating as the Badland Cooperative State Grazing District and thereby became an entirely new and distinct corporation, under the mandatory provisions of Chapter 208, supra.
Chapter 208, supra, exacted two requirements of each prospective member. Section 21 thereof [now R.C.M. 1947, section 46-2321] provided so far as pertinent here that: "Any person entitled to grazing preferences within any state grazing district based on dependent commensurate property or commensurate property must make application one year after the passage of this act to qualify for said preference * * *." (Emphasis supplied.) This section prescribed the time limit for making application. See, State ex rel. Engle v. District Court, 119 Mont. 319, 323, 174 Pac. (2d) 582, 584.
R.C.M. 1947, section 46-2320, provides so far as pertinent here that: "When a state district is organized, grazing preferences shall be distributed in the following manner: Any member of a state district owning or controlling dependent commensurate property as heretofore defined may be given a grazing preference. If the carrying capacity of the range exceeds the reasonable needs of members owning or controlling dependent commensurate property, members owning or controlling commensurate property shall have the preference. * * *"
R.C.M. 1947, section 46-2322, provides that: "Grazing preferences shall run with and be appurtenant to, the dependent commensurate property upon which they are based."
The question here presented is: Was the action of the board of directors of the district confirmed by the grass conservation commission correct in determining that Langen had no preferred rights in the district or the court's decree granting Langen 412 animal unit rights in the district?
In examining the testimony submitted, we find that Langen testified that he made a verbal application to the Badland Cooperative State Grazing District in 1941, at the time his first reservation permit expired. If Langen made such application, whatever the action of the district thereon, he took no further action therein.
The secretary of the district, Neil D. Campbell, testified that he had been such secretary since April 12, 1940; that he has kept the records of the district since he assumed the office, and said records are in his own handwriting; that he had no recollection of Langen ever making a verbal application to him; that to the best of his memory the first time Langen made an application for rights in the district was a verbal application Langen made to the board in person in the winter of 1944 at the time when allotments were being made. The board denied Langen's claim for preferred rights, and he took no appeal therefrom.
However, granting Langen made application in 1941 as he testified, such application would not bring him within the mandatory provisions of section 46-2321, supra, the effective date of Chapter 208, supra, being March 17, 1939, and to be within the time limit of the Act an application made after March 17, 1940, would be too late. It should *470 be kept in mind that Langen's appeal to the district court is from the adverse ruling of the commission on his application made in 1946.
The testimony and record further show and the commission determined Langen offered the Lewis-Wedum ranch as dependent commensurate property on his application to the Badland District. However, prior to his application to the Badland District, Langen had applied for and received his preference rights in the Buggy Creek District, using his Lewis-Wedum ranch as dependent commensurate property, thereby affixing such grazing preference in the Buggy Creek District and appurtenant to said dependent commensurate property. R.C.M. 1947, section 46-2322. The commission determined that sufficient range is furnished by the Buggy Creek District to satisfy Langen's preference.
It should be pointed out that the Grass Conservation Act [1] establishes a broad state policy, evolved by the legislature after years of study and consideration, enacted for the purpose of providing for the conservation, protection, restoration, and proper utilization of one of the state's most important products, the grass, forage and range resources, not only of federal lands, but of state, county and private lands, and for the better stabilization of the livestock industry and thereby the communities, the counties in which districts are located, and the state at large. The men administering this Act are specialists in their respective fields.
The organization of such cooperative corporations is officered and managed at the grass roots level, by the people themselves who understand and who are engaged in the industry. The Act provides for a State Grass Conservation Commission, composed of those same people who are especially interested in and especially trained in the conservation of this resource, to supervise, direct, counsel and to require the carrying out of the purposes and policy of the Act by the boards of directors of the districts. Also to see that the proper cooperation is maintained with the federal agencies concerned, the state, the counties and the individuals, this commission is given broad powers of fact finding and determination of all controversies arising between the different parties, agencies and instrumentalities concerned. The legislature has bestowed upon the commission the appellate power and authority to determine such controversies and their decisions shall be conclusive, except that an aggrieved party may appeal to the district court by filing notice of appeal within 30 days after decision is rendered. R.C.M. 1947, section 46-2308.
The review by the district court is only for the purpose of [2] determining the legal rights of the parties involved. This is so because of the division of governmental powers under the Constitution, neither the district court nor the Supreme Court may substitute their discretion for the discretion reposed in boards and commissions by the legislative acts. Freeman v. Board of Adjustment, 97 Mont. 342, 357, 34 Pac. (2d) 534. And see, Fulmer v. Board of Railroad Com'rs, 96 Mont. 22, 28 Pac. (2d) 849; State ex rel. Goza v. District Court of Flathead County, Mont., 234 Pac. (2d) 463.
A statute which attempts to "place the court in the place of a [3] commission or board to try a matter anew as an administrative body is unconstitutional as a delegation to the judiciary of non-judicial powers." Peterson v. Livestock Commission, 120 Mont. 140, 181 Pac. (2d) 152, 157.
The appeal from the commission to the district court is for [4] the purpose merely of determining whether upon the evidence and the law the action of the commission is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary or capricious. On such review courts will only inquire insofar as to ascertain if the board or commission has stayed within the statutory bounds and has not acted arbitrarily, capriciously or unlawfully. Compare: Ma-King Products Co. v. Blair, 271 U.S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51, 56 S. Ct. 720, 80 L. Ed. 1033; Yarbrough v. Montoya, 54 N.M. 91, 214 Pac. (2d) 769, 773; Burton-Shields Co. v. Steele, 119 Ind. App. 216, 83 N.E. (2d) 623, 626, on rehearing, 85 N.E. (2d) 263; 1 Vom Baur, Federal Administrative Law, section 44; State ex rel. Goza v. District Court, supra.
*471 Where the question involved is within the jurisdiction of an administrative tribunal which demands the exercise of sound administrative discretion, requiring the special knowledge, experience and services of trained officers to determine technical and intricate matters of fact, and where a uniformity of ruling is essential to comply with the state's policy and the purposes of the regulatory statute on review by the court of such decisions by such authorities, the courts will inquire only so far as to see whether or not the action complained of is within the statute and not arbitrary or capricious.
We do not find in the record that Langen ever testified that [5] he had class 1 rights or that he ever had class 1 preference for 412 animal units in the Badland Cooperative State Grazing District. There is no evidence whatever that Langen ever made application for grazing rights or permit or non-use permit within the statutory time limit, i.e., one year from March 17, 1939, the effective date of Chapter 208, supra. There is no evidence whatever that Langen was ever a member of the Badland Cooperative State Grazing District. See: State ex rel. Engle v. District Court, supra.
This Act, as the previous grazing association Acts, was of special interest to stockmen, their industry and their business. The 1939 Act and the amendments thereto like the previous Acts affected their interest; it was incumbent upon Langen as well as all similarly situated who would be or might be affected, to take an interest in, and be alert to, the changing law, so as to guard and protect any rights they may have had.
This Langen failed to do. The burden was on him to know the [6] law and take such action at the proper time as would protect any rights he might have. Compare: Harrison v. Cannon, 122 Mont. 318, 203 Pac. (2d) 978.
Respondent has contended strenuously that he had rights in the Badland Cooperative State Grazing District which the district and the commission took from him without notice, contrary to due process of law. His contention would no doubt have merit if the evidence disclosed that he has such rights. There being no evidence that he ever made application within time, he could not have been a member, had no rights, and was not entitled to any notice other than the statute.
The judgment is reversed and the proceedings ordered dismissed.
ADAIR, C. J., and METCALF, FREEBOURN and ANGSTMAN, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360970/ | 106 Cal. App. 2d 226 (1951)
WALTER D. LANCE, Appellant,
v.
FRED A. FORSBERG, Respondent.
Civ. No. 18024.
California Court of Appeals. Second Dist., Div. Three.
Aug. 21, 1951.
Joseph K. Coady for Appellant.
Jesse A. Hamilton for Respondent.
WOOD (Parker), J.
Plaintiff appeals from a judgment in favor of defendant which was based upon an order sustaining without leave to amend, a demurrer to the amended complaint.
In the first cause of action of the amended complaint it was alleged that defendant was indebted to plaintiff in the sum of $4,000 for money had and received, and that no part of said sum had been repaid. In the second cause of action it was alleged, in substance, as follows: About November 1, 1944, defendant was engaged in the fumigating business; about that date said defendant, by oral agreement, employed plaintiff to work for him in said fumigating business for an indefinite period of time and, as compensation therefor, defendant agreed to pay plaintiff a sum equal to 25 per cent of the gross income of the business, payable $50 a week, and the remainder in a lump sum at the end of each year; plaintiff thereafter entered into such employment upon said terms *228 and conditions; during the year 1945 said business had a gross income of $26,660; during said year plaintiff drew from his 25 per cent share thereof the sum of $3,950, leaving a balance due plaintiff at the end of said year of $2,715; about December 31, 1945, plaintiff and defendant entered into an agreement whereby both parties agreed that the said sum of $2,715 should not be withdrawn by plaintiff but "left to accumulate for the purpose of buying an interest in said business"; during the year 1946 the "business" had a gross income of $18,777.49; during said year plaintiff drew from his 25 per cent share thereof the sum of $3,120, leaving a balance due plaintiff at the end of said year from defendant the sum of $1,574.37; said sum was not paid by plaintiff but by mutual agreement was allowed to remain in the business and accumulate to plaintiff's credit for the purpose of buying an interest in said business; from January 1, 1947, to June 3, 1947, the said business had a gross income, the exact amount of which was unknown to plaintiff; about June 3, 1947, plaintiff and defendant filed a certificate with the county clerk "for transacting business" under a fictitious name; said certificate "certifies" that plaintiff and defendant were conducting a fumigating business under the fictitious firm name of Commercial Fumigation and Extermination Company; about June 3, 1947, the sums which had been left to accumulate by plaintiff were transferred to the general funds of said company; said business was thereafter conducted and operated by both plaintiff and defendant; in December, 1948, plaintiff and defendant entered into an oral agreement whereby it was mutually agreed to dissolve their partnership business "and transfer all of the assets of the partnership to a corporation to be immediately formed"; it was further agreed "that all of said assets were to be exchanged for stock in said corporation in the amount of one thousand (1,000) shares, each share to have an agreed par value of Ten ($10.00) Dollars a share"; it was further mutually agreed that plaintiff's interest in the partnership assets was 40 per cent "of the total" and plaintiff was to receive 400 shares of said stock, and that defendant's interest in said partnership assets was 60 per cent "of the total" and defendant was to receive 600 shares of said stock; in accordance with said agreement, articles of incorporation were prepared and filed with the Secretary of the State of California; about January 1, 1949, an inventory of the assets of the partnership, which plaintiff and defendant agreed should be turned over to the corporation, was taken; *229 said assets "consisted of equipment, machinery and materials to the value of $10,319.66, accounts receivable in the sum of $1895.59, and cash on hand in the sum of $2,503.13, subject to liabilities of accounts payable" in an amount unknown to plaintiff at that time; among the items included in said inventory were certain assets (specifically set forth in paragraph X) of certain values (specifically set forth in said paragraph) of the total value of $3,398; thereafter a petition was filed by defendant with the Corporation Commissioner for a permit to issue 1,000 shares of stock "of the said corporation in exchange for the assets of the said partnership," and without the knowledge or permission of plaintiff the assets (above referred to) of the total value of $3,398 were not included by defendant in said petition; that the failure on the part of defendant to include said assets was deliberate and with the intent to defraud the plaintiff; a permit to issue 1,000 shares of stock to plaintiff, defendant and one Stene, or any of them, in consideration for the transfer to the corporation of the "assets described in its application" was issued by the Corporation Commissioner upon the condition that all authority to sell said stock "shall terminate and expire on the 29th day of December, 1949"; about January 1, 1950, plaintiff discovered that defendant had disposed of the greater portion of the assets set forth in paragraph X of the complaint, and had applied the proceeds thereof to his own use; defendant refused to account to plaintiff for such proceeds; thereafter plaintiff discovered for the first time that the petition to the Corporation Commissioner had not included all of the assets of the partnership and that the permit issued by said commissioner expired December 29, 1949; plaintiff demanded the return of the sum of $4,000 from defendant some time after January 1, 1950, and before January 30, 1950, and defendant refused to pay said sum; on January 30, 1950, defendant delivered to plaintiff a purported certificate for 400 shares of stock in said corporation "with par value of $10.00 a share, which certificate was dated January 30, 1950"; the permit to issue stock had not been renewed as of said date and the "permit" was null and void; about February 13, 1950, plaintiff rescinded his agreement to purchase 400 shares of stock in the corporation, tendered the aforesaid purported certificate of stock to the defendant, and demanded the return of $4,000; defendant has refused to pay the same or any part thereof. *230
[1a] Respondent (defendant) contends that if the amended complaint "indicates a cause of action, it is owned by the corporation, not the plaintiff here." He argues that the plaintiff's remedy was a stockholder's suit against defendant. The minute order of the court sustaining a demurrer recites as follows: "Demurrer is sustained without leave to amend, but without prejudice to an action by the corporation." That order indicates that the trial court was also of the opinion that the plaintiff did not have the right to maintain the action but that the corporation had that right. It was alleged in the amended complaint, as above shown, that the plaintiff and defendant were partners; that plaintiff's interest in the partnership was 40 per cent and the defendant's interest was 60 per cent; that the partners agreed to dissolve the partnership and to transfer all of its assets to a corporation to be formed, and that all the assets were to be exchanged for 1,000 shares of stock in the corporation, and that plaintiff was to receive 40 per cent or 400 shares and defendant was to received 60 per cent or 600 shares. It was alleged further that the petition filed by the defendant for a permit to issue the 1,000 shares in exchange for the assets of the partnership did not include various assets of the partnership of the value of $3,398; that said failure to include said assets was without the knowledge or consent of plaintiff and was with the intent to defraud plaintiff. It was also alleged that permission was granted by the Corporation Commissioner to issue 1,000 shares to plaintiff, defendant and one Stene, or any of them, in consideration of the transfer to the corporation "of the assets described in its application," and that such permission should terminate on December 29, 1949. Since the assets described in the application did not include the said assets of the value of $3,398, and since those said assets were not a part of the property to be received by the corporation under the provisions of the permit or any agreement between the corporation and the partners, it does not appear that the corporation was entitled to receive the said assets of the partnership which were not described in the application. [2] The mere incorporation of an existing partnership does not ipso facto operate to transfer to the corporation the title to the property of the partnership, but there must be a conveyance as in other cases. (18 C.J.S. 543.) There was no conveyance of the said assets of the value of $3,398 and, as above stated, it does not appear that there was any agreement between the corporation and the partners requiring the conveyance of such *231 assets. The permit to issue certificates of stock expired prior to the date the certificate of stock was issued to plaintiff. [3] A security "issued without a permit from the Commissioner of Corporations is void." (Austin v. Hallmark Oil Co., 21 Cal. 2d 718, 726 [134 P.2d 777].) It therefore appears that plaintiff did not receive anything from the corporation. Thereafter plaintiff rescinded his agreement to purchase 400 shares of stock and tendered his certificate of stock to the defendant.
In Morris v. Whittier Amusement Co., 123 Cal. App. 121 [10 P.2d 1017], certain persons became associates for the purpose of purchasing a building and transferring it to a corporation to be formed. The building was purchased and transferred to the corporation which was formed. The action, which was commenced by some of the associates, was to recover secret profits made by one of the associates who, in behalf of the others, negotiated the purchase. A demurrer to the complaint was sustained without leave to amend. The question therein was whether plaintiffs or the corporation had the right to maintain the action. It was held in that case that plaintiffs had the right to maintain the action, and the court stated, at page 124, that the solution of the question as to who may maintain the action "depends upon the answer to the question, 'Who was injured by the fraud of Harris [the associate who negotiated the purchase]?' " It further stated that the "injury was not suffered by the corporation but by the associates, who paid their cash for the property, and who were defrauded by their own agent." It further stated therein, at page 123, "The rights and liabilities of the parties who thus associate themselves for the purpose of acquiring the property, and afterward forming the corporation, are governed by the same principles as those applying to joint adventures. ... 'Promoters, like other joint adventurers, and like parties generally, occupy a relation of trust and confidence, so that they must act toward each other with the utmost good faith, and if one or more are guilty of any fraud or breach of trust against the others, by taking a secret profit, misappropriating funds, or otherwise, they will be compelled to account in equity as in other like cases.' [Citation.] The foregoing authorities clearly establish the rights and liabilities of these associates, per se. It would appear that the transaction here detailed was a matter entirely between themselves." *232
[1b] In the present case it appears that all the transactions, from the formation of the partnership to the formation of the corporation, were between plaintiff and defendant. They were the only members of the partnership and the only parties to the agreement to form a corporation and transfer the partnership assets to it. (It does not appear that Stene, who was mentioned in the permit, had any interest in the assets.) The corporation was not a party to the agreement, relative to the transfer of the assets, and it does not appear that it acquired any right to the assets which the defendant allegedly misappropriated. The amended complaint stated a cause of action.
The judgment is reversed, and the trial court is directed to overrule the demurrer.
Shinn, P. J., and Vallee, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361092/ | 278 S.C. 148 (1982)
292 S.E.2d 795
The STATE, Respondent,
v.
Daniel C. RIDDLE, Appellant.
21738
Supreme Court of South Carolina.
June 17, 1982.
*149 Appellate Defender John L. Sweeny of S.C. Commission of Appellate Defense, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Lindy P. Funkhouser and Sr. Asst. Atty. Gen. Brian P. Gibbes, Columbia, for respondent.
June 17, 1982.
LEWIS, Chief Justice:
Appellant pled guilty to arson with intent to defraud an insurance company, housebreaking (three counts) and larceny (four counts). He was sentenced to five (5) years on each count, the sentences to run concurrently. In addition, appellant's probation was revoked, the sentence thereon to run consecutively to the other sentences. We affirm.
The concurrent sentences given to appellant were the result of a plea bargain. The record shows appellant believed the plea bargain included the assurance from the judge that the sentence to be reinstated following the probation revocation would also run concurrently.
*150 When he learned of the terms of the probation revocation, appellant moved to withdraw his plea, asserting it had been entered under a misunderstanding concerning the plea bargain. The judge denied the motion.[1]
The withdrawal of a guilty plea is generally within the sound discretion of the trial judge. State v. Neal, 267 S.C. 53, 226 S.E. (2d) 236 (1975). In this case the trial judge determined the plea was knowingly and voluntarily entered. The trial judge informed appellant of the maximum sentence he could receive. Appellant stated he had not been promised anything in return for his plea. He also stated he knew the judge did not have to accept the State's sentence recommendation or the State's recommendation concerning his probation revocation. Such a determination of voluntariness will normally show the trial judge did not abuse his discretion. State v. Neal, supra.
Further, when the State fulfills its agreement to recommend a specific sentence, the fact that the judge does not accept the recommendation does not affect the validity of the plea. Lambert v. State, 260 S.C. 617, 198 S.E. (2d) 118 (1973); Bailey v. MacDougall, 247 S.C. 1, 145 S.E. (2d) 425 (1965). In this case, the State recommended a five-year sentence for all the violations plus a concurrent sentence on the probation revocation. The judge chose not to accept the probation recommendation, however. Since the judge was under no duty to accept the recommendation, he was not in error in refusing appellant permission to withdraw his valid plea. State v. Neal, supra.
Appellant's conviction and probation revocation are therefore affirmed.
LITTLEJOHN and GREGORY, JJ., concur.
NESS and HARWELL, JJ., dissent.
NESS and HARWELL, Justices, (dissenting):
We respectfully dissent and would reverse and allow the defendant to withdraw his guilty plea.
The withdrawal of a guilty plea is generally within the sound discretion of the trial judge. State v. Neal, 267 S.C. 53, *151 226 S.E. (2d) 236 (1975). We believe appellant's plea was not entered knowingly because he misunderstood the scope of the agreement on sentencing. Cf. State v. Hazel, 275 S.C. 392, 271 S.E. (2d) 602 (1980) (plea not knowingly made because defendant misunderstood requirement of statutory mandatory sentence). See also Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed. (2d) 274 (1969); State v. Peeler, S.C. 283 S.E. (2d) 826 (1981). When the judge discovered the misunderstanding, he should have allowed appellant to withdraw the plea. His failure to do so was an abuse of discretion. Hazel. See also State v. Smith, S.C. 280 S.E. (2d) 200 (1981).
NOTES
[1] Medlin v. State, S.C. 280 S.E. (2d) 648 (1981), does not apply to this case because Medlin was decided after appellant's plea was entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827145/ | Order Michigan Supreme Court
Lansing, Michigan
September 6, 2011 Robert P. Young, Jr.,
Chief Justice
143116 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
PEOPLE OF THE STATE OF MICHIGAN, Mary Beth Kelly
Plaintiff-Appellee, Brian K. Zahra,
Justices
v SC: 143116
COA: 303061
Oakland CC: 2010-232511-FH
CHARLES NORTON FOLEY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the April 22, 2011 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 6, 2011 _________________________________________
p0829 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/883595/ | 899 P.2d 1093 (1995)
James D. McCLURE, Petitioner/Appellant,
v.
STATE COMPENSATION INSURANCE FUND, Insurer/Respondent for Blaze Construction, Inc., Employer/Respondent.
No. 94-489.
Supreme Court of Montana.
Submitted on Briefs February 23, 1995.
Decided July 27, 1995.
*1094 Edward K. Duckworth, Ronan, for appellant.
Susan C. Witte, State Compensation Mut. Ins. Fund, Helena, for respondent.
NELSON, Justice.
The appellant, James McClure appeals from the Workers' Compensation Court's order denying his petition for new trial and certifying judgment as final dated September 7, 1994. We reverse and remand.
BACKGROUND
On June 8, 1992, the appellant James McClure (McClure) was injured in the course and scope of his employment with Smith Enterprises, Inc. (Smith). At the time of the injury, Smith, a tribal-owned business, was an independent contractor of Blaze Construction, Inc. (Blaze). Blaze was the prime contractor for the Bureau of Indian Affairs (BIA) to construct streets in a subdivision located on the Flathead Indian Reservation. Blaze's contract with the BIA required evidence of workers' compensation insurance. A letter incorporated as part of that contract provided in part:
(a) Workers' Compensation Insurance. The Contractor shall furnish evidence to the Government that all operations to be performed under the contract are covered by Workers' Compensation Insurance or that this liability is otherwise provided for in accordance with applicable State laws. [Emphasis added.]
Similarly, Blaze's contract with Smith required Smith to acquire workers' compensation coverage:
(h) To pay Industrial Insurance and all other payments required under Workmen's Compensation laws as the same become due, and to furnish to the CONTRACTOR with evidence that the same has been paid before final payment is made on this SUB-CONTRACT.
Moreover, the subcontract which Smith signed also provided in pertinent part:
2. [Smith agrees] To be bound by the terms of said MAIN CONTRACT [the contract between Blaze as prime contractor and the property owner] with the OWNER (including every part of and all the general and special conditions, drawings, specifications and addenda) in any way applicable to this Subcontract...
Blaze carried workers' compensation coverage, however, Smith did not. Because Smith was not insured at the time of McClure's injury, McClure initially filed a claim with the State Compensation Insurance Fund (State Fund) seeking benefits from the Uninsured Employers Fund. The State Fund denied liability on the basis that the *1095 Uninsured Employers Fund does not have jurisdiction over businesses owned by tribal members operating solely within the confines of the reservation. McClure then filed a claim for compensation against Blaze pursuant to § 39-71-405(1), MCA (1991).
On October 7, 1993, the Workers' Compensation Court denied McClure's motion for declaratory ruling yet agreed to bifurcate the issue of the applicability of Montana's workers' compensation laws to the Flathead Indian Reservation. On December 22, 1993, McClure filed a renewed motion for declaratory ruling. The Workers' Compensation Court again denied the motion and on September 7, 1994 issued an order denying McClure's petition for new trial and certifying judgment as final. McClure appeals the September 7, 1994 order denying petition for new trial and certifying judgment as final.
ISSUES
McClure raises two issues on appeal. They are:
Did the Workers' Compensation Court err in its determination that McClure is not entitled to benefits under § 39-71-405, MCA?
Did the Workers' Compensation court err in its determination that a claim for workers' compensation benefits based upon a third-party beneficiary contractual theory is beyond the scope of its jurisdiction?
STANDARD OF REVIEW
The facts of this case are essentially undisputed. McClure argues that the District Court erred in its legal conclusions when it determined that McClure is not entitled to benefits under § 39-71-405(1), MCA, and that a claim for workers' compensation benefits based upon a third-party beneficiary contractual theory is beyond the scope of its jurisdiction. In reviewing the Workers' Compensation Court's conclusions of law, we determine if the court's interpretation of the law is correct. Plainbull v. Transamerica Ins. Co. (1994), 264 Mont. 120, 124, 870 P.2d 76, 79 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).
DISCUSSION
(1) Did the Workers' Compensation Court err in its determination that McClure is not entitled to benefits under § 39-71-405, MCA?
McClure appeals the Workers' Compensation Court's holding that he is not entitled to benefits under Blaze's workers' compensation coverage because Smith does not fall within the purview of the Workers' Compensation Act and therefore the applicable independent contractor statute, § 39-71-405(1), MCA, is not triggered.
McClure argues that pursuant to § 39-71-405(1), MCA, Blaze, the prime contractor, is liable for payment of benefits to McClure, an employee of Smith, the independent contractor, because Smith did not carry workers' compensation coverage. According to McClure, state workers' compensation jurisdiction over Indian employers is not at issue here. In summary, McClure argues that Smith's contractual obligation triggers § 39-71-405(1), MCA, placing liability on Blaze.
The resolution of the issues presented hinges on § 39-71-405(1), MCA (1991), which provides:
Liability of employer who contracts work out. (1) An employer who contracts with an independent contractor to have work performed of a kind which is a regular or a recurrent part of the work of the trade, business, occupation, or profession of such employer is liable for the payment of benefits under this chapter to the employees of the contractor if the contractor has not properly complied with the coverage requirements of the Worker's Compensation Act. Any insurer who becomes liable for payment of benefits may recover the amount of benefits paid and to be paid and necessary expenses from the contractor primarily liable therein. [Emphasis added.]
The Workers' Compensation Court found that on its face, the statute "applies only in cases where the subcontractor `has not properly complied with the coverage requirements of the Worker's [sic] Compensation Act,' a situation commonly referred to as *1096 involving an `uninsured employer.'" Due to the bifurcation of the issue of the applicability of the Montana Workers' Compensation Act to the Flathead Indian Reservation, the court assumed that the Act did not apply to Smith. Therefore, the court interpreted the phrase "properly complied with the coverage requirements" to apply only to situations where the independent contractor is statutorily required to provide coverage for its employees and fails to do so.
At the outset, we note that the 1991 codes, not the 1993 codes, apply to McClure's 1992 injury. Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Accordingly, § 39-71-401(2)(m), MCA, (exempting from the Workers' Compensation Act "a person who is employed by an enrolled tribal member who operates solely within the exterior boundaries of an Indian reservation.") does not apply here. However prior to 1993, the Attorney General opined that Montana's workers' compensation statutes do not apply to Indian businesses conducted on an Indian reservation. 37 Op.Att'y Gen. 28 (May 25, 1977). Accordingly, at the time of McClure's injury, Smith, an Indian employer operating within the exterior boundaries of an Indian reservation, was not required by Montana law to provide workers' compensation coverage for his employees. With that status of the law in mind, we analyze the issues before us.
According to the rules of statutory construction, we construe the language of the statute according to its plain meaning. In construing a statute, "the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Section 1-2-101, MCA; Tongue River Elec. Coop. v. Mont. Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864. The plain language of § 39-71-405(1), MCA, merely makes the employer liable for the payment of benefits to the contractor's employee if the contractor fails to properly comply with the requirements of the Workers' Compensation Act. There is no language in § 39-71-405(1), MCA, indicating that the independent contractor must have a statutory obligation to obtain coverage before the section is triggered. In fact, it is not relevant why the independent contractor did not "properly comply" with the Act's requirements, only that the independent contractor did not properly comply with the Act's requirements, while having some obligation to do so.
This Court has not previously addressed the issue before us. However, in Webb v. Masonry Const. Co. (1988), 233 Mont. 198, 761 P.2d 343 (concerning immunity from tort liability under the Workers' Compensation Act), we interpreted the legislative intent of § 39-71-405(1), MCA, stating the Workers' Compensation Act "was conceived, enacted and is supposed to be implemented primarily to provide aid and relief to injured working men and women." Webb, 761 P.2d at 350.
Pursuant to § 39-71-405(1), MCA, a "contractor-under" statute, if Smith has not properly complied with the requirements of the Act, having an obligation to do so, then Blaze is liable for McClure's benefits. Here, the nature and source of Smith's obligation to provide workers' compensation benefits does not derive from the Act, however, for although Smith did not have a statutory obligation to comply with the Act, Smith did have a contractual obligation to comply. Moreover, under Blaze's contract with the BIA, Blaze had the obligation to make sure that "all operations to be performed under the contract [were] covered by Workers' Compensation Insurance." (Emphasis added). Accordingly, it was Blaze's obligation to enforce his contract with Smith to ensure that Smith carried workers' compensation coverage for the benefit of his employees. We conclude that Smith's contract with Blaze triggers Smith's obligation under § 39-71-405(1), MCA, to properly comply with the coverage requirements of the Workers' Compensation Act, and, hence, Blaze's "contractor-under" obligation when Smith failed to do so.
We note, in passing, that this case does not present the issue of whether the State can enforce its workers' compensation laws against an Indian employer within the exterior boundaries of an Indian reservation. See 37 Op.Att'y Gen. 28 (May 25, 1977), and the *1097 1993 amendments to § 39-71-401, MCA, at subparagraph (2)(m), 1993 Montana Laws ch. 555, § 4. While the State may not require an Indian employer operating within the reservation to comply with the Workers' Compensation Act, it does not follow that the Indian employer who, nevertheless, elects coverage because of, for example, a contractual obligation to purchase such coverage, would be precluded from doing so.
We hold that McClure is entitled to benefits under § 39-71-405(1), MCA. Because we conclude that McClure is entitled to benefits pursuant to § 39-71-405(1), MCA, we will not address his third-party beneficiary claims. We reverse and remand to the Workers' Compensation Court to fix and determine the amount of McClure's benefits.
TRIEWEILER, HUNT, WEBER and LEAPHART, JJ., concur.
GRAY, Justice, specially concurring.
I concur in the Court's opinion but not in everything which is said therein. I write separately to clarify what I perceive to be the thrust of the Court's decision.
In pertinent part, Blaze's contract with the BIA required Blaze to furnish evidence that all operations to be performed under the contract were covered by workers' compensation insurance. Blaze's subcontract with Smith required Smith to be bound by all terms of the primary contract; this provision, of course, would include the BIA-Blaze contract term that all operations be covered by workers' compensation insurance. Thus, Blaze's contract with Smith, taken together with the BIA-Blaze contract required Smith to obtain workers' compensation insurance. Smith did not do so and, therefore, liability is properly imposed on Blaze pursuant to § 39-71-405(1), MCA.
The portion of the Court's opinion with which I do not agree states that the following language in the Blaze-Smith subcontract required Smith to acquire workers' compensation coverage:
(h) To pay Industrial Insurance and all other payments required under Workmen's Compensation laws as the same become due....
The quoted language does not require Smith to obtain workers' compensation coverage because, as the Court correctly states, the Workers' Compensation Act does not apply to Smith. Thus, because the Act did not require Smith to obtain coverage, this provision in the Blaze-Smith subcontract is not a proper basis for the Court's conclusion in this case.
TURNAGE, C.J., concurs in the foregoing special concurrence. | 01-03-2023 | 06-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2570659/ | 194 P.3d 133 (2008)
2008 OK CR 27
Courtney Dewayne WATTS, Appellant
v.
STATE of Oklahoma, Appellee.
No. F-2007-410.
Court of Criminal Appeals of Oklahoma.
September 25, 2008.
*134 Michael Gassaway, Oklahoma City, OK, attorney for defendant at trial.
Jimmy Harmon, Matt Dillon, Assistant District Attorneys Oklahoma City, OK, attorneys for the State at trial.
Bill J. Baze, Okla. Indigent Defense System, Norman, OK, attorney for appellant on appeal.
W.A. Drew Edmondson, Attorney General, Keeley L. Harris, Assistant Attorney General, *135 Oklahoma City, OK, attorneys for appellee on appeal.
OPINION
LEWIS, Judge.
¶ 1 Courtney Dewayne Watts, Appellant, was tried by jury and found guilty of Counts 1 and 4, unlawful distribution of a controlled dangerous substance (methamphetamine), in violation of 63 O.S.Supp.2003, § 2-401(A)(1); Counts 2 and 3, trafficking in illegal drugs (methamphetamine), in violation of 63 O.S.Supp.2002, § 2-415; Count 5, conspiracy to commit unlawful distribution of a controlled dangerous substance (methamphetamine), in violation of 63 O.S.2001, § 2-408; Count 6, unlawful possession of a firearm on supervised probation, in violation of 21 O.S.Supp.2002, § 1283(C); and Count 7, maintaining a dwelling where a controlled dangerous substance was kept, in violation of 63 O.S.2001, § 2-404, in the District Court of Oklahoma County, Case No. CF-2005-2162.
¶ 2 The jury found Appellant committed these crimes after a prior deferred sentence for a drug felony, see 63 O.S.2001, § 2-410, and sentenced as follows: in each of Counts 1 and 4, thirty (30) years imprisonment and a $40,000 fine; in each of Counts 2 and 3, fifty (50) years imprisonment and a $100,000 fine; in Count 5, twenty (20) years imprisonment and a $40,000 fine; in Count 6, ten (10) years imprisonment; and in Count 7, eight (8) years imprisonment and a $20,000 fine. The Honorable Virgil C. Black, District Judge, reduced the fines in Counts 2 and 3 to $40,000 each, but otherwise pronounced judgment and sentence in accord with the verdicts, and ordered the sentences served consecutively. Mr. Watts appeals.
¶ 3 An extended recitation of the facts is unnecessary to the issues raised on appeal. Between March 8 and October 14, 2004, Appellant, his grandfather (and co-defendant), and others not charged, participated in four sales of methamphetamine to federal undercover operatives. Each of these buys was controlled by federal agents and surreptitiously recorded. On each occasion, Appellant directed his customers to a house at 2904 S.W. 8th Street in Oklahoma City. There, he either met with customers in person or distributed methamphetamine and received proceeds through others acting on his directions. In each instance, the undercover buyers purchased trafficking or near-trafficking quantities of methamphetamine from Appellant's operation. On the fourth and final transaction, Appellant also arranged and directed the sale of a stolen semi-automatic pistol to the informer. Although investigators hoped to continue the investigation, the informers proved unwilling and the investigation ended. Appellant was arrested in February, 2005 for another crime and subsequently charged in these counts as well. Additional facts will be stated in connection with the propositions of error before us.
¶ 4 In Proposition One, Appellant claims the District Court erred by using his deferred sentence on a prior drug conviction to enhance punishment for his convictions in this case. The record reflects Appellant entered a plea of guilty in 2003 to a charge of possession of marijuana with intent to distribute. He received a deferred sentence with five (5) years supervised probation, assorted court costs, and fines. Defense counsel objected at trial to the use of this guilty plea and deferred sentence to enhance his punishment, and thus preserved his claim that the deferred sentence on his prior drug case is not a "conviction."
¶ 5 The argument itself is without merit. Title 63 O.S.2001, § 2-410 provides a sentencing deferment procedure for first time drug offenders:
Whenever any person who has not previously been convicted of any offense under this act ... the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as it may require ... Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed *136 a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person.
Any expunged arrest or conviction shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose; provided, that, any such plea of guilty or finding of guilt shall constitute a conviction of the offense for the purpose of this act or any other criminal statute under which the existence of a prior conviction is relevant. (emphasis added).
¶ 6 Under section 2-410, the felony statutes under which Appellant was convicted in this case are laws "under which the existence of a prior conviction is relevant" at sentencing.[1] We examined this statute recently in Platt v. State, 2008 OK CR 20, 188 P.3d 196, and held that within the period of a defendant's sentencing deferral for a drug crime, the plea of guilty or finding of guilt entered in the prior case is a "conviction" for purposes of any subsequent crime for which a prior conviction is relevant. Id. at ¶ 10, 188 P.3d at 199. Appellant had not completed his deferred sentence for drug possession when he committed these felonies in 2004. His guilty plea in that prior case is a "conviction" according to the language of section 2-410, and thus available to enhance punishment for these crimes.
¶ 7 The jury was properly instructed on the ranges of punishment and its authority to enhance punishment based on Appellant's prior conviction, except in one instance. The District Court erred in its sentencing instruction for Appellant's crime in Count 7 of maintaining a dwelling where controlled dangerous drugs are kept, after former conviction. The Court instructed the jury that the enhanced sentencing range was no more than ten (10) years imprisonment, based on 21 O.S.Supp.2002, § 51.1(A)(3), which provides that crimes punishable for a first offense by "five (5) years, or any less term," are punishable after former conviction by a term not exceeding ten (10) years. However, the maintaining a dwelling statute, 63 Ohio St. 2001, § 2-404 provides the crime is "punishable by imprisonment for not more than five years" and a fine not to exceed $10,000, and thus has no minimum term. The enhancement statute for such crimes is 21 O.S.Supp. 2002, § 51.1(A)(2), providing that if a subsequent felony offense "does not carry a minimum sentence as a first time offender, such person is punishable by imprisonment in the State Penitentiary for a term in the range of two (2) years to life imprisonment." Where a sentence is infirm due to instructional error on punishment, this Court may modify within the range of punishment, modify to the minimum punishment allowable by law, or remand to the trial court for re-sentencing. Scott v. State, 1991 OK CR 31, ¶ 14, 808 P.2d 73, 77. We find the proper remedy here is to modify Appellant's sentence in Count 7 to five (5) years imprisonment.
¶ 8 Appellant's Proposition Two argues for the first time on appeal that the District Court should have instructed the jury he would be ineligible for institutional earned credits to reduce his sentence for trafficking in illegal drugs. 63 O.S.Supp. 2003, § 2-415(D) (punishment for trafficking in illegal drugs "shall not be subject to statutory provisions for suspension, deferral, or probation, or state correctional institution earned credits"). Appellant sees this statutory denial of "good time credits" on a par with the "85% Rule" of 21 O.S.Supp.2003, § 13.1, warranting an extension of Anderson v. State, 2006 OK CR 6, 130 P.3d 273, and a corresponding instruction to the sentencing jury.
¶ 9 Appellant waived review of the issue by failing to object or request such an instruction at trial, and we review only for plain *137 error. Romano v. State, 1995 OK CR 74, ¶ 80, 909 P.2d 92, 120. We find Anderson is distinguishable. While an instruction on the 85% Rule "does not require trial courts to speculate about possible future actions of the executive branch," Anderson, at ¶ 16, 130 P.3d at 279, an instruction on the defendant's ineligibility for some institutional earned credits to reduce his prison sentence would introduce highly speculative factors into jury sentencing decisions. Anderson held the 85% Rule "is a specific and readily understood concept of which the jury should be informed ..." but rejected the notion that such a rule would "open a floodgate of parole information" to be imparted in sentencing instructions to juries. Id. at ¶ 25, 130 P.3d at 283, quoting Mayes v. State, 1994 OK CR 44, ¶ 136, 887 P.2d 1288, 1318. Anderson did not break with earlier case law recognizing that trial courts ordinarily should not instruct the jury "as to the possible reduction of the sentence imposed by pardon and parole or deductions for good behavior." Kovash v. State, 1974 OK CR 26, ¶ 12, 519 P.2d 517, 522. (emphasis added). We have twice rejected similar claims in unpublished decisions after Anderson, and now expressly do so.[2] Proposition Two is denied.
¶ 10 In Proposition Three, Appellant claims his sentence is excessive. We will not modify a sentence imposed by the jury within the statutory range unless under all the facts and circumstances of the case the sentence is "so excessive as to shock the conscience of the Court." Freeman v. State, 1994 OK CR 37, ¶ 38, 876 P.2d 283, 291. Appellant's cumulative sentence of 195 years imprisonment is undoubtedly harsh and amounts to a life sentence behind bars. The jury heard evidence that Appellant was the leader of a methamphetamine trafficking and gun-running business involving his grandfather and others who acted on his orders. Appellant ran this enterprise while on probation for a prior drug felony, dealing trafficking and near-trafficking quantities of methamphetamine to undercover operatives on at least four occasions over seven months. On one of those occasions, Appellant also sold a stolen semi-automatic pistol. The jury's response to this evidence is understandable. Although Appellant is young, his tragic resolve to continue life as a dangerous criminal was obvious from the evidence at trial. These sentences are not shocking to the conscience. Proposition Three is denied.
¶ 11 In Proposition Four, Appellant argues the District Court gave an erroneous instruction on the definition of "possession" in connection with the charge that Appellant possessed a firearm while on supervised probation. In Proposition Five, Appellant claims the evidence is insufficient to support his firearm possession conviction. We address these related claims together. The claim of instructional error is waived by the failure to object or request a different instruction at trial. Romano, supra. Appellant essentially argues that Kinchion v. State, 2003 OK CR 28, 81 P.3d 681, precludes a finding of joint physical possession of a firearm, and because his co-defendant physically possessed the firearm at the time of its sale, his conviction cannot stand.
¶ 12 Kinchion is not on point. Kinchion simply held that an accomplice to armed robbery is not in joint "possession" of a firearm physically possessed and controlled by another robber for purposes of a felon-in-possession charge under 21 O.S.2001, § 1283. In Kinchion, the single gun carried in the robbery was in the hands of another robber and thus beyond appellant's dominion and control in any sense of the word. We recognized that "constructive possession and vicarious liability do not apply in this situation." Kinchion, at ¶ 12, 81 P.3d at 685. However, a person may constructively possess a firearm where he exercises a power of dominion and control over it. Pebworth v. State, 1993 OK CR 28, ¶ 12, 855 P.2d 605, 607 (criminal possession of firearm may be constructive or actual). In Hancock v. State, 2007 OK CR 9, ¶ 115, 155 P.3d 796, 823, this Court held that criminal possession of a firearm may be brief, if complete, or may extend over a period of time, if uninterrupted. Possession of a firearm "is a course of conduct, *138 not an act, [involving] all of the acts of dominion which demonstrate a continuing possessory interest in a firearm." Id., quoting United States v. Jones, 533 F.2d 1387, 1391 (6th Cir.1976). The evidence here, in the light most favorable to the State, established beyond a reasonable doubt that Appellant asserted dominion and control over this weapon up to the time of its sale, and thus violated 21 O.S.Supp.2003, § 1283, by constructively possessing a firearm while on supervised probation. The jury instruction given at trial accurately stated the relevant principles of constructive possession, and there was no plain error. The evidence is sufficient to support Appellant's conviction. Propositions Four and Five are denied.
¶ 13 Appellant's Proposition Six argues the District Court erred by failing to give a jury instruction on sentence entrapment. This claim is also waived by a failure to request the instruction at trial. Reviewing for plain error, we find sentence entrapment occurs only where "the State causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense." Leech v. State, 2003 OK CR 4, ¶ 7, 66 P.3d 987, 989 (emphasis added). The evidence at trial showed that Appellant was predisposed to distribute trafficking or near-trafficking quantities of methamphetamine. Appellant "fronted" over 19 grams of methamphetamine to an undercover operative even before government agents could arrange a controlled buy. Agents did not entice Appellant "into committing a greater crime of the same general character," id.; he was already interested in selling relatively large amounts of drugs to people he thought were also dealing. During a controlled payment for the "fronted" amount, Appellant actually asked the undercover operative if he wanted another "ounce and a half" of methamphetamine, which the informer at that point declined. There is no evidence of sentencing entrapment, and no instruction on this subject was warranted. Proposition Six is without merit.
¶ 14 Appellant in Proposition Seven challenges the sufficiency of evidence to convict him of maintaining a dwelling where controlled dangerous drugs were kept or sold. We review the evidence in the light most favorable to the State to determine whether any rational trier of fact could find the elements of the charged offense beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202. In Meeks v. State, 1994 OK CR 20, ¶ 7, 872 P.2d 936, 939, the Court set out a model instruction defining the elements of the offense, in relevant part, as (1) keeping or maintaining; (2) any dwelling house; (3) used for the keeping or selling of controlled dangerous substances; (4) in violation of the drug laws. We recognized in Meeks that the statute reaches conduct broader than ownership or tenancy, including situations where the defendant "`kept' or `maintained' the house by using it as a kind of brokerage house, or exchange site ... [The statute] does not require this must be the primary purpose for maintaining the dwelling; only a substantial purpose." Id. at ¶¶ 3-4, 872 P.2d at 938.
¶ 15 The State presented no documentary evidence to establish Appellant's ownership or rental of the dwelling, his payment of its utilities, or his performance of home maintenance there. The State presented some evidence that Appellant lived at the residence sporadically, and his grandfather and co-defendant lived there. Nonetheless, the evidence and reasonable inferences support a conclusion that Appellant used the residence as a brokerage site where he stored illegal drugs and consummated drug deals. Appellant directed his customers to the residence and conducted deals there both in person and through his surrogates. The house was fitted with multiple cameras trained on the surrounding street and monitored from inside the house. Drugs were stashed in a freezer near the back of the house and weighed out on scales in the kitchen. Appellant's repeated use of the dwelling for his drug deals, both in person and through associates acting on his directions, is legally sufficient to establish a violation of the statute under Meeks. Proposition Seven is denied.
¶ 16 We also reject Appellant's claim in Proposition Eight that his conviction for maintaining a dwelling and his convictions for distribution and trafficking in connection with the dwelling result in multiple punishments for a single criminal act and multiple punishments for the same offense in violation of 21 O.S.2001, § 11, and the constitutional double jeopardy prohibitions. Okla. Const. *139 art. II, § 21; U.S. Const. amend. V, XIV. Our analysis of a section 11 claim focuses on the relationship between the crimes. If the crimes "truly arise out of one act," section 11 prohibits prosecution for more than one crime, absent specific legislative intent. Davis v. State, 1999 OK CR 48, ¶¶ 12-13, 993 P.2d 124, 126-127. Where the defendant commits a series of separate and distinct crimes, section 11 is not violated. Ziegler v. State, 1980 OK CR 23, 610 P.2d 251, 254. We apply the traditional test in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932) to Appellant's claims of double jeopardy, asking whether each offense requires proof of an additional fact which the other does not. Id., 284 U.S. at 304, 52 S. Ct. at 180.
¶ 17 In Howard v. State, 1991 OK CR 76, 815 P.2d 679, appellant raised a claim that his convictions for possession of a controlled dangerous drug and maintaining a dwelling where drugs are kept violated double jeopardy. The Court ultimately held that because appellant "was convicted of this offense solely due to the presence of drugs in the room," the conviction for maintaining a dwelling failed for insufficient evidence. Id. at ¶ 6, 815 P.2d at 682. On the question of double jeopardy, the Court noted in dicta that when properly defined, the elements of maintaining a dwelling and drug possession are "distinctly different," and "create sufficient distinction between the two offenses so as not to offend the principles of double jeopardy." Id. at ¶ 7-8, 815 P.2d at 682. The Court found that the offense of maintaining a dwelling in violation of 63 O.S.2001, § 2-404 "contains additional essential elements which are not found in the laws against possession which, when coupled with proof of those elements, would establish a separate crime for double jeopardy purposes." Howard, at ¶ 8, 815 P.2d at 683.
¶ 18 We find the same can be said here of cases involving drug distribution or trafficking in connection with the use of a dwelling. In Howard, the Court quoted approvingly from a Georgia case, Barnes v. State, 255 Ga. 396, 339 S.E.2d 229 (Ga.1986),[3] which illustrated these "distinctly different" elements of the crime of maintaining a dwelling, including (1) evidence that one of the purposes of maintaining the dwelling was keeping sufficient quantities of drugs for sale or repeated use; and (2) evidence of more than a single, isolated incident of proscribed drug activity at the dwelling. These distinct elements are also embodied in the Oklahoma Uniform Jury Instruction on the elements of maintaining a dwelling.[4] We specifically noted a conviction under section 2-404 is appropriate "when there is evidence that the location in question is somehow being used for the purpose of facilitating drug usage or sales." Howard, at ¶ 8, 815 P.2d at 683.
¶ 19 The State presented substantial proof of both distinct elements in this case. Appellant *140 stashed marketable quantities of drugs at the dwelling over an extended period. He arranged several drug deals within the dwelling, conducted in person and through others acting on his directions. When Appellant maintained this refuge for his activities, and regularly availed himself of its protection for trafficking and distributing drugs, he committed the separate offense defined in section 2-404, containing elements that his crimes for trafficking and distribution did not. Appellant's resort to the residence for his criminal purposes was an act distinct from the acts of trafficking and distribution of methamphetamine, and was therefore also separately punishable under section 11 and the Double Jeopardy Clause. Proposition Eight is denied.
¶ 20 In Proposition Nine, Appellant argues the cumulative effect of errors deprived him of a fair trial. The error in the instructions on the punishment for maintaining a dwelling requires modification of the sentence in Count 7. Appellant has shown no other significant errors on appeal, and thus no cumulative effect of errors that warrants reversal or modification. Proposition Nine is denied.
DECISION
The Judgment and Sentence of the District Court of Oklahoma County is MODIFIED in Count 7 to a term of five (5) years imprisonment, and otherwise AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
G. LUMPKIN, P.J., C. JOHNSON, V.P.J. and A. JOHNSON, J.: Concur.
CHAPEL, J.: Concurs in Part/Dissents in Part.
LUMPKIN, Presiding Judge: Concurs.
¶ 1 While I continue to adhere to the analysis expressed in my separate writings in Platt v. State, 2008 OK CR 20, 188 P.3d 196, and Anderson v. State, 2006 OK CR 6, 130 P.3d 273, I concur in the decision of the Court based on stare decises.
CHAPEL, Judge, Concurs in Part/Dissents in Part.
¶ 1 I cannot disagree with most of the legal analysis in the majority opinion as it applies to the individual counts charged. Appellant and his co-defendant were clearly proven to be drug dealers. My problem with these kind of cases where the State is involved in "controlled buys" and the use of undercover agents is that there are no limits on the number and variety of counts that can be charged for what is essentially the same offense. Traditional double jeopardy and multiple punishment for the same offense legal analysis simply doesn't work in these cases where the State controls the number of offenses an offender may commit. These two co-defendants were big time drug dealers and were deserving of a lengthy sentence. I would therefore modify the sentences to run them all concurrent.
NOTES
[1] 63 O.S.Supp.2003, § 2-401(D)(1) provides that a second or subsequent violation of the statute is punishable under the habitual offender statute, 21 O.S.Supp.2003, § 51.1, amounting to twice the minimum at least, or a range of four (4) years imprisonment to life. Section 2-401(D)(3) provides that second or subsequent violations of the statute are not subject to deferred or suspended sentences.
[2] Abrego v. State, No. F-2006-232 (Okl.Cr., January 31, 2007); Frias v. State, No. F-2005-718 (Okl.Cr., May 24, 2007).
[3] The Georgia Court in Barnes formulated three rules involving drug possession offenses with regard to its statute on maintaining a dwelling:
First, we hold that in order to support a conviction under § 16-13-42(a)(5) for maintaining a residence or place used for keeping controlled substances, the evidence must show that one of the purposes for maintaining the structure was the keeping of the controlled substance; thus, the mere possession of limited quantities of a controlled substance within the residence or structure is insufficient to support a conviction under Section 16-13-42(a)(5). Second, we hold that in order to support a conviction under this statute for maintaining a residence or other structure or place used for selling controlled substances, the evidence must be sufficient to support a finding of more than a single, isolated instance of the proscribed activity ... Thirdly, we hold that in determining the sufficiency of the evidence in these regards, each case must be adjudged according to its own unique facts and circumstances, and there is no inflexible rule that evidence found only on a single occasion cannot be sufficient to show a crime of a continuing nature.
Id., 339 S.E.2d at 234.
[4] OUJI-CR(2d) 6-12 provides in relevant part:
A conviction of the crime of maintaining a place where controlled dangerous substances are kept requires that the activity giving rise to the charge must be more than a single, isolated activity. Rather, the term implies an element of some degree of habitualness.
A conviction of the crime of maintaining a place where controlled dangerous substances are kept requires that a substantial purpose, and not necessarily the sole purpose, of the residence is for the keeping or selling of controlled dangerous substances ... in violation of the law.
The mere possession of limited quantities of a controlled dangerous substance by the person keeping or maintaining the residence for that person's personal use within that residence is insufficient to support a conviction of the crime of maintaining a place where controlled dangerous substances are kept.
(emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360533/ | 667 S.E.2d 680 (2008)
ALFORD
v.
The STATE.
No. A08A0812.
Court of Appeals of Georgia.
September 11, 2008.
*681 Ernest B. Gilbert, Brunswick, for appellant.
Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.
MIKELL, Judge.
A Glynn County jury convicted Joel Alford, Jr., of trafficking in cocaine, and the trial court sentenced him to a term of 30 years, with 20 to serve and the rest on probation. Alford appeals the order denying his motion for new trial, arguing that the trial court erred in (1) denying his motion for mistrial based on the state's failure to "reveal the deal" with the confidential informant ("CI"), (2) admitting the CI's hearsay statements, (3) denying his motion to suppress the cocaine, and (4) denying his claim of ineffective assistance of counsel. Discerning no error, we affirm.
1. We first address Alford's contention that the trial court erred in denying his motion to suppress the cocaine.
When reviewing a trial court's ruling on a motion to suppress, [the] evidence is construed most favorably to uphold the findings and judgment. The court's findings of fact will not be disturbed if there is any evidence to support them. We consider evidence from both the motion to suppress hearing and the trial.[1]
*682 So viewed, the evidence adduced on this issue shows that on August 10, 2005, at approximately 2:00 p.m., Charles Harris, Jr., a twenty-year veteran of the Glynn Brunswick Narcotics Enforcement Team, received a communication from a reliable CI that Alford would be driving to Magnolia Hill subdivision in one of three vehicles, all of which the CI described, carrying three to four ounces of cocaine. Harris testified that the CI had previously provided information leading to five or six felony arrests and at least one conviction and had never given information that proved to be untrue. According to Harris, the CI reported that the cocaine would be delivered to a residence located on a street intersecting Pinewood Avenue, and Harris posted investigators at the entrances to the subdivision. Alford was stopped at 3:12 p.m. in a red Chevrolet Beretta, which matched one of the descriptions given by the CI.
Officer Kevin Hopkins testified that he saw the vehicle with a driver matching Alford's description stopped at a traffic light in the subdivision. Hopkins, whose vehicle was behind Alford's, noticed that the tag decal on Alford's car was in the wrong place. After initiating a traffic stop, Hopkins approached the vehicle, and Alford exited it immediately. While Hopkins was speaking to Alford, Hopkins noticed a digital scale on the front seat of the car. Hopkins called for a canine officer, and Alford was detained for between five and eight minutes before the officer arrived with the drug dog. Hopkins testified that while waiting for the drug dog to arrive, Alford was visibly nervous; his hands and legs were shaking. The dog conducted a "free air" sniff and alerted on the passenger side and driver's side of the vehicle. Afterward, the vehicle was searched, and several large bags of cocaine were found on the front seat under a piece of paper. The cocaine weighed 121.31 grams.
At the conclusion of the suppression hearing, the trial court found that the information provided by the CI gave the officers reasonable grounds to stop and briefly detain Alford and that the subsequent warrantless search of the vehicle was supported by probable cause. The court did not enter a written order.
On appeal, Alford argues that the stop of his vehicle was pretextual and that the officer had no probable cause for the stop on the basis of the information provided by the CI. This argument fails, however, because the officers "did not need probable cause to stop [Alford's vehicle]. On the contrary, a brief investigatory stop of a vehicle is justified by `specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.'"[2] We have routinely held that specific information from a reliable, known informant is sufficient to authorize an investigatory traffic stop.[3] In this case, the trial court credited Harris's testimony as to the reliability of the CI and found that the CI's report gave the police reasonable grounds to conduct the investigatory stop. Further, the known, reliable CI reported that Alford would be driving one of three vehicles, which the CI accurately described, in a specific subdivision near a particular street, carrying a specific quantity of cocaine. The police conducted surveillance and observed a vehicle matching a description given by the CI with a driver who also matched the CI's description. These circumstances were sufficient to give rise to a reasonable suspicion of criminal activity so as to authorize the *683 investigatory stop.[4] Thereafter, Hopkins's observation of the digital scale, which he described as the type used to weigh drugs, in plain view on the front seat of the vehicle, "[gave] the [officer] ... probable cause to search the car, as did the fact that the drug dog alerted to the passenger door after [he] arrived."[5] It follows that the trial court did not err in denying Alford's motion to suppress.
2. Alford complains that the trial court erred in denying his motion for mistrial based on the state's failure to "reveal the deal" with the CI before trial. We review the trial court's decision for abuse of discretion,[6] and we find none here.
Under Brady v. Maryland,[7] and Giglio v. United States,[8]
the [s]tate is under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness, and a failure to disclose such an agreement constitutes a violation of the due process requirements of Brady, supra. Giglio, supra. In order to show that the [s]tate violated Brady by failing to reveal a deal with one of its witnesses, a defendant must show that the [s]tate possessed evidence of the deal; that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; that the [s]tate suppressed evidence of the deal; and that, had the evidence of the deal been disclosed to the defendant, there existed a reasonable probability that the result at trial would have been different. The burden is on the defendant to prove each of these elements.[9]
In the case at bar, Alford has not shown either (1) that he did not possess evidence of the CI's deal with the state, or could not have obtained it himself with reasonable diligence, or (2) that a reasonable probability of a different outcome existed had the state disclosed the deal sooner. The record reveals that Alford knew the CI's identity and had included him on the defense's witness list. The state moved in limine to prevent the CI from taking the stand for the sole purpose of asserting his Fifth Amendment privilege against self-incrimination. In responding to the motion, Alford stated that he expected the evidence to show that he was arrested on August 10, 2005, and that the case against the CI was dead-docketed on September 9, 2005. Defense counsel referred to these facts in his opening statement. During cross-examination of the first witness, a narcotics officer who investigated the incident, Alford elicited the CI's identity and the fact that he at one time had a pending charge of trafficking in cocaine. Alford also introduced into evidence certified copies of the CI's indictment for trafficking in cocaine and the order dead-docketing the charges. Even assuming, arguendo, that Alford was not aware of all circumstances surrounding the deal before trial, he has not shown that earlier disclosure would have benefitted him and that any delay deprived him of a fair trial.[10] The trial court did not abuse its discretion in denying the mistrial motion.
3. Alford complains that the admission of the CI's statements violated his Sixth Amendment right to confrontation. The record shows, however, that Alford objected only to the characterization of the CI as reliable, and the trial court sustained those *684 objections. Accordingly, having failed to assert a confrontation clause objection at trial, Alford has waived it for the purpose of appellate review.[11]
4. Finally, Alford claims, for the first time on appeal, his conviction should be reversed and he should be granted a new trial because he received ineffective assistance of trial counsel. "It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at the earliest practicable moment."[12] "The rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised before appeal if the opportunity to do so is available. If the claim is not raised at the earliest practicable moment, it is waived."[13] In the case at bar, appellate counsel argued Alford's motion for new trial but failed to raise an ineffective assistance of counsel claim. Therefore, this claim has been waived.[14]
Judgment affirmed.
SMITH, P.J., and ADAMS, J., concur.
NOTES
[1] (Citation and punctuation omitted.) Dunn v. State, 289 Ga.App. 585(1), 657 S.E.2d 649 (2008).
[2] State v. Jones, 287 Ga.App. 259, 260, 651 S.E.2d 186 (2007), citing Johnson v. State, 230 Ga.App. 535, 537(1), 496 S.E.2d 785 (1998).
[3] See Jones, supra (reliable CI told officer that an individual driving a two-tone gray pickup truck with a certain placard on the door would be leaving a specific area with a particular quantity of cocaine); Steed v. State, 273 Ga.App. 845, 846(1), 616 S.E.2d 185 (2005) (known, reliable informant told investigators that two men had purchased drugs in a trailer park, were leaving in a gray pickup truck, and were driving on a certain road toward a specific intersection); Wilson v. State, 249 Ga.App. 560, 562, 549 S.E.2d 418 (2001) (CI informed investigators that two men were transporting drugs in a specific area, and gave investigators the car's color, make, model, and tag number); Johnson, supra at 535, 496 S.E.2d 785 (a reliable CI told investigators that the defendant had crack cocaine and was parked in a certain area, and gave investigators the van's color, make, model, and tag number).
[4] Jones, supra; Steed, supra; Wilson, supra; Johnson, supra.
[5] (Citation omitted.) Tanner v. State, 281 Ga. App. 101, 104(1), 635 S.E.2d 388 (2006).
[6] See Smith v. State, 276 Ga. 263, 265-266(3), 577 S.E.2d 548 (2003).
[7] 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[8] 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
[9] Ragland v. State, 238 Ga.App. 664-665, 519 S.E.2d 757 (1999), citing Burgeson v. State, 267 Ga. 102, 104(2), 475 S.E.2d 580 (1996); Ferguson v. State, 226 Ga.App. 681, 682-683(2), 487 S.E.2d 467 (1997); Zant v. Moon, 264 Ga. 93, 100(3), 440 S.E.2d 657 (1994).
[10] Dennard v. State, 263 Ga. 453, 454(4), 435 S.E.2d 26 (1993), overruled in part on other grounds, Sanders v. State, 281 Ga. 36, 37(1), 635 S.E.2d 772 (2006).
[11] Jordan v. State, 283 Ga.App. 85, 86(2), 640 S.E.2d 672 (2006) (confrontation clause objection, as with any constitutional argument, waived by failure to assert it at trial).
[12] (Citation and punctuation omitted.) Bailey v. State, 264 Ga. 300, 443 S.E.2d 836 (1994).
[13] (Citation, punctuation and footnotes omitted.) Chapman v. State, 279 Ga.App. 200, 206(3), 630 S.E.2d 810 (2006).
[14] See id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2570714/ | 106 Cal. Rptr. 2d 126 (2001)
25 Cal. 4th 387
21 P.3d 797
COMEDY III PRODUCTIONS, INC., Plaintiff and Respondent,
v.
GARY SADERUP, INC., et al., Defendants and Appellants.
No. S076061.
Supreme Court of California.
April 30, 2001.
*128 Cooper, Kardaras & Scharf, Brand Cooper, Pasadena, Victor E. Aguilera, Sherman Oaks, James C. Potepan, Edward C. Wilde and Stuart L. Brody, Sacramento, for Defendants and Appellants.
Benjamin, Lugosi & Benjamin, Bela G. Lugosi, Robert N. Benjamin and Caroline H. Mankey, Glendale, for Plaintiff and Respondent.
Manatt, Phelps & Phillips and Mark S. Lee, Los Angeles, for The Autry Survivor's Trust, ETW Corporation, The Diana, Princess of Wales Memorial Fund and Elvis Presley Enterprises, Inc., as Amici Curiae on behalf of Plaintiff and Respondent.
Geffner & Bush, Leo Geffner and Jospeh A. Kohanski, Burbank, for Screen Actors Guild, Inc., as Amicus Curiae on behalf of Plaintiff and Respondent.
David S. Welkowitz as Amicus Curiae on behalf of Plaintiff and Respondent.
Margaret A. Boulware; Ross J. Charap, New York, NY; Morton D. Goldberg; Joseph N. Welch, Sacramento; Knobbe, Martens, Olson & Bear, Joseph F. Jennings, *129 Newport Beach, Joseph S. Cianfrani and Joseph R. Re for American Intellectual Property Law Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, Kevin J. Leichter, Los Angeles, Caroline H. Mankey, Glendale; Law Offices of Robert A. Finkelstein and Robert A. Finkelstein for Wayne Enterprises, Inc., Sheffield Enterprises, Inc., Global Icons LLC and Groucho Marx Productions, Inc., as Amici Curiae on behalf of Plaintiff and Respondent.
*127 MOSK, J.
A California statute grants the right of publicity to specified successors in interest of deceased celebrities, prohibiting any other person from using a celebrity's name, voice, signature, photograph, or likeness for commercial purposes without the consent of such successors. (Former Civ.Code, § 990.)[1] The United States Constitution prohibits the states from abridging, among other fundamental rights, freedom of speech. (U.S. Const., 1st and 14th Amends.) In the case at bar we resolve a conflict between these two provisions. The Court of Appeal concluded that the lithographs and silkscreened T-shirts in question here received no First Amendment protection simply because they were reproductions rather than original works of art. As will appear, this was error: reproductions are equally entitled to First Amendment protection. We formulate instead what is essentially a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation. Applying this test to the present case, we conclude that there are no such creative elements here and that the right of publicity prevails. On this basis, we will affirm the judgment of the Court of Appeal.
I. The Statute
In this state the right of publicity is both a statutory and a common law right. The statutory right originated in Civil Code section 3344 (hereafter section 3344), enacted in 1971, authorizing recovery of damages by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent. Eight years later, in Lugosi v. Universal Pictures (1979) 25 Cal. 3d 813, 160 Cal. Rptr. 323, 603 P.2d 425 (Lugosi), we also recognized a common law right of publicity, which the statute was said to complement (id. at p. 818 and fn. 6, 160 Cal. Rptr. 323, 603 P.2d 425). But because the common law right was derived from the law of privacy,[2] we held in Lugosi that the cause of action did not survive the death of the person whose identity was exploited and was not descendible to his or her heirs or assignees. (25 Cal.3d at pp. 819-821, 160 Cal. Rptr. 323, 603 P.2d 425.)
In 1984 the Legislature enacted an additional measure on the subject, creating a second statutory right of publicity that was descendible to the theirs and assignees *130 of deceased persons. (Stats.1984, ch. 1704, § 1, p. 6169.) The statute was evidently modeled on section 3344: many of the key provisions of the two statutory schemes were identical. The 1984 measure is the statute in issue in the case at bar. At the time of trial and while the appeal was pending before the Court of Appeal, the statute was numbered section 990 of the Civil Code.
Section 990 declares broadly that "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof." (Id., subd. (a).) The amount recoverable includes "any profits from the unauthorized use," as well as punitive damages, attorney fees, and costs. (Ibid.)
The statute defines "deceased personality" as a person "whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death," whether or not the person actually used any of those features for commercial purposes while alive. (§ 990, subd. (h).)
The statute further declares that "The rights recognized under this section are property rights" that are transferable before or after the personality dies, by contract or by trust or will. (§ 990, subd. (b).) Consent to use the deceased personality's name, voice, photograph, etc., must be obtained from such a transferee or, if there is none, from certain described survivors of the personality. (Id., subds. (c), (d).) Any person claiming to be such a transferee or survivor must register the claim with the Secretary of State before recovering damages. (Id., subd. (f).)
The right to require consent under the statute terminates if there is neither transferee nor survivor (§ 990, subd. (e)), or 50 years after the personality dies (id., subd. (g)).[3]
The statute provides a number of exemptions from the requirement of consent to use. Thus a use "in connection with any news, public affairs, or sports broadcast or account, or any political campaign" does not require; consent. (§ 990, subd. (j).) Use in a "commercial medium" does not require consent solely because the material is commercially sponsored or contains paid advertising; "Rather it shall be a question of fact whether or not the use ... was so directly connected with" the sponsorship or advertising that it requires consent. (Id., subd. (k).) Finally, subdivision (n) provides that "[a] play, book, magazine, newspaper, musical composition, film, radio or television program" (id., subd. (n)(1)), work of "political or newsworthy value" (id., subd. (n)(2)), "[s]ingle and original works of fine art" (id., subd. (n)(3)), or "[a]n advertisement or commercial announcement' for the above works (id., subd. (n)(4)) are all exempt from the provisions of the statute.
II. Facts
Plaintiff Comedy III Productions, Inc. (hereafter Comedy III), brought this action against defendants Gary Saderup and Gary Saderup, Inc. (hereafter collectively Saderup), seeking damages and injunctive relief for violation of section 990 and related *131 business torts.[4] The parties waived the right to jury trial and the right to put on evidence, and submitted the case for decision on the following stipulated facts:
Comedy III is the registered owner of all rights to the former comedy act known as The Three Stooges, who are deceased personalities within the meaning of the statute.
Saderup is an artist with over 25 years' experience in making charcoal drawings of celebrities. These drawings are used to create lithographic and silkscreen masters, which in turn are used to produce multiple reproductions in the form, respectively, of lithographic prints and silkscreened images on T-shirts. Saderup creates the original drawings and is actively involved in the ensuing lithographic and silkscreening processes.
Without securing Comedy III's consent, Saderup sold lithographs and T-shirts bearing a likeness of The Three Stooges reproduced from a charcoal drawing he had made. These lithographs and T-shirts did not constitute an advertisement, endorsement, or sponsorship of any product.
Saderup's profits from the sale of unlicensed lithographs and T-shirts bearing a likeness of The Three Stooges was $75,000 and Comedy III's reasonable attorney fees were $150,000.
On these stipulated facts the court found for Comedy III and entered judgment against Saderup awarding damages of $75,000 and attorney fees of $150,000 plus costs. The court also issued a permanent injunction restraining Saderup from violating the statute by use of any likeness of The Three Stooges in lithographs, T-shirts, "or any other medium by which [Saderup's] art work may be sold or marketed." The injunction further prohibited Saderup from "Creating, producing, reproducing, copying, distributing, selling or exhibiting any lithographs, prints, posters, t-shirts, buttons, or other goods, products or merchandise of any kind, bearing the photograph, image, face, symbols, trademarks, likeness, name, voice or signature of The Three Stooges or any of the individual members of The Three Stooges." The sole exception to this broad prohibition was Saderup's original charcoal drawing from which the reproductions at issue were made.
Saderup appealed. The Court of Appeal modified the judgment by striking the injunction. The court reasoned that Comedy III had not proved a likelihood of continued violation of the statute, and that the wording of the injunction was overbroad because it exceeded the terms of the statute and because it "could extend to matters and conduct protected by the First Amendment...."
The Court of Appeal affirmed the judgment as thus modified, however, upholding the award of damages, attorney fees, and costs. In so doing, it rejected Saderup's contentions that his conduct (1) did not violate the terms of the statute, and (2) in any event was protected by the constitutional guaranty of freedom of speech.
We granted review to address these two issues.[5]
III. Discussion
A. The Statutory Issue
Saderup contends the statute applies only to uses of a deceased personality's *132 name, voice, photograph, etc., for the purpose of advertising, selling, or soliciting the purchase of, products or services. He then stresses the stipulated fact (and subsequent finding) that the lithographs and T-shirts at issue in this case did not constitute an advertisement, endorsement, or sponsorship of any product. He concludes the statute therefore does not apply in the case at bar. As will appear, the major premise of his argumenthis construction of the statuteis unpersuasive.
As noted above, the statute makes liable any person who, without consent, uses a deceased personality's name, voice, photograph, etc., "in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services...." (§ 990, subd.(a), italics added.) Saderup's construction reads the emphasized phrase out of the statute. Yet the Legislature deliberately inserted it, as the following sequence of events demonstrates. When first enacted in 1971, section 3344the companion statute applying to living personalitiescontained no such phrase: the statute simply made liable any person who uses another's identity "in any manner, for purposes of advertising products, merchandise, goods or services, or for purposes of solicitation of such purchases. (Stats. 1971, ch. 1595, § 1, p. 3426.) The Legislature inserted the phrase, "on or in products, merchandise, or goods, or," when it amended section 3344 in 1984. (Stats.1984, ch. 1704, § 2, p. 6172.) And in the very same legislation, the Legislature adopted section 990 and inserted the identical phrase in that statute as well. (Stats.1984, ch. 1704, § 1, p. 6169.)
We therefore give effect to the plain meaning of the statute: it makes liable any person who, without consent, uses a deceased personality's name, voice, photograph, etc., either (1) "on or in" a product, or (2) in "advertising or selling" a product. The two uses are not synonymous: in the apt example given by the Court of Appeal, there is an obvious difference between "placing a celebrity's name on a `special edition' of a vehicle, and using that name in a commercial to endorse or tout the same or another vehicle."
Applying this construction of the statute to the facts at hand, we agree with the Court of Appeal that Saderup sold more than just the incorporeal likeness of The Three Stooges. Saderup's lithographic prints of The Three Stooges are themselves tangible personal property, consisting of paper and ink, made as products to be sold and displayed on walls like similar graphic art Saderup's T-shirts are likewise tangible personal property, consisting of fabric and ink, made as products to be sold and worn on the body like similar garments. By producing and selling such lithographs and T-shirts, Saderup thus used the likeness of The Three Stooges "on ... products, merchandise, or goods" within the meaning of the statute.[6]
Saderup contends this construction is inconsistent with precedent, but the cases on which he relies are readily distinguishable. Eastwood v. Superior Court (1983) 149 Cal. App. 3d 409, 417, 198 Cal. Rptr. 342, involving section 3344, was decided when*:hat statute prohibited the use *133 of another's identity only for advertising purposes. And although Newcombe v. Adolf Coors Company (9th Cir.1998) 157 F.3d 686 was decided after the Legislature inserted the phrase, "on or in products, merchandise, or goods," into section 3344, the case is not authority for reading that phrase out of the statute or section 990: because the sole issue in the case was the unauthorized use of a celebrity's likeness in a beer advertisement, the court quoted only those portions of section 3344 dealing with advertisements. (Newcombe, at p. 692.)
B. The Constitutional Issue
Saderup next contends that enforcement of the judgment against him violates his right of free speech and expression under the First Amendment. He raises a difficult issue, which we address below.
The right of publicity is often invoked in the context of commercial speech when the appropriation of a celebrity likeness creates a false and misleading impression that the celebrity is endorsing a product. (See Waits v. Frito-Lay, Inc. (9th Cir.1992) 978 F.2d 1093; Midler v. Ford Motor Co. (9th Cir.1988) 849 F.2d 460.) Because the First Amendment does not protect false and misleading commercial speech (Central Hudson Gas & Elec. Corp. v. Public Serv. Com'n (1980) 447 U.S. 557, 563-564, 100 S. Ct. 2343, 65 L. Ed. 2d 341), and because even nonmisleading commercial speech is generally subject to somewhat lesser First Amendment protection (Central Hudson, at p. 566, 100 S. Ct. 2343), the right of publicity may often trump the right of advertisers to make use of celebrity figures.
But the present case does not concern commercial speech. As the trial court found, Saderup's portraits of The Three Stooges are expressive works and not an advertisement for or endorsement of a product. Although his work was done for financial gain, "[t]he First Amendment is not limited to those who publish without charge.... [An expressive activity] does not lose its constitutional protection because it is undertaken for profit." (Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal. 3d 860, 868, 160 Cal. Rptr. 352, 603 P.2d 454 (cone. opn. of Bird, C.J.) (Guglielmi).)[7]
The tension between the right of publicity and the First Amendment is highlighted by recalling the two distinct, commonly acknowledged purposes of the latter. First, "`to preserve an uninhibited marketplace of ideas' and to repel efforts to limit the `"uninhibited, robust and wideopen" debate on public issues.'" (Guglielmi supra, 25 Cal.3d at p. 866, 160 Cal. Rptr. 352, 603 P.2d 454.) Second, to foster a "fundamental respect for individual development and self-realization. The right to self-expression is inherent in any political system which respects individual dignity. Each speaker must be free of government restraint regardless of the nature or manner of the views expressed unless there is a compelling reason to the contrary." (Ibid., fn. omitted; see also Emerson, The System of Freedom of Expression (1970) pp. 6-7.)
*134 The right of publicity has a potential for frustrating the fulfillment of both these purposes. Because celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values. And because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression. As one commentator has stated: "Entertainment and sports celebrities are the leading players in our Public Drama. We tell tales, both tall and cautionary, about them. We monitor their comings and goings, their missteps and heartbreaks. We copy their mannerisms, their styles, their modes of conversation and of consumption. Whether or not celebrities are `the chief agents of moral change in the United States,' they certainly are widely usedfar more than are institutionally anchored elitesto symbolize individual aspirations, group identities, and cultural values. Their images are thus important expressive and communicative resources: the peculiar, yet familiar idiom in which we conduct a fair portion of our cultural business and everyday conversation." (Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights (1993) 81 Cal. L.Rev. 125, 128 (Madow, italics and fns. omitted.)
As Madow further points out, the very importance of celebrities in society means that the right of publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity's meaning. (Madow, supra, 81 Cal. L.Rev. at pp. 143-145; see also Coombe, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders (1992) 10 Cardozo Arts and Ent. L.J. 365, 377-388.) A majority of this court recognized as much in Guglielmi: "The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment." (Guglielmi, supra, 25 Cal.3d at p. 869, 160 Cal. Rptr. 352, 603 P.2d 454.)
For similar reasons, speech about public figures is accorded heightened First Amendment protection in defamation law. As the United States Supreme Court held in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789, public figures may prevail in a libel action only if they prove that the defendant's defamatory statements were made with actual malice, i.e., actual knowledge of falsehood or reckless disregard for the truth, whereas private figures need prove only negligence. (Id. at pp. 328, 342, 344-345, 94 S. Ct. 2997.) The rationale for such differential treatment is, first, that the public figure has greater access to the media and therefore greater opportunity to rebut defamatory statements, and second, that those who have become public figures have done so voluntarily and therefore "invite attention and comment." (Id. at pp. 344-345, 94 S. Ct. 2997.) Giving broad scope to the right of publicity has the potential of allowing a celebrity to accomplish through the vigorous exercise of that right the censorship of unflattering commentary that cannot be constitutionally accomplished through defamation actions.
Nor do Saderup's creations lose their constitutional protections because they are for purposes of entertaining rather than informing. As Chief Justice Bird stated in Guglielmi, invoking the dual purpose of the First Amendment: "Our courts have often observed that entertainment is entitled to the same constitutional protection as the exposition of ideas. That conclusion *135 rests on two propositions. First, `[t]he line between informing and entertaining is too elusive for the protection of the basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another doctrine.'" (Guglielmi, supra, 25 Cal.3d at p. 867, 160 Cal. Rptr. 352, 603 P.2d 454, fn. omitted.) "Second, entertainment, as a mode of self-expression, is entitled to constitutional protection irrespective of its contribution to the marketplace of ideas. `For expression is an integral part of the development of ideas, of mental exploration and of the affirmation of self. The power to realize his potentiality as a human being begins at this point and must extend at least this far if the whole nature of man is not to be thwarted.'" (Ibid.)
Nor does the fact that expression takes a form of nonverbal, visual representation remove it from the ambit of First Amendment protection. In Bery v. City of New York (2d Cir.1996) 97 F.3d 689, the court overturned an ordinance requiring visual artistspainters, printers, photographers, sculptors, etc.to obtain licenses to sell their work in public places, but exempted the vendors of books, newspapers or other written matter. As the court stated: "Both the [district] court and the City demonstrate an unduly restricted view of the First Amendment and of visual art itself. Such myopic vision not only overlooks case law central to First Amendment jurisprudence. but fundamentally misperceives the essence of visual communication and artistic expression. Visual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection.... One cannot look at Winslow Homer's paintings on the Civil War without seeing, in his depictions of the boredom and hardship of the individual soldier, expressions of anti-war sentiments, the idea that war is not heroic." (Id. at p. 695.)
Moreover, the United States Supreme Court has made it clear that a work of art is protected by the First Amendment even if it conveys no discernable message: "[A] narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a `particularized message,' [citation], would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557, 569, 115 S. Ct. 2338, 132 L. Ed. 2d 487.)
Nor does the fact that Saderup's art appears in large part on a less conventional avenue of communications, T-shirts, result in reduced First Amendment protection. As Judge Posner stated in the case of a defendant who sold T-shirts advocating the legalization of marijuana, "its T-shirts ... are to [the seller] what the New York Times is to the Sulzbergers and the Ochsthe vehicle of her ideas and opinions." (Ayres v. City of Chicago (7th Cir. 1997) 125 F.3d 1010, 1017; see also Cohen v. California (1971) 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 [jacket with words "Fuck the Draft" on the back is protected speech].) First Amendment doctrine does not disfavor nontraditional media of expression.
But having recognized the high degree of First Amendment protection for noncommercial speech about celebrities, we need not conclude that all expression that trenches on the right of publicity receives such protection. The right of publicity, like copyright, protects a form of intellectual property that society deems to have some social utility. "Often considerable money, time and energy are needed to *136 develop one's prominence in a particular field. Years of labor may be required before one's skill, reputation, notoriety or virtues are sufficiently developed to permit an economic return through some medium of commercial promotion. [Citations.] For some, the investment may eventually create considerable commercial value in one's identity." (Lugosi supra, 25 Cal.3d at pp. 834-835, 160 Cal. Rptr. 323, 603 P.2d 425 (dis. opn. of Bird, C. J.).)
The present case exemplifies this kind of creative labor. Moe and Jerome (Curly) Howard and Larry Fein fashioned personae collectively known as The Three Stooges, first in vaudeville and later in movie shorts, over a period extending from the 1920's to the 1940's. (See Fleming, The Three Stooges: Amalgamated Morons to American Icons (1999) pp. 10-46.) The three comic characters they created and whose names they sharedLarry, Moe, and Curlypossess a kind of mythic status in our culture. Their journey from ordinary vaudeville performers to the heights (or depths) of slapstick comic celebrity was long and arduous. (Ibid.) Their brand of physical humorthe nimble, comically stylized violence, the "nyuknyuks" and "whoop-whoop-whoops," eye-pokes, slaps and head conks (see, e.g., Three Little Pigskins (Columbia Pictures 1934), Hoi Polloi (Columbia Pictures 1935), A Gem of a Jam (Columbia Pictures 1943), Micro Phonies (Columbia Pictures 1945)) created a distinct comedic trademark. Through their talent and labor, they joined the relatively small group of actors who constructed identifiable, recurrent comic personalities that they brought to the many parts they were scripted to play. "Groucho Marx just being Groucho Marx, with his moustache, cigar, slouch and leer, cannot be exploited by others. Red Skelton's variety of self-devised roles would appear to be protectible, as would the unique personal creations of Abbott and Costello, Laurel and Hardy and others of that genre.... `[W]e deal here with actors portraying themselves and developing their own characters.'" (Lugosi, supra, 25 Cal.3d at pp. 825-826, 160 Cal. Rptr. 323, 603 P.2d 425 (cone. opn. of Mosk, J.).)
In sum, society may recognize, as the Legislature has done here, that a celebrity's heirs and assigns have a legitimate protectible interest in exploiting the value to be obtained from merchandising the celebrity's image, whether that interest be conceived as a kind of natural property right or as an incentive for encouraging creative work. (See 1 McCarthy, The Rights of Publicity and Privacy (2d ed.2000) §§ 2.2-2.7, pp. 2-1 to 2-22 (McCarthy).) Although critics have questioned whether the right of publicity truly serves any social purpose (see, e.g., Madow, supra, 81 Cal. L.Rev. at pp. 178-238), there is no question that the Legislature has a rational basis for permitting celebrities and their heirs to control the commercial exploitation of the celebrity's likeness.
Although surprisingly few courts have considered in any depth the means of reconciling the right of publicity and the First Amendment, we follow those that have in concluding that depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment. We begin with Zacchini v. Scripps-Howard Broadcasting Co. (1977) 433 U.S. 562, 576, 97 S. Ct. 2849, 53 L. Ed. 2d 965 (Zacchini), the only United States Supreme Court case to directly address the right of publicity. Zacchini, the performer of a human cannonball act, sued a television station that had videotaped and broadcast his entire performance without his consent. The court held the First Amendment did not protect the television station against a right of *137 publicity claim under Ohio common law. In explaining why the enforcement of the right of publicity in this case would not violate the First Amendment, the court stated: "`[T]he rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.'" (Id. at p. 576, 97 S. Ct. 2849.) The court also rejected the notion that federal copyright or patent law preempted this type of state law protection of intellectual property: "[Copyright and patent] laws perhaps regard the `reward to the owner [as] a secondary consideration,' [citation], but they were `intended definitely to grant valuable, enforceable rights' in order to afford greater encouragement to the production of works of benefit to the public. [Citation.] The Constitution does not prevent Ohio from making a similar choice here in deciding to protect the entertainer's incentive in order to encourage the production of this type of work." (Id. at p. 577, 97 S. Ct. 2849.)
To be sure, Zaechini was not an ordinary right of publicity case: the defendant television station had appropriated the plaintiffs entire act, a species of common law copyright violation. Nonetheless, two principles enunciated in Zacchini apply to this case: (1) state law may validly safeguard forms of intellectual property not covered under federal copyright and patent law as a means of protecting the fruits of a performing artist's labor; and (2) the state's interest in preventing the outright misappropriation of such intellectual property by others is not automatically trumped by the interest in free expression or dissemination of information; rather, as in the case of defamation, the state law interest and the interest in free expression must be balanced, according to the relative importance of the interests at stake. (See Gertz v. Robert Welch, Inc., supra, 418 U.S. at pp. 347-350, 94 S. Ct. 2997.)
Guglielmi adopted a similar balancing approach. The purported heir of Rudolph Valentino filed suit against the makers of a fictional film based on the latter's life. Guglielmi concluded that the First Amendment protection of entertainment superseded any right of publicity. This was in contrast to the companion Lugosi case, in which Chief Justice Bird concluded in her dissenting opinion that there may be an enforceable right of publicity that would prevent the merchandising of Count Dracula using the likeness of Bela Lugosi, with whom that role was identified. (Lugosi, supra, 25 Cal.3d at pp. 848-849, 160 Cal. Rptr. 323, 603 P.2d 425 (dis. opn. of Bird, C.J.).) Guglielmi proposed a balancing test to distinguish protected from unprotected appropriation of celebrity likenesses: "an action for infringement of the right of publicity can be maintained only if the proprietary interests at issue clearly outweigh the value of free expression in this context." (Guglielmi supra, 25 Cal.3d at p. 871, 160 Cal. Rptr. 352, 603 P.2d 454.)
In Estate of Presley v. Russen (D.N.J. 1981) 513 F. Supp. 1339 (Russen), the court considered a New Jersey common law right of publicity claim by Elvis Presley's heirs against an impersonator who performed The Big El Show. The court implicitly used a balancing test similar to the one proposed in Guglielmi. Acknowledging that the First Amendment protects entertainment speech, the court nonetheless rejected that constitutional defense. "[E]ntertainment that is merely a copy or imitation, even if skillfully and accurately carried out, does not really have its own creative component and does not have a significant value as pure entertainment. As one authority has emphasized: `The public interest in entertainment will support *138 the sporadic, occasional and goodfaith imitation of a famous person to achieve humor, to effect criticism or to season a particular episode, but it does not give a privilege to appropriate another's valuable attributes on a continuing basis as one's own without the consent of the other.'" (Russen, supra, 513 F.Supp. at pp. 1359-1360.) Acknowledging also that the show had some informational value, preserving a live Elvis Presley act for posterity, the court nonetheless stated: "This recognition that defendant's production has some value does not diminish our conclusion that the primary purpose of defendant's activity is to appropriate the commercial value of the likeness of Elvis Presley." (Id. at p. 1360.)
On the other side of the equation, the court recognized that the Elvis impersonation, as in Zacchini represented "`what may be the strongest case for a "right of publicity"involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place.'" (Russen, supra, 513 F.Supp. at p. 1361, quoting Zacchini supra, 433 U.S. at p. 576, 97 S. Ct. 2849.) Thus, in balancing the considerable right of publicity interests with the minimal expressive or informational value of the speech in question, the Russen court concluded that the Presley estate's request for injunctive relief would likely prevail on the merits. (Russen, at p. 1361; see also Factors Etc. Inc. v. Creative Card Co. (S.D.N.Y.1977) 444 F. Supp. 279 [poster of Elvis Presley labeled "In Memory ... 1935-1977" did not possess sufficient news-worthiness to be eligible for First Amendment protection].)
In Groucho Marx Productions, Inc. v. Day & Night Co. (S.D.N.Y.1981) 523 F. Supp. 485, reversed on other grounds (2d Cir.1982) 689 F.2d 317, the court considered a right of publicity challenge to a new play featuring characters resembling the Marx Brothers. The court found in favor of the Marx Brothers' heirs, rejecting a First Amendment defense. In analyzing that defense, the court posed a dichotomy between "works ... designed primarily to promote the dissemination of thoughts, ideas or information through news or fictionalization," which would receive First Amendment protection, and "use of the celebrity's name or likeness ... largely for commercial purposes, such as the sale of merchandise," in which the right of publicity would prevail. (523 F.Supp. at p. 492.) In creating this dichotomy, the court did not appear to give due consideration to forms of creative expression protected by the First Amendment that cannot be categorized as ideas or information. Moreover, the court, borrowing from certain copyright cases, seemed to believe that the validity of the First Amendment defense turned on whether the play was a parody, without explaining why other forms of creative appropriation, such as using established characters in new theatrical works to advance various creative objectives, were not protected by the First Amendment.[8] Nonetheless, the case is in line with Zacchini Guglielmi and Russen in recognizing that certain forms of commercial exploitation of celebrities that violate the state law right of publicity do not receive First Amendment protection.
It is admittedly not a simple matter to develop a test that will unerringly *139 distinguish between forms of artistic expression protected by the First Amendment and those that must give way to the right of publicity. Certainly, any such test must incorporate the principle that the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity's image by censoring disagreeable portrayals. Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope. The necessary implication of this observation is that the right of publicity is essentially an economic right. What the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity's fame through the merchandising of the "name, voice, signature, photograph, or likeness" of the celebrity. (§ 990.)
Beyond this precept, how may courts distinguish between protected and unprotected expression? Some commentators have proposed importing the fair use defense from copyright law (17 U.S.C. § 107), which has the advantage of employing an established doctrine developed from a related area of the law. (See Barnett, First Amendment Limits on the Right of Publicity (1995) 30 Tort & Ins. L.J. 635, 650-657; Coyne, Toward a Modified Fair Use Defense in Right of Publicity Cases (1988) 29 Wm. & Mary L.Rev. 781, 812-820.) Others disagree, pointing to the murkiness of the fair use doctrine and arguing that the idea/expression dichotomy, rather than fair use, is the principal means of reconciling copyright protection and First Amendment rights. (2 McCarthy, supra, § 8.38, pp. 8-358 to 8-360; see also Kwall, The Right of Publicity vs. The First Amendment: A Property and Liability Rule Analysis (1994) 70 Ind. L.J. 47, 58, fn. 54.)
We conclude that a wholesale importation of the fair use doctrine into right of publicity law would not be advisable. At least two of the factors employed in the fair use test, "the nature of the copyrighted work" and "the amount and substantiality of the portion used" (17 U.S.C. § 107(2), (3)), seem particularly designed to be applied to the partial copying of works of authorship "fixed in [a] tangible medium of expression" (17 U.S.C. § 102); it is difficult to understand why these factors would be especially useful for determining whether the depiction of a celebrity likeness is protected by the First Amendment.
Nonetheless, the first fair use factor "the purpose and character of the use" (17 U.S.C. § 107(1))does seem particularly pertinent to the task of reconciling the rights of free expression and publicity. As the Supreme Court has stated, the central purpose of the inquiry into this fair use factor "is to see, in Justice Story's words, whether the new work merely `supersede[s] the objects' of the original creation [citations], or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is `transformative.' [Citation.] Although such transformative use is not absolutely necessary for a finding of fair use, [citation] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." (Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569, 579, 114 S. Ct. 1164, 127 L. Ed. 2d 500, fn. omitted.)
This inquiry into whether a work is "transformative" appears to us to be necessarily at the heart of any judicial attempt to square the right of publicity with *140 the First Amendment. As the above quotation suggests, both the First Amendment and copyright law have a common goal of encouragement of free expression and creativity, the former by protecting such expression from government interference, the latter by protecting the creative fruits of intellectual and artistic labor. (See 1 Nimmer on Copyright (2000 ed.) § 1.10, pp. 1-66.43 to 1-66.44 (Nimmer).) The right of publicity, at least theoretically, shares this goal with copyright law. (1 McCarthy, supra, § 2.6, pp. 2-14 to 2-19.) When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain,[9] directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. (See Zacchini supra, 433 U.S. at pp. 575-576, 97 S. Ct. 2849.)
On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity. As has been observed, works of parody or other distortions of the celebrity figure are not, from the celebrity fan's viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect. (See Cardtoons, L.C v. Major League Baseball Players Association (10th Cir.1996) 95 F.3d 959, 974 (Cardtoons).) Accordingly, First Amendment protection of such works outweighs whatever interest the state may have in enforcing the right of publicity. The right-of-publicity holder continues to enforce the right to monopolize the production of conventional, more or less fungible, images of the celebrity.[10]
Cardtoons, supra, 95 F.3d 959, cited by Saderup, is consistent with this "transformative" test. There, the court held that the First Amendment protected a company that produced trading cards caricaturing and parodying well-known major league baseball players against a claim *141 brought under the Oklahoma right of publicity statute. The court concluded that "[t]he cards provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball," and that "[t]he cards are no less protected because they provide humorous rather than serious commentary." (Cardtoons, at p. 969.) The Cardtoons court weighed these First Amendment rights against what it concluded was the less-than-compelling interests advanced by the right of publicity outside the advertising context especially in light of the reality that parody would not likely substantially impact the economic interests of celebritiesand found the cards to be a form of protected expression. (Cardtoons, at pp. 973-976.) While Cardtoons contained dicta calling into question the social value of the right of publicity, its conclusion that works parodying and caricaturing celebrities are protected by the First Amendment appears unassailable in light of the test articulated above.
We emphasize that the transformative elements or creative contributions that require First Amendment protection are not confined to parody and can take many forms, from factual reporting (see, e.g., Rosemont Enterprises, Inc. v. Random House, Inc. (N.Y.Sup.Ct.1968) 58 Misc. 2d 1, 294 N.Y.S.2d 122, 129, affd. mem. (1969) 32 A.D.2d 892, 301 N.Y.S.2d 948) to fictionalized portrayal (Guglielmi, supra, 25 Cal.3d at pp. 871-872, 160 Cal. Rptr. 352, 603 P.2d 454; see also Parks v. LaFace Records (E.D.Mich.1999) 76 F. Supp. 2d 775, 779-782 [use of civil rights figure Rosa Parks in song title is protected expression]), from heavy-handed lampooning (see Hustler Magazine v. Falwell (1988) 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41) to subtle social criticism (see Coplans et al., Andy Warhol (1970) pp. 50-52 [explaining Warhol's celebrity portraits as a critique of the celebrity phenomenon] ).
Another way of stating the inquiry is whether the celebrity likeness is one of the "raw materials" from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness. And when we use the word "expression," we mean expression of something other than the likeness of the celebrity.
We further emphasize that in determining whether the work is transformative, courts are not to be concerned with the quality of the artistic contributionvulgar forms of expression fully qualify for First Amendment protection. (See, e.g., Hustler Magazine v. Falwell, supra, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41; see also Campbell v. Acuff Rose Music, Inc., supra, 510 U.S. at p. 582, 114 S. Ct. 1164.) On the other hand, a literal depiction of a celebrity, even if accomplished with great skill, may still be subject to a right of publicity challenge. The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work.[11]
*142 Furthermore, in determining whether a work is sufficiently transformative, courts may find useful a subsidiary inquiry, particularly in close cases: does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrityfrom the creativity, skill, and reputation of the artistit may be presumed that sufficient transformative elements are present to warrant First Amendment protection. If the question is answered in the affirmative, however, it does not necessarily follow that the work is without First Amendment protectionit may still be a transformative work.
In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame.
Turning to the present case, we note that the trial court, in ruling against Saderup, stated that "the commercial enterprise conducted by [Saderup] involves the sale of lithographs and T-shirts which are not original single works of art, and which are not protected by the First Amendment; the enterprise conducted by [Saderup] was a commercial enterprise designed to generate profits solely from the use of the likeness of The Three Stooges which is the right of publicity ... protected by section 990." Although not entirely clear, the trial court seemed to be holding that reproductions of celebrity images are categorically outside First Amendment protection. The Court of Appeal was more explicit in adopting this rationale: "Simply put, although the First Amendment protects speech that is sold [citation], reproductions of an image, made to be sold for profit do not per se constitute speech." But this position has no basis in logic or authority. No one would claim that a published book, because it is one of many copies, receives less First Amendment protection than the original manuscript. It is true that the statute at issue here makes a distinction between a single and original work of fine art and a reproduction. (§ 990, subd. (n)(3).) Because the statute evidently aims at preventing the illicit merchandising of celebrity images, and because single original works of fine art are not forms of merchandising, the state has little if any interest in preventing the exhibition and sale of such works, and the First Amendment rights of the artist should therefore prevail. But the inversethat a reproduction receives no First Amendment protectionis patently false: a reproduction of a celebrity image that, as explained above, contains significant creative elements is entitled to as much First Amendment protection as an original work of art. The trial court and the Court of Appeal therefore erred in this respect.
Rather, the inquiry is into whether Saderup's work is sufficiently transformative. Correctly anticipating this inquiry, he argues *143 that all portraiture involves creative decisions, that therefore no portrait portrays a mere literal likeness, and that accordingly all portraiture, including reproductions, is protected by the First Amendment. We reject any such categorical position. Without denying that all portraiture involves the making of artistic choices, we find it equally undeniable, under the test formulated above, that when an artist's skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist's right of free expression is outweighed by the right of publicity. As is the case with fair use in the area of copyright law, an artist depicting a celebrity must contribute something more than a "`"merely trivial"' variation, [but must create] something recognizably `"his own'"" (L. Batlin & Son, Inc. v. Snyder (2d Cir.1976) 536 F.2d 486, 490), in order to qualify for legal protection.
On the other hand, we do not hold that all reproductions of celebrity portraits are unprotected by the First Amendment. The silkscreens of Andy Warhol, for example, have as their subjects the images of such celebrities as Marilyn Monroe, Elizabeth Taylor, and Elvis Presley. Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself. (See Coplans et al., supra, at p. 52.)[12] Such expression may well be entitled to First Amendment protection. Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more so than other distinctions triers of fact are called on to make in First Amendment jurisprudence. (See, e.g., Miller v. California (1973) 413 U.S. 15, 24, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [requiring determination, in the context of work alleged to be obscene, of "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value"].)
Turning to Saderup's work, we can discern no significant transformative or creative contribution. His undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame. Indeed, were we to decide that Saderup's depictions were protected by the First Amendment, we cannot perceive how the right of publicity would remain a viable right other than in cases of falsified celebrity endorsements.
Moreover, the marketability and economic value of Saderup's work derives primarily from the fame of the celebrities depicted. While that fact alone does not necessarily mean the work receives no First Amendment protection, we can perceive no transformative elements in Saderup's works that would require such protection.
Saderup argues that it would be incongruous and unjust to protect parodies and other distortions of celebrity figures but not wholesome, reverential portraits of such celebrities. The test we articulate *144 today, however, does not express a value judgment or preference for one type of depiction over another. Rather, it reflects a recognition that the Legislature has granted to the heirs and assigns of celebrities the property right to exploit the celebrities' images, and that certain forms of expressive activity protected by the First Amendment fall outside the boundaries of that right. Stated another way, we are concerned not with whether conventional celebrity images Should be produced but with who produces them and, more pertinently, who appropriates the value from their production. Thus, under section 990, if Saderup wishes to continue to depict The Three Stooges as he has done, he may do so only with the consent of the right of publicity holder.
IV. Disposition
The judgment of the Court of Appeal is affirmed.
GEORGE, C.J., KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., BROWN, J., concur.
APPENDIX
NOTES
[1] After we granted review, the Legislature renumbered the statute as section 3344.1 of the Civil Code. (Stats. 1999, ch. 998, § 1; id., ch. 1000, § 9.5.) At the same time, it amended the wording of the statute in several respects. Because we interpret the former statute, we will refer to it throughout, in the present tense, as section 990.
[2] Specifically, from the fourth type of privacy invasion identified by Dean Prosser in his seminal article on the subject. (Prosser, Privacy (1960) 48 Cal. L.Rev. 383, 389 ["Appropriation, for the defendant's advantage, of the plaintiff's name or likeness"].)
[3] Under the new statute, this period has increased to 70 years. (Civ.Code, § 3344.1, subd. (g).)
[4] The action was also commenced by an unrelated celebrity whose claim was settled before trial.
[5] In its brief on the merits plaintiff asks us also to review the Court of Appeal's ruling striking the injunction. We decline to do so: plaintiff failed to raise this issue in its answer to the petition for review (Cal. Rules of Court, rule 28(e)(5)) and in any event presents little or no argument in support of the point.
[6] This conclusion is not inconsistent with the statement of the trial court that in the case at bar "the product consists of the likeness." The court did not make that statement in answering the statutory contention we address here, but in response to the constitutional claim we address later in this opinion (pt. III.B., post ). On the statutory issue, the court expressly found that "the products sold by the defendants are, in fact, lithographs and T-shirts with the likeness of The Three Stooges." (Italics; added.)
[7] Chief Justice Bird's concurring opinion in Guglielmi was signed by Justices Tobriner and Manuel. The principles enunciated in her concurrence were also endorsed by Justice Newman, who nonetheless did not join the opinion because he shared the view of the majority that the common law right of publicity was not descendible (the case predated the passage of section 990). (Guglielmi, supra, 25 Cal.3d at p. 876, 160 Cal. Rptr. 352, 603 P.2d 454.) Therefore, Chief Justice Bird's views in Guglielmi commanded the support of the majority of the court. Hereafter, all references to Guglielmi in this opinion will be to the Chief Justice's opinion.
[8] The Second Circuit Court of Appeals in Groucho Marx Productions v. Day and Night, supra, 689 F.2d at pages 320-323, reversed the district court on the grounds that it had mistakenly applied New York rather than California law, and that under the latter at the time, the right of publicity terminated at the death of the celebrity. The court therefore had no occasion to rule on the validity of the district court's First Amendment analysis.
[9] Inquiry into the "purpose and character" of the work in copyright law also includes "whether such use is of a commercial nature or is for nonprofit educational purposes." (17 U.S.C. § 107(1).) It could be argued that reproduction of a celebrity likeness for noncommercial usee.g., T-shirts of a recently deceased rock musician produced by a fan as a not-for-profit tributeis a form of personal expression and therefore more worthy of First Amendment protection. This is an issue, however, that we need not decide in this case. It is undisputed that Saderup sold his reproductions for financial gain.
[10] There is a fourth factor in the fair use test not yet mentioned, "the effect of the use upon the potential market for or value of the copyrighted work" (17 U.S.C. § 107(4)), that bears directly on this question. We do not believe, however, that consideration of this factor would usefully supplement the test articulated here. If it is determined that a work is worthy of First Amendment protection because added creative elements significantly transform the celebrity depiction, then independent inquiry into whether or not that work is cutting into the market for the celebrity's imagessomething that might be particularly difficult to ascertain in the right of publicity context (see Madow, supra, 81 Cal. L.Rev. at pp. 221-222)appears to be irrelevant. Moreover, this "potential market" test has been criticized for circularity: it could be argued that if a defendant has capitalized in any way on a celebrity's image, he or she has found a potential market and therefore could be liable for such work. (See 4 Nimmer, supra, § 13.05[A][4], pp. 13-183 to 13-184.) The "transformative" test elaborated in this opinion will, we conclude, protect the right-of-publicity holder's core interest in monopolizing the merchandising of celebrity images without unnecessarily impinging on the artists' right of free expression.
[11] Saderup also cites ETW Corp. v. Jireh Publishing, Inc. (N.D.Ohio 2000) 99 F. Supp. 2d 829, 835-836, in which the court held that a painting consisting of a montage of likenesses of the well-known professional golfer Eldridge "Tiger" Woods, reproduced in 5,000 prints, was a work of art and therefore protected under the First Amendment. We disagree with the ETW Corp. court if its holding is taken to mean that any work of art, however much it trespasses on the right of publicity and however much it lacks additional creative elements, is categorically shielded from liability by the First Amendment. Whether the work in question in that case would be judged to be exempt from California's right of publicity, either under the First Amendment test articulated in this opinion or under the statutory exception for material of newsworthy value, is, of course, beyond the scope of this opinion.
[12] The novelist Don DeLillo gives this fictional account of an encounter with Warhol's reproductions of images of Mao Zedong: "He moved along and stood finally in a room filled with images of Chairman Mao. Photocopy Mao, silk-screen Mao, wallpaper Mao, synthetic-polymer Mao. A series of silk screens was installed over a broader surface of wall-paper serigraphs, the Chairman's face a pansy purple here, floating nearly free of its photographic source. Work that was unwitting of history appealed to [him]. He found it liberating. Had he ever realized the deeper meaning of Mao before he saw these pictures?" (DeLillo, Mao II (1991) p. 21.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2447629/ | 6 A.3d 558 (2010)
COM.
v.
McALEER.
No. 1089 EDA 2009.
Superior Court of Pennsylvania.
July 13, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360752/ | 667 S.E.2d 449 (2008)
SPAETH
v.
The STATE.
No. A08A0979.
Court of Appeals of Georgia.
September 19, 2008.
*450 Lyle Kilvington Porter, for appellant.
Daniel J. Porter, Dist. Atty., Benjamin M. First, Asst. Dist. Atty., for appellee.
RUFFIN, Presiding Judge.
Following a bench trial, Stephanie Spaeth was found guilty of trafficking in methamphetamine and possession of controlled substances. Spaeth appeals the trial court's denial of her motion to suppress evidence found in her home after the execution of a search warrant. For reasons that follow, we affirm.
In reviewing a ruling on a motion to suppress, "we construe the evidence most favorably to uphold the findings and judgment of the trial court, and the court's findings on disputed facts and witness credibility will be adopted unless they are clearly erroneous."[1]*451 We conduct a de novo review of the trial court's application of the law to the facts if the evidence is not in dispute and no question of witness credibility is presented.[2] The record shows that in August 2005, Officer Godfrey of the Gwinnett County Police Department received information about illegal drug sales from a confidential informant. The informant told Officer Godfrey that if he gave money to Jonathan Glover, Glover would obtain methamphetamine from someone named Stephanie who lived near Highway 29. Officer Godfrey searched the informant and his vehicle for drugs, money, and weapons. He then gave the informant marked money and followed him to a house in Loganville. Soon after the informant entered the house, two other men left the house in a vehicle. The driver was identified as Jonathan Glover. The men went to a CVS store, where the passenger exited the vehicle, and then Glover continued on to a house on Lester Road, which was 2/10ths of a mile from Highway 29. A vehicle registered to Stephanie Spaeth was parked in the driveway. When Glover left the Lester Road house, he returned to CVS and picked up his passenger. He was then stopped by Gwinnett County Police, who found methamphetamine in an amount consistent with the money given to the informant in the vehicle.
In his application and affidavit for the issuance of a search warrant for the Lester Road house, Officer Godfrey set out these facts, but incorrectly stated that the vehicle driven by Glover had made no stops. The magistrate, relying solely on the affidavit, issued a search warrant for the Lester Road house. Spaeth was subsequently arrested and charged with trafficking in methamphetamine and possession of controlled substances. At the hearing on Spaeth's motion to suppress the evidence found during the search of her house, Officer Godfrey testified that in his affidavit he mistakenly omitted that Glover had dropped off a passenger at CVS before going to Spaeth's house and had picked up the passenger before they were stopped by police. He also testified that the informant had a pending criminal case at the time he supplied information to police in this case, although this information was not contained in his affidavit. The trial court denied Spaeth's motion to suppress, and she was found guilty of both counts.
On appeal, Spaeth argues that the trial court erred in denying her motion to suppress because Officer Godfrey's affidavit did not establish probable cause for the issuance of a search warrant. Specifically, she contends that the affidavit: failed to establish the reliability of the confidential informant; failed to establish corroboration of the unreliable informant's information; and contained "false and material misrepresentations."
In deciding whether an affidavit creates sufficient probable cause for the issuance of a warrant, the issuing magistrate or judge must make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.[3]
Accordingly, "[w]e look to the totality of the circumstances in evaluating the legality of a search warrant."[4]
The State concedes that Officer Godfrey's affidavit did not establish the reliability of the informant. But even when a magistrate has no basis upon which to determine an informant's veracity, "a tip may be proved reliable if portions of the tip are sufficiently corroborated."[5] In order for *452 corroboration to establish an informant's reliability, the corroboration should either predict future behavior or involve inside information not available to the general public.[6] Here, the informant's tip was sufficiently corroborated by his predictions of future behavior: that he would give the money to Jonathan Glover, who would drive to a house near Highway 29, obtain methamphetamine from a woman named Stephanie, and return with drugs.[7] The police witnessed Glover leave a meeting with the informant and drive to a house near Highway 29, and, after he left that house, they found methamphetamine in his possession in an amount consistent with the money given to the informant. The police confirmed that a car parked at the house belonged to Stephanie Spaeth.
We must consider, however, whether the false information in Officer Godfrey's affidavit renders it insufficient to support a finding of probable cause. In his affidavit, Officer Godfrey stated that Glover's "vehicle did [not] make any stops on the way" to Spaeth's residence. At the suppression hearing, however, he testified that Glover's passenger exited the vehicle at a CVS store before Glover went to Spaeth's residence. Glover returned and picked up the passenger at CVS before his vehicle was stopped and drugs discovered in it. Spaeth argues that, if these facts had been presented to the magistrate, no warrant would have been issued, because the methamphetamine could have been obtained by the passenger while at the CVS. If false information is included in an affidavit supporting a search warrant, or if material information is omitted, "the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant."[8]
After hearing testimony from Officer Godfrey, the trial court concluded that the deletion of the false statement and the inclusion of the omitted information did not change the determination that probable cause existed to issue a warrant. Here, police confirmed the informant's prediction that Glover would drive to a house near Highway 29 and purchase methamphetamine from a woman named Stephanie. While the interim stops at CVS were certainly relevant to the determination of probable cause, we cannot say that the inclusion of that information demanded a conclusion that the search warrant was not supported by probable cause.[9] And the failure of Officer Godfrey to state that the informant had pending criminal charges does not require a different result.[10] Given the totality of the circumstances, we affirm the trial court's denial of Spaeth's motion to suppress.[11]
Judgment affirmed.
ANDREWS and BERNES, JJ., concur.
NOTES
[1] Campbell v. State, 263 Ga.App. 755, 589 S.E.2d 313 (2003).
[2] See State v. Davis, 288 Ga.App. 164, 653 S.E.2d 311 (2007).
[3] Rocha v. State, 284 Ga.App. 852, 644 S.E.2d 921 (2007).
[4] State v. Cochran, 275 Ga.App. 185, 186(1), 620 S.E.2d 444 (2005).
[5] (Punctuation omitted.) Bragg v. State, 249 Ga. App. 430, 432(2), 548 S.E.2d 121 (2001).
[6] See Bain v. State, 258 Ga.App. 440, 443-444(1)(b), 574 S.E.2d 590 (2002).
[7] See Bragg, supra; Cochran, supra at 187, 620 S.E.2d 444; Tran v. State, 246 Ga.App. 153, 156-157(2), 539 S.E.2d 862 (2000).
[8] (Punctuation omitted.) Moss v. State, 275 Ga. 96, 102-103(13), 561 S.E.2d 382 (2002).
[9] See State v. Palmer, 291 Ga.App. 157, 159, 661 S.E.2d 146 (2008) (standard of review for trial court's ruling on motion to suppress is "`highly deferential'").
[10] See Campbell, supra at 756, 589 S.E.2d 313; Brown v. State, 244 Ga.App. 440, 441-442(1) 535 S.E.2d 785 (2000).
[11] See Bragg, supra; Evans v. State, 263 Ga.App. 572, 576, 588 S.E.2d 764 (2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2570891/ | 21 P.3d 895 (2001)
135 Idaho 573
Robin Lee ROW, Petitioner-Appellant,
v.
STATE of Idaho, Respondents.
No. 26508.
Supreme Court of Idaho, Boise, January 2001 Term.
March 1, 2001.
Rehearing Denied April 13, 2001.
*897 Hampton and Elliott, Boise, for appellant. Teresa A. Hampton argued.
Hon. Alan G. Lance, Attorney General; Kenneth M. Robins, Deputy Attorney General, Boise, for respondents. Kenneth M. Robins argued.
EISMANN, Justice.
This is a motion by the respondents to dismiss the appeal from the district court's summary dismissal of Robin Row's second application for post-conviction relief and request for habeas corpus relief. For the reasons stated below, we dismiss the appeal.
FACTS AND PROCEDURAL BACKGROUND
Robin Row was found guilty of aggravated arson and of the first degree murders of her husband and two children, and on December 16, 1993, she was sentenced to death. On January 26, 1994, Row filed a notice of appeal, *898 and on March 17, 1994, she filed an application for post-conviction relief. The two attorneys who had represented Row at trial withdrew, and new attorneys were appointed to represent her on the appeal and in her post-conviction proceedings. On March 11, 1996, the court dismissed Row's application for post-conviction relief, and she appealed that dismissal. The appeals were consolidated, and on March 18, 1998, the Idaho Supreme Court issued its decision upholding Row's conviction and sentence and the dismissal of her first petition for post-conviction relief. State v. Row, 131 Idaho 303, 955 P.2d 1082 (1998).
On November 2, 1999, Row filed a second petition for post-conviction relief, which also included a claim for habeas corpus relief. The state moved for summary dismissal of the post-conviction proceedings on the ground that Row did not comply with the requirements of Idaho Code § 19-2719(5). That statute provides that a defendant sentenced to death who fails to file a petition for post-conviction relief within 42 days of the entry of the judgment imposing the death sentence is deemed to have waived any claims for relief that were known or reasonably should have been known. It further provides that if the defendant files a subsequent petition for post-conviction relief raising issues that the claims were not and reasonably could not have been known, such petition must precisely state the issues raised and be accompanied by sworn statements from credible persons with first-hand knowledge setting forth the material facts supporting those issues. A subsequent petition that fails to comply with the requirements of Idaho Code § 19-2719(5) is to be summarily dismissed.
The state moved to dismiss the claim for habeas corpus relief on the ground that Row was challenging only the conditions of her confinement, which are not cognizable in a post-conviction proceeding. The district court granted the state's motions, and Row filed this appeal. The state then moved to dismiss the appeal.
ISSUES ON APPEAL
1. Did the district court err in summarily dismissing Row's second application for post-conviction relief?
2. Did the district court err in summarily dismissing Row's claim for habeas corpus relief?
3. Should this court consider issues that were raised by Row for the first time on appeal?
STANDARD OF REVIEW
Idaho Code § 19-2719 provides that in a death penalty case, the defendant must raise all claims for post-conviction relief that are known or reasonably should be known in one post-conviction proceeding filed within forty-two days after the entry of the judgment imposing the death sentence. The failure to do so constitutes a waiver of those claims. McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999); I.C. § 19-2719. Any claims actually asserted on direct appeal are barred as res judicata, and any claims raised in a prior application for post-conviction relief are barred by operation of Idaho Code § 19-2719(5). McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999). If a successive application for post-conviction relief does not show that the claims were not known and reasonably could not have been known within forty-two days of judgment, then the application must be dismissed summarily. Id.; I.C. § 19-2719(5).
ANALYSIS
1. DID THE DISTRICT COURT ERR IN SUMMARILY DISMISSING ROW'S SECOND APPLICATION FOR POST-CONVICTION RELIEF?
a. Allegations regarding ex parte communications by trial judge.
The first issue raised by Row in her successive application for post-conviction relief is that she was denied a fair trial and sentencing because of ex parte communications by the trial judge who presided over her criminal proceedings. Row alleges that such communications occurred with two of the state's witnesses Joan McHugh and her son John Blackwell. Approximately one year *899 before Row was charged with the crimes in her criminal case, Joan McHugh's husband Bernard McHugh was charged with and sentenced for two felony check charges. The trial judge who presided over Row's criminal proceedings also presided over Mr. McHugh's criminal proceedings. Row contends that as a result of presiding over the criminal case against Mr. McHugh, the trial judge had information that was not available to Row. Both Mr. McHugh and Row were represented by the Ada County Public Defender's office, and Row's trial counsel called Mr. McHugh as a defense witness and specifically questioned him about his conviction for a felony. The fact that the same trial judge presided over both Row's and Mr. McHugh's criminal proceedings was also a matter of public record. The court below did not err in summarily dismissing this claim because it was known or reasonably could have been known by Row at the time she filed her first petition for post-conviction relief.
Row also alleged that while the criminal proceedings were pending against her, Joan McHugh and John Blackwell began attending the same small church of which the trial judge was a long-time member, and the pastor of that church accompanied Mrs. McHugh to Row's trial, including when Mrs. McHugh testified. There is no allegation that the trial judge actually engaged in any ex parte communications with either Mrs. McHugh or John Blackwell. In fact, Row provided the affidavit of the pastor who stated that she never saw the trial judge talk to or be within speaking distance of either Mrs. McHugh or Mr. Blackwell and that she did not speak to the trial judge during the trial or sentencing. Row argues that because the trial judge and Mrs. McHugh both attended the same church, he may have given more weight to Mrs. McHugh's testimony when deciding to impose the death sentence.
Citing State v. Wood, 132 Idaho 88, 967 P.2d 702 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999), the court below held that these allegations did not even raise an issue of prejudice, and dismissed this claim on that basis. "Church affiliation alone is not a reasonable basis for questioning a judge's impartiality." Id. at 95, 967 P.2d at 709. The factual allegations, even if true, would not cast doubt on the reliability of Row's conviction or sentence. I.C. § 19 2719(5)(b). The court below also held that Row had failed to make a prima facie showing that these alleged facts were not known and could not reasonably have been known when Row's first petition for post-conviction relief was filed. The court below did not err in summarily dismissing this claim.
b. Proceedings in the criminal case held outside the presence of Row.
Row next alleged that critical proceedings in her criminal case were held outside her presence. She lists numerous such occurrences, and supports each one with a citation to the clerk's record or reporter's transcript from the appeal in her criminal case. The court below correctly dismissed this claim because this issue was ascertainable upon a review of the record which was available at the time of Row's first post-conviction relief proceeding.
c. Allegations of prosecutorial misconduct.
Row alleged that the state withheld information about the criminal activities of Joan and Bernard McHugh, and that such information was relevant to their credibility. As mentioned above, Mr. McHugh was charged with two felony counts of issuing a check with insufficient funds and two counts of burglary. On January 10, 1991, he pled guilty to the two felony check charges, and he was sentenced about one month later. On December 26, 1990, Mrs. McHugh was charged with one count of issuing an insufficient funds check, but that charge was ultimately dismissed in September 1991. In Row's criminal trial, both the prosecution and the defense elicited testimony about the McHughs' criminal conduct. Because Row's trial counsel knew about, and made the jury aware of, the McHughs' criminal activities, the court below properly dismissed this claim. In addition, such evidence would be merely impeaching. I.C. § 19-2719(5)(b). The court below correctly dismissed this claim.
*900 Row alleges that the prosecuting attorney in her criminal case engaged in various types of misconduct. She claims that the state allowed Joan McHugh to testify while knowing that Mrs. McHugh's testimony was not worthy of belief; that the state misrepresented to the trial judge the significance of Row's brain atrophy as revealed on CT scans; that the prosecuting attorney engaged in improper argument to the trial judge and to the jury and presented unscientific and misleading testimony through state agents regarding the criminal investigation; that state's agents inappropriately disturbed and tampered with, or failed to secure, the crime scene; and that they failed to use appropriate scientific methodology and misrepresented evidence, either intentionally or negligently, to the jury and to the trial judge. The court below properly dismissed these claims because Row made no attempt to show that these alleged facts were not known or could not reasonably have been known at the time of her first post-conviction proceeding.
d. Denial of funds for expert witnesses.
Row alleges that the judge presiding over her first post-conviction proceeding denied her request for funds to hire experts specializing in neurology and psychiatry to determine whether she suffered any organic brain damage associated with the brain atrophy reflected by the comparison of CT brain scans taken in late 1991 and early 1993. In her petition in this case, Row admits that this issue was presented in her first petition for post-conviction relief and that the Idaho Supreme Court held that the judge did not abuse his discretion because Row had failed to make an adequate showing for the need for such expert testimony. She contends that such a showing has been made in her second petition for post-conviction relief. The court below properly dismissed this claim because there was no showing that the facts Row now attempts to present were not known or could not reasonably have been known at the time she brought her first petition for post-conviction relief.
e. Ineffective assistance of counsel on prior post-conviction relief.
Row also alleges that counsel in her first petition for post-conviction relief was ineffective for failing to properly investigate her brain atrophy. As the court below properly held, the ineffectiveness of counsel in a prior post-conviction proceeding is not a ground for relief in a subsequent post-conviction proceeding. McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999); Lee v. State, 122 Idaho 196, 832 P.2d 1131 (1992).
f. Ineffective assistance of trial counsel in criminal case.
Row contends that her trial counsel was ineffective for failing to discover the criminal histories of the McHughs; for failing to object to the state's misrepresentations of evidence; for participating in conferences in chambers outside the presence of Row; for failing to adequately investigate Row's alleged brain damage; for failing to obtain experts to review the state's arson/murder investigation; for failing to present issues affecting the constitutionality of Row's death sentence; for failing to object to the submission of special verdicts to the jury; for allowing Row to make a statement in allocution without knowing that such statement would include incriminating admissions based upon hypnotic memory enhancement; and for failing to argue at trial that the court's determination that two statutory aggravating factors were established as a matter of law impermissibly shifted the court's responsibility to the jury. The court below properly dismissed these claims because Row failed to show that any of the claims were not known and could not reasonably have been known at the time she filed her first petition for post-conviction relief.
g. Ineffective assistance of appellate counsel.
In her second petition, Row alleges that her appellate counsel was ineffective for failing to raise on appeal the following issues:
i. The denial of admission of impeachment evidence of a critical state's witness, Joan McHugh;
*901 ii. The admission at trial of prejudicial, unreliable hearsay regarding statements allegedly made by Petitioner, Randy Row, Joshua Cornellier, Tabitha Cornellier, Sue Fellen;
iii. Failure to raise, brief and argue the trial courts [sic] denial of two motions to disqualify based on bias and prejudice including the judge's reliance on special verdicts by the jury to conclude "as a matter of law" the existence of two aggravating factors rather than comply with the statutory scheme and make an independent finding of fact regarding the existence of statutory aggravating factors;
iv. Failure to raise, brief and argue the erroneous denial of a mistrial based upon the State's contempt in following line of inquiry barred by court to the prejudice of petitioner; (Regarding State's enquiry with every psychiatrist in the county.)
v. Failure to raise and argue trial court's error in finding that jury verdict finding compelled finding of two aggravating factors as a matter of law as an unconstitutional shift of the court's responsibility to the jury;
vi. Failure to raise, argue and brief the erroneous admission of prior bad acts allegedly committed by Petitioner without sufficient foundation to the extreme prejudice of Petitioner;
vii. Failure to adequately argue, brief and present the issue of denial of confrontation by consideration of unreliable hearsay submitted in the presentence report;
viii. Failure to raise, brief and argue the constitutional error in the trial court's denial of Petitioner's motion to change venue;
ix. Failure to raise, develop, argue and brief trial counsel's failure to secure experts to review the agents' investigation and failed [sic] to effectively confront state's agents and investigators and allowing [sic] nonscientific and improper testimony to be presented.
Row also alleges that her appellate counsel was ineffective for failing to raise on appeal the claim that she was denied a fair trial "by the adverse publicity and courtroom disruptions during the trial."
The court below dismissed the claim of ineffective assistance of appellate counsel on the ground that Row had not shown that the above-listed claims were not and could not reasonably have been known at the time of her first post-conviction proceeding. Under the circumstances of this case, the lower court erred in basing the dismissal on that ground.
A criminal defendant has a constitutional right to the effective assistance of counsel on the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). Counsel who represented Row on the appeal in her criminal case also represented her in her first post-conviction proceedings, which were prosecuted simultaneously with the appeal. Under those circumstances, where the same counsel was prosecuting both the appeal and the simultaneous post-conviction proceedings, to hold that her counsel's failure to raise in the post-conviction proceedings the alleged errors they were making while prosecuting the appeal would effectively preclude Row from ever having the opportunity to raise a claim of ineffective assistance of appellate counsel. In fact, Row's first petition for post-conviction relief was dismissed by the trial court over one year before her opening brief was filed on the appeal in her criminal case. Thus, these claims should not have been dismissed on the ground stated by the lower court. Where the lower court reaches the correct result by an erroneous theory, however, this Court will affirm the order on the correct theory. McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999); State v. Avelar, 129 Idaho 700, 931 P.2d 1218 (1997).
Idaho Code § 19-2719(5) provides that in a successive post-conviction petition, the applicant must provide both "a precise statement of the issue or issues asserted" and "material facts stated under oath or affirmation by credible persons with first hand knowledge that would support the issue or issues asserted." It further provides, "A pleading that fails to make a showing of excepted issues supported by material facts, or which is not credible, must be summarily dismissed." In this case, the petition listed *902 various issues that Row desired to raise regarding the effectiveness of her appellate counsel, but it did not include, nor was it accompanied by, sworn statements setting forth the material facts supporting those issues. Therefore, the claims of ineffective assistance of appellate counsel on the appeal in Row's criminal case were properly dismissed. McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999); Idaho Code § 19-2719(5).
2. DID THE DISTRICT COURT ERR IN SUMMARILY DISMISSING ROW'S CLAIM FOR HABEAS CORPUS RELIEF?
In her petition, Row also included a claim that the length and conditions of her solitary confinement, while awaiting the outcome of her legal proceedings challenging her conviction and death sentence, constitute cruel and unusual punishment. Allegations challenging the conditions of confinement must be brought by a petition for habeas corpus under the Idaho Habeas Corpus and Institutional Litigation Procedures Act, Idaho Code §§ 19-4201 et seq., and not by a petition for post-conviction relief under Idaho Code § 19-2719. A petition for habeas corpus must be filed in the district court of the county in which the person is detained. I.C. § 19-4202. Row filed the petition in this case in Ada County. Because Row was at the time being detained at the Pocatello Women's Correctional Center, the proper place to file a petition for habeas corpus was Bannock County. The lower court did not err in dismissing this claim without prejudice. If Row desires to challenge the conditions of her confinement, she can file a petition for habeas corpus in the proper county.
3. SHOULD THIS COURT CONSIDER ISSUES THAT WERE RAISED BY ROW FOR THE FIRST TIME ON APPEAL?
In response to the motion to dismiss, Row also challenges the constitutionality of Idaho Code § 19-2719. That issue was not raised in the lower court. The longstanding rule of this Court is that we will not consider issues that are raised for the first time on appeal. State v. Fodge, 121 Idaho 192, 824 P.2d 123 (1992). The exception to this rule is that constitutional issues may be considered for the first time on appeal if such consideration is necessary for subsequent proceedings in the case. Id. Because there are no subsequent proceedings in this case, the exception does not apply. Therefore, this Court will not consider the constitutional issues raised by Row for the first time on appeal.
CONCLUSION
Idaho Code § 19-2719 provides that a person sentenced to death must prosecute a petition for post-conviction relief within 42 days of the filing of the judgment imposing the death sentence. It further provides that any issues that were not raised in that petition are waived if they were known or reasonably should have been known. In a successive petition for post-conviction relief, the petitioner must show that the issues raised are excluded from the operation of Idaho Code § 19-2719. To do so, the petitioner must show that the issues were not known and could not reasonably have been known when the first petition was prosecuted, and he must provide sworn statements of the material facts supporting those issues. I.C. § 19-2719(5)(a). A successive petition that fails to do so must be summarily dismissed. I.C. § 19-2719(5)(a). Because Row failed to show that the issues raised in her successive petition were excluded from the operation of Idaho Code § 19-2719, the lower court properly dismissed the petition. We therefore grant the state's motion to dismiss this appeal.
TROUT, C.J., and SCHROEDER, WALTERS and KIDWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360880/ | 667 S.E.2d 447 (2008)
WHITLEY
v.
The STATE.
No. A08A0887.
Court of Appeals of Georgia.
September 19, 2008.
John Raymond Burdges, Atlanta, for appellant.
Daniel J. Porter, Dist. Atty., Tracie H. Cason, Asst. Dist. Atty., for appellee.
ANDREWS, Judge.
Jamie Lee Whitley was found guilty by a jury of armed robbery, aggravated assault, burglary, false imprisonment, and possession of a firearm during the commission of the felony of aggravated assault. Based on evidence that Whitley was guilty as a party to the charged offenses, the trial court entered judgment of conviction on all the guilty verdicts except aggravated assault, which the court merged into the armed robbery. Whitley contends that the evidence was insufficient to support the convictions and that his trial counsel provided ineffective assistance. *448 We find no merit to these contentions and affirm the judgment of conviction.
1. Viewed in the light most favorable to the guilty verdicts, the State produced evidence that Whitley intentionally aided and abetted a home invasion in which the home was burglarized and an occupant of the home was detained and robbed by use of a handgun. Evidence showed that the 16-year-old child of the homeowner was alone in the home when Whitley knocked on the door and asked if the child's brother was home. The child, who recognized Whitley as an acquaintance of his older brother, told Whitley that his brother was not home. After Whitley asked if anyone else was there and the child confirmed that he was alone, Whitley asked if he could come inside to get a drink of water and use the bathroom and the child complied. While inside, Whitley briefly walked around the home, inquired where the other family members were, and then left. About five minutes later, the child was confronted inside the home by a man the child did not know, who pointed a handgun at the child and forced the child into a room, where the man handcuffed the child's hands behind his back and tied his feet. While the child lay handcuffed and tied on the floor of the room for about two hours, he could hear people ransacking through other parts of the home. After about two hours, the child was able to get his feet untied and ran to the front door. He turned around and opened the front door with his still-handcuffed hands, and ran out of the home. As the child exited the front door, he saw a truck parked on the side of the home next to the basement door. He saw one man sitting in the truck and two men talking to each other and loading the truck with boxes of items taken from the home. He recognized one of the men loading the truck as the gunman who detained him and the other as Whitley. The child ran immediately to a neighbor's home and the neighbor called the police. When police arrived, the truck and all three men, including Whitley, were gone.
Evidence showed that, during the invasion, the home was ransacked and numerous items of property, including the child's computer, were taken from the home. The child identified a box left behind by the men as containing items of property taken from the home. During the period of time when the home invasion occurred, a neighbor who lived across the street from the home, saw a truck (similar to the one seen by the child) parked near the basement door side of the home. The neighbor saw a man in the truck (matching the description of the gunman) get out of the truck, walk toward the basement door of the home, and speak with another man (matching Whitley's description) outside the basement door. The child and the child's father (the homeowner) testified and confirmed that none of the persons seen or heard by the child had authority to enter the home.
The evidence was sufficient for the jury to find beyond a reasonable doubt: (1) that, as charged in the indictment, the child was the victim of an armed robbery which occurred when the gunman, by use of a handgun, took the child's computer from the child's immediate presence (OCGA § 16-8-41(a)); see Welch v. State, 235 Ga. 243, 245-246, 219 S.E.2d 151 (1975) (where offensive weapon used to detain victim in one room of home while victim's property taken from another room, property was taken from victim's "immediate presence" within the meaning of OCGA § 16-8-41(a)); (2) that the child was the victim of false imprisonment which occurred when the gunman, by use of handcuffs and other restraints, illegally detained the child in violation of the child's personal liberty (OCGA § 16-5-41(a)); and (3) that the gunman and at least one other person committed burglary as set forth in OCGA § 16-7-1 (a) when, without authority, they entered the home with the intent to commit theft. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Notwithstanding merger of the aggravated assault into the armed robbery, evidence sufficient to establish beyond a reasonable doubt that Whitley was a party to the aggravated assault authorized his conviction as a party to possession of a firearm during the commission of the aggravated assault. OCGA § 16-11-106(b), (e); Williams v. State, 277 Ga. 368, 589 S.E.2d 563 (2003); State v. Marlowe, 277 Ga. 383, 385, 589 S.E.2d 69 (2003); McClendon v. State, 287 Ga.App. 238, 240, *449 651 S.E.2d 165 (2007). Even in the absence of evidence sufficient to show that Whitley directly committed the charged offenses, he was guilty as a party to the offenses because he aided and abetted the commission of the offenses. OCGA §§ 16-2-20(a), (b)(3); 16-2-21; Jackson v. Virginia, supra. In support of Whitley's conviction as a party to the offenses, the State produced evidence that Whitley and the gunman loaded the truck with property stolen from the home during the two-hour home invasion, and that Whitley was present speaking with the gunman during the home invasion. There was also evidence that, just minutes prior to the home invasion, Whitley used his acquaintance with the child's brother to speak with the child to determine the location of other family members and to confirm that the child was alone in the home. The evidence of Whitley's conduct before and during the offenses at issue was sufficient to support the jury's conclusion that he intentionally aided and abetted the commission of the offenses. In re R.K.J., 179 Ga.App. 112-113, 345 S.E.2d 658 (1986).
2. Whitley claims that the trial court erred by denying his motion for a new trial made on the basis that trial counsel provided him with ineffective assistance when she (1) failed to insist on a jury instruction stating that the State had the burden to provide evidence identifying him as the person who committed the charged offenses; (2) failed to request charges on various lesser included offenses; and (3) failed to request a charge on conspiracy.
To obtain reversal of a conviction based on a claim of ineffective assistance of trial counsel, a defendant has the burden of proving that counsel's performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In addressing the claim, a court must measure counsel's performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel's significant decisions were made in the exercise of reasonable professional judgment. Id.; Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985). The trial court's finding that a defendant was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous. Williams v. State, 214 Ga.App. 106, 446 S.E.2d 789 (1994).
Mayfield v. State, 276 Ga.App. 544, 546, 623 S.E.2d 725 (2005).
Trial counsel testified at the motion for new trial hearing that Whitley did not claim he was not the person seen and identified by the child before and during the home invasion. Rather, as the trial record shows, Whitley relied on a "mere presence" defense, claiming that, although he was there, he did not aid, abet, or otherwise help those who committed the offenses. See Garcia v. State, 290 Ga.App. 164, 165, 658 S.E.2d 904 (2008). The trial court charged the jury on this defense, and trial counsel testified at the motion for new trial hearing that no charges were requested on misidentification of Whitley or on any lesser included offense or conspiracy because these charges would have been inconsistent with Whitley's defense that he was merely present at the scene of the charged offenses and had no involvement. We find no error in the trial court's finding that this was not deficient performance but a strategic decision made in the exercise of reasonable professional judgment. The trial court did not err by denying the motion for a new trial.
Judgment affirmed.
RUFFIN, P.J., and BERNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360895/ | 667 S.E.2d 324 (2008)
A. PERIN DEVELOPMENT COMPANY, LLC, Plaintiff,
v.
TY-PAR REALTY, INC., Defendant.
No. COA07-1500.
Court of Appeals of North Carolina.
October 21, 2008.
*325 Johnston, Allison & Hord, P.A., by Martin L. White and John C. Lindley, III, Charlotte, for plaintiff-appellant.
McNair Law Firm, by Allan W. Singer and Louis G. Spencer, Charlotte, for defendant-appellee.
STROUD, Judge.
Plaintiff A. Perin Development Company, LLC, appeals from order entered 27 September 2007 dismissing its complaint for declaratory judgment or to quiet title. We affirm.
I. Background
The relevant facts are simple and undisputed. Plaintiff and defendant own adjacent tracts of land in Union County, North Carolina. Defendant owns an easement for a right-of-way across plaintiff's land. Defendant's easement was expressly granted by plaintiff's predecessor in title and duly recorded by the Union County Register of Deeds on 31 August 1990. Plaintiff constructed a public road across its property which is graded to a point adjacent to defendant's property; the exhibits in the record indicate the public road ends at a creek bed.
On 8 June 2007, plaintiff filed a complaint for declaratory judgment or alternatively an action to quiet title in Union County Superior Court. The complaint requested that the *326 trial court "purge[] the Easement from the Union County Registry" or alternatively permit plaintiff to relocate the easement to the public road. On 27 September 2007, the trial court dismissed the complaint for failure to state a claim upon which relief may be granted.
II. Analysis
A. Purging the Easement
We first consider whether the trial court had jurisdiction under the Declaratory Judgment Act to hear and determine an action to "purge" an easement. We conclude that it did not.
"The purpose of the Declaratory Judgment Act[, N.C. Gen.Stat. § 1-253 et seq.,] is to settle and afford relief from uncertainty and insecurity, with respect to rights, status, and other legal relations. It is to be liberally construed and administered." Nationwide Mut. Insurance Co. v. Roberts, 261 N.C. 285, 287, 134 S.E.2d 654, 657 (1964) (citations, quotation marks and ellipses omitted). Even though the Declaratory Judgment Act ("the Act") is to be liberally administered, jurisdiction under the Act may be invoked "only when the pleadings and evidence disclose the existence of a genuine controversy between the parties to the action, arising out of conflicting contentions as to their respective legal rights and liabilities under a deed, will, contract, statute, ordinance, or franchise." Id., 134 S.E.2d at 656-57. The North Carolina Supreme Court has categorically held that jurisdiction does not exist under the Act for the purpose of declaring a conveyance void or nullifying a written instrument. Town of Nags Head v. Tillett, 314 N.C. 627, 629, 336 S.E.2d 394, 396 (1985) ("[T]he Declaratory Judgment Act is restricted to declaring the rights and liabilities of parties regarding property[;] for the trial court to find that the conveyances are void as a matter of law [is] beyond the scope of the [A]ct.") (Citation, quotation marks and brackets in original omitted.); Farthing v. Farthing, 235 N.C. 634, 635, 70 S.E.2d 664, 665 (1952) ("The Declaratory Judgment Act, G.S. Ch. 1, Art. 26, is designed to provide an expeditious method of procuring a judicial decree construing wills, contracts, and other written instruments and declaring the rights and liabilities of parties thereunder. It is not a vehicle for the nullification of such instruments." (Emphasis added.)).
Plaintiff's prayer to the trial court to purge the easement from the Union County registry was in essence the same as a request to void a conveyance or to nullify a written instrument. Therefore, we conclude plaintiff sought relief which was beyond the scope of the Act. Accordingly, the trial court lacked jurisdiction to hear that portion of the complaint and properly dismissed it. See Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989) ("If the correct result has been reached, the judgment will not be disturbed even though the trial court may not have assigned the correct reason for the judgment entered.")
B. Relocating the Easement
Defendant cited no cases, and we are aware of none which would limit the jurisdiction of the trial court to hear and enter judgment on a complaint whereby the owner of the servient estate seeks to quiet title with regard to the location of an easement. See York v. Newman, 2 N.C.App. 484, 489, 163 S.E.2d 282, 286 ("[T]he complaint filed herein meets the minimum requirements of G.S. 41-10 in that it alleges that the plaintiffs own the described land and that the defendant claims an interest therein adverse to them." (Emphasis in original.)), cert. denied, 274 N.C. 518 (1968). Here, it is undisputed that plaintiff owned the servient estate and that defendant claimed an interest, an easement, adverse to plaintiff. However, we conclude that even though the trial court had jurisdiction to hear the claim to relocate the easement, plaintiff's claim is meritless.
"Grantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title." Hensley v. Ramsey, 283 N.C. 714, 730, 199 S.E.2d 1, 10 (1973) (citation and quotation marks omitted). Furthermore, once a party has acquired title to the use of an easement, even if by prescription, the owner of the servient estate may "not deprive him of his easement by providing another outlet." Smith v. Jackson, 180 N.C. 115, 117, 104 S.E. 169, 170 (1920).
Plaintiff acknowledges that it received its land subject to the duly recorded easement *327 and concedes that under the existing common law of North Carolina it has no right to an order relocating the easement which was duly recorded in the registry of deeds. However, plaintiff urges us to adopt a new rule, citing MPM Builders, LLC v. Dwyer, 442 Mass. 87, 809 N.E.2d 1053 (2004), and various cases from other jurisdictions which rejected a common law rule similar to North Carolina's and instead allowed unilateral relocation that was consistent with the purpose of the easement and encouraged development of the servient estate.
However, this Court does not have authority to rely on cases from other jurisdictions and reject the common law of this State which has been set forth by the North Carolina Supreme Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985) (vacating a decision of this Court which relied on the authority of other jurisdictions to abolish a cause of action recognized by the North Carolina Supreme Court). The law of North Carolina in this case is plainplaintiff has no right to move defendant's duly recorded easement, even by providing him with an alternative means of access. Smith, 180 N.C. at 117, 104 S.E. at 170. The trial court correctly dismissed this portion of plaintiff's complaint for failure to state a claim upon which relief may be granted.
III. Conclusion
The trial court had no jurisdiction pursuant to the Declaratory Judgment Act to consider plaintiff's request to purge the easement. This claim was properly dismissed by the trial court. Furthermore, under the common law of North Carolina, plaintiff has no right to unilaterally move defendant's duly recorded easement, even though it offered an alternative route for defendant to access its property. Accordingly, we affirm the trial court order dismissing plaintiff's complaint.
Affirmed.
Judges McCULLOUGH and TYSON concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360898/ | 667 S.E.2d 244 (2008)
Carl W. MEARES, Jr., Plaintiff,
v.
TOWN OF BEAUFORT, Town of Beaufort Historic Preservation Commission, Linda Dark, Mike Menary, Delores Meelheim, Carol Sadler, and Ginny Welton, Defendants.
No. COA07-882.
Court of Appeals of North Carolina.
October 7, 2008.
*247 Poyner & Spruill, L.L.P., by Robin Tatum Currin, Raleigh, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Susan K. Burkhart, Raleigh, and Kirkman, Whitford & Brady, P.A., by Neil B. Whitford, Morehead City, for defendant-appellants.
BRYANT, Judge.
Town of Beaufort, Town of Beaufort Historic Preservation Commission (HPC), Linda Dark, Mike Menary, Delores Meelheim, Carol Sadler, and Ginney Welton (collectively defendants) appeal from an order entered 31 May 2007 which denied defendants' motion to stay or enjoin enforcement of an Order, Judgment, and Writ of Mandamus entered by the trial court 19 April 2007 which compelled the release of a Certificate of Appropriateness (COA), to be executed by defendants, to Plaintiff Carl W. Meares, Jr.
Pursuant to the Town of Beaufort Zoning Ordinance, the function of the HPC is to "review and pass upon the appropriateness of the construction, reconstruction, alteration, restoration, moving or demolition of any buildings, structures, appurtenant fixtures, outdoor advertising signs, or other exterior features in the historic district." Beaufort, N.C., Zoning Ordinance § 13.6(b) (2007). "Exterior features" include "color, architectural style, general design, and general arrangement of the exterior of the building or other structure, including the kind and texture of the building material, the size and scale of the building, and the type and style of all windows, doors, light fixtures, signs, and other appurtenant features." Id. at § 13.4. But, "[t]he [HPC] shall take no action... except to prevent the construction, reconstruction, alteration, restoration, moving or demolition of buildings, structures, appurtenant fixtures, outdoor advertising signs, or other significant features in the historic district which would be incongruous or incompatible with the special character of the district." Id.
"No exterior portion of any building or other structure ... shall be erected, altered, restored, moved, or demolished within such district until after an application for a[COA] as to exterior features has been submitted to and approved by the Beaufort [HPC]." Id. A COA "is required to have been approved and issued by the Beaufort [HPC] prior to the issuance of a building permit or other permit granted for the purpose of constructing, altering, moving and demolishing structures." Id. The HPC has established Rules of Procedure the stated purpose of which is *248 "[t]o establish procedures for organizing the business of the Beaufort [HPC] ... and processing applications for [COAs]...."
Though not the subject of this appeal, we note for context that on 12 September 2004 Meares filed with the HPC a COA application for a commercial and residential structure to be erected on one of three lots he owned on Front Street in Beaufort's Historic District. The proposed structure was to share a wall with the adjacent Aquadro Building already owned by Meares.
On 5 October 2004, the HPC denied Meares' September 2004 application on the ground that Meares' design violated the Beaufort Historic District Design Guidelines. Meares filed a claim in Carteret County Superior Court alleging a portion of the Design Guidelines was void as a matter of law. After cross motions for summary judgment, the Carteret County Superior Court granted Meares' motion and concluded that a portion of the Historic District Design Guidelines were void as a matter of law. Defendants appealed the matter to this Court.[1]
With Meares (I) pending, Meares submitted a second COA application to Beaufort's HPCthe subject of the instant case. Meares proposed an alternative structure to be erected on the same lot involved in Meares (I). The HPC declined to process Meares' second application.
On 30 March 2006, in Carteret County Superior Court, Meares filed a petition for writ of mandamus and complaint. The complaint alleged that on 15 February 2006 Meares filed with the HPC a second COA application which the HPC declined to process; the petition requested that the trial court order the HPC to hold a hearing and act on Meares' application.
On 3 May 2006, defendants filed a notice of removal to the United States District Court for the Eastern District of North Carolina on the grounds of a federal question under 28 U.S.C. §§ 1331 and 1441(b). By order dated 15 February 2007, the Federal District Court retained jurisdiction over the issue involving alleged violations of Meares' state and federal constitutional rights, but remanded to Carteret County Superior Court Meares' petition for a writ of mandamus on the grounds that it raised novel issues of North Carolina law.
Back in Superior Court, Meares and defendants filed cross motions for summary judgment. A trial court order filed 19 April 2007 granted Meares' motion for summary judgment and denied defendants' motion. Furthermore, the trial court issued a writ of mandamus ordering defendants to "act upon and issue a[COA]" to Meares pursuant to his second application.
In compliance with the trial court's order, defendants deposited a COA with the Clerk of Court, along with a motion for a stay of execution on the judgment and a notice of appeal. The trial court denied defendants' motion to stay or enjoin enforcement of the judgment pending appeal and ordered the immediate release of the COA. Defendants filed with this Court a petition for a writ of supersedeas, which was denied. Defendants gave notice of appeal from both the trial court's denial of defendants' motion to stay or enjoin enforcement of the judgment pending appeal and the order releasing to Meares the COA deposited with the Carteret County Clerk of Court.
On appeal, defendants raise twelve issues: whether the trial court erred by denying defendants' motion for summary judgment and issuing a writ of mandamus requiring the HPC to issue a COA on the grounds that (I) Meares lacked a clear right to the COA; (II) the proposed development violates the town's zoning ordinance; (III) a writ of mandamus cannot compel a vain or impossible act; (IV) the HPC had previously not approved or denied Meares' second application; (V) the trial court usurped the authority of the zoning administrator; (VI) the town is not estopped from enforcing its own zoning ordinance; (VII) the HPC lacked subject matter jurisdiction to consider Meares' second application; (VIII) Meares failed to exhaust his administrative remedies; and (IX) *249 policy precludes the HPC from processing multiple COA applications for the same site. Defendants also contend that the trial court erred in denying defendants' motion to stay the judgment pending appeal (X) where the deposit of the COA with the Clerk of Court automatically stayed the judgment, (XI) where the enforcement of the judgment while on appeal would irreparably harm the town, and (XII) where there was no basis for the stay on the theory of laches.
Standard of Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2007). On appeal, "the Court will review the trial court's order allowing summary judgment de novo." Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006).
I
Defendants first argue that the trial court erred by issuing a writ of mandamus compelling the issuance of the COA when the time period the HPC had to review Meares' second application had not expired when Meares filed his petition for a writ of mandamus. Defendants argue the trial court entered judgment on a claim that was not ripe at the time it was filed. We disagree.
"Traditionally, a writ of mandamus would not be issued to enforce a duty involving judgment and discretion," Orange County v. North Carolina Dep't of Transp., 46 N.C.App. 350, 386, 265 S.E.2d 890, 913 (1980) (citation omitted), or "enforce an alleged right which is in doubt," Mears v. Board of Education, 214 N.C. 89, 91, 197 S.E. 752, 753 (1938) (citations omitted). "[A] party seeking [the] writ ... must have a clear legal right to demand it, and the party to be coerced must be under a positive legal obligation to perform the act sought to be required." Ponder v. Joslin, 262 N.C. 496, 504, 138 S.E.2d 143, 149 (1964) (citations omitted). "The function of the writ is to compel the performance of a ministerial dutynot to establish a legal right, but to enforce one which has been established." Id. But, "[o]ur Court has noted that mandamus may be appropriate when, as in the instant case, a party seeks to compel the enforcement of a zoning ordinance." McDowell v. Randolph County, 186 N.C.App. 17, 29, 649 S.E.2d 920, 928 (2007).
Under N.C. Gen.Stat. § 160A-400.9(d), "[a]ll applications for [COAs] shall be reviewed and acted upon within a reasonable time, not to exceed 180 days from the date the application for a[COA] is filed, as defined by the ordinance or the commission's rules of procedure." N.C. Gen.Stat. § 160A-400.9(d) (2006). The Beaufort Zoning Ordinance[2] and the HPC Rules of Procedure[3] establish that failure to approve or deny a completed application for a COA within sixty days following its submission results in the approval and issuance of the COA. See Beaufort, N.C., Zoning Ordinance § 13.4 (2006) and Beaufort, N.C., Historic District Commission Rules of Procedure, Rule 7.06 (2006). Thus, where the HPC fails to act within sixty days following the submission of a completed COA application, the approval of a COA is a ministerial rather than a discretionary function.
Here, Meares filed with the HPC his second application for a COA on 15 February 2006. On 30 March 2006, Meares filed in *250 Carteret County Superior Court a petition for writ of mandamus and complaint to compel a hearing on his second application. In their answer filed 5 June 2006, defendants admit the HPC declined to process or consider the second application. In its order granting Meares' motion, the trial court noted the uncontested fact that the HPC failed to act on Meares' application within the sixty-day review period and issued a writ of mandamus ordering defendants to issue a COA to Meares pursuant to his application.
Acknowledging the undisputed expiration of the sixty-day window for HPC discretionary review without action and pursuant to the Beaufort Zoning Ordinance and Beaufort HPC Rules of Procedure, we hold the approval of Meares' second COA application and issuance of the COA was a ministerial duty appropriately compelled by the trial court's writ of mandamus. Accordingly, defendants' assignment of error is overruled.
II & III
Defendants next argue the trial court lacked subject matter jurisdiction over this action because Meares is not an aggrieved party and its issuance of a writ of mandamus was error because it compels a vain or impossible act. Defendants argue the proposed construction in Meares' second COA application violates Beaufort Zoning Ordinance setback requirements. Specifically, because Meares' proposed design does not share a wall with another structure, the construction must set back fifteen feet from its proposed location. Assuming so, defendants argue Meares' proposal is not capable of being built as designed, and the HPC does not have the discretion to waive zoning ordinance violation enforcement. Therefore, defendants argue the HPC's failure to act on Meares' application for a COA resulted in no harm and Meares lacks standing to bring a claim against the town as an aggrieved party. We disagree.
Under the Town of Beaufort Zoning Ordinance, section 16.1, "[n]o building or structure or any part thereof shall be erected or structurally altered until a zoning certificate is issued by the Zoning Administrator." Id. at § 16.1. Under North Carolina General Statute 160A-388(b), "the board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of that ordinance." N.C. Gen.Stat. § 160A-388(b) (2006). Thus, if a zoning administrator denies a zoning certificate on the grounds that a project does not conform to zoning ordinance setback requirements, this decision can be appealed to the Board of Adjustment.
Under the Beaufort Zoning Ordinance, section 14.1, a "nonconforming project" is defined as "[a]ny structure, development, or undertaking that is incomplete at the effective date of this ordinance and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned." Beaufort, N.C., Zoning Ordinance § 14.1 (2006). Under section 14.8, "work on nonconforming projects may begin ... only pursuant to a variance issued by the Board of Adjustment." Id. at § 14.8(a). Thus, the Board of Adjustment has the authority to issue a variance and allow a nonconforming project to continue.
Defendants do not allege and, after our review of the Town of Beaufort Zoning Ordinance, we do not hold the issuance of a COA by the HPC is dependent upon the issuance of a zoning certificate. Thus, the HPC's issuance of a COA[4] is an independent function and not a vain and useless act.
"A person aggrieved is one adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights." County of Johnston v. City of Wilson, 136 N.C.App. 775, 779, 525 S.E.2d 826, 829 (2000) (citation and quotation omitted). *251 As previously stated, to erect a structure in the Beaufort Historic District, the Beaufort HPC must receive and approve an application for a COA. See Beaufort, N.C., Zoning Ordinance § 13.4.
Seeking to erect a structure on a lot he owned, Meares submitted a COA application to the HPC. Defendants concede that "the HPC has declined to process or consider" Meares' second application. By failing to address Meares' application for a COA, we hold Meares suffered a denial of legal rights. Thus, Meares is an aggrieved party, and defendants' assignments of error are overruled.
IV
Defendants next question whether the trial court erred in denying defendants' motion for summary judgment and granting Meares' petition for mandamus where the HPC informed Meares through counsel the HPC would not address his second application while the denial of the first application was on appeal. Defendants argue that a communication to Meares that his application would not be approved constitutes final action by the HPC. We disagree.
Under the Town of Beaufort Zoning Ordinance, section 13, "[a]ll complete applications for [COAs] shall be reviewed and acted upon within a reasonable time and within sixty (60) days from the date said complete application for a[COA] is filed with the [HPC]...." Id. at § 13.7. "Upon approval of any application for a[COA], ... [a] report of the [HPC's] actions shall be submitted to the Town Manager and the Town Building Inspector stating the basis upon which such approval was made." Id. at § 13.8 (2006). "In the case of disapproval of any application for a[COA], the [HPC] shall state the reasons therefore in writing in terms of design, arrangements, texture, material, color, and other factors involved." Id. at § 13.9.
Here, Meares submitted a second COA application dated 15 February 2006 to the HPC. The HPC failed to approve or deny the application. The communication to which defendants refer came from the Town Attorney and occurred on 18 January 2006, a month prior to Meares' submission of his second application in February. The Town Attorney never indicated he was acting on behalf of the HPC. Specifically, he acknowledged being "little more than [an] observer[] in this process." Therefore, the Town Attorney's communication does not qualify as action by the HPC. And since there was no formal denial of the second application, the trial court properly ruled the application approved by operation of law. See Id. at § 13.8. Accordingly, defendants' assignment of error is overruled.
V
Defendants next question whether the trial court erred in concluding that Meares' second application meets the requirements of the town's zoning ordinance. Defendants argue that the trial court usurped the function of the zoning administrator. We disagree.
As discussed earlier (see section II & III), the issuance of a COA by the HPC and the issuance of a zoning certificate by the zoning administrator are independent functions. The trial court granted Meares' motion for summary judgment and ordered defendants to issue a COA. The trial court issued no order compelling the zoning administrator to any action or forbearance. Thus, the trial court did not usurp the authority of the zoning administrator. Accordingly, defendants' assignment of error is overruled.
VI
Defendants argue the trial court erred by concluding the Town was estopped from enforcing its zoning ordinance. Defendants' argument is misplaced.
Here, the trial court granted Meares' motion for summary judgment, denied defendants' motion for summary judgement, and ordered defendants to issue a COA to Meares. In its conclusions of law, the trial court cited the HPC Rules of Procedure, entitled "COA Application Review and Processing," which provide that "[t]he Zoning Officer will review the [COA] Application for compliance with the zoning ordinance," and that "[a]pplications that are not in compliance with zoning and other Town code provisions *252 will be returned to the applicant and will not be forwarded to the commission for review."
The trial court concluded that as defendants failed to notify Meares within the sixty-day window that the HPC declined to process, consider, or act on Meares' second application, "it is fair and reasonable for [Meares] ... to conclude that [his] Second Application complies with the Town's Zoning Ordinance and other Town code provisions, and the Defendants are estopped from contending otherwise."
We note our discussion under (V), reasoning that the trial court order compelling the HPC to issue a COA did not encroach upon the jurisdiction of the zoning administrator. Under Beaufort Zoning Ordinance section 18.5, "[a]n appeal may be taken to the Board of Adjustment by any person aggrieved by a decision of any officer, department or board of the town relative to enforcement of interpretation of this [zoning] ordinance." Id. at § 18.5. Furthermore, "[e]very decision of the Board of Adjustment shall be subject to review by the Superior Court by proceedings in the nature of certiorari." Id. at § 18.6.
The denial of a zoning certificate was not an issue before the Carteret County Superior Court. Moreover, the zoning administrator and the Board of Adjustment are not parties to the current action. Therefore, we hold the trial court order ruling that "Defendants are estopped from contending" Meares' second application does not comply with the Town's zoning ordinance does not infringe upon the authority vested by the zoning ordinance in the zoning administrator, the Board of Adjustment, or other parties not joined in this matter. See N.C. Gen.Stat. § 1-260 (2007) ("no declaration shall prejudice the rights of persons not parties to the proceedings.").
VII
Defendants next question whether the trial court lacked subject matter jurisdiction to hear Meares' complaint. Defendants argue the HPC's denial of Meares' first application for a COA and the subsequent appeal from that denial (A) divested the trial court of jurisdiction to consider a second application for a certificate to develop the same property. In the alternative, defendants argue (B) that once Meares filed a complaint in Superior Court, the HPC was divested of jurisdiction to address Meares' application. Defendants also argue that because Meares filed his complaint within sixty days of filing his application with the HPC, he cannot assert that the HPC failed to act on his application within the sixty-day time frame. We disagree.
A
Defendants argue that when Meares filed his first COA application, the HPC was divested of jurisdiction to consider a second application. Pursuant to the Town of Beaufort Zoning Ordinance, "[i]t shall be the function of the [HPC] to review and pass upon the appropriateness of exterior features of buildings, structures, and properties within the Historic District." Beaufort, N.C., Zoning Ordinance § 13.6(c). Since, the function of the HPC is to consider the appropriateness of the exterior features proposed, see Id. at § 13.6(b), and we find no provision in the Town of Beaufort Zoning Ordinance or the Rules of Procedure of the Beaufort Historic District Commission which precludes the submission of alternative design proposals to the HPC, defendants' argument is overruled.
B
Defendants further argue that when Meares filed a complaint in Carteret County Superior Court, the HPC was divested of jurisdiction to address Meares' application. However, "[t]he issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction...." Baker v. Varser, 239 N.C. 180, 189, 79 S.E.2d 757, 764 (1954) (citation omitted). "This extraordinary remedy is not a proper instrument to review or reverse an administrative board which has taken final action on a matter within its jurisdiction." Snow v. North Carolina Bd. of Architecture, 273 N.C. 559, 570, 160 S.E.2d 719, 727 (1968) (citation and quotations omitted). We hold the HPC retained jurisdiction to address Meares' COA application during the sixty-day period prescribed by the Beaufort *253 Zoning Ordinance following submission of the application. See Beaufort, N.C., Zoning Ordinance § 13.8 (2006) ("Upon failure of the [HPC] to take final action upon a complete application within sixty (60) days after the final application for the [COA] has been submitted ... the application for a[COA] shall be deemed to have been approved...."). Accordingly, defendants' assignment of error is overruled.
VIII
Defendants next argue Meares failed to exhaust his administrative remedies by failing to appeal to the Board of Adjustment, the appellate body charged with appeals from the HPC and therefore, the trial court lacked jurisdiction to address Meares' complaint and petition. We disagree.
Pursuant to Beaufort Zoning Ordinance, section 18.5, "[a]n appeal may be taken to the Board of Adjustment by any person aggrieved by a decision of any officer, department or board of the town relative to enforcement or interpretation of this ordinance." Id. at § 18.5. Here, the HPC, in their answer to Meares' complaint filed in Carteret County Superior Court, averred that "the HPC has declined to process or consider [Meares'] Second Application." Thus, the HPC failed to render a decision from which Meares could appeal. See Robins v. Town of Hillsborough, 361 N.C. 193, 198, 639 S.E.2d 421, 424 (2007) ("a [town board] conducting a quasi-judicial hearing can dispense with no essential element of a fair trial. One of those essential elements is that any decision ... has to be based on competent, material, and substantial evidence that is introduced at a public hearing. Accordingly, it is impossible for a court reviewing a town board's decision to do so unless the town board actually renders that decision.") (citations and emphasis omitted).
The function of mandamus is to compel the performance of a ministerial duty to which the one seeking the performance has a clear legal right. Ponder, 262 N.C. at 504, 138 S.E.2d at 149. Meares' initial petition for a writ for mandamus sought to compel the HPC to consider his second COA application. See discussion supra Part II & III. We hold the HPC's consideration of Meares' COA application was a performance to which Meares had a clear legal right. Accordingly, defendants' assignment of error is overruled.
IX
Defendants next argue that the trial court erred in issuing a writ of mandamus compelling the HPC to issue a COA for Meares' second COA application because public policy precludes the HPC from processing multiple COA applications for the same site. We disagree.
Defendants cite Winchester Woods Assoc. v. Planning & Zoning Comm., 219 Conn. 303, 592 A.2d 953 (1991), for the proposition that public policy allows the HPC the discretionary authority to refuse to accept a second application due to the pending appeal of a first application. Though not binding on the matter, we note that Winchester involved the interpretation of Connecticut General Statute section 8-26, which states "[n]o planning commission shall be required to consider the application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission." Conn. Gen. Stat. § 8-26 (1989). We also note that the Supreme Court of Connecticut held that where the planning commission denied the plaintiff's second application "without any consideration of whether that application differed substantively from the plaintiff's [first] application" there was an abuse of discretion. Winchester, 219 Conn. at 312, 592 A.2d at 958.
As defendants have provided this Court with no basis for a determination that public policy grants the HPC the authority to refuse to process or consider an application for a COA, we overrule defendant's assignment of error.
X
Defendants next argue the trial court erred in denying a stay of the judgment pending appeal. Defendants argue that under General Statute section 1-291, where an appellant, having been directed to *254 execute an "instrument" does, in fact, execute such instrument and deposits the same with the Clerk of Court, agreeing to be bound by the judgment of the appellate courts, an automatic stay should be entered.
Under North Carolina Rules of Civil Procedure, Rule 62(d), "[w]hen an appeal is taken, the appellant may obtain a stay of execution... by proceeding in accordance with and subject to the conditions of ... G.S. 1-291...." N.C. R. Civ. 62(d) (2007) (emphasis added). Under North Carolina General Statute section 1-291,
[i]f the judgment appealed from directs the execution of a conveyance or other instrument, the execution of the judgment is not stayed by the appeal until the instrument has been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.
N.C. Gen.Stat. § 1-291 (2007). Cf. Wilmington Star-News v. New Hanover Regional Medical Ctr., 125 N.C.App. 174, 183, 480 S.E.2d 53, 58 (1997) ("the trial court possesses the legal authority to stay its own orders pending appeal in cases involving the Public Records Act."). We do not read N.C.G.S. § 1-291 to require that a stay is compelled upon satisfaction of the criteria under N.C.G.S. § 1-291. Accordingly, defendants' assignment of error is overruled.
XI
Defendants next argue the trial court erred in refusing to stay the judgment under Civil Procedure Rule 62.[5] Defendants argue that their appeal is meritorious and enforcement of the judgment would irreparably harm the town by foregoing HPC review to determine if Meares' development was in congruity with the character of Beaufort's Historic District.
"When evaluating the propriety of a trial court's stay order the appropriate standard of review is abuse of discretion. A trial court may be reversed for abuse of discretion only if the trial court made a patently arbitrary decision, manifestly unsupported by reason." Home Indem. Co. v. Hoechst Celanese Corp., 128 N.C.App. 113, 117-18, 493 S.E.2d 806, 809 (1997) (citations omitted).
In Abbott v. Highlands, 52 N.C.App. 69, 277 S.E.2d 820 (1981), this Court considered a trial court's grant of a motion to stay its judgment pending appeal, which prevented a town from taxing the plaintiffs' pending appeal. Id. at 79, 277 S.E.2d at 827. We reasoned that there was some likelihood the plaintiffs' arguments could have prevailed on appeal and thus were not wholly frivolous. We held that the trial court's grant of the stay was not an abuse of discretion. Id.
Here, the trial court denied defendants' motion to stay or enjoin enforcement of the judgment pending the appeal and ordered that the COA executed by defendants be released and delivered by the Clerk of Superior Court to Meares. Acknowledging the merit of defendants' arguments on appeal we cannot say the appeal was frivolous. Nevertheless, we find no abuse of discretion by the trial court in releasing the COA to Meares. Accordingly, defendants' assignment of error is overruled.
XII
Last, defendants argue the trial court erred in refusing to enter a stay where Meares, in his response in opposition to defendants' verified motion to stay or enjoin enforcement of judgment pending appeal, argued for the first time that the doctrine of laches precluded defendants from contending that Meares' second COA application does not comply with the Town of Beaufort Zoning Ordinance and other town code provisions.
We note that while Meares does argue the doctrine of laches in his response to defendants' motion to stay or enjoin enforcement of the judgment pending appeal, this is one of ten arguments Meares raises against defendants' motion to stay or enjoin the judgment. *255 Accordingly, defendants' assignment of error is overruled.
Affirmed.
Judges HUNTER and STROUD concur.
NOTES
[1] Companion case Meares v. Town of Beaufort, ___ N.C.App. ___, 667 S.E.2d 239, 2008 WL 4468154 (2008), referred to herein as "Meares (I)," also heard in the Court of Appeals on 20 February 2008 with the instant case, referred to herein as "Meares (II)."
[2] Approval by the Commission. "Upon the failure of the [HPC] to take final action upon a complete application within sixty (60) days after the final application for the [COA] has been submitted... the application for a [COA] shall be deemed to have been approved, except when mutual agreement in writing has been made with regard to an extension of the time limit." Beaufort, N.C., Zoning Ordinance § 13.8.
Beaufort, N.C., Zoning Ordinance § 13.8. Approval by the Commission. "Upon approval of any application for a [COA], the [HPC] shall forthwith cause a [COA] to be issued to the applicant...."
[3] "The [HPC] must issue or deny [COA] within sixty days after the filing of the application, except when limit has been extended by mutual agreement between the applicant and the [HPC]." Beaufort, N.C., Historic District Commission Rules of Procedure, Rule 7.06. Time for Decision.
[4] Zoning Ordinance of the Town of Beaufort, North Carolina. Section 13.6. Powers and Duties of the Historic Preservation Commission. Subsection (b). "It shall be the function of the [HPC] to review and pass upon the appropriateness of the construction, reconstruction, alteration, restoration, moving or demolition of any buildings, structures, appurtenant fixtures, outdoor advertising signs, or other exterior features in the historic district...." Subsection (c). "It shall be the function of the [HPC] to review and pass upon the appropriateness of exterior features of buildings, structures and properties within the `Historic District'."
[5] Defendants refer to N.C. Gen.Stat. § 1A-1, Rule 62, "Stay of proceedings to enforce a judgment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360911/ | 105 Cal. App. 2d 796 (1951)
C. D. DORN, as Executor, etc., Appellant,
v.
R. N. PICHININO et al., Respondents.
Civ. No. 14627.
California Court of Appeals. First Dist., Div. Two.
Aug. 2, 1951.
Anthony S. Devoto for Appellant.
Edward A. Cunha and Dean Cunha for Respondents.
GOODELL, J.
Plaintiff sued to cancel and set aside the transfer of 100 shares of Bank of America stock made by David Brown, a man in his late 70's, on August 19, 1947, about a year before his death. The principal defendant is Richard Wade Pichinino, a minor, the donee of the gift. His father, R. N. Pichinino, is also a defendant in his individual capacity, as well as guardian ad litem herein of Richard. The 100 shares have since become 120 by virtue of a stock dividend. The bank, which was joined as a defendant, has no interest in the litigation.
The case is exceptional in that the alleged undue influence is not charged, as in most cases, against the donee--a boy of 14 at the time--but against his father. The court in its findings held that there was no undue influence, and from the judgment entered thereon this appeal was taken.
The first witness called by the plaintiff (under 2055) was the boy's father, who testified substantially as follows:
At the time of the transaction he was head of the stock and bond department of the Number 1 Powell Street branch of the Bank of America in San Francisco and had been such for about 16 years. He "handled all the transfers of stock, the sale of stock and bonds, and the safe-keeping of items that came into the branch, the sale of government securities, and the purchase of them." It was not one of his functions to advise customers relative to the sale or transfer of stocks and bonds.
He met David Brown about 1930 or 31 at that branch, in connection with the cashing of coupons on some foreign bonds which Brown held. The acquaintance increased and continued during all those years. Brown never consulted, or was advised by, Pichinino respecting the buying or selling of stock. There were, however, many transactions in which he had helped Brown, one of which was a transfer of 87 shares of Bank of America stock and 289 1/2 shares of Transamerica, from joint tenancy into Brown's sole name. After the death of Mrs. Brown in 1944, Brown in 1945 had caused those shares to be transferred into the names of Alice Schweitzer (his wife's sister) and himself as joint tenants. In 1946 or early 1947 Brown wanted to get this stock into his own name, but Mrs. Schweitzer would not consent. Brown, who came *799 into the bank three or four times a day, consulted Pichinino as to his next move, and was told that if his sister-in-law would not assign, Brown would have to sue. Finally Mrs. Harriet Lewis, another sister of Mrs. Brown, came to the bank representing Mrs. Schweitzer, who was ill, and told Pichinino that her sister was willing to make the transfer provided Brown would relinquish his share of his wife's estate. Pichinino so informed Brown, who assented (and made the relinquishment), and Pichinino through his department attended to the transfer from the joint tenancy into Brown's own name.
After that transfer had been accomplished Brown told Pichinino "Well, you've been very kind to me. I desire to do something for you" who replied "You don't have to do anything for me, I'm only too glad to help you to get you out of this trouble." Brown continued to come into the bank daily, telling Pichinino what he wanted to do for him, to which he replied "I don't want nothing." Finally Brown said, "If I can't do something for you I'll do something for your boy" to which Pichinino replied, "If you want to do something for my son, that's entirely up to you." Brown then brought in a certificate for 100 shares and said "I want to make a gift of this 100 shares of the Bank of America to your son." After repeating that it was entirely up to him, Pichinino added "However, it would be better if you put this stock in your name as trustee, so you could get the benefit of the dividends while you are living" to which Brown replied, "That's perfectly agreeable to me." The certificate was then reissued in the name of David Brown, trustee for Richard Wade Pichinino, and delivered to the father for the boy. Pichinino attended to the details, which duty was part of his department's routine business.
Pichinino gave further testimony under section 2055, which showed that Brown had a most friendly feeling toward him and called on him repeatedly for assistance in his personal affairs. For instance, one evening while defendant was attending the fights in San Jose he was called out of the hall over the loud speaker to find that Brown wanted him to come to San Francisco immediately, and he did so that night. When Brown went to the hospital during his last illness he had Pichinino's name put on his safe-deposit box, and had Pichinino attend to the payment of his hospital and nurses' bills for him. In October, 1947, he made a will in favor of Pichinino, *800 but later made a new will (the one admitted to probate) which left nothing to him.
After the transaction in question Brown made a gift to a woman friend of his, and of his deceased wife, of 100 shares of Transamerica stock, making the certificates out to himself as trustee for her so he could collect the dividends while he lived (as had been done with the boy's certificate).
Appellant's first contention is that "the testimony of plaintiff's witnesses was unimpeached and uncontradicted and that he, as such executor, was therefore entitled to judgment cancelling said certificates, and that the trial court erred in holding otherwise."
[1] The testimony just summarized was given by the only surviving witness to the transaction, and, while it is true Pichinino was an adverse witness and plaintiff was not bound by his testimony, once it was before the court it was, in the language of the Supreme Court, "substantive evidence in the case for all purposes to which it was relevant." (Goehring v. Rogers, 67 Cal. App. 260, 263 [227 P. 689] in denying a hearing therein after a decision in this court). In Figari v. Olcese, 184 Cal. 775, 782 [195 P. 425, 15 A.L.R. 192], where the defendants (as here) testified only as adverse witnesses called by the plaintiff, the court said, "there is no merit in appellant's objection that no testimony was taken in behalf of defendants, because of the fact that the defendants were called only as plaintiff's witnesses." (Emphasis added.) Then, after quoting section 2055, the court continued: "This provision does not mean that such testimony may not be given its proper weight, but merely, as it declares, that the party calling such witness shall not be concluded from rebutting his testimony, or from impeaching the witness [citation]. In other words, such testimony is to be treated as though given on cross- examination." We hasten to add, parenthetically, that this rule is confined to the weight and effect of such evidence at the time when a cause is finally submitted after a trial on the merits, and has nothing to do with the situation presented on a motion for nonsuit or a directed verdict, where such evidence is viewed quite differently. [2] This cause was submitted by defendants for decision on its merits as soon as plaintiff rested, hence the rule is fully operative in this case.
The testimony of Pichinino respecting the circumstances of the transaction stands (to use appellant's language) wholly "unimpeached and uncontradicted," and under the authorities *801 just cited it was entitled to be given the same weight as if "taken in behalf of defendants" (Figari v. Olcese, supra). Judging from the outcome, the court gave it its full weight on the defense side. Further, his testimony dealing with the Brown-Schweitzer joint tenancy, was not only "unimpeached and uncontradicted" but corroborated by plaintiff's witness Harriet Lewis.
In deciding this case from the bench the court said: "I don't think the case has been proved by a preponderance of the evidence. I am satisfied there was a valid gift here, and I don't see any undue influence." This brings us to the question of the burden of proof--a question of no small importance in such cases as this (e.g., Bank of America v. Crawford, 69 Cal. App. 2d 697, 702 [160 P.2d 169].)
Despite the finding that there was no confidential relationship, appellant repeatedly presses the argument that there was, and, based on that assumed premise, seeks to shift the burden onto the defense.
[3] Section 1963, Code of Civil Procedure, contains two familiar disputable presumptions which are applicable here, first, subdivision 1, "That a person is innocent of crime or wrong" and, second, subdivision 19, "That private transactions have been fair and regular."
In 12 California Jurisprudence, page 816, section 71, it is said: "Fraud is odious and is never presumed; it must be established by proof. The presumption always is in favor of fair dealing, except, perhaps, where confidential relations are involved. This presumptions has been said to approximate in strength that of innocence of crime. The burden of proving fraud, therefore, rests upon the person asserting it. ..." The next section (72) deals with presumptions arising from confidential relations. It points out that in such a situation there is a presumption (see Civ. Code, 2235) that any advantage was gained by undue influence. Section 7 of the article on Fraud and Deceit (12 Cal.Jur. 713 et seq.) enumerates the several relationships which supply the basis for a presumption of a confidential relationship, but that of banker-and- depositor or customer is not among them.
In the trial court, then, the plaintiff had the burden of proving that defendant R. N. Pichinino had exerted undue influence over the donor, and in carrying this burden he was not aided by any presumption. On the contrary he had to overcome and dispel the presumptions of innocence of wrong, *802 and fairness of transaction with which the defendants were clothed.
[4] In plaintiff's examination of Pichinino under section 2055 he was questioned respecting the preliminary transaction arising out of a joint tenancy which had existed between Brown and Alice Schweitzer. When asked "Did you make any threats to Mrs. Lewis at that time?" he answered "No, sir." "Or to Mrs. Schweitzer at any time?" and answered "No, sir." "Q. Did you threaten either or both of these ladies? A. No, sir. Q. That if they didn't give up that stock that you would do something? A. No, sir. Q. You did not? A. No, sir. Q. You made no threats of any kind to them? A. No, sir." Although these questions were confined to a threatening of Brown's sister- in-law, and not himself, the defendant's answers, if they had admitted threats, might have supplied some evidence at least of a threatening tendency or disposition. Instead, the answers were clear-cut "No, sirs."
When asked by plaintiff's counsel "You didn't suggest to Mr. Brown that he do this?" he answered "No, sir." "Q. You didn't advise him to do it? A. No, sir."
Later he was asked by plaintiff's counsel: "Q. Now, Mr. Pichinino, after this will of ... October 2d, 1947, was executed by Mr. Brown ... did you make any threats to Mr. Brown? A. I did not. Q. Did you threaten Mr. Brown that if he made another will that you'd send him to an asylum? A. I did not. Q. Did you at any time make such a threat to Mr. Brown? A. No, sir. Q. At no time. A. No, sir." [Emphasis added.]
Had the defendant admitted threatening Brown, or had he answered hesitantly, evasively, or equivocally, plaintiff would have been well on his way toward proving, out of the defendant's own mouth, the pressure which plaintiff had the burden of establishing. Instead, his answers were positive, definite, clear-cut, and unequivocal. Whatever emphasis the witness might have expressed in his answers "No, sir" and "I did not," and his appearance and demeanor on the stand, were matters wholly within the observation and the province of the trial judge.
An examination such as this, under section 2055, "is often exploratory" (Lawless v. Calaway, 24 Cal. 2d 81, 91 [147 P.2d 604]) and this examination might fairly be so characterized.
The examination included questions respecting threats around October 2, 1947, which was over a month after the transfer in question and hence remote therefrom, and not *803 directed to the time of the claimed pressure respecting the boy's stock, but they included, also, questions respecting any threats and threats "at any time," which, of course, included the precise time under inquiry.
The defendant's denials of any threats, and his testimony that he did not "suggest to Mr. Brown that he do this" or "advise him to do it" (meaning make the gift), left the plaintiff without any direct or competent proof of threats at or around the time of the transfer, or any evidence of activity on the part of Pichinino toward procurement, inducement, persuasion, or pressure. [5] "It is elementary that if a plaintiff examines his adversary under section 2055, for the purpose of proving a fact essential to his cause of action, and the testimony given negatives the existence of the fact, a failure of proof results unless the plaintiff produces other evidence sufficient to establish the fact. He has, of course, the right to produce such evidence." (Kambourian v. Gray, 81 Cal. App. 2d 783, 788 [185 P.2d 27].)
Appellant, while repeatedly arguing that a confidential relationship existed, cites no authority whatever which involves banker-and-customer dealings or where the facts are anywhere nearly comparable with these facts. He cites such cases as Bank of America v. Crawford, supra, 69 Cal. App. 2d 697, 701, where the trial court found a confidential relationship to exist and the appellate court, at page 702, pointed out that because of its existence the burden shifted to the defendant to prove that the transfer "was entirely voluntary, uninfluenced by his [donor's] relationship with defendant or by adverse pressure of any sort."
Appellant also cites Estate of Graves, 202 Cal. 258 [259 P. 935], and from its language constructs a formula of five "well established facts which are recognized as being indicative of undue influence or subversion of one's volition." But that case was one where the jury found that a confidential relationship existed, hence it belongs in the same category as the Crawford case. One of the five elements so listed is opportunity. But in the Graves case itself it was said (p. 262) that: "mere proof of opportunity to influence the mind of the testatrix, even though shown to be coupled with an interest, or a motive to do so, does not sustain a finding of undue influence, in the absence of testimony showing that there was pressure operating directly on her testamentary act."
In the case at bar there was not only a failure of proof of any pressure, but there was definite evidence to the contrary *804 in Pichinino's testimony under section 2055 which was, after all, "in behalf of the defendants." (Figari v. Olcese, supra.)
Appellant cites 4 California Jurisprudence, page 778, which deals with "Gifts or benefits from a principal to one occupying a fiduciary or confidential relationship to him ..." which, again, begs the question, since the trial court found no such relationship. Moreover, in the interest of accuracy it should be noted that that text was written before the court in Brown v. Canadian etc. Co., 209 Cal. 596, 599 [289 P. 613], pointed out that independent advice in cases of a confidential relationship (which that case was) was not indispensable, although it was a "circumstance to be considered in determining whether the gift should be avoided." For these reasons the text invoked is not in point.
Appellant's remaining contention is that the "court committed reversible error by rulings made in the rejection of evidence."
The first attack under this head involves the following series of five questions asked plaintiff's witness Harriet H. Lewis, designed to bring out the donor's state of mind about the time of the transfer in August, 1947:
"Did you have any conversations with him relative to his dealings with Pichinino?"
"Mrs. Lewis, shortly before August of 1947, did Mr. Brown ever express to you his opinion of Mr. Pichinino?"
"During August of 1947, did Mr. Brown discuss with you Mr. Pichinino and his opinion of him?"
"During August, 1947, did Mr. Brown discuss his relations with Pichinino?" and
"Did Mr. Brown ever discuss with you the control or possession of his moneys and securities?"
An objection to each was sustained in turn.
That the theory on which each of these questions was asked was thoroughly grasped by the trial judge appears from his remarks in sustaining the objection to the first. His remarks show that he considered the testimony admissible, if developed by proper questions, for he then said, referring to appellant's authorities: "those authorities very definitely state that the question can only call for the state of mind or intent of the declarant, and you can't go any further than that. The rule is when the intention or state of mind of the alleged donor is involved evidence of declarations made by him before or after the transaction is admissible, though the declarations were not made in the presence of the adverse *805 party. Your question is too broad. It doesn't call for the state of mind of the declarant."
These remarks contain a fair general summary of the decision now relied on by appellant to support his claim of error, namely, Nanny v. H. E. Pogue Distillery Co., 56 Cal. App. 2d 817, 824 [133 P.2d 686]. The judge's attitude was directly opposite to that appearing in some cases (e.g., Lawless v. Calaway, 24 Cal. 2d 81, 91 [147 P.2d 604]) where a judge indicates in advance that a proffered line of testimony will not be admitted.
After sustaining the objection to the fifth question of the series, the court volunteered the suggestion that "You can ask for conversations that will show a state of mind," whereupon counsel asked: "Mrs. Lewis, during July or August of 1947, did you have any conversation with Mr. Brown relative to his money and securities?"
That question fairly embraced everything that counsel was seeking to bring out by his series of questions, and opened up the whole subject. There was an objection but the court ruled: "I will allow that conversation subject to a motion to strike. It is difficult for the Court to know beforehand whether or not the conversation will bear on the question of intent. First, the question is, did you have a conversation with Mr. Brown relative to his property or estate ... in July or August of 1947?" After the witness had given several answers defense counsel interrupted, but the court said "Let's get the whole conversation and see if there is anything material" and she proceeded with her testimony. Defendants then moved to strike "the last three answers." The last four questions and answers were "Q. Did he say anything else? A. We said [sic. "we" not "he"] 'We hope you realize what you are doing.' Q. What did he say? A. 'He's going to do great things. He can do anything down at the bank.' Q. By 'he' he meant whom? A. Mr. Pichinino. Q. ... Did he say anything else? A. No, he didn't say anything else about it, because we didn't pursue the subject further. We just visited."
The court remarked: "And I am granting the motion to strike because the only declarations you are entitled to are those which bear upon the intent of the declarant with reference to the transaction at issue. In other words, you can show his intent with reference to the transfer of this particular item of stock. ... All the questions and answers here have nothing to do with his intent as to the transfer of that stock. ... It doesn't show his state of mind with reference to the *806 transfer of this stock. All this testimony has shown is that he regarded him as a very important figure down at the bank." The last three answers were struck out, but the rest of the testimony of Mrs. Lewis remains in the record.
[6] There was no error in the rulings on the five questions since the final question asked by plaintiff's counsel on the court's own suggestion and with the court's help opened the door for all the testimony which each and all of the five questions could have possibly brought out. The fact that the witness did not give a responsive or satisfactory answer after she was finally permitted to express herself does not add any force to appellant's assertion of error but, rather, detracts therefrom.
[7] Appellant next attacks the sustaining of an objection to this question asked plaintiff's witness Elizabeth Knowlton: "Did he ever have discussions with you within ... one year before his death about the control or possession of his moneys or securities?" The form of the question followed somewhat that finally asked of Mrs. Lewis, except that instead of being confined to July and August, 1947, as that question was, this took in the whole year before Brown's death. That, alone, made it too broad, and there is no reason whatever why it could not have been cast in exactly the same form with respect to the time element as that ultimately asked of Mrs. Lewis. The judge having allowed it in her case (and even phrased it himself) he certainly must have, consistently, allowed it again. There was no error in that ruling.
[8] And, finally, appellant attacks the court's ruling in striking out all Mrs. Knowlton's testimony with the exception of that "with respect to the conference at which Brown, herself and Pichinino were present." It is not necessary to state this testimony; it is sufficient to say that it related to immaterial and inadmissible matters not bearing on the donor's state of mind (Nanny v. H. E. Pogue Distillery Co., supra). Appellant merely asserts reversible error without suggesting any reason or supplying any authority.
After the striking out of the bulk of Mrs. Knowlton's testimony, she volunteered that "Due to the difficulty with my hearing, most conversations, unless I was paying definite attention, I didn't hear at all. ..." This aural defect, freely admitted, was for the trial court to consider in connection with all her testimony. She also testified (and it remained in the record) that she heard Pichinino remark that "if Mr. Brown didn't stop writing so many wills the court would adjudge him incompetent." *807
[9] To sum up: appellant opened his argument with the positive assertion that "the testimony of plaintiff's witnesses was unimpeached and uncontradicted." The plaintiff's witnesses were the donor's two sisters-in-law, his brother-in-law, Mrs. Knowlton, Mrs. Spofford and the plaintiff-executor. We have already dealt with the testimony of Mrs. Lewis. With respect to the testimony of the others it is sufficient to say that it was favorable to plaintiff's side.
On the other hand, on the defense side there was the direct testimony of Pichinino, given under section 2055, which detailed the transaction itself, which showed that the gift of the 100 shares was conceived by the donor and was not made on the advice, suggestion, urging or pressure of Pichinino (see Estate of Wieling, 37 Cal. 2d 106 [230 P.2d 808]; Smith v. Lombard, 201 Cal. 518, 524-5 [258 P. 55]); which showed also that no threats had been made by Pichinino either to the sisters-in-law or to the donor, and which showed that Pichinino had himself suggested, after the donor had determined to make the gift, that the certificate should be made out (as it was) in the donor's name as trustee for the boy. This defense testimony was to be weighed against that given on the plaintiff's side, and to a large extent and in important details it was uncontradicted.
All this court has to do is to determine whether the evidence, when viewed in the light most favorable to the respondents, supports the findings. Even in cases where the evidence must be "clear, satisfactory and convincing" (of which this is not one) the question whether it is of that character is primarily one for the trial court, and its determination is not open to review on appeal if there is substantial evidence to support its conclusion (Viner v. Untrecht, 26 Cal. 2d 261, 267 [158 P.2d 3]). In the instant case there was ample evidence to support the findings.
The judgment is affirmed.
Nourse, P. J., and Dooling, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360906/ | 105 Cal. App. 2d 478 (1951)
THE PEOPLE, Respondent,
v.
HENRY ERNEST JOHNSON, Appellant.
Crim. No. 2715.
California Court of Appeals. First Dist., Div. Two.
July 17, 1951.
Popper & Burnstein for Appellant.
Edmund G. Brown, Attorney General, and Clarence A. Linn, Deputy Attorney General, for Respondent.
GOODELL, J.
Appellant, charged with the murder of his wife, pleaded not guilty and was convicted by a jury of murder of the second degree. The appeal is from the judgment and the order denying a new trial.
Appellant and his wife lived in a three-room apartment numbered 2-C on the second floor of an apartment building on Taft Avenue in Richmond, California. Mrs. Johnson died in the bedroom thereof somewhere between 10 and 11 o'clock on the evening of March 14, 1950, from a gunshot wound produced by a .22 caliber rifle. The officers arrived after she had expired, and appellant was taken into custody then and there.
The verdict rests on circumstantial evidence and on extra-judicial statements of the appellant. *480
An adult son of the Johnsons visited them on that evening, from about 8:50 to about 9:40. The subject of the conversation between the three persons does not appear; nobody else was present. Shortly after the son departed, appellant left the apartment, visited neighbors living around the corner, and returned to the apartment shortly after 10 o'clock.
The witness Clifford E. Burns, who lived on the first floor of the same building, testified that on arriving home at about 10:08 or 10:10 he saw appellant at the foot of the stairway, apparently on his way upstairs.
The witness, Ruth N. Austin, a housewife living on the first floor directly beneath the Johnsons' apartment, testified that after retiring she heard a scream and then heard someone say " 'No Ernest, no, don't, don't,' something to that effect. Then, I heard another scream and a thud." The thud she placed at "probably 10:20 or 10:25." She "sat up trying to think where it could come from, thinking it might be a little girl in the back" and then heard walking back and forth directly overhead in the Johnson apartment which, she judged, lasted about 15 minutes, or until about 10:40. Then she heard someone walk to the door, and the door opened and shut, "and somebody come downstairs and I heard a knock at the door" of the next apartment [the Graceys'] and then she heard appellant's voice. Later she heard people going upstairs from the Graceys' apartment. At the time of the screams, the outcry, and the thud she heard no man's voice.
The witness Nancy Lawson, a housewife, lived on the second floor, next door to the Johnsons. She had retired at 9:30. She testified that she was awakened (but could not fix the time), and "the first I heard was Mrs. Johnson's voice pleading 'Ernest don't, Ernest, don't' ... And then I heard her scream-- ... I ran to the front of the house to see if anyone had heard anything, and then I went and knocked on Mr. Johnson's door." She apparently got no response, and started to go back to bed when someone knocked. She asked who was there. "And they said Johnson, and I told him to get away from my door. And he went down stairs." Later appellant said to her "Come on over, Nancy ... Go on in and see Lou." She did so and found her on the floor. When the witness asked her what had happened she did not at first answer but later "... She told me she was shot, she was dying." "I asked Mr. Johnson what he hit her with, and he said he didn't hit her."
The witness, Everett L. Gracey, whose apartment was on *481 the first floor of the building, testified to having heard a "deep thud" at approximately 10:20, coming from upstairs toward the rear of the apartment, and that when they (he, his wife, and their guests) heard it, they stopped and exclaimed about it "because it was louder than usual."
The witness Reuben Brehm and his wife were visiting the Graceys. He testified that "we noticed a thud ... It appeared to come from overhead." It was "approximately 10:20 or 10:25."
Mrs. Brehm testified that they heard loud noises--a heavy noise on the floor which appeared to come from upstairs.
None of these witnesses heard the report of any shot.
Inspector Grimes identified the .22 caliber rifle which he found on the top bunk of a double-bunk sleeping arrangement in the room where decedent's body lay on the floor. He also identified the cartridge casing and the spent bullet which Officer Lee found. He testified that he examined Mrs. Johnson's clothing for powder burns but found none. His examination was by the naked eye, not by microscope.
Officer Lee testified to finding the spent .22 slug on the floor "Laying to the back of the body." He also found a .22 shell which had not been fired, lying on the bed.
The rifle had belonged to appellant for some years.
The foregoing sums up the circumstantial evidence produced by the prosecution. We interrupt the narration of facts to point out that up to this point there has been no narration of any testimony respecting appellant's admissions. While Mrs. Lawson was testifying, defense counsel called attention to the fact that the corpus delicti had not been proved. The court halted proceedings until the autopsy surgeon could attend, and he testified as to the cause of death and gave his findings. Thus the usual order of proof was observed and no testimony was offered respecting extrajudicial admissions until after prima facie proof of the corpus delicti had been made.
Somewhere around 10:30 p.m. appellant left his apartment and went downstairs. The witness Gracey testified that appellant came to his apartment and was rather nervous and fidgety. He sat down on the edge of the couch and said "My wife is upstairs dying. Call an ambulance, and help me." Brehm exclaimed "What--you shot her?" and he said "Yes." Gracey and Brehm then went upstairs to investigate and *482 found Mrs. Johnson lying on the floor between the bed and the wall. The witness did not remember appellant saying "I shot her, she forced me to do it. I had to do it" but testified that he did hear him say "I shot her." He fixed the time of the conversation at approximately 10:35. Appellant was in the Gracey apartment from five to ten minutes, according to this witness, before they went upstairs. When they did so Mrs. Johnson was still alive; it was then approximately 10:45. He estimated the time of death at about 11 o'clock.
Mrs. Gracey placed appellant's appearance at their apartment at about 10:15 or 10:20, but was not sure. She testified that he said "I shot my wife. She is dying; call the ambulance ... but not the police." When Gracey and Brehm went upstairs appellant tarried momentarily and after they left he said to Mrs. Gracey "Don't get nervous, I didn't do it."
Mrs. Brehm fixed the time when appellant came to the Gracey apartment at approximately 10:30. She testified that he said " 'My wife is dying, I shot her.' And then he said, 'She forced me to shoot her.' And as he was leaving, he said, 'I didn't shoot her.' "
The witness Brehm testified that appellant "came in and sat on the edge of the chesterfield, and said, 'My wife is upstairs dying, I had to shoot her.' ... I then asked him what he meant by shoot, and he said 'She forced me to do it; I had to shoot and fast.' " Then after a few seconds he said 'You had better get an ambulance, or do something for her.' " He estimated that it was about five minutes before he and Gracey went upstairs, about 10:35 or 10:40. Mrs. Johnson was still alive when they reached the Johnson apartment at about 10:35. He remained four or five minutes and then called the police."
Appellant's first contention, that the verdict is contrary to the law and the evidence, is presented under four headings, i.e., (a) that there is no evidence sufficient to sustain the verdict that defendant killed his wife; (b) that there is no evidence sufficient to sustain the judgment that deceased met her death by a criminal agency; (c) that the court erred in admitting the extrajudicial statements, since no corpus delicti has been proved, and, (d) that prima facie proof of corpus delicti sufficient to admit extrajudicial admissions are not sufficient to sustain the judgment.
[1] Appellant's position under his headings (a) and (b) is that the evidence does not show that the deceased met her death by a criminal agency. The principal basis for this *483 claim is that the doctor who performed the autopsy admitted on cross-examination that from the position of the entry of the projectile, the wound could have been self- inflicted. From that premise the argument is advanced that it was incumbent on the prosecution to prove beyond a reasonable doubt that the wound could not possibly have been self-inflicted, and that such proof was not made.
An autopsy was performed on the day after the death. The doctor who performed it testified that the cause of death was an inner abdominal hemorrhage caused by a gunshot wound. He described the course of the bullet, the wounds it made on entering and leaving the body, and the damage it did to the abdominal organs. On cross-examination he was asked "From the position of the entry of the projectile, it could have been self-inflicted?" and answered "Yes," but he also testified that no powder burns were visible on the body. Inspector Grimes testified that no powder burns were visible on the garments with which the decedent was partially clothed, and admitted that he had not used a microscope in his examination for burns.
On cross-examination the doctor testified:
"Q. As a matter of fact, from the description that you just gave to the jury as to the course of the bullet, apparently the gun was held pretty close to the deceased; is that correct? A. It had to be more than two feet as far as I could tell."
"Q. How do you arrive at that? A. Well, of course, there is one item that I couldn't definitely state, because I don't know whether the body was clothed when the shot was fired or not. ..."
"Q. Now, doctor, assuming that the bullet penetrated the coat first, would that change your testimony as to the distance of the gun, the distance the gun was held? A. I can tell you, if the bullet entered the body through the part that was not clothed, it would have to have been fired at a distance greater than two feet. Effect on the clothing would have been important if it entered the clothed portion."
"Q. Did you ever examine the coat? A. No. ..."
"Q. Assuming, doctor, that there were powder burns on the clothing, this wound could have been self inflicted could it not? A. Well, if there was powder burns, it would depend on a lot of factors; the distance in which the powder burns extended away from the wound and also the weapon used. *484 If the wound was self inflicted, there would have been found powder burns on the clothing."
This testimony was given in the course of the proof of the corpus delicti. The jury might have decided that the wound was self-inflicted, but it is to be implied from the verdict that they drew the inference, because of the absence of powder burns on the body or garments, that the gun was held so far away that it could not have been fired by the decedent (following the doctor's reasoning). Such inference, if drawn, eliminated suicide of course.
However, there were additional circumstances, proved before any admissions were offered, from which it was inferable not only that decedent came to her death by a criminal agency, but which at the same time, connected appellant with the offense. We refer, of course, to Mrs. Austin's testimony as to a scream, and then the outcry "No Ernest, no, don't, don't," followed by another scream and then a thud, and to Mrs. Lawson's testimony, which identified the voice as that of Mrs. Johnson, "pleading 'Ernest don't, Ernest, don't' " followed by a scream. There is no contradiction that Mrs. Johnson called her husband by name in a pleading tone of voice. Appellant himself corroborated it, but offered the explanation that his wife cried out in protest because he had attempted to lift her from the floor while she was in pain. The outcry, identified as Mrs. Johnson's, was strong circumstantial evidence of an assault or threat of violence of sufficient gravity to evoke the screams and the pleading cry followed by another scream, from which an inference of suicide could not reasonably be drawn.
The testimony as to the screams and outcry was part of the prima facie proof of the corpus delicti and sufficient, if believed, to have entirely eliminated suicide from the case. The fact that the doctor answered "yes" to the question whether "From the position of the entry of the projectile, it [the fatal wound] could have been self- inflicted?" (italics added) did not contradict or limit his positive statement to the effect that in case of a self-inflicted wound powder burns would have been found. Nor could his quoted statement foreclose further inquiry as to whether the death was by a criminal agency. It simply introduced into the case an issue which was contra to the prosecution's theory. The testimony respecting the screams and outcry was sufficient, when taken in connection with other evidence, to make out prima facie proof of the corpus delicti. Appellant testified that the outcry, which named him, was a protest by his wife when he attempted *485 to lift her from the floor (which would necessarily mean that she had already fallen) while, on the other hand, the testimony of Mrs. Austin was that the outcry naming "Ernest" was followed by the thud. The uncontradicted testimony respecting the outcry and screams was evidence of "physical circumstances surrounding the affair" (8 Cal.Jur. 166) and, as we view it, highly incriminating evidence, which would have a strong tendency to remove any impression which might have been created by the doctor's testimony that from the position of the entry of the projectile the fatal wound could have been self-inflicted. At the very least it showed "a reasonable probability" that the criminal act of another was the cause of death (People v. Ives, 17 Cal. 2d 459, 464 [110 P.2d 408]). All this evidence went in before any admissions were offered.
Appellant's third heading (c) is that "the court erred in admitting the extrajudicial statements of defendant over his objection, since no corpus delicti has been proved" and his fourth (d) is that "prima facie proof of corpus delicti sufficient to admit extrajudicial admissions of defendant [is] not sufficient to sustain judgment of conviction."
Appellant contends that "By reducing the State's evidence to its logical and simplest denominator, it is immediately apparent that the conviction of the defendant could only have come from the effect that the alleged extrajudicial statements of the defendant had upon the jury. While slight proof of the corpus delicti has in many cases been held to be sufficient basis for the admission of extrajudicial statements or confessions, every element of the crime, however, must first be made to appear before such alleged admissions or confessions are admissible, and they cannot be used to establish any necessary element for the commission of the crime. That is, the State must prove, independent of the defendant's alleged admissions or confessions, that there has been a killing and that it resulted from unlawful means."
In support of that statement (which is not too clear or explicit) appellant cites People v. Tapia (1901), 131 Cal. 647 [63 P. 1001], and because he relies on that case we must interpret the foregoing statement as contending that in determining whether there is sufficient evidence of the corpus delicti the jury cannot consider admissions or confessions or other evidence which does not tend to prove the corpus delicti, but merely tends to connect the appellant with the crime charged. The language which we have just emphasized is substantially *486 what the court said in the Tapia case, at page 654, in holding that it was prejudicial error to refuse such an instruction.
Such holding, however, was expressly disapproved 25 years later in People v. Selby (1926), 198 Cal. 426, 432-439 [245 P. 426], where there is a lengthy discussion of the subject.
In People v. McMonigle (1947), 29 Cal. 2d 730, 738 [177 P.2d 745], there is a clear and complete summation of the whole subject, wherein the court says: "In this state of the record, defendant first contends that the court erred in instructing the jury concerning the evidentiary effect of his extrajudicial statements. The challenged instruction reads as follows: 'The Court instructs you that initially and in the first instance the corpus delicti for every criminal case must be proven by satisfactory evidence aside from any statement, confession or admission of the defendant. (Citing cases.) After the latter however have been received in evidence they may strengthen and fortify the proof of the corpus delicti to the extent that the evidence may have that effect.' This is a correct statement of the law in recognition of the 'sharp distinction between the rule governing the admission of extrajudicial statements, admissions or confessions and the rule governing the jury in its consideration of such evidence after it is admitted.' (People v. Selby, 198 Cal. 426, 434 [245 P. 426].) 'To warrant a conviction' the corpus delicti 'must be proven to a moral certainty and beyond a reasonable doubt, but it is not necessary that it should be so proven before other evidence is introduced which corroborates it or strengthens reasonable inferences drawn therefrom.' (People v. Ives, 17 Cal. 2d 459, 463 [110 P.2d 408].)"
The opinion in the McMonigle case then (pp. 738-40) continues on with a comprehensive review of the subject, and cites many cases. At page 740 it again quotes approvingly the Selby case (198 Cal. at 439) as follows: "When the case is submitted for their verdict the jury may consider all the evidence in the case, including the extrajudicial statements, admissions or confessions of the accused, in determining whether or not all the elements of the offense charged and the connection therewith of the accused have been established to a moral certainty and beyond a reasonable doubt. If this were not the correct rule, proof of the extrajudicial statements, admissions, or confessions of the accused would have no utility except to connect him with the crime charged."
[2] The rules just discussed make it clear that a defendant's admissions "may strengthen and fortify the proof of the corpus delicti to the extent that the evidence may have *487 that effect" (People v. McMonigle, supra) which simply means, in the last analysis, that in ultimately determining the guilt of appellant, the jury was warranted in considering (along with all the other evidence) appellant's several admissions that he had shot his wife, as testified to by four disinterested witnesses. Such admissions, of course, indicated a death by a criminal agency.
Appellant's second contention is "that counsel prosecuting the case has been guilty of prejudicial misconduct ..." and three instances are specified.
[3] First, after the defense rested there was a colloquy respecting the admissibility of certain parts of the coroner's report, the defense contending that it was admissible because it was an official vital statistics record. Thereupon the district attorney took a card from his file and waved it before the jury, saying "I have official records here of the police department. It is not admissible." Defense counsel then assigned the action as misconduct. It would appear that the district attorney's action was in response to, and evoked by, the defense's argument respecting the admissibility of official records as such. What the defense sought to show was the entry in the report that the time of the death was "10:40 p.m. on March 14--." The district attorney then stipulated that the coroner's record so showed.
Several cases are cited by appellant under this head. In People v. Cowley, 7 Cal. App. 501 [94 P. 866] misconduct was practically the only ground urged on appeal. The court held, however, that it was not prejudicial and affirmed the conviction. In People v. Fleming, 166 Cal. 357 [136 P. 291, Ann.Cas. 1915B 881] the record was 4,400 pages long and contained numerous instances of misconduct. The court said (p. 359) that although there was "sufficient evidence to legally sustain the verdict, the guilt of appellant by no means satisfactorily appears therefrom" and the judgment of conviction was reversed. Because of the numerous instances and the flagrant character of the misconduct there, that case cannot be used as a fair basis of comparison with this case. In People v. Berryman, 6 Cal. 2d 331 [57 P.2d 136], as in the Cowley case, the conviction was affirmed; misconduct was found, but held to be nonprejudicial. People v. Ford, 89 Cal. App. 2d 467 [200 P.2d 867], was reversed both for "flagrant" misconduct and for palpable error in an instruction. It is clear from the opinion in People v. Bowers, 79 Cal. 415 [21 P. 752], that the misconduct (of both the judge and the *488 district attorney) would not have led to a reversal had not the case been "one of great difficulty."
The record shows nothing respecting the contents of the card, hence the case is different from those cases where the district attorney by an improper question, later withdrawn or struck out, "telegraphs" to the jury some prejudicial matter, or where he makes a bald statement of fact which is not in the record and could not be admitted in evidence. Respondent admits that the district attorney overstepped the bounds in this instance but claims that the transgression was minor and nonprejudicial, and we are satisfied that such is the case.
[4] Appellant's second assignment under this head is that the district attorney was guilty of prejudicial misconduct in making certain statements in his closing argument.
The first 12 jurors examined were accepted and sworn. Eleven of them were interrogated on voir dire by appellant's counsel on the subject of self-defense. The first juror was asked: "I believe His Honor will instruct you ... on self-defense. Now, if a man has killed a woman in self- defense, and the evidence justifies that, you would have no qualm about bringing back a verdict of not guilty because he acted in self-defense? ... Understand, that a self-defense would be justifiable? ... And the fact that it happens to be a woman who met her death when a man was acting in self-defense would not affect your verdict in any way?" The other 10 were asked substantially the same question with slight variations and some additions. The question put to one juror contained the following language: "If the facts show that the defendant acted in self-defense, which it evidently will show, that he acted in apprehension of threat to his life." (Italics added.) Several others were told that the jury would be, or would probably be, instructed on self-defense.
The district attorney in his closing argument said: "Now, right in the beginning of this argument they said that they wanted to go back to the questions on voir dire, and they mentioned the elements of the crime, but they forgot to talk about the rest of the thing that they talked about on voir dire. They forgot all about self-defense." Appellant objected: "... Voir dire examinations are for qualification purposes, and it is not evidence, and it can't be argued by the district attorney, and I ask that Your Honor instruct the district attorney to refrain from doing that, and admonish the jury to disregard the last highly prejudicial statement." Whereupon the judge said: "You will have to confine your argument to the matter of the testimony that was introduced *489 in the matter, and the jury is admonished that statements of counsel are not evidence in the case and they're not to be considered as such." The district attorney then said: "Self-defense ... is where you protect yourself from someone__________" The defense repeated its objection and the judge remarked "Mr. Quinlan, there is no evidence in the case of self-defense, and you will have to confine your argument to the evidence that is in the case."
"Mr. Quinlan: That is right, Your Honor, but they mentioned in their argument about accident and self-defense. They have talked about that all the time. I say there is no evidence of it and I will agree__________"
"Mr. Bernstein: (Interposing) I want the record to show that we did not say one word nor argue, if the Court please. We questioned the jury for the purpose of qualification. I respectfully request Your Honor to admonish the district attorney again, and I certainly cite that as misconduct of the district attorney by reference to this matter. The inquiry is for qualification purposes and not evidence."
"The Court: I think you understand now, Mr. Quinlan__________"
The first answer to the claim that there was prejudicial misconduct, is the action of the court in admonishing the district attorney and in instructing the jury that statements of counsel are not evidence.
The second answer is found in People v. Pantages, 212 Cal. 237 [297 P. 890]. In that case defense counsel in their opening statement told the jury that they expected to prove certain things. In the district attorney's opening argument he called attention to the fact that no such promised proof had been made and did so in vehement language. The court said, pp. 244-5: "As ruled by the trial judge, and as indicated in State v. Boyce, 24 Wash. 514 [64 P. 719], the district attorney and his chief deputy were within their legal rights in plainly and simply directing the attention of the jury to the fact that, although counsel for defendant had stated to the jury that he expected to prove certain specified facts on behalf of defendant, nevertheless no evidence had been received by the court in substantiation thereof, but when, in substance, the district attorney and his chief deputy had thus far proceeded, the limit of legitimate quasi argument in that regard had been reached. To go further ... and to charge the ... attorneys who represented defendant with the grossest of 'bad faith' in the matter, and thereupon, impliedly at least, to predicate an impassioned and compelling argument *490 demanding the conviction of defendant, constituted an error which was prejudicial to the substantial rights of defendant ... When it is considered that what was said by the district attorney was apparently with the sanction and approval of the judge of the trial court, the prejudicial effect on the substantial rights of the defendant becomes apparent."
In the first place, here there was no sanction or approval by the trial judge, but definite disapproval. Moreover in the Pantages case the court, after adopting the opinion of the District Court of Appeal, added the following (212 Cal. 278):
"While it is our conclusion that this judgment must be reversed, we feel bound to state that the instances of misconduct of the district attorney hereinbefore set forth would not, standing alone, necessarily require such a result. The other errors, however, were in our opinion vitally prejudicial, and considered together with the misconduct complained of, warrant the conclusion that the defendant was not lawfully convicted."
The Chief Justice in his concurring opinion emphasized this: The Pantages case is so closely in point that no further authority need be cited. The only difference between that case and this lies in the fact (which seems to be unimportant) that there the assertion of what the defense expected to prove was made in the opening statement while here the suggestion that self-defense might be proved was made on voir dire. The language used in the present case was mild compared to that in the Pantages case, and did not constitute prejudicial misconduct.
[5] Appellant's third assignment under this head arises from the following statement of the district attorney in argument:
"Mr. Quinlan: ... they have talked a lot about our lack of evidence. But I say to you that they don't have any evidence. They are just relying upon, and trying to convince you, that we have to prove that somebody saw somebody get shot. Now, if that were true, you would never convict a secondary murderer, and that is what this defendant is. This lady was killed when only he and she were in the room."
"Mr. Bernstein: That is assuming something not in evidence and I ask that that go out and the jury be admonished."
"Mr. Quinlan: There is evidence that they were in the room. *491"
"The Court: The jury is admonished that statements of counsel are not evidence and must not be considered by them."
It is argued that in a murder case "the killing should not be characterized as murder in advance of the verdict so finding" and People v. Garbutt, 197 Cal. 200 [239 P. 1080] is cited. There the court said: "It is true, of course, that the killing should not have been characterized as 'murder' in advance of a verdict so finding. But we do not think, in view of the connection in which the word was used by the district attorney, and the admonitory instruction promptly given by the court, that the jury was influenced thereby."
As quoted above, the jury was admonished in this instance, and we are satisfied that the misconduct, if any, was not prejudicial.
[6] Defendent's third and last contention is that "the court has misdirected the jury" in that the court refused to give an instruction proposed by defendant that "Upon an accusation of murder, the jury has a right to bring in a verdict of manslaughter. ..."
The first question put to defendant on direct examination was "Did you shoot your wife?" to which he answered "No sir, I did not." He was then asked to tell exactly what happened on March 14, and gave a lengthy and detailed answer. He testified that his son left the apartment around 9:40 p.m. and that he left right after; that he returned home about 10:10 p.m., and assuming that his wife had gone to bed he sat and read the paper "not knowing that she was on the floor. I had no idea." He testified that in the bedroom "there was my gun, laying on the double bed on the right side of the bed there, crossways of the bed, and she was lying behind it, between there and the wall." And continued:
"Well, I was so shocked, I didn't know what to do. It looked like she had vomited and she was still alive. So naturally I reached down to pick her up and put her on the bed. I had to pick up the gun and move it out of the way, because it was laying straight across the bed where I wanted to lay her. When I tried to pick her up, she said 'Don't Ernest don't, it hurts me.' I had to leave her lay there."
"Well, I just didn't know what to do. I didn't know how she was hurt. I saw the gun there and I picked it up and threw the bolt back on it and that is when that shell flew out and hit on the bed. It was not supposed to be a shell in the firing chamber. I never kept a shell in the firing chamber, but I always kept the bullets in the magazine." *492
As was said recently in People v. Carmen, 36 Cal. 2d 768, 772 [228 P.2d 281] (wherein the question of manslaughter instructions in a murder case is fully discussed), "It is a settled rule that jury instructions must be responsive to the issues. The issues in a criminal case are determined by the evidence." However, there is nothing in defendant's testimony or in that of any other witness, which warranted or called for a manslaughter instruction. (People v. Mitchell, 14 Cal. 2d 237 [93 P.2d 121]; People v. Mandell, 48 Cal. App. 2d 806, 817 [120 P.2d 921].) In the first place he denied shooting his wife, and the rest of his testimony simply relates to what he did after discovering her lying on the floor. He also testified that when questioned by the police officers he "told them that I didn't know a thing about it."
The doctor was questioned by the defense at considerable length with respect to the time that would elapse between wounding and death. He said "She might have died as shortly as half an hour or it might have been as long as two hours. ... I would guess probably around an hour. That is an estimation. ... I can say it depends on things which I have no way of knowing, such as the circulation time of the patient at the time, the blood pressure, how much exertion the patient had had prior to death, and all that would make a difference in how rapidly a person would bleed. I would just guess a half hour to two hours would be the limit." This examination was addressed to the subject of alibi, for it is apparent from the record that the defense stressed that at the trial. In other words, appellant left the apartment soon after his son left at 9:40, visited neighbors around the corner and returned about 10:10 and the wound might have been inflicted during that half-hour absence. But the doctor's testimony was necessarily only an estimate, dependent, as he was careful to say, on at least three unknown factors, which, he said "would make a difference in how rapidly a person would bleed." He frankly called his testimony respecting bleeding time a "guess." Assuming the doctor's half-hour minimum, the jury had before it the timing of the scream and the thud at anywhere from 10 to 20 minutes after appellant's return from the neighbors and they had, also, the testimony that Mrs. Johnson was still alive at 10:45 and Gracey's estimate of the time of death as 11 p.m., all of which is consistent with the doctor's minimum of half an hour, when taken in connection with the timing of the fall or thud at somewhere between 10:20 and 10:30. The deputy coroner, whose record showed death at 10:40 p.m., was not present at the time of death and *493 his record must have been necessarily the result of inquiries he made of others who may or may not have observed the time accurately.
Appellant admitted that he had been drinking all that day, and that when he was questioned by the officers his tongue was thick. Several witnesses testified that around the time he returned to the apartment (about 10 p.m.) he appeared to be intoxicated.
The case was carefully tried by the judge, and the rights of the defendant were safeguarded throughout. We find no merit in any of the several contentions presented on appeal.
The judgment and order appealed from are affirmed.
Nourse, P. J., and Dooling, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360923/ | 667 S.E.2d 628 (2008)
AUTO-OWNERS INSURANCE COMPANY
v.
ALEXANDER.
No. A08A0861.
Court of Appeals of Georgia.
August 28, 2008.
*629 John T. Croley Jr., Fitzgerald, for appellant.
William S. Stone, Andy J. Williams, Jr., for appellee.
SMITH, Presiding Judge.
Auto-Owners Insurance Company ("Auto-Owners") appeals from the grant of summary judgment to the son of its insured, Melanie Alexander, on the issue of automobile insurance coverage. Auto-Owners contends that Alexander's insurance policy was cancelled for "nonpayment of premium due." For the reasons that follow, we agree with the trial court and affirm.
Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. Allstate Ins. Co. v. Ackley, 227 Ga.App. 104, 488 S.E.2d 85 (1997). We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences favorably to the nonmovant. Id.
So viewed, the record shows that Melanie Alexander obtained automobile insurance for two vehicles through an Auto-Owners insurance policy. On November 11, 2002, Auto-Owners issued a premium notice to Alexander requiring a $201.83 minimum payment. Although the notice indicated that the premium was due on December 1, 2002, Alexander mailed a check for the minimum amount to Auto-Owners on December 8.
When Auto-Owners had not received payment by December 12, 2002, it began the process for terminating Alexander's policy. It generated a notice stating that, as of January 8, 2003, the policy would be cancelled for "nonpayment of premium due." It also prepared a separate offer to reinstate the policy if Alexander made a minimum payment of $445.52 by January 8. Without dispute, however, these documents were not mailed to Alexander until December 13, 2002. Moreover, the record shows that Auto-Owners began processing Alexander's $201.83 check on December 13, revealing that it had received the payment at least by that date.
Alexander's check cleared her account on December 16, 2002. That same day, Auto-Owners issued Alexander a shortage notification, indicating that her $201.83 payment did not cover the $445.52 minimum required by the reinstatement offer. The notification further stated that to maintain coverage, she was required to pay the $243.69 balance by January 8, 2003. Alexander mailed this additional payment to Auto-Owners, but not until January 10, 2003. Two days later, on January 12, 2003, Alexander's son collided with another vehicle while driving one of the cars insured by Auto-Owners.
When Alexander reported the collision to her insurance agent, he informed her that the Auto-Owners policy had been cancelled as of January 8, 2003, leaving any losses sustained in the wreck without coverage. In connection with the cancellation, Auto-Owners refunded certain "unearned" premiums including the $243.69 payment made on January 10to Alexander.
Approximately 18 months later, the adverse driver from the January 12, 2003 collision sued Alexander's son for damages. The son brought Auto-Owners into the suit as a third-party defendant, arguing that his mother's insurance policy covered any loss. *630 Auto-Owners and Alexander's son subsequently filed cross-motions for summary judgment on the coverage issue. Finding coverage under the policy, the trial court granted the son's motion. Auto-Owners now challenges that finding, claiming that it cancelled Alexander's policy prior to the accident.
Under OCGA § 33-24-44, an insurance company may cancel a policy for nonpayment of premiums after delivering or mailing written notice of cancellation to the insured at least ten days prior to the effective cancellation date. See OCGA § 33-24-44(d). The notice, however, is only valid if premiums are due. As we have found, "notice of cancellation for failure to pay premiums, sent before the premium is actually due, is not sufficient to effect a cancellation." (Citation omitted.) Atlanta Cas. Co. v. Boatwright, 244 Ga.App. 36, 38(1), 534 S.E.2d 516 (2000).
Without question, Alexander failed to pay her premium by the December 1, 2002 deadline. Auto-Owners, however, did not seek to cancel her policy at that point, as it could have done. Instead, it waited until December 13, 2002, to mail the cancellation notice, and the record shows that by that date, Auto-Owners had received Alexander's payment. The December 1, 2002 premium, therefore, was no longer "past due" or unpaid when Auto-Owners sought to end Alexander's coverage.
On appeal, the insurer does not dispute that it had Alexander's check by December 13. Instead, it argues that it prepared the cancellation notice on December 12, 2002, before Alexander's payment arrived. A cancellation notice, however, becomes valid only "upon deposit in the U.S. mails with the issuance of an appropriate receipt." State Farm Mut. Auto. Ins. Co. v. Harris, 177 Ga.App. 826, 828, 341 S.E.2d 472 (1986); see also OCGA § 33-24-45(d) (2002) ("No notice of cancellation of a policy ... shall be effective unless mailed or delivered as prescribed in Code Section 33-24-44.").
Regardless of when it was generated, the cancellation notice could not take effect until the date of mailing, at which point Auto-Owners had received payment satisfying Alexander's past due balance. Under these circumstances, cancellation for nonpayment was improper.[1] Compare Boatwright, supra, 244 Ga.App. at 39(1), 534 S.E.2d 516 (summary judgment properly denied where question of fact remained "as to whether a premium was actually due when the purported notice of cancellation was sent").
Auto-Owners further argues that despite Alexander's $201.83 payment, she owed an additional $243.69 as of December 13, 2002. According to the insurer, Alexander had not fully satisfied her premium obligation on that date, bringing the cancellation notice within the statutory requirements. This additional payment, however, related to reinstatement of her policy following cancellation. Since the cancellation notice and alleged cancellation were ineffective, Alexander was not required to "reinstate" her policy.
Moreover, even if the $243.69 amount constituted a new premium, Auto-Owners has not shown that payment for this premium was past due on December 13, 2002. In fact, the reinstatement offerthe first document to mention this additional paymentinstructed Alexander to pay by January 8, 2003, to avoid cancellation. The record thus shows that the December 13, 2002 cancellation notice preceded the due date for this new premium. As such, it was a demand for payment, rather than a valid notice of cancellation under OCGA § 33-24-44. See Pennsylvania Nat. Mut. Cas. Ins. Co. v. Person, 164 Ga.App. 488, 489(1), 297 S.E.2d 80 (1982) (purported cancellation notice given before premium due was a demand for payment, not a notice of cancellation).
*631 We recognize that Alexander paid her automobile insurance premiums late on several occasions, a dangerous practice that potentially jeopardized her coverage. Auto-Owners, however, failed to effectively cancel the policy for non payment. Accordingly, the trial court properly granted summary judgment to Alexander's son and denied Auto-Owners' cross-motion for summary judgment on the issue of coverage. See Person, supra, at 490, 297 S.E.2d 80.
Judgment affirmed.
MIKELL and ADAMS, JJ., concur.
NOTES
[1] We find no merit in Auto-Owners' claim that because it might have placed the cancellation notice in the mail on December 13 minutes or hours before Alexander's payment arrived that same day, the cancellation was valid. In our view, this type of hair-splitting analysis cannot support cancellation under OCGA § 33-24-44, a provision that must be construed against the insurance company. See Ackley, supra, 227 Ga. App. at 106(2), 488 S.E.2d 85 ("The methods for proper cancellation of insurance policies set forth in OCGA § 33-24-44 are mandatory and strictly construed against the insurer.") (citation omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360939/ | 106 Cal. App. 2d 189 (1951)
CECIL B. MORGAN, Appellant,
v.
VIRGINIA B. MORGAN, Respondent.
Civ. No. 18184.
California Court of Appeals. Second Dist., Div. Three.
Aug. 20, 1951.
J. Thomas Russell and Robert E. Ford for Appellant.
Pollock & Pollock, Edward I. Pollock and David Pollock for Respondent.
SHINN, P. J.
Cecil B. Morgan instituted this action for divorce. His complaint alleged that the parties had no community property, having by written property settlement divided and converted into separate property such community property as they had at the time. The complaint alleged that the parties separated May 18, 1946. Defendant wife answered, alleging that the separation took place on the 30th of September, 1947, and denying the allegations with respect to the property settlement agreement and the alleged grounds for divorce. She also filed a cross-complaint alleging cross- defendant to be possessed of automobiles and other personal property which was community property. By her cross-complaint under appropriate allegations she sought temporary and permanent support. The action was tried, findings were waived, and by the decree defendant was granted support of $100 a month until the further order of the court, attorney's fees and costs. The decree also adjudged that the property settlement agreement of the parties under date of June 5, 1946, was voided and annulled by reconciliation of the parties during the month of September, 1947. Plaintiff husband appeals.
The sole contention on the appeal is that the property settlement was valid, was not cancelled or annulled by the reconciliation of the parties, and that defendant had received by way of support everything she is entitled to receive, presently or in the future.
The parties married September 2, 1939. On and prior to June 5, 1946, they were living apart. On that date they executed a property settlement agreement, by the terms of which the husband agreed to pay the wife $1,200, in installments of $100 per month. He also transferred and set over to the wife all his interest in any community property other than household furniture. In 1940 a home had been acquired *191 in the name of the wife. The husband executed a quitclaim deed in favor of the wife in May of 1946, following a visit of the parties to a lawyer to arrange for the institution of a divorce suit by the wife. The property settlement agreement recited that the parties were living apart, and provided for the payment of fees to the wife's attorney, $50 forthwith, $50 upon the signing of the agreement, and $100 if and when the wife obtained an interlocutory decree of divorce. In consideration of the benefits to be derived under the agreement the wife waived all right to further support and there were the usual mutual releases of claims, past, present and future.
Mrs. Morgan sued for divorce in June, 1946. Although Mr. Morgan defaulted, the case was not tried until September 4, 1947, when Mrs. Morgan received an interlocutory decree. By the decree the court approved the property settlement agreement. Mr. Morgan was staying at the house occupied by his wife in the months of July and August, 1947, but the parties were not living together. At her home, in the evening of September 4, 1947, Mrs. Morgan informed her husband that she had obtained her decree. Mr. Morgan said he did not want a divorce and, "let's forget the whole thing ... it is never final until you sign it. Forget the whole thing and we will start over." Plaintiff and defendant then lived together as husband and wife for the remainder of the month of September, during which time they conducted themselves, at home and elsewhere, alone and with friends, as married people usually would do. At the end of September Mr. Morgan left and did not return. Mrs. Morgan did not consent to the separation. On October 18, 1947, Mrs. Morgan filed in the divorce action an affidavit stating that she and Mr. Morgan had become reconciled and had lived and cohabited together. On November 15, 1947, Mr. and Mrs. Morgan executed a dismissal of the divorce action, which was duly filed. The present action was begun by Mr. Morgan January 7, 1948.
The only references in the pleadings to the property settlement agreement are the allegations in the complaint that such an agreement was executed, dividing the community property of the parties, a denial of those allegations in the answer, and the allegation in Mrs. Morgan's cross-complaint that her action for divorce in which she had been granted an interlocutory decree had been dismissed by mutual consent "for the reason that a reconciliation was effected between the parties hereto during the month of September, 1947; and *192 the parties hereto resumed their marital rights, duties and obligations as husband and wife." In his answer to the cross-complaint Mr. Morgan did not set out the agreement as a defense to the claim for support.
In order to properly place in issue the question whether a cancellation of the agreement was effected, in whole or in part, through the reconciliation, the pleadings of Mrs. Morgan should have alleged an agreement of the parties to cancel it, and the pleadings of Mr. Morgan should have contained a denial. Although the issue was not clearly pleaded, it nevertheless was present by reason of Mrs. Morgan's claim for separate maintenance and attorney's fees. The agreement was placed in evidence by plaintiff early in the trial, and it is clear that the action was tried upon the theory that the validity of the agreement was in question insofar as it provided that the payment by Mr. Morgan of $1,200 would forever release him from his obligation to support his wife.
[1] Whether, in such a case, the agreement does or does not continue in force, depends upon the mutual intentions and understanding of the parties. It is to be determined by the court as a question of fact, and upon indirect evidence in the absence of direct evidence. As said in Estate of Boeson, 201 Cal. 36, 42 [255 P. 800]: "Property settlements entered into by the spouses, it is true, should be set aside in cases where the acts, conduct, and relations of the parties thereafter are of such a character as to justify the conclusion that they intended and agreed orally to abrogate the same [citing cases]." It has frequently been held, at least as to executory provisions of a property settlement agreement, that cancellation will be inferred and former rights will be restored by reconciliation and resumption of marital relations. (Mundt v. Connecticut Gen. Life Ins. Co., 35 Cal. App. 2d 416 [95 P.2d 966]; Wells v. Stout, 9 Cal. 479; Sargent v. Sargent, 106 Cal. 541 [39 P. 931]; Lloyd Corp., Ltd. v. Industrial Acc. Com., 61 Cal. App. 2d 275 [142 P.2d 754]; Gregg v. Manufacturers Bldg. Corp., 134 Cal. App. 147 [25 P.2d 43, 1014]. See, also, 30 C.J. 1065, 1066; Nelson on Divorce, vol. 1, p. 495, 13.14.)
Each case is to be decided on its own facts. It is unnecessary to distinguish the cases relied upon by appellant which hold only that the evidence was sufficient to support findings contrary to the claim that the several property settlement agreements were abrogated by subsequent oral agreements. *193
[2] The crucial question was whether the agreement should be given prospective effect as concerned the claim and the right of Mrs. Morgan to receive support. That is the question involved on the appeal. Findings were waived. The decree, insofar as it cancels the agreement, rests upon implied findings that the parties understood that Mr. Morgan, in joining in the reconciliation and resumption of marital relations, abandoned his contractual rights of freedom from the obligation of support, and assumed anew the legal obligations of a husband; also that Mrs. Morgan abandoned her right, which was expressly given by the agreement, to live separate and apart from her husband, and assumed and was restored to the customary obligations and rights of a wife. There was ample evidence to sustain such findings. Mrs. Morgan testified she believed the reconciliation to be permanent. Mr. Morgan's declarations and conduct certainly indicated that he shared that belief. Good faith of the parties was to be presumed. It is scarcely conceivable that a reconciliation with resumption of marital relations such as the one in evidence would have been entered upon under circumstances that would have enabled the husband to refuse to support his wife and to leave her without cause at any time, and without liability or obligation to her as long as the marriage existed, or after it should be terminated by divorce. In the absence of any evidence of her express agreement continuing the freedom of the husband from liability for support it was reasonable to infer that the parties intended to resume a normal married life and the legal obligations that go with it. We may not disturb the finding that the property settlement agreement was cancelled by consent of the parties.
[3] It was not necessary for Mrs. Morgan to rescind the agreement before questioning its continuing force. There are situations in which a party to a property settlement agreement should not be allowed to seek its annulment otherwise than through the remedy of rescission, but we do not regard the present case as one where rescission was required. It was not shown that Mr. Morgan had a community interest in the real property and, as we have said, that property was not a subject of the property settlement agreement. So far as the $1,200 was concerned, we must presume that Mr. Morgan could have been required to support his wife during the year following the date of the property settlement if he had not *194 agreed to do so. If there was household furniture at the time of the agreement, there is nothing in the record to show that it had sufficient value to justify any further litigation concerning Mr. Morgan's possible right therein. [4] But regardless of these considerations, the agreement was cancelled by mutual consent, without any demand by Mr. Morgan that he be reimbursed in any manner. If he had been entitled to demand restoration he waived his right.
The judgment is affirmed.
Wood (Parker), J., concurred.
Vallee, J., dissented. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360958/ | 105 Cal. App. 2d 752 (1951)
234 P.2d 246
CATHERINE A. McKENNA, Appellant,
v.
MARIE PING et al., Defendants; PETER D. MILLER, Respondent.
Docket No. 17945.
Court of Appeals of California, Second District, Division Three.
July 31, 1951.
*753 Catherine A. McKenna, in pro per., for Appellant.
Ralph Burns for Respondent.
WOOD (Parker), J.
In this action to quiet title to real property, plaintiff based her claim of title upon a quitclaim deed, dated May 17, 1942, from Herman A. Paulk and Mary Agnes Paulk, husband and wife. Defendants Peter D. Miller and Spero Kraleff filed a cross-complaint to quiet title, basing their claim of title on a tax deed dated May 13, 1944, from the Tax Collector of Los Angeles County to Peter D. Miller and Spero Kraleff. After the filing of the cross-complaint and before the trial, Kraleff quitclaimed to Miller all his interest in said property, which quitclaim deed was dated September 27, 1945. It was adjudged that defendant and cross-complainant Miller is the owner of the real property, and that plaintiff and cross-defendant has no right, title or interest therein. Plaintiff appeals.
The property was assessed for taxation in 1932. The taxes levied under that assessment ($148.33) were not paid, and on September 2, 1933, the property was sold to the state by operation of law for $160.68, which amount included the taxes, penalties, and costs. On July 1, 1938, the property not having been redeemed, the Tax Collector of Los Angeles County conveyed the property by grant deed to the State of California.
In 1932, the property was owned by George W. Bahe. In 1937, he conveyed the property to Herman A. Paulk. As above stated, on May 17, 1942, Mr. and Mrs. Paulk quitclaimed the property to plaintiff. Mr. Paulk testified that he quitclaimed the property to plaintiff in satisfaction of a debt of approximately $100 or $150 that he owed her on some legal matters.
Appellant contends that the deed to the state, dated July 1, 1938, was void because: (1) it was executed less than five years after the sale to the state on September 2, 1933; (2) the notice stated that the property would be deeded to the state if not redeemed on or before July 1, 1938 thereby the five-year period of redemption was shortened 64 days; (3) and the property was not sold at public auction as required by section *754 3371 of the Political Code. [1] The fact that the sale to the state was made on July 1, 1938 (before the expiration of five calendar years from September 2, 1933), did not make the deed void. A statute enacted in 1933 (Stats. 1933, p. 1520) authorized such a sale on July 1, 1938. (Markowitz v. Carpenpenter, 94 Cal. App. 2d 667, 672 [211 P.2d 617]; Elbert, Ltd. v. Nolan, 87 Cal. App. 2d 24, 26, 27 [196 P.2d 88].) Appellant does not cite transcript references in support of her assertion that the notice of sale recited that the property would be deeded to the state on July 1, 1938, or in support of her assertion that the property was not sold at public auction. We do not find any evidence to the effect that such a notice was given or that the property was not sold at public auction. [2] A tax deed to the state is primary evidence that "At a proper time and place the property was sold as prescribed by law, and by the proper officer." (Pol. Code, § 3786, subd. 5, now in substance Rev. & Tax. Code, § 3517.) In Bell v. Towns, 95 Cal. App. 2d 398 [213 P.2d 73], it was contended that tax deeds were void for failure to recite therein that the property was sold to the highest bidder. It was said therein, at page 400: "None of these alleged procedural errors or defects, if any in fact exists, is jurisdictional. If any occurred it is such as has been cured by the Curative Acts.... A tax deed to the state is prima facie evidence of the regularity of certain of the tax proceedings and conclusive as to all others from the levy of the assessment to the execution of the deed." The Curative or Tax Validation Act of 1943 is applicable to the present case. [3] The tax validation acts apply to all tax proceedings consummated prior to the respective effective dates of the acts. (City of San Diego v. Alpha Securities Corp., 99 Cal. App. 2d 246, 250 [221 P.2d 770].)
[4] The present action was commenced on May 7, 1945. Defendant alleged in his answer that the plaintiff's cause of action against the tax title of defendant is barred by the provisions of section 3521 of the Revenue and Taxation Code. That section provides: "A proceeding based on an alleged invalidity or irregularity of any deed to the State for taxes or of any proceedings leading up to the deed can only be commenced within one year after the date of recording of the deed to the State in the county recorder's office or within one year after June 1, 1941, whichever is later." As above shown, the present proceeding is based on the alleged invalidity of the deed to the state dated July 1, 1938. It therefore appears that this action was not commenced within one year after *755 June 1, 1941, but was commenced about four years after that date. Appellant argues, however, to the effect that her action was not barred by the provisions of section 3521, since defendant claims title under a tax deed dated May 13, 1944, and since her action herein was filed within one year thereafter, namely, on May 7, 1945. It is to be noted that the deed referred to in said section is the deed "to the State." Appellant argues further to the effect that since she was in possession of the property her action was not barred by the provisions of said section. She asserts that at the time she commenced her action she was in possession of the property through her tenants. [5] It appears to be a general rule that a limitation statute, with respect to an action to quiet title, does not run against one in possession of land, and a person in possession of land cannot be required under penalty of forfeiture to bring an action against one claiming an adverse interest or title to such property. (See Tannhauser v. Adams, 31 Cal. 2d 169, 175 [187 P.2d 716, 5 A.L.R. 2d 1015].) "[T]he rule of inapplicability of statutory limitation has been said to apply as to owners who because of their possession could not be assumed to have actual knowledge of claims of adverse interest by persons not in possession." (McCaslin v. Hamblen, 37 Cal. 2d 196, 199 [231 P.2d 1].) In the case last cited it was said at page 199: "Assuming that the rule might have application in a case where the plaintiff is the original tax-delinquent owner in undisturbed possession, it would seem right to conclude that a generalization applicable merely to `owners in possession' is too broad. The plaintiffs are not the original tax-delinquent owners. They took conveyances of the parcels from the tax-delinquent owner after sale to the city and subject to the city's rights." [6] In the present case, appellant was not the original tax-delinquent owner. The owner in 1932, when the taxes became delinquent, was Mr. Bahe. He conveyed the property to Mr. Paulk in 1937. The property was deeded to the state in 1938, and Mr. Paulk quitclaimed the property to appellant on May 17, 1942. It thus appears that appellant took the quitclaim deed from a grantee of the original tax-delinquent owner about four years after it had been deeded to the state and subject to the state's rights. Mr. Paulk, the grantee of the original tax-delinquent owner, was in possession of the property for approximately a year after June 1, 1941 (14 days less than a year). It also appears that the one-year limitation period referred to in said section 3521, except for 14 days thereof, had expired when appellant took *756 the quitclaim deed from Mr. Paulk. Appellant was not an owner in possession under such circumstances that the limitation statute was not applicable to her. The action of appellant was barred by the provisions of said section 3521 of the Revenue and Taxation Code.
Appellant also asserts, as a basis for the present action, that she "redeemed the land and tendered the tax" by filing an action against the State of California, No. 487150, on July 28, 1943, and by filing another action against the State of California, No. 493202 on May 11, 1944. She asserts that by those actions she redeemed the property under the provisions of "Sections 3618, 3619, 3621, et seq." of the Revenue and Taxation Code. Those sections so referred to are in chapter 5.7 of the Revenue and Taxation Code, which chapter is entitled (In Deering's California Codes) "Taxpayer's Action to Contest the Validity of Tax Sale or Tax Deed." Section 3620 of that code provides: "The owner of any real property deeded to the State for taxes ... or any other person who may redeem such property, may bring an action in the superior court ... to contest the validity of the tax sale or the tax deed to the State." Section 3631 of that code provides: "[T]he court shall render its interlocutory decree requiring the payment, within six months after the interlocutory decree becomes a final judgment, of the amount of taxes, computed as of the date of payment, without interest, penalties or costs thereon. The interlocutory decree shall declare that if payment is not made within such six months period, a final decree shall be rendered, quieting the State's title under the tax deed as to tax-deeded property." It may be stated generally that in said actions appellant sought an interlocutory judgment as follows: That the tax deed was void; determining the amount of delinquent taxes; that she should have six months after entry of the decree in which to pay said amount; and that upon making such payment she should have a decree quieting title in her favor against the state. In the second action last above referred to appellant alleged that the state had collected $1,272 "from the said property" and that she is entitled to have said sum applied as a credit on account of the taxes to be paid by her for redemption of the property. (On July 22, 1943, the tax collector furnished to appellant a writing stating the estimated amount to redeem the property was $1,358.22.)
Appellant recorded a notice of lis pendens on May 11, 1944, the date the second action was filed. She contends that when defendant Miller purchased the property at the tax sale on *757 May 13, 1944, he took the tax deed with notice of the pending action which was filed on May 11, 1944; that the tax collector also had notice of that pending action and had no authority to issue the deed to defendant Miller while such action was pending; and that defendant Miller did not acquire any interest in the property by reason of that deed. The original files in the superior court in said two actions, last above referred to, were introduced in evidence by appellant. The only document in the file of the said first action is the complaint. The only documents in said second action are the following: Complaint; a summons showing return of service on some defendants; five amendments to the complaint alleging the true names of defendants sued under fictitious names; and another summons showing return of service on some defendants. Neither of said two actions has been brought to trial. Section 3638 of the Revenue and Taxation Code provides: "Any proceedings heretofore or hereafter commenced under this chapter shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant after due notice to plaintiff, or by the court upon its own motion, unless such action is brought to trial within one year after the plaintiff has filed his action, except where the parties have stipulated, in writing, that the time may be extended. Section 583, Code of Civil Procedure shall not apply to actions commenced under this chapter." There is nothing in the files of said two actions to indicate that the parties stipulated in writing that the time for the trial of either of said actions be extended. If the parties did so stipulate, appellant should have proved that such stipulations had been made. At the time of the trial herein on July 26, 1949, one of said actions had been pending about six years, and the other one had been pending about five years. Appellant, who introduced the said files and relied upon them as proof of actions pending, made no attempt to prove any excuse for the failure to bring the actions to trial. Since neither action has been brought to trial, and since there was no proof that the one-year period within which the actions should be brought to trial had been extended, it was mandatory that the actions be dismissed. A similar code provision with reference to dismissing an action that has not been brought to trial within a specified time is the third sentence of section 583 of the Code of Civil Procedure, which reads: "Any action ... shall be dismissed by the court ... on motion of the defendant, *758 after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended." It has been held that such a provision is mandatory and does not admit of the exercise of discretion on the part of the trial court. (See Cruse v. Superior Court, 102 Cal. App. 290, 294 [283 P. 73].) [7] In view of the fact that the said two actions had been pending for several years and no explanation was offered relative to appellant's failure to bring the actions to trial, the trial court was not required to regard them as pending actions which might result in a determination that appellant had an interest in the said property. The court was justified in disregarding them.
The judgment is affirmed.
Shinn, P.J., and Vallee, J., concurred.
A petition for a rehearing was denied August 24, 1951, and appellant's petition for a hearing by the Supreme Court was denied September 27, 1951. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361026/ | 667 S.E.2d 327 (2008)
STATE of North Carolina
v.
Jason Jeremiah CHAPPELLE.
No. COA07-1312.
Court of Appeals of North Carolina.
October 21, 2008.
*330 Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
STEELMAN, Judge.
Where the State presented substantial evidence of each element of arson, the trial court did not err in denying defendant's motions to dismiss. Testimony that the victim of the arson refused to agree to allow defendant to store stolen goods in her home was relevant to show defendant's motive to burn the premises. The trial court did not err in allowing defendant to dismiss counsel over tactical differences and represent himself after a thorough colloquy demonstrating that his waiver of his right to counsel was knowing and voluntary. The prosecutor's closing argument approached, but did not exceed, the bounds of propriety. Where defendant has not shown error, he cannot prevail on a claim of ineffective assistance of counsel. Defendant's stipulation as to his prior convictions is effective to establish the convictions but ineffective to establish that his out-of-state convictions are substantially similar to a North Carolina offense.
I. Factual and Procedural Background
Jason Jeremiah Chappelle ("defendant") was found guilty of one count of first-degree arson at the 7 January 2007 Criminal Session of Pasquotank County Superior Court. The State's evidence at trial tended to show that defendant was acquainted with Colleen Durant ("Durant"), the occupant of a mobile home that was singed by a late-night fire on 20 July 2006. Durant and her overnight guest, Leanne Martin ("Martin"), each testified to the events of that evening. Defendant repeatedly knocked on the doors and a window of Durant's home and attempted to persuade the two women to let him in. The women told him to go away but did not call police. Eventually they turned off the lights and went to bed. Defendant again called out to the women, then all became quiet. No one else came to Durant's home that evening. Shortly after the women retired to bed, Martin smelled smoke. When Durant opened the door, she saw smoke coming from beneath the mobile home. Durant and Martin called police and the fire department.
Deputy Sheriff Forbes responded to the call. He found the two women in the street and saw flames coming from the back of the mobile home. Ms. Durant told him that "she knew who did it" and, giving defendant's name, told police that defendant was wearing blue shorts and riding a red bicycle. Firefighter Nelson extinguished the fire and noticed pieces of cardboard in the area of the fire. Two arson experts ruled out accidental causes and concluded that an incendiary fire was started by an open flame. These experts testified to burned debris, including insulation, vinyl skirting, and cardboard. Durant testified that the trailer's vinyl skirting, previously intact, had been partially removed. Although there had been a pile of cardboard boxes sitting near the front door of the mobile home before defendant's evening visit, only one box remained.
Deputy Gregory and Deputy Wooten testified that they found defendant on the edge of a road in the trailer park within view of Durant's home. He was wearing a blue t-shirt and blue shorts. He was astride a red bicycle. Deputy Wooten took him into custody. A search produced a cigarette lighter from defendant's pocket and a six-inch knife from his waistband.
At the close of the State's evidence, defendant's motion to dismiss was denied. Defendant, through counsel, advised the court he *331 would not be presenting any evidence, and court was adjourned for the day. The next morning, defendant dismissed his attorney, and the court permitted him to present evidence. Defendant's motion to dismiss at the close of all the evidence was denied.
At sentencing, the trial court found defendant to be a prior record Level IV for felony sentencing purposes based upon prior convictions in the State of North Carolina and the Commonwealth of Virginia. Defendant received an active sentence of 117 to 150 months.
Defendant appeals.
II. Analysis
A. Evidentiary Issues
In his first two arguments, defendant contends that he is entitled to a new trial because the trial court erroneously allowed Durant to testify to other crimes, then allowed the State to impermissibly question other witnesses regarding that testimony. We disagree.
Defendant asserts that the evidentiary exception allowing motive evidence is closely circumscribed, and evidence detailing the cause of an argument that distinctly references other crimes, as contrasted with evidence that a dispute simply existed, is inadmissible to show motive. We first review defendant's arguments regarding Durant's testimony.
1. Durant's Testimony
At trial, the State sought to introduce evidence of an argument between defendant and the victim as proof of malice and defendant's motive to commit arson. At the conclusion of the voir dire hearing, defendant contended first that the substance of the argument was irrelevant and, second, that under Rule 403 of the North Carolina Rules of Evidence, the probative value of the evidence was outweighed by the likelihood of undue prejudice. The trial court first ruled that the proffered testimony was relevant for the limited purpose of proving motive. The trial court then ruled that the probative value of the evidence outweighed any prejudicial value, stating that "enough of it [would be allowed] to support [the State's] theory." Defendant did not make a continuing objection or request a limiting instruction.
The jury returned to the courtroom, and Durant was permitted to testify to an argument with defendant that occurred on the day preceding the arson, as follows:
Q. [D]id [the defendant] say anything that concerned you . . . earlier in the day when he talked to you and you decided not to let him in any more[?]
A. I didn't want to let him in any more.
Q. And why was that?
A. Because he wanted to rob a place on Main Street Extended and take money, diamonds, and guns, and he said the drug dealers would be interested in them and he wanted to store stuff at my house and I said, no. And I refused to let him in my house because he wanted to rob this place, store the stuff at my place, and bring these bad people, you know, to my place.
. . .
Q. [D]id he make a telephone call from your house?
A. Yes, he did. . . . He made a telephone call from my house to somebody and was talking to them about robbing the place.
Q. And what did he want that person to do . . . ?
A. To help him rob the place.
On cross-examination, Durant referenced this testimony upon three occasions. First, she acknowledged that she had considered defendant a friend, then stated "But . . . I didn't realize and I didn't know that he was a thief either, you know." Defendant's objection was overruled. Second, Durant stated, without objection, that the day of the arson was "the day he talked about robbing the place." Finally, Durant twice referred to the defendant as "thief," whereupon the trial court admonished her to "just answer the question."
Defendant contends that this testimony went beyond the scope necessary to show that defendant and the victim had an argument and instead provided irrelevant and inflammatory "other crimes" evidence that tended only to prove that defendant was a "robber" or "thief" and was not admissible under Rule 404(b) of the North Carolina *332 Rules of Evidence. He further asserts that, even if the testimony was admissible, any probative value was substantially outweighed by the dangers of unfair prejudice and misleading the jury and the testimony should have been excluded under Rule 403.
a. Rule 404(b)
Rule 404(b) is a rule of inclusion rather than a rule of exclusion. See, e.g., State v. Agee, 326 N.C. 542, 549-50, 391 S.E.2d 171, 176 (1990). The rule permits evidence of defendant's prior bad acts when introduced for a proper purpose. N.C. Gen. Stat. § 8C-1, Rule 404(b)(2007) ("Evidence of other crimes, wrongs, or acts . . . may, however, be admissible for other purposes, such as proof of motive . . ."). The "acid test" under Rule 404 is still relevancy. State v. Emery, 91 N.C.App. 24, 33, 370 S.E.2d 456, 461 (1988)(citing State v. McClain, 240 N.C. 171, 177, 81 S.E.2d 364, 368 (1954)).
A defendant's motive to commit a crime is clearly of consequence to his guilt or innocence. In the instant case, the nature of defendant's argument with Colleen Durant, and her reaction to that argument, tended to show that he had a motive to set fire to her residence and was relevant to the State's theory of the case. We hold that Rule 404(b) did not require its exclusion as evidence probative only of defendant's propensity to commit crimes.
b. Rule 403
The trial court enjoys broad discretion to admit or exclude evidence under Rule 403, and will be reversed "only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." State v. Anderson, 350 N.C. 152, 175, 513 S.E.2d 296, 310 (1999) (internal quotation marks and citations omitted); see also State v. Chapman, 359 N.C. 328, 348-349, 611 S.E.2d 794, 811 (2005)(discussing Rules 402 and 403 of the North Carolina Rules of Evidence and the meaning of unfair prejudice).
In the instant case, the trial court considered the nature of the evidence, the possibility of prejudice to the defense, and arguments from both parties before rendering a decision. Upon a thorough review of the record, we cannot say that the trial court's decision was either arbitrary or unsupported by reason. Anderson at 175, 513 S.E.2d at 310. We hold that the trial court did not abuse its discretion in admitting Colleen Durant's testimony regarding the subject of the argument between Durant and defendant during the day preceding the arson.
c. Testimony of Durant During Cross-Examination
During defendant's cross-examination of Durant, she referred to defendant as a "thief" and to the day preceding the arson as "the day that he talked about robbing the place." Defendant objected to one statement but not the others. Where defendant preserved the issue by objection, the court's ruling is reviewed for an abuse of discretion. Chapman, 359 N.C. at 348-349, 611 S.E.2d at 811. Where defendant failed to preserve the issue for appellate review, this Court reviews the record for plain error. Id. at 349, 611 S.E.2d at 812.
We first consider the testimony to which defendant objected. In responding to defendant's question as to their "friendship," Durant stated "I didn't know that he was a thief[.]" Her response clarified her reasons for refusing defendant entry to her home. We hold that the trial court did not abuse its discretion when it overruled defendant's objection to this testimony. Chapman, 359 N.C. at 348-349, 611 S.E.2d at 811.
On two other occasions, defendant did not object to Durant's testimony but now complains that Durant's assertion that he was a "robber" or "thief" was plain error. A review of the record shows that Durant was sometimes emotional, her testimony was sometimes rambling, and the trial court occasionally admonished her to "just answer the question." The jury had the opportunity to hear the witness and observe her demeanor throughout her testimony.
In the first instance, defendant sought to establish from Durant the events of the day of the arson, and Durant stated "That was the day that he talked about robbing the place." In the second instance, defendant questioned Durant as to her interview with the fire inspector:
*333 Q. Do you recall telling him that you could tell that it was Mr. Chappelle because he spoke to you in a very low voice. Colleen, let me in. Let me in.
A. He didn't speak in a low voice. He said, Colleen, let me in.
Q. So if the inspector wrote down that you told him that he wasthat you told him that Jason had talked to you in a low voice, Colleen let me in, let me in, that would be incorrect?
A. If that's what I said then that's what happened. But I heard him say, Colleen, let me in, let me in. I did hear him say, Colleen, let me in.
Q. In a low voice, is that right?
A. I don't remember what kind of voice it was. But I did hear him say to let me in. And I wouldn't let him in. He is a thief. He's a thief.
THE COURT: Ma'am, just answer the question.
Defendant did not object or move to strike Durant's response to his question, which, although emotional, was nonetheless admissible as corroborative of her earlier testimony regarding the argument she had with defendant that day. State v. Riddle, 316 N.C. 152, 156-57, 340 S.E.2d 75, 77-78 (1986) ("Corroboration is `the process of persuading the trier of the facts that a witness is credible.'") (quoting 1 Brandis on North Carolina Evidence § 49 (2d rev. ed.1982)).
In both instances, Durant's testimony was admissible as corroborative of her earlier testimony regarding the argument and her reasons for telling defendant to leave. Riddle at 156-157, 340 S.E.2d at 77-78. We hold that this was not error, much less plain error.
2. Other Witness Testimony
Defendant argues that the State's examination of two other witnesses regarding the planned robbery was prejudicial to his defense. Because defendant failed to object at trial, we review for plain error. Chapman, 359 N.C. at 349, 611 S.E.2d at 812.
The State examined Martin, Durant's overnight guest, as to any conversation between Durant and defendant that she may have overheard. Martin responded that defendant wanted to store stolen property from a planned robbery and was unhappy when Durant told him to leave. We hold that this testimony was admissible as corroborative of Durant's testimony. Riddle at 156-57, 340 S.E.2d at 77-78. As discussed above, the subject of the argument was also admissible to show motive.
The State then asked defendant's brother, with whom he had previously resided, whether defendant had discussed any robbery plans with him. The brother responded that he had not. We hold that the State's question was proper in light of Durant's testimony. Even assuming arguendo that the question was improper, defendant cannot show prejudice where the witness' answer was not harmful to defendant.
We hold that, as to the testimony of these two witnesses, there was no error, much less plain error.
Defendant's evidentiary arguments are each without merit.
B. Motion to Dismiss
In his third argument, defendant contends that the State's evidence was insufficient to establish his identity as the perpetrator of the arson. We disagree.
Upon a motion to dismiss in a criminal trial, the Court must determine "`whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.'" State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). The court must consider all "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." Id. (citation omitted). "`Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.'" Id., 430 S.E.2d at 919 (quoting State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)). The test of sufficiency "is the same whether the evidence is direct, circumstantial, *334 or both." Id. (citing State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984)).
A review of the record shows that the evidence, when viewed in the light most favorable to the State, raised more than a suspicion or conjecture as to the defendant's identity as the perpetrator of the arson. Defendant had an argument with Durant earlier that day, and repeatedly knocked on the doors and windows of Durant's trailer, in a desperate attempt to gain access to the residence. Durant refused to let him in, and shortly thereafter, the fire started. Defendant was the only person in the vicinity of Durant's trailer that evening. As to the arson of Durant's home, there was circumstantial evidence that: (1) there were intact cardboard boxes outside Durant's residence when defendant arrived; (2) the fire was started with pieces of cardboard; (3) only one box remained when the investigators arrived; and (4) defendant was found in the area with a lighter and a six-inch knife which had foreign matter on the blade. Billy Hooten, a witness for the defendant, testified that defendant and his bicycle had disappeared shortly before the fire started. We hold that there was substantial circumstantial evidence from which a jury could reasonably find that defendant was the perpetrator of the arson. Barnes, 334 N.C. at 75, 430 S.E.2d at 918-19. Although defendant's evidence contradicted the State's evidence, any such conflicts were for the jury, not the trial judge, to resolve.
This argument is without merit.
C. The State's Closing Argument
In his fourth argument, defendant contends that the State's closing argument was improper and independent error because it urged the jury to improperly consider "other crimes" evidence as character evidence, included an improper "general deterrence" argument, and improperly suggested that acquittal might subject jurors to a risk of robbery by defendant. He further asserts that the State's characterization of him as an "impulsive dangerous criminal" was abusive name-calling. We disagree.
We note at the outset that defendant's brief fails to cite the appropriate standard of review for closing arguments and intertwines its evidentiary arguments with those attacking the State's conduct during closing argument.
"`Counsel are entitled to argue to the jury all the law and facts in evidence and all reasonable inferences that may be drawn therefrom, but may not place before the jury incompetent and prejudicial matters and may not travel outside the record by interjecting facts . . . not included in the evidence.'" State v. Fletcher, 354 N.C. 455, 486, 555 S.E.2d 534, 553 (2001) (alteration in original) (quoting State v. Syriani, 333 N.C. 350, 398, 428 S.E.2d 118, 144, cert. denied, 510 U.S. 948, 114 S. Ct. 392, 126 L. Ed. 2d 341 (1993)). The standard of review for alleged errors in closing arguments "depends on whether there was a timely objection made or overruled, or whether no objection was made and defendant contends that the trial court should have intervened ex mero motu." State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364 (2003) (citation omitted). Where an objection was overruled, the trial court's ruling is reviewed for an abuse of discretion only where improper remarks were of a magnitude that their inclusion prejudiced defendant. Compare Walters at 105-06, 588 S.E.2d at 366 (concluding that the necessary showing of prejudice was not met even though the prosecutor's argument improperly compared defendant to Hitler in the context of being evil) with State v. Jones, 355 N.C. 117, 133-34, 558 S.E.2d 97, 107-08 (2002) (concluding that the trial court abused its discretion in allowing the prosecution's references to Columbine and Oklahoma City because their inclusion was both improper and prejudicial). Where no objection was made, this Court reviews the remarks for gross impropriety. Walters at 101, 588 S.E.2d at 364 (citing State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002)).
Statements made in closing arguments are not to be considered in isolation or out of context, but must be reviewed in the context in which they were made and the overall factual circumstances to which they referred. State v. Cummings, 353 N.C. 281, 297, 543 S.E.2d 849, 859 (2001) (quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 *335 (1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1013 (1999) and State v. Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41, cert. denied, 513 U.S. 1046, 115 S. Ct. 642, 130 L. Ed. 2d 547 (1994)).
1. Asserted Errors Where There Was No Objection
Defendant argues that the trial court erred in failing to intervene during the following portions of the State's closing argument:
[Defendant] . . . needed a place to hide out. And the one person who he thought he could rely on to let him hide out had turned him out of their [sic] house. . . . she said he used to hang at my house, he was there. . . . I let him hang at my house up until that afternoon when he got on the telephone at my house and made a phone call asking sometalking about wanting to rob a house on West Main Street Extended and store the stuff at my house.
. . .
Once a fire is set, you can't control what it does. So that's why the law defines burning in the way that it defines it. . . . The fact is that this Defendant did not care about the consequences of his actions in his desperate attempt to find a place to stay and to store stolen property on the morning of July 20th when he took his knife, cut up the cardboard, walked to that end of the trailer, placed that cardboard up against that plastic pipe, took that lighter and set that cardboard on fire.
These arguments are reviewed for gross impropriety. Walters, 357 N.C. at 101, 588 S.E.2d at 364.
The State may argue the evidence and logical inferences that arise from the evidence. Fletcher, 354 N.C. at 486, 555 S.E.2d at 553. Colleen Durant testified to an argument in which she refused to allow defendant to include her in a criminal enterprise, and the State's argument merely alluded to that plan. Moreover, the evidence showed that the fire was started with pieces of cardboard. Thus, in the latter portion, it was not improper for the State to argue that the knife and lighter found on defendant on the morning of his detention were used to cut up cardboard and to start the fire. Id. We hold that the court did not err by not intervening ex mero motu with respect to these arguments.
2. Overruled Objections: Fletcher, Tucker, and Brooks
Defendant further contends that portions of the prosecutor's argument were "extremely inflammatory," called for a character propensity inference, and made it "virtually certain" that the jury relied on the other crimes evidence to return a guilty verdict. As noted supra, before considering whether defendant was prejudiced or whether the trial court abused its discretion, we must first determine whether the prosecutor's remarks were improper. Jones, 355 N.C. at 131, 558 S.E.2d at 106. Upon a determination of impropriety in the prosecutor's argument, we then proceed to consider whether those remarks were prejudicial. Id.
In arguing that defendant had the opportunity to commit the crime, the prosecutor pointed out that defendant had no alibi at the time the fire was set and that defendant's own alibi witness, Billy Hooten, was unable to account for defendant's whereabouts at the time of the fire. She went on to say:
Here he was at Hooten's house between 10:00 and 10:30 and where had he been by the way interestingly enough [sic] on some long bike ride around in the Forrest Park area. Where is that in relation to West Main Street Extended? Was he casing out his robbery victim[OBJECTION. OVERRULED.]on this long bike ride? So he had been on this long bike ride and now he's back at Mr. Hooten's house between 10:00 and 10:30 . . . when [Hooten] went in[to his house to fix defendant something to eat.] [Hooten] . . . comes out with the food some time a little before 11:00,. . ., and . . . Defendant has left and the bicycle is gone and he doesn't see him anymore.
The State also argued to the jury:
. . . I ask you now to do your duty and follow the law and find this Defendant guilty of first degree arson.
And in doing so, you achieve two [2] things. You achieve justice for Colleen Durant and she is no less deserving of that *336 because of the way she chooses to live her life because justice is blind to a person's station in life and treats everybody equally.
And the second thing is, you ensure this Defendant, I contend to you, this impulsive, dangerous criminal won't be on the streets of Pasquotank County to take advantage of somebody else like Colleen Durant or to rob anybody's house over on West Main Street Extended or anyone else for that matter. [OBJECTION. OVERRULED.] Or to set another person's house on fire in another moment of desperation that he may face in the future when he owes people money and the drug dealers are after him and he has no where [sic] to live. . . .
Relying on State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986) and State v. Brooks, 113 N.C.App. 451, 439 S.E.2d 234 (1994), defendant argues that the trial court erred in overruling his objections to these arguments in that: (1) the State's arguments improperly urged the jury to use other crimes evidence for a forbidden purpose; (2) the State's characterization of defendant as an "impulsive dangerous criminal" was abusive name-calling; (3) the State's assertion that defendant might rob others improperly suggested that defendant would rob the jurors; and (4) the State's argument that defendant should be convicted so that he "won't be on the streets of Pasquotank County" was an improper general deterrence argument.
We first consider defendant's argument that the State's arguments improperly urged the jury to use other crimes evidence for a forbidden purpose. We agree that the State needlessly digressed when it speculated that defendant was casing out a robbery victim. These remarks were gratuitous and served no useful purpose. However, there was evidence that defendant planned a robbery and that he disappeared at a time close to the fire. While the argument was disingenuous, we hold that it was not improper. Even assuming arguendo that the remarks were improper, they were made in passing and were not a major focus of the State's closing argument. Thus defendant cannot demonstrate prejudice that would have resulted in a different result at trial. N.C.Gen.Stat. § 15A-1443(a)(2007); see also State v. Campbell, 133 N.C.App. 531, 539, 515 S.E.2d 732, 737 (1999).
As to defendant's general deterrence argument, he cites no supporting authority. "It is not the role of the appellate courts . . . to create an appeal for an appellant." Richardson v. Maxim Healthcare/Allegis Group, ___ N.C.App. ___, ___, 657 S.E.2d 34, 39 (2008) (alteration in original) (citation and internal quotations omitted). Pursuant to N.C. R.App. P. 28(b)(6), we deem this argument abandoned. Further, we find this argument to be without merit. The portions of the prosecutor's argument which defendant complains of were not general deterrence arguments, but specific deterrence arguments, aimed at the defendant himself. Such arguments are not improper. State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994); Syriani, 333 N.C. at 397, 428 S.E.2d at 144.
We now turn to defendant's remaining arguments. In Brooks, a panel of this Court awarded the defendant a new trial because the trial court improperly admitted irrelevant evidence of defendant's past physical violence towards his wife and allowed the State to argue that conduct to the jury. 113 N.C.App. at 458, 439 S.E.2d at 239. This Court held that these errors were prejudicial and deprived the defendant of a fair trial. Id. at 459, 439 S.E.2d 234. We hold that Brooks is inapposite. In the instant case, the admission of the other crimes evidence was without error and the State's argument did not "travel outside the record." Fletcher, 354 N.C. at 486, 555 S.E.2d at 553; see also State v. Wortham, 287 N.C. 541, 546, 215 S.E.2d 131, 132 (1975) (affirming the Court of Appeals determination that there was no reversible error while noting that the "District Attorney was perilously near crossing the line from allowable denunciation into the forbidden territory of abuse which would have required reversal.").
In Tucker, evidence of past convictions was admitted solely to impeach defendant's credibility. 317 N.C. at 543, 346 S.E.2d at 423. The Supreme Court held that the prosecutor's use of this evidence in closing arguments *337 was improper and prejudicial, and that it was reversible error for the trial court to permit the prosecutor to argue the convictions as substantive evidence of defendant's guilt. However, in determining prejudice, the Tucker Court noted that defendant's evidence tended to show his innocence:
The conflict [between the State's evidence and defendant's evidence] should have been determined by the jury free from the state's argument which gave force to the evidence of defendant's prior convictions beyond that permitted by the law. In light of the sharp evidentiary conflict, we conclude there "is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at" trial.
Id. at 544-45, 346 S.E.2d at 424 (quoting N.C.G.S. § 15A-1443 (1983)); cf. Walters at 105, 588 S.E.2d at 364 (noting that, where there is overwhelming evidence of defendant's guilt, defendant must show not only that the prosecutor's remarks were improper, but that they "were of such magnitude that their inclusion prejudiced defendant."). This case is more like Walters, in that defendant's evidence did not tend to show his innocence, and the State presented substantial incriminating circumstantial evidence of defendant's guilt. We hold that Tucker is inapposite.
In the instant case, the prosecutor characterized defendant as an impulsive dangerous criminal. The State is afforded wide latitude in its jury arguments. Syriani, 333 N.C. at 398, 428 S.E.2d at 144. However, "[t]he district attorney should refrain from characterizations of defendant which are calculated to prejudice him in the eyes of the jury when there is no evidence from which such characterization may legitimately be inferred." State v. Britt, 288 N.C. 699, 712, 220 S.E.2d 283, 291 (1975). Here, the State presented evidence that defendant set fire to an occupied trailer in the middle of the night out of anger and frustration that the occupant would not permit him entry. It is a reasonable inference that such an individual is impulsive, and that such desperate measures are dangerous. While the prosecutor's comments approached the limits of the wide latitude permitted for argument, we cannot say that the argument lacked evidence "from which such characterization may legitimately be inferred."
This argument is without merit.
D. Ineffective Assistance of Counsel
In his fifth argument, defendant contends that counsel's failure to preserve certain of his Rule 404(b) arguments at trial constituted ineffective assistance of counsel. The burden of proving ineffective assistance of counsel requires defendant to satisfy a two-part test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Roache, 358 N.C. 243, 279, 595 S.E.2d 381, 405 (2004) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, 693 (1984)). In the instant case, defendant has not shown that the admission of Martin's testimony or that the State's purported use of the other crimes evidence, including its closing arguments, was error. Without showing error, defendant cannot prevail on a claim that he received ineffective assistance of counsel. Id.
This argument is without merit.
E. Waiver of Counsel
In his sixth argument, defendant contends that he is entitled to a new trial because he was forced to make an unlawful choice concerning discharge of counsel and his waiver of counsel was unknowing. We disagree.
Defendant contends that, under State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991), the trial court forced him to make an unlawful choice between legal representation by counsel who refused to follow his wishes as to critical trial matters and proceeding pro se. He argues that, under State v. Colson, 186 N.C.App. 281, 650 S.E.2d 656 (2007), this *338 error rendered his waiver unknowing and involuntary. This argument is unavailing.
Both the State and the defense rested at the close of the afternoon session on the second day of trial. The next morning, court was reconvened outside the presence of the jury to consider defendant's letter requesting to discharge his counsel and to offer evidence. These proceedings lasted well over an hour and involved dialogue among the court, defendant, and counsel. Upon detailed inquiry, the trial court concluded that the differences between defendant and his counsel were stylistic and tactical. Citing defendant's absolute constitutional right to self-representation, the court heard defendant's motion to discharge counsel. Defendant then executed a waiver of counsel in which he relinquished his Sixth Amendment right to counsel. The court then appointed the public defender to remain as standby counsel and allowed defendant to re-open his case and to offer evidence. Defendant called witnesses on his own behalf but did not testify himself and gave no indication that he wished to do so. The record reflects that defendant consulted with standby counsel throughout the remainder of trial.
1. Colson and Defendant's Constitutional Rights
In Colson, this Court granted a new trial to a defendant who was forced to choose between his constitutional right to counsel and his constitutional right to testify in his own defense. 186 N.C.App. at 283, 650 S.E.2d at 658 (referring to defendant's dilemma as a "Hobson's choice, . . . involving the relinquishment of one constitutional right in order to assert another") (citing State v. Luker, 65 N.C.App. 644, 652, 310 S.E.2d 63, 67 (1983), rev'd on other grounds, 311 N.C. 301, 316 S.E.2d 309 (1984) and Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)). The facts in the instant matter are distinguishable from Colson. The defendant in Colson was forced to choose between his right to counsel and the right to testify in his own defense. Defendant in the instant case chose between mutually exclusive constitutional rights: his right to counsel and his right to self-representation. Defendant's right to testify in his own defense was not implicated. While defendant chose not to testify, he was afforded every opportunity to do so. The trial court allowed defendant to re-open his case and present evidence, provided defendant with the assistance of standby counsel, and ex mero motu renewed defendant's motion to dismiss at the close of all the evidence. Defendant's reliance on Colson is misplaced.
2. Defendant's Waiver of His Right to Counsel
We now turn to defendant's claim that his waiver was unknowing and not voluntary.
Like the decision regarding how to plead, the decision whether to testify is a substantial right belonging to the defendant. While strategic decisions regarding witnesses to call, whether and how to conduct cross-examinations, . . . and what trial motions to make are ultimately the province of the lawyer, certain other decisions represent more than mere trial tactics and are for the defendant. These decisions include what plea to enter, whether to waive a jury trial and whether to testify in one's own defense.
Luker, 65 N.C.App. at 649, 310 S.E.2d at 66 (emphasis added) (citing ABA Standards For Criminal Justice, the Defense Function, § 4-5.2 (1982 Supp.); Wainwright v. Sykes, 433 U.S. 72, 91, 97 S. Ct. 2497, 2509, 53 L. Ed. 2d 594, 611 (1977), (Burger, C.J., concurring)), rev'd on other grounds, 311 N.C. 301, 316 S.E.2d 309 (1984). The record clearly reflects that defendant thought that he could stop the proceedings by moving to discharge counsel. The trial court correctly determined that the trial decisions that resulted in impasse were "mere trial tactics" rather than "critical matters" requiring counsel to follow the client's wishes or be discharged from the matter. Our review shows that the trial court made a full inquiry on the record, clearly articulated defendant's constitutional rights, and counseled defendant that it would be "a terrible mistake" to discharge his public defender, before allowing defendant to execute a written waiver of counsel. On this record, we hold that defendant's waiver of counsel was knowing and voluntary.
*339 We also hold that defendant's contention that he effectively moved for mistrial is unsupported by the record.
This argument is without merit.
F. Prior Convictions at Sentencing
In his final two arguments, defendant contends that the State's evidence was insufficient to prove prior convictions and substantial similarity of offenses in the Commonwealth of Virginia. We agree in part and disagree in part.
Defendant stipulated in writing to the information set forth in the sentencing worksheet prepared by the State. During the sentencing hearing, he orally affirmed this stipulation to the trial court. The trial judge found that the defendant had twelve prior record points and sentenced him at a prior felony record level IV. However, the court did not make a finding that the Virginia offenses were substantially similar to the North Carolina offenses as classified by the State in the worksheet.
Prior panels of this Court have determined that a stipulation regarding out-of-state convictions is insufficient, absent a determination of substantial similarity by the trial court, to support the trial court's prior record determination. State v. Palmateer, 179 N.C.App. 579, 581-82, 634 S.E.2d 592, 593-94 (2006); see also State v. Hanton, 175 N.C.App. 250, 253-55, 623 S.E.2d 600, 602-04 (2006). We are bound by our prior holdings on this issue. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989).
While the stipulation by defendant is binding as to the existence of the prior convictions (including the out-of-state convictions), it is not binding as to the substantial similarity of the out-of-state offenses under N.C. Gen.Stat. § 15A-1340.14(e). The State concedes that the prior driving while license revoked conviction is not within the statutory definition of a misdemeanor that may be counted for sentencing purposes, and on remand, that offense should be disregarded.
III. Conclusion
Defendant received a trial free from error. However, defendant's stipulation to the State's sentencing worksheet was ineffective to establish that out-of-state convictions are substantially similar to a North Carolina offense, and the trial court erred in failing to enter any findings in this regard. We thus remand this matter for a new sentencing hearing.
We deem abandoned those assignments of error not addressed in defendant-appellant's brief. N.C. R.App. P. 28(b)(6).
NO ERROR AS TO TRIAL.
REMANDED FOR RE-SENTENCING.
Judges McCULLOUGH and ARROWOOD concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361060/ | 292 S.E.2d 317 (1982)
Dennis J. HUDSON
v.
COMMONWEALTH of Virginia.
Record No. 811619.
Supreme Court of Virginia.
June 18, 1982.
James E. Mullins, Alexandria, for appellant.
Jerry P. Slonaker, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.
Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
CARRICO, Chief Justice.
In Stewart v. Commonwealth, 219 Va. 887, 252 S.E.2d 329 (1979), we decided that a husband may be convicted of stealing his wife's property. We reserved for later decision, however, the related question whether a wife is a competent witness against her husband in his prosecution for larceny of her property.[1] The issue is presented squarely by this appeal.
The present prosecution commenced with a three-count indictment charging Dennis J. Hudson with (1) forging the name of his wife, Maria Hudson, to a deed, an endorsement on a deed of trust note, and an assignment, (2) uttering the forged instruments, and (3) obtaining by false pretenses more than $200 from Mrs. Hudson.[2] In a unitary *318 trial of the three counts, Mrs. Hudson was permitted to testify against her husband. He was convicted of all three charges, and his punishment was fixed at twelve months in jail and a $1,000 fine on each of the first two counts and at two years in the penitentiary on the false pretenses count.
The evidence showed that the Hudsons were married December 18, 1976, and that they separated October 30, 1980. Following their separation, they executed a property settlement agreement which provided for the sale of their jointly owned real estate and an equal division of the net proceeds between them. In February, 1981, Hudson hired a woman to pose as his wife; he then had the imposter execute the papers necessary to consummate a sale of the Hudson property so he could divert to himself Mrs. Hudson's share of the proceeds. Before Mrs. Hudson learned of the scheme, the sale had been closed and the proceeds partially disbursed to Mr. Hudson.
Code § 19.2-271.2 (1981 Cum.Supp.) is at the heart of this controversy. In pertinent part, the section provides:
In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled, nor, without the consent of the other, allowed to be called as a witness against the other, except in the case of a prosecution for an offense committed by one against the other ... and except in the case either is charged with forgery of the name of the other or uttering or attempting to utter a writing bearing the allegedly forged signature of the other.... [Emphasis added.]
Mr. Hudson concedes that, pursuant to the second statutory exception set forth above, his wife was a competent witness against him with respect to the offenses of forgery and uttering charged in the indictment. He says, however, that Mrs. Hudson was not competent to testify on the false pretenses charge. He argues that no specific exception covers this charge and that the general exception, italicized above, merely codifies the common law rule permitting husband and wife to testify against each other only for offenses committed by one against the person of the other; because the false pretenses charge is one against property and not the person, it is not within the exception.
Mr. Hudson relies upon Meade v. Commonwealth, 186 Va. 775, 43 S.E.2d 858 (1947). There, Meade was prosecuted for forging his wife's name to a deed and uttering the forged instrument. The trial court permitted Mrs. Meade to testify against her husband. At the time, Code § 6211, the predecessor of § 19.2-271.2, did not contain the exception relating to forgery and uttering;[3] however, the section did contain the language providing an exception "in the case of a prosecution for an offense committed by one against the other."
We reversed Meade's conviction. We noted that, at common law, neither husband nor wife was a competent witness against the other in a criminal case, "except where the crime was committed against the one testifying" and the offense "amounted to personal violence or a physical assault." 186 Va. at 779, 43 S.E.2d at 860. We said that "no language" in Code § 6211, "save that relating to consent," broadened the common law rule. Id. at 784, 43 S.E.2d at 863. Hence, we held that Mrs. Meade was not a competent witness against her husband.[4]
We have reexamined Meade and believe the case was decided incorrectly. The decision failed to give due consideration to the statutory exception "in the case of a prosecution for an offense committed by one *319 against the other"; indeed, the Meade opinion contains no analysis of this statutory language. The opinion merely assumes that the statutory exception was identical in effect with the common law rule permitting one spouse to testify against the other only for interspousal offenses involving "personal violence" or "physical assault."
This was an erroneous assumption. If, in enacting legislation on the subject, the General Assembly had intended merely to codify the common law, it would have included language limiting the statutory exception to offenses against the person of the injured spouse rather than adopting the broader phrase, "an offense committed by one against the other." We believe the omission of language relating to "the person" is significant; the deletion signifies the legislative intent to alter the common law rule and to permit husband and wife to testify against each other in prosecutions for both personal and property offenses committed by one against the other.
Another consideration prompts reexamination of the Meade decision. Since Meade was decided, we held in Stewart, supra, that a husband may be convicted of stealing his wife's property. If we now follow Meade, we would perpetuate in the law the absurdity that a husband could be prosecuted for the theft of his wife's property, but she could not testify against him, even to identify the property as hers. We avoid this legal paradox and, at the same time, correct our previous decisional error by overruling Meade. We now hold that Code § 19.2-271.2 permits spousal testimony in prosecutions for offenses committed by one spouse against the property as well as the person of the other.
It is undisputed on appeal that the trial of the charge of false pretenses involved in this case was a prosecution for an offense committed by Mr. Hudson against his wife, and not against a third party. Accordingly, the trial court did not err in permitting Mrs. Hudson to testify against her husband. His conviction for all three offenses contained in the indictment will be affirmed.
Affirmed.
NOTES
[1] Because the husband and wife in Stewart had been divorced a mensa at time of trial, she was a competent witness against him. Hence, we found it unnecessary to decide whether she would have been competent in the absence of the divorce.
[2] Under Code § 18.2-178, the obtaining of money by false pretenses is larceny.
[3] The exception concerning forgery and uttering was added in 1958. Acts 1958, ch. 231.
[4] The Attorney General would distinguish Meade on the ground that the offenses there involved were not against the wife but against a third party, viz., the grantee in the forged deed; however, the second count of the indictment charged that Meade uttered and recorded the forged deed "to the prejudice of the rights of [Mrs.] Meade." Hence, Meade is indistinguishable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361062/ | 292 S.E.2d 243 (1982)
STATE of North Carolina
v.
Larry Darnell WILLIAMS.
No. 70A81.
Supreme Court of North Carolina.
June 2, 1982.
*247 Rufus L. Edmisten, Atty. Gen. by Thomas F. Moffitt and Elizabeth C. Bunting, Asst. Attys. Gen., Raleigh, for the State.
Adam Stein, Appellate Defender, Ann B. Peterson and James R. Glover, Asst. Appellate Defenders, Raleigh, for defendant-appellant.
MEYER, Justice.
This appeal presents forty-seven assignments of error for our review. No meaningful *248 summary statement of the numerous issues presented by these assignments is possible. We have grouped the assignments essentially as they are in the defendant's brief. Our conclusion is that there was no error in the proceedings below, and the judgment and sentence of death is affirmed.
The evidence at trial showed that during the dark hours of 2-3 June 1979, Eric Joines was working the third shift at Station Number 5 of Service Distributors on Highway 321 North in Gastonia. His duties were selling gas and oil and collecting money. Sidney Sivvoy Kirksey testified that he had seen Mr. Joines after dark at Service Distributors on 2 June, and had telephoned him at the station later from Belmont and heard voices in the background. Herbert William Frye testified that sometime during the early morning hours of 3 June he and Mack Wright stopped at the station to get some gas and found Mr. Joines lying on his stomach in a puddle of blood with part of the back of his head blown away. The police were summoned to the scene and when Officer Wilson of the Gastonia City Police arrived a few minutes later, at about 4:18 a. m., Mr. Joines was still alive, coughing and gagging. Dr. Sivalingam Siva, an expert in neurosurgery, saw Mr. Joines in the emergency room at Gastonia Memorial Hospital. He testified that in his opinion, the wound in the right side of Mr. Joines' neck was caused by a shotgun blast, possibly from a very close range and that the victim died from lack of oxygen to the brain caused by the gunshot wound.
The testimony of two accomplices, cousins of each other, Linda Massey and Darryl Brawley, established that on the evening of 2 June the defendant, the two witnesses, and another male, not positively identified, were together in Charlotte traveling in a car belonging to Robert Brown, another cousin of Linda Massey. The defendant and Brown had traded cars earlier in the day. The defendant had a 20-gauge sawed-off shotgun with him in the car.
During the course of the evening, the group was drinking alcohol, smoking marijuana, and taking Valium. They traveled onto Interstate 85 and left Charlotte. They later got off the interstate at an exit and passed the service station where Eric Joines worked. They came back up the road to the station and stopped there, apparently "casing" the service station. They then traveled down the road in the opposite direction and once again returned to the service station. The unidentified fourth person and the defendant, with shotgun in hand, went into the booth where Mr. Joines worked and robbed him. The defendant then shot him and they got back into the car with the money from the cash register they had put in a bag.
The defendant chose not to present any evidence during the guilt-innocence phase of the trial. The jury returned a verdict of guilty of first-degree murder under the felony murder rule.
At the sentencing phase, the State presented evidence of only one aggravating circumstance, that the murder of Eric Joines was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons. G.S. § 15A-2000(e)(11). The evidence showed that after the Joines killing in Gastonia, the defendant and the other three occupants of the car proceeded to Concord and there stopped at a Seven-Eleven convenience store. The defendant and the unidentified male entered the store and the defendant returned to the car, got his shotgun and went back into the store where he fatally shot the clerk, Mrs. Susan Verle Pierce. The two then robbed the store of $67.00 in cash.[2]
The defendant presented evidence that he had cooperated with his attorney in a personal injury action, had voluntarily admitted himself to a drug treatment center, had been gainfully employed and was a good *249 worker, had financially assisted his family members and was a loving family member. He also presented evidence tending to impeach the testimony of Darryl Brawley.
The judge submitted, and the jury found, the existence of the one aggravating circumstance. The judge submitted ten mitigating circumstances and the jury found the existence of seven of them:
A. The defendant has no significant history of prior criminal activity.
Answer: Yes
B. The defendant's age at the time of this murder (24 years).
Answer: Yes
C. The defendant was gainfully employed at the time of the murder for which he has been convicted, was a good worker, and had been gainfully employed since he was a teenager.
Answer: Yes
D. The defendant demonstrated a determination to overcome his problems and to try to lead a better life by voluntarily submitting himself for treatment for drug problems in October, 1975 and January and February, 1976.
Answer: Yes
E. Defendant's IQ of 69 is a mitigating circumstance.
Answer: No
F. Defendant's conduct in a normal business manner with Attorney Karl Adkins as to a personal injury case is a mitigating circumstance.
Answer: No
G. The defendant has a good character and reputation.
Answer: Yes
H. The defendant is considerate and loving to his mother and sisters.
Answer: Yes
I. The defendant is a considerate and loving father.
Answer: Yes
J. Any other circumstance or circumstances arising from the evidence which you deem to have mitigating value.
Answer: No
The jury found beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating circumstances and recommended that the defendant be sentenced to death. Judgment was entered pursuant to this recommendation.
I. PRETRIAL MOTIONS AND JURY SELECTION
The defendant assigns as error (Assignments Nos. 21 and 22) the trial court's excusal for cause of the three veniremen, Robertson, Melton, and Williams. The defendant argues that these three potential jurors were improperly excused for cause and thus the defendant was deprived of his life without due process of law and his right to trial by jury.
This argument concerns the trial court's excusal for cause during voir dire of the three veniremen because of their responses to the Witherspoon v. Illinois[3] "death qualification" questions.
The applicable constitutional standard permits the excuse of a potential juror for cause if it is established that he `would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case ....' Witherspoon v. Illinois, 391 U.S. 510, 522 at n. 21, 88 S.Ct. 1770, 1777 [at n. 21], 20 L.Ed.2d 776, 785 [at n. 21] (1968); see State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980).
State v. Pinch, ___ N.C. ___, 292 S.E.2d 203 (1982). The defendant contends that the three jurors excused for cause on this basis did not unequivocally state that they were so unalterably opposed to the death penalty that they would be unwilling to vote in favor of the death sentence no matter how aggravated the facts and circumstances turned out to be. The record reveals that this contention is without merit, for considering contextually their responses to the questions propounded, the potential *250 jurors expressed sufficient refusal to follow the law of capital punishment, should it become applicable to the case, to justify their excusal for cause. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980).
The record reveals that Frances Williams unequivocally stated that she would not impose the death penalty:
EXAMINATION By the Court:
....
Q. All right. Now, if you answered each of those yesthat you found beyond a reasonable doubt there were aggravating circumstances, you found beyond a reasonable doubt that they were sufficiently substantial to call for the imposition of the death penalty, and you also found that the aggravating circumstances beyond a reasonable doubt outweighed the mitigating circumstances, would you then vote to impose the death penalty?
A. I just don't feel like I could impose the death penalty.
Q. Not even if you were satisfied beyond a reasonable doubt of those things?
A. No I feel life imprisonment.
MR. CLONINGER: Could I ask her one more question?
COURT: (Nods his head.)
EXAMINATION By Mr. Cloninger:
Q. Mrs. Williams, you understand that unless you were convinced beyond a reasonable doubt that the aggravating circumstances were sufficiently substantial to require the death penalty you would not be required to recommend a sentence of death?
A. Um-hum.
Q. All right. Knowing that, again I ask you could you not follow the law that His Honor gives you and apply it and make your own determination based on the law His Honor gives you and the evidence that you'll hear at the sentencing hearing?
A. Well, I understand that, you know, I have to take the evidence into consideration, and I realize that the law with the death penaltyI understand that that is one of the penalties, but I just don't feel the death penalty is right. That's just
Q. Yes, ma'am. I understand that. I understand your feelings. Do you understand that you would not be required under the law to make a recommendation of the sentence of death unless you yourself were personally satisfied beyond a reasonable doubt that the aggravating circumstances that the State alleged were sufficiently substantial to justify in your mind a recommendation of a death sentence? Do you understand that?
A. Right. I have to feel that it'sthat that the evidence is all there and that in my mind I feel like that that'sthat's what you are trying to tell me, right?
Q. What I'm trying to tell you, I guess, is you understand that you are not required to make a recommendation of a sentence of death unless you are satisfied beyond a reasonable doubt that the aggravating circumstances are so badare so substantiallyare so sufficiently substantial to require in your mind the imposition of the death sentence? If you are not convinced beyond a reasonable doubt of that in your mind, you are not required to make a recommendation of death. Now, again I ask you could you not do that?
A. I could in my mind think and decide, yes, how I felt.
COURT: Well, Mrs. Williams, if you were satisfied of all those things beyond a reasonable doubt, then would you invoke to impose the death penalty?
A. I just don't feel like that I could.
The same is true of Mrs. Robertson:
EXAMINATION By the Court:
....
Q. If you serve as a juror in this case, could and would you if called upon to do so make a sentence recommendation of life imprisonment or death in accordance with the law of North Carolina as that will be explained to you by the court, or would you be unable to do so regardless of the law and the facts and circumstances and evidence because of your conscientious beliefs as to the proper punishment for first-degree murder?
*251 A. I believe I would be unable to.
Q. You feel that in spiteyou could not follow the lawthat ifeven though the State has satisfied you beyond a reasonable doubt of the things it is required to so satisfy you under the law that you could not return a recommendation of punishment of death because of your beliefs about that?
A. I believe I could not.
....
EXAMINATION By Mr. Cloninger:
Q. Do you feel if you were selected as a juror that you could consider the death penalty if it became necessary to consider it, that you could discuss it with other jurors, that you could discuss the law, and you could discuss the evidence in the case? You could consider it, couldn't you?
A. I could discuss the evidence, yes. I'm not too sure about discussing the death penalty.
Q. Well, you could discuss it with other jurors, couldn't you?
DISTRICT ATTORNEY: OBJECTION to arguing with the witness.
COURT: Go ahead.
Q. Do you feel like you could discuss it?
A. I'm not sure.
Q. All right, and I ask youthere are some circumstancessome aggravating circumstances which are so serious, so severe that you could consider the death penalty as an appropriate sentence and consider recommending it, couldn't you?
A. No.
Q. Under no circumstances?
A. I don't believe so.
The record concerning Mrs. Melton consists of the following questions by the Court and her answers thereto:
EXAMINATION By the Court:
....
Q. Now, if you serve as a juror in this case, could and would you if called upon to do so make a sentence recommendation of life imprisonment or death in accordance with the law as it will be explained to you by the court, or would you be unable to do so regardless of the law and the facts and circumstances revealed by the evidence because of some conscientious belief as to the proper punishment for first-degree murder; that is, that you conscientiously feel that it should in all cases be life in prison or you feel in all cases it should be the death penalty?
A. Your Honor, I'm not sure I could say that someone else had to die. I'm not sure I could do that.
Q. Well, it'sthis is something we have to determine at this statewhether you if you serve as a juror could follow the law of North Carolina and if you are satisfied beyond a reasonable doubt of those things which the law requires you to be satisfied you could then return a recommendation of the death penalty.
A. I'm not positive I could do that. I've never been called on to do that, and I'm not sure that I could live with my conscience.
Q. Well, do you have conscientious beliefs about the death penaltyreligious beliefs about it?
A. Yes.
Q. And you do not feel that you could follow the instructions of the court if you were satisfied beyond a reasonable doubt of the things of which you must be satisfied. If those conclusions would call for the death penalty, you don't feel you could make such a recommendation?
A. I'm not sure that I could.
The fact that her negative responses were phrased as "I'm not sure I could" or "I'm not positive I could" does not equivocate her refusal to follow the law as given by the judge to such an extent as to make the challenge for cause improper. State v. Avery, 299 N.C. 126, 261 S.E.2d 803. It is apparent that Mrs. Melton was "irrevocably committed before the trial [began], to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).
The defendant argues in connection with his Assignments 21 and 22 that the *252 judge suggested that the defendant was obligated to examine the potential jurors about their death penalty feelings. This contention presents a misinterpretation of the judge's remarks. The exchange upon which the contention is based is as follows:
[By the Court:]
Q. Do you wish to ask her any questions?
DISTRICT ATTORNEY: The State would challenge her for cause.
MR. CLONINGER: We don'tI don't wish to ask her any questions, Your Honor.
COURT: All right. The challenge for cause is allowed. Thank you, Mrs. Melton. I'm going to ask you to go up to Courtroom B. Judge Kirby will know whether he needs you for any other case. Okay. Thank you.
MR. CLONINGER: Could we for the record enter an objection to the exclusion of that juror, Mrs. Melton?
COURT: Now, gentlemen, I'm not going toif you want to try to rehabilitate a juror, you're going to do it. I'm not going to play games. Now, I gave you an opportunity to ask any questions you wanted to ask. What's the next juror's name?
There is no indication that the judge was placing the burden of "death disqualification" on the defense. The judge was merely admonishing defense counsel of his duty of effective representation. By further questioning, the defense possibly could have shown that the potential juror did not actually mean to say that he or she could not return a recommendation of death no matter what the circumstances.
The defendant was not denied his constitutional rights to due process of law or trial by jury by the excusal of these jurors for cause. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Avery, 299 N.C. 126, 261 S.E.2d 803; State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). Assignments of Error Nos. 21 and 22 are overruled.
The defendant assigns as error (Assignments Nos. 1, 2 and 3) the trial court's failure to dismiss the indictment and to strike the venire of petty jurors on the ground that the grand and petty venires were discriminatorily selected and failed to represent a cross-section of the community. He further assigns as error the trial court's denial of defendant's motion that the court order the State of North Carolina to provide funds to hire a statistician to assist the defendant in his challenge to the array of the grand jury and the composition of the petty jury venire.
In ruling on these motions, the court found that it had been stipulated between the State and the defendant that the compilation of the master jury panel list for Gaston County, from which the members of the grand jury returning the indictments in this case were drawn, and the master panel, from which the venire of the trial jurors had been drawn for the trial in this case, were selected in accordance with the provisions of Chapter 9 of the General Statutes of North Carolina, i.e. from the voter registration lists and the property tax lists for the county. The State and the defendant also stipulated that there was no evidence of any intentional discrimination upon the grounds of race in preparing these lists. The court concluded therefore as a matter of law that the procedure followed was in conformity with the Constitution of the United States and the Constitution of North Carolina. Defendant's counsel did not investigate other sources from which information as to the racial computation of the master jury panel might be determined. Based on these factors, the judge properly denied the defendant's motions to dismiss the indictment. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).
The trial court also properly denied the defendant's motion for a State-funded statistician. Our cases have established the rule that an expert assistant, in this case a statistician, must be provided "only upon a showing by the defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation *253 of his defense or that without such help it is probable that the defendant will not receive a fair trial." State v. Gray, 292 N.C. 270, 279, 233 S.E.2d 905, 911 (1977); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976).
The defendant also argued that it was error for the trial court to deny his motion for a court-appointed expert to aid him in his challenge to the jury compositions in his appeal to this Court of his Cabarrus County murder conviction. State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437 (1981). There, this Court pointed out that the defendant had made no showing of a reasonable likelihood that the appointment of a statistician would have materially assisted him in the preparation or presentation of his contentions and thus overruled the assignment of error. The defendant concedes that he made no stronger showing of a reasonable likelihood that a statistician would be of material assistance in this case than he did in the Cabarrus County case, but asks the court to reconsider its rulings on this issue. We reaffirm our prior rulings, and Assignments of Error Nos. 1, 2 and 3 are overruled.
In Assignment of Error No. 15, the defendant contends that the court erred in denying his motions to allow him to participate as co-counsel in the trial and to participate in voir dire. This same argument also was rejected in Williams (I). We reaffirm our ruling there:
Although a criminal defendant cannot be required to accept the services of court-appointed counsel, (citations omitted) we have previously said that a criminal defendant cannot represent himself and, at the same time, accept the services of court-appointed counsel. State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978), answered this very question as follows:
It is well settled that a defendant in a criminal action has a right to represent himself at the trial and cannot be required to accept the services of court-appointed counsel. (Citations omitted.) It is, however, equally well settled that `[a] party has the right to appear in propria persona or by counsel, but this right is alternative,' so that `one has no right to appear both by himself and by counsel.' (Citations omitted.) Thus, while the defendant elected to retain the services of the court-appointed counsel, the court did not err in holding that the interrogation of prospective jurors and of witnesses must be done through his counsel.
Id. at 204, 244 S.E.2d at 662.
The Court's decision in House clearly answers the question posed by this assignment of error adversely to defendant's contention.
Williams (I) at 407, 284 S.E.2d at 446.
This assignment of error is overruled.
The defendant next argues that (Assignments of Error Nos. 7, 16, 17, 18, 19, 20, and 41):
[T]he procedure set out in G.S. § 15A-2000(a)(2) for death qualifying a jury prior to the guilt phase and requiring the same jury to hear both the guilt phase of the trial and the penalty phase of the trial is unconstitutional. It is the defendant's contention that "death qualifying" the jury prior to the guilt phase results in a guilt prone jury; thereby depriving the defendant of his right to a fair trial, a fair sentencing hearing and freedom from cruel and unusual punishment, all guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In addition, the defendant contends that the process of `death qualifying' the jury and excluding for cause those jurors who express opposition to the death penalty deprives the defendant of his rights to equal protection of the laws, a jury chosen from a cross-section of the community and due process of law, all guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
As acknowledged by the defendant, this Court has decided these issues against the defendant, and the assignments of error *254 upon which this argument is made are without merit. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981); State v. Avery, 299 N.C. 126, 261 S.E.2d 803.
II. GUILT-INNOCENCE PHASE
Under Assignments of Error Nos. 33 and 34, the defendant argues that the admission of Officer Rivelle's testimony to the effect that defendant chose to exercise his right to remain silent and waived his right to counsel deprived the defendant of his right to remain silent, his right to counsel, and his right to due process of law.
Officer Rivelle testified in pertinent part as follows:
DIRECT EXAMINATION By District Attorney:
I know the defendant, Larry Darnell Williams. I talked to him on or about June 11, 1979. I advised him of his rights as to self-incrimination. His rights were advised to himhis constitutional rights. He appeared to understand those rights. After I read him his rights, I told him I wanted to talk to him about a robbery and a shooting that happened in Gastonia on June 3, 1979, in the early morning hours.
Q. Now, what, if anything, did Mr. Williams say to you when you made that statement to him?
MR. CLONINGER: OBJECTION.
COURT: OBJECTION OVERRULED.
He stated that he didn't know anything about any robbery or homicide. That he didn't do capital crimes. When I asked him whether he was in Gastonia the 3rd of June, in the early morning hours, he told me that he'd been in Charlotte at that time with Linda Massey and a fourteen year old boy and they were smoking reefers and drinking wine.
Q. And what else was saiddid you say to him or did he say to you after that?
A. He said he didn't rob or kill anybody and that he wanted to talk to a lawyer.
Q. And what, if anything did you do when he requested the presence of a lawyer?
A. There was no more questioning.
Defendant contends that the admission of the answers to the last two questions violated his right to remain silent and his right to counsel, citing the rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
Doyle concerns the use of defendant's silence after Miranda warnings for impeachment purposes. The testimony given here was during the State's case-in-chief. Thus, the thrust of the defendant's argument is based on a paragraph from footnote number 37 of the Miranda opinion:
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecutor may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.
This Court has often recognized that it is impermissible to use the accused's silence in the face of an accusation to imply guilt. See State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. Caster, 285 N.C. 286, 204 S.E.2d 848 (1974). However, that rule does not apply here. When informed of the topic which the police officer wanted to discuss, the defendant chose not to remain silent. He emphatically denied his guilt, and when finished with his denial, said he wanted to talk to a lawyer; thus the officer, as required by Miranda, did not question him further. There was no specific incriminating accusation leveled at the defendant at the time he asserted his rights which defendant, by his silence, might be said to have admitted. See State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978). Compare State v. McCall, 286 N.C. 472, 212 S.E.2d 132, wherein, after the officer advised the defendant that he had a warrant for his arrest for the killing of Mr. and Mrs. Hice and asked him why he killed them, defendant immediately asserted his right to remain silent.
*255 It is apparent from the reading of this testimony that the State did not use the defendant's request for an attorney to infer guilt. The trial court conducted a voir dire hearing and concluded that the defendant had been fully advised of his Miranda rights and had knowingly and intelligently waived them and voluntarily made the statements to which the officer testified. Thus, they were admissible against him at trial. These assignments of error are overruled.
In Assignments of Error Nos. 36 and 49, defendant argues that he was prejudiced by the prosecutor's improper comments on his failure to testify or offer evidence to contradict the State's evidence; that the court's instructions did not cure the error; and that the court erred further in denying defendant's motion for appropriate relief on this basis.
The prosecution is privileged, when appropriate, to argue that the State's evidence is uncontradicted, and such argument may not be held improper as a comment upon the defendant's failure to testify. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301 (1976). Any contradictions existing could have been shown by the testimony of others or by cross-examination of the State's witnesses themselves. Thus the prosecutor's arguments concerning lack of cross-examination or rebuttal evidence to contradict the State's case are not improper.
When the prosecutor argued that the jury had "neither heard by cross-examination or direct evidence on behalf of Mr. Williams that he was not there," the court immediately sustained defense counsel's objection and instructed the jurors that they would "not consider any reference about Mr. Williams refuting anything." The court later instructed the jury that defendant's decision not to testify created no presumption against him and was not to influence their decision in any way.
Ordinarily a prosecutor's reference to the failure of the defendant to testify or to offer evidence in his defense is cured by the trial court's promptly instructing the jury not to consider it. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); State v. Lindsay, 278 N.C. 293, 179 S.E.2d 364 (1971). The defendant's Memorandum of Additional Authority cites State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975), for the premise that a curative instruction by the judge does not always cure highly improper statements made by a prosecutor during closing arguments or improper cross-examination by a prosecutor. While we agree with this premise, we point out that the improper comment in this case does not compare with the highly improper cross-examination and comments by the prosecutor in Britt. The court's instructions in this case cured any error in the prosecutor's comments.
Further, defense counsel did not object at trial to all of the comments which are assigned as error. Unless the improper argument was so prejudicial that no instruction by the court could have removed it from the minds of the jury had an objection been seasonably made, an objection to the argument must be made before the verdict in order to preserve the error. State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976).
Assignments of Error Nos. 36 and 49 are overruled.
The defendant assigns as error (Assignments Nos. 25, 37, 38, 68, and 69) the trial court's failure to instruct the jury completely concerning the plea bargains of Linda Massey and Darryl Brawley. The defendant contends that since these witnesses' plea agreements provided that their ten-year sentences for accessory after the fact to the murder of Eric Joines would run concurrently with the ten-year sentences for accessory after the fact to the Concord murder, their effect was to provide a grant of immunity in this case and thus the judge should have informed the jury of their immunity *256 pursuant to G.S. § 15A-1052.[4] This contention is without merit.
Neither Linda Massey nor Darryl Brawley were granted immunity in this case. Their agreement was to plead guilty to accessory after the fact to the murder of Eric Joines for a sentence of ten years to run concurrently with their sentences in the Concord murder.
The applicable statute here is G.S. § 15A-1054:
Charge reductions or sentence concessions in consideration of truthful testimony.(a) Whether or not a grant of immunity is conferred under this Article, a prosecutor, when the interest of justice requires, may exercise his discretion not to try any suspect for offenses believed to have been committed within the judicial district, to agree to charge reductions, or to agree to recommend sentence concessions, upon the understanding or agreement that the suspect will provide truthful testimony in one or more criminal proceedings.
(b) Recommendations as to sentence concessions must be made to the trial judge by the prosecutor in accordance with the provisions of Article 58 of this Chapter, Procedure Relating to Guilty Pleas in Superior Court.
(c) When a prosecutor enters into any arrangement authorized by this section, written notice fully disclosing the terms of the arrangement must be provided to defense counsel, or to the defendant if not represented by counsel, against whom such testimony is to be offered, a reasonable time prior to any proceeding in which the person with whom the arrangement is made is expected to testify. Upon motion of the defendant or his counsel on grounds of surprise or for other good cause or when the interests of justice require, the Court must grant a recess.
This statute, unlike G.S. § 15A-1052, contains no requirement that the judge inform the jury of any agreement concerning charge reduction or sentence consideration.
The defense had the right and the opportunity both to cross-examine the witnesses about their arrangements and to argue to the jury with respect to the impact of the arrangements upon their credibility. See G.S. § 15A-1055. Indeed Mr. Brawley was cross-examined concerning his arrangement (Record at 124), and defense counsel in his argument to the jury repeatedly reminded the jury of both the witnesses' bargains:
[T]he two individuals that have accused the defendant in this case, as I argued and contended to you before, are the two most interested people in the outcome of this case, next to the defendant over here. The two people who have gained the most from this trial.
... We told you that the heart of this case rested in the testimony of the accomplices, and throughout this trial, I consider it to be one of the most amazing things I've ever seen that we have not heard or seen, to my way of thinking, one shred of evidencenot one shred of evidence that supports or lends credibility to these two peoplethe two people I've told you under the law fall in the category *257 of the most untrustworthy kind of witnesses you can offer, and that is what is known as accomplicesan accomplice's testimony, and I will go into that later.
....
... [Linda Massey and Darryl Brawley] are currently charged with armed robbery and murder although they are going to be permitted to plead to something much less.
....
... [T]he more severe the penalty, the more likely, I argue and contend to you, that accomplice testimony is liable to be false.
It is human nature of the basest form for people to try to shun responsibility for criminal and immoral acts on other people. It is a natural tendency in all of us, and how much more natural and how much more probable when the false testimony or the testimony which we argue and contend to you is false is given by people who face a possible death sentence or possibly two life sentences and who in exchange for their testimony are able to receive a maximum sentence of ten years and I argue and contend to you that in at least one case, the possibility of release much sooner than thatmuch sooner.....
Mrs. Massey has gotten the best of both worlds, ladies and gentlemen. She got her deal from the State on the one hand, and she didn't have to directly accuse anybody of anything. The difference between Brawley and Massey, I think, is that Brawley really enjoys what he's doing up there, and Mrs. Massey doesn't. The one thing that they have in common is that both of them were facing death or two life sentences, and now, they are facing a maximum of ten years. Her testimony is preposterousabsolutely preposterous.....
... [Darryl Brawley] has been given the deal of a lifetime, as I've pointed out to you.
In addition, the State entered into evidence the following stipulation:
That Linda Massey was charged in Gaston County with murder in the first degree and armed robbery and that the State of North Carolina agreed with Linda Massey that in exchange for her truthful testimony that the State would allow her to plead guilty to accessory after the fact of murder and that she receive a sentence of ten years and that this sentence would run concurrent with any other sentence that she might now be serving.
During closing arguments, the State too reminded the jury of the agreements made with Massey and Brawley. Moreover, during the guilt determination phase, the judge instructed the jury that:
Each of these witnesses has testified under an agreement with the prosecutor for a charge reduction in exchange for that witness' testimony. I instruct you that if you find that either of these witnesses testified in whole or in part for this reason it is your duty to scrutinize that witness' testimony with great care and caution in deciding whether or not to believe him. If after doing so you believe the testimony in whole or in part, you should then treat what you believe the same as any other believable evidence.
And there is evidence which tends to show that these witnesses may have been accomplices in the commission of the crimes charged in these cases. An accomplice may actually take part in acts necessary to accomplish a crime or may help or encourage another in a crime either before or during its commission. An accomplice is considered by the law to have an interest in the outcome of the case.
If you find that either of these witnesses was an accomplice, you should examine every part of that witness' testimony with the greatest care and caution. If after doing so you believe the witness' testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
Later, during the sentencing phase, he again instructed the jury concerning the witnesses' arrangements.
*258 The fact that these witnesses had made arrangements for charge reductions in exchange for their testimony was clearly before the jury. Assignments of Error Nos. 25, 37, 38, 68, and 69 are overruled.
III. SENTENCING
In Assignments of Error Nos. 35, 40, 47, and 48, the defendant argues that the judgment and sentence for the felony murder of Eric Joines deprived him of his right to be free from double jeopardy, violated the rules of res judicata and collateral estoppel, constituted an unlawful multiple use of aggravating circumstances, and amounted to cruel and unusual punishment. Thus, the defendant contends that the trial court erred in denying his motions to dismiss the charges against him and to strike the aggravating circumstance of the Concord robbery-murder, in denying his motion for a directed verdict of life imprisonment at the end of the State's case and instead sentencing him to death, and in precluding the defendant from presenting certain evidence which he sought to introduce at the sentencing phase of the trial.
The trial judge submitted to the sentencing jury in this case the aggravating circumstance that the murder of Eric Joines was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person, i.e., the robbery-murder of Susan Verle Pierce in Concord.[5] The jury found the existence of this circumstance, found that it was sufficiently substantial to call for imposition of the death penalty, found that it outweighed the seven mitigating factors they found, and recommended the death penalty. Prior to this trial, the defendant had been convicted of the murder of Mrs. Pierce in Cabarrus County. The murder of Eric Joines was found by the sentencing jury in the Concord robbery-murder case in Cabarrus County as an aggravating circumstance and the defendant received a death sentence for the Cabarrus County murder.[6]
The defendant argues that the use of the Gaston County Joines murder as an aggravating circumstance in the punishment phase of the Cabarrus County Pierce murder trial (1) precludes the use of the Pierce murder as an aggravating circumstance in the Joines murder trial and (2) precludes even trying the defendant in Gaston County for the Joines murder. We do not agree. This same argument was advanced and rejected by this Court in State v. Pinch, ___ N.C. ___, ___, 292 S.E.2d 203, 226 (1982):[7]
[T]he principle of double jeopardy has not evolved, as defendant argues, to the point that it prevents the prosecution from relying, at the sentencing phase of a capital case, upon a related course of criminal conduct by the defendant as an aggravating factor to enhance the punishment of defendant for another distinct offense, and this is so, irrespective of whether the defendant was also convicted of another capital charge arising out of that very same course of criminal conduct and subjected to separate punishment therefor.
The principle of double jeopardy likewise does not preclude the trial of the defendant for the other capital crime. The defendant was not convicted of nor punished for the murder of Joines in the prior trial. The defendant has been convicted and sentenced only once for the murder of Joines and will only once be punished therefor. There exists no prohibition for his trial for the murder of Eric Joines, nor the use of the other murder for which he stands convicted as an aggravating circumstance.
*259 Further, the defendant argues that the court erred in excluding as irrelevant evidence offered by the defendant regarding the lack of any deterrent effect of the imposition of the death penalty, the rehabilitative nature of people who have committed even heinous crimes, and the manner of execution in North Carolina. This contention is without merit, as such evidence is irrelevant. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551. Assignments Nos. 35, 40, 47 and 48 are overruled.
In Assignments of Error Nos. 58, 72, 73, 80 and 83, the defendant, argues that his sentence of death for felony murder in this case is an excessive and disproportionate penalty constituting cruel and unusual punishment; thus the trial court should have directed a verdict of life imprisonment, declared the death penalty statute unconstitutional, instructed the jury that the death sentence could be imposed only if it found that the defendant personally committed the acts causing death and intended to cause death, and refused to enter a judgment of death.
The constitutionality of our death penalty statute has been repeatedly upheld. See, for example, State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976); State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975); State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975), reversed on other grounds, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The specific contention that the imposition of the death penalty for felony murder constitutes cruel and unusual punishment has also been rejected by this Court. State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568 (1975), cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301 (1976). This Court has repeatedly upheld the death penalty in felony murder cases. State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437; State v. Taylor, 304 N.C. 249, 283 S.E.2d 761; and State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788.
Just as the Legislature acts within its constitutional power in defining first-degree murder to include felony murder, it is also within its constitutional power to determine that first-degree murder, including felony murder, may be punished by death, providing that the death penalty statute itself is constitutional. See State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982). We do not find that the death penalty imposed below amounts to cruel and unusual punishment. These assignments of error are overruled.
The defendant assigns as error (Assignment No. 50) the court's permitting the prosecutor on cross-examination of S. B. I. Agent B. M. Lee during the sentencing phase to elicit testimony concerning Darryl Brawley's prior inconsistent statements given to Agent Lee. The defendant argues that by this testimony, the State was permitted to impeach its own witness, Darryl Brawley. This is not the case. Darryl Brawley admitted on defendant's cross-examination in the guilt-innocence phase of the trial that he had changed his story about the robbery-murder several times. During the sentencing phase of the trial, in an attempt to impeach the testimony of Brawley, the defendant called S. B. I. Agent B. M. Lee as a witness. Agent Lee testified that he had a series of interviews with Brawley. The defense questioned him only about the first interview, which was inconsistent with Brawley's trial testimony. The State's cross-examination of Agent Lee elicited the contents of his other interviews of Brawley which corroborated Brawley's testimony that he kept changing his story. Thus, the rule against the State impeaching its own witness has no application here. There was no error in the State's eliciting testimony corroborating Brawley's earlier testimony after the defendant's attempt to impeach his credibility. See State v. Carter, 293 N.C. 532, 238 S.E.2d 493 (1977). Assignment of Error No. 50 is overruled.
The defendant assigns as error (Assignment No. 51) the trial judge's overruling of his objection to certain testimony of Agent Lee during the sentencing proceedings and the court's refusal to permit him to make known the nature of his objection *260 out of the presence of the jury. The defendant contends that the witness Lee's reference to "Polygraphist Mike Humberg" when being cross-examined about Brawley's prior statement was a deliberate attempt to convey to the jury the impression that the statement given by Brawley on 11 June implicating the defendant was confirmed by a polygraph examination. This contention is without merit; it is based on mere speculation. Furthermore, the jury cannot be deemed to have inferred that a polygraph examination was conducted from the one isolated use of the word polygraphist. Throughout the rest of his testimony, Agent Lee referred to Mike Humberg as Mr. Humberg or Officer Humberg. No mention of any polygraph examination was ever made. Counsel may approach the bench only with the judge's permission. Rule 12, North Carolina General Rules of Practice for Superior and District Courts. The court gave counsel ample opportunity to state the basis for his objection, but he failed to do so. Although the objection was overruled, Mr. Humberg was not referred to as "polygraphist" again. There exists no reversible error here. The assignment of error is overruled.
The defendant argues that it was error (Assignments Nos. 45, 79, 85, and 86) for the judge to enter the judgment of death because the death penalty statute, and specifically G.S. § 15A-2000(e)(11), is unconstitutionally vague and because there was insufficient evidence to find beyond a reasonable doubt the existence of the aggravating circumstance submitted in this case.
In the sentencing phase, the State relied on a single aggravating circumstance, that provided in G.S. § 15A-2000(e)(11):
The murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons.
The defendant argues that the term "course of conduct" is vague and indefinite, and that for some of its possible meanings, the Joines killing and the Pierce killing were not part of the same course of conduct.[8] We do not agree.
Sentencing standards are by necessity somewhat general. While they must be particular enough to afford fair warning to a defendant of the probable penalty which would attach upon a finding of guilt, they must also be general enough to allow the courts to respond to the various mutations of conduct which society has judged to warrant the application of the criminal sanction. See Gregg v. Georgia, 428 U.S. at 194-195, 49 L.Ed.2d at 886-887, 96 S.Ct. at 2935. While the questions which these sentencing standards require juries to answer are difficult, they do not require the jury to do substantially more than is ordinarily required of a factfinder in any lawsuit. See Proffitt v. Florida, 428 U.S. at 257-258, 49 L.Ed.2d at 926, 96 S.Ct. at 2969. The issues which are posed to a jury at the sentencing phase of North Carolina's bifurcated proceeding have a common sense core of meaning. Jurors who are sitting in a criminal trial ought to be capable of understanding them and applying them when they are given appropriate instructions by the trial court judge. See Jurek v. Texas, 428 U.S. at 279, 49 L.Ed.2d at 939, 96 S.Ct. at 2959 (White, J., concurring).
State v. Barfield, 298 N.C. 306, 353, 259 S.E.2d 510, 543 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137, rehearing denied, 448 U.S. 918, 101 S.Ct. 41, 65 L.Ed.2d 1181 (1980), and ___ U.S. ___, 102 S.Ct. 693, 70 L.Ed.2d 261 (1981). We are not persuaded that the term "course of *261 conduct" is unconstitutionally vague or without definition. This Court has rejected such arguments before. State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510. The trial judge instructed the jury concerning the aggravating factor as follows:
Now, ladies and gentlemen, the murder of Eric Joines by the defendant was part of such a course of conduct if it and other crimes of violence were parts of a pattern of intentional acts directed toward the perpetration of such crimes of violence which establishes that there existed in the mind of the defendant a plan, scheme, or design involving both the murder of Eric Joines and other crimes of violence.
In order for you to answer this issue yes, the State must satisfy you beyond a reasonable doubt of these things:
First, that the defendant himself or acting in concert with another person took or attempted to take money from the person or presence of Mrs. Pearce at the Seven-Eleven store.
As I instructed you at the end of the first phase of this trial, it is not necessary for a person himself to do all the acts required to constitute a crime in order for him to be guilty of that offense. If two or more persons act together with a common purpose to commit a crime, each is held responsible for the acts of the other.
Secondly, the State must satisfy you beyond a reasonable doubt that the defendant himself or acting in concert with another person carried away the money or attempted to do so.
Third, that Mrs. Pearce did not voluntarily consent to the taking and carrying away of the property.
Fourth, that at the time of the taking or of the attempt to take the property the defendant himself intended to deprive Mrs. Pearce of its use permanently.
Fifth, that the defendant knew that he was not entitled to take the property.
Sixth, that the defendant himself or acting in concert with another person had a firearm in his possession at the time the property was taken or attempted to be taken.
Seven, that the defendant himself or acting in concert with some other person obtained or attempted to obtain the property by endangering or threatening the life of Mrs. Pearce with the firearm.
Eight, that while committing or attempting to commit such robbery the defendant himself or acting in concert with some other person shot Mrs. Pearce with a firearm.
Nine, that the shooting was a proximate cause of Mrs. Pearce's death.
A proximate cause is a cause without which her death would not have occurred.
Ten, that the robbery and killing of Mrs. Pearce were part of a pattern or plan of the same or similar type intentional acts as those involved in the murder of Eric Joines.
Eleven, that there existed in the mind of the defendant a plan, scheme, or design involving the robbery and killing of Eric Joines and the robbery and killing of Mrs. Pearce.
The defendant's behavior clearly comes within the conduct intended by the Legislature to be covered. Assignments numbered 45, 79, 85 and 86 are overruled.
In Assignments of Error Nos. 60 and 78, defendant argues that the court erred in refusing to submit to the jury as a specified mitigating circumstance the fact that two accomplices received a plea bargain whereby the maximum punishment for their involvement would be limited to ten years in prison. While recognizing that the Court has rejected the same contention in State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981), the defendant requests that we reconsider our holding there. We reaffirm that holding. The fact that the defendant's accomplices received a lesser sentence is not an extenuating circumstance. It does not reduce the moral culpability of the killing nor make it less deserving of the penalty of death than other first-degree murders. See State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788. The accomplices' punishment is not an aspect of the defendant's character or record nor a mitigating circumstance of the *262 particular offense. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). It bears no relevance to these factors, and thus there was no error in the judge's refusal to submit it to the jury. Moreover, the fact of the accomplices' bargains were before the jury, and had they deemed it a mitigating circumstance, they could have so considered it under the catch-all "any other circumstance ...." G.S. § 15A-2000(f)(9). These assignments are overruled.
In Assignment of Error No. 59, the defendant argues that the court erred in refusing to submit to the jury the defendant's use of alcohol on the night of the crime as a mitigating circumstance. There was no expert psychiatric or other evidence introduced to show that his capacity to appreciate the criminality of his conduct was impaired by alcohol, and therefore the trial court was correct in not submitting the mitigating factor in G.S. § 15A-2000(f)(6).[9] Yet, defendant contends that the fact that he drank some alcohol on the evening of the crime should have been submitted for the jury's consideration as a general mitigating circumstance. We do not agree. We do not believe that the Legislature intended the mere ingestion of alcohol to be a mitigating circumstance. "If this were true, every murderer, conceivably, would consume strong drink before taking his victim's life." State v. Goodman, 298 N.C. 1, 32, 257 S.E.2d 569, 589 (1979). There was no contention that the defendant was intoxicated nor that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. This assignment must be overruled.
In Assignments of Error Nos. 74 and 75, the defendant argues that placing the burden on him to prove the mitigating circumstances by a preponderance of the evidence and failing to require the State to prove the absence of the existence of mitigating circumstances beyond a reasonable doubt is error. While recognizing that this Court has decided this issue against him, the defendant requests that we reconsider our position. We reaffirm our position and these assignments are overruled. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Barfield, 298 N.C. 306, 259 S.E.2d 510; State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979).
In Assignments of Error Nos. 81 and 82, defendant requests that we re-examine our prior rulings concerning the constitutionality of the death penalty and vacate the sentence imposed in this case on the grounds that the death penalty is applied in a discretionary and discriminatory manner. We adhere to our prior rulings, and these assignments of error are overruled. State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437; State v. Barfield, 298 N.C. 306, 259 S.E.2d 510.
In Assignments of Error Nos. 63, 70, and 71,[10] the defendant argues, as did the defendant in State v. Pinch, that it was error for the prosecutor to argue and the court to instruct the jury that if they found beyond a reasonable doubt that the aggravating circumstance existed, that it was substantially sufficient to call for the imposition of the death penalty, and that it outweighed any mitigating circumstance or circumstances found, then it would be their duty to recommend that the defendant be sentenced to death. We note that the court also instructed that if the jury did not find beyond a reasonable doubt any one or more of these, it would be their duty to recommend life imprisonment. As this Court pointed out in Pinch, this argument by the prosecutor and this instruction by the court *263 are entirely proper. The defendant argues that it withdraws from the jury its final option to recommend life imprisonment notwithstanding its earlier findings. As we stated in Pinch:
The jury had no such option to exercise unbridled discretion and return a sentencing verdict wholly inconsistent with the findings it made pursuant to G.S. 15A-2000(c). The jury may not arbitrarily or capriciously impose or reject a sentence of death. Instead, the jury may only exercise guided discretion in making the underlying findings required for a recommendation of the death penalty within the `carefully defined set of statutory criteria that allow them to take into account the nature of the crime and the character of the accused.' State v. Johnson, 298 N.C. 47, 63, 257 S.E.2d 597, 610 (1979); see State v. Barfield, 298 N.C. 306, 349-52, 259 S.E.2d 510, 541-43 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980).
State v. Pinch, ___ N.C. ___, ___, 292 S.E.2d 203, 227, (emphases original).
The defendant argues that even if the jury fails to find sufficient mitigating circumstance(s) which outweigh the aggravating circumstance(s) found, it may still, in its discretion, impose a sentence of life imprisonment. We find no authority for that position in G.S. § 15A-2000(e) or elsewhere. In several cases the jury has indeed done just that and returned a recommendation of life imprisonment. State v. Taylor (I), 298 N.C. 405, 259 S.E.2d 502 (1979); State v. King, 301 N.C. 186, 270 S.E.2d 98 (1980). While this was error, it was error favorable to the defendant from which the State could not appeal.
In two other cases wherein the jury found that the aggravating circumstances outweighed the mitigating circumstances but did not recommend a sentence, a life sentence was entered by the trial judge as G.S. § 15A-2000(b) requires him to do. State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980); State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), on rehearing in Superior Court, Columbus County (Case No. 79CRS1943).
G.S. § 15A-2000(b) requires the jury to deliberate and render a sentence recommendation "based upon" two considerations: (1) whether sufficient aggravating circumstances exist and (2) whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found. The statute specifically requires that the jury sentence recommendation be "based on these considerations"not unbridled discretion. G.S. § 15A-2000(b)(3). This specific mandate is clearit requires no interpretation.
The trial judge correctly instructed the jury on this point. Indeed, to instruct the jury otherwise would permit it to disregard the procedure established by the Legislature and impose the sentence of death with unbridled discretion contrary to the dictates of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and its successor cases. See State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Goodman, 298 N.C. 1, 257 S.E.2d 569. These assignments are overruled.
Finally, the defendant argues that the infliction of the death penalty upon him would be an excessive and disproportionate penalty. This Court is required to review the sentence of death to determine whether it is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." G.S. § 15A-2000(d)(2). We do not agree that the imposition of the death penalty in this case would amount to excessive or disproportionate punishment. The facts of this case show that the defendant deliberately sought out not one, but two lone employees of business establishments in relatively isolated areas during the early morning hours when no one was around, robbed them at gunpoint, and then shot them to death at very close range with a shotgun before fleeing with the money. This was a brutal murder. We cannot say that the sentence of death imposed here is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See State v. *264 Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Taylor, 304 N.C. 249, 283 S.E.2d 761; State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788; State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, ___ U.S. ___, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510.
We have carefully examined defendant's other assignments of error not specifically treated herein. We find them to be without merit and they are overruled.
The record clearly supports the jury's guilty verdict and its finding of the aggravating circumstance upon which the sentencing court based its sentence of death. There is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; nor is the sentence of death excessive or disproportionate. The defendant's conviction and the sentence imposed must be affirmed.
NO ERROR.
EXUM, Justice, dissenting as to sentence.
For the reasons stated in Part I of my dissenting opinion in State v. Pinch, ___ N.C. ___, 292 S.E.2d 203 (1982), I believe it was prejudicial error for the trial judge to instruct the jury that it had a duty to recommend the death sentence if it answered certain issues favorably to the state.
For the reasons stated in Part II of my dissenting opinion in State v. Pinch, supra, I conclude that prospective juror Melton was improperly excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Therefore I vote to vacate the death sentence and to remand for a new sentencing hearing. I concur in the majority's conclusion that no prejudicial error occurred in the guilt phase of the case.
NOTES
[2] For further details of this robbery-murder, see State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981)hereinafter "Williams (I)."
[3] 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
[4] § 15A-1052. Grant of immunity in court proceedings.(a) When the testimony or other information is to be presented to a court of the trial division of the General Court of Justice, the order to the witness to testify or produce other information must be issued by a superior court judge, upon application of the district attorney:
(1) Be in writing and filed with the permanent records of the case; or
(2) If orally made in open court, recorded and transcribed and made a part of the permanent records of the case.
(b) The application may be made whenever, in the judgment of the district attorney, the witness has asserted or is likely to assert his privilege against self-incrimination and his testimony or other information is or will be necessary to the public interest. Before making application to the judge, the district attorney must inform the Attorney General, or a deputy or assistant attorney general designated by him, of the circumstances and his intent to make an application.
(c) In a jury trial the judge must inform the jury of the grant of immunity and the order to testify prior to the testimony of the witness under the grant of immunity. During the charge to the jury, the judge must instruct the jury as in the case of interested witnesses.
[5] See State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437.
[6] We note that the death sentence has been overturned. See Footnote 2.
[7] In Pinch the two murders occurred one immediately following the other at the same location and were joined for trial. Here, the two murders occurred in separate incidents, separate counties, and were separated in time by approximately three hours. While there are these differences, here, as in Pinch, the two murders occurred in the same course of conduct.
[8] The defendant also argues that this aggravating circumstance requires that the defendant have committed other crimes of violence against another person or persons in the course of conduct in order for this aggravating circumstance to be submitted to the jury. He argues that since here there was only a single additional crime, the aggravating circumstance should not have been submitted. We note that there were two additional crimes committed in this course of conduct, armed robbery and murder.
[9] G.S. § 15A-2000(f)(6): The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.
[10] Assignment of Error No. 71 is that the court failed to instruct the jury that the State had the burden of proving beyond a reasonable doubt that the aggravating circumstance substantially outweighed the mitigating circumstances to such an extent as to call for the death penalty. This argument was not advanced in the brief and is therefore deemed abandoned. We note, however, that the judge did so instruct the jury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361063/ | 68 Wyo. 384 (1951)
234 P.2d 802
L.C. JONES TRUCKING CO., INC., a corporation, Plaintiff and Respondent,
vs.
THE SUPERIOR OIL COMPANY, a corporation, Defendant and Appellant.
No. 2487
Supreme Court of Wyoming
July 24, 1951
*388 For the defendant and appellant the cause was submitted upon the brief of S.J. Lewis of Casper, Wyoming, and P.W. Spaulding of Evanston, Wyoming.
For the plaintiff and respondent the cause was submitted upon the brief of Edward E. Murane of Casper, Wyoming.
*389 OPINION
BLUME, Justice.
In this case L.C. Jones Trucking Company, Inc., a corporation, brought an action on March 8, 1949 against Jo E. Fletcher and John B. Shaw, doing business as Fletcher and Shaw, defendants, to recover judgment of $5667.45 on a note dated February 11, 1949 executed by "Fletcher & Shaw, Jo E. Fletcher." That will hereafter be referred to as the "main case." The Superior Oil Company was served with garnishment process and it answered on April 1, 1949 that it owed the defendants the sum of $7868.00. Thereafter *396 on May 6, 1949 judgment was entered in this action against both Fletcher and Shaw for the sum of $5836.90 and the Superior Oil Company was directed to pay money into court to satisfy this judgment. The garnishee failed to do so. Thereafter and on September 3, 1949 a petition was filed in the present case by the plaintiff above mentioned against the Superior Oil Company to compel it to satisfy the judgment against Fletcher and Shaw as above named. The defendant answered admitting that it received the notice of garnishment; it alleged that the affidavit for attachment was insufficient for the issuance of a writ and order of attachment; that no service of summons upon the defendants was had in said action and that the District Court was without jurisdiction to render judgment against Fletcher and Shaw or either of them; that the notice to the garnishee was not signed by the sheriff and that no right or claim to any debt of this defendant to said Jo E. Fletcher and John B. Shaw was acquired by the notice of garnishment and the court was without jurisdiction over any debt then owed by the Superior Oil Company to the defendants in that action; that the present defendant, Superior Oil Company, relying upon the apparent regularity and sufficiency of the pretended garnishment, filed its answer to the garnishment, but that upon investigation it first discovered the irregularities therein; and that by reason thereof, the court was and is without jurisdiction to enter any judgment against it as garnishee; that it inadvertently after its answer was filed paid to Fletcher and Shaw, as partners, all of the sums of money due or owing them by the defendant, Superior Oil Company; that: "Immediately upon receipt of said certified copy of said Judgment and Order the plaintiff, thru its attorney of record herein, and said Jo E. Fletcher were notified of said payment and the circumstances surrounding the same. Said Jo E. Fletcher, in behalf of himself and said partnership, *397 promised this defendant (Superior Oil Company) to immediately satisfy said Judgment in said action, * * *, but he, either individually or as a member of said partnership, has wholly failed and neglected to discharge said Judgment. Thereafter said Jo E. Fletcher and John B. Shaw, individually, and as copartners, filed their voluntary Petitions in Bankruptcy in the United States District Court for the District of Wyoming, and thereafter and on or about September 8th, 1949, they individually, and as co-partners, were duly adjudicated bankrupt and a Trustee in Bankruptcy has been duly appointed in said proceedings." The trial court rendered judgment in favor of the plaintiff and against the Superior Oil Company, a corporation, defendant, in the present action, directing it to satisfy the judgment theretofore rendered against Fletcher and Shaw. The Superior Oil Company has appealed and will herein be referred to as appellant.
1. SUIT AGAINST PARTNERS.
The validity of the judgment against the garnishee depends upon the validity of the judgment in the main action that is on the validity of the judgment against parties, whose indebtedness had been garnisheed. 38 C.J.S. 343; 5 Am. Juris. 41, Section 711. Hence, we shall first investigate the proceedings and judgment relating to Fletcher and Shaw. "At common law a partnership is not a legal entity but only a contractual status, and hence, except as modified by statute or rule of practice, suits in behalf of a partnership must be brought in the individual names of the members of the partnership, and not in the firm name, although by statute in many jurisdictions a partnership is permitted to sue in the name which it has assumed or under which it does business." 40 Am. Juris. 430, Section 432; 68 C.J.S. 609; Note, 29 L.R.A.N.S. 282. Section 3-619, Wyo. Comp. St. 1945 provides: "A partnership *398 formed for the purpose of carrying on trade or business in this state, or holding property therein, may sue or be sued by the usual or ordinary name which it has assumed, or by which it is known; and in such case it shall not be necessary to allege or prove the names of the individual members thereof." According to Section 3-1009, Wyo. Comp. St. 1945, it is provided that service of process may be had as follows: "If the defendant is a partnership, sued by its company name, by leaving a copy of the summons and petition at its usual place of doing business." (Italics supplied). It may be noted that the service mentioned upon a partnership may be made in the manner specified by statute only when the partnership is "sued by its company name." In many of the other states statutes provide that service may be made by serving one of the partners. That provision is not in our statutes but we have no doubt that where the partnership does not have a usual place of doing business in this state, it may, nevertheless, be sued by serving each and all of the members of the partnership in order that it may be held liable as a partnership. Herron vs. Cole Bros., 25 Neb. 692, 41 N.W. 765. If the partnership is sued as an entity as above mentioned, a judgment in such action reaches the joint property of the partnership. Hamner vs. B.K. Block and Co., 16 Utah 436, 52 P. 770, Peterson vs. W. Davis and Sons, 216 Minn. 60, 11 N.W.2d 800. See also 40 Am. Juris., Sections 434 and 435. Thus it is seen that the statute provides a comparatively easy method by which a plaintiff who has a claim against a partnership may reach it and its property. Moreover, in addition to that, such plaintiff may in such action reach the members of the partnership according to the following provisions in Section 3-3905 providing: "The members of a partnership, against which a judgment has been rendered by its firm name, may be made parties to the judgment by action."
*399 The plaintiff herein did not choose to follow the statutory method provided by our statute and chose to pursue the procedure under the common law, or one similar to it. It is contended by the appellant herein that the action brought by the plaintiff against Fletcher and Shaw was an action against the individuals only, citing Good vs. Red River Valley Co., 12 N. Mex. 245, 78 P. 46. That contention, we think, is correct. The action was brought, as heretofore stated, against Jo E. Fletcher and John B. Shaw, doing business as Fletcher and Shaw. The petition alleged that "the defendants made, executed and delivered to plaintiff their promissory note in writing." Then the note is set up. The petition further proceeds: "That no part of said promissory note has been paid, * * * and that there is now due and owing to the plaintiff from the defendants and each of them * * * the principal sum of $5623.35 * * *. WHEREFORE, plaintiff prays judgment against the defendants and each of them for the sum of $5667.45 * * *." Summons was issued which had the caption contained in the petition and was directed to the sheriff for him to notify "Jo E. Fletcher and John B. Shaw," to answer the petition in the case. The foregoing shows, we think, that the petition was one against individuals and not against a partnership as an entity. It is stated in 68 C.J.S. 683: "An action against certain named individuals as partners doing business under a certain firm name is an action against them as individuals, and is not an action against the partnership as a separate entity." Statement to the same effect is found in 47 C.J. 955 and a number of cases are cited. The subject is discussed at length in the case of Maclay Co. vs. Meads, 14 Cal. App. 363, 112 P. 195, 198. In State ex rel. vs. Gray, 92 Fla. 1123, 111 So. 242, the court, citing numerous cases, states that the authorities are practically unanimous that an action against named defendants is against them as individuals and not as *400 copartners. In view of this rule the court in the case of Steele vs. Wardwell, 57 Cal. App.2d 642, 135 P.2d 628, 633 drew the conclusion that in such case the liability of the individual sued is an individual liability regardless of whether or not it arises from partnership relation. On the face of things, that is undoubtedly correct. Nevertheless, according to the weight of authority the facts may be shown. Thus it is stated in 40 Am. Juris. 438: "In a few jurisdictions it has been held that the fact of partnership should be alleged in the complaint in an action against the persons composing a partnership. In most jurisdictions, however, the general rule is that in bringing suit against a firm it is sufficient to designate the names of the parties, and it is unnecessary to allege the existence of a partnership. And if suit is brought against individuals who in fact are partners trading under the name of a certain company, it is not necessary to allege that they were partners, in order to admit evidence of their joint liability as the legal result of their association as partners, or evidence of their making a contract under the name of such company." The subject is annotated in Annotated Cases 1912A, 512-513, and is considered at length in the case of First Nat. Bank of Deadwood vs. Hattenbach, 13 S.D. 365, 83 N.W. 421 where the court said in part: "The action is against individuals, and not against the co-partnership. Shoe Co. vs. Stebbins, 3 S.D. 540, 54 N.W. 593. It has in some cases been held necessary to allege the co-partnership, for the purpose of letting in proof that one member of the firm was authorized to sign the firm name, but the weight of authority is in favor of the rule that proof of the partnership is admissible as evidence to show a joint liability where no partnership is alleged. 15 Enc. Pl. & Prac. 920, 921; Jemison vs. Dearing's Ex'rs, 41 Ala. 291; Swinney vs. Burnside, 17 Ark. 38; Pollock vs. Glazier, 20 Ind. 262; Howard vs. Woodward, 52 Kan. 106, 34 Pac. 348; Stix *401 vs. Mathews, 63 Mo. 371; Singleton vs. Thornton (Sup.) 9 N.Y. St. Rep. 600; Hawley vs. Hurd, 56 Vt. 617; Fetz vs. Clark, 7 Minn. 217 (Gil. 159). In 15 Enc. Pl. & Prac., supra, the rule is thus stated: `As a general rule, in an action against partners upon a partnership obligation it is not necessary to allege the partnership between the defendants, but they may be declared against as any other joint debtors; and under an allegation that defendants contracted, without any averment of partnership between them, proof of a partnership is admissible as evidence to show a joint liability. Indeed, in such a case, if the partnership is averred in the complaint and denied in the answer, the issue formed is immaterial.' In Hawley vs. Hurd, supra, the supreme court of Vermont, speaking upon this subject, says: `The note for $800 was admissible under the general counts. There is nothing peculiar relating to the form of declaring against partners, except that care must be taken that all the causes of action be stated to be joint. 2 Saund. Pl. & Ev. 708. They may, as a general rule, be declared against as you declare against other joint contractors." The substance of the holding in a number of other cases is found in the case.
In the case at bar the testimony is conclusive to the effect that Jo E. Fletcher and John B. Shaw were copartners, doing business as Fletcher and Shaw. Jo E. Fletcher, according to the allegations of the garnishee in this case, promised to pay the judgment that was rendered in the main action herein, thus recognizing the debt as a partnership debt. The note purports to be executed on behalf of the firm by Jo E. Fletcher. Hence, the court in this case must have found in order to warrant a judgment against John B. Shaw, that the indebtedness was an indebtedness of the partnership of Fletcher and Shaw. At least in this action which is a collateral attack on the judgment herein, that must be *402 accepted as true. Nor is anything to the contrary claimed herein. So we must proceed to consider the process in the main action and the judgment rendered therein.
2. PROCESS AND JUDGMENT IN MAIN CASE.
The judgment against Jo E. Fletcher and John B. Shaw in favor of the plaintiff recited: "the Court having before it the records and files in this case, and the plaintiff having presented his evidence and produced the promissory note sued upon in his petition, and having heard the testimony of plaintiff, and the record showing that service had been made upon one of the partners, John B. Shaw of the partnership firm doing business as Fletcher and Shaw, and that said defendants failed to answer the petition of the plaintiff, and the Court being fully advised in the premises DOTH FIND: That plaintiff secured proper service upon the defendants and that defendants failed to answer the petition of the plaintiff on or before the 30th day of April, 1949, and have been and now are in default." Judgment accordingly was entered in favor of the plaintiff against the defendants, and each of them, and the Superior Oil Company was directed to pay into court a sufficient amount to satisfy the judgment. Counsel for the plaintiff herein contends that in view of the recitals of the judgment, it is not subject to an attack herein, which is a collateral attack upon the judgment. We think counsel goes too far in his contention. It is stated in 31 Am. Juris. 201 that: "In most jurisdictions, the rule is that a recital in a judgment of the presence of a jurisdictional fact may be impeached in a collateral proceeding by a positive contrary showing of the remainder of the record upon which the judgment is based." In 31 Am. Juris. 203 it is stated: "According to the weight of authority, a recital in a judgment of due service of process may be impeached or contradicted *403 upon collateral attack by an officer's return appearing in the record." See also Mahan vs. Wyopa Co., 27 Wyo. 17, 189 P. 633. And there can be no doubt that since the garnishee would be adversely affected, it can raise the point. 31 Am. Juris. 179, Section 581. The summons in this case was directed as hereinbefore mentioned, to Jo E. Fletcher and John B. Shaw as individuals. The return of the summons shows that it was served "by delivering to ____ at his usual place of residence leaving with Mrs. John B. Shaw, a party over the age of 16, a copy of the same, together with copy of petition." Counsel apparently, without authority of the court, had the officer amend the return six months later by adding "being also the usual place of doing business of Fletcher and Shaw in Natrona County, Wyo." This addition to the return, even though lawfully made, was (together with all testimony relating thereto) wholly immaterial, in view of the fact, as hereinbefore mentioned, that this was not an action against the partnership as an entity but an action against two individuals. It is elementary that a party to be affected by a personal judgment must have a day in court or an opportunity to be heard. 31 Am. Juris. 74; Dillard vs. McKnight, 34 Cal.2d 209, 209 P.2d 387. There can be no pretense that the return of the summons in the case shows that there was any service of any kind whatever on Jo E. Fletcher, one of the individuals sued in this action, even though the judgment recites generally that the defendants were served. The judgment itself shows that there was service only on John B. Shaw. Thus the general recital above mentioned, and any presumption of regularity, is contradicted not only by the return on the summons but also by the judgment itself. Hence, the judgment against Jo E. Fletcher as an individual was totally void. 1 Freeman on Judgments (5th Ed.), Section 108; 1 Black on Judgments (2d Ed.) Section 233. It is said in 31 Am. *404 Juris. 73-74: "Although there are statutes authorizing judgments against two or more joint debtors upon service of summons on but one of them, the general rule is that it is improper to render judgment against all the obligors where the court has not acquired jurisdiction over some of them. A judgment so rendered is void as against the parties over whom the court has no jurisdiction."
The situation is somewhat different in connection with the service on John B. Shaw, although not beyond doubt or controversy. It is contended that there was not even any service upon him. We are cited, for instance, to Scott vs. Ray (Tex. Civ. App.), 141 S.W. 1002; Bugbee vs. Thompson, 41 N.H. 183; Chamblee vs. Huffsmith (Tex. Civ. App.), 44 S.W. 616; Kellam vs. Trail (Tex. Civ. App.) 185 S.W. 988. None of these cases are in point, for the reason that in these cases the attack on the judgment was direct, while in the case at bar the attack is collateral. The rule applicable in this case is that stated in 49 C.J.S. 829 where it is stated: "A defect in the form or matter of the summons or other process not absolutely destructive of its validity, or an irregularity or defect in the service of the process on defendant which, although material and available on a direct attack, is sufficient to give notice of the proceedings, does not deprive the court of jurisdiction and therefore does not expose the judgment to collateral impeachment, particularly where the defect or irregularity is amendable, and is cured by a failure to object thereto in time. Where, however, the defect in the process is so radical that it amounts to no process at all, as where it wholly fails to give the party the information it is expected to convey, or where the attempted service is so faulty that it does not constitute a legal service on defendant or amounts to no service at all, there is a want of jurisdiction and the judgment will *405 be impeachable collaterally." So the question here is whether the defect in the service on John B. Shaw is so radical that we must say he had no notice at all.
It does not appear directly on the return of the summons that service was made on John B. Shaw. On direct attack, the service would probably have been quashed, unless amended, as might have been done. 42 Am. Juris. 114, Note 8. But it does appear that a copy of the summons and a copy of the petition was left with Mrs. John B. Shaw at "his usual place of residence." That is such service, if made on a member of the family of defendant, as is permitted to be made on a party to an action, according to Section 3-1009 of the Wyo. Comp. St. 1945. The crude return of the sheriff may be simplified as follows: "I received the within summons * * * and served the same * * * by leaving with Mrs. John B. Shaw, a party over the age of 16 a copy of the same together with a copy of the petition at his usual place of residence." It is said in the late case of Troy Lumber Co. vs. State Sewing Mach., Corp., (N.C.) 64 S.E.2d 415, 418 that "when the sheriff returns that he has `served' the summons, this implies that he has discharged his official duty in that respect, that is, that he has served it according to law." Several cases are cited, and it stated that this shows service at least prima facie. In view of the fact that the summons was to serve Jo E. Fletcher and John B. Shaw the foregoing statement seems to imply that prima facie there was service according to law on both parties. However, we have seen that there was no valid service on Fletcher. So the prima facie case must be limited, and can apply only, if at all, to John B. Shaw. That Mrs. John B. Shaw was not intended to be served is clear from the petition and the summons, in which John B. Shaw is one of the defendants named therein. Counsel for appellant say without offering any proof of any kind that *406 Mrs. John B. Shaw may have been a cousin, a mother-in-law, or a daughter-in-law. That of course is possible, but would be the exception. Usually we would understand thereby that she was the wife of John B. Shaw. And if Mrs. Shaw actually was the wife of John B. Shaw, living with him, we may be almost certain that John B. Shaw received a copy of the petition and the summons, and in such case there would not seem to be the total absence of information which would justify a collateral attack. It is the fact of service and not the proof thereof that confers jurisdiction. 42 Am. Juris. 113, Note 1; 42 Am. Juris. 115, Note 11; Goodman vs. Order of United Workmen, 211 Minn. 181, 300 N.W. 624. Now in the case at bar, the judgment in the main action states that the court received evidence and that John B. Shaw was duly served. For aught we know the evidence submitted to the court may have fully clarified the situation, and it may have been shown that Mrs. John B. Shaw was in fact the wife of John B. Shaw, living with him, and that the papers were left at their usual place of residence. There would not, in such case be any contradiction of the return on the summons, but merely a clarification thereof. In 31 Am. Juris. 199, it is stated: "A collateral attack upon a judgment on the ground of the absence of jurisdiction may be precluded by statements in the record in regard to jurisdiction or in regard to the presence of particular jurisdictional facts. Under this rule, the jurisdictional facts will be deemed to have been properly ascertained on collateral attack even though the court may have misjudged the facts, so that a recital in the record as to the presence of jurisdictional facts may not be impeached or contradicted in a collateral proceeding by evidence outside the record." In Note at 68 A.L.R. 390 it is said: "There is a long line of authorities to the effect that a recital in a judgment of a court of general jurisdiction as to service of process is, upon a collateral attack, *407 conclusive, and not subject to impeachment." In 49 C.J.S. 844 it is stated: "Where a judgment or decree of a domestic court recites that proper notice of the action was given, that process was duly served, or that the parties were duly summoned or cited, such recital generally is conclusive on collateral attack, even though there may have been defects in some of the documents constituting part of the judgment roll and relating to the service of process." These statements seem to be confusing when read in connection with the citations from 31 Am. Juris. 201 and 203 already given, and see 31 Am. Juris. 202, Section 607, where it is said: "In most jurisdictions, the rule is that a recital in a judgment of due service of process may be impeached in a collateral proceeding by a positive contrary showing of the remainder of the record upon which the judgment is based." See also 68 A.L.R. 390-405. We shall not attempt to entirely harmonize these various statements. Some light on the subject is thrown by the case of Kaufmann vs. California Mining & Dredging Syndicate, 16 Cal.2d 90, 104 P.2d 1038 where the court stated: "In the present case it appears from the judgment in the other action that oral and documentary evidence was introduced and that the trial court there made its findings with respect to the validity of the service of process and the entry of the default. It does not affirmatively appear that these findings were based solely upon any particular document or documents, relating to service of summons and, under these circumstances, the presumptions in favor of the validity of the judgment make said findings conclusive upon collateral attack even though there may have been defects in some of the documents constituting part of the judgment roll and relating to the service of summons." The case quotes from Hahn vs. Kelly, 34 Cal. at page 431, 94 Am. Dec. 742 where it was said: "`But if the judgment for proof of service refers generally to a paper or papers *408 on file, or to a summons and Sheriff's return thereon without specifying any particular paper, summons or return, and if there be found on file papers showing a defective and void service, and nothing further appears, the law to support the judgment would presume that the Court had other sufficient proof of service than that which remains on file; and it would not in that case appear affirmatively from the record that the recitals in the judgment were untrue. The recitals would therefore be conclusive proof of service. But if the judgment recites a due service of process without specifying how the service was made or referring to any paper as proof of it, the recital is conclusive on the parties in a collateral proceeding * * *.'" That case is in line with what is said in 31 Am. Juris. 202, Section 607 that: "The recital (in the judgment) is conclusive upon collateral attack, however, unless the contradiction is direct, explicit, and irreconcilable." In 50 C.J. 577 it is stated that "under a more liberal rule it is held that omissions in a return may be supplied or ambiguities explained by parol evidence, as where the return is so indefinite and uncertain as to render its meaning doubtful. Such evidence does not constitute a contradiction of, or attack upon, the return;" etc. And see Brusie vs. Gates, 80 Cal. 462, 22 P. 284, hereafter quoted, that the written return of an officer is not the only evidence of the fact that a writ was properly served. In 68 A.L.R. 392 it is stated in a note: "Where there is a defective service of process, as distinguished from lack of service, a recital or finding by the court in its judgment that there was due service of process is conclusive and cannot be attacked in collateral proceedings." Thus the courts probably most of them make a distinction between a case where there was a total lack of service and one where the return shows the service to be defective. We think that in the case at bar the return of the service upon John B. Shaw, can be *409 said only to show service that was defective. If that is correct, as we believe it to be, then the court had the right to take evidence supplementing the return and finding that, as a matter of fact, service was made upon John B. Shaw by serving his wife, Mrs. John B. Shaw, a member of the former's family, and at the usual residence of the defendant, Shaw. We are inclined to believe, accordingly, that in view of the collateral attack herein, we cannot say that the finding of the court that John B. Shaw was duly served is incorrect. It is true that, in the absence of a statute permitting it, separate and independent judgments cannot be rendered against defendants sued jointly. 1 Freeman on Judgments (5th Ed.) page 177; 2 Williston on Contracts, Section 329. The debt herein was joint. Section 61-307, Wyo. Comp. St. 1945. The rule mentioned has probably been materially modified by Section 3-3901, Wyo. Comp. St. 1945 hereafter quoted. In any event, the better rule seems to be that at best, the judgment against John B. Shaw would be erroneous only and not subject to collateral attack. Douglass's Lessee vs. Massie, 16 Ohio 271; Newburg and Goldsmith vs. Munshower, 29 Ohio St. 617; Capper vs. Short, 226 Ky. 689, 11 S.W.2d 717; 1 Black on Judgments (2d Ed.) Sections 211 and 234. See 49 C.J.S. 78, Note 95.
3. EFFECT OF JUDGMENT AGAINST ONLY ONE PARTNER.
We have accordingly before us a judgment for a partnership debt against one of the partners of Fletcher and Shaw, valid against a collateral attack. The question then before us is what is the effect of such judgment insofar as it affects the joint property of the partnership? That question has not been argued by counsel on either side. It has presented a great deal of difficulty. We have attempted to make an exhaustive search of the authorities. We find a number of cases in which *410 joint property of joint debtors has been held subject to attachment or execution when only one of the joint debtors had been served with process. This was under the so-called joint debtor statute, which is in force in many states. See 49 C.J.S. 79 (3); Vols. 1 and 2 Freeman on Judgments (5th Ed.) Sections 107 and 569; Yerkes vs. McFadden, 141 N.Y. 136, 36 N.E. 7; Continental Supply Co. vs. Trust Co., 52 N.D. 209, 202 N.W. 404; Ellsberry vs. Black, 28 Colo. 477, 65 P. 629. We have no such statute, and have found but comparatively few cases bearing on the point before us, in the absence thereof. We find two absolutely contradictory and conflicting lines of authorities in this connection. We shall present them along both lines. It is held in the case of Donnell vs. Williams, 21 Hun. (N.Y.) 216 that: "Where, in an action brought against a firm, consisting of two members, an attachment is issued, and thereafter one of the partners is personally served with the summons, but the other is not, * * * the attachment ceases to be a lien upon the firm property." In Davidson vs. Knox, 67 Cal. 143, 7 P. 413 it was held that in an action against individuals as in the case at bar, under statutes in that state, somewhat similar to those in this state, no judgment would be allowed against the joint property of the individuals. In Brown vs. Gorsuch, 50 W. Va. 514, 40 S.E. 376 it was held: "Joint property having been levied on, it could not be subjected to the payment of plaintiff's demand without service on both the partners, either actual or constructive." See as supporting this holding to more or less extent, Stokes vs. Insurance Co., 141 S.C. 417, 139 S.E. 846, also the same case in 130 S.C. 521, 126 S.E. 649. In Rich vs. Solari, 17 Dist. of Columbia 371, the facts were exactly like those in the case at bar. Judgment was rendered against one partner, who alone was served in a suit commenced against both parties on a partnership contract. The court referring to some *411 Maryland cases in which the common law had been modified stated: "Without questioning the soundness of those decisions it is apparent to us that in this District, where the common law in this respect has not been modified by statute, the law is otherwise. The obligation of the firm being merged in the judgment against one partner, as to all members of the firm, and the judgment being against one only, it logically follows that the execution cannot be broader than the judgment and can only be levied on the property of the judgment debtor; hence cannot be levied on the partnership property. Ex parte Christy, 2 Deac. & C., 155; Bradley vs. Millar, 1 Rose 273." It will be noted that that case is based upon the theory of merger. That theory is stated in 2 Freeman on Judgments, supra, 567 as follows: "In the absence of statute to the contrary, whenever two or more persons are jointly liable, so that if an action is commenced against any less than the whole number the nonjoinder of the others will sustain a plea in abatement, a judgment against any of those so jointly bound merges the entire cause of action. The cause of action being joint, the plaintiff cannot be allowed to sever it against the objection of any of the defendants. By taking judgment against one, he merges the cause of action as to that one, and puts it out of his power to maintain any further suit, either against the others severally or against all combined." However, speaking of the rule of merger, the court in Frost vs. Thompson, 219 Mass. 360, 106 N.E. 1009 stated in part as follows: "The doctrine of merger, like res judicata, operates only between parties and their privies. It does not affect strangers to the original proceeding and is not available as a bar in their favor. * * * Apart from authority and on reason this conclusion is sound. It is only in proceedings in rem that the judgment of a court has been regarded as affecting those who are not parties or privies. Merger is a doctrine which has been extended *412 `very far' in this commonwealth, and which `has not received the approval of the Supreme Court of the United States' and of other courts of respectable authority. * * * In the course of the judgment in Beckett vs. Ramsdale, 31 Ch. Div. 177, where after full discussion, it was held by the Court of Appeal that recovery of judgment against a surviving partner did not bar an action against the estate of a deceased partner, the doctrine was referred to by Lord Bowen as one of `fierce severity.' It does not affect liabilities collateral or subsidiary to the original cause of action and yet separable from it." Furthermore, we are inclined to think that the doctrine of merger has been abolished in this state insofar as the situation is presented in this case by Section 3-3901, Wyo. Comp. St. 1945 which states: "When judgment is rendered in this state on a joint contract or instrument, parties to the action who were not summoned, * * * at the rendition of the judgment, may be made parties thereto by action in the same court, if they can be summoned in the state," etc.
We shall now present the other line of authorities. It appears that in Maryland the doctrine of merger was substantially abolished by statute somewhat similar to that of our statute heretofore cited. In the case of Johnston vs. Mathews, 32 Md. 363, the court said: "One of the partners having been summoned in the suit, which was instituted against all the partners, there was a party in Court, a judgment against whom would have been effective against the whole of the effects and assets of the firm." An annotation in 20 Ann. Cas. 1238 sets out the so-called Pennsylvania rule. In the case of Taylor and Fitzsimmons vs. Henderson, 17 Serg. & Rawle (Pa.) 453, it appears that one Mr. Page, a partner, had not been sued along with the others. The court said in part: "For the separate debt of a partner, I admit, only his separate estate can be sold; and as by *413 the contract of partnership, the debts are to be paid before capital or profits can be divided, it follows that he has no specific interest in the partnership effects, but only in what may remain after the settlement of the partnership account, and nothing beyond can be levied. But for a partnership debt, the entire property in the specific thing must be sold, even in a judgment against one of the partners; because through the medium of the execution, the law compels him to make the same application of the joint funds to the joint debts, that it was undoubtedly competent to him to make voluntarily. * * * Thus, I take it to be clear, that the interest of Mr. Page in the partnership effects, might be sold on a judgment against the others, just as if he had appeared to the action; and he was, therefore, a defendant both in substance and in form, although not technically a party to the issue." In the case of Harper vs. Fox, 7 Watts and Serg. (Pa.) 142 the court stated: "A partner has power to dispose of the joint effects by his separate act; and that he may not bind the firm by submission to arbitration, or confession of a judgment, is because it would bind the persons and separate estates of the members, and thus transcend the limits of partnership authority. But that a judgment against a single partner, as the representative of the firm, may be satisfied out of the joint effects, was said in Taylor vs. Henderson, (17 Serg. & Rawle 456). A judgment may be recovered against a less number than all the members, if there be not a plea in abatement; and the effects of the partnership may consequently be seized in execution of it." The rule so laid down in these cases has been consistently adhered to by the Pennsylvania courts. Thus it was said in Cover vs. Brown, Sutter & Co., 7 Pa. Dist. Rep. 19 as follows: "The foregoing citations will serve to show that a partner not served with process in an action against the firm will not be bound individually by a judgment obtained in such action; and where only *414 one of three partners is served, as in this case, an execution upon the judgment cannot be levied upon the individual property of those not served. * * * But the partnership effects may be sold on an execution issued upon a judgment obtained for a partnership debt against one of the partners: Ross vs. Howell, 84 Pa. 129; Freiler vs. Kear, 126 Pa. 470. The judgment thus obtained against one of the partners will authorize a levy and sale of the firm property as well as of his separate property: Boyd vs. Thompson & Coxe, 153 Pa. 78." In the case last cited the court said in part: "He (a partner) has a right to insist that the goods belonging to the partnership shall be used to pay the partnership debts, and if he deems it necessary to his own security or that of the creditor, he may confess a judgment against the firm for the amount of such debt which will justify the levy and sale of the goods of the firm and his own in payment thereof. In so doing he imposes no new or original liability on his firm, for the debt was already due from it. In that sense the judgment is not an executory contract to be performed in future, but a mode of payment for a debt contracted in the past, the consideration for which the firm has already enjoyed. Such a judgment has been sustained for purposes of execution against the goods of the firm in many cases, among which are Harper vs. Fox, 7 W. & S. 142; Grier vs. Hood, 25 Pa. 430; Ross vs. Howell, 84 Pa. 129; McCleery vs. Thompson, 130 Pa. 443." We need not pass upon the question of confession of the judgment but the principle underlying these cases is the same as the principle underlying the case at bar.
In the case of Powers vs. Braley, 41 Mo. App. 556 the question was as to the effect of the sale of partnership property under an execution against one of the partners for a judgment for a partnership debt. The court said: "This question is one of first impression in this *415 state, so far as we are now advised, but we think that both reason and authority sustain us in the conclusion that, where a judgment has been obtained against one partner only on an unquestioned firm obligation, and personal property belonging to the firm is levied upon and sold to satisfy such judgment, the sale will pass to the purchaser the entire title. This conclusion is not unreasonable, but it is in harmony with the law governing partnerships. It is well settled that one partner can sell, in the regular course of business, all the goods of his firm; he may bind the other members as makers or indorsers of negotiable securities, provided the transactions are within the scope of the partnership business; he can pledge or mortgage the personal assets of the firm to secure the payment of a partnership debt; he has authority to sell to a firm creditor the firm assets to pay a partnership liability, and, therefore, when a judgment is obtained against a single partner upon a partnership obligation, and the personal assets of the firm are taken on execution to satisfy the judgment, such levy must be regarded as an application by the partner, through legal process, of the joint fund to the satisfaction of a joint debt. And it would make no difference whether the judgment against the partner was involuntary or by confession; the result would be the same. This position in no way militates against the well-known doctrine that one partner cannot confess a judgment against his copartners, because such judgment would bind the separate estate of the members, and this would be beyond the scope of partnership authority. But this principle is not violated by permitting a judgment against a single partner for a firm obligation to be satisfied by the sale of partnership property. In such cases the court would restrain the execution to partnership effects and to the separate estate of the partner personally bound." In the case of New Coronado Coal Co. vs. Jasper, 144 Ark. 58, 222 S.W. *416 22, one of the syllabi is as follows: "Where members of a partnership are sued, and service is only had upon one of them, a judgment in favor of plaintiff binds the served partner personally and as a partner, and partnership funds impounded by attachment and garnishment." The case of Martin & Bro. vs. Davis & Co., 21 Ia. 535 presents a contest between two attaching creditors. In one case a judgment was had against only part of the members of the partnership, while a judgment was obtained against all of them in another case. The court held: "The fact that a judgment on a firm debt was rendered against only a part of the members of the firm does not affect the equitable right to have the partnership property subjected to its payment." The court said in part: "The fact that the judgment was rendered against only two members of the firm, would not affect the equitable right to have the partnership property subjected to its payment. The rule in equity does not regard the form of the judgment, but the substance of the debt. Looking alone to the substance of the claims or debts of the respective parties, they are precisely equal in equity; both are partnership debts. Especially is this true under our statute, which holds the partner not sued or included in the judgment still liable."
An interesting case is that of Bethel vs. Judge of Superior Court, 57 Mich. 379, 24 N.W. 112 which involved the validity of garnishment in an action brought against a firm or partnership, but of which one of the defendants was an infant. No judgment, of course, could be recovered against the latter, and the question was as to the effect of the judgment and the garnishment insofar as the adult partner was concerned. In other words, the question was whether or not, in view of the fact that judgment was not obtained against all the partners but only the adult partner, the garnishment of the property of the partnership was valid or *417 not. The court held that it was and that the garnishee was not discharged by reason of the fact that no judgment was obtained against all of the partners. The court considered in part a section of the statute which is very similar to Section 3-5018 of our statutes which provides that a garnishee should stand liable to the plaintiff to the extent of his right or interest therein from the time the garnishee is served with a written notice. The court in the Michigan case said in part: "Under this statute the rights and liabilities of the parties depend upon the facts which render the claim one garnishable or not at the time of the service of the writ. * * * If at that time the liability of the garnishee existed, it must continue until discharged in the manner provided by the statute." The statute provided that failure to recover judgment against the principal defendant should be deemed a discontinuance of all proceedings against the garnishee, as is also true under Section 3-5033, Wyo. Comp. St. 1945. As applied in the particular case the court came to this conclusion: "The proper construction to be given to this section of the statute is this: In all cases where judgment is rendered in favor of the plaintiff in the principal suit a garnishee is not discharged or entitled to judgment of discontinuance by a change of parties to the record, where the claim was one that was garnishable at the time of service of process." It must be remembered in this case that the action was commenced against both of the parties in this case, so that the indebtedness owing to it was clearly properly garnishable at the time when the action in this case was commenced, and as no judgment could be taken against the infant in the Michigan case, so no judgment could be taken against Fletcher, because he was not served by process. The change of parties is analogous. See also Thomas vs. Brown, 67 Md. 512, 10 Atl. 713.
*418 We are thus confronted with two different lines of decisions on the point before us. There does not seem to be any intermediate course which we could adopt, so that it seems that we must adopt the reasoning of one or the other of these lines. Modern legislation is along the line of the Pennsylvania rule. 2 Williston on Contracts, Section 336, enumerates some 38 states in which modification of the common law rules have been adopted, and tending in the direction of adopting the Pennsylvania rule above mentioned. The joint-debtor statutes have mentioned are clearly in that direction. We think, accordingly, we should adopt the Pennsylvania rule and the cases supporting it and hold that a valid judgment was rendered against the defendant, John B. Shaw, herein, which binds the property of the joint debtors and could accordingly be reached by garnishment process.
4. OBJECTIONS TO ATTACHMENT PROCEEDINGS.
A number of objections are made by counsel for appellants to the attachment and garnishment proceedings in the main action. It is contended that by reason of defects therein no jurisdiction of the money in the hands of the garnishee was obtained. Counsel for plaintiff contends that these matters are not jurisdictional and were waived when the garnishee appeared and answered in the case. The general rule is stated in Rood on Garnishment, Section 270 as follows: "The garnishee may make many admissions and waivers without endangering his protection. He may waive payment of the fee allowed him by law, and his appearance and answer without objection will cure all defects in the process which do not go to the jurisdiction of the subject-matter." A number of mistakes which are quite obvious were made in this case, most of them by the officers of the court. However, it is the duty of counsel *419 for the plaintiff who seeks an attachment on property to see that all the various steps required by statute are taken, and not to do so is at his own peril or the peril of his client. It is quite clear in this case, judging by the nature of the mistakes, that counsel for plaintiff did not pay any attention to any of the papers that were made out or were served by the officers of the court. That, of course, is dangerous, particularly in special proceedings, and sometimes may be fatal. We must consider the objections herein made in detail.
a. Section 3-5010, Wyo. Comp. St. 1945 states as follows: "When the plaintiff, his agent or attorney, makes oath, in writing, that he has good reason to believe and does believe that any person or corporation in the affidavit named, is indebted to the defendant, or has property of the defendant in his possession, describing the same, if the officer cannot get possession of such property, or obtain the money due on account of such indebtedness, he shall leave with such garnishee a copy of the order of attachment, and a written notice that he appear in court and answer as provided in section twenty-eight hundred and ninety-five (§ 3-5027), and if the garnishee does not reside in the county in which the order of attachment was issued, the process may be served by the proper officer of the county in which the garnishee resides, or may be personally served." No affidavit such as mentioned in this section was filed. Counsel for appellant claims that this was fatal. They do not refer us to any case in point. The section above quoted must be construed in connection with Section 3-5004. It reads as follows: "The order of attachment shall be directed and delivered to the sheriff, and shall require him to attach the lands, tenements, goods, chattels, stocks or interests in stocks, rights, credits, money and effects of the defendant in his county, not exempt by law from being applied to the payment of plaintiff's *420 claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action." It may be noticed that under this section the sheriff is directed by the writ to attach credits and money. That would seem to indicate that it is not mandatory upon anyone to file an affidavit such as is mentioned in the first section above set out, and that it is intended merely to supplement the information of the sheriff. In 38 C.J.S. 366 it is stated that after the filing of a proper affidavit and the execution of a bond, the writ or summons in garnishment ordinarily issues as a matter of course; that under some statutes garnishment process may be issued by the attorney of a party, or notice to the garnishee may be given by a sheriff holding a writ of attachment or execution; that the issuance of a garnishment notice is ministerial rather than a judicial duty. It would seem, considering all these matters together, that the affidavit mentioned in Section 3-5010 is not jurisdictional, but may be waived by the garnishee when he appears and answers in response to the notice of garnishment served upon him.
b. The writ of attachment was issued at the time of the commencement of the action herein. Such writ of attachment is jurisdictional to obtain jurisdiction of the subject matter. 7 C.J.S. 376. The writ of attachment in this case was duly issued but it was made returnable on the same day on which it was issued. The question is whether that is fatal. The question of defects in respect to the return day of summons is discussed in 42 Am. Juris. 15 where it is said: "No general rule can be laid down as to the effect of defects or informalities, with regard to the appearance or return day, in a summons or notice of the commencement of an action in a court of record, because some defects are held to render the summons absolutely void and to invalidate all subsequent *421 proceedings in the action, while other defects are held to be simply irregular and subject to amendment, and because the same defect is held in some jurisdictions to be fatal and in others curable. It may be said, however, that in the majority of the cases considering the fact that the return day of process is mistaken or defectively stated, the rule seems to be that it does not render the process void, but only voidable." See also Note, 97 A.L.R. 748. If a summons is made returnable on the same day on which it is issued and the defendant does not move to quash the service, but appears generally in the action, he thereby waives any defect in the summons. We think that the same rule should be applied in the case at bar. The garnishee appeared and answered in the case, and made no motion to quash the service on it. We think it waived the defect in the writ of attachment.
c. The notice of garnishment served on the garnishee in this case was not signed by the sheriff. In 6 C.J. 188 it is said, speaking of the writ of attachment: "The writ should be signed by the officer by whom it is issued, whether this act is performed by a judge or the clerk of court, although a defect in this respect does not render the writ void, but may be waived or cured by amendment." In 7 C.J.S. 384 the statement is added: "although other authority regards an unsigned writ as void and not properly the subject of amendment." Only one case is cited on this addition. We intimated in the case of Deschenes vs. Beall et al., 61 Wyo. 39, 53, 154 P.2d 524 that the majority rule is the correct rule. We have not found any direct authority on the question of signing the notice of garnishment. We think, however, that the rule above mentioned is applicable in connection with such notice. In fact, Section 3-5010 does not specifically provide that the notice of garnishment must be signed by anyone and that seems to be true under *422 other statutes. See 38 C.J.S. 372, Note 42. The lack of signature therefor on the part of the sheriff, cannot be regarded as jurisdictional and if required at all, must be held to have been waived when the garnishee appeared in this case and answered.
d. The writ of attachment issued in the main case recites that: "whereas L.C. Jones Trucking Company, an Oklahoma corporation * * * has complained," etc. The petition alleges that "the plaintiff is a Delaware Corporation engaged in interstate commerce, with headquarters at Oklahoma City, Oklahoma." The notice of garnishment makes no mention of the abode of the corporation. In a sense, at least, the statement in the writ of attachment states the truth. It is quite clear that the error was merely a clerical error, and not jurisdictional. The record as a whole shows the facts correctly.
e. RETURN ON WRIT OF ATTACHMENT.
It is objected herein that the return of the writ of attachment is not sufficient to show that the court obtained jurisdiction of the subject matter, that is of the res of the property in the hands of the garnishee. Counsel for appellant make so much of this point and it seems to be of importance that we have found it necessary, to make a somewhat exhaustive investigation of the authorities bearing thereon. Counsel cite among other cases the case of Bristol vs. Brent, 36 Utah 108, 103 P. 1076 which contains a valuable discussion on the subject of garnishment, but can hardly be considered a case directly in point herein, although it discusses the subject of obtaining a jurisdiction of the res in attachment proceedings generally. The record in this case is somewhat more complete than the record in the Utah case, at least if we consider the return on the garnishment notice. Moreover, the case became obsolete under a subsequent Utah statute similar to ours, as *423 hereinafter mentioned. Graham vs. Hidden Lake Copper Co., 53 Utah 230, 178 P. 64. The return on the writ of attachment is as follows: "I hereby certify that I received the within Writ of Attachment on the 29th day of March, 1949, at 2 o'clock P.M., and served the same in the County aforesaid, on the 29th day of March, 1949, by delivering a certified copy thereof personally to E.R. Burnett." The return on the garnishee notice is as follows: "I hereby certify that I served an original copy of the within Garnishee Notice, together with a copy of the Order of Attachment issued in said cause, upon the garnishee named in said notice, by delivering the same to E.R. Burnett, manager, personally on the 29th day of March, 1949, at 9:45 o'clock A.M., in Casper, Natrona County, Wyoming." It may be noted that the return on the writ of attachment itself shows that it was received at 2 P.M., of March 29, 1949, while the notice of garnishment states that it was served at 9:45 A.M. the same day. In other words, the notice of garnishment was, according to these returns, served before the writ of attachment was received. The latter writ was issued on the previous day, according to the date thereof. The return on the notice of garnishment states that it was served "together with a copy of the order of attachment issued in said cause," so that the writ must have been in the hands of the sheriff at that time. Under the circumstances we must regard the discrepancy in the time above mentioned as a clerical mistake.
In Rood on Garnishment, Section 277 it is stated: "all that has been said of the service of the writ applies with equal force to the return, for the return is the officer's report of his doings under the writ. It should be indorsed upon the writ, or made upon a paper annexed thereto; for the writ and return constitute, essentially, one record, and must go together. Whatever the statute requires to be done in the service of the writ, the return must show to have been done; and, *424 unless it shows that due service has been made, the court has before it no proper evidence upon which to base any further proceedings. Its absence cannot be cured by the garnishee's signed admission of due service." In Section 279 the same author states: "Palpable defects in the return are not cured by the presumption that the officer has done his duty. But it is held that objections to the sufficiency of the return must be made before or at the time of answering the writ. The return is conclusive of the proceedings under the writ."
Section 3-5017, Wyo. Comp. St. 1945 states as follows: "The officer shall return upon every order of attachment what he has done under it, and the return must show the property attached, and the time it was attached; when garnishees are served, their names, and the time each was served, must be stated; and the officer shall return with the order all undertakings given under it."
It would seem that under this statute the fact that notice of garnishment has been given, should be endorsed on the original writ of attachment. That was not done in this case and no valid levy appears to have been made in this case, unless we can consider the returns on the original writ of attachment and on the notice of garnishment together, or unless the return on the original writ is amendable and so may be regarded herein as amended, or unless the defect in the return must be considered as waived, or other valid reason to the contrary exists.
It must be confessed that at first glance in any event, the authorities on the point before us are confusing in fact apparently irreconcilable. Many authorities state the rule as absolute that the failure of the return to comply with the statute makes the attachment void. 4 Am. Juris. 912, Section 591; 5 Am. Juris. 49. These *425 texts refer to Annotation in 93 A.L.R. 748-773. That annotation deals in the main with attachments of real or tangible personal property, not with garnishment. There is, of course, a material difference in attaching real and tangible personal property, and garnishment, since in the latter jurisdiction over the money attached can be obtained only by notice upon the garnishee, while seizure of the former must be in entirely different manner. Among the cases not involving garnishment is the case of Green vs. Coit, 81 Ohio St. 280; 90 N.E. 794 cited by counsel for appellant. That is true also with Dickinson vs. First National Bank, 64 N.D. 273, 252 N.W. 54; 93 A.L.R. 739. The Annotation cites cases which permit an amendment to the return, and cases which do not. Much depends upon statutory provisions. We shall mention some of ours later on. In any event, sufficient unto the day is the evil thereof, and we shall not attempt to lay down any rule which should govern in the case of attachments of real or tangible personal property, and confine this opinion to cases involving garnishment in which there has been a general appearance by the garnishee, and in which no objections have been raised by the defendants in the main action, and which do not involve adverse claims of other innocent creditors.
In 38 C.J.S. 381 it is said: "Where the statute so requires, the return should be indorsed on the original, and not on the garnishee summons. Where the notice to the garnishee is incidental to attachment, it must, where the statute so requires, be indorsed on the writ of attachment or a paper annexed thereto, it is not sufficient to indorse it on the back of the notice of garnishment, and the return indorsed on the notice of garnishment will not aid an insufficient return indorsed on the writ of attachment." (Italics supplied). The notice to the garnishee and the writ of attachment are *426 found together in the records before us, and while it is not stated in the return on the original writ of attachment that the notice to the garnishee is made a part thereof, it may, in a sense at least, be said that the return was at least partially made on a paper annexed thereto. In Hackett vs. Gihl, 63 Mo. App. 447, cited under the foregoing text, where the general rule above mentioned is stated, the court said that: "Neither the return nor the notice of garnishment contains any reference to an attachment suit, or attachment writ." That is not true in the case at bar in which the return on the garnishee notice expressly refers to the attachment writ. In Rock vs. Singmaster, 62 Ia. 511, 17 N.W. 744, also cited under the foregoing text, it is stated that the court doubtless could direct the officer to make a proper return on the original writ of attachment. In Bushnell & Clark vs. Joseph Allen & Bro., 48 Wis. 460, 4 N.W. 599, also cited under the foregoing text, it appears that the statute required that the fact of garnishment should appear on the original summons instead of on the notice of garnishment. The court said: "It is claimed that it was the duty of the garnishee to make objection to the proceedings because of these irregularities or defects in the proceedings. Had such objection been made doubtless it would have been unavailing, for the justice would have allowed the officer to make a correct return by indorsing on the original summons a certificate of due service of the garnishee summons," etc. It thus appears that while the foregoing text sustains the general rule that the statute should be followed, when it prescribes that the return should be made on the original writ of attachment, it by no means is decisive of what the holding of this court should be in the case at bar. It may well be that if another creditor should garnishee the same money garnisheed in a case, and no complete notice of the first garnishment is contained on the writ of attachment in the first case, *427 the other creditor's right should take precedence in right, and the garnishee should have the right, commensurate with the situation, to protect itself or himself. But we have no such case before us. No other creditor is claiming any rights herein, and even the defendants in the main suit have never interposed any objection to the attachment and garnishment in this case, and are raising no objections now.
In 7 C.J.S. 422 it is said: "The return to an attachment will not be invalidated by a mere irregularity or defect in form which in no way affects the substance thereof." In 7 C.J.S. 423 it is stated that the return may be aided by facts appearing elsewhere in the proceeding or by parol evidence. In Grebe vs. Jones, 15 Neb. 312, 18 N.W. 81 it appears that the return on the writ of attachment did not show what property was levied upon, but that was shown in the appraisement. Hence, the objection to the return was overruled. In Sinsheimer vs. Whitley, 111 Cal. 378, 43 P. 1109, the return, together with some parol testimony, showed what property was levied upon and the objection to the return was overruled. In Brusie vs. Gates, 80 Cal. 462, 22 P. 284 it is said: "The written return of an officer is not the only evidence of the fact that the writ was properly served; therefore, if the return simply omits to state any fact necessary to a valid service, such fact may be supplied by parol evidence, so long as the facts stated in the return are not varied or contradicted in such way as to affect vested rights. Ritter vs. Scannell, 11 Cal. 249; Porter vs. Pico, 55 Cal. 172; Davis vs. Baker, 72 Cal. 495, 14 Pac. Rep. 102." If a return may be amended, as is held in many cases, except as to intervening rights of innocent parties, the amendment usually relates back to the original return and dates from it. 42 Am. Juris. 115, Section 134; 4 Am. Juris. 919, Section 603; 7 C.J.S. 426, Section 250 (d). To *428 send this case back merely to have the return amended would subserve no good purpose, since what was actually done is definite and certain. The rule in 42 Am. Juris. 21 that process which is amendable supports a judgment should apply in this case.
In 38 C.J.S. 383 it is stated: "Objections as to the form and sufficiency of the return are ordinarily deemed to be waived by the garnishee where he has appeared and answered. * * * It has been both affirmed and denied that the entire absence of a return can be waived by the garnishee." As affirming the right that the garnishee may waive the entire absence of the return, the text cites Graham vs. Hidden Lake Copper Co., 53 Utah 230, 178 P. 64. As denying that right the text cites Federal Truck Co. vs. Mayer, 216 Mo. App. 443, 270 S.W. 407. In the latter case the ruling was based on the fact that the officer serving the notice of garnishment, made no return upon it at all. The contrary is true in the case at bar, so that the Missouri case cannot be considered as of any authority herein. In American Trust Co. vs. Kaufman, 276 Pa. 35, 119 Atl. 749, the court said in part: "The garnishees entered a general appearance. * * * By their appearance they were in court, as was the property attached through service on them. * * * The garnishees, having come into court and brought the res in with them by their appearance, could not set up that there was a faulty return." In Cope vs. Oil Well Supply Co., (Tex. Civ. App.) 57 S.W.2d 917, the court stated: "In the second place the sufficiency of the return of a writ of garnishment becomes immaterial where the garnishee admits statutory service under oath, and particularly so where no rights of other creditors are involved." In Hillis vs. Wolfe (Tex. Civ. App.) 284 S.W. 227, the court stated: "The only office of an officer's return is to make a record of the service, and, where the garnishee under oath admits statutory service, *429 the sufficiency of the officer's return becomes immaterial." To the same effect are Joseph vs. Pyle, 2 W. Va. 449; Saunders vs. Moore, 21 Tenn. App. 375, 110 S.W.2d 1047; Flournoy & Epping vs. Rutledge, 73 Ga. 735; Lee vs. Jackson Light & Traction Co., 261 Fed. 721. In the case of Graham vs. Hidden Lake Copper Co., 53 Utah 230, 178 P. 64 the court said in part: "It is contended by respondent that under the provisions of Comp. Laws 1907, § 3094, a return was necessary, showing due service on the person named as garnishee before the court had jurisdiction of the garnishee or of any property in its hands belonging to the defendant. A reading of that section does not support that contention. That section simply states that the return showing such service shall give the court jurisdiction to proceed against the garnishee as therein provided, but it does not provide that the property sought to be reached was not liable to the claims of the plaintiff until the return of the writ. Such property became liable from the date of service as provided in the second paragraph of chapter 94, Laws Utah 1913. True, the court could not proceed to determine the rights of the parties unless or until there was some evidence before it that process had been served upon the garnishee, but the garnishee was, nevertheless, bound to hold, for the benefit of the plaintiff, whatever property it had belonging to the defendant on the date of serving the writ. In the chapter providing for garnishment there is no time fixed when the officer shall make a return." What the court said as to the necessity of proof being before the court before it could proceed to adjudge the rights of the parties is, we think, satisfied by our statute hereinafter mentioned.
The rule deducible from these authorities, (we cannot say that all cases would support it) seems to be that jurisdiction of the subject matter the money garnisheed in analogy to the rule governing jurisdiction of the person, as heretofore stated, is the actual service *430 of notice of garnishment upon the garnishee, thereby laying hands upon and seizing the money, and that the return upon the writ is but evidence thereof. The seizure in this case was, as far as we can see, in strict conformity to the statute.
If there were any doubt on the subject, so far as this state is concerned, it is, we think, dissipated by the provisions of Section 3-5013, Wyo. Comp. St. 1945 which counsel have overlooked. It provides: "and if the garnishee admit an indebtedness to the defendant and the court order the payment of the same or any part thereof to the plaintiff, and the garnishee fail to pay the same according to such order, execution may issue thereon as upon judgments for the payment of money." That statute means, if it means anything at all, that when a garnishee comes in and answers that he owes money to the defendant, the court by that very fact obtains jurisdiction over the garnishee and the money garnisheed. The return of the officer in such case becomes immaterial, since evidence of what was done is shown by the appearance and answer of the garnishee. Section 3-5031 provides that: "if he (the garnishee) fail to comply with the order of the court to deliver the property and pay the money owing into court, * * * the plaintiff may proceed against him by civil action." We do not know how to reconcile the two sections quoted unless we hold that the term may in the latter section means just what it says; namely, that the plaintiff in a garnishment proceeding has the option, when the garnishee's answer discloses an indebtedness due to the defendant, to have execution issued at once, or proceed by civil action. It is probable that the latter section was particularly intended to apply to a case when a garnishee fails to appear, or when his answer is unsatisfactory.
Another section of our statute has a material bearing *431 herein. Section 3-5018, Wyo. Comp. St. 1945 provides in part: "An order of attachment shall bind the property attached from the time of service; and the garnishee shall stand liable to the plaintiff in attachment to the amount of * * * moneys, credits, and effects in his possession * * * belonging to the defendant * * * from the time he is served with the written notice * * *," etc. That, of course, seems wholly inconsistent with the theory that the lien attaches, and jurisdiction over the res is obtained, only after the return of the writ of attachment has been made in compliance with Section 3-5017, Wyo. Comp. St. 1945 heretofore quoted. Graham vs. Hidden Lake Copper Co., heretofore cited is exactly in point, the court also stating in part: "Under the provisions of the amendment in chapter 94, Laws Utah 1913, the garnishee became liable to the plaintiff from the time of the service of such writ to the amount of any property or indebtedness belonging to or due to the defendant, or in its custody or control, and is required to make answer to the writ showing such property or debt. It will thus be seen that service of the writ upon the garnishee made the garnishee liable for such property, and not the return which the officer is required to make to the court of the action taken by him in the service of the writ."
In view of what has been said, we think we should hold that whatever defect there is in the return of the sheriff here considered is not, under the facts as disclosed in this record, jurisdictional, but may be waived when the garnishee answers generally as it did in this case. That seems to be in complete harmony with Rood on Garnishment, Section 279 heretofore quoted where the author states that "it is held that objections to the sufficiency of the return must be made before or at the time of answering the writ."
We regret the length of this opinion. It is due to so *432 many errors appearing in the record, some of which on first impression appeared to be fatal. But after thoughtful analysis and careful consideration of the numerous cases more or less directly bearing on the points involved herein, we have been constrained to conclude that we should agree with the trial court that these errors were not prejudicial, mainly in view of the fact to summarize that the attack on the judgment in the main suit is a collateral attack, and that the defects in the attachment and garnishment proceeding were not jurisdictional, but were waived by the appearance and answer of the garnishee. Thus we are led to an affirmance of the judgment of the trial court herein. An order to that effect will be entered.
Affirmed.
KIMBALL, C.J. and RINER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361090/ | 903 F. Supp. 1071 (1995)
LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) and Dr. Harold Jones, Plaintiffs,
v.
NORTH EAST INDEPENDENT SCHOOL DISTRICT, Molly Pruitt, Muriel McDonald, Dr. Ann Dixon, William E. McCabe, Dr. G. Richard Holt, Richard Ojeda, and Bruce Bennett, All in Their Official Capacities as Members of The Board of Trustees of The North East Independent School District, San Antonio, Texas, Defendants.
Civ. No. SA-93-CA-483.
United States District Court, W.D. Texas, San Antonio Division.
September 25, 1995.
*1072 *1073 *1074 Judith A. Sanders-Castro, San Antonio, TX, Rolando L. Rios, San Antonio, TX, Mark Stanton Smith, Law Offices of John R. Heard, San Antonio, Jose D. Garza, Law Offices of Garza & Palmiotti, San Antonio, TX, for plaintiffs League of United Latin American Citizens, Statewide, Dr. Harold Jones.
William T. Armstrong, III, Foster, Lewis, Langley, Gardner & Banack, Inc., San Antonio, TX, for defendants North East Indep. School Dist., Molly Pruitt, Muriel R. McDonald, Ann Dixon, Dr., William E. McCabe, G. Richard Holt, Dr., Richard Ojeda and Bruce Bennett, in their official capacity as members of Board of Trustees of the North East I.S.D.
ORDER
SUTTLE, Senior District Judge.
Following a five day bench trial, the Court ordered the parties to file their proposed findings of fact and conclusions of law supported by citation to the trial transcript, exhibits, and case authority. Following a review of the submissions of the parties, the Court found that the record was insufficient to render a ruling as to whether the plaintiffs had satisfied the first prong of the tripartite test set out by the Supreme Court in Thornburg v. Gingles.[1] Accordingly, it sua sponte ordered that the parties and their attorneys appear on July 24, 1995 so that the Court could obtain the information it desired from Dr. George Korbel, plaintiff's demographics expert. Following this, the Court gave the parties until August 4, 1995 to file their supplemental proposed findings of fact and conclusions of law. The Court is in receipt of the supplemental submissions of the parties and, having reviewed the original submissions as well as the supplemental submissions and the evidence adduced at the trial, enters the following order.
I. HISTORY OF THE CASE
Dr. Harold Jones and the League of United Latin American Citizens, Statewide ("LULAC"), plaintiffs herein, filed their complaint on June 23, 1993. Therein they allege that the at-large voting scheme utilized to elect trustees to the Board of Trustees of the North East Independent School District ("NEISD") in San Antonio, Texas dilutes the voting strength of Hispanic and African-American voters in the school district to effectively deny or abridge their right to participate in the political process and to elect candidates of their choice.[2] This, plaintiffs claim, violates section 2 et seq. of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1973 et seq. The present apportionment plan also violates their rights under the Fourteenth and Fifteenth Amendments and 42 U.S.C. § 1983. With regard to relief, plaintiffs seek (1) a declaratory judgment that the at-large election system for electing trustees to the board of trustee of the NEISD is unconstitutional, (2) an injunction prohibiting future at-large NEISD trustee elections, (3) the replacement of the at-large system with a scheme of single-member districts[3], and (4) their attorney's fees and court costs.
*1075 II. JURISDICTION
Jurisdiction over the parties and the subject matter of this action is noted pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. §§ 1973 and 1973j(f).
III. FINDINGS OF FACT
1. Each of the named plaintiffs is a resident of NEISD and at all relevant times has been qualified to vote there.[4]
2. NEISD is situated in the North Central and Eastern portion of Bexar County, Texas[5] and is 132 square miles in size.[6]
3. According to the unadjusted 1990 U.S. Census of Population, the total population of Bexar County was 589,180 Hispanic (50.4%), 494,149 Anglo (42.3%), and 84,670 African-American (7.1%).[7]
4. According to the unadjusted 1990 U.S. Census of Population, the Texas Legislative Council and the Texas Education Agency, 254,106 people reside within the boundaries of NEISD.[8]
5. Broken down by race, the population of NEISD is 62,630 Hispanic (24.6 percent), 13,467 African-American (5.3 percent), and 174,570 Anglo (68.7 percent) Anglo. The combined population of Hispanics and African-American within NEISD is 76,097 (29.8 percent).
6. The population of the NEISD election district is larger than that of the election districts of the City of San Antonio (93,593) and the City of Houston (181,173).[9]
7. A candidate running for a seat on the NEISD school board must approach more voters than would a candidate running for the Texas State House of Representatives or the City Council in the City of San Antonio or the City of Houston.[10]
8. The NEISD is the largest school district in Texas which does not elect its trustees from single member districts.[11]
9. If it were a city, the NEISD would rank as the ninth largest city in Texas in terms of population.[12]
10. The NEISD elects a seven person Board of Trustees by place and by a plurality system. The trustees are elected to staggered three year terms so that in one year three trustees will be elected and in each of the succeeding two years two trustees will be elected.[13]
11. At all relevant times the NEISD has elected its Board of Trustees in at-large elections, by place and with a staggered term requirement.[14]
12. As a result of the NEISD School Board election held on May 6, 1995, the NEISD School Board is presently comprised of Jerry Newton,[15] Marilyn Sorenson,[16] Nancy Stratton,[17] Molly Pruitt, Dr. Ann Dixon, *1076 William E. McCabe and Bruce Bennett.[18]
13. Dr. Henry Flores, plaintiffs' expert on statistical analysis in the existence of polarized voting and political cohesion among African-Americans and Hispanics within NEISD, is a Professor and Chair of the Department of Political Science at St. Mary's University. Dr. Flores earned a Ph.D. from the University of California, Santa Barbara, Santa Barbara, California in 1981. One of the four areas of focus of Dr. Flores in obtaining his doctorate degree was multivariate statistical analysis.[19] Dr. Flores has consulted and/or offered expert testimony in at least six cases involving the Voting Rights Act[20] and has written and published numerous books, papers and articles on the topic of racial discrimination of Hispanics.[21]
14. Dr. Flores was retained by plaintiffs in this case to determine whether or not racially polarized voting exists in NEISD, the degree of that polarization, and whether or not there is political cohesion among the African-American and Hispanic voters of NEISD.[22]
15. For purposes of his analysis in this case, Dr. Flores studied two types of elections. First, he analyzed any NEISD Board of Trustees election which included a minority candidate and for which there was data available to perform either a bivariate ecological regression analysis ("BERA") or some form of turnout analysis. Dr. Flores also analyzed any exogenous elections that featured a minority candidate against a minority candidate and which covered the whole of NEISD.
16. For purposes of his analyses, Dr. Flores obtained the Voting Age Population ("VAP") for each polling place within the jurisdictional boundaries of NEISD. He also collected the election returns data for as many of the NEISD Board of Trustees elections[23] and exogenous elections[24] which met the above-mentioned criteria.
17. In conducting a BERA, the percentage of the total vote won by each candidate in a given voting precinct is treated as a dependent variable and the percentage of the voting precinct's VAP which is Hispanic, Black + Hispanic, or Anglo is treated as the independent variable.[25]
18. When each data point is plotted, the resulting graph of which is referred to as a scatter plot, a regression line can be drawn through the points. This regression line has a slope. The slope measures the degree of change in the dependent variable produced by one unit change in the independent variable.[26]
19. The regression line intercepts both the left and right vertical axes. The points at which the line intercepts the axes, known as the intercept points, provides a statistical approximation of the percentage of Anglo, Hispanic, and Hispanic and Black voters who voted for a particular candidate. For example, for a regression equation in which the independent variable, located on the horizontal axis, is the percentage of the VAP who are Hispanic, the regression line's intercept through the left vertical axis, which represents the independent variable (% of the total vote received by the candidate), constitutes an estimate of the percentage of voters turning out to vote for the candidate in a precinct having no Hispanic voters. This resulting estimate, known as the Y-intercept, represents an approximation of the number of Anglo voters supporting a given candidate. In other words, as the percentage of Hispanic *1077 voters decreases to zero, any votes received by the candidate must have come from Anglo voters. Conversely, for a BERA in which the independent variable is the percentage of the VAP who are Anglo, the line's intercept through the left vertical axis will constitute an estimate of the percentage of Hispanic voters turning out to vote for a particular candidate.[27]
20. Another statistic generated by a BERA is the correlation coefficient, commonly denoted as the "r" or "Pearson's r" statistic. The "r" statistic measures the strength of the relationship between the dependent and independent variable. The "r" ranges from a - 1.0, indicating an inverse relationship in which the independent variable decreases in direct proportion to any increase in the dependent variable, to + 1.0, which indicates that the dependent variable increases at the same rate as the independent variable in a positive direction. The nearer the "r" approaches 0.0, the lesser the relationship is between the two variables. According to Dr. Flores, from .4 to .6 is considered a "substantial relationship", from .6 to .8 a "strong relationship", and from .8 to 1.0 an "almost perfect relationship".[28]
21. A BERA also generates the "R2 factor". The "R2 factor" indicates the probability that the coefficient is true or non-random. Most scholars in the field accept only an "R2" with a level of .05 or higher as significant.[29] An "R2" of less than .05 is considered unreliable.
22. The BERA of NEISD school board elections featuring a minority candidate produced the following:[30]
Hispanic VAP
Y Stat.
Year Candidate r r2 Intercept Signif.
1986 Flores +
Garcia .61 .372 .062 .11[31]
1992 Ojeda -.19 .036 .66 .56[32]
1993 Miller-Ramos[33] .5 .327 .106 .0001[34]
1994 Miller-Ramos* .414 .171 .129 .0001
* This BERA was based on registered voters.
Anglo VAP
Y Stat.
Year Candidate r r2 Intercept Signif.
1986 Flores +
Garcia -.56 .318 .637 .15
1992 Ojeda .45 .205 .193[35] .14
1993 Miller-Ramos -.65 .417 .47 .0001
1994 Miller-Ramos - .41 .171 .502 .0001
Black + Hispanic VAP
Y Stat.
Year Candidate r r2 Intercept Signif.
1986 Flores +
Garcia .564 .318 .043 *
1992 Ojeda .452 .205 .758 *
1993 Miller-Ramos * * * *
1994 Miller-Ramos * * * *
* Information not provided in plaintiffs' exhibit.
23. Dr. Flores also analyzed the NEISD school board elections from 1973 to 1994 in terms of the win rate of candidates by race. That study produced the following:[36]
*1078
NEISD Board of Trustees
Elections for 1973-1994
Candidates by
Race/Ethnicity Winners
Anglo 47(36%)[37]
(98%)[38]
Hispanic 1(11%)
(2%)
Blacks 0(0%)
(0%)
This means that an Anglo candidate was the winner in 47 of 48 elections, a Hispanic candidate in only 1 out of 48 elections, and a Black candidate has never won. Put in terms of percentages, this means that an Anglo was the winner in 98% of the elections, an Hispanic was the winner in only 2% of the elections, and a Black has never won.
24. Dr. Flores prepared another chart showing the results of NEISD school board elections from 1973 to 1994 in terms of the total number of votes received by each candidate, the percentage of total votes received by each candidate, order of finish of each candidate, and the votes needed to win by the losing minority candidate. That chart shows the following:[39]
Elections Results of NEISD Board
of Trustee Races with Minority Candidates
Votes Needed
Year Candidate Votes % Votes Finish to Win
1973 O'Connor 1650 .436 1 n/a
Delavan 1609 .425 2 n/a
Meader 273 .07 3 n/a
Dresslar 146 .038 4 n/a
Saenz* 102 .026 5 1610[40]
* This means that even if Saenz had received all the votes
of the other two losing candidates, Meader and Dresslar,
she still would have finished third.
1974 Higginbotham 1849 .23 1 n/a
Winn 1745 .22 2 n/a
Harris 1641 .20 3 n/a
Kendall 619 .08 4 n/a
Chaloupka 371 .05 5 n/a
Walter 318 .04 6 n/a
Garza* 250 .03 7 1642[41]
8 other Anglo
candidates 1266 .15 8-15 n/a
* This means that even if Garza had received all the votes
of the 8 Anglo candidates who finished below him, he still
would not have received enough votes to win one of the
three seats up for election.
1977 Shaw 6560 .257 1 n/a
Winn 6405 .25 2 n/a
Harris 5939 .23 3 n/a
Higginbotham 4921 .19 4 n/a
Garza 1642 .06 5 4298[42]
Votes Needed
Year Candidate Votes % Votes Finish to Win
1978 Wenglein 2468 .47 1 n/a
Hallmark 2326 .44 2 n/a
Garza 481 .09 3 1988[43]
1986 Everett 3354 .51 1 n/a
Flores* 1522 .23 2 1833
Kimbrough 981 .15 3 n/a
Eanes 574 .09 4 n/a
Garcia 121 .02 5 3234
* This means that Flores would not have won even if he
had received all the votes garnered by Kimbrough, Eanes
and Garcia. Likewise, Garcia would have last even if he
had received all of the votes received by Flores, Kimbrough
and Eanes.
1992 Ojeda 1638 .58 1 n/a
Saidi 1203 .42 2 n/a
1993 Pruitt 17291 .55 1 n/a
Hite 6636 .21 2 n/a
Miller-Ramos* 5649 .18 3 11643
Olezene[44] 1900 .06 4 15392
* This means that Miller-Ramos would have lost even if
she had received all of the votes received by Hite and
Olezene. Likewise, Olezene would have lost even if she/he
had received all of the votes cast for Miller-Ramos and
Hite.
1994 McCabe 6410 .57 1 n/a
Shackelford[45] 2192 .20 2 n/a
Miller-Ramos* 1808 .16 3 4603
Peppers 773 .07 4 n/a
* This means that Miller-Ramos would not have won
even if she had received all of the votes received by
Shackelford and Peppers. Likewise, Shackelford would
not have won even if she/he had received all of the votes
received by Miller-Ramos and Peppers.
25. An analysis of NEISD support for minority candidates in NEISD school board elections in terms of the minimum percent of Hispanic votes received and the maximum percent of Anglo votes received yielded the following figures:[46]
*1079
NEISD Support
For Minority Candidates
Board of Trustees Elections, 1986-1994
Minimum % Maximum %
Year Candidate Hispanic Vote Anglo Vote
1986 Flores +
Garcia* .69 .04
1992 Ojeda* .58[47] .75
1992 Saidi .42 .30
1993 Miller-Ramos** .48 .09
1994 Miller-Ramos** .50 .13
* This data was calculated using Voting Age Population.
** This data was calculated using Hispanic Registered
Voters.
26. A chart in which Dr. Flores compares, inter alia, the preferred candidate of Hispanic voters to the preferred candidate of Black voters in NEISD elections shows the following:[48]
NEISD School Board Elections
Hispanic Black
Year Preferred Candidate Preferred Candidate
1986 Bankler Bankler
1987 Shacklett Shacklett
1990 Pruitt Chalk
1993 Ramos Ramos
27. Dr. Flores also analyzed NEISD school board elections in terms of the minimum percent of non-Hispanic votes[49] received by Anglo candidates as compared to the percent of non-Hispanic votes received by Hispanic candidates and found the following:[50]
Anglo "Block Voting"
Over-Lapping Percentages
Minimum Non-Hispanic
% Non-Hisp. % Votes for Vote % Votes
Registered Hispanic for Anglo for Anglo
Year Voters Candidates Candidates Candidates
1977 88% 6% 88% - 6% = 82% 82%
1978 88% 9% 88% - 9% = 79% 79%
1986 88% 25% 88% - 25% = 63% 63%
1992 88% 58% 88% - 58% = 30% 30%
1993 87% 18% 87% - 18% = 69% 69%
1994 87% 16% 87% - 16% = 71% 71%
28. Dr. Flores also performed BERAs of exogenous elections[51] with a minority candidates[52], the results of which show the following:[53]
Hispanic VAP
Y Stat.
Year Candidate r r2 Intercept Signif.
1988 Gonzalez[54] .56 .394 .32 .0001[55]
1988 Canales[56] .63 .40 .21 .0001
*1080
Y Stat.
Year Candidate r r2 Intercept Signif.
1988 Rodriguez[57] .65 .424 .23 .0001
1988 Cantu[58] .64 .415 .15 .0001
1988 Mireles[59] .68 .462 .21 .0001
1988 Garza[60] .66 .433 .34 .0001
1990 Morales[61] .60 .361 .49 .0001
1992 Guerrero[62] .76 .574 .13 .0001
1992 Overstreet[63] .70 .487 .24 .0001
1992 Benavides[64] .57 .321 .26 .0001
1992 Gabriel[65] .65 .425 .27 .0001
1992 Roman[66] .63 .402 .31 .0001
1992 Lopez[67] .56 .318 .38 .0001
Anglo VAP
Y Stat.
Year Candidate r r2 Intercept Signif.
1988 Gonzalez -.56 .316 .64 .0001
1988 Canales -.62 .382 .61 .0001
1988 Rodriguez -.62 .384 .53 .0001
1988 Cantu -.64 .405 .53 .0001
1988 Mireles -.65 .420 .62 .0001
1988 Garza -.63 .402 .71 .0001
1990 Morales -.63 .396 .76 .0001
1992 Guerrero -.81 .651 .69 .0001
1992 Overstreet -.75 .560 .75 .0001
1992 Benavides -.61 .365 .73 .0001
1992 Gabriel -.72 .365 .73 .0001
1992 Roman -.72 .519 .88 .0001
1992 Lopez -.63 .395 .78 .0001
29. A comparison of the candidate preferred by Hispanics with the candidate preferred by Blacks in exogenous elections shows the following:[68]
City of San Antonio
Hispanic Black
Year Preferred Candidate Preferred Candidate
1985 Cisneros Cisneros
1987 Cisneros Cisneros
1989 Cockrell Cockrell
1991 Berriozabal Berriozabal
1993 Wolff Wolff
General Elections
Hispanic Black
Year Preferred Candidate Preferred Candidate
1986[69] Lee Lee
1986[70] Cisneros Cisneros
1990[71] Rodriguez Rodriguez
1990[72] Rivera Rivera
1992[73] Offutt Coulter
Thus, Blacks and Hispanics preferred the same candidate in all 5 city elections and 4 of the 5 general elections.
30. A study of NEISD support for minority candidates in exogenous elections in terms of the minimum percent of Hispanic vote received and the maximum percent of Anglo vote received was as follows:[74]
NEISD Support
For Minority Candidates
General Elections, 1986-1994
Minimum % Maximum %
Year Candidate Hispanic Vote Anglo Vote
1988 Gonzalez .71 .32
1988 Canales .67 .20
1988 Rodriguez .58 .23
1988 Cantu .58 .15
1988 Mireles .69 .20
1988 Garza .76 .34
1990 Morales .78 .49
1992 Guerrero .73 .11
1992 Overstreet .78 .22
1992 Benavides .76 .24
1992 Gabriel .85 .24
1992 Roman .89 .28
1992 Lopez .80 .36
This means that the minority candidate in exogenous elections received, on average, a maximum of 26% of the Anglo vote in NEISD and a minimum of approximately 74% of the Hispanic vote in NEISD.
31. Several facts are undeniable in light of the results of the analyses performed by Dr. Flores.
32. First, there is a high degree of cohesion among Hispanic voters in NEISD.
*1081 33. Second, there is a high degree of cohesion among Hispanic and Black voters in NEISD.
34. Third, there is a high degree of cohesion among Anglo voters in NEISD.
35. Fourth, there is a clear and persistent history of racially polarized voting in both NEISD school board elections as well as in exogenous elections as evidenced by the fact that Anglo voters have consistently voted together in large percentages for Anglo candidates while Hispanic and Black voters have voted together for either the Hispanic or Black candidate.
36. Fifth, Anglos have consistently voted together for the Anglo candidate in such large percentages that the minority candidate, despite receiving a relatively significant percentage of minority votes, has rarely received enough Anglo crossover votes to win.
37. Sixth, the correlation between the race of the voter and the voter's choice of candidate is statistically significant and cannot be attributed to chance.
38. Dr. William Rives, defendants' expert, testified that his analyses of NEISD school board elections and exogenous elections failed to reveal the existence of racially polarized voting in the NEISD, bloc voting by Anglo voters to defeat the preferred candidate of minority voters, or cohesion among Hispanic and Black voters.[75] However, this Court, for the reasons set forth below, finds that Dr. Rives' testimony is not credible.
39. First, Dr. Rives used the voting age population, not the actual turnout at the polls, as his independent variable.[76] However, on cross examination, Dr. Rives admitted that the best measure of the independent variable is actual turnout at the polls, and the second most accurate data is voter registration data by precinct and ethnicity.[77]
40. Second, in trying to discern the existence of racially polarized voting in NEISD, Dr. Rives, unlike Dr. Flores, limited his analysis to NEISD school board elections.[78] And, unlike Dr. Flores, Dr. Rives did not restrict his analysis to only those elections in which there was a minority candidate running against an Anglo candidate. Instead, he looked both at elections pitting an Anglo candidate against a minority candidate as well as elections having only Anglo candidates.[79] However, on cross-examination, Dr. Rives admitted that this method of analysis was inconsistent with the method of analysis used by Dr. Bernard Groffman, whose analysis was approved by the Supreme Court in Gingles, as well as that of Dr. Alan Lichtman, Dr. Albert Table, Dr. Robert Brischetto, all of whom are recognized experts in the field of racially polarized voting.[80]
41. What is more, Dr. Rives accorded the same weight to an Anglo-Anglo election as he did to an Anglo-minority election despite acknowledging that doing so is contrary to the Fifth Circuit's observation in Citizens for a Better Gretna v. City of Gretna[81] that, "Gingles is properly interpreted to hold that the race of the candidate is in general of less significance than the race of the voter but only within the context of an election that offers voters the choice of supporting a viable minority candidate."[82]
42. The value of Dr. Rive's opinion is further diminished by the fact that, although he analyzed general elections, he did not rely on the results of those analysis in formulating an opinion as to the existence of racially polarized voting. According to Dr. Rives, the reason he did not rely on those results is because such elections are partisan elections. Yet, Dr. Rives admitted during cross-examination that, although it was possible to do so, he had not done a multi-variate analysis to determine the effect that party affiliation had *1082 on the results.[83] He also conceded that he had failed to perform a BERA on the primary elections as had been done by Dr. Gibson, plaintiffs' expert, to measure the impact of party affiliation on the results of general elections.[84]
43. With respect to his opinion that there is no cohesion among Hispanic voters in NEISD, Dr. Rives testified that this conclusion was based on the fact that his analysis showed that Hispanic voters, with the exception of the 1986 election, never gave a candidate a majority of their vote, but instead spread their votes among all candidates.[85] Yet, when pressed on cross-examination about what he considered to be an indication of cohesion of minority voters in a plurality election system, Dr. Rives agreed that expressing a clear preference for a candidate does not necessarily mean that a candidate must have received a majority of the minority votes.[86] Using that standard, it is obvious that Hispanics have voted cohesively in almost every NEISD school board election from 1986 to 1994. In 1986, Bankler received 78.1% of the Hispanic vote for place 5, Everett received 49.8% for Place 6, and Lampert received 66.4% for place 7. In 1987, Shacklett received 60.9% of the Hispanic vote for place 1, and Pruitt received 58.6% for place 2. In 1988, Coulter received 53.5% of the Hispanic vote for place 3, while McDonald received 46.1% for place 4. In 1989, McDonald received 41.7% of the Hispanic vote for place 5, Caldarola received 46% for place 6, and Ogden received 57% for place 7. In 1990, Bray received 44.2% of the Hispanic vote for place 1, and Pruitt received 71.7% for place 2. In 1991, McCabe received 80.2% of the Hispanic vote for place 3, while Saidi received 49% for place 4. In 1992, Ojeda received 58.6% of the Hispanic vote for place 6. In 1993, Bennett received 69.1% of the Hispanic vote for place 1, while Ramos-Miller received 45.9% for place 2. In 1994, Ramos-Miller received 41.9% of the Hispanic vote for place 3, while Gamble received 46.8% for place 4.[87]
44. Dr. Rives' conclusion that there is no cohesion between Black and Hispanic voters in NEISD is likewise suspect because it is based only on his study of school board elections. As noted earlier, Dr. Rives disregarded the results of the analysis he performed on the general elections because he assumed that party affiliation, rather than race, accounted for the results in such elections. However, Dr. Rives performed no multi-variate analysis that would have proved or disproved this assumption.[88] More importantly, Dr. Rives admitted that his analysis of the general elections showed, inter alia, both that Hispanics and Blacks generally vote together and that they vote differently than Anglo voters in NEISD.[89]
45. With respect to whether Anglos vote sufficiently as a bloc to usually defeat the preferred candidate of the Hispanic and Black voters of NEISD, one need only look at the results of the NEISD school board elections featuring a minority candidate from 1973 to 1994, as set forth in Pls.Exh. 38-D, 38-E and 38-F, to realize that the Anglo voters of NEISD consistently vote as a bloc to defeat the preferred candidate of the Hispanics and Blacks in NEISD school board elections.
46. As calculated by Dr. Korbel, the total population of NEISD is 261,172.[90] If *1083 NEISD were divided into seven equally populated districts, each district would ideally contain 37,310 people. One of those proposed districts, Proposed District No. 3, would be a district in which the combined Hispanic and Black VAP would constitute a majority of the VAP.
47. As calculated by Dr. Korbel, the VAP of Proposed District 3 would be 49% Hispanic, 3% Black, and 46.8% Anglo.[91]
48. However, defendants have attacked the method by which Dr. Korbel calculated the population of Proposed District 3. Specifically, Dr. Tucker Gibson, the defendants' demographics expert, testified that the correct method of calculating the population in census blocks split by NEISD's boundaries is to determine the housing counts in split portions of the census block and then allocate the population of the census block in accordance with the percentage of the housing units in the parts of the split census blocks. Using this method of calculation, Dr. Gibson arrived at the following population figures for NEISD and Plaintiffs' Proposed District 3:[92]
NEISD Total Population
Total: 253,582 (100%)
Anglo: 173,349 (68.4%)
Hisp.: 62,454 (24.6%)
Black: 12,559 (5%)
Other: 270 (.1%)
NEISD Voting Age Population
Total
VAP 189,659 (100%)
Anglo: 134,909 (52.7%)
Hisp.: 42,459 (22%)
Black: 8,391 (4%)
Other: 168 (.09%)
Proposed District 3 Total Population
Total: 33,856 (100%)
Anglo: 14,222 (42%)
Hisp.: 18,102 (53.5%)
Proposed District 3 Total Population
Black: 1,084 (3.2%)
Other: 448 (1.3%)
Proposed District 3 Voting Age Population
Total
VAP 24,719 (100%)
Anglo: 11,592 (46.9%)
Hisp.: 12,094 (48.9%)
Black: 677 (2.7%)
Other: 356 (1.4%)
49. Thus, as Dr. Gibson conceded, even using his method to calculate the total population and VAP of both NEISD and Plaintiffs' Proposed District 3, the Plaintiffs' Proposed District 3 would still contain a combined Hispanic and Black VAP of 51.6%. In short, it would contain a minority majority of the VAP of Proposed District 3.
50. Defendants further contend that plaintiffs should be required to show that they would constitute a majority of the voting age citizenship population in Proposed District 3.
51. However, Dr. Korbel testified that in all the years he has been involved in drawing redistricting plans and submitting them for clearance by the Department of Justice, no redistricting plan has been rejected for failing to take citizenship into account.[93]
52. Likewise, Dr. Rives, defendants' own expert, conceded that he knew of no case authority requiring the plaintiffs to show that they comprise a majority of the citizen voting age population in a proposed single-member district. That requirement, Dr. Rives admitted, was imposed by him only at the direction of defense counsel.[94]
53. The Fifth Circuit, by whose holdings this Court is bound, has repeatedly held that plaintiffs in a § 2 case need only show that they can draw a proposed district in which they comprise a majority of the voting age population in order to satisfy the first prong of Gingles.[95]
*1084 54. Likewise, except for a lone case decided after the trial in this matter[96], the district courts in the Fifth Circuit, in evaluating whether plaintiffs in a vote dilution case have satisfied the first prong of Gingles, have required only that the plaintiffs prove that they would constitute a minority majority of the voting age population in at least one proposed district.[97]
55. The Court finds that the plaintiffs have shown that they can draw a proposed single member district in which Hispanics and Blacks constitute a majority of the voting age population, as evidenced by Plaintiffs' Proposed District 3.[98]
56. The Court also finds that the Plaintiffs' Proposed District 3 is geographically compact. With regard to the shape of Plaintiffs' Proposed District 3, the Court finds that the two-headed dragon configuration is not the result of racial gerrymandering, but is due in large part to the plaintiffs having to draw around the northern boundary of the Alamo Heights Independent School District.[99], [100]
57. Plaintiffs also have shown that voting in NEISD school board elections is significantly polarized along racial lines.
58. As noted earlier, of the 48 candidates elected to the NEISD Board of Trustees *1085 between 1973 and 1994, 47 are Anglo and 1 is Hispanic. Stated in percentages, this means 98% of all winners in NEISD school board elections in the past 21 years are Anglo, while 2% are Hispanic. Of the Anglo candidates who have run, 36% were winners. By contrast, only 11% of Hispanic candidates won, while no Black candidate has ever won.[101]
59. Absent special circumstances, there are not enough Anglo cross-over votes to allow a minority candidate to succeed in the at-large election system presently used in NEISD school board elections.
60. Richard Ojeda, the only Hispanic candidate to be elected to the NEISD school board, ran against a woman with an Iranian-sounding name, Brigetta Saidi[102], in 1992, shortly after the Persian Gulf War.[103]
61. Ojeda was elected with the support of the Positive Direction Committee ("PDC"), a slating group of Anglos within NEISD[104], and the support of at least one Anglo trustee, Bill McCabe.[105]
62. Ojeda lost in his bid for reelection in May of 1995.[106]
63. The PDC was formed in 1988-89 and was comprised entirely of Anglos.[107] There is no evidence a minority ever served on the PDC.
64. There is no evidence that NEISD school board campaigns have been characterized by overt or subtle appeals to race.
65. There is no dispute that Texas has a long history of discrimination against its Black and Hispanic citizens in all areas of public life. Dr. Korbel testified in a general fashion that minority citizens had been subjected to discriminatory voter registration laws, poll taxes, racially restrictive covenants in real estate transactions[108], and segregated schools in the past.[109] However, the plaintiffs have offered no evidence in the form of empirical data that shows that Blacks and Hispanics in NEISD currently register to vote at a lower rate than Anglos, that the turnout level of Blacks and Hispanics is lower than that of Anglos in NEISD, or any other factor which would demonstrate that past discrimination has hampered the ability of Blacks and Hispanics in NEISD to participate presently in the political process.
66. The 1990 Census shows that 2,734 (8.9%) Hispanics over the age of 25 in NEISD were functionally illiterate or had completed less than 8 years of formal education. The functional illiteracy rate of Anglos, on the other hand, was only 3.1%.[110]
67. The 1990 Census also reflects that only 8,031 Hispanics within NEISD were high school graduates as compared to 30,496 Anglos. Only 1,323 Blacks were high school graduates.[111]
68. With respect to college graduates, the 1990 Census showed that 28,401 (82.1%) of the residents of NEISD with a college degree were Anglo, 4,230 (12.3%) of NEISD residents with a college degree were Hispanic, and 958 (3.1%) of NEISD residents with a college degree were Black. In other words, 80% of the holders of college degrees in NEISD are Anglo.[112]
69. With respect to graduate and professional degrees, Anglos comprise 83.8% of the people in NEISD with graduate or professional degrees. Hispanics hold only 9.8% and Blacks 3.9%.[113]
*1086 70. With respect to the percentage of each race which lives below the poverty level, the 1990 Census revealed that 20.4% of the Black families in NEISD live below the poverty level; that 14.2% of Hispanic families lived below the poverty level; and 7% of the Anglo families existed below the poverty level.[114]
71. According to the 1990 Census, the mean income for Anglo households in NEISD was $44,258.00, the mean income for Hispanic households in NEISD was $34,109.00, and the mean income for Black households in NEISD was $29,787.00. Thus, the mean income for Anglo households in NEISD was approximately 129% that of Hispanic households and 149% that of Black households.[115]
72. The 1990 Census also shows that 30.6% of Anglo households in NEISD have annual income levels exceeding $50,000 as compared to only 15% of Black households and 18.2% of Hispanic households.[116]
73. The 1990 Census further shows that only 16.1% of Anglo households in NEISD have an annual income of less than $15,000. By way of contrast, 29.4% Black households and 22.3% Hispanic households fall below that level.[117]
74. With respect to the average per capita income, the 1990 Census indicates that Anglos in NEISD earned $18,364 while Blacks and Hispanics earned $11,661 and $11,216, respectively.[118] In other words, Anglos earn almost 160% the per capita income of Hispanics and Blacks.
75. The scores of NEISD Black and Hispanic students generally are considerably lower than the scores of NEISD Anglo students on the Texas Assessment of Academic Skills exam[119], the standardized test administered by the Texas Education Agency each year to all school students in Texas.[120]
76. The Court finds that plaintiffs have shown that Blacks and Hispanics still bear the effects of past discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.
77. Contrary to plaintiffs' assertions otherwise, the Court finds that the plaintiffs have not proved that NEISD has a history of being unresponsive to the concerns or needs of its minority community.
78. Plaintiffs claim that the naming of an athletic center of Virgil T. Blossom, an alleged racist, as evidence of the school district's insensitivity. However, the plaintiffs' assertion that Blossom was a racist is not supported by any credible evidence. What is more, Jesse Culter, who served on the NEISD school board three years, one of which as president, testified that he never even attempted to place on the agenda for consideration by the school board the renaming of the Virgil T. Blossom Athletic Center.[121]
79. Plaintiffs also cite the fact that Robert E. Lee High School flew the Confederate flag until 1993 as evidence of the school district's insensitivity to minorities. Once again, however, the evidence shows that no one ever approached the school board and requested that the flag not be flown.[122] Likewise, Culter admitted that he never asked that the issue be placed on the board's agenda during the three years he served as trustee.[123] What is more, when students at the high school did voice their displeasure about the Confederate flag being flown, Bill Fisch, the principal at Lee High School, ordered that the flag not be flown and that a different symbol be used.[124]
*1087 80. Plaintiffs also claim that the school district's administration blocked efforts by board members to review the at-large election system. Yet, Culter admitted on cross-examination that he never attempted to place the issue of single-member districts on the school board's agenda while he was a trustee[125] or since leaving the board in 1991.[126]
81. Another indication of the school district's insensitivity, according to plaintiffs, is the use of race in drawing school attendance zones for Castle Hills Elementary and Redland Oak Elementary school. However, Dr. Middleton testified that all school attendance zones, including those for Castle Hills Elementary and Redland Oak Elementary, are created strictly on the basis of the number of students.[127] With reference to Castle Hills Elementary, Dr. Middleton testified that it is a school of choice, meaning that students from a seven elementary school region can elect to attend it, regardless of race or ethnicity.[128]
82. Plaintiffs also claim that the school district has displayed its insensitivity by failing to actively recruit minority teachers. While plaintiffs have introduced evidence that NEISD did not actively recruit Hispanics and Blacks until recently, defendants have come forth with evidence that since 1992 the school district has intensified its efforts to attract minority teachers by recruiting not only from Texas universities and colleges, but also to New York and California.[129] However, as Dr. Middleton pointed out, the school district is confronted with the reality that fewer minorities are pursuing a profession in teaching.[130] This also undercuts Plaintiffs' argument that the school district is insensitive to the needs of its minority population because it employs a teacher work force that is less than 10% Hispanic and less than 2% Black when its student population is nearly 40% minority. Plaintiffs have offered no evidence that the low level of minority teachers in NEISD is attributable to any insensitivity on the part of the school district rather than a small pool from which to recruit minority teachers.
83. Another manifestation of the school district's insensitivity, Plaintiffs argue, is the scarcity of Hispanics in administrative positions. As evidenced by Plaintiffs' Ex. P-18, of the 150 administrators in the school district, only 14 are Hispanic.[131] However, Dr. Middleton, who is part Hispanic himself,[132] also testified that there are 29 minority administrators in the school district, 18 of whom have been appointed since he was appointed as Superintendent in 1989.[133] Therefore, while it may be true that Dr. Middleton's predecessors impeded the advancement of minorities to administrative positions, the Court does not find the evidence to substantiate this allegation as to Dr. Middleton.
84. Plaintiffs also offer the fact that none of the four assistant superintendents is a minority[134] as another example of the lack of responsiveness by NEISD to the concerns of its minority population. Yet, plaintiffs failed to offer any evidence as to when and by whom these people were appointed, what their qualifications are in terms of experience and education, or anything else that would support this allegation.
85. Another example of non-responsiveness by the school district, contend plaintiffs, is the establishment of boundary lines that result in Lee High School having a student population which is 56% minorities while Churchill High School has a student population that is less than 25% minorities even though the two school share a common *1088 boundary line and are less than five miles apart.[135] As pointed out by Dr. Middleton, however, school boundaries are drawn based on the number of students each school can accommodate, not with an eye toward creating a racially balanced student body. Also, what plaintiffs' argument ignores is the testimony of Dr. Korbel, their own expert, that the heaviest concentration of Hispanics in NEISD is in the southern portion of Plaintiffs' Proposed District 3, where Lee High is located, due to the migration of Hispanics into the area during the last decade as Anglos have moved out to new developments on the north side of the school district.[136] This, rather than any insensitivity on the part of the school district, would account for the large number of minority students in Lee High School as compared to Churchill.
86. Plaintiffs also see a lack of responsiveness by the school district to the needs of its minority students in the fact that Dr. Richard Holt, the President of the school board at the time of this trial, testified that it was possible for a student to attend school in NEISD for 12 years without ever having a minority teacher. However, Dr. Holt also testified that the NEISD teaching staff is very stable with very little turnover. He also noted, as did Dr. Middleton, that there is a limited pool of minority teachers and administrators from which the school district can recruit.[137] Moreover, as Richard Ojeda pointed out, the school district is also at a disadvantage by virtue of the fact that it must compete with other school districts, such as Alamo Heights, which can offer higher salaries to attract minority teachers.[138] Given these other factors, the Court cannot blame the low percentage of minority teachers in NEISD on any lack of concern or effort to remedy the situation by the school district.
87. Plaintiffs cite the testimony of Dr. Jones, the African-American plaintiff, that the school board has a long history of discrimination against African-Americans as evidence of its unresponsiveness to the minority community. However, the discrimination of which Dr. Jones testified referred to discrimination that occurred when he attended school in the 1940s and to the discrimination that existed in 1960s.[139] Dr. Jones related no incidents of discrimination by the current school board.
88. The final example of school board insensitivity offered by the Plaintiffs is the poor performance of minority students on the TAAS exams. There is no dispute that the TAAS results of minority students in NEISD are not disconcerting. However, plaintiffs have not pointed to any evidence of the school board ignoring the problem or not taking steps to better prepare minority students for the TAAS exam. In fact, the evidence put on by the defendants compels the exact opposite conclusion. A broad range of programs have been enacted by the school district which are designed to identify and address the educational needs of students, including minority students, who are struggling in class and who are at risk of failing or dropping out.[140]
89. Until 1990, there were only eight polling place within NEISD for school board *1089 elections, even though the school district contains over 250,000 people.[141]
90. NEISD currently utilizes a place system to elect its trustees, a voting device which prevents "single-shot" voting by minority voters.[142]
91. Generally speaking, minority candidates have more limited resources with which to finance their campaign than do Anglo candidates in NEISD.[143]
92. It is more expensive to run for office in the current at-large system used by NEISD than it would be to run for office in a single-member district system as proposed by plaintiffs.
93. The sheer geographical size of NEISD makes it virtually impossible for a minority candidate to conduct a grass roots or door-to-door campaign. Such a campaign could be conducted, however, in a single-member district.[144]
94. A study by the U.S. Commission on Civil Rights reveals that Texas jurisdictions that have adopted single-member districts have experienced a two or three-fold increase in the number of elected minority candidates.[145]
95. That same study also looked at coalition voting patterns in Texas and found that districts in which the Black and the Hispanic populations, when combined, exceed 50% of the population are characterized by Blacks and Hispanics voting together for minority candidates. Such districts, the study showed, also elect more minority candidates than does a single Black or a single Hispanic district of the same total percentage.[146]
96. Dr. Gibson, defendants' expert, has written scholarly articles in which he reported finding that a coalition had developed between Blacks and Hispanics of Bexar County in the 1960s and 1970s and that a plurality district of Blacks and Hispanics has consistently elected black candidates in city council and state legislative elections throughout the 1970s, 1980s and 1990s.[147]
IV. CONCLUSIONS OF LAW
1. In 1982, Congress amended § 2 of the Voting Rights Act "to clearly establish the standards ... for proving a violation of that section." S.Rep.No. 97-417, 97th Cong., 2d Sess. 2, reprinted in 1982 U.S.Code Cong. & Admin.News pp. 177, 178.
2. Section 2, as amended, reads as follows:
(a) No voting qualification or prerequisite to voting or standard, practice or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color or in contravention of the guarantees set forth in section 1973b(f) of the title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to the participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973 (emphasis in original).
In other words, any electoral mechanism which dilutes the voting strength of a minority group is as impermissible a denial *1090 of the right to have one's ballot count fully as the denial of the right to vote. S.Rep. at 28, 1982 U.S.Code Cong. & Admin.News at 205.
3. The aim of the Voting Rights Act is to prevent political bodies from implementing election systems or practices which act, whether intentionally or not, to minimize, cancel, or dilute the voting strength or political effectiveness of minority groups.
4. Thornburg v. Gingles,[148] the first substantive interpretation by the Supreme Court of the 1982 amendment in the context of an at-large election system, is important for several reasons. First, it recognized, through the language and legislative history of the 1982 amendment to § 2, that the intent of Congress in amending § 2 was to eliminate the requirement of showing discriminatory intent in a challenge to a contested electoral mechanism which had been imposed by the plurality decision in City of Mobile, Ala. v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980),[149] and replaced it with the "results test" formulated by the Supreme Court in White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L. Ed. 2d 314 (1973).[150] By doing so, Congress sought to focus the inquiry on the effect a contested electoral mechanism has on a minority group's ability to participate equally in the political process and away from the legislature's intent.[151]
5. Section § 2 now utilizes the results test of White v. Regester. The White test provides that
[t]he plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question that its members had less opportunity than did other residents in the district to participate in the political process and to elect legislators of their choice.
White, 412 U.S. at 766, 93 S.Ct. at 2339, citing Whitcomb v. Chavis, 403 U.S. 124, 149-150, 91 S. Ct. 1858, 1872, 29 L. Ed. 2d 363 (1971).
6. This test requires the Court to engage in a searching and practical inquiry into the "past and present reality" of the circumstances existent in the challenged jurisdiction. White, 412 U.S. at 769-770, 93 S.Ct. at 2341. It is a flexible test and turns on the facts of each particular case.
7. Although it did not intend them to be either comprehensive or exclusive, Congress, in an effort to give guidance to the courts in applying the results test, enumerated a number of typical factors plaintiffs could show to establish a § 2 claim, to-wit:
1. the extent of any history of official discrimination in the state or political sub-division that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
*1091 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
8. Other factors that sometimes have had probative value as part of plaintiffs' evidence to establish a § 2 violation are:
whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
S.Rep. No. 417 at 28-29, reprinted in 1982 U.S.Code Cong. & Admin.News at 206-207 (footnotes omitted).
9. However, plaintiffs are not required to prove any particular number of factors or that a majority of factors point a particular way to establish a violation. Id. at 29, 1982 U.S.Code Cong. & Admin.News at 207.
10. Finally, despite the enumerated Senate Report factors, three necessary preconditions must exist for a contested electoral mechanism to dilute minority voting power. That three-part test, as formulated by the Gingles Court, is as follows:
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.
... Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it in the absence of special circumstances, such as the minority candidate running unopposed, usually to defeat the minority's preferred candidate.
478 U.S. at 48-51, 106 S.Ct. at 2766-2767.
11. Although § 2 is designed to provide equal access to the political process, neither it or the case law construing it gives members of a protected class an unqualified right to elect a number of representatives equal to its proportion of the population. Both Whitcomb and White held that proof of a § 2 violation requires more than showing that the minority group has failed to elect representatives equal to its proportion of the population. S.Rep. at 23, 1982 U.S.Code Cong. & Admin.News at 200.
12. The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives.[152]
13. The Supreme Court has long recognized that multi-member districts and at-large voting schemes may "`operate to minimize or cancel out the voting strength of racial [minorities in] the voting population.'"[153]
*1092 14. The theoretical basis for this type of impairment is that where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters.[154]
15. However, multi-member districts and at-large election schemes are not per se violative of minority voters' rights.[155]
16. Minority voters who contend that the multi-member form of districting violates § 2, must prove that the use of a multi-member electoral structure operates to minimize or cancel out their ability to elect their preferred candidates.[156]
17. Although § 2 is designed to provide equal access to the political process, neither it or the case law construing it gives members of a protected class an unqualified right to elect a number of representatives equal to its proportion of the population.
18. With regard to the first prong of Gingles, the Court finds, contrary to the defendants' contention otherwise, that the plaintiffs need not show that they constitute a majority of the voting age citizens in a proposed single-member district. The Fifth Circuit has consistently held that plaintiffs in a § 2 case need only show that they can draw a proposed district in which they comprise a majority of the voting age population in order to satisfy the first prong of Gingles.
19. The Court concludes that the plaintiffs have demonstrated that they are sufficiently large and geographically compact to constitute a majority of the voting age population in Plaintiffs' Proposed District 3.
20. There is nothing in the law that prevents the plaintiffs from identifying the protected aggrieved minority to include both Blacks and Hispanics.[157] However, to prove the fact of their electoral dilution, plaintiffs must prove that Blacks and Hispanics actually vote together and are impeded in their ability to elect their own candidates by all of the circumstances, including especially the bloc voting of a white majority that usually defeats the candidate of the minority. This does not mean that plaintiffs must show that Blacks are cohesive, that Hispanics are cohesive, and that Blacks and Hispanics are together cohesive. Instead, the proper standard is the same as Gingles; whether the minority group together votes in a cohesive manner for the minority candidate.[158]
21. Political cohesiveness can be demonstrated by showing that "a significant number of minority group members usually vote for the same candidate."[159]
22. The Court concludes that plaintiffs have shown that there is political cohesion among Black and Hispanic voters in NEISD and have, therefore, satisfied the second prong of Gingles.
23. With regard to the defendants' attempt to include Anglo-Anglo races in its analysis, this ignores Fifth Circuit case law which has consistently viewed elections between white candidates as "generally less probative in examining the success of minority-preferred candidates," generally on the ground that such elections fail to provide minority voters with the choice of a minority candidate.[160]
*1093 24. The Court also concludes that plaintiffs have demonstrated that the white majority in NEISD votes sufficiently as a bloc to enable it in the absence of special circumstances usually to defeat the preferred candidate of Black and Hispanic voters in NEISD.[161] Thus, plaintiffs have satisfied the third prong of Gingles.
25. Based upon the totality of the circumstances, the Court finds that the current at-large electoral system in the North East Independent School Districts dilutes the ability of Hispanics and Blacks to participate equally in the political process and elect candidates of their choice in school board elections and therefore violates § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. Accordingly, the Court finds that the at-large electoral system used by the North East Independent School District is null and void.
26. It is unclear whether the Fifteenth Amendment applies to vote dilution claims, and, if so, to what extent.[162] Insofar as the present action is concerned, the Court finds that the Fifteenth Amendment's prohibition against "purposeful discriminatory denial or abridgement by government of the freedom to vote `on account of race, color, or previous condition of servitude'" is subsumed in the analysis required under the Fourteenth Amendment's equal protection clause.[163]
27. To prevail on their claim under the Fourteenth Amendment, plaintiffs must show: (1) intentional discrimination; and (2) a resultant discriminatory effect.[164] The discriminatory purpose need only be a motivating factor in the school district's decision to conduct at-large elections; it need not be the sole or even primary factor in that decision in order to find a violation of the Fourteenth Amendment.[165] A discriminatory purpose, as a motivating factor, "implies more than intent as volition or intent as awareness of consequences."[166] Instead, it implies that the decision-maker "selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group."[167]
*1094 28. The plaintiffs have failed to adduce any credible evidence that North East Independent School District installed the at-large system with the intent to discriminate against Hispanic and/or Black voters of NEISD.
28. The Court finds that the plaintiffs have not proven their claim of intentional discrimination under the Fourteenth Amendment.
29. Plaintiffs are the prevailing party and are therefore entitled to an award of attorney's fees under 42 U.S.C. §§ 1973l and 1988.
REMEDY
The parties shall have thirty (30) days from the date of the entry of this order to meet and to negotiate on a proposed remedy. If they are able to reach an agreement, the parties shall submit a proposed order to the Court disposing of the merits of this case on or before Tuesday, October 31, 1995. If the parties cannot reach an agreement, each party shall file its proposed remedy with supporting briefs and exhibits on or before Friday, November 10, 1995.
With regard to the plaintiffs attorney's fees, the parties shall meet on or before Tuesday, October 31, 1995 to negotiate an appropriate award. If the parties are unable to come to an agreement on the amount of attorney's fees, plaintiffs shall file its motion for attorney's fees in the form and manner prescribed by Local Court Rule CV-7(j)(1) not later than Monday, November 6, 1995. The defendants shall file their objections thereto on or before Friday, November 17, 1995. The parties are strongly encouraged to stipulate to as many facts as possible so as to eliminate the need for a hearing on this matter.
NOTES
[1] In Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986), the Supreme Court articulated a three-pronged test to be applied to vote dilution claims, the first prong of which requires the minority plaintiff to demonstrate that they are sufficiently large and geographically compact to constitute a majority in a single-member district. As explained later in this opinion, the Fifth Circuit has interpreted this to mean that the minority group must be able to draw a single-member district in which they are a majority of the voting age population.
[2] The plaintiffs are the League of United Latin American Citizens (and all its Texas members) and Dr. Harold Jones, a Black voting age resident of NEISD. The defendants are NEISD. and the individual trustees. In the May 6, 1995 NEISD school board election Nancy Stratton won the seat held by defendant Muriel McDonald and Marilyn Sorenson won the seat held by defendant Richard Ojeda. Jerry Newton won the seat held by Dr. G. Richard Holt, who elected not to run for reelection.
[3] According to Dr. George Korbel, plaintiffs' demographics expert, the N.E.I.S.D. will shortly reach a student population in excess of 64,000 students and thereby fall under the provisions of § 23.01 of TEX.EDUC.CODE ANN. (Vernon's Supp.1995) which mandates that any independent school district with 64,000 or more students in average daily attendance shall be governed by a board of nine trustees, seven of which are elected from single-member districts and the other two of which, who shall be the president and vice-president of the school board, are elected at large. See Trial Transcript, Volume IV, pages 9-10 (hereinafter "TR. ___, p. ___").
[4] Stipulation No. 1.
[5] Stipulation No. 3.
[6] Stipulation No. 4.
[7] Stipulation No. 5.
[8] See Plaintiffs' Exhibit 59 (hereinafter "Pls. Exh. ___").
[9] Pls.Exh. 7.
[10] Id.
[11] TR. IV, p. 7.
[12] Pls.Exh. 8-A. The eight cities with populations larger than that of the North East I.S.D. are Houston, Dallas, San Antonio, El Paso, Austin, Fort Worth, Arlington, and Corpus Christi. Id.
[13] Stipulation No. 8.
[14] Stipulation No. 8.
[15] Jerry Newton won the seat held by Dr. G. Richard Holt, who did not seek reelection.
[16] Marilyn Sorenson won the seat held by defendant Richard Ojeda.
[17] Nancy Stratton won the seat held by defendant Muriel McDonald.
[18] Stipulation of the parties filed on June 9, 1995.
[19] Pls.Exh. 17.
[20] TR. II, pp. 18-20.
[21] Pls.Exh. 17.
[22] TR. II, p. 28.
[23] Dr. Flores was able to obtain data suitable for conducting a turnout analysis for NEISD school board elections dating back to 1973. However, only the data from NEISD board elections starting in 1986 was suitable for performing a BERA. TR II, pp. 28-29; Pls.Exh. 38-A and 38-H.
[24] The exogenous elections on which Dr. Flores conducted a BERA cover the time period from 1988 to 1992. Pls.Exh. 38-B1, 38-B2 and 38-H.
[25] TR. II, p. 21.
[26] Clay v. Board of Education of the City of St. Louis, 896 F. Supp. 929, 933-34 (E.D.Mo.1995).
[27] TR. II, pp. 24-25.
[28] TR. II, p. 23.
[29] TR. II, p. 25.
[30] Pls.Exh. 38-A and 38-H.
[31] Dr. Flores testified that this statistical significance figure is unreliable because this BERA was based on only eight observations (polling places). According to Dr. Flores, the designers of the software program which he used to perform his BERAs advised him that he should have a minimum of ten observations, preferably thirty observations, before doing a BERA. TR. II, p. 40.
[32] As with the Flores + Garcia statistical significance figure, Dr. Flores testified that this statistical significance figure is unreliable because the BERA was based on only twelve observations. Id.
[33] Actually, Miller-Ramos is not Hispanic. However, both Dr. Flores and Dr. Rives, the defendants' expert, assumed, based on her Hispanic surname, that she was Hispanic and considered her as such in performing their studies. TR. II, pp. 34-35.
[34] A statistical significance figure of ".0001" means that the result could have occurred by chance only 1 in 10,000 times. TR. II, p. 46.
[35] Although this Y-Intercept for Ojeda is shown as ".57" on Pls.Exh. 38-A, Dr. Flores stated during cross-examination that the correct figure is ".19". TR. II, pp. 68-69. Accordingly, Pls. Exh. 38-A has been amended to reflect the correct figure.
[36] Pls.Exh. 38-C.
[37] This figure represents the percentage of all Anglo candidates that won. TR. II, pp. 50-51.
[38] This figure represents the percentage of elections won by race. TR. II, p. 50.
[39] Pls.Exh. 38-D1.
[40] Two trustees elected.
[41] Three trustees elected.
[42] Three trustees elected using plurality voting.
[43] Plurality elections with place system.
[44] Olezene is a Black. TR. II, p. 54.
[45] Shackelford is a Black. TR. II, p. 54.
[46] Pls.Exh. 38-F.
[47] The minimum percent of Hispanic vote for Ojeda was shown to be ".42", while Saidi was shown to have received ".58". However, Dr. Flores testified that these two figures had been inadvertently juxtaposed. TR. II, p. 56. Therefore, the Court has amended Pls.Exh. 38-F to reflect the correct figures.
[48] Pls.Exh. 49.
[49] As defined by Dr. Flores, the phrase "percentage of non-Hispanic vote" refers to the percentage of votes received from registered Anglo and Black voters. TR. II, p. 55.
[50] Pls.Exh. 38-E.
[51] Dr Flores did not study any party primary elections because the only voters who would participate in the Republican party primaries would be that part of the electorate that traditionally votes for Republicans. The same would hold true for the Democratic party primaries. Only by studying general elections pitting an Anglo against a minority could Dr. Flores conduct a BERA on race based indices. TR. II, pp. 29-30.
[52] With the exception of Overstreet, who is a Black, all of these candidates are Hispanic. TR. II, p. 43.
[53] Pls.Exh. 38-B1 and 38-B2.
[54] Texas Supreme Court, Place 8.
[55] These figures are based on 142 observations. TR. II, p. 43.
[56] Bexar County Court of Law, No. 2.
[57] Bexar County Sheriff.
[58] Texas Court of Appeals, District 4, Place 1.
[59] 37th Judicial District Court.
[60] Bexar County Tax Assessor-Collector.
[61] Texas Attorney General.
[62] Texas Railroad Commission, Place 3.
[63] Texas Court of Criminal Appeals, Place 4.
[64] Texas Court of Criminal Appeals, Place 6.
[65] 131st Judicial District Court.
[66] 175th Judicial District Court.
[67] Bexar County Sheriff.
[68] Pls.Exh. 49.
[69] Bexar County Commissioner.
[70] State District Judge.
[71] Bexar County District Attorney.
[72] State District Judge.
[73] State Board of Education.
[74] Pls.Exh. 38-G.
[75] TR. V, p. 187.
[76] TR. VI, p. 48.
[77] TR. VI, pp. 48-50.
[78] TR. VI, pp. 56-57.
[79] TR. V, p. 186; Defendants' Exhibit 7 (hereinafter "Dfs. Exh. ___").
[80] TR. VI, pp. 54-56.
[81] 834 F.2d 496, 503 (5th Cir.1987).
[82] TR. VI, p. 54.
[83] TR. VI, p. 57.
[84] TR. VI, p. 58.
[85] TR. VI, pp. 5-11.
[86] TR. VI, p. 64.
[87] Dfs.Exh. 7. The 1986-1988 and 1991 results are based on election-day returns, while all other results are based on total results. Dfs.Exh. 7.
[88] TR. VI, p. 57.
[89] TR. VI, p. 58.
[90] According to Dr. Korbel, the reason the total population figure used by him is 261,172 instead of 254,106, the total population figure of NEISD according to the unadjusted 1990 Census, is that he utilized whole "census block", the smallest unit of the 1990 Census, in drawing the proposed districts. This means that whenever a census block was divided by the NEISD boundary, Dr. Korbel treated the entire census block as being within the NEISD boundary lines and included the total population of the census block in the total population figure of NEISD. TR. IV, pp. 58-60.
[91] Pls.Exh. 6, p. 19.
[92] Dfs.Exh. 3, 4 and 6.
[93] TR. II, p. 163.
[94] TR. VI, pp. 32-33.
[95] See LULAC v. Clements, 986 F.2d 728, 743 (5th Cir.1993), rev'd on other grounds, 999 F.2d 831 (5th Cir.1993) (en banc), (to satisfy first Gingles factor, the minority group must ordinarily be able to draw a single member district in which a majority of the voting age population is minority) (emphasis in original); Westwego Citizens for Better Government v. City of Westwego, 946 F.2d 1109, 1117 n. 6 (5th Cir.1991) ("Westwego II"); Brewer v. Ham, 876 F.2d 448, 451 (5th Cir.1989) (affirming district court's entry of judgment for defendants due to failure of minority plaintiffs to propose a single-member district within the school district that would contain a majority of the voting age population of a minority group including Blacks, Hispanics, and Asians); Westwego Citizens for Better Government v. Westwego, 872 F.2d 1201, 1205 n. 4 (5th Cir.1989) ("Westwego I") (noting that evidence of size of "voting age" population is critical to a vote dilution claim); Overton v. City of Austin, 871 F.2d 529, 535-36 (5th Cir. 1989) (affirming judgment of district court in which district court found, inter alia, that neither Black nor Hispanic plaintiffs constituted a majority of the voting age population); Houston v. Haley, 859 F.2d 341 (5th Cir.1988), vacated on other grounds, 869 F.2d 807 (1989), (where the court referred to this issue as "critical").
[96] Campos v. City of Houston, 894 F. Supp. 1062 (S.D.Tex.1995) (finding, in granting the defendant City of Houston's motion for summary judgment, that, in analyzing the first prong of the Gingles test, using the data of voting age Hispanic citizens is the correct measure of the Hispanic population's ability to create a majority voting district). Id. at 1065.
[97] See Concerned Citizens for Equality v. McDonald, 863 F. Supp. 393, 402 (E.D.Tex.1994) (analysis assumes that the appropriate analytical and remedial standard is bare majority of voting age population); Clark v. Roemer, 777 F. Supp. 445, 452-452 (M.D.La.1990) ("[a]lthough the Fifth Circuit has not yet squarely so held, it seems rather clear that the majority population with which Thornburg v. Gingles is concerned is a voting majority, not simply a population majority. The court of Appeals has at least implied that the single-member district which is created must contain at least a voting age majority of the minority group ... This court concludes that in order to be viable under the Thornburg v. Gingles rationale any such district must contain at least a voting age majority of the minority group.") (emphasis in original); Ewing v. Monroe County, Mississippi, 740 F. Supp. 417, 419 (N.D.Miss. 1990) (distribution of blacks through county meets the first prerequisite so as to allow the creation of at least one supervisory district and one justice court judge district with a majority black voting population) (emphasis in original); Williams v. City of Dallas, 734 F. Supp. 1317, 1387 (N.D.Tex.1990) (with a 65% African-American concentration, there can be 3 black districts out of 8, 4 out of 10 or 11, and 5 out of 15 with a majority African-American voting age population) (emphasis in original).
[98] Pls.Exh. P-3 and P-4.
[99] The shape of Plaintiffs' Proposed District 3 is no more disjointed or contorted than the district approved by the district court in Hastert v. State Bd. of Elections, 777 F. Supp. 634 (N.D.Ill.1991) (holding that Chicago/Cook County's Hispanic community was geographically compact within the meaning of Gingles to constitute a single district majority despite fact that proposed district encompassed separate Hispanic enclaves in northwest and southwest corners of Chicago, and ran narrow corridor connecting those enclaves around end of existing congressional district, and had "rays" "shooting out" to capture additional Hispanic population, with resulting district that resembled "Rorschach blot" turned on its side; therefore, proposed Hispanic congressional district, although uncouth in configuration, would be approved). Plaintiffs' Proposed District 3 is also distinguishable from the proposed district rejected by the district court in East Jefferson Coalition for Leadership and Development v. Parish of Jefferson, 691 F. Supp. 991 (E.D.La.1998), aff'd 926 F.2d 487 (5th Cir.1991). There the proposed district crossed the Mississippi River, a major natural boundary, and reached around the airport to include a concentration of black voters living above the airport. Plaintiffs' Proposed District 3, on the other hand, does not cross a major natural boundary nor does it branch out in an unacceptable manner in an effort to take in an isolated concentration of minority voters.
[100] TR. IV, p. 26; Pls.Exh. P-3.
[101] TR. II, pp. 50-51.
[102] However, Ms. Saidi is actually of German descent. TR. I, p. 212.
[103] TR. I, p. 49.
[104] TR. IV, pp. 223-224.
[105] TR. V, p. 30.
[106] See the post-trial submission of parties stipulating to the 1995 NEISD school board election returns. Docket No. 65.
[107] TR. I, pp. 47-48, 88.
[108] Pls.Exh. 53.
[109] TR. II, p. 170.
[110] Pls.Exh. P-9 and P-13.
[111] Pls.Exh. P-1.
[112] Pls.Exh. P-1, P-12, and P-14.
[113] Pls.Exh. 11.
[114] Pls.Exh. P-10.
[115] Pls.Exh. P-1.
[116] Pls.Exh. P-1, P-14.
[117] Pls.Exh. P-1, P-15.
[118] Pls.Exh. P-1, P-16.
[119] Pls.Exh. P-22A, P-23, P-24, P-26A, P-26B, P-28, P-29, P-30, P-31, P-23, P-35.
[120] TR. IV, p. 145.
[121] TR. I, p. 58.
[122] TR. IV, p. 205.
[123] TR. I, p. 58.
[124] TR I, p. 211.
[125] TR. I, p. 70. Dr. Richard Middleton, who was Superintendent of NEISD at the time Culter served on the school board, recalled that Culter never asked him to place the single-member issue on the board's agenda. TR. IV, p. 168-169.
[126] TR I, p. 76.
[127] TR. IV, pp. 171-172.
[128] TR. IV, p. 170.
[129] TR. IV, pp. 165, 181.
[130] TR. IV, p. 165.
[131] Pls.Exh. P-18.
[132] TR. IV, p. 181.
[133] TR. IV, pp. 165-166.
[134] TR. IV, p. 182.
[135] Pls.Exh. P-21A.
[136] TR. II, pp. 157-160.
[137] TR. IV, p. 206.
[138] TR. IV, p. 219.
[139] TR. I, pp. 134-135.
[140] Such programs include jump start programs for schools with a high percentage of students receiving free or reduced-price lunch; bilingual programs; mentoring programs in which businesses in the community work with children identified as being at risk of dropping out;, high order thinking skills programs aimed at attracting minority students into gifted and talented programs; a year-round curriculum at Nimitz Academy and Castle Hills Elementary School, both of which have a large minority student population; the A-B schedule at White Middle School, a program in which students attend class every other day for 1.5 hours so they can do their homework in class; and the Lee Volunteer for Excellence Program at Lee High School, which encourages students to take higher levels of math at an earlier age. NEISD has also developed remedial programs specifically designed to help students who have trouble with certain sections of the TAAS exam. TR. IV, pp. 150-154.
[141] TR. I, pp. 36-37.
[142] TR. II, p. 173.
[143] TR. I, p. 101.
[144] TR. I, pp. 100-101.
[145] TR. II, pp. 126-127.
[146] TR. II, pp. 127-128.
[147] TR. V, pp. 133-136.
[148] 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986).
[149] In Bolden, the Supreme Court held that a minority group could prove a § 2 violation only by showing that state officials intentionally maintained or adopted a contested electoral mechanism with a discriminatory purpose. 446 U.S. at 66-67, 100 S.Ct. at 1499-1500.
[150] Footnote 4 in Gingles, 478 U.S. at 36, 106 S.Ct. at 2759 states:
These factors were derived from the analytical framework of White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L. Ed. 2d 314 (1973), as refined and developed by the lower courts, in particular by the Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (1973), aff'd sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S. Ct. 1083, 47 L. Ed. 2d 296 (1976) (per curiam), S.Rep. at 28, n. 113.
See also footnotes 7, 8, and 9, 478 U.S. at 43-44, 106 S.Ct. at 2763.
[151] See S.Rep. at 27, 1982 U.S.Code Cong. & Admin.News at 205, which states:
The amendment to the language of Section 2 is designed to make clear that plaintiffs need not prove a discriminatory purpose in the adoption or maintenance of the challenged system or practice in order to establish a violation. Plaintiffs must prove such intent, or, alternatively, must show that the challenged system or practice, in the context of all the circumstances in the jurisdiction in question, results in minorities being denied equal access to the political process.
Id.
[152] Gingles, 478 U.S. at 47, 106 S.Ct. at 2764.
[153] Id. (quoting Burns v. Richardson, 384 U.S. 73, 88, 86 S. Ct. 1286, 1294, 16 L. Ed. 2d 376 (1966) (quoting Fortson v. Dorsey, 379 U.S. 433, 439, 85 S. Ct. 498, 501, 13 L. Ed. 2d 401 (1965)). See also Rogers v. Lodge, 458 U.S. 613, 617, 102 S. Ct. 3272, 3275, 73 L. Ed. 2d 1012 (1982); White v. Regester, 412 U.S. 755, 765, 93 S. Ct. 2332, 2339; Whitcomb v. Chavis, 403 U.S. 124, 143, 91 S. Ct. 1858, 1869, 29 L. Ed. 2d 363 (1971).
[154] 478 U.S. at 30, 106 S.Ct. at 2765.
[155] Id. (citing Rogers v. Lodge, supra, 458 U.S. at 617, 102 S.Ct. at 3275; Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339; Whitcomb, supra, 403 U.S. at 142, 91 S.Ct. at 1868).
[156] 478 U.S. at 48, 106 S.Ct. at 2765.
[157] Campos v. City of Baytown, Texas, 840 F.2d 1240, 1244 (5th Cir.1988), cert. denied, 492 U.S. 905, 109 S. Ct. 3213, 106 L. Ed. 2d 564 (1989). As noted by the Fifth Circuit, "[s]ection 1973(a) protects the right to vote of both racial and language minorities." Id.
[158] Campos v. City of Baytown, Texas, 840 F.2d at 1245.
[159] Gingles, 478 U.S. at 56, 106 S.Ct. at 2769.
[160] LULAC v. Clements, 999 F.2d at 864. See also Campos v. City of Baytown, 840 F.2d at 1245; Citizens for a Better Gretna v. City of Gretna, 834 F.2d at 503. See also Williams v. City of Dallas, 734 F. Supp. 1317, 1318 (N.D.Tex.1990) (basis for the "political cohesiveness" inquiry should first and primarily be those elections in which a serious black candidate was opposed by a white candidate) (emphasis in original). As explained by the district court in Williams v. City of Dallas, supra, there are several reasons for focusing on white versus minority races when conducting an inquiry into the political cohesiveness of the minority plaintiff: First, these races provide the most direct test of the hypothesis that race is a factor in the election system under scrutiny. Second, although the results in white versus white races should be considered, to emphasize them without careful and practical scrutiny ignores the discriminatory effect of an at-large system which discourages potential, viable [minority] candidates from running for election, given a long history of elections lost because of a white bloc vote. LULAC v. Midland ISD, 648 F. Supp. 596, 607 (W.D.Tex.1986).... Finally, "when there are only white candidates to choose from," it is "virtually unavoidable that certain white candidates would be supported by a large percentage of ... [minority] voters"; however, "evidence of [minority] support for white candidates in an all-white field" would tell us nothing about the political cohesiveness of [a minority group] or about the "the tendency of white bloc voting to defeat [minority] candidates." (Citations omitted)
734 F.Supp. at 1388 (emphasis in original).
[161] As noted by the Supreme Court in Gingles, "the language of Section 2 and its legislative history plainly demonstrate that proof that some minority candidates have been elected does not foreclose a Section 2 claim." 478 U.S. at 75, 106 S.Ct. at 2779.
[162] See Shaw v. Reno, ___ U.S. ___, ___ - ___, 113 S. Ct. 2816, 2822-2824, 125 L. Ed. 2d 511 (1993) (discussing Fifteenth Amendment at length with respect to racial gerrymandering, but ultimately deciding case on Fourteenth Amendment grounds); Voinovich v. Quilter, 507 U.S. 146, ___, 113 S. Ct. 1149, 1158, 122 L. Ed. 2d 500 (1993) ("This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, we never have held any legislative apportionment inconsistent with the Fifteenth Amendment.") (citation omitted).
[163] Mobile v. Bolden, 446 U.S. 55, 65, 100 S. Ct. 1490, 1499, 64 L. Ed. 2d 47 (1980) (quoting the Fifteenth Amendment.) See also Turner v. Arkansas, 784 F. Supp. 553, 578-79 (E.D.Ark.1991) (three-judge court) (proof of conscious racial discrimination required in both Fourteenth and Fifteenth Amendment cases), aff'd mem., 504 U.S. 952, 112 S. Ct. 2296, 119 L. Ed. 2d 220 (1992).
[164] Davis v. Bandemer, 478 U.S. 109, 127, 106 S. Ct. 2797, 2807-08, 92 L. Ed. 2d 85 (1986).
[165] Nevett v. Sides, 571 F.2d 209, 217-218 (5th Cir.1978), cert. denied, 446 U.S. 951, 100 S. Ct. 2916, 64 L. Ed. 2d 807 (1980).
[166] Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 2296, 60 L. Ed. 2d 870 (1979).
[167] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361168/ | 546 F.3d 335 (2008)
Herbert DERICKSON and Jill Derickson, Petitioners,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE et al., Respondents.
No. 07-4158.
United States Court of Appeals, Sixth Circuit.
Argued: September 18, 2008.
Decided and Filed: November 10, 2008.
*337 ARGUED: Mike R. Wall, Oxford, Mississippi, for Petitioners. Andrew R. Varcoe, United States Department of Agriculture, Washington, D.C., for Respondents. ON BRIEF: Mike R. Wall, Oxford, Mississippi, for Petitioners. Andrew R. Varcoe, United States Department of Agriculture, Washington, D.C., for Respondents.
Before: MOORE and COOK, Circuit Judges; HOOD, District Judge.[*]
OPINION
KAREN NELSON MOORE, Circuit Judge.
Petitioners Herbert Derickson ("H. Derickson") and Jill Derickson ("J. Derickson") (referred to jointly as "the Dericksons") petition this court for review of the decision of the Secretary of Agriculture that they violated 15 U.S.C. §§ 1824(1) and 1824(2)(B), the Horse Protection Act of 1970 ("Act"), by transporting and entering in a horse show a sore[1] horse, Just American Magic. The Dericksons make three arguments: (1) the Judicial Officer ("JO") did not have substantial evidence to find that the Dericksons transported Just American Magic in violation of the Act; (2) the JO did not have substantial evidence to find that J. Derickson entered Just American Magic in a horse show in violation of the Act; and (3) H. Derickson cannot be sanctioned by respondents, the Animal and Plant Health Inspection Service of the United States Department of Agriculture ("APHIS"), because H. Derickson has already served an "appropriate" penalty for his violations of the Act issued by the National Horse Show Commission ("NHSC") pursuant to the APHIS Horse *338 Protection Operating Plan ("Operating Plan").
For the reasons discussed below, we DENY the Dericksons' petition for review.
I. FACTS AND PROCEDURE
On March 21, 2002, H. Derickson presented a horse, Just American Magic,[2] for preshow inspection at the Thirty-Fourth Annual National Walking Horse Trainers Show ("Trainers Show"). Upon inspection, two Designated Qualified Persons ("DQPs") determined that Just American Magic was sore because he had bilateral scarring and did not comply with the Scar Rule.[3] The DQPs disqualified Just American Magic from showing. Two veterinary medical officers employed by the Department of Agriculture later confirmed the DQPs' finding.
J. Derickson admits that she signed a check to pay Just American Magic's entry fee for the show, drawn on the Herbert Derickson Training Facility account. Dericksons Br. at 6, 22. The Dericksons also assert that, prior to March 21, 2002, APHIS and NHSC executed a written agreement, the Operating Plan, which was in effect during the Trainers Show. Id. at 24-25. The Operating Plan outlined penalties for violations of the Act that a private organization could impose on violators. It is undisputed that NHSC issued a two-year suspension (effective dates December 16, 2002 to December 15, 2004) and a $700 fine to H. Derickson for the bilateral soring violation, H. Derickson's second such violation.[4] This sanction was consistent with those authorized for such violations in the Operating Plan.
On August 19, 2004, Kevin Shea, Administrator of APHIS, filed a complaint against the Dericksons, alleging that the Dericksons violated §§ 1824(1) and 1824(2)(B) of the Act by: (1) "transporting `Just American Magic' to the ... Trainers Show in Shelbyville, Tennessee, while the horse was sore, ... with reason to believe that the horse, while sore, may be entered for the purpose of its being shown in that horse show" and (2) entering Just American Magic in said show while sore. Joint Appendix ("J.A.") at 72-73 (APHIS Compl. ¶¶ 11-12). Several others, including Robert Raymond Black, II ("Black"), were named in the complaint.[5]
In their answer, both H. Derickson and J. Derickson admitted that they were "at all material times herein," individuals "doing business as Herbert Derickson Training Facility, aka Herbert Derickson Stables, aka Herbert Derickson Breeding and Training Facility." J.A. at 75-76 (Ans. ¶¶ 5-6). Both denied all other allegations.
The administrative law judge ("ALJ") held a hearing on June 26 and 27, 2006, at which time Steven Fuller ("Fuller"), senior investigator with the Department of Agriculture, testified that he completed several portions of APHIS Form 7077 ("Form 7077"), the disqualification form for Just American Magic from the Trainers Show. Two such portions were items 11 and 27. *339 Fuller further testified that he obtained the information to fill out Form 7077 from Black. Item 27 asks "NAME AND ADDRESS OF PERSON(S) RESPONSIBLE FOR TRANSPORTATION" and is answered "same as # 11." J.A. at 167 (Form 7077). Item 11 is answered in pertinent part "Robert Raymond Black, II." Id.
Black and his wife were the only witnesses for the Dericksons. During Black's testimony, APHIS stipulated that Black "was employed by Herbert Derickson." J.A. at 359 (Hr'g Tr. at 468). When asked who he understood was the owner of the business that employed him, Black testified, "I understood it to be Herbert Derickson." J.A. at 360 (Hr'g Tr. at 469).
On October 3, 2006, the ALJ found that H. Derickson violated the Act by entering a sore horse. For the entering violation, the ALJ issued a $2,200 fine and a two-year disqualification from "showing, exhibiting, or entering any horse, directly or indirectly," J.A. at 26 (ALJ Dec. at 15), but then suspended one year of the disqualification, giving H. Derickson "partial credit for the suspension imposed by" NHSC. Id. The ALJ dismissed all allegations against J. Derickson and the transportation allegation against all respondents, finding that the evidence regarding transportation was "scant, with the entry in item 27 of APHIS Form 7077 being the primary evidence introduced in support of the allegations." J.A. at 17 (ALJ Dec. at 6) (internal reference omitted).
H. Derickson and APHIS cross-appealed to the JO designated as the final decision maker by the Secretary of the Department of Agriculture. The JO found that the Dericksons violated the Act by entering and transporting Just American Magic while sore. First, the JO rejected H. Derickson's argument that the Operating Plan limited the ability of APHIS to impose legal sanctions against H. Derickson, stating that: (1) no signature page was attached to the copy of the plan entered into evidence that would show that the Operating Plan applied to the Trainers Show and (2) even if the Operating Plan applied, the terms of the Operating Plan do not limit the authority of APHIS to enforce the Act. To support the latter finding, the JO highlighted five specific passages in the Operating Plan:
Nothing in this Operating Plan is intended to indicate that APHIS has relinquished any of its authority under the Act or Regulations.
It is not the purpose or intent of this Operating Plan to limit in any way the Secretary's authority. It should be clearly understood that the Secretary has the ultimate administrative authority in the interpretation and enforcement of the Act and the Regulations. This authority can only be curtailed or removed by an act of Congress, and not by this Plan.
The Department retains the authority to initiate enforcement proceedings against any violator when it feels such action is necessary to fulfill the purposes of the [Act].
Nothing in this section is intended to limit APHIS's disciplinary authority under the Act and the Regulations.
APHIS has the inherent authority to pursue a federal case whenever it determines the purposes of the [Act] have not been fulfilled.
J.A. at 37 (JO Dec. at 10) (internal references omitted).
The JO next concludedbased upon admissions made in the Dericksons' initial answer and several business invoices on Herbert Derickson Training Facility letterhead signed "Thank you, we appreciate your business!" and "Thanks, Herbert and Jill Derickson," J.A. at 298-99 (Business *340 Invoices)that the Dericksons were running a partnership known as Herbert Derickson Training Facility, aka Herbert Derickson Stables, aka Herbert Derickson Breeding and Training Facilities.
Then, the JO found that Herbert Derickson Stables was responsible for transporting Just American Magic to the Trainers Show. He based this finding on invoice # 945, sent from Herbert Derickson Stables to the owners of Just American Magic, noting "no charge" for the "Hauling/Show Prep/Stall" item. J.A. at 303 (Invoice # 945). The JO "interpret[ed the invoice] to indicate that Herbert Derickson Stables transported Just American Magic to the ... Trainers Show." J.A. at 53 (JO Dec. at 26). The JO concluded that the Dericksons, as partners of the business, were liable for transporting Just American Magic.[6]
The JO also found that the Dericksons entered Just American Magic in violation of the Act. In regards to J. Derickson, the JO found that she paid the entry fee and filled out the entry form. To support his entry-form finding, the JO stated:
[a]lthough the signature block on the entry blank states "Herbert Derickson," the writing is similar in style to Jill Derickson's signature on the entry payment check, an entry payment check for the 2003 National Walking Horse Trainers Show, and an entry blank for the 2003 National Walking Horse Trainers Show. The signature on the entry blank for the 2002 National Walking Horse Trainers Show is very different from Mr. Derickson's signature as seen on other documents in the record....
J.A. at 34 (JO Dec. at 7 n. 1) (internal references omitted).
Pertinent to this appeal, the JO also found that there was insufficient evidence to hold Black liable for transporting Just American Magic. While addressing Black's liability, the JO noted that Fuller's testimony regarding Form 7077, coupled with testimony from Black and his wife, caused him to "agree with the ALJ that there are inconsistencies that raise questions about the accuracy of some information" contained in Form 7077. J.A. at 45 (JO Dec. at 18).
For the transporting and entering violations, the JO disqualified each Derickson from showing, exhibiting, or entering horses in shows for two years (one year for each violation) and issued $4,400 in sanctions to each Derickson ($2,200 for each violation). The Dericksons timely petitioned this court for review of the JO's decision.[7]
II. ANALYSIS
A. Standard of Review
We review a decision of the U.S. Department of Agriculture under the Act only to determine "whether the proper legal standards were employed and [whether] substantial evidence supports the decision." Gray v. United States Dep't of Agric., 39 F.3d 670, 675 (6th Cir.1994) (quoting Fleming v. United States Dep't of Agric., 713 F.2d 179, 188 (6th Cir.1983)). Substantial evidence is relevant evidence that "`a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Murphy v. Sec'y of Health & Human Servs., 801 F.2d 182, 184 (6th Cir.1986)). The record, as a whole, is considered in determining the substantiality of evidence. McConnell v. United States *341 Dep't of Agric., 198 Fed.Appx. 417, 421 (6th Cir.2006) (unpublished opinion). "When `an administrative agency disagrees with the conclusions of its ALJ, the standard does not change; the ALJ's findings are simply part of the record to be weighed against other evidence supporting the agency.'" Rowland v. United States Dep't of Agric., 43 F.3d 1112, 1114 (6th Cir.1995) (quoting Stamper v. Sec'y of Agric., 722 F.2d 1483, 1486 (9th Cir. 1984)).[8] We defer to the JO "in the matter of derivative inferences." Rowland, 43 F.3d at 1114.
The Dericksons argue that the JO did not have substantial evidence to support his findings that: (1) the Dericksons are liable for transporting Just American Magic; (2) J. Derickson is liable for entering Just American Magic;[9] and (3) the Operating Plan does not limit APHIS's ability to impose legal sanctions on H. Derickson. We address each argument in turn.
B. Liability for Transporting Just American Magic
A person violates the Act if she transports a horse while sore, "with reason to believe that such horse while it is sore may be shown, exhibited, [or] entered for the purpose of being shown or exhibited ... in any horse show, horse exhibition, or horse sale or auction." 15 U.S.C. § 1824(1); see also 15 U.S.C. § 1825(b)(1) (stating that "any person who violates section 1824 of this title shall be liable to the United States for a civil penalty"). "Person" is not defined in the Act, but 1 U.S.C. § 1 states that, "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise[,] ... the words `person' and `whoever' include ... partnerships." 1 U.S.C. § 1.
The Dericksons do not dispute that Just American Magic was sore when transported, but contend only that they are not liable for the transportation. Dericksons Br. at 14-17. In concluding that the Dericksons were liable, the JO found: (1) the Dericksons were operating a partnership that went by several names, including Herbert Derickson Stables, and that they were liable for the actions taken by that partnership; and (2) Herbert Derickson Stables transported Just American Magic to the Trainers Show. We hold that both of these findings of the JO are supported by substantial evidence.
1. The Dericksons' Partnership
Under Tennessee law,[10] a partnership can be implied "where it appears that the individuals involved have entered into a business relationship for profit, combining their property, labor, skill, experience, or money," regardless of whether the parties intended to create a partnership. Bass v. Bass, 814 S.W.2d 38, 41 & n. 3 (Tenn.1991). All partners are liable for *342 the obligations of the partnership. TENN. CODE § 61-1-306(a).[11]
Applying Bass, the JO found that the Dericksons were operating a partnership which went by several names, including Herbert Derickson Stables. The JO supported this finding with two pieces of evidence. First, he looked to the Dericksons' unequivocal admission that "each was an individual doing business as Herbert Derickson Training Facility, aka Herbert Derickson Stables, aka Herbert Derickson Breeding and Training Facility." J.A. at 52 (JO Dec. at 25); see also J.A. at 75 (Ans. at 1). This admission alone would have been substantial evidence to support a finding of implied partnership under Tennessee law. Though the Dericksons did not use the word "partnership," two individuals admitting that they are running the same business under the same name is such evidence that "a reasonable mind might accept as adequate to support a conclusion," Gray, 39 F.3d at 675, that the Dericksons "entered into a business relationship for profit, combining their property, labor, skill, experience, or money," Bass, 814 S.W.2d at 41. However, the JO further supported his finding with several invoices that include the statements "Thank you, we appreciate your business!" and "Thanks, Herbert and Jill Derickson." J.A. at 52-53 (JO Dec. at 25-26); see also J.A. at 283-286 (Invoices). Looking at the record as a whole, we conclude that it is clear that there is substantial evidence that the Dericksons were operating a partnership.
The Dericksons argue that H. Derickson operates as a sole proprietor and that the JO ignored evidence to that effect, specifically: (1) Black's testimony that he understood the owner of the business to be H. Derickson, not J. Derickson; (2) APHIS's stipulation that Black was an employee of H. Derickson; and (3) the lack of any testimony or documentation, including tax returns, that indicated that a partnership existed.
The Dericksons' argument fails. The evidence to which the Dericksons refer does not render insubstantial the evidence on which the JO relied. First, Black testified only that he "understood" H. Derickson to be the owner of the business that employed him. J.A. at 360 (Hr'g Tr. at 469). Just as the parties' understanding of the legal effect of their relationship is not determinative regarding whether an implied partnership exists, Bass, 814 S.W.2d at 41, Black's understanding of the ownership of the business that employed him is not substantial evidence of the legal effect of the Dericksons' relationship.
Second, the Dericksons mischaracterize APHIS's stipulation that Black "was employed by Herbert Derickson." J.A. at 359 (Hr'g Tr. at 468). The questions being posed to Black at the time the stipulation was made concerned his status as an employee in general. Prior to the stipulation, the nature of the business relationship between the Dericksons had not been discussed.[12] In this context, stipulating that *343 Black was an employee of H. Derickson does not equate to stipulating that H. Derickson was operating a sole proprietorship.
Third, the statement that no documentary evidence was introduced to support a finding of partnership is inaccurate. As outlined above, several invoices and the Dericksons' own answer to the complaint were used to support the JO's finding. Moreover, the fact that no tax returns or other financial documents were introduced into evidence does not diminish the evidence that is in the record. The Dericksons do not dispute the accuracy of the invoices or the admissions in the answer; instead, they simply argue that we should hold that there cannot be substantial evidence of a partnership without some evidence that directly states that the parties are running a partnership. Tennessee law does not require that specific evidence. See Bass, 814 S.W.2d at 41 (holding that a partnership can be implied from the surrounding circumstances).
Therefore, we hold that the JO relied on substantial evidence to find that the Dericksons were operating an implied partnership that went by several names, including Herbert Derickson Stables.
2. Transporting Just American Magic
The Dericksons further argue that the JO lacked substantial evidence to find that they transported Just American Magic in violation of the Act. The Dericksons contend that the JO admitted in his decision that the sole evidence on this issue is APHIS Form 7077, which states that Black was responsible for transporting Just American Magic. Because this was the sole evidence, the Dericksons assert that Black alone can be held liable for transportation.
This argument mischaracterizes the opinion below and the evidence. The JO referenced Form 7077 with regard to only Black's liability for transportation. J.A. at 45 (JO Dec. at 18). The JO did not state that Form 7077 was the sole evidence against the Dericksons; to the contrary, the JO found invoice # 945 and its statement of "no charge" for "Hauling/Show Prep/Stall" to be evidence of the Dericksons' liability. J.A. at 52-53 (JO Dec. at 25-26). Clearly, the JO did have substantial evidence to support his finding.
The Dericksons contend, however, that the line marked "no charge" should have indicated to the JO that neither the Dericksons nor Herbert Derickson Stables were responsible for transporting Just American Magic. Essentially, the Dericksons argue that the JO incorrectly interpreted the evidence. This argument must fail. Typically, we will defer to a JO's reasonable interpretations. Rowland, 43 F.3d at 1114. Furthermore, the JO's interpretation in this case is supported by substantial evidence. As APHIS points out, "[i]t is a common commercial practice for sellers of goods and services to give buyers certain items without charge as an add-on to more expensive items." APHIS Br. at 45. We note that our review of the *344 record supports the JO's interpretation of the evidence. See J.A. at 283-286, 290-304 (Invoices). Thus, the JO's inference from the invoice entry, made in light of his experience and familiarity with horse-industry practices, is sufficient evidence that "a reasonable mind might accept as adequate to support [the] conclusion" that Herbert Derickson Stables transported Just American Magic. Gray, 39 F.3d at 675.
Therefore, we hold that substantial evidence supports the JO's decision that Herbert Derickson Stables transported Just American Magic in violation of the Act and that the Dericksons, as partners of Herbert Derickson Stables, are liable for this violation.
C. Liability for Entering Just American Magic
Section 1824(2)(B) of the Act prohibits the "entering for purpose of showing or exhibiting in any horse show or horse exhibition, any horse which is sore." 15 U.S.C. § 1824(2)(B). Entering a horse "entails paying the entry fee, registering the horse, and presenting the horse for inspection." Gray, 39 F.3d at 676 (citing approvingly Elliott v. Adm'r, Animal & Plant Health Inspection Serv., 990 F.2d 140, 145 (4th Cir.1993)). Though there is no binding precedent in this circuit regarding what steps must be completed by an individual to subject her to liability for entering a sore horse under the Act, two panels of this court have held that an individual does not have to perform personally all the steps of entry in order to be found liable. Stewart v. United States Dep't of Agric., 64 Fed.Appx. 941, 943 (6th Cir.2003) (unpublished opinion); McConnell, 198 Fed.Appx. at 423 (holding that merely presenting a horse for inspection is entry of the horse under the Act). The Stewart court stressed that "requiring an individual to have personally performed every step of the entry process in order to qualify as having entered the horse for [Horse Protection Act] purposes would result in the untenable holding that if two individuals divide the entry responsibilities, both are able to escape liability." Stewart, 64 Fed.Appx. at 943.
We are persuaded by the reasoning of Stewart and conclude that liability for entering a horse must rest with any individual who completes any one of the various steps of entrypaying the entry fee, registering the horse, or presenting the horse for inspection. Congress intended the Act to "make it impossible for persons to show sored horses in nearly all horse shows." H.R.Rep. No. 91-1597 (1970), reprinted in 1970 U.S.C.C.A.N. 4870, 4872. Because entry is a multi-step process, the intent of Congress can be achieved only by a rule that provides that any individual who performs any step of entry maybe held liable for a violation. A contrary rule would easily allow trainers and owners to circumvent the Act by delegating each step of the entry process to different individuals, preventing effective enforcement. Therefore, we hold that an individual can be held liable for entering a sore horse if she performs any one of the various acts of entry.
J. Derickson argues that her only role in the entering process was to sign the check that paid Just American Magic's entry fee and that this act alone is not enough to subject her to liability. She does not contest that paying an entry fee would constitute entering a horse, but rather she claims only that she did not actually pay the fee.
This argument is not supported by the evidence. J. Derickson admitted that she signed a check drawn on the account of Herbert Derickson Training Facility. The JO found, supported by substantial evidence *345 as outlined above, that J. Derickson is a partner of a partnership that does business as Herbert Derickson Training Facility. As a partner, she is personally liable for the actions of the partnership. Therefore, she is personally liable for paying the entry fee. Thus, we hold that the JO had substantial evidence to support his finding that J. Derickson is liable for entering Just American Magic in violation of the Act.
D. Applicability of Operating Plan
H. Derickson argues that the Operating Plan prevents APHIS from sanctioning him for the violations that occurred at the Trainers Show. He contends that the Operating Plan is a binding contract that prevents APHIS from pursuing actions against individuals who have been sanctioned in accordance with the Operating Plan by a private organization unless "it has been determined that the purposes of the Act are not being fulfilled" by the private sanction. Dericksons Br. at 30. H. Derickson asserts that the JO did not have substantial evidence to find that the purposes of the Act were not fulfilled by his completion of the two-year suspension issued by NHSC.[13]
The JO found that, even assuming the Operating Plan was a binding contract between APHIS and NHSC that applied to the Trainers Show,[14] the Operating Plan does not limit the ability of APHIS to pursue actions against individuals for violations previously sanctioned by private organizations. The JO cited five separate examples in the Operating Plan to support this finding:
Nothing in this Operating Plan is intended to indicate that APHIS has relinquished any of its authority under the Act or Regulations.
It is not the purpose or intent of this Operating Plan to limit in any way the Secretary's authority. It should be clearly understood that the Secretary has the ultimate administrative authority in the interpretation and enforcement of the Act and the Regulations. This authority can only be curtailed or removed by an act of Congress, and not by this Plan.
The Department retains the authority to initiate enforcement proceedings against any violator when it feels such action is necessary to fulfill the purposes of the [Act].
Nothing in this section is intended to limit APHIS's disciplinary authority under the Act and the Regulations.
APHIS has the inherent authority to pursue a federal case whenever it determines the purposes of the [Act] have not been fulfilled.
J.A. at 37 (JO Dec. at 10) (internal references omitted) (emphases added).
The JO's finding is supported by substantial evidence. The terms of the Operating Plan clearly state that APHIS did not "relinquish[] any of its authority." Given the straightforward nature of the language and the frequency of the statementsfive times in a twenty-seven-page *346 documentthe evidence is such that a reasonable mind would find it conclusive.
Furthermore, H. Derickson misconstrues the language in the Operating Plan that he cites to support his claim. The Operating Plan does state that APHIS "retains the authority to initiate enforcement proceedings against any violator when it feels such action is necessary to fulfill the purposes of the [Act]." J.A. at 310 (Operating Plan at 4 n. 8). It also states that "APHIS has the inherent authority to pursue a federal case whenever it determines the purposes of the [Act] have not been fulfilled." J.A. at 331 (Operating Plan at 25 n. 25). However, neither phrase contains language that limits the ability of APHIS to act; there is no language that suggest that APHIS can act only under these specified circumstances.
Moreover, the Dericksons' brief undermines H. Derickson's argument. The brief states that "APHIS clearly retains the authority under the terms contained within the Operating Plan to prosecute cases when it feels that such action is necessary to fulfill the purposes of the Act." Dericksons Br. at 29 (internal references and quotation marks omitted) (emphases added). This statement highlights the discretionary nature of APHIS's decision-making power. H. Derickson tries to soften this language by insisting that another phrase, found twenty-one pages later in the Operating Plan, requires that this discretion be exercised only when "it has been determined that the purposes of the Act are not being fulfilled, such as when a person on suspension by [a Horse Industry Organization] is violating the terms and/or conditions of that suspension." Id. at 30. However, H. Derickson does not explain why we should read these two phrases together, nor does he cite any law that would require that reading. Further, H. Derickson does not explain why, if this is the proper reading of the Operating Plan, the Operating Plan repeatedly expresses that APHIS has not relinquished any discretion in bringing actions. Considering all the language in the Operating Plan, we conclude that it is clear that the JO properly concluded that the Operating Plan does not limit APHIS's ability to bring this action.[15]
Thus, we uphold the JO's decision that the Operating Plan does not curtail APHIS's ability to sanction H. Derickson for violations of the Act pertaining to the Trainers Show.[16]
*347 III. CONCLUSION
Because we conclude that the JO had substantial evidence to support his findings that: (1) the Dericksons are liable for transporting Just American Magic; (2) J. Derickson is liable for entering Just American Magic; and (3) the Operating Plan does not limit APHIS's ability to impose legal sanctions on H. Derickson, we DENY the Dericksons' petition for review.
NOTES
[*] The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.
[1] "A `sore' horse is a horse on which chemicals or other implements have been used on its front feet to make the horse highly sensitive to pain" causing the horse "to lift its feet quickly, reproducing the distinctive, high-stepping gait that show judges look for in Tennessee Walking Horses." McConnell v. United States Dep't of Agric., 198 Fed.Appx. 417, 418 (6th Cir.2006) (unpublished opinion).
[2] H. Derickson is not the owner of the horse; Just American Magic is owned by Robbie Warley and Black Gold Farm, Inc.
[3] The Scar Rule provides that a horse is deemed sore if that horse suffers from certain physical conditions indicative of soring. See Rowland v. United States Dep't of Agric., 43 F.3d 1112, 1115 (6th Cir.1995).
[4] NHSC issued an eight-month suspension and a $600 fine to H. Derickson for a bilateral soring violation involving Just American Magic that occurred less than one year prior to the Trainers Show incident.
[5] The Dericksons are the only parties named in the complaint that are before this court.
[6] The JO further found that Just American Magic was sore when transported. This finding is not disputed in the instant appeal.
[7] The Dericksons also filed a motion to stay enforcement of the sanctions issued pending appellate review, which was granted.
[8] Though the Dericksons admit that substantial evidence is the proper standard of review, they assert that the JO's decision in this matter should be viewed "`more critically than it would if the [JO] and the ALJ were in agreement.'" Dericksons Br. at 13 (quoting Young v. United States Dep't of Agric., 53 F.3d 728, 732 (5th Cir.1995)) (alteration in Dericksons Br.). This argument is meritless. Young is not binding on this court, and is in direct contradiction to Rowland. See Rowland, 43 F.3d at 1114. As Rowland is a published opinion of the Sixth Circuit, we are bound by its holding. SIXTH CIR. R. 206(c).
[9] H. Derickson does not appeal the JO's finding that he entered Just American Magic in violation of the Act.
[10] In their answer, the Dericksons state that the mailing address for their business is "Shelbyville, Tennessee." J.A. at 76 (Ans.¶¶ 5-6). Neither party disputes that Tennessee partnership law applies in this case.
[11] The Dericksons do not dispute the JO's finding that, if they are partners of the partnership that transported Just American Magic, they are personally liable for the transportation violation.
[12] The exchange at the administrative law hearing between the various attorneysMs. Carroll ("Q"), Mr. Heffington, and Mr. BoboJudge Davenport, and Black ("A" or "THE WITNESS"), preceding the stipulation in question is as follows:
Q: Okay. And were you a full-time employee?
A: Yes
Q: Okay. And I assume there wereyou had W-2 form [sic] that you filled out and taxes withheld and
A: There was [sic] taxes
MR. BOBO: Your Honor, I will object to relevancy here.
MR. HEFFINGTON: Your Honor, we can stipulate that he was employed by Herbert Dericksonwhat was the beginning date? October 2001.
THE WITNESS: October 2001.
MR. HEFFINGTON: October 2001 until when?
THE WITNESS: February of '03.
MR. HEFFINGTON: February of '03
JUDGE DAVENPORT: Is that sufficient, Ms. Carroll
MS. CARROLL: Thank you.
J.A. at 359 (Hr'g Tr. at 468).
[13] The parties vigorously dispute whether H. Derickson did in fact comply with the suspension issued by NHSC. Compare Dericksons Br. at 25-28 with APHIS Br. at 25-27. Ultimately, whether H. Derickson served the NHSC suspension is irrelevant because, as explained below, the Operating Plan does not curtail the ability of APHIS to initiate an action of its own against H. Derickson.
[14] There is some question as to whether the Operating Plan was in effect at the time of the Trainers Show. The JO noted that the Operating Plan lacked a signature page. The copy provided to this court suffers from the same defect. However, we will assume for purposes of this opinion that the Operating Plan was in effect during the Trainers Show.
[15] For the first time at oral argument, H. Derickson, through his attorney, asserted that APHIS admitted, in a letter written in August 25, 2005, by then-Under Secretary of the U.S. Department of Agriculture Bill Hawks ("Hawks"), that APHIS is required to find that a privately sanctioned individual has not complied with the private sanctions before APHIS may initiate proceedings. We find this argument unpersuasive. In that letter, Hawks relies on American Horse Protection Ass'n, Inc. v. Veneman, No. 1:01-cv-00028-HHK (D.D.C. July 9, 2002), in discussing APHIS's enforcement role in light of the Operating Plan. J.A. at 225-26 (Under Secretary Letter at 3-4). The district court in Veneman, when determining whether the Operating Plan amounted to an impermissible delegation of APHIS's authority, found that APHIS's role under the Operating Plan was limited in some respects. Veneman, No. 1:01-cv-00028-HHK, at 6. With all due respect to that district judge, we believe that its determination is inaccurate. For the reasons discussed above, we conclude that APHIS did not limit its ability to enforce the Act by signing the Operating Plan. Because it appears that Hawks relied on Veneman's interpretation of the Operating Plan, any statements that Hawks made in the letter are irrelevant.
[16] H. Derickson also claims, in the last paragraph of his brief, that the action by NHSC was "at the very lest [sic] quasi-criminal in nature, as he had to pay a fine, and also was suspended from practicing his chosen profession for a period of two (2) years." Dericksons Br. at 32. He then asserts, without further explanation, that double jeopardy should apply in the present action. Given his failure fully to develop this issue, the issue is waived. See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir.2005) ("It is well-established that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.") (internal quotation marks omitted). Nonetheless, as there are no criminal actions or criminal penalties involved at any level of this case, we can easily observe that the double jeopardy claim is meritless. See Herbert v. Billy, 160 F.3d 1131, 1136 (6th Cir.1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2100572/ | 920 N.E.2d 276 (2010)
BUTTERY
v.
STATE.
No. 67A01-0907-CR-352.
Court of Appeals of Indiana.
January 20, 2010.
DARDEN, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
MAY, J., concurs.
KIRSCH, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264889/ | 54 Cal. App. 4th 1040 (1997)
ROBERT W. HIGGINBOTHAM, Plaintiff and Appellant,
v.
PAUL KING et al., Defendants and Respondents.
Docket No. B099406.
Court of Appeals of California, Second District, Division Six.
April 14, 1997.
*1042 COUNSEL
George, Gallo & Sullivan, Ray A. Gallo and Shaunna Sullivan for Plaintiff and Appellant.
Daniel E. Lungren, Attorney General, Margaret A. Rodda, Assistant Attorney General, Richard J. Rojo and Jung D. Shin, Deputy Attorneys General, for Defendants and Respondents.
OPINION
YEGAN, J.
Robert W. Higginbotham appeals from a judgment dismissing his civil rights complaint (42 U.S.C. § 1983) after the trial court ruled that it failed to state a cause of action. We affirm. Appellant has failed to demonstrate that the complaint can be amended to allege a cognizable damage. (WMX Technologies, Inc. v. Miller (9th Cir.1996) 80 F.3d 1315, 1319-1320.)
Facts
On September 2, 1992, the San Luis Obispo Narcotics Task Force arrested appellant, a prominent eye surgeon, for cultivating marijuana. (Health & Saf. Code, § 11358.) After appellant was booked, Narcotics Task Force Officer *1043 Paul King made a statement to the news media that appeared in the Telegram-Tribune, a local newspaper.[1]
On August 17, 1993, a jury convicted appellant of marijuana cultivation following an 11-week trial.[2] (Health & Saf. Code, § 11358.) Appellant appealed the conviction and filed the instant action against respondents, King and the State of California, seeking damages under the Civil Rights Act of 1871. (42 U.S.C. § 1983.) The complaint alleged that King's statements "were all false and in a community the size of San Luis Obispo created an immediate impression of guilt for the crime for which he was arrested and an impression, which has been from its release to date, virtually impossible to erase from the minds of witnesses, jurors, patients, and acquaintances."
Respondents moved for summary judgment on the ground that appellant was collaterally estopped by the criminal conviction. Appellant, in his opposition papers, admitted that he did not seek a change of venue. It was also undisputed that his attorney in the criminal action voir dired prospective jurors about the pretrial publicity.
The trial court ruled that the complaint failed to state a cause of action and granted appellant 20 days' leave to amend his complaint. Summary judgment was entered after appellant failed to file an amended complaint.
Collateral Estoppel
(1) To state a cause of action under 42 United States Code section 1983, the complaint must allege that respondents acted under color of state law and *1044 violated appellant's constitutional or federally protected rights. "Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." (Baker v. McCollan (1979) 443 U.S. 137, 146 [99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433, 443].)
(2) The complaint alleges that respondents attempted "to deprive the Plaintiff of a fair trial by influencing witnesses and jurors with a false press release...." Respondents argue that the criminal conviction estops appellant from relitigating facts necessarily established in the criminal proceeding. (See, e.g., Bernhard v. Bank of America (1942) 19 Cal. 2d 807, 814 [122 P.2d 892].) We agree. (Compton v. Ide (9th Cir.1984) 732 F.2d 1429, 1434 [action against officers for false arrest barred by plaintiff's criminal conviction].) Appellant cannot collaterally attack the conviction based on the theory that the pretrial publicity violated his Sixth Amendment right to a fair trial.
"The right to be tried by an impartial jury, by its very nature, can only be afforded or denied in the context of a criminal trial." (Kaylor v. Fields (8th Cir.1981) 661 F.2d 1177, 1181.) Where the defendant is charged with a criminal offense and tried by a jury, "he has ample means, including voir dire and a motion for change of venue, by which to vindicate this right in the state [criminal] courts." (Ibid.) A civil rights action does not lie unless the criminal proceeding failed to provide adequate due process protections to guard against the effects of pretrial publicity. (Buckley v. Fitzsimmons (7th Cir.1994) 20 F.3d 789, 798-799 [no § 1983 claim where prosecutor's press conference statements allegedly prevented fair trial and acquittal].)
Respondents' motion for summary judgment made a prima facie showing that appellant was afforded and exercised all of his due process rights during the criminal trial. Under the summary judgment statute, the burden shifted to appellant to present evidence that the pretrial publicity denied him a fair trial. (Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 593 [37 Cal. Rptr. 2d 653].) Appellant's opposing declaration lacked foundation and raised no material triable facts.
The doctrine of collateral estoppel bars appellant's claim that the pretrial publicity denied him a fair trial. Appellant "was afforded a full opportunity to litigate the issue of his guilt with all the safeguards afforded the criminal defendant, and since he was charged with felonies punishable in the state prison [citation], he had every motive to make as vigorous and effective a defense as possible. Under these circumstances, we hold that any issue necessarily decided in a prior criminal proceeding is conclusively determined as to the parties if it is involved in a subsequent civil action." *1045 (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal. 2d 601, 606-607 [25 Cal. Rptr. 559, 375 P.2d 439].)
Appeal of Criminal Conviction
Appellant contends that the doctrine of collateral estoppel does not apply because he appealed the criminal conviction. The conviction, however, was affirmed by this court on March 18, 1997, in an unpublished opinion. (People v. Higginbotham (Mar. 18, 1997) B078974.) Assuming that the trial court acted prematurely in ruling on the summary judgment motion, there was no prejudice. Appellant is collaterally estopped by the judgment and may not seek damages based on the theory that he was denied a fair trial in the criminal proceeding.
Damage to Reputation and Business
(3) Appellant argues that the complaint states a cause of action for violation of a constitutionally protected liberty or property interest. The complaint alleges that the press statement damaged appellant's professional reputation and medical practice. "Slander is not, however, a constitutional tort, because a person's interest in his reputation is neither `liberty' nor `property' for purposes of the due process clause. [Citations.]" (Buckley v. Fitzsimmons, supra, 20 F.3d 789, 797; see also Siegert v. Gilley (1991) 500 U.S. 226, 233 [111 S. Ct. 1789, 1794, 114 L. Ed. 2d 277, 288].)
In Paul v. Davis (1976) 424 U.S. 693 [96 S. Ct. 1155, 47 L. Ed. 2d 405], the plaintiff was arrested for shoplifting and defamed when the police department circulated a flyer of "Active Shoplifters" that included plaintiff's name and photograph. (Id., at p. 697 [96 S.Ct. at pp. 1158-1159, 47 L.Ed.2d at p. 411].) Plaintiff filed suit under 42 United States Code section 1983 alleging that the flyer stigmatized his reputation and seriously impaired his employment opportunities. The United States Supreme Court held that no cause of action was stated because injury to reputation was not a liberty or property interest protected under the Fourteenth Amendment. (424 U.S. at p. 712 [96 S.Ct. at pp. 1165-1166, 47 L.Ed.2d at p. 420].)
The same principle was invoked in Johnson v. Barker (9th Cir.1986) 799 F.2d 1396. There, the plaintiff was prosecuted for entering a restricted area near Mt. St. Helens. The criminal action was dismissed for lack of speedy trial. Johnson filed a civil rights action alleging that the sheriff and prosecutor made defamatory statements concerning his arrest. The court held that the statements, even if defamatory, did not give rise to a civil action for violation of Johnson's due process rights. The court stated: "Paul v. Davis *1046 teaches that damage to reputation, standing alone, cannot state a claim for relief under section 1983 because reputation is neither `liberty' nor `property' guaranteed against state deprivation without due process of law. In order to attain protected status under the Due Process Clause, the state action complained of must also alter or extinguish a right or status previously recognized by state law. [Citation.]" (Id., at p. 1399.)
Appellant claims that the pretrial publicity damaged his medical practice, a protected property right. The argument is based on the "stigma-plus" test set forth in Paul v. Davis, and requires a showing that respondents not only defamed appellant (the "stigma"), but deprived him of a property or liberty interest (the "plus"). (Paul v. Davis, supra, 424 U.S. 693, 709-711 [96 S. Ct. 1155, 1164-1165, 47 L. Ed. 2d 405, 418-419].) Those allegations are missing here.
The complaint must allege that respondents contacted appellant's patients and directly caused the alleged loss. (WMX Technologies, Inc. v. Miller, supra, 80 F.3d 1315, 1319.) Appellant has made no offer of proof that the complaint can be so amended. "[T]his case only involves defamatory remarks made to the public generally which allegedly injured the plaintiffs' business reputation. This is not sufficient to satisfy the requirement that a constitutionally protected property interest be at stake. Damage to business reputation without more does not rise to the level of a constitutionally protected property interest. [Citations.] Allowing the plaintiffs' claim under these circumstances would constitutionalize the state law tort of defamation." (Ibid.)
Appellant asserts that the press statement caused a reaction in the community that incidentally affected his business and personal life. Standing alone, the claim does not satisfy Paul v. Davis, supra, 424 U.S. at pages 709-711 [96 S.Ct. at pages 1164-1165, 47 L.Ed.2d at pages 418-419]. "[S]tate action must accompany both prongs of the `stigma-plus' test. `If plaintiff only has to show that the state defamed him-and not that the state did something else as well-in order to state a claim for deprivation of liberty under § 1983, the effect would be to transmute all defamation actions against state actors in which plaintiff can show some harm resulting from the defamation into § 1983 actions.' [Citation.] We conclude today that the `stigma-plus' test requires that the defamation be accompanied by an injury directly caused by the Government, rather than an injury caused by the act of some third party." (WMX Technologies, Inc. v. Miller, supra, 80 F.3d 1315, 1320.)
The trial court ruled that the complaint failed to state a cause of action. We agree. "[The] collateral consequences of the defamation, such as loss of *1047 business, public scorn, and potential loss of employment, did not create a cause of action for the defamation under Paul, since such consequences would not be the result of any affirmative conduct by the parties making the defamation." (Cooper v. Dupnik (9th Cir.1991) 924 F.2d 1520, 1534, fn. omitted.) Appellant cannot bootstrap a civil rights claim based on the theory that the pretrial publicity damaged his medical practice, his employment opportunities, or his standing in the community. (WMX Technologies, Inc. v. Miller, supra, 80 F.3d 1315, 1320; Ellenberger v. Espinoza (1994) 30 Cal. App. 4th 943, 949 [36 Cal. Rptr. 2d 360].)
The judgment is affirmed with costs to respondent.
Stone (S.J.), P.J., and Gilbert, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 23, 1997.
NOTES
[1] The September 4, 1992, article stated in pertinent part:
"Dr. Robert `Sonny' W. Higginbotham, 48, of Pismo Beach was being held in County Jail this morning in lieu of $200,000 bail on suspicion of marijuana cultivation and possessing marijuana for sale, according to a jail spokeswoman.
"Thursday night, narcotics agents checking a remote area off Price Canyon Road in rural San Luis Obispo reportedly spotted Higginbotham get out of his blue BMW, pull on camouflage clothing and hike about a quarter mile through thick brush, according to Narcotics Task Force commander Paul King.
"The doctor allegedly walked to a fenced area where at least 100 sinsemilla plants were growing up to 6 feet tall, King said.
"While agents from the state Campaign Against Marijuana Planting watched from the brush, Higginbotham allegedly went inside the enclosed area where plants were being watered through a main line set up some distance from the crop.
"Higginbotham must have heard something said King, because he started running, peeling off his camouflage clothes as he was being chased by agents.
"The agents chased him to his car, King said, where he was arrested at about 7 p.m. By then he was barefoot and wearing a T-shirt and suit pants, King said."
[2] Appellant was granted probation, sentenced to 90 days in jail, and ordered to serve 1,000 hours of community service and to pay a $21,000 fine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265027/ | 262 N.J. Super. 45 (1993)
619 A.2d 1037
IN THE MATTER OF THE ARBITRATION BETWEEN TRETINA PRINTING, INC. AND HI-TECH PROPERTIES, A GENERAL PARTNERSHIP, AND JAN TRETINA AND OLGA TRETINA, INDIVIDUALLY, PETITIONERS-APPELLANTS/CROSS-RESPONDENTS,
v.
FITZPATRICK & ASSOCIATES, INC., RESPONDENT-RESPONDENT/CROSS-APPELLANT. FITZPATRICK & ASSOCIATES, INC., PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
TRETINA PRINTING CO., INC., HI-TECH PROPERTIES, A GENERAL PARTNERSHIP, AND JAN TRETINA AND OLGA TRETINA, INDIVIDUALLY, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued December 2, 1992.
Decided February 9, 1993.
*47 Before Judges KING, BRODY and LANDAU.
George F. Mackey argued the cause for appellants/cross-respondents (Mackey & Moore, attorneys; Mr. Mackey and Gary J. Mueller, of counsel and on the brief).
Robert Hedinger argued the cause for respondent/cross-appellant (Peckar & Abramson, attorneys; Mr. Hedinger and Caroline M. Rossi, on the brief).
The opinion of the court was delivered by BRODY, J.A.D.
Both parties appeal from a judgment confirming an arbitration award as modified by the trial judge. The dispute arose under an "Owner-Construction Manager" contract between Tretina Printing, Inc. (Tretina) and Fitzpatrick & Associates, Inc. (Fitzpatrick). We hold that the arbitrator imperfectly executed his powers upon the subject matter submitted to him and that it is too late to direct a rehearing because the time within which he was empowered by the parties to make an award has expired.
Tretina engaged Fitzpatrick to manage the construction of a building to house Tretina's printing business and rental office space. Fitzpatrick guaranteed that Tretina's total cost would *48 not exceed $2,566,050, the Guaranteed Maximum Price (GMP). Tretina agreed to pay Fitzpatrick a $200,000 Construction Manager's Fee, to be included in the total cost, and 30% of any saving if the total cost is less than the GMP. The parties agreed that instead of paying Fitzpatrick the fee in monthly installments, Tretina would pay the entire fee with "an interest rate of 11.5%" after the work was completed. Significantly, the contract provided that the total cost included the "cost of corrective work." Fitzpatrick agreed to absorb any portion of the total cost that exceeded the GMP.[1]
The contract provides that all disputes "shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association...." Fitzpatrick submitted the parties' disputes to arbitration when Tretina failed to pay requisition # 15 in the amount of $45,083, which had been approved by Tretina's architect. By then Tretina had paid Fitzpatrick $2,119,819, which was $446,231 less than the GMP. Thus, under the basic terms of the contract, when the parties went into arbitration Tretina was liable for up to $446,231 of the remaining costs of construction, which included the cost of corrective work and Fitzpatrick's $200,000 fee.
After conducting twenty-one arbitration sessions over the period of a year, the arbitrator issued a written award in a form that has the appearance of resolving each of Fitzpatrick's and Tretina's contract claims by either assigning a dollar amount to each or stating that the claim is "denied." The "TOTAL AWARD TO FITZPATRICK" was $269,912.34, and the "TOTAL AWARD TO TRETINA" was $530,180, leaving a "TOTAL NET AWARD TO TRETINA" of $260,267.66. After making several adjustments for open items that the arbitrator had determined it would be premature for him to decide, the trial *49 judge confirmed the net award but reduced it by $201,148, the sum noted in requisition # 15 as accumulated "retainage."
Tretina appeals, claiming that the judge should not have reduced the award. Fitzpatrick cross-appeals claiming that the award is so defective that the judge should have vacated it.
The Supreme Court has recently defined a court's limited authority to review an arbitration award in the private sector. "We sit not as an appellate court to review arbitral decisions of law but only to safeguard against interpretive error that may be characterized on its face as gross, unmistakable, undebatable, or in manifest disregard of the applicable law and leading to an unjust result." Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 496, 610 A.2d 364 (1992). From our review of the award, the fundamental provisions of the parties' contract, and the claims submitted by Fitzpatrick to the arbitrator, we conclude on the basis of the Perini standard that we must vacate the award.
By specifying how he arrived at the award, the arbitrator has enabled us to observe how he manifestly disregarded the heart of the parties' contract.
To begin with, the award ignores the Guaranteed Maximum Price, which is at the core of the contract and gives it its distinctive character. The contract requires that Tretina absorb all costs, including costs of correction, up to the GMP. As we previously noted, that means that based on a GMP of $2,566,050 Tretina must absorb $446,231 of the unpaid costs, including costs of correction and Fitzpatrick's fee, before costs may be charged to Fitzpatrick. Accepting for the moment the correctness of the itemization in the award, that means that the $269,912.34 that the arbitrator awarded Fitzpatrick is $176, 318.66 short of what Tretina is contractually obliged to pay Fitzpatrick. Crediting Fitzpatrick with the full $446,231 reduces the total net award to Tretina to $83,949.
*50 As a general rule under the contract, once Tretina pays the GMP, Fitzpatrick must absorb all additional costs. Thus, except as noted below, Fitzpatrick is not entitled to be paid claims, however valid, that the arbitrator did not award in full or omitted altogether from the award. Such omissions include full payment of the "retainage" and requisition # 15.
However, the contract contains several significant exceptions to the general rule. One exception that entitles Fitzpatrick to payment of more than the original GMP is based on Article 9 of the contract, which provides for adjusting the GMP to reflect authorized changes in the project. We note, for instance, that the award contains credits to Fitzpatrick totalling $73,701.37 for items found in Change Order # 3. That change order, not yet accounted for in requisition # 15, appears to have produced a post-contract authorized increase in the cost of the project entitling Fitzpatrick to a corresponding increase in the GMP.
We also note that the arbitrator awarded Fitzpatrick $68, 710.97 for "Delays by owner." Section 7.2.2 of Article 7 of the contract provides that "For delays in the Project not the responsibility of the Construction Manager, there will be an equitable adjustment in the fee to compensate the Construction Manager for his increased expenses." It may be equitable for Tretina to pay Fitzpatrick an additional fee for owner-caused delay damages even if doing so will exceed the GMP. We cannot tell if the arbitrator would have so concluded had he properly considered the matter.
There may be other items payable by Tretina above the GMP, such as the 11.5% interest to Fitzpatrick provided for in Article IIX of the May 29, 1987 rider to the contract for the delay in paying his fee until after the work is completed.
The arbitrator completely omitted mention in the award of other submitted claims that may be payable to Fitzpatrick in addition to the GMP. Some of the claims are in an accounting entitled "Summary of Claims" that Fitzpatrick submitted to the arbitrator. We must assume that the arbitrator overlooked *51 these claims because he neither made an award for them nor expressly denied them as he did others. These omitted claims include claims for delay damages that, as noted above, may be payable to Fitzpatrick in addition to the GMP. For instance, Fitzpatrick sought owner-caused delay damages of $55,602, with $7,643 interest, for "concrete work" and "masonry work."
We are also given a copy of a list of additional claims more fully explained in a report prepared by Fitzpatrick's expert that was presented to the arbitrator but not made part of the record before us. We are told that the report details 62 owner-caused delay days related to interior finishes, the main lobby stairway, and late payments. Although he omitted reference to these claims in the award, the arbitrator allowed delay damages for similar claims at the rate of $724.64 a day. Thus those omitted delay damages could total $44,927.68.
We do not consider awards that presumably reflect the arbitrator's judgment and are therefore beyond the scope of judicial review. However, some of the arbitrator's awards to Tretina are unquestionably contrary to the evidence. "[A]rbitrators may not make an award that is wholly bereft of evidential support." Perini, supra, at 491, 610 A.2d 364.
For instance, a change order calls for a six-inch thick concrete loading dock. Tretina's expert testified that it would cost $21,800 to rebuild the loading dock because as built it may not permit sufficient clearance after sprinkler heads are installed. The arbitrator allowed Tretina the full $21,800 even though the expert acknowledged that he based his estimate on one-foot thick concrete. Also, as the result of labor disputes on the job, glass and cables were broken by vandals. The arbitrator awarded Tretina $10,000 for the replacement of the glass and $2,675 to repair the cables even though the contract required Tretina to carry casualty insurance for such losses. When asked whether he had filed an insurance claim, plaintiff Jan Tretina testified, "Not yet."
*52 Fitzpatrick contends that the award has other significant defects, but we have limited ourselves to those that are "gross, unmistakable, undebatable, or in manifest disregard of the applicable law and leading to an unjust result." Perini, supra, at 496, 610 A.2d 364. Tretina defends none of these defects in its brief.
The Arbitration Act, N.J.S.A. 2A:24-1 to -11, provides two judicial remedies when there is a defective award: vacation of the award (with the option of remanding to the arbitrator for additional hearings) or modification or correction of the award.
The relevant portion of N.J.S.A. 2A:24-8 that authorizes vacating an award is the following:
The court shall vacate the award in any of the following cases:
a. Where the award was procured by corruption, fraud or undue means;
* * * * * * * *
d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
When an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.
The Perini standard for testing an award is based on the "undue means" and "imperfectly executed their powers" language of Section 8. Perini, supra, at 494, 610 A.2d 364.
Authorization to modify an award is found in N.J.S.A. 2A:24-9, which provides:
The court shall modify or correct the award in any of the following cases:
a. Where there was an evident miscalculation of figures or an evident mistake in the description of a person, thing or property referred to therein;
b. Where the arbitrators awarded upon a matter not submitted to them unless it affects the merit of the decision upon the matter submitted; and
c. Where the award is imperfect in a matter of form not affecting the merits of the controversy.
The court shall modify and correct the award, to effect the intent thereof and promote justice between the parties.
Section 9 does not authorize us to modify or correct this award because the award ignores the basic contours of the parties' contract, decides some submitted disputes contrary to *53 the evidence, and completely fails to decide others. These defects are not merely mathematical miscalculations and their ultimate resolution surely affects the merits of the controversy. Although we described some of the defects in the award in dollar amounts, those amounts are merely descriptive and do not represent findings by us of actual sums that may have been found due if properly considered by a fact finder.
We must vacate the award pursuant to Section 8. See In re Arbitration Between Mary Harris and William Harris, 140 N.J. Super. 10, 354 A.2d 704 (App.Div. 1976).
The remaining question is whether we exercise our discretion under Section 8 to direct a rehearing by the arbitrator.[2] The short answer is that the statute leaves us no discretion in this case. Section 8 gives a court discretion to order a rehearing before the arbitrator only "[w]hen an award is vacated and the time within which the agreement required the award to be made has not expired...." That time has long since expired. Rule 41 of the Construction Industry Arbitration Rules of the American Arbitration Association requires that an award be made "not later than thirty days from the date of closing the hearings." See Zervos v. Freedman Props. Ltd., 223 N.J. Super. 599, 602, 539 A.2d 336 (Ch.Div. 1987).
This award was rendered July 30, 1991. The trial judge modified and confirmed the award November 25, 1991, four months later. Even if the confirmation had been a vacation, it would have been made more than thirty days after the award and therefore surely more than thirty days from the date of the closing of the hearings.[3]
*54 Under common law, an arbitrator loses authority to act after the deadline that the parties, by their agreement, had given him or her to make an award. Goerke Kirch Co. v. Goerke Kirch Holding Co., 118 N.J. Eq. 1, 5, 176 A. 902 (E. & A. 1935). Section 8 codifies the common-law rule when an award is vacated:
The Arbitration act referred to declares this fundamental [common-law] principle. It provides ... that "where an award is vacated and the time, within which the agreement required the award to be made, has not expired, the court may, in its discretion, direct a rehearing by the arbitrators." P.L. 1923 p. 293. [Ibid.]
We are therefore without authority to order a rehearing before the arbitrator.
We would not order a rehearing before the arbitrator even if we had the discretion to do so. There is a reasonable basis for Fitzpatrick's concern that the arbitrator's ability to reconsider the evidence in light of its theory of recovery has been compromised because his award departed so markedly from the subject matter of the dispute submitted, and unaccountably failed to decide substantial and relevant factual issues that Fitzpatrick had submitted. See Manchester Tp. Bd. of Ed. v. Thomas P. Carney, Inc., 199 N.J. Super. 266, 280-82, 489 A.2d 682 (App.Div. 1985) where we refused to order a rehearing before the same arbitrators because they had decided factual issues after refusing to hear rebuttal evidence.
A California court, interpreting an arbitration statute similar to ours, reached the same conclusion in a case where an arbitrator merely failed to decide one of the issues submitted:
This is not a case where the arbitrator has found upon an issue not submitted to him and where his award may be modified by the court by striking therefrom the portion which attempts to make an award outside of the submission; but it is a case where the arbitrator has failed to find upon all of the issues submitted to him, with the result that "a mutual, final and definite award, upon the subject matter submitted" has not been made. In such a case there has, in reality, been no award, and the attempted award must be vacated as a whole, and the matter left standing as if it had not been heard by the arbitrator. [Citation omitted.] [Film Technicians of the Motion Picture Industry, Local 683, et al. v. Color Corporation of America, 141 Cal. App.2d 553, 297 P.2d 86, 88 (Cal.Ct.App. 1956)]
*55 See also Samuel Kirshbaum Fabrics Corp. v. L. & G. Greenfield, Inc., 80 N.Y.S.2d 443 (Sup.Ct. 1948).
The judgment confirming the arbitration award as modified is reversed and the award is vacated.
NOTES
[1] We omit, for the moment, reference to various adjustments to the GMP provided in the contract for such contingencies as delays, agreed-upon modifications, and late payment of Fitzpatrick's fee.
[2] Tretina asks that we remand the matter to the arbitrator for further findings. Fitzpatrick asks that we vacate the award, after which it will initiate a new arbitration before a different arbitrator.
[3] We have not been told when the hearings closed or whether the parties expressly or impliedly waived the thirty-day period to allow the arbitrator more time to fashion his award. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361386/ | 546 F.3d 571 (2008)
UNITED STATES of America, Appellee,
v.
Modesto GUZMAN-TLASECA, Appellant.
No. 07-3836.
United States Court of Appeals, Eighth Circuit.
Submitted: June 9, 2008.
Filed: November 17, 2008.
*573 Lee R. Johnson, St. Louis Park, MN, for appellant.
Lisa D. Kirkpatrick, AUSA, Minneapolis, MN, for appellee.
Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
On February 13, 2007, a federal grand jury indicted Modesto Guzman-Tlaseca, and co-defendants Francisco Lee Sifuentes, Roberto Sanchez Garciduenos, and Erika Janette Placensia on a charge of conspiring to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. The district court[1] denied Guzman-Tlaseca's pretrial motion to suppress evidence. A jury convicted Guzman-Tlaseca, and the district court sentenced him to 264 months of imprisonment. Guzman-Tlaseca appeals the denial *574 of his motion to suppress, his conviction, and his sentence.
I.
Law enforcement investigated Guzman-Tlaseca for a one and one-half year period before his arrest in January, 2007. Drug Enforcement Administration ("DEA") Special Agent Jeffrey J. Fiance ("SA Fiance") was the affiant for the warrants in question and testified at the evidentiary hearing on Guzman-Tlaseca's motion to suppress evidence. At the time of the arrest, SA Fiance had been in law enforcement for eight years and an agent for the DEA for six years. In his affidavit, he stated that the DEA, Immigration and Customs Enforcement ("ICE") and the Anoka-Hennepin Drug Task Force ("AHDTF") had been investigating a drug trafficking ring called the "Guzman-Tlaseca Drug Trafficking Organization" ("DTO"). He averred that on July 6, 2005, police executed a search warrant on Guzman-Tlaseca's home on 55th Street in Minneapolis ("55th Street residence"). They found approximately 3 ounces of methamphetamine, a digital scale, and $158 of pre-recorded buy funds, which the AHDTF had previously used to buy narcotics from Guzman-Tlaseca. He was arrested, but not charged, because of an investigation into his ongoing criminal activity.
SA Fiance also related in his affidavit the facts surrounding controlled purchases of narcotics from Guzman-Tlaseca during April and May, 2006. A confidential informant, CS-1, purchased methamphetamine from Guzman-Tlaseca at a separate residence on 27th Avenue in Minneapolis ("27th Ave. house") on May 5, 2006 and May 17, 2006. An undercover DEA agent accompanied CS-1 on the May 17, 2006 purchase.
Another informant, CI-1, purchased methamphetamine from Guzman-Tlaseca at the 27th Ave. house on April 26, 2006, and at the 55th Street residence on April 27, 2006 and April 28, 2006. On the last two occasions, undercover DEA agents accompanied CI-1. DEA agents also monitored the April 27, 2006 transaction through an electronic listening device that CI-1 was wearing.
In November 2006, CS-1 informed law enforcement that Guzman-Tlaseca had rented a residence in Richfield, Minnesota ("Richfield residence") that was possibly being used to store and coordinate the distribution of methamphetamine. DEA and ICE special agents had already identified the Richfield residence as a suspected "drug stash location" for the DTO. SA Fiance stated in his affidavit that this was further corroborated by other subjects of the investigation.
SA Fiance averred that on December 19, 2006, Minnesota Bureau of Criminal Apprehension Special Agent Ron Woolever ("SA Woolever"), purchased approximately five ounces of methamphetamine from co-defendant Garciduenos in an undercover capacity. Information obtained from Garciduenos led to the arrest of Ruben Rodriguez Navarez, who stated that a man he knew as "Rey" had given him a phone to use.[2] During searches of the vehicles driven by Navarez and Garciduenos, two cellular telephones were seized. SA Woolever identified a common number in these two phones. When he called the number, a man who identified himself as "Rey" answered, and then handed the phone to a woman later identified as co-defendant Placensia. After several conversations, Placensia agreed to meet SA Woolever and deliver to him a half pound of methamphetamine.
*575 On December 29, 2006, SA Woolever met with Placensia and arrested her after the purchase of one-half pound of suspected methamphetamine. She subsequently informed SA Woolever that "Rey" was the source of the methamphetamine that she and Garciduenos sold to him. On December 29, 2006, accompanied by special agents from the Minnesota Bureau of Criminal Apprehension, Placensia identified Guzman-Tlaseca's Richfield residence as Rey's "stash house." She indicated that she had seen methamphetamine at the Richfield residence within 48 hours of December 29, 2006, and she identified a man outside the residence as "Rey." She also picked Guzman-Tlaseca's photograph out of a photographic array and identified him as someone she had seen at the Richfield residence giving money to "Rey."
On January 17, 2007, SA Fiance applied for search warrants to search the Minneapolis and Richfield residences. He requested authority to search the 55th Street residence for documents relating to the transportation, distribution and manufacturing of narcotics. In support of his affidavit, SA Fiance wrote, in his own handwriting, that "[a]s of December 2006, your affiant has information received from a CRI that detailed drug ledgers were being kept at the residence located at 4122 55th, Minneapolis, MN." For the Richfield residence, he requested the authority to search for controlled substances, narcotics trafficking paraphernalia, and documents or other written evidence relating to the transportation, ordering, purchase or distribution of controlled substances. The affidavits supporting the two warrants were nearly identical, the only difference being that SA Fiance did not include the handwritten notation in the affidavit supporting the warrant to search the Richfield residence.
During the execution of the warrant for the search of the 55th Street residence, law enforcement discovered folded currency containing a white powder that field tested positive for methamphetamine. A search of the basement uncovered other items consistent with a narcotics operation, such as heat-sealed bags that had been opened, unused ziplock bags, and a white powdery substance that appeared to be cut material used to increase the volume of controlled substances. SA Fiance applied for and received a second warrant to search the 55th Street residence based on these discoveries.
The prosecution introduced into evidence items discovered during these searches. From the 55th Street residence, the prosecution introduced a Derringer pistol, ammunition, documents belonging to co-defendant Sifuentes, and a small amount of methamphetamine. From the Richfield residence, the government introduced two driver's licenses belonging to Guzman-Tlaseca, some paperwork belonging to him, and approximately 30 grams of methamphetamine.
Guzman-Tlaseca filed a motion to suppress the evidence obtained during the searches of his two residences, claiming that the searches were not supported by probable cause. After an evidentiary hearing, the magistrate judge[3] recommended the denial of the motion. The district court adopted the recommendation and denied the motion to suppress. The United States filed an information to establish a prior felony drug conviction of Guzman-Tlaseca and enhance his mandatory *576 minimum sentence pursuant to 21 U.S.C. § 851.
At trial, more evidence was introduced concerning Guzman-Tlaseca's participation in the drug conspiracy. Government informant Scott Groff testified that, prior to his October 14, 2005 arrest, he had been dealing drugs with Guzman-Tlaseca for approximately six months. After Groff's arrest, he cooperated with law enforcement, and engaged in controlled buys of narcotics from Guzman-Tlaseca and co-defendant Sifuentes on October 14, 2005; October 18, 2005; and November 15, 2005. He also testified that he helped Guzman-Tlaseca and Sifuentes acquire methamphetamine on one occasion in mid-2005. Sifuentes also testified about Guzman-Tlaseca's drug trafficking activities.
On June 20, 2007, the jury returned a verdict of guilty. As a result of a prior felony drug conviction, Guzman-Tlaseca's mandatory sentence was 20 years. See 21 U.S.C. § 841(b)(1)(A)(viii). The Presentence Investigation Report ("PSR") recommended a base offense level of 34, based on the quantity of drugs involved. The PSR further recommended a two-level enhancement for Guzman-Tlaseca's possession of a firearm, and a two-level enhancement for his managerial role in the drug conspiracy. The district court rejected the enhancement for possession of a firearm, but found Guzman-Tlaseca to be a manager and enhanced his offense level to 36, with a category III criminal history. This resulted in a guideline range of imprisonment of 235 to 293 months. The district court imposed a 264-month sentence.
II.
Guzman-Tlaseca appeals the denial of his motion to suppress the evidence on the grounds that none of the three warrants were supported by probable cause. We review a district court's factual conclusions for clear error and its legal conclusions de novo. United States v. Nguyen, 526 F.3d 1129, 1133 (8th Cir.2008). We conclude that the district court properly denied Guzman-Tlaseca's motion to suppress.
"Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place." United States v. Nolen, 536 F.3d 834, 839 (8th Cir.2008) (quoting United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir.2000)). As the Supreme Court has emphasized, probable cause is a "practical, nontechnical conception." Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). It deals with probabilities that are not "technical" but "are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. (quoting Brinegar, 338 U.S. at 175, 69 S. Ct. 1302).
Regarding the document search warrant for the 55th Street residence, the district court properly found that the totality of the circumstances established probable cause. Guzman-Tlaseca contends that the warrant was unsupported by probable cause because the handwritten notation concerning "drug ledgers" did not indicate the basis of the CRI's knowledge. However, "an informant's basis of knowledge [is] an important consideration, but not a rigid requirement, in the probable cause determination." United States v. Anderson, 933 F.2d 612, 615 (8th Cir.1991) (citing Gates, 462 U.S. at 230, 103 S. Ct. 2317). Other indicia of reliability, such as past reliable cooperation with law enforcement, can compensate for a deficiency in the basis of *577 knowledge. See Gates, 462 U.S. at 233, 103 S. Ct. 2317.
The district court found that the CRI that informed about the drug ledgers was the same person identified as CRI-1 elsewhere in the affidavit. The affidavit stated that CRI-1 had informed law enforcement that Guzman-Tlaseca was distributing methamphetamine from the Richfield residence. Two other informants corroborated this. Furthermore, CRI-1 had previously provided the names and telephone numbers of individuals involved in the distribution of narcotics, which were independently corroborated and led to seizures of narcotics. This was sufficient to show "a fair probability that contraband or evidence of a crime" would be found at the 55th Street residence. See United States v. Robinson, 536 F.3d 874, 877 (8th Cir.2008) (holding that probable cause existed where confidential informant told police about narcotics trafficking at defendant's residence and conducted controlled buy of cocaine from defendant) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).
Likewise, the second warrant to search the 55th Street residence was supported by probable cause. While executing the first warrant, two officers found a white, powdery substance wrapped in folded currency that field tested positive for methamphetamine. Additionally, law enforcement found other items associated with narcotics trafficking, including opened heat-sealed bags, ziplock bags, and a white powder commonly used to increase the volume of methamphetamine for sale. This was more than sufficient to show a fair probability that contraband or evidence of a crime would be found. See, e.g., Robinson, 536 F.3d at 877; Gates, 462 U.S. at 238, 103 S. Ct. 2317.
As for the warrant to search the Richfield residence, three informants (CS-1, CRI-1, and CI-1) indicated that Guzman-Tlaseca distributed methamphetamine from the house. Both CS-1 and CRI-1 previously provided reliable, independently corroborated information to law enforcement. CS-1 and CI-1 conducted controlled buys of methamphetamine from Guzman-Tlaseca. Co-defendant Placensia identified the Richfield residence as a "stash house" used by her supplier, Reyner Diaz Figueroa. She also identified Guzman-Tlaseca in a photographic array as someone she had seen at the Richfield residence giving money to Diaz Figueroa. This information was sufficient to show a fair probability that narcotics could be found at the Richfield residence.[4]See Robinson, 536 F.3d at 877; Gates, 462 U.S. at 238, 103 S. Ct. 2317.
III.
Guzman-Tlaseca also appeals the jury's guilty verdict on the grounds that it was not supported by sufficient evidence. However, he does not argue that the government provided insufficient evidence to support the three elements of conspiracy. See, e.g., United States v. Adams, 401 F.3d 886, 893 (8th Cir.2005) (to convict on a charge of conspiracy, "the government must prove beyond a reasonable doubt that there was an agreement to achieve some illegal purpose, that the defendant knew of the agreement, and that the defendant knowingly became a part of the *578 conspiracy") (quotation omitted). Instead, he argues that the government charged him with conspiring with others to distribute methamphetamine from July 2005 until January 2007, but offered no evidence of his involvement in drug trafficking after May 2006. Put another way, he argues that the evidence was insufficient because the government alleged that the conspiracy continued for 18 months, but only submitted evidence of his involvement for the first 10 months of that period. He cites no authority for this proposition, and discusses it only briefly.
As an initial matter, we note that "[i]t is not this court's job to research the law to support an appellant's argument." United States v. Stuckey, 220 F.3d 976, 981 (8th Cir.2000) (quoting Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 642 (8th Cir.1993)). Secondly, "the government was not required to prove that [Guzman-Tlaseca] was involved in a conspiracy that filled the entire period charged." United States v. Baker, 367 F.3d 790, 799 (8th Cir.2004) (citation omitted); see also United States v. Harris, 344 F.3d 803, 805 (8th Cir.2003) (per curiam) ("[A] variance between the date set forth in the indictment and the proof at trial is not fatal as long as the acts alleged were committed within the statute of limitations and before the date of the indictment.") (citing Stuckey, 220 F.3d at 982); United States v. Davis, 679 F.2d 845, 852 (11th Cir.1982) ("Neither is time an essential element [of conspiracy] so long as the time frame proved was within the period alleged in the indictment.").
When reviewing a jury verdict for sufficiency of evidence, "we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." Adams, 401 F.3d at 893 (quotation omitted). "We will reverse only if we conclude that a reasonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the offense's essential elements." Id. (internal quotation omitted).
To convict Guzman-Tlaseca of conspiracy, the government must prove beyond a reasonable doubt that he entered an agreement with others to distribute narcotics, that he knew of the agreement, and that he knowingly became a part of the conspiracy. See, e.g., id. "A formal agreement is not required to create a conspiracy, and the existence of a conspiracy can be proved by direct or circumstantial evidence." United States v. Williams, 534 F.3d 980, 985 (8th Cir.2008). "Notably, `[a] defendant challenging the sufficiency of the evidence in a conspiracy case has a heavy burden.'" United States v. Nolen, 536 F.3d 834, 842 (8th Cir.2008) (quoting United States v. Mickelson, 378 F.3d 810, 821 (8th Cir.2004)).
The government presented ample evidence of Guzman-Tlaseca's participation in a drug trafficking conspiracy. Co-defendant Sifuentes testified that he collected money and delivered drugs for Guzman-Tlaseca. Sifuentes also testified that co-defendant Garciduenos replaced him in this capacity. Scott Groff testified that Guzman-Tlaseca supplied him with narcotics to sell. Guzman-Tlaseca sold significant quantities of methamphetamine to informants and law enforcement in April and May 2006. On January 14, 2007, police stopped a vehicle in which Guzman-Tlaseca was riding and found small amounts of methamphetamine and $2,200 in mostly twenty-dollar bills on his person. In January 2007, law enforcement executed warrants on two residences used by Guzman-Tlaseca and discovered methamphetamine and other indicia of drug trafficking, including a pistol, ammunition, and documents belonging to co-defendant Sifuentes.
*579 Viewing this evidence in a light most favorable to the verdict, we conclude that the evidence was sufficient to support the jury's finding that Guzman-Tlaseca was guilty of conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. See, e.g., United States v. Hogan, 539 F.3d 916, 924-25 (8th Cir.2008) (evidence of narcotics conspiracy sufficient where defendant obtained methamphetamine from suppliers, provided it to other dealers, and received payment in return); Nolen, 536 F.3d at 842-43 (testimony of a circumstantial nature was sufficient even where no evidence of explicit agreement to engage in narcotics trafficking was introduced); Williams, 534 F.3d at 985-86 (evidence of conspiracy sufficient where defendant identified two of his sources that sent him cocaine over prior 18 months, and a search of defendant's car uncovered quantities greater than amount for personal use).
IV.
Guzman-Tlaseca challenges the imposition of a 20-year mandatory minimum sentence as a result of his prior drug conviction in Utah. We review the district court's application of § 841(b) de novo. United States v. Davis, 417 F.3d 909, 913 (8th Cir.2005), cert. denied 546 U.S. 1144, 126 S. Ct. 1160, 163 L. Ed. 2d 1011 (2006).
On January 24, 2006, Guzman-Tlaseca pled guilty in Utah to illegal possession of a controlled substance, third degree. He received a five-year suspended sentence. He now argues that his prior conviction is not a "felony drug offense" for purposes of 21 U.S.C. § 841(b)(1). For purposes of § 841(b)(1), "felony drug offense" is defined as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State ..." 21 U.S.C. § 802(44). Guzman-Tlaseca's argument rests on the fact that the Utah statute in question imposes an "indeterminate" sentence "[i]n the case of a felony of the third degree ... for a term not to exceed five years." Utah Code Ann. § 76-3-203(3). Thus, he asserts that his prior conviction was not a "felony drug offense" under federal law because a third degree felony conviction in Utah might result in less than a one-year sentence.
We reject this argument. Federal law defines "felony drug offense" as one "punishable by imprisonment for more than one year ..." 21 U.S.C. § 802(44). As the Ninth Circuit has held, "in determining whether a state conviction is punishable for more than one year's imprisonment for purposes of a federal criminal statute predicated on a prior felony conviction or for federal sentencing purposes, we look to the maximum penalty allowed by [the state] statute." United States v. Murillo, 422 F.3d 1152, 1153-54 (9th Cir. 2005), cert. denied 547 U.S. 1119, 126 S. Ct. 1928, 164 L. Ed. 2d 677 (2006). Third degree possession of a controlled substance in Utah may result in a maximum five-year sentence. Utah Code Ann. § 76-3-203(3). Thus, the offense is punishable by imprisonment for more than one year. Accordingly, the district court properly determined that Guzman-Tlaseca had a prior felony drug conviction requiring the imposition of a mandatory minimum 20-year sentence under 21 U.S.C. § 841(b)(1)(A)(viii).
V.
Guzman-Tlaseca also challenges his sentence asserting that the district court erred by enhancing his base offense level by two levels for his managerial role in the offense. See United States Sentencing Commission, Guidelines Manual, § 3B1.1(c) (Nov.2007). "We review the district court's decision to assess a *580 sentencing enhancement based upon a defendant's role in the offense for clear error..." United States v. Johnson, 278 F.3d 749, 752 (8th Cir.2002). We construe the term "manager" broadly under U.S.S.G. § 3B1.1. See United States v. Rosas, 486 F.3d 374, 376 (8th Cir.2007); United States v. Erhart, 415 F.3d 965, 973 (8th Cir.2005), cert. denied 546 U.S. 1156, 126 S. Ct. 1181, 163 L. Ed. 2d 1138 (2006). When determining whether a defendant played a managerial role in an offense, application note four to section 3B1.1 directs the sentencing court to consider such factors as:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Co-defendant Sifuentes testified that Guzman-Tlaseca approached him while he was performing work on Guzman-Tlaseca's residence and offered him employment in his drug trafficking ring. Sifuentes testified that he began collecting money and delivering drugs for Guzman-Tlaseca, that Guzman-Tlaseca gave him a phone to use for drug related business, and that Guzman-Tlaseca changed the number frequently. Furthermore, informant Groff testified that when he arranged to buy methamphetamine from Guzman-Tlaseca, Sifuentes arrived to conduct the transaction. When Groff did not have enough money to pay both an existing debt and buy the methamphetamine, Sifuentes called Guzman-Tlaseca to receive instructions.
Based upon this evidence, we conclude that the district court's finding that Guzman-Tlaseca was a manager was not clearly erroneous. See, e.g., Rosas, 486 F.3d at 376 (affirming a finding that defendant was a manager where he hired others to travel to California to acquire methamphetamine, supplied the money used to purchase drugs, and hired others to package drugs); United States v. Plancarte-Vazquez, 450 F.3d 848, 853-54 (8th Cir. 2006) (to be a manager "it is enough if the defendant assumed organizing or leadership functions such as recruiting others, determining the price or location of sales, and so forth") (quotation omitted); United States v. Zimmer, 299 F.3d 710, 723-24 (8th Cir.2002) (defendant was a manager of a drug conspiracy where he provided instruction to others on how to manufacture methamphetamine).
VI.
The judgment is affirmed.
NOTES
[1] The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
[2] Rey's full name is Reyner Diaz Figueroa.
[3] The Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota.
[4] Guzman-Tlaseca also argues that the good faith exception to the exclusionary rule should not apply, because the search warrant applications were so deficient that no reasonable police officer could believe that the searches were legal. See United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Given that the applications supplied probable cause, this argument fails as well. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361405/ | 546 F.3d 728 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Felix WALLS, Defendant-Appellant.
No. 06-2079.
United States Court of Appeals, Sixth Circuit.
Argued: October 23, 2008.
Decided and Filed: November 13, 2008.
*730 ARGUED: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Michael C. Leibson, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Michael C. Leibson, Assistant United States Attorney, Detroit, Michigan, for Appellee.
Before: MOORE and WHITE, Circuit Judges; VINSON, District Judge.[*]
OPINION
KAREN NELSON MOORE, Circuit Judge.
Defendant-Appellant Felix Walls ("Walls") appeals his life sentence resulting from convictions for one count of conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 and one count of conspiracy to launder money in violation of 18 U.S.C. § 371. Walls, through his attorney, makes five arguments: (1) the district court erred when it imposed an enhancement under U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 3B1.1 (2005), because the district judge did not find that Walls controlled the actions of others; (2) the life sentence imposed is substantively unreasonable in light of the 360-month sentence imposed after Walls's first trial, Walls's age, the age of the offenses, the lack of need for further training, and the fact that like convictions have not resulted in life sentences; (3) the district court erred in determining that certain sentencing decisions were "the law of the case"; (4) the district court failed to make a proportionality review before imposing a life sentence; and (5) Walls's convictions are void because Title 21 was never published in the Federal Register, as required by 44 U.S.C. § 1505. Walls also filed a pro se brief arguing that the district court could not legally sentence him for either conviction because: (1) both convictions are barred by the statute of limitations; and (2) the *731 district judge prejudicially instructed the jury that it had to find Walls guilty.
For the reasons discussed below, we AFFIRM Walls's convictions and sentence.
I. FACTS AND PROCEDURE
This is Walls's fourth appearance before this court. A previous panel accurately detailed much of Walls's factual and procedural history. That account is reprinted below:
[S]tarting in 1985, the appellant Felix Walls and a partner established and operated, for eight or nine years, a large-scale drug distribution network. The operation primarily transported drugs between California and Detroit, Michigan. Walls and his partner recruited others to work for the operation. According to the evidence, this conspiracy involved large amounts of cocaine, and on several occasions members of the conspiracy carried more than $1 million in cash.
Four successive, almost identical indictments were returned against Walls, and he was twice convicted. The initial indictment was returned in January 1993 and charged Walls and others with conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. § 846, and conspiracy to launder money, in violation of 18 U.S.C. § 371. The indictment alleged that the conspiracies were "continuing to the date of this indictment." When Walls was arrested in late 1994, the cases against his co-defendants had been concluded; an identical superseding indictment was returned that eliminated those defendants and added others.
A jury convicted Walls under the two conspiracy counts. [Walls's properly calculated guidelines range was 360-months-to-life imprisonment.] He was sentenced to concurrent terms of 360 months on the drug count and 60 months on the money laundering count. This court reversed his convictions and remanded his case for a new trial "[b]ecause Walls was prevented from calling a witness necessary to his defense, and because the trial court failed to adequately ascertain whether a juror had been tainted by the receipt of extraneous information, both in violation of the Sixth Amendment[.]" United States v. Walls, 162 F.3d 1162 (table), 1998 WL 552907 (6th Cir.1998) (unpublished opinion).
Prior to the remand, this Court had held in United States v. Ovalle, 136 F.3d 1092 (6th Cir.1998), that the selection process used to select the grand juries that had returned the initial indictments against Walls was unconstitutional. A second superseding indictment of Walls was returned in December 1998, which was nearly identical to the previous indictment. The indictment erroneously included a count on which Walls had been acquitted in the prior trial, and contained minor changes not relevant to Walls's case.
On May 11, 1999, a "Third Superseding Indictment" was returned. It eliminated the count on which Walls had been acquitted. It also added the allegation that the drug conspiracy involved "5 kilograms or more of a mixture or substance containing a detectable amount of cocaine[.]" The previous indictment had referred to "controlled substances, to wit: cocaine, a Schedule II controlled substance" without specifying an amount. In all other respects, the Third Superseding Indictment was identical to the previous one.
Walls moved unsuccessfully to dismiss this indictment under the Double Jeopardy Clause. In an interlocutory appeal, *732 this Court held in an unpublished opinion that "[t]here simply is no double jeopardy bar to a retrial of Walls on the conspiracy charges set forth in the third superseding indictment." Walls v. Hemingway, 27 Fed.Appx. 553 (6th Cir. 2001) (unpublished opinion).
A jury once again convicted Walls on the two conspiracy counts. The jury found that "the quantity of cocaine involved in the overall scope of the conspiracy was: at least 5 kilograms, as alleged in the indictment[.]" In early 2003, the district court, applying the United States Sentencing Guidelines then in effect, sentenced Walls to concurrent terms of life imprisonment (drug conspiracy) and 60 months (money laundering conspiracy). The district court found, as the probation officer's report had recommended, that the conspiracy involved 1,200 kilograms of cocaine.
United States v. Walls, 148 Fed.Appx. 286, 287-89 (6th Cir.2005) (unpublished opinion) (first and second alterations added) (hereafter referred to as "Walls III").
Walls appealed both his conspiracy to distribute cocaine conviction and his 2003 life sentence to this court. Id. at 287. The Walls III panel upheld the convictions, rejecting Walls's claim that the second trial subjected him to double jeopardy, a conclusion which it held to be prior law of the case, and his claim that his conviction was barred by the statute of limitations. Id. at 289-90. The panel specifically held that "the Third Superseding Indictment[, under which Walls was convicted in his retrial,] did not broaden the original charges, and that therefore the indictment relates back to the original indictment date and does not violate the Statute of Limitations." Id. at 289. The panel also rejected "various other arguments" that Walls made, some of which were in a pro se brief. Id. at 290. However, the panel did remand for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Walls III, 148 Fed.Appx. at 291.
Walls was 64 years old at the time of resentencing and faced a statutory maximum sentence of life imprisonment for the conspiracy to distribute cocaine conviction and five years for the conspiracy to commit money laundering conviction. The Presentence Investigation Report ("PSR"), calculated a total offense level of 44, assigning Walls four points for being an "organizer and leader in a criminal activity that involved five or more participa[nts, p]ursuant to § 3B1.1(a)." Joint Appendix ("J.A.") at 401 (PSR at 10). The highest offense level contemplated by the guidelines is 43, which has a guidelines range of life imprisonment regardless of the criminal history level assigned to the defendant. U.S.S.G. § 5A.
Walls was resentenced on August 1, 2006 by the same district judge who previously had sentenced Walls to life imprisonment. At the sentencing hearing, Walls made several objections, including an objection to the determination in the PSR that Walls was "an organizer and leader of the criminal activity." J.A. at 239 (Resent. Hr'g Tr. 8/1/06 at 9). The district judge overruled the objection, stating that the court of appeals had determined this issue in Walls III, making it "law of the case" and that, as he explained in the original sentencing hearing,[1] there was extensive *733 evidence to support a finding, by "more than a preponderance" of the evidence, that Walls was the organizer of the conspiracy. J.A. at 240 (Resent. Hr'g Tr. 8/1/06 at 10).
The district judge acknowledged that "the proper approach [to sentencing post-Booker] is to first consider the correctly calculated guideline range[,] ... [then] to take fully into account and to resolve objections and make whatever factual findings may be needed by a preponderance of the evidence upon which to base the sentencing enhancements or diminutions as provided in the guidelines." J.A. at 270-71 (Resent. Hr'g Tr. 8/1/06 at 40-41). Further, the judge stressed that he should "decide whether there is any basis upon which to depart within ... the guideline regime. If there is a basis, it should be announced...." J.A. at 271 (Resent. Hr'g Tr. 8/1/06 at 41). The district judge then stated that he should "fully consider[]" the factors listed in 18 U.S.C. § 3553(a) and "evaluate[ the] possible reasons to vary if no departure is appropriate," keeping in mind that "the goal through all of this is to arrive at a sentence that is sufficient but not greater than necessary." Id.
The district judge then proceeded to apply the above-outlined framework. He explained that the correctly calculated guidelines range was life imprisonment and that there were "no rationales or theories within the [U.S.S.G.] that would impel a reasonable court to consider departing downward...." J.A. at 272-73 (Resent. Hr'g Tr. 8/1/06 at 42-43). The district judge then considered several § 3553(a) factors"the need to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to afford ... deterrence, [to] protect the public, [and] to provide vocational training" and found that they "encouraged ... a greater [rather] than a lesser sentence" and that they did not "provide any basis for any adjustment to the sentence in the downward variance from a life sentence that was originally imposed." J.A. at 273-74 (Resent. Hr'g Tr. 8/1/06 at 43-44). The judge also added:
[I]t strikes me that very likely just about everything that's been presented in potential mitigation of the sentence here or in the form of objections to the sentencing calculations that have been made are probably bound by law of the case.
Now, I have not read the defendant's appellate brief. I do not know what issues were raised particularly before the Sixth Circuit from the 2003 sentencing. But it seems likely to me that because these objections are regenerations of things that I've already read about and already heard argument on and already resolved, those things probably were raised at the Sixth Circuit as well. And the Sixth Circuit very offhandedly rejected the various other arguments *734 that were raised by Mr. Walls.... So I frankly doubt that much of what we've already determined today is going to be even subject to further appeal. Or if appealed, will be certainly subject to attack as settled law of the case.
J.A. at 274-75 (Resent. Hr'g Tr. 8/1/06 at 44-45).
The district judge also found that Walls has a "very lengthy, almost lifetime devotion, to the pursuit of the criminal objectives" and a "blatant ... disregard for societal norms for the laws of the United States." J.A. at 275 (Resent. Hr'g Tr. 8/1/06 at 45). He found that it would be "better for society, for Mr. Walls to spend his remaining years in a secure environment in the federal institution where he will be in large measure, if not completely, restrained from preying upon others as he has done for just about all of his adult life when he was not imprisoned." Id. Then, "[u]pon consideration of the advisory range of life and finding no reason to depart and no reason to vary," the district judge reimposed "the same sentence as imposed before; that is, life imprisonment." J.A. at 275-76 (Resent. Hr'g Tr. 8/1/06 at 45-46). Walls timely appealed his sentence.
II. ANALYSIS
Through counsel, Walls argues that: (1) the district court erred when it imposed an enhancement under U.S.S.G. § 3B1.1; (2) the life sentence imposed is substantively unreasonable; (3) the district court misapplied the "the law of the case" doctrine; (4) the district court failed to make a proportionality review before imposing a life sentence; and (5) Walls's convictions are void because Title 21 was never published in the Federal Register. Walls further argues in his pro se brief that the district court could not legally sentence him for either conviction because: (1) both convictions are barred by the statute of limitations; and (2) the district judge prejudicially instructed the jury that it had to find Walls guilty. We address each argument in turn.
A. Enhancement under U.S.S.G. § 3B1.1(a)
The standard of review we apply to a district court's imposition of an enhancement under § 3B1.1(a) is "subject to some debate." United States v. McDaniel, 398 F.3d 540, 551 n. 10 (6th Cir.2005) (internal quotation marks omitted). When reviewing § 3B1.1(a) impositions in the past, "we reviewed the district court's factual findings for clear error and its legal conclusions de novo." Id. However, in 2001, "the Supreme Court ruled in Buford v. United States that, in light of the fact-bound nature of the legal decision, an appellate court should review deferentially, rather than de novo, a district court's application of U.S.S.G. § 4B1.2." Id. (internal quotation marks omitted). Several panels of this court have concluded that it was "unnecessary to determine whether Buford requires us to alter the standard of review we apply in reviewing § 3B 1.1 enhancements because [each panel] would have affirmed the district court's sentencing determination under either standard." Id.; United States v. Milan, 218 Fed.Appx. 492, 496 (6th Cir.2007) (unpublished opinion). Like our sister panels, we conclude that Walls's argument fails under any standard of review.
Under § 3B1.1(a), a defendant's offense level should be increased by four levels "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive[.]" U.S.S.G. § 3B1.1(a). When making this determination, we consider factors including:
*735 the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
McDaniel, 398 F.3d at 551 (quoting U.S.S.G. § 3B1.1 applic. n. 4). Furthermore, to impose a § 3B1.1(a) enhancement, a court must find that the defendant "exerted control over at least one individual within a criminal organization...." United States v. Vandeberg, 201 F.3d 805, 811 (6th Cir.2000) (internal quotation marks omitted); see also U.S.S.G. § 3B1.1 app. n. 2.
Walls's sole argument is that the district court failed to make the required finding that he controlled at least one other person in the criminal organization. However, this observation is inaccurate. Although it is true that the district judge did not specifically elaborate at the resentencing hearing on the issue of control of others, the district judge did state that he relied on the evidence that he "noted and... extensively commented upon ... at the earlier sentencing" hearing, when finding by "more than a preponderance" of the evidence that Walls organized the conspiracy. J.A. at 240 (Resent. Hr'g Tr. 8/1/06 at 10). At the 2003 sentencing hearing, the district judge specifically found that "Brant, Goldsby, Gray and Jutkowitz were individuals either recruited by or instructed by the defendant," that the defendant "recruited" and "directed" individuals, and that Walls "was indeed at or near the top of the heap with respect to the organizational structure of this enterprise." J.A. at 160 (Sent. Hr'g Tr. 2/20/03 at 32). Although it would be preferable for the district judge to reiterate these factual determinations fully at the resentencing hearing, we cannot say that the district judge did not make the required factual determination that Walls controlled others.
Moreover, even assuming a traditional review de novo of the § 3B 1.1(a) legal issues, Walls's argument still fails. At that 2003 sentencing hearing, the district judge found that the conspiracy involved "close to a dozen" individuals, that Walls was "at or near the top of ... the organizational structure" and that Walls "claimed a substantial share of the profits and manipulated those profits." Id. Regardless of the exact parameters of § 3B1.1(a) review in light of Buford, it is clear that factual findings made by the district court are reviewed for clear error. United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir.2005). With regard to the factual findings of the district judge, there is no evidence in the record to suggest the district court committed clear error. Even under de novo review of the law, given these findings, Walls would satisfy the requirements for imposition of a § 3B1.1(a) enhancement. See United States v. Moncivais, 492 F.3d 652, 660-61 (6th Cir.2007) (holding that a defendant who supplied another with drugs, gave another orders, and had "a large stake in the profitability" of the drug organization is subject to a § 3B1.1(a) enhancement); see also Milan, 218 Fed.Appx. at 496-97 (holding that a § 3B1.1(a) enhancement is warranted where a defendant was the "kingpin of the drug conspiracy" and "specific co-conspirators purchased crack cocaine from or delivered crack cocaine for the defendant"); United States v. Hernandez, 227 F.3d 686, 700 (6th Cir.2000) (holding that a § 3B1.1(a) enhancement was warranted where the defendant "directed codefendants to make payments," transported *736 profits, "was involved in planning and organizing the conspiracy," and approved drug couriers). Therefore, we hold that the district court did not err by imposing the leader and organizer enhancement under § 3B1.1(a).
B. Substantive Reasonableness of Sentence
We review sentences imposed by the district court for reasonableness. United States v. Smith, 474 F.3d 888, 892 (6th Cir.2007) (citing United States v. Collington, 461 F.3d 805, 807 (6th Cir.2006)). Reasonableness review has both a procedural and a substantive component. See Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007); United States v. Thomas, 498 F.3d 336, 339 (6th Cir.2007). "Assuming that the district court's sentencing decision is procedurally sound, [we] should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Gall, 128 S.Ct. at 597. District courts are charged with imposing "a sentence sufficient, but not greater than necessary" to fulfill the purposes of sentencing in § 3553(a)(2). United States v. Foreman, 436 F.3d 638, 644 (6th Cir.2006) (internal quotation marks omitted). "The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall, 128 S.Ct. at 597. "A sentence is substantively unreasonable if the district court select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor." United States v. Caver, 470 F.3d 220, 248 (6th Cir.2006) (internal quotation marks omitted) (alterations in original). In this circuit, we have chosen to apply a rebuttable appellate presumption of reasonableness to a sentence that falls within a properly calculated guidelines range. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.2008) (en banc) (acknowledging that Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456, 2462, 2467, 168 L. Ed. 2d 203 (2007), gives courts of appeals the option of applying a rebuttable presumption to within-guidelines sentences).
Walls makes no arguments that his sentence is procedurally unreasonable; thus we need only review the sentence for substantive reasonableness. Other than the objection to the § 3B1.1(a) enhancement explained and rejected above, Walls does not contend that the guidelines range calculated and applied to his sentence is incorrect, nor is there any evidence in the record to that effect. Because the guidelines range was correctly calculated and the district judge sentenced Walls within that range, we will accord a rebuttable presumption of reasonableness to Walls's sentence. Vonner, 516 F.3d at 410-11.
Walls does not successfully rebut this presumption. Walls argues that his sentence is substantively unreasonable because the district court should have considered: (1) the 360-month sentence Walls received after his first trial; (2) Walls's age; (3) the age of the offenses; (4) the lack of need for continued education; (5) the amount of time Walls had served; and (6) the sentences given to other members of the conspiracy. Walls's arguments are unpersuasive.
First, Walls's sentence after his first trial is irrelevant to his sentence after the second trial because, as the district judge explained, the guidelines range calculated after Walls's first trial was lower than the guidelines range calculated after the subsequent trial. J.A. at 253-54 (Resent. Hr'g Tr. 8/1/06 at 23-24). After Walls's second trial, the district court *737 awarded a two-level enhancement for obstruction of justice that Walls did not receive after his first trial. Id. This elevated Walls's guidelines range to life imprisonment, an increase from the 360-months-to-life guidelines range applicable after the first trial. J.A. at 254 (Resent. Hr'g Tr. 8/1/06 at 24).[2]
Second, Walls never asked the district judge to consider specifically his age or the age of the offenses as mitigating factors during sentencing. Walls's brief on appeal does not point to any record of his having raised these particular issues in the district court, nor could we find any such record. Thus, it was not an abuse of discretion for the district judge not to consider these factors.
Third, the district judge explicitly stated that he was considering "the need ... to provide vocational training[,] which [Walls's] attorney says he doesn't need...." J.A. at 273-74 (Resent. Hr'g Tr. 8/1/06 at 43-44). Walls's assertion that the district judge did not consider that Walls did not need further education is therefore false.
Fourth, though the district judge did not explicitly state that he considered the amount of time Walls had already served or the sentences given to other members of the conspiracy, Walls does not explain why such failures constitute an abuse of discretion. Walls does not assert that the district judge was required by § 3553(a) to review these factors,[3] nor does he cite any caselaw that would support such an assertion. Walls claims only that these factors show that "a term of less than life is more than sufficient to meet the [§] 3553(a) criteria." Walls Br. at 9. This argument lacks merit.
The district judge reviewed the pertinent § 3553(a) factors"the need to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to afford ... deterrence, [to] protect the public, [and] to provide vocational training"and concluded that those factors supported a greater sentence, not a lesser one. J.A. at 273-74 (Resent. Hr'g Tr. 8/1/06 at 43-44). The district judge also explained that a life sentence was appropriate given Walls's lengthy criminal career and "blatant ... disregard for societal norms." J.A. at 275 (Resent. Hr'g Tr. 8/1/06 at 45). Given this thorough explanation, it cannot be said that "the district court select[ed] the sentence arbitrarily, bas[ed] the sentence on impermissible factors, fail[ed] to consider pertinent § 3553(a) factors or g[ave] an unreasonable amount of weight to any pertinent factor." Caver, 470 F.3d at 248. Furthermore, the factors Walls refers to do not outweigh the reasoning provided by the district court, and thus Walls fails to meet his burden to rebut the presumption of reasonableness. Therefore, we hold that the district court did not abuse its *738 discretion in sentencing Walls to life imprisonment.
C. Law of the Case Doctrine
Walls argues that "the district court was under a misapprehension that the Guidelines issues were resolved by this Court in the previous appeal, and therefore, were bound by law of the case." Walls Br. at 11. Walls points to the district judge's statement that he "frankly doubt[ed] that much of what [the court] determined today is going to be ... subject to further appeal. Or if appealed, will certainly [be] subject to attack as settled law of the case." J.A. at 275 (Resent. Hr'g Tr. 8/1/06 at 45). Walls contends that this court's remand for resentencing was a general remand and thus the district court was not bound by the law of the case in regard to any sentencing issues.
Walls is correct that, when the Walls III panel remanded this case for resentencing, the remand was general and thus the district court had the "authority to address all matters as long as [it] remain[ed] consistent with the remand." United States v. Tocco, 306 F.3d 279, 294 (6th Cir.2002) (internal quotation marks omitted). However, Walls does not specify what issues were left unresolved by the district judge. This is likely because there were no unresolved issues. The district judge stated that "much of what [the court] determined today" may not be subject to appeal. Id. (emphasis added). This statement implicitly asserts that the district court did in fact determine things that day, during the resentencing hearing. Review of the transcript shows that the district judge did evaluate and determine every issue raised by Walls at the resentencing hearing; the district judge answered all of Walls's objections, explained the necessary steps a district court must follow in sentencing after Booker, followed all of those steps, and explained why he was imposing a life sentence. Walls's argument is not supported by the record. We therefore conclude that this argument is meritless.
D. Proportionality Review
"[T]he Eighth Amendment `does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.'" United States v. Layne, 324 F.3d 464, 473 (6th Cir.2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., joined by O'Connor, J., and Souter, J., concurring)) (second set of internal quotation marks omitted). Further, the Constitution does not require comparative proportionality. Layne, 324 F.3d at 474. A mandatory life sentence for a drug violation does not, per se, offend the Eighth Amendment. See Harmelin, 501 U.S. at 1005, 111 S. Ct. 2680 (Kennedy, J., joined by O'Connor, J., and Souter, J., concurring) (stating that mandatory a life sentence for possession of 672 grams of cocaine "does not give rise to an inference of gross disproportionality").
Walls does not directly argue that his sentence is disproportionate and in violation of the Eighth Amendment. Rather, Walls asks this court to "require a proportionality review by district courts in cases... [where] a life sentence is not required." Walls Br. at 17. He asserts that his case should be remanded because the district court failed to make such a review. Walls concedes that this argument is subject to plain-error review. Id. at 16. Regardless of the level of review, however, Walls's argument is unpersuasive.
Walls cites a Fourth Circuit case, United States v. Kratsas, 45 F.3d 63 (4th Cir. 1995), for the proposition that a proportionality review should be required before *739 a court can impose a life sentence. Kratsas, 45 F.3d at 67. The Kratsas Court applied a three-part test when conducting such a review, which looked to "(1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 66 (citing Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)).
Kratsas is not relevant in light of recent sentencing developments. Kratsas was decided before the sentencing guidelines became advisory in 2005 as a result of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Under the new advisory regime, the district court is required to review the factors listed in § 3553(a) before imposing any sentence. Gall, 128 S.Ct. at 596; Caver, 470 F.3d at 248. These factors include a review of "the nature and circumstances of the offense," "the need for the sentence imposed to reflect the seriousness of the offense," and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a). Thus, in every case post-Booker, district courts consider the exact factors that the Kratsas court considered in its proportionality review. These are also the same factors that Walls argues this court should require district courts to review before imposing a life sentence. Although it is both appropriate and necessary after Booker for district courts to review the proportionality of a sentence, the type of separate analysis Walls asks for would be redundant. Therefore, we hold that a district court is not required to conduct a separate proportionality review before imposing a life sentence.
E. Void Convictions
Walls argues that his convictions are void because Title 21 was not published in the Federal Register as required by 44 U.S.C. § 1505(a). Walls Br. at 18. Section 1505(a) states:
(a) Proclamations and Executive Orders; documents having general applicability and legal effect; documents required to be published by Congress. There shall be published in the Federal Register
(1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof;
(2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and
(3) documents or classes of documents that may be required so to be published by Act of Congress.
For the purposes of this chapter every document or order which prescribes a penalty has general applicability and legal effect.
44 U.S.C. § 1505(a) (emphasis added). If a document is required to be published in the Federal Register, it is "not valid as against a person who has not had actual knowledge of it until the duplicate originals or certified copies of the document have been filed with the Office of the Federal Register and a copy made available for public inspection as provided by section 1503 of this title." 44 U.S.C. § 1507.
Walls contends "that Title 21 is `a document or order which prescribes a penalty,'" Walls Br. at 19, and thus Title 21 was required to be published in the Federal *740 Register to be valid. Because it was not so published, Walls asserts, Walls could not be prosecuted under Title 21. This argument has no merit.
The plain language of the statute refers only to "Presidential proclamations and Executive orders" of general applicability, "documents or classes of documents that the President may determine ... have general applicability and legal effect," and "documents or classes of documents that may be required so to be published by Act of Congress." § 1505(a). Title 21 does not fall into any of these categories. The language Walls emphasizes, "every document or order which prescribes a penalty," simply modifies the previously outlined categories; it does not itself create a new category of documents subjection to the statute. Thus, a basic criminal statute passed by Congress, such as Title 21, is not covered by 44 U.S.C. § 1505(a). See United States v. Schiefen, 139 F.3d 638, 639 (8th Cir.1998) (holding that "the Federal Register notice requirements do not apply to federal criminal statutes") (citing 44 U.S.C. § 1505(a) and 5 U.S.C. §§ 551(1)(A) (excluding Congress from the definition of agency) and 552 (stating what materials agencies must publish)). Therefore, we hold that 44 U.S.C. § 1505(a) does not apply to criminal statutes passed by Congress. Walls's convictions are not void on this ground.
F. Statute of Limitations
Walls, in his pro se brief, argues that both of his convictions are barred by the statute of limitations. Exactly why Walls believes these convictions are barred is unclear; however, we do not need to review this issue. The Walls III panel held that "the Third Superseding Indictment[, under which Walls was convicted,] relates back to the original indictment date and does not violate the Statute of Limitations." Walls III, 148 Fed.Appx. at 289. This holding is the law of the case and cannot now be appealed to this court. Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983) (holding that the law of the case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case"). Therefore, we conclude that, pursuant to the holding in Walls III, Walls's convictions are not barred by the statute of limitations.
G. Improper Jury Instruction
Walls, in his pro se brief, also asserts that the district judge improperly instructed the jury to "disregard the defendant's closing argument, (sic) in part, and just find him guilty." Walls pro se Br. at 9. He claims that the trial transcript has been "sanitized/excised of all reference" to the statement. Id. at 10. His only evidence to support this claim is the affidavit of Lester Harbin, a man who claims he witnessed the district judge's prejudicial statements. However, this affidavit is not signed by Harbin. Thus, it cannot be considered. Furthermore, we have reviewed the relevant transcript and cannot find the alleged statement. Therefore, we conclude that there is no evidence to support this claim.
III. CONCLUSION
Because: (1) the district court did not err when it imposed an enhancement under U.S.S.G. § 3B1.1(a); (2) Walls's sentence is not substantively unreasonable; (3) the district court did not leave sentencing issues unresolved; (4) a separate proportionality review is not required before a district court imposes a life sentence; (5) Walls's convictions are not void because 44 U.S.C. § 1505(a) does not apply to Title 21; (6) Walls's convictions are not barred *741 by the statute of limitations; and (7) there is no evidence to support Walls's allegation that the district judge prejudicially instructed the jury that it had to find Walls guilty, we AFFIRM Walls's convictions and sentence.
NOTES
[*] The Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation.
[1] At the 2003 sentencing hearing, the district judge determined that the § 3B1.1(a) enhancement was appropriate, making the following findings:
[T]he evidence here establishes by substantially more than a preponderance that the conspiracy involved here in which the defendant has been convicted involved far more than five people.
As I generally recollect, probably close to a dozen, counting suppliers more than that. Brant, Goldsby, Gray, Shipp, Robinson and Jutkowitz in addition to the defendant are example[s] of those. Brant, Goldsby, Gray and Jutkowitz were individuals either recruited by or instructed by the defendant according to their testimony, which is substantially credible, the Court[] finds with respect to their involvement in the ongoing cocaine and money laundering conspiracies.
The defendant was indeed at or near the top of the heap with respect to the organizational structure of this enterprise. You recruited, you directed. He organized, he claimed a substantial share of the profits and manipulated those profits in the way the jury found was constituting money laundering as well.
J.A. at 159-60 (Sent. Hr'g Tr. 2/20/03 at 31-32).
[2] The transcript shows that the district judged referred to Walls's offense level after his second trial as "34"; this is a misstatement. Walls was calculated as having an offense level of 44, which produces a guidelines range of life imprisonment. U.S.S.G. § 5A. It appears that the district judge simply misspoke.
[3] Although § 3553(a) does require a district judge to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," § 3553(a)(6), this court has held that this requires only a national comparison, not a comparison of codefendants in the same case. United States v. Conatser, 514 F.3d 508, 521 (6th Cir.2008). District judges are permitted, but not required, under binding Sixth Circuit precedent, to consider sentence disparities with respect to codefendants. United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361413/ | 546 F.3d 430 (2008)
Steven MANNING, Plaintiff-Appellant, Cross-Appellee,
v.
UNITED STATES of America, Defendant-Appellee, and
Robert Buchan and Gary Miller, Defendants-Appellees, Cross-Appellants.
Nos. 07-1120, 07-1427.
United States Court of Appeals, Seventh Circuit.
Argued May 14, 2008.
Decided October 6, 2008.
*431 Philip S. Beck (argued), Bartlit, Beck, Herman, Palenchar & Scott, Jonathan I. Loevy, Jon Rosenblatt, Loevy & Loevy, Chicago, IL, Theodore B. Olson, Gibson, Dunn & Crutcher, Washington, DC, for Plaintiff-Appellant, Cross-Appellee.
Thomas P. Walsh (argued), Jonathan C. Haile (argued), Office of the United States Attorney, Chicago, IL, for Defendants-Appellees, Cross-Appellants.
Before BAUER, FLAUM and MANION, Circuit Judges.
BAUER, Circuit Judge.
If a federal law enforcement officer commits a tort, the victim has two distinct avenues of relief: he may pursue a constitutional tort claim against the individual officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), or he may pursue a common law tort claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80. The latter avenue is subject to an important caveat. Under 28 U.S.C. § 2676, a judgment in an FTCA action acts as a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.
Steven Manning pursued both avenues of relief in this case. His Bivens claims against two FBI agents succeeded, but his FTCA claim against the United States failed. The district court, finding that the FTCA judgment bar applied, vacated Manning's favorable judgment on his Bivens claims. Manning appealed. Because we agree that the FTCA judgment barred Manning's Bivens claims against the agents, we affirm.
I. BACKGROUND
Steven Manning, a former Chicago police officer and FBI informant, was convicted of kidnapping in Missouri and murder in Illinois. He received a life sentence for the kidnapping charge and a death sentence for the murder charge. Both convictions were overturned. The Illinois Supreme Court reversed his murder conviction, People v. Manning, 182 Ill. 2d 193, 695 N.E.2d 423, 230 Ill. Dec. 933 (1998), and the Eighth Circuit granted habeas relief on the kidnapping conviction, Manning v. Bowersox, 310 F.3d 571 (8th Cir. 2002). Manning has not been retried in either case.
Manning filed suit against FBI agents Robert Buchan and Gary Miller, alleging that their conduct in the investigation and prosecution of the Missouri and Illinois cases violated his rights. He sought relief under Bivens and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c). In the same action, he filed suit against the United States under the FTCA for common law torts of malicious prosecution and intentional infliction of emotional distress. Prior to discovery, Buchan and Miller *432 moved for summary judgment based on absolute and/or qualified immunity. The district court denied these motions, and we affirmed. Manning v. Miller, 355 F.3d 1028 (7th Cir.2004). The case returned to the district court for discovery and trial.
The two claims were tried together in a combined, though bifurcated, trial. Claims under the FTCA may not be tried to a jury, 28 U.S.C. § 2402, so district court judges often bifurcate trials where FTCA claims are joined with other claims. The district court in this case followed that procedure: the claims against Buchan and Miller were tried before a jury, and the claims against the government were tried simultaneously before the court.
On January 24, 2005, a jury found for Manning on his Bivens claims, awarding over $6.5 million in damages against the two agents. The jury made specific findings that one or both of the agents fabricated or caused to be fabricated certain material evidence, and then concealed this and other material matters from Manning and the prosecutors who handled the cases. The jury found for the agents on the RICO claims.
On March 23, 2005, Manning moved to have judgment entered on the jury's verdict in the Bivens claims. Manning noted in the motion that, even though the FTCA claim was still pending before the court, a simultaneous entry of judgments on the FTCA claim and the Bivens claims might trigger the FTCA judgment bar. Defendants did not object to the motion. On March 25, 2005, the district court ordered the clerk to enter judgment in favor of Manning on the Bivens claims.[1]
On September 26, 2006, the district court found in favor of the United States on Manning's FTCA claims. The court concluded that excluding the evidence fabricated by the FBI agents, probable cause still existed to prosecute Manning for both the kidnapping and the murder, thereby defeating the malicious prosecution claim. The court also found that Manning failed to meet his burden of persuasion on the intentional infliction of emotional distress claim. Following this ruling, the agents moved to vacate the judgment against them under Federal Rule of Civil Procedure 59(e), claiming that the FTCA judgment bar compelled vacatur of the prior judgment in the Bivens claims. The district court granted the motion and vacated the judgment against Buchan and Miller. This timely appeal followed.
II. ANALYSIS
Manning argues on appeal that the district court improperly interpreted § 2676 to nullify the jury's verdict on the Bivens claim. The FBI agents filed a conditional cross-appeal of the adverse jury verdict, arguing that, in the event that we reversed the district court's ruling on the judgment bar, the agents were entitled to judgment as a matter of law, as well as absolute or qualified immunity. We review questions of law, such as issues of statutory interpretation, de novo. Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 520 F.3d 822, 828 (7th Cir.2008).
Our inquiry focuses on the FTCA judgment bar, which provides:
The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, *433 by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.
28 U.S.C. § 2676. Manning concedes that the district court entered a "judgment" on the merits of his FTCA claim. He also does not dispute that the FTCA and Bivens claims were "of the same subject matter," which courts have read to mean "arising out of the same actions, transactions, or occurrences." See Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 858 (10th Cir.2005) (citing Serra v. Pichardo, 786 F.2d 237, 239-40 (6th Cir. 1986)). Rather, he argues that the judgment bar should not apply to claims raised in the same action, and, alternatively, that the judgment bar should not apply retroactively to nullify a previous Bivens judgment.
We have had limited occasion to address the interplay between the FTCA judgment bar and claims under Bivens. In Hoosier Bancorp of Indiana, Inc. v. Rasmussen, 90 F.3d 180 (7th Cir.1996), a case relied upon by both parties, we determined that § 2676 applied to both favorable and unfavorable judgments on FTCA claims. Following the Ninth Circuit's rationale in Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir.1994), we observed that "[p]laintiffs contemplating both a Bivens claim and an FTCA claim will be encouraged to pursue their claims concurrently in the same action, instead of in separate actions." Hoosier Bancorp, 90 F.3d at 185 (internal quotations omitted). We did not, in that case, expressly address either argument raised by Manning here.
A. Application of § 2676 to Claims in Same Suit
Manning argues the FTCA judgment bar should not apply to claims brought in the same suit, contending that neither the language of the statute nor the congressional intent allows the construction relied upon by the district court, and that the construction would contradict Supreme Court and our precedent.
Manning first points to the text of § 2676, which bars other "actions," but not claims within the same action. By stating that "[t]he judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant," Manning posits that § 2676 bars all other "actions" i.e., other lawsuitsbut not claims within the same suit.
We decline to accept the interpretation of § 2676 offered by Manning. Courts must apply a statute as written when the language is plain and unambiguous. See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 162 L. Ed. 2d 343 (2005) ("[W]hen the statute's language is plain, the sole function of the courtsat least where the disposition required by the text is not absurdis to enforce it according to its terms." (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6, 120 S. Ct. 1942, 147 L. Ed. 2d 1 (2000)) (internal quotation marks omitted)). Section 2676 provides that an FTCA judgment acts as a bar to "any action." Under the plain meaning of that term, this must be read to include claims brought within the same action, as a claim is necessarily part of an action. Thus when the district court in this case entered a judgment in the FTCA claim, that judgment became a "judgment in an action under" the FTCA which "constitute[d] a complete bar to any action by the claimant," and Manning's Bivens claims fell under the ambit of "any action."
The common usage of the term "action" supports this reading, as "action" incorporates all elements of a civil suit, including the claims within that suit. See Black's Law Dictionary 31 (8th ed.2004) (defining *434 "action" as "[a] civil or criminal judicial proceeding" and equating it with "action at law," defined as a "[a] civil suit stating a legal cause of action and seeking only a legal remedy"); Gillespie v. Equifax Information Services, L.L.C., 484 F.3d 938, 941 (7th Cir.2007) ("We frequently look to dictionaries to determine the plain meaning of words."). Manning's Bivens claims existed as part of a "civil judicial proceeding" at the time that the court entered judgment on the FTCA claim. By acting as a bar to any action, § 2676 bars the claims within that action. This reading of the meaning of the term "action" also makes sense within the context of the entire statute. Though Congress could have been more explicit in indicating the application of § 2676 to claims in the same suit as the FTCA claim, the choice of broad language " a complete bar to any action" makes clear that the bar was intended to apply to such claims. See Serra, 786 F.2d at 239.
Manning's interpretation of § 2676 strains the plain language of the statute by suggesting that the term "action" does not include the claims within that action. A claim is a part of the broader term action, and we do not see how the judgment bar could be read to preclude the whole while preserving its parts. An interpretation that § 2676 was intended to bar only subsequent lawsuits by the same party arising out of the same set of facts does not find adequate support in the text.
No court has interpreted § 2676 in the manner put forth by Manning; to the contrary, courts have consistently found that an FTCA judgment bars a Bivens claim raised in the same suit. See Harris v. United States, 422 F.3d 322 (6th Cir. 2005); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840 (10th Cir. 2005); Engle v. Mecke, 24 F.3d 133 (10th Cir.1994); Arevalo v. Woods, 811 F.2d 487 (9th Cir.1987); Serra, 786 F.2d at 241; see also Clifton v. Miller, 139 F.3d 901 (7th Cir.1998) (unpublished opinion); Ortiz v. Pearson, 88 F. Supp. 2d 151, 167 (S.D.N.Y. 2000). Like these courts, we find that "it is inconsequential that the [Bivens and FTCA] claims were tried together in the same suit." Serra, 786 F.2d at 241.
Manning complains that to hold that the judgment bar applied in this case would contradict our ruling in Hoosier Bancorp, where, Manning argues, we instructed plaintiffs to bring both claims simultaneously in the same lawsuit. Manning overstates our directive. In Hoosier Bancorp, we encouraged plaintiffs with claims under Bivens and the FTCA to pursue those claims concurrently in the same suit. 90 F.3d at 185. We never stated that plaintiffs with both claims must pursue both claims to judgment in order to recover any damages; more to the point, we never stated that a plaintiff could keep both a Bivens and an FTCA judgment, or that the FTCA judgment bar would not apply to actions such as this. Plaintiffs like Manning who choose to pursue both avenues of relief must assume the risk that a Bivens judgment would be nullified by § 2676. We will not undo what amounts to the inevitable result of a strategic choice by Manning.
Manning further argues that this result either forecloses Bivens or renders it superfluous. The Supreme Court in Carlson v. Green stated that it is "crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action." 446 U.S. 14, 19-20, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). Reading the statute to bar claims in the same suit would eviscerate the Bivens action against protection of these claims in Carlson, according to Manning. We disagree. A plaintiff may still bring both parallel claims as remedies to torts committed by law enforcement officers *435 against the government and the individual officers, and the remedies complement each other. But the idea that a plaintiff may bring claims against both the government and the federal officer does not directly implicate whether one may pursue those claims to judgment. Both remedies remain as viable causes of action, but because of the broad language of the judgment bar, plaintiffs must make strategic choices in pursuing the remedies. We do not think it unreasonable to require a plaintiff that moved for judgment on a successful Bivens claim to decide whether or not it makes sense to voluntarily withdraw a contemporaneous FTCA claim. See, e.g., Engle, 24 F.3d at 134; Ortiz, 88 F.Supp.2d at 167. Such a requirement does not run afoul of Carlson or Hoosier Bancorp.
Manning also relies on the Supreme Court's ruling in Will v. Hallock, 546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006), arguing that the case supports his reading of § 2676 and supercedes all of the cases cited above. In Will, the Court addressed whether a district court's decision to refuse to apply the judgment bar of § 2676 was open to collateral appeal. The Court found that a statutory bar to litigation did not necessarily constitute the kind of immunity from suit that justifies an interlocutory appeal under the collateral order doctrine. In so doing, the Court observed that the FTCA judgment bar had an "essential procedural element" which set it apart from other forms of immunity; namely, that the judgment bar would not take effect until the after the district court entered an FTCA judgment. This element distinguished it from other forms of immunity from suit (such as qualified immunity), which are timely from the moment the complaint is served, and therefore warrant collateral review. The Court explained:
If a Bivens action alone is brought, there will be no possibility of a judgment bar, nor will there be so long as a Bivens action against officials and a Tort Claims Act against the Government are pending simultaneously (as they were for a time here). In the present case, if [the plaintiff] had brought her Bivens action and no other, the agents could not possibly have invoked the judgment bar in claiming a right to be free of trial.
Id. at 354, 546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836. This procedural element likens the § 2676 bar to res judicata, the Court noted, which, except in the rare case, did not warrant collateral review. Therefore "[a]lthough the statutory judgment bar is arguably broader than traditional res judicata," like res judicata, the statute does not "protect values so great that only immediate appeal can effectively vindicate them." Id. at 354-55, 546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836.
Manning first extrapolates from this analysis that Congress incorporated principles of res judicata into § 2676, which, according to Manning, would indicate an intention that the bar not apply to multiple claims within a single suit. He contends that like the judgment bar, the purpose of res judicata is to avoid multiple lawsuits, a concern which is not implicated when plaintiffs bring all claims in a single action. Manning supports his argument by noting the use of the term "bar," which constitutes a component of res judicata, and the legislative history of § 2676.
Regardless of whether the point has relevance to our inquiry, Congress did not import common law res judicata into § 2676. As to the discussion in Will, Manning's argument draws too much from the Court's comparative point. Rather than suggesting that § 2676 imported principles of res judicata, the Court merely observed that the judgment bar was akin to res *436 judicata in that a decision based on either did not warrant collateral review. The judgment barwhich is "arguably broader than traditional res judicata"stands on its own. Additionally, we find little in the use of the term "bar" to support Manning's argument. The use of the term "bar" is not confined to the principle of res judicata; we refer without reference to the principle to statutes of limitation "bars" or jurisdictional "bars." We also find little support for Manning's argument in the legislative history of § 2676. Because § 2676 is not ambiguous, we need not look to the legislative history to determine its meaning. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005). But assuming arguendo that the proposed reading is texturally plausible, the legislative history does not alter our view of the best interpretation of § 2676. The legislative history relied upon by Manninga statement by the Attorney General before the House Judiciary Committeeneither mentions res judicata nor limits the scope of the judgment bar to exclude cases such as Manning's.
Finally, in his reply brief, Manning culls another argument from the language in Will. He contends that according to the portion of the opinion quoted above, the judgment bar "does not apply when FTCA and Bivens claims are pending simultaneously." Because his two claims were "pending simultaneously" in the same case, the argument goes, the judgment bar should not apply. That is not the holding of Will, and the "pending simultaneously" language from Will is taken out of context. In analyzing the "essential procedural element" of § 2676, the Court noted that the judgment bar does not take effect until a judgment is entered. As long as the FTCA claim is "pending"i.e., not taken to judgmentthe bar has no effect. That "procedural" element distinguishes it from qualified immunity, and renders it unfit for collateral review. That discussion has no bearing on the case before us, Manning's efforts to force the language notwithstanding.
B. Application of § 2676 to Previously Entered Judgments
Manning alternatively argues that even if the judgment bar applies when FTCA and Bivens claims are brought in the same action, it should not be read to allow retroactive nullification of a previous Bivens judgment.
Again, we begin with the language of the statute, which we find unambiguous. Manning argues that the use of the term "bar" precludes only future litigation, not litigation that has previously proceeded to judgment. We disagree. Nothing about the term "bar" on its own indicates a temporal element. The "complete bar" as used in § 2676 is prospective only in that it enters into effect after an entry of judgment in the FTCA claim; but there is nothing in the text restricting that effect to future claims. The common use of the noun "bar" supports this reading. See Black's Law Dictionary 157-58 (8th Ed.2004) (defining "bar" as a "barrier to or the destruction of a legal action or claim"). So too does the remaining text of the statute. Section § 2676 applies to "any action"; "any" means "any," regardless of the sequencing of the judgments.
Few courts have addressed this issue, primarily because in the overwhelming number of cases where FTCA and Bivens claims are brought in the same suit, a district court will enter judgment on the FTCA claim either before or simultaneously with the Bivens judgment. In Trentadue, our sister circuit found that § 2676 applied to retroactively bar a Bivens judgment entered prior to a FTCA judgment. *437 397 F.3d at 859. In that case, as here, the district court tried plaintiffs' FTCA and Bivens claims contemporaneously in a bifurcated proceeding. A jury found for the plaintiffs on the Bivens claims, and the district court entered a judgment. Several months later, the court entered a judgment on the FTCA claims. The court then dismissed the Bivens claims, finding that § 2676 applied. The court found that the sequencing of the judgments was irrelevant to the judgment bar's effect. In doing so, it relied on the intent of § 2676, which "prevent[s] multiple lawsuits as well as multiple recoveries." Id. (citing Farmer v. Perrill, 275 F.3d 958, 963 n. 7 (10th Cir.2001)).
Other courts have approved of the proposition that a judgment on an FTCA claim requires vacatur of an earlier judgment on a Bivens claim. See Engle, 24 F.3d at 135 ("Had [plaintiff] chosen to seek his redress from the individual law enforcement officer, the jury verdict would have been given full effect. ... Because, however, he chose to seek redress from the United States government, he had no right to a jury's verdict."); McCabe v. Macaulay, 2008 WL 2980013, at *14 (N.D.Iowa August 01, 2008) (citing Trentadue, 397 F.3d at 859) ("[I]t is `inconsequential' that the court entered judgment [in the Bivens action] before it entered judgment against the United States; the judgment bar may operate retroactively."); see also Ortiz, 88 F.Supp.2d at 167 (citing Engle, 24 F.3d at 134-36 and Serra, 786 F.2d at 241-42) (noting that if a plaintiff brings both claims in the same action, and succeeds on the Bivens action first, "[a] decision to then proceed on the FTCA claim might jeopardize any favorable verdict plaintiff received on his Bivens claim since ... a decision and judgment on the FTCA claim is likely to nullify any Bivens judgment").
We agree with the reasoning of these cases. The fact that the court entered judgment against the FBI agents before it entered judgment in favor of the United States has no bearing on the application of § 2676.
Manning's reliance on Kreines v. United States, 959 F.2d 834 (9th Cir.1992), is misplaced. There, the plaintiff brought Bivens and FTCA claims in the same suit. The jury found for the plaintiff on the Bivens claim, and the court entered a judgment. Three months later, the district court entered a judgment in favor of the United States in the FTCA claim. The court then denied a motion by the defendants of the Bivens claim to vacate the judgment against them. The Ninth Circuit affirmed, finding an ambiguity within the plain language of the term "judgment" in § 2676 that allowed an interpretation that Congress intended to distinguish between favorable and unfavorable merits judgments. The judgment bar would apply, according to the Kreines court, if an FTCA judgment were in favor of the plaintiff, but not if the judgment were in favor of the government. Accordingly, § 2676 did not apply.
As noted above, we have rejected the underlying reasoning in Kreines, and therefore do not attach much significance to its outcome. Hoosier Bancorp, 90 F.3d at 185 ("There is no indication that Congress intended Section 2676 to apply only to favorable FTCA judgments."). Other courts have also repudiated the reasoning of Kreines. See Harris, 422 F.3d at 335; see also Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir.1994) (noting that "the holding in Kreines was narrowly confined to its facts"). Thus while Manning may find appealing the result of Kreines, the reasoning supporting that result does not avail him.
*438 Many of Manning's remaining arguments are equitable in nature, suggesting that he was blindsided by the court's decision or that he was unwittingly led into a poor strategic choice. The record belies these arguments. During the course of the proceedings below, Manning acknowledged an awareness of the risk that a judgment on the FTCA claim would nullify the Bivens judgment. In his motion to enter judgment on the jury's verdict on the Bivens claimfiled before the entry of the FTCA judgmentManning noted the possibility that entering judgment might bar his Bivens claim, as some courts "believe that judgment on the FTCA claim is `likely to nullify any Bivens judgment.'" As the district court noted, Manning "was aware that by allowing the FTCA claims to proceed to judgment, he risked losing the jury award, by operation of law, once the Court entered judgment on the FTCA claims."
III. CONCLUSION
We are not blind to the fact that this interpretation of § 2676 results in a significant reversal of fortune for Manning. Manning condemns this result as "nonsensical"; at least one court has identified such a result as "harsh." See McCabe, 2008 WL 2980013, at *15 ("Although such retroactive operation of § 2676 may seem harsh, if not Kafka-esque, Plaintiffs pursued their claims against the United States at their own peril."). But we are bound by the plain language of the judgment bar, which makes no exception for claims brought in the same action, and gives no indication that the sequencing of judgments should control the application of the bar.
Manning's decision to take the FTCA claims to judgment, after he had secured a $6.5 million verdict on the Bivens claims, triggered § 2676 and required a vacatur of the Bivens judgment. The district court did not err in applying the judgment bar. Because we find that § 2676 applies, we need not reach the conditional cross-appeal. Accordingly, we AFFIRM.
NOTES
[1] In an odd twistultimately without any impact on this casethe clerk apparently did not follow the court's order and failed to enter the judgment on the jury's verdict until after it entered the judgment on the FTCA claim. We subsequently granted the district court leave to correct this clerical error, and the district court entered judgment on the jury's verdict nunc pro tunc to March 25, 2005. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361627/ | 192 Kan. 265 (1963)
387 P.2d 176
ARTHUR H. HANSON, Plaintiff-Appellee,
v.
FRED M. SCHLETZBAUM and ANGELA R. SCHLETZBAUM, Defendants-Appellants.
No. 43,377
Supreme Court of Kansas.
Opinion filed December 7, 1963.
James Yates, of Kansas City, argued the cause and was on the briefs for the appellants.
Robert L. Boyce, Jr., of Kansas City, argued the cause and was on the briefs for the appellee.
The opinion of the court was delivered by
ROBB, J.:
This appeal by the defendants below in an action for recovery of a real estate commission is (1) from the trial court's orders overruling defendants' motion for new trial and motion for judgment for defendants (2) from the judgment in favor of plaintiff and against defendants in the sum of $690.00 and (3) from the trial court's findings set out in its memorandum opinion.
On July 7, 1960, plaintiff and defendants entered into a written sale contract whereby plaintiff was granted the exclusive right to sell defendants' property for $13,500. The contract was to expire on October 7, 1960. Plaintiff advertised the property, placed "For Sale" signs thereon and attempted to make the sale. Velma Roberton *266 saw the sign prior to October 7, 1960, and began negotiations with defendants but refused to negotiate through any real estate agent. Plaintiff claimed that through his efforts a purchaser ready, willing, and able to buy on terms agreeable to defendants was procured and did buy defendants' property subsequent to October 7, 1960, which entitled plaintiff to a $750.00 commission.
Defendants admitted the execution of the sales contract; that plaintiff had advertised the property for sale, and had placed a "For Sale" sign thereon; that Velma Roberton had seen the sign prior to October 7, 1960, and had purchased the property subsequent to October 7, 1960; and finally, that defendants had refused to pay plaintiff's commission.
Defendants further alleged that Velma Roberton first learned of the property through her Manor Bakery salesman. She was told by defendants of plaintiff's exclusive listing on the real estate and that she should see him but she refused to buy through a realtor. On October 10, 1960, defendants went to Velma Roberton's residence and received an offer which they accepted on October 12, 1960. They executed a contract for the sale of the property at a price approximately $2,000 less than the asking price. Plaintiff did not procure Velma Roberton as a purchaser. She had specifically stated she would not purchase through an agent or while there was an exclusive listing on the property. Defendants had never agreed to accept less than the asking price. Prior to October 7, 1960, defendants had not received an offer for the amount of the asking price, or on any other price agreeable to them. Velma Roberton had never negotiated with plaintiff except that she had seen the "For Sale" sign in the yard. Upon the expiration of the exclusive listing contract, plaintiff furnished defendants with a list of the names of prospective purchasers with whom he had had negotiations concerning the property but the name of Velma Roberton did not appear thereon. This list was never filed with the secretary of the Kansas City Real Estate Board.
The trial court's memorandum opinion reflected the contract provided that defendants would be liable to plaintiff for a commission if the property was sold by anyone during the three months' period the listing was in effect, or if it was sold within six months following the termination of the listing in the event plaintiff had had negotiations and had furnished defendants with the purchaser's name.
The trial court was satisfied the property was sold during the three months' period of the contract although the sale was not *267 consummated until a subsequent time. Defendants had acted in good faith thinking they had the right to wait until the expiration of three months before consummating the sale in order to avoid paying the commission, but this, in effect, was a subterfuge to avoid such payment. It appeared obvious the purchaser and defendants were ready, willing, and able to negotiate except that they wanted to avoid paying the commission. Defendants were bound by the terms of their contract.
On July 9, 1962, the trial court entered judgment generally in favor of plaintiff for six percent of the selling price of $11,500, or $690.00, and costs. Defendants filed motions for new trial and for judgment for defendants, which motions were overruled on August 22, 1962. Hence this appeal.
Defendants listed their home with plaintiff under an exclusive sale contract dated July 7, 1960, providing in pertinent part as follows:
"I [we] ... grant to you [Hanson], irrevocably, the exclusive right to sell the same for a period of time commencing with the date hereof and continuing to and including the 7th day of Oct, 1960, for the price and on terms as follows: Price $13,500, Terms $11,000.00 cash and $53.00 monthly including interest at 6%, or upon such other price or terms as I may agree to accept. If sale of said property is made by anyone, including myself, before the expiration of the aforesaid period of time, or if before the expiration of the aforesaid period of time you shall procure a bonafide offer from a purchaser who is ready, able and willing to purchase said property at the price and upon the terms above specifically stated, then I agree to pay you a sum of money equal to 6% of the sale price up to the first $100,000.00 of such sale price plus 3% of the amount of such sale price in excess of $100,000.00, such sum of money in no event to be less than the sum of $50.00. If this property be sold within six months after the expiration of this contract to any person with whom you have had negotiations while this contract is in force, I agree to pay you the commission as above set out, provided you have furnished me with a list of names of the persons with whom you have had negotiations and have filed a copy of such list with the Secretary of the Kansas City, Kansas, Real Estate Board within 10 days from expiration of this contract. In no event am I to be liable for more than one commission if a sale is made by any member of said Real Estate Board. I agree to notify agents with whom I have heretofore listed the property that I have given you the exclusive listing.... Permission is also granted you to place a sale sign on said property. I agree to aid you or anyone representing you in every way possible to foster a sale while this contract is in force." (Our emphasis.)
The stipulations of the parties included, among others, that the exclusive sale contract entered into would expire October 7, 1960. If anyone sold the property during the term of the contract, *268 plaintiff was to receive a commission. That plaintiff had advertised the property for sale, placed signs in the yard, and contacted various people.
The trial court in its memorandum opinion did not pinpoint the evidence supporting its finding that the property was sold during the three months' period nor did it pinpoint the witnesses it believed and disbelieved although it found the sale was not consummated until after the expiration date of the contract.
The record discloses that plaintiff's placing of the "For Sale" sign in the front yard of defendants' property was the first indication to Velma Roberton that their property was for sale and her negotiations were started with defendants while the sign was still in the yard and before October 7, 1960. Even though Velma Roberton was informed of the exclusive listing, she refused to deal through a real estate broker. She discussed the purchase of defendants' property with them. This was brought out not only in the interrogation of Velma Roberton but also in the testimony of defendant, Fred M. Schletzbaum. Both Charles and Georgia Hopewell testified defendants told them they had a cash buyer. Defendants had not disclosed any name to them but stated she raised dogs. Plaintiff had submitted to defendants a written contract of purchase signed by the Hopewells, but the Hopewells were unable to obtain enough cash to meet the terms required by the contract between plaintiff and the defendants. The Hopewells both testified the conversation between them and the defendants in regard to defendants having negotiated a cash deal took place before the exclusive sale contract with plaintiff had expired so far as they knew because his sign was still in defendants' yard. Defendants had not disclosed the name of Velma Roberton to plaintiff even though they were requested so to do and as soon as the expiration date of the exclusive sale contract was reached, they removed plaintiff's sign from the yard and placed their sign thereon. Immediately thereafter they began active negotiations with Velma Roberton to sell direct to her and entered into a contract with her on October 11, 1960.
On appeal the two questions raised by defendants are whether there is any evidence to support the trial court's findings (1) that the property was sold during the three months' period and (2) that there was a bona fide offer from a ready, able, and willing purchaser to purchase the property upon price and terms agreeable to both the seller and buyer during the three months' period.
*269 In this case we must pay particular attention to the pertinent provisions of the contract already heretofore set out. They did not require that plaintiff consummate a sale. The provisions are clear as to the duties required of the parties. In support of their position defendants rely on Morgan v. Wheeler, 153 Kan. 695, 113 P.2d 165, and cases therein cited. In the Morgan case a written contract had been entered into between the principal and agent pertaining to the obtaining of a lease from Sears, Roebuck & Company on certain real estate in Wichita, Kansas. Failure of performance under that contract precluded the agent, in the first place, from bringing an action based on contract, and failing therein, also precluded him in his subsequent attempt to recover under quantum meruit.
Plaintiff here, in turn, relies on DeYoung v. Reiling, 165 Kan. 721, 199 P.2d 492; and Patee v. Moody, 166 Kan. 198, 199 P.2d 798. In the DeYoung case rules of law applicable to the situation presently before us were stated:
"The general rule is that a real estate agent or broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consumated deal.
"If a real estate agent or broker is otherwise entitled to a commission, the principal cannot defeat that right by closing the deal himself or through another broker." (Syl. ¶ 1, 2.)
In the opinion in the DeYoung case it was said:
"An owner who has knowledge that a broker with whom he has listed his property has interested a prospective customer with whom he is still conducting negotiations, cannot defeat the broker's right to a commission by the expedient of closing the deal himself or through another broker. (12 C.J.S. 215 to 217.)" (p. 725.)
In the Pattee case the general rules were restated but it was there held that because the evidence failed to establish an express or "clearly implied" contract of agency, the broker could not recover a commission.
From the evidence introduced in support of the pleadings herein we can come to no other conclusion than that there was ample evidence to support the trial court's findings and the findings support its judgment. The result is that both questions raised by defendants must be answered in the affirmative and the trial court did not err in any of the particulars complained of.
Judgment affirmed.
*270 FATZER, J., dissenting:
I cannot agree to the court's affirmance of the judgment. In my opinion the evidence is wholly insufficient to support the district court's finding "that there was a bona fide offer for a ready, able and willing purchaser to purchase the property upon price and terms agreeable to both the seller (defendants) and buyer (Mrs. Roberton)."
The uncontradicted evidence in this case shows that Mrs. Roberton, the purchaser, made her one and only offer to purchase this property on October 10, 1962, after the plaintiff's listing expired on October 7, 1962. The defendants accepted that offer and the preliminary contract was executed on October 11, in the office of another broker, and the sale of the property was consummated on October 17, 1962. It is clear from the plaintiff's letter to the defendants, written after his listing of the property had expired, that he had been unable to obtain a qualified buyer and could not get the defendants' property sold. In that letter the plaintiff listed the names of various persons to whom he had shown the property, but the name of Mrs. Roberton was not one of those persons. It is clear he was not entitled to a real estate commission.
SCHROEDER, J., dissenting:
I fully concur in the dissenting opinion of Justice Fatzer but wish to make a few additional observations.
In my opinion the two questions raised on this appeal require negative answers. First, there is no evidence presented by the record to indicate that the property in question was sold during the three-months' period during which it was listed exclusively with the plaintiff, the trial court's finding to the contrary notwithstanding. Second, there is no evidence to support the trial court's finding that there was a bona fide offer from a ready, able and willing purchaser to purchase the property upon a price and terms agreeable to both the seller and buyer during the three-months' period.
The substance of the evidence boils down to the fact that while the plaintiff's listing was in force, Velma Roberton would not make an offer of a sufficient amount acceptable to the defendants; the defendants would not accept an amount she was willing to pay and still pay a commission. The parties could not get together, and the defendants directed Velma Roberton to the agent who had an exclusive listing, but she refused to deal with an agent and did nothing.
In deciding to wait for a possible lower price after the plaintiff's *271 listing expired, Mrs. Roberton took the risk that in the meantime some other person would purchase the property from the defendants through the broker. Actually, the Hopewells were trying to purchase the property upon terms agreeable to the defendants, but could not raise the money, and this deal was pending until the expiration of the three months during which the plaintiff had the exclusive listing of this property. The defendants took the risk that in the meantime Mrs. Roberton would purchase some other piece of property. If the parties chose to follow this course of action, they had a right to do so. The plaintiff was protected in that if anyone made an acceptable offer within the period of his exclusive listing, he was entitled to a commission. This was the purpose of a time limit on the listing. If the realtor could not effect a sale within the specified time, or in accordance with the terms of the contract, the owners were free to deal as they pleased after the listing had expired.
It must be observed this is an action upon a special contract. The ordinary rule applicable to a real estate agent's commission set forth in the court's opinion does not apply where the agent's commission is governed by a special contract. The agent can recover only if he brings himself within the terms of the specific contract under which, and only under which, the defendants were to be obligated. (Morgan v. Wheeler, 153 Kan. 695, 701, 113 P.2d 165; and Karr v. Moffett, 105 Kan. 692, 185 P. 890.)
The defendants gave the plaintiff only a three-months' listing. Time was of the essence of this contract, the defendants having refused the plaintiff's request for a longer listing. Under such conditions, the defendants were not liable to pay the plaintiff any commission where he could not get the property sold during the time of the listing. (Fultz v. Wimer, 34 Kan. 576, 9 P. 316.)
There was no delay in making the sale caused by any negligence, fault or fraud of the defendants. The plaintiff admits that all during the time the contract was in force the defendants wanted to sell the property and would have sold it for the price of the contract, if the plaintiff could have found a buyer. The plaintiff's witness and prospective purchaser, Mr. Hopewell, likewise admitted that the defendants were going to sell him the property if he could have raised the money. The defendants referred Mrs. Roberton to the plaintiff, but she would not go to see him.
The defendants' contract of sale with Mrs. Roberton was not *272 only consummated after the plaintiff's time had expired pursuant to the terms of the specific listing, but was consummated on terms different from those specified in the specific listing, and the property was not sold to a person whose name was listed by the plaintiff as one with whom he had negotiations while the contract was in force. The plaintiff's contract for a commission was specific, and the service to be rendered in order to earn the commission was specific. The plaintiff did not succeed as he admits in his letter to the defendants. Hence, he is not entitled to a commission. (Karr v. Moffett, supra.)
It is respectfully submitted the judgment of the lower court should be reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361620/ | 63 Wash. 2d 305 (1963)
387 P.2d 67
MARTIN G. BOSS, Respondent,
v.
THE CITY OF SPOKANE, et al., Appellants.[*]
No. 36396.
The Supreme Court of Washington, En Banc.
November 27, 1963.
John P. Tracy, Jr., Howard A. Anderson, Theodore R. Fournier, Robert F. Ewing, and Frank C. Hutchins, for appellants.
William P. Fite and Gale D. Barbee, for respondent.
FINLEY, J.
The respondent, Martin G. Boss, instituted this lawsuit on the theory of a tortious conversion of his automobile by the defendants-appellants, City of Spokane, Police Chief Payne, and Police Officer Warrington. This alleged wrongful conversion took place on or about December 15, 1960, when the police department impounded Boss's car because seven previous unpaid parking violations were outstanding against it and/or Mr. Boss, the owner. Mr. Boss did not reclaim his car after paying the tickets, although he was tendered a claim check of the towing company. Instead, he brought the present action for the market value of the car at the time it was impounded.
The 1954 Ford automobile was in the possession of Mr. Boss from the time he purchased it on October 11, 1960, until it was impounded 2 months later. During this interval, the car had been ticketed seven times for overtime parking at 1-hour meter zones in the Spokane down-town area. In each instance the car was unoccupied. On the day in question, defendant Officer Warrington ordered and arranged for the car to be towed away by a private towing company. This was pursuant to order and policy of the Spokane Police Department, enunciated by defendant, Chief *307 of Police Payne, to the effect that, if a vehicle had five outstanding parking violations against it and was found parked in violation of the city ordinances, it could be impounded. There is a dispute as to whether the driver of the tow truck, after hooking up to the car, waited until the meter showed a violation before he towed the car away.
The first question presented is whether the impounding was unlawful and amounted to a conversion of the car by the defendants. As authority for the policy action by the police department, the appellants rely on Spokane City Ordinance No. C 12833, the pertinent section of which is as follows:
"46.48.300 Removal of Vehicles by Peace Officer. Whenever a peace officer finds a vehicle unattended in such a position that it constitutes an obstruction to traffic, blocks the use of a fire hydrant, provides a danger to travel, ... he is hereby authorized to remove and tow away said vehicle...." (Italics ours.)
[1, 2] The appellants contend that the policy of the police department was a valid interpretation of this ordinance, in that a vehicle parked overtime is an "obstruction to traffic" in the sense that it is a nuisance to the general public, who are entitled to the use of available parking space in the ordinary and customary manner. Such a construction would be a strained and unusual interpretation of the word obstruction. It is well established that city ordinances must be interpreted according to the plain and ordinary meaning of the language used. Sandona v. Cle Elum (1951), 37 Wn. (2d) 831, 226 P. (2d) 889. Neither the ordinary meaning of the word, nor its use in proximity to the terms "fire hydrants" and "danger to travel," indicates that obstruction was intended to include the use of an automobile in such a manner as to inconvenience the public in finding a place to park. We conclude that the impounding of the vehicle was not authorized by this ordinance and, therefore, amounted to a conversion of it by the defendants.
While the plaintiff has established a conversion of his car by the defendants, more was required to support a *308 right to recover damages from the defendant City of Spokane. As previously pointed out, the plaintiff at no time filed his tort claim with the city, but relied instead on the notice conveyed to the city when he served the summons and complaint in this action on the city on January 3, 1961; (the complaint was filed on April 4, 1961). The pertinent section of Article 12 of the Charter of the city reads as follows:
"Section 115. Claims for Injuries. All persons having claims for damages for personal injuries or for injuries to property sustained by reason of alleged negligence or any act of the city, or any officer, agent, servant or employee of the city, must present such claims to the council within 30 days after such injury or damage. They must be in writing and verified, and must state the time when and the place where such injury was received or happened, the cause, nature and extent thereof, the amount of damage sustained, the amount for which the claimant will settle ..." (Italics ours.)
[3] The respondent contends that this provision should be limited in its application to acts involving negligence, and should not be extended to wilful torts. The basis of this asserted distinction seems to be that the purpose of the nonclaims statute is to provide notice of all claims to the city so that investigation can be made while the facts are still "fresh." The respondent argues that, while the city may be unaware of injuries caused by its negligence, it will always be aware of its wilful torts, and, therefore, the filing statute should not apply. It may be assumed that a particular agent of the city is aware of his act, and "has notice of it," and that the tort of the agent is in legal contemplation that of the city. Nevertheless, the particular officials of the city who are charged with the investigation, settlement and defense of the various tort claims against the city cannot, as a practical matter, be presumed to have actual notice of every fact which each of the city's agents may know. Actual notice is the requirement for effective treatment of tort claims, not theoretical imputed knowledge. To insure that the proper official receives actual knowledge of such claims, the filing provisions have been adopted to *309 apply to all cases. With this goes a certain procedure and treatment of the notices filed, also necessary to effectuate the purpose of the provisions. Thus, not only must the actual notice be given, but it must be given in a certain way: the procedure set down in the filing provision. Thus, the "actual notice," which the plaintiff claims resulted from the service of process on January 3, 1961, must be considered as insufficient. Whether or not this gave actual notice to the proper officials in this particular instance, it failed to comply with the filing provisions which are designed to insure actual notice in all cases, and are accomplished by means of the set procedures necessary to the administration of every large city.
By failing to comply with the filing of claims provisions, the plaintiff lost his cause of action against the city.
[4] Whether the cause of action remains against the two policemen depends upon whether they, as officials of the city, were also protected by the city claim-filing statute. Under the clear words of that provision, the police officers were not protected by the failure to file the claim. The language of the charter that claims must be filed "for injuries to property sustained by ... any act of the city, or any officer ... of the city ..." merely identifies the type of claim to which the section is applicable. The operative language which sets down the consequence of failure to file is found in the fourth paragraph of the section:
"Failure to present such claim in writing, duly verified in form, manner and time aforesaid, shall bar any action against the city for such alleged damage or injury." (Italics ours.)
It is clear that the section was not intended to shield the officials in their individual capacities. Had this been the purpose, it would have been a simple matter to add the appropriate language, such as, "or any officer."
The plaintiff's automobile was converted by the appellants; but as against the city, the plaintiff is without remedy because of the failure to file his tort claim in the prescribed manner. For this reason the judgment of the trial court *310 against the City of Spokane is reversed. The judgment against the individual police officers is affirmed. All parties shall bear their own costs.
ALL CONCUR.
NOTES
[*] Reported in 387 P. (2d) 67. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1484352/ | 990 A.2d 56 (2009)
COM.
v.
VINES.
No. 855 EDA 2009.
Superior Court of Pennsylvania.
December 11, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361761/ | 833 F. Supp. 488 (1993)
ELF ATOCHEM NORTH AMERICA, INC.
v.
UNITED STATES of America, United States Department of Commerce, Barbara Franklin, Secretary of Commerce, in her Official Capacity, General Services Administration, Richard G. Austin, Administrator, General Services Administration, in his Official Capacity, United States Department of Defense, Dick Cheney, Secretary of Defense, in his Official Capacity, United States Department of the Army, Michael P.W. Stone, Secretary of the Army, in his Official Capacity, and Witco Corporation.
Civ. A. No. 92-CV-7458.
United States District Court, E.D. Pennsylvania.
September 1, 1993.
*489 *490 Michael A. Bogdonoff, William J. Kennedy, Dechert, Price & Rhoads, Philadelphia, PA, for plaintiff.
Brud Rossmann, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, for U.S. et al.
Michael R. Lazerwitz, Charles F. Lettow, Cleary, Gottlieb, Steen & Hamilton, Washington, DC, for Witco, Corp.
MEMORANDUM AND ORDER
JOYNER, District Judge.
Elf Atochem brought this action pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675 (hereinafter "CERCLA"), the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq. ("Spill Act") against the United States and Witco Corporation ("Witco").[1] Plaintiff seeks contribution for costs it has and will incur in its cleanup of hazardous materials at a New Jersey Superfund site.
Presently before the Court is Witco's motion for summary judgment[2] on Counts II-VI of Plaintiff's complaint[3]. Under Rule 56(c), this Court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). We must determine whether the evidence can reasonably support a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the non-moving party. Id., 477 U.S. at 256, 106 S.Ct. at 2512.
An issue is "genuine" if the fact-finder could reasonably hold in the non-movant's *491 favor with regard to that issue. Id., 477 U.S. at 247-248, 106 S.Ct. at 2509-10. A fact is material if it influences the outcome under the governing law. Id. at 248, 106 S.Ct. at 2510.
While the movant bears the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir.1990), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.ed.2d 265 (1986). The burden of persuasion always remains with the moving party. Summary judgment should not be granted if there remains any doubt as to whether a trial is necessary. Transtech Industries, Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1082 (D.N.J.1992).
I. FACTS
Before discussing the merits of Defendant's motion, we find it helpful to examine the underlying facts of the case viewed in the light most favorable to the Plaintiff.
The site which is the subject of the complaint is located at Pittstown, Franklin Township, Hunterdon County, New Jersey. The site includes approximately five acres presently owned by Elf Atochem[4], part of adjoining privately-owned properties, and approximately two acres of undeveloped land owned by the State of New Jersey and designated as wetland.
From approximately 1927-1959, several entities manufactured chemicals and pesticides at the Pittstown site.[5] Former corporate owners or operators include, among others, W.A. Allen Company (1927-1932), Lord Stiling Distilleries, Inc. (1933-1940), Elko Chemical Works ("Elko") (1942-1945), Pennsylvania Salt Manufacturing Company and Pennsalt Chemicals Corporation (collectively, "Pennsalt") (1945-1947), Associated Terminal, Inc. (1947-1971) and Clinton Chemical Company ("Clinton") (1953-1959).[6] Elf Atochem is the corporate successor to Pennsalt. Witco is the corporate successor to Clinton.[7]
Elko and Pennsalt[8] both manufactured DDT under the control of the Government during their tenure at the site. Clinton principally produced anhydrous (dry) aluminum chloride. Clinton also produced dried copper sulfate, dried magnesium sulfate, and other materials.
In 1983, having determined the Pittstown site was contaminated with hazardous substances, the United States Environmental Protection Agency ("EPA") listed the site on the National Priorities List ("NPL") authorized under § 105 of CERCLA. The EPA performed a Remedial Investigation and Feasibility Study (RI/FS) at the site. The Agency's responsiveness survey, a response to public comments and concerns, explains *492 that the "primary contaminants of concern at the site" were pesticides and related chemicals. See EPA Responsiveness Summary (RS) 39, (Witco's Exhibit A). However the EPA also listed inorganic compounds[9], which may have resulted from Witco's operations.
In 1990 and 1991, the EPA notified Elf Atochem and Witco that the Agency considered them as potentially responsible parties, and sought settlement for response costs. Elf Atochem agreed to enter into a Judicial Consent Decree, which was entered in the United States District Court for the District of New Jersey. In the Consent Decree, Elf Atochem agreed to reimburse the EPA for $2,700,000 in response to costs already incurred, and to pay for the performance of necessary response actions in the future. Thus far, Plaintiff is the only party responsible for these costs, which the EPA has estimated will exceed $45,000,000.
We now consider Defendant's motion for summary judgment with respect to each of Plaintiff's claims.
II. CERCLA CLAIMS
CERCLA was enacted in 1980 in response to public concern about the improper disposal of hazardous wastes. As the Third Circuit explained in United States v. Alcan Aluminum Corp., 964 F.2d 252, 258 (3rd Cir.1992), Congress sought to achieve two goals: the EPA's prompt and effective response to hazardous spills, and that the party responsible for the spill bear the clean-up costs incurred.
In 1986, Congress enacted the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 (1986), to clearly provide liable parties with a right of contribution from other Potentially Responsible Parties ("PRP"). Transtech Industries, Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1085 (D.N.J.1992). SARA includes § 113(f)(1) of CERCLA, which provides "any person may seek contribution from any person who is liable or potentially liable under section 107(a) ..." 42 U.S.C. § 9613(f)(1). Allocation of response costs is determined using "such equitable factors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1).
Plaintiff's CERCLA action is one for contribution. See, e.g. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989) (when one liable party sues another Potentially Responsible Person for its share of response costs incurred, the claim is one of contribution). Under § 9613(f), Plaintiff must first prove Defendant is a responsible party under § 107(a).
Section 107(a) of CERCLA sets out what a plaintiff must prove to make out a prima facie case for the imposition of liability upon a party for clean-up costs. These four elements are:
(1) The defendant falls within one of the four listed categories of responsible parties[10];
(2) hazardous substances[11] were disposed *493 at a facility[12];
(3) from which there is a release[13] or threatened release of hazardous substances from the facility into the environment; and
(4) the release causes the incurrence of response[14] costs. 42 U.S.C. § 9607. See also: Alcan Aluminum Corp., 964 F.2d 252, 258-59 (3rd Cir.1992).
The facts viewed most favorably to the Plaintiff show Defendant falls within the class of potentially responsible persons under § 107(a). Witco operated their chemical manufacturing business on the site for approximately six years, thereby falling within the "owner or operator" class under § 107(a)(2).
The Pittstown site and buildings unquestionably meet the broad definition of "facility" under § 101. As explained above, the EPA has found that hazardous materials have "come to been located" throughout the site. The EPA has determined there have been actual or threatened releases of hazardous substances from the site. EPA Record of Decision: Declaration Statement. (Witco, Exhibit A).
The release or threatened release of the hazardous materials on the site caused the EPA to incur the original $2.7 million in response costs using Superfund assets. The EPA, in turn, filed a § 107 action against Elf Atochem to recover those costs and secure future payment of response costs. Pursuant to the Consent Decree from that action, Elf Atochem has and will continue to incur response costs.
The first real issue is whether Witco falls within the class of PRPs described in § 107(a). It is undisputed that Witco was an "operator" of a facility during its tenure at the site. However, Defendant claims to have run a "clean" operation, and denies that they disposed of hazardous materials on the site. Therefore, the Defendant argues it should not be held liable for any response costs. However, for the reasons outlined below, we are unable to rule, as a matter of law, that hazardous substances were not disposed[15] of at the site during Witco's tenure.
The record allows us to reasonably infer that hazardous waste was disposed on the site during Defendant's tenure. Defendant admits venting aluminum chloride fumes into the atmosphere through an exhaust fan. Smith Dep. at 73, Pearsall Dep. at 46-48. "Once exposed to the atmosphere, aluminum chloride oxidized very rapidly to form alumina ... and hydrochloric acid."[16] Witco Memorandum at 13-14, citing Pearsall Dep. at 55-56, 65. In addition, when the solid aluminum chloride was crushed and screened, aluminum chloride dust in large amounts was "blown right out through the wall into the yard." Pearsall Dep. at 55. There were also frequent releases from spills, reaction runaways, upsets, corrosion leaks, etc. Pearsall Dep. at 50. Chlorine occasionally leaked from railroad storage tank cars.[17]
The EPA has found aluminum present at well-above ambient levels in soil samples taken on site. ROD, Tables 1, 2, 3. Aluminum is not designated as a hazardous substance *494 under CERCLA,[18] and is not currently targeted as a significant health risk by the EPA.[19] However, the amount of aluminum released by Defendant into the environment allows us to reasonably infer that their operations were not as clean as they claim.
Other evidence presented by the plaintiff support this inference. For example, the scrap aluminum used by Witco in its aluminum chloride process contained hazardous metal impurities which remained after the reaction. The by-products[20] included antimony, zinc, copper, and lead, all of which are hazardous substances under Section 101(14) of CERCLA. 42 U.S.C. § 9601(14). About 25-30 pounds of this material was created during each 8 hour shift. The EPA found these metals were present at the site, and the Consent Decree provides for their removal by the Plaintiff via soil-washing. Consent Decree at 11, RS at 13-14.
Other hazardous materials, including copper and lead, handled by Witco were found almost as frequently as aluminum. Defendant claims the presence of copper is not significant, because aluminum chloride was "99.9%" of its manufacturing operations on site. However, this argument too must fail, because quantity or concentration is not a factor in determining whether a substance is hazardous. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1200 (2nd Cir.1990); United States v. Wade, 577 F. Supp. 1326, 1339-40 (E.D.Pa.1983). Based on the evidence advanced, and the inferences we can reasonably draw from it, we cannot rule that Witco did not, as a matter of law, dispose of hazardous substances at the site.
Witco next claims it should not be held liable because the EPA's response, remedy selection, and the Consent Decree were not "driven by" or "primarily directed" at cleaning up the chemicals it handled. Witco Memorandum at 23. This argument centers on the fact that pesticides and related chemicals are currently the primary contaminants of concern to the EPA at the site. RS at 39. As such, remedy selection centered upon that waste. Therefore, Witco argues the chemicals it handled did not cause Elf Atochem to spend any money.
Under § 107(a), it is not necessary for a plaintiff to prove a defendant's waste caused the release or the incurrence of response costs. United States v. Alcan Aluminum Corp., 964 F.2d 252, 266 (3rd Cir.1992). In Alcan, the Third Circuit Court of Appeals explained that the "government must simply prove that defendant's hazardous substances were deposited at the site from which there was a release, and that the release caused the incurrence costs." Id. (Emphasis in original). Requiring a plaintiff to link a specific defendant with a specific release or response would prove too difficult for a plaintiff, especially in a multi-generator context. Therefore, Defendant's causation argument fails as to the § 107(a) liability aspect of Plaintiff's claim.
Witco relies upon a recent 8th Circuit decision to support its causation arguments. In Farmland Industries, Inc. v. Morrison-Quirk Grain Corp., 987 F.2d 1335, 1340 (8th Cir.1993), the court, facing dueling § 9613 claims for indemnity, did state that "a private party cannot predicate a claim for contribution or indemnity solely upon § 9607(a) liability to the government, but must also prove causation." However, the court also explained that the proper focus of this requirement is the causation of the contaminants at the site, not the causation of response costs. Id. at 1342. We agree. In other words, the plaintiff must only show that the defendant caused contamination at the site, and therefore should pay its fair share of the clean-up costs. Requiring a stricter level of causation would place too onerous a burden upon a contribution plaintiff. This burden would eliminate the incentive § 9613 provides for *495 PRP's to enter into similar Consent Decrees with the government.
As we have explained above, there are still substantial questions of fact as to whether Witco caused the contamination at the Pittstown site through their use, handling, and production of hazardous substances at the site. Therefore, Witco's motion for summary judgment is denied as to Count II of Elf Atochem's Complaint.[21]
III. SPILL ACT CLAIM
We next consider Witco's motion for summary judgment as to Elf Atochem's claim for contribution under the New Jersey Spill Compensation and Control Act, as amended, N.J.S.A. 58:10-23.11, et seq. ("Spill Act"). Witco makes the same arguments against Plaintiff's Spill Act claim as it raised against the CERCLA claim.
The Spill Act is New Jersey's analog to CERCLA, designed to protect and preserve the State's lands and water. N.J.S.A. 58:10-23.11a. The Act mandates a liberal construction of its provisions. Superior Air Products Co. v. N.L. Industries, Inc., 216 N.J.Super. 46, 60, 522 A.2d 1025 (App.Div. 1987); N.J.S.A. 58:10-23.11v.
Plaintiff's claim for contribution under the Spill Act is created and governed by N.J.S.A. 58:10-23.11f(a)(2), which provides:
"Whenever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance. In an action for contribution, the contribution plaintiffs need prove only that a discharge occurred for which the contribution defendant or defendants are liable pursuant to the provisions of subsection c. of section 8 of P.L.1976, c. 141 (C.58:10-23.11g),[22] and the contribution defendant shall have only the defenses to liability available to parties pursuant to subsection d. of section 8 of P.L.1976, c. 141 (C.58:10-23.11g).[23] In resolving contribution claims, a court may allocate the costs of cleanup and removal among liable parties using such equitable factors as the court determines are appropriate."
Therefore, by its plain language, the Spill Act clearly provides Elf Atochem with a mechanism to recover cleanup costs if it can prove that Witco is "in any way responsible for any hazardous substance."[24]
Under the Spill Act, the term "hazardous substances" includes CERCLA hazardous material as well as certain substances listed by the New Jersey Department of Environmental Protection. N.J.S.A. 58:10-23.11b(k). The New Jersey Administrative Code specifically lists as hazardous chlorine, copper, lead, antimony, arsenic, and aluminum (fume or dust). N.J.A.C. 7:1E-Appendix A. As discussed above, these were handled by Witco in its operations at the site. We therefore must reject Witco's motion as to Plaintiff's Spill Act claim for essentially the same reasons as above. A question of material fact remains as to whether Witco is responsible for contamination at the site based upon the evidence presented. Accordingly, Witco's motion for summary judgment on Elf Atochem's Spill Act Contribution claim is denied.
*496 IV. STATE JOINT TORTFEASORS CONTRIBUTION ACT CLAIMS
Finally, we consider Witco's motion for summary judgment with respect to Plaintiff's claims under the New Jersey Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1, et seq. (Contribution Act). These claims are based upon common law theories of negligence, strict liability, and nuisance.
New Jersey enacted the Contribution Act, based upon principles of equity, to insure the fair and just division of losses between responsible tortfeasors. See Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 386, 102 A.2d 587 (1954) (the right to receive contribution "arises out of a payment in excess of the payor's just share of the common obligation ensuing from a common wrongful act, neglect or default ..."). The Contribution Act sought to correct the inequity which occurred under the common law "one-judgment" rule. See Polidori v. Kordys, Puxio & Tomasso,[25] 217 N.J.Super. 424, 429, 526 A.2d 230, 232 (App. Div.1987). Therefore, the Act established and made enforceable the right of contribution between wrongdoers.
The statutory right to contribution is set out, in relevant part, in § 2A:53A-3, as: "Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors[26], and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share ..."
In Sattelberger v. Telep, 14 N.J. 353, 367, 102 A.2d 577, 584 (1954), the New Jersey Supreme Court described a contribution plaintiff's right and burden of proof:
"Under the statute, contribution is enforceable against a joint tortfeasor as therein defined; and so, by the very nature of the right and the correlative obligation, it is incumbent on the contribution claimant in a case such as this to establish a common liability for the wrongful act, neglect or default made on the basis of the judgment and the quantum of the damages ensuing from the joint offense. The plaintiff must prove that he and the defendant in contribution are in aequali jure; he cannot prevail unless the injured person also had a cause of action for the tortious injury against the defendant called upon for contribution. The onus of proof of the common burden is on the plaintiff demanding the sharing of the burden."
In supporting its motion for summary judgment, Witco argues that Counts IV-VI of Plaintiff's complaint should fail for failure to fulfill New Jersey's unique "judgment" requirement, and because the State's common law does not recognize the duties Plaintiff alleges were breached.
As explained above, the existence of a "judgment" is an essential element in a claim for contribution. Unlike § 2 of the Uniform Contribution Among Tortfeasors Act, 12 U.L.A. 68 (1955), from which it is derived, the New Jersey Act does not recognize a right to contribution where plaintiff merely discharges a common liability. See Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. at 383, 102 A.2d at 592. (Unlike the draft act submitted by the Commissioners on Uniform State Laws, ... our statute does not provide for contribution where the payment is made in fulfillment of a voluntary compromise or settlement of a claim for damages attributed to a joint tortfeasor.); *497 Polidori, 217 N.J.Super. at 432, 526 A.2d at 234 (refusing to construe "judgment" as including settlement which had been memorialized in a stipulation of dismissal).
However, New Jersey does recognize an exception to the above rule. A settlement "elevated to the status of a judgment by formal court proceeding, and which discharges the injured party's claim against a non-settling tortfeasor" may form the basis for a contribution action under the Act. Polidori, 526 A.2d at 234; Young v. Steinberg, 53 N.J. 252, 255, 250 A.2d 13, 14 (1969); Tefft v. Tefft, 192 N.J.Super. 561, 565, 471 A.2d 790, 792-793 (App.Div.1983). Thus, under New Jersey law, a right to contribution based upon a consent decree which does not extinguish the injured party's claims against a joint tortfeasor does not exist. See Also: Restatement (Second) of Torts § 886A(2) ("The right of contribution exists only in favor of a tortfeasor who has discharged the entire claim for the harm by paying more than his equitable share of the common liability ..."); Uniform Contribution Among Tortfeasor Act § 1(d), 12 U.L.A. 63 (1975) ("A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement ...") (emphasis added).
Instantly, Witco argues that the Consent Decree between Elf Atochem and the United States does not meet the Young exception, because it did not discharge the United States' right to sue other parties. To be sure, Sections XVI(R) (6-10) and XII(A) of the Decree state the following:
6. Nothing contained in this Consent Decree shall affect the right of EPA to pursue an action against any entity, other than the Settling Defendant, pursuant to § 107(a) of CERCLA, 42 U.S.C. § 9607(a), for recovery of any costs incurred by EPA relating to this Consent Decree and/or for any other response costs which have been incurred or will be incurred by the United States or EPA relating to the Site, which are not reimbursed to the United States or EPA.
7. Nothing contained in this Consent Decree shall affect the right of EPA to enter into any Consent Decree, to issue any Consent Order or to issue any other orders unilaterally to any responsible party for the Site pursuant to CERCLA, or to require the performance on any additional response actions which EPA determines are necessary for the Site.
8. Nothing contained in this Consent Decree shall act as a bar to, a release of, a satisfaction of, or a waiver of any claim or cause of action which EPA or the United States has at present or which EPA or the United States may have in the future against any person or entity, including Settling Defendant, on anything which is not a Covered Matter under Section XVII of this Consent Decree and which relates to the Site.
9. Nothing contained in this Consent Decree shall be construed to mean that the Settling Defendant is the only potentially responsible party with respect to the release and the threatened release of Hazardous Substances at the Site.
10. Nothing contained in this Consent Decree shall affect any right, claim, interest, defense or cause of action of EPA, the United States or the Settling Defendant with respect to any entity which is not a party to this Consent Decree. Nothing in this Consent Decree constitutes a decision by EPA on pre-authorization or on any approval of funds under Section 111(a)(2) of CERCLA, 42 U.S.C. § 9611(a)(2).
. . . . .
XXI
EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION
A. Nothing in this Consent Decree shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Consent Decree. The preceding sentence shall not be construed to waive or nullify any rights that any person not a signatory to this Consent Decree may have under applicable law. Each of the Parties expressly reserves any and all rights (including, but not limited to, *498 any right to contribution), defenses, claims, demands and causes of action which each Party may have with respect to any matter, transaction or occurrence relating in any way to the Site against any person not a Party hereto.
In light of this language then, we can reach no other conclusion but that the Consent Decree between Atochem and the United States does not operate to extinguish the government's right to sue other parties or potentially responsible parties such as Witco. This Court therefore finds that Elf Atochem does not have a contribution claim under New Jersey law. Defendants' motion for summary judgment is therefore granted as to Counts IV, V and VI of Plaintiff's complaint. See also: In re National Smelting of New Jersey, Inc., 722 F. Supp. 152, 177 (D.N.J.1989).
V. CONCLUSION
Therefore, for the reasons explained above, Defendant Witco Corporation's Motion for Summary Judgment is denied, as to Count II (CERCLA) and Count III (New Jersey Spill Act) of Elf Atochem's complaint. Summary Judgment is granted as to Counts IV (negligence), V (strict liability), and VI (nuisance). An appropriate order follows.
ORDER
AND NOW, this 1st day of September, 1993, upon consideration of the Motion for Summary Judgment of Defendant Witco Corporation as to Counts II-VI of Plaintiff's Complaint, it is hereby ORDERED that the motion is GRANTED as to Counts IV, V and VI, and DENIED as to Counts II and III and judgment in no amount is entered in favor of Witco Corporation and against Plaintiff as to Counts IV, V and VI of Plaintiff's Complaint.
NOTES
[1] Elf Atochem is a Pennsylvania corporation with its principal place of business in Philadelphia, Pennsylvania. Witco is a Delaware corporation with its principal place of business in New York. Defendant conducts business within the Eastern District of Pennsylvania, at its Trainer, Pennsylvania location.
[2] Witco originally sought to dismiss Counts II-VI under Fed.R.Civ.P. 12(b)(6), as failing to state a claim upon which relief could be granted. However, because the motion went beyond the pleadings, this Court must treat the motion as one for summary judgment under Rule 56(c). In accordance with Rule 12(b)(6), we have therefore given both parties notice and ample time to submit supporting material for consideration.
[3] Count I, not subject to this motion, is a CERCLA claim for contribution against the United States.
Counts II-VI are against Witco. Count II is a CERCLA claim for contribution. Count III is a claim for contribution based upon the New Jersey Spill Act. Counts IV-VI are claims for contribution based upon the New Jersey Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1, et seq., and common law theories of negligence (IV), strict liability (V), and nuisance (VI).
[4] This land was previously owned by Mr. and Mrs. Cornelius Myers, Jr. On May 24, 1993, Plaintiff exercised their option to purchase this land from the couple.
[5] From 1942 through 1945, a portion of the site was used to manufacture chemicals for the United States Government as part of the World War II effort. During the first few years of this period, arsenic trichloride was manufactured at the site for the Government under the control of the Chemical Warfare Service, then part of the Department of War. Beginning in 1944 and continuing through the end of the war, the pesticide DDT was produced at the site under the direction and control of the War Production Board. During the entire war era, hazardous substances were released from the site into the environment. Both prior to and after this period, various other manufacturing activities by other entities took place at the site, including the manufacture of anhydrous aluminum chloride, dried copper sulfate, and dried magnesium sulfate.
[6] Clinton rented several buildings on the site from Associated Terminal. According to Witco, Clinton ceased renting at the site in 1959 and moved all of its equipment off the site. Clinton became Pearsall Chemical in 1961, and Witco purchased controlling shares of Pearsall in 1980.
[7] For ease of reference throughout the following discussion, each of the above-mentioned entities will be referred to in their present-day form. Therefore "Elf Atochem" includes Pennsalt, and "Witco" includes Clinton.
[8] In late 1944, Elko assigned its interest in the site and related Government DDT contracts to Pennsalt, and the deed to the property was transferred from Elko to Pennsalt on March 19, 1945. Elf Atochem is neither related to nor the corporate successor to Elko.
[9] These include aluminum, antimony, arsenic, copper, chromium, iron, manganese, lead, silver, zinc, and asbestos. These are all classified as hazardous under CERCLA. 42 U.S.C. § 9601(14).
[10] The categories of "responsible parties" include:
"(1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities ..." 42 U.S.C. § 9607(a).
[11] A "hazardous substance" is defined as:
(A) any substance designated pursuant to § 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15 ..." 42 U.S.C. § 9601(14).
[12] A facility is "any building structure ... or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise came to be located ..." 42 U.S.C. § 9601.
[13] A "release" is broadly-defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment ..." 42 U.S.C. § 9601.
[14] "Response" means removal, remedial action, and related enforcement activities. 42 U.S.C. § 9601.
[15] CERCLA defines "disposal" as the "discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land ..." 42 U.S.C. § 9601(29), incorporating 42 U.S.C. § 6903.
[16] Hydrochloric acid is a hazardous substance under CERCLA.
[17] Chlorine is a CERCLA hazardous substance. 40 C.F.R. § 302.4. However, the EPA has set no remedial goals for elemental chlorine at the site.
[18] Plaintiff claims aluminum should be viewed as a hazardous substance. However, the same ROD which reported the prevalence of aluminum on site also stated "No RCRA materials were on site." ROD at 7.
[19] However, as will be discussed in Count III, aluminum may be relevant under the New Jersey Spill Act.
[20] Euphemistically labeled "dross" by Witco. Witco sold this dross to reclaimers, but it was considered a waste. Pearsall Dep. at 72.
[21] In addition, we reject Witco's Due Process argument. CERCLA serves a legitimate government purpose as a remedy to the threat of widespread contamination of our land, and imposing absolute liability upon those who profited from hazardous substances, thereby serving this purpose in a rational manner. See, e.g., United States v. Kramer, 757 F. Supp. 397, 430 (D.N.J. 1991).
[22] "Any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred." [N.J.S.A. 58:10-23.11g(c)(1)]
[23] "An act or omission caused solely by war, sabotage, or God, or a combination thereof, shall be the only defenses which may be raised ..." N.J.S.A. 58:10-23.11g(d).
[24] This same result was reached by the District of New Jersey in Borough of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1052 (D.N.J. 1993).
[25] "At early common law, a plaintiff could obtain but one judgment on a joint tort. Because the act of one joint tort-feasor was the act of all, it was considered that there was one cause of action which was merged in the judgment. Thus, a judgment against one defendant, even though that defendant be insolvent and even though that judgment went unsatisfied, barred all actions." Polidori, 217 N.J.Super. 424, 429, 526 A.2d at 232; citing Tino v. Stout, 49 N.J. 289, 296, n. 2, 229 A.2d 793 (1967).
[26] Joint tortfeasors are defined as: "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." N.J.S.A. 2A:53A-1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361788/ | 112 Cal. App. 2d 309 (1952)
Estate of MARGARET FAMA, Deceased. TONY JOHN FAMA, Appellant,
v.
MARY KANTER, Respondent.
Civ. No. 18884.
California Court of Appeals. Second Dist., Div. One.
July 21, 1952.
Adler, Flinkman & Hahn for Appellant.
Waterman, Robbins & Kilpatrick for Respondent.
DRAPEAU, J.
Margaret Fama died on June 14, 1950. She had been married twice and was survived by nine children: six by the first marriage and three by the second. She left a will dated August 3, 1949, in which she devised her entire estate to a daughter of her first marriage, to wit: Mary Kanter. By a later will dated February 23, 1950, she left her entire estate to her two youngest sons, Tony John and Joseph Fama.
By his petition of July 24, 1950, Tony John Fama presented for probate the will of February 23, 1950, which was executed by mark. Petitioner's half- sister, Mary Kanter, filed a contest to the probate of said will on the grounds of fraud, undue influence, lack of execution and incompetency.
At the conclusion of the trial, the court directed the jury to bring in a verdict "finding Mrs. Fama was of sound and disposing mind on February 23, 1950." The other issues were submitted to the jury on written interrogatories, to wit:
"1. Did Margaret Fama place her cross on the will dated February 23, 1950." *310
"2. Did Margaret Fama understand the provisions of said will."
"3. Did said will express the intentions of Margaret Fama with respect to the disposition of her property."
"4. If you find that Margaret Fama did place her cross on said will, was she at the time acting under the undue influence of Tony John Fama."
The jury unanimously answered the first three questions in the negative and left the fourth question unanswered.
Before accepting the verdict it was agreed by counsel for both sides that it was satisfactory in the form rendered without an answer to the fourth question.
Judgment was entered accordingly. Thereafter the court denied petitioner's motion for a new trial on the ground that the "moving party failed to comply with Rule 3-b of the Judicial Council Rules."
Petitioner appeals from the judgment. He also appeals from the order denying his motion for a new trial. The latter is a nonappealable order and therefore should be dismissed. However, the order is reviewable on the appeal from the judgment. (Lee v. Dawson, 44 Cal. App. 2d 362, 364 [112 P.2d 683].)
Respondent, the contestant, presented evidence that on February 23, 1950, Mrs. Fama was 65 years of age, suffered from diabetes and had very poor eyesight; that she spoke Italian and "very little English ... not enough to hold any conversation." Also, that on the day in question, appellant took his mother to look at a liquor and grocery store which he said he might buy. She was wearing a dark house dress and no hat. When he brought her home she was carrying a gallon jug partly filled with wine, and said that Tony had given her some wine to drink.
Appellant testified that on February 23, 1950, his mother said she wanted to see an attorney. Appellant knew no attorneys but his wife's mother and father had a lawyer named Adler, so his wife made an appointment with him. Early in the afternoon, appellant called for his mother and took her to Mr. Adler's office. They had to wait a while because Mr. Adler was busy. And then "My mother did all the talking" to Mr. Adler, who drew up a will which he read to her. She signed by mark, Mr. Adler and his secretary signing as witnesses. She gave the will to appellant and he took her straight home. He placed the will in his safe deposit box and on June 14, 1950, his mother died. *311
Mr. Adler testified that a woman wearing a dark coat and a scarf on her head, accompanied by appellant came to his office on February 23, 1950 and said "I am Mrs. Fama and I want to make a will"; that appellant referred to her as "mama." Neither Mr. Adler nor his secretary, Eloida R. Aguerrebere could speak Italian so Mrs. Fama conversed in English. She gave him the names of her children and said she wanted her sons Tony and Joe to receive everything she had. Mr. Adler then prepared the will and Mrs. Fama signed with her mark and he and his secretary witnessed the same.
Four photographs were submitted to Mr. Adler and he selected the one which he thought closely resembled the woman who signed the will in his presence. The contestant, Mary Kanter, then testified that this was not a picture of the decedent. Thereafter, appellant introduced in evidence four snapshots taken in 1948, and a photograph, all of which were identified by contestant as pictures of her mother, the testatrix.
From this point, the question of the identity of the testatrix became the main issue, it being contended by contestant that the woman who placed her mark on the will of February 23d was not Mrs. Fama but an imposter.
Upon direct examination, Mrs. Aguerrebere, one of the witnesses to the will, testified that "Tony Fama and his mother, Dominica Fama, came into the office. They waited for Mr. Adler. Mr. Adler wasn't there. They waited some time and Mr. Adler came in. They walked into the office with him and they were in there some time. ... And when he was ready to dictate, he called me in, he dictated the will, and he asked her--he usually asked them if that's all they want in there, if there is anything else that they want to add or they want to change, so we don't have to retype the will."
"She said, 'All right, it is all right, it sound all right,' and then I walked out and I typed out the will. I came back and handed the will to Mr. Adler. Mr. Adler read the will over to her in English. He read it over slowly, and then Mr. Adler said, 'I told you that you needed two witnesses, and my secretary and I shall act as witnesses and will be your witnesses,' so she took the pen. She put her cross there, and Mr. Adler said, 'Sign this as your last will and testament. You know what you are doing?'"
"She said, 'I do,' and I took the pen and signed my name *312 and gave it to Mr. Adler and Mr. Adler signed his name, and Mr. Adler handed her the will in a sealed envelope, and she walked out. That's all there is to it."
"Q. Mrs. Aguerrebere, at that time, did you hear Mr. Adler ask her if there was anything else that she wanted to say about the will after I dictated it to you?"
"A. After you dictated it, you asked her if that was all right, and she said, 'All right, it is fine.' "
On cross-examination, contestant's attorney attacked this witness' recollection of what occurred on the day the will was executed and attempted to impeach her by showing inconsistent statements. The witness denied having made the statements attributed to her. After submitting the question to the reporter's notes, contestant's counsel withdrew the question with the comment: "I will leave it to the Jury's recollection of the matter. The Court: If you withdraw the question, that's that."
An examination of the record discloses that the jury was not present when this witness first testified regarding the formal execution of the will, and further, that she did not impeach herself by any inconsistent statements or otherwise.
Mrs. Aguerrebere was recalled as a witness in surrebuttal on behalf of the appellant, when the following took place outside the hearing of the jury:
"Mr. Adler: At the time when he (respondent's attorney) was questioning her, ... he asked her about the alleged, supposed will. In other words, it was the first time that that word was used. Now, that's before the Jury, the, allegedly, will."
"Mr. Robbins: I think we should have the right to see if she can make any identification of anyone that was in the place at that time."
"The Court: You should have asked her afterwards. I think this is not proper now."
"Mr. Robbins: She testified again before the Jury."
"The Court: No argument is necessary."
"Mr. Adler: May I ask the Court to reopen the case to replace Mrs. Aguerrebere on the stand for the purpose of questioning her as to the identity?"
"The Court: You mean from those pictures?"
"Mr. Adler: From those pictures. I think we should be permitted to do that in justice to the parties. They showed up with pictures, and showed me one picture and asked me if that was the woman, and I picked out one picture for *313 Mary (the contestant) and she said it wasn't. I am going to ask the Court to be permitted to reopen the case in chief for the purpose of permitting Eloida Aguerrebere to testify for identification purposes."
"Mr. Robbins: She can't identify anything. She didn't know the party, if the Court please. In picking out any picture, she wouldn't identify anybody."
"Mr. Kilpatrick: We object to that as improper, and on the ground that counsel was informed yesterday of the contention that the person in his office wasn't the true Mrs. Fama. I personally told that to counsel, that we were going on that theory. ..."
"Mr. Robbins: If this witness had testified she was personally acquainted with Mrs. Fama, she could testify it was Mrs. Fama. All she can testify is that on a certain day a woman called at the office."
"Mr. Adler: She can testify what picture, in her opinion__________"
"Mr. Robbins: We are objecting that is not proper rebuttal."
"The Court: I have ruled it isn't proper rebuttal. He asked to reopen the case. I think the motion will be denied."
[1] Appellant here urges that the court abused its discretion in denying the motion to reopen the case to present further evidence of identification of the testatrix.
"While a court has a wide discretion in passing upon such a motion this discretion should be exercised in accordance with legal principles and in accordance with the ends of justice. A trial in a court of justice is not a game and the judge is more than an umpire." Christina v. Daneri, 22 Cal. App. 2d 190, 193 [70 P.2d 983].
This witness had not previously been asked to identify the pictures, hence the offered proof was material and might have compelled a decision the other way.
The pictures were before the jury and the contestant had pointed out which were pictures of her mother, the testatrix. Mrs. Aguerrebere should have been permitted to testify whether the person who executed the will on February 23, 1950, was the same person shown in the various photographs, who had been acknowledged by contestant to be the testatrix.
Under the peculiar circumstances here existing the case should have been reopened in order to permit justice to be done and, in our opinion, the failure to grant the motion was an abuse of discretion. This, coupled with the prejudicial *314 remarks of counsel in his attempted impeachment of the witness, amounted to a miscarriage of justice.
Because of the conclusion reached, it is not necessary to pass upon the other points raised in this appeal.
The appeal from the order denying motion for new trial is dismissed. The judgment is reversed.
White, P. J., and Doran, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361782/ | 833 F. Supp. 211 (1993)
Ouida Pauline ARCHER, Plaintiff,
v.
GLOBE MOTORISTS SUPPLY CO., INC., et al., Defendants.
No. 92 Civ. 9511 (VLB).
United States District Court, S.D. New York.
May 25, 1993.
*212 Wayne Outten, Lankenau Kovner & Kurtz, New York City, for plaintiff.
*213 Leonard Rodney, Levy, Rodney & Schneps, Manhasset, NY, for defendants.
MEMORANDUM ORDER
VINCENT L. BRODERICK, District Judge.
I
Defendants in this employment discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") move for summary judgment on the grounds that the suit is untimely and that defendants did not have the requisite fifteen (15) employees during the times necessary for coverage of plaintiff's complaint.
I deny defendants' motion to dismiss the complaint; for reasons set forth below, I deem the individual defendants dropped without prejudice to a motion by plaintiff to amend the complaint to add them, if reasons for piercing the corporate veil or sufficiently detailed factual allegations of specific personal (not vicarious) wrongdoing on their part are made.
II
Time limitations in employment discrimination cases are important to inhibit suits brought as afterthoughts or when evidence has become stale, causing prejudice to the defendants. In cases of substantial delay, these limitations must be strictly enforced. See Wojik v. Postmaster General, 814 F. Supp. 8 (S.D.N.Y.1993). They are not, however, jurisdictional and can be tolled where confusion may have been caused without the fault of the party whose claim is sought to be barred. Zipes v. TWA, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982).
Where notice by mail is used, particular vigilance is important to avoid loss of parties' rights due to delays in the Postal Service or confusion as to the precise time of mailing or receipt. Cruz v. Sullivan, 802 F. Supp. 1015 (S.D.N.Y.1992); see Rivera v. M/T Fossarina, 840 F.2d 152, 155 (1st Cir. 1988); American Postal Workers Union v. USPS, 830 F.2d 294 (D.C.Cir.1987); Barringer, "What Can Go Wrong in Census? 2.3 Million Undelivered Packets," N.Y. Times, April 5, 1990 at A18; Sloane, "When the Check is NOT in the Mail," N.Y. Times, Feb. 29, 1992 at 52.
Fed.R.Civ.P. 6(e) provides for an additional three days of grace where notice is given by mail, a rule which has persuasive relevance to notice in any legal context. The precise timing of relevant documents, which may be important in determining whether plaintiff's suit is timely under 42 U.S.C. § 2000e-5(e) and (f)(1) is unclear from the parties' submissions, is dependent upon conflicting inferences, and appears to admit of genuine dispute. At this juncture I cannot determine that no genuine issue of material fact in regard to timeliness exists.
III
The status of the individual defendants as owners or supervisors does not automatically remove them from the category of employees under the relevant statutes. See Hyland v. New Haven Radiology Associates, 794 F.2d 793 (2d Cir.1986). Defendants do not deny that if the individual defendants are counted, the statutory threshold of fifteen employees during the relevant period is satisfied. Consequently, a genuine issue of material fact exists with regard to coverage.
IV
Potential liability of an entity does not necessarily imply vulnerability to suit on the part of its officers, directors or owners. See Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522, 525 (4th Cir.1987) and cases cited (relating to long-arm jurisdiction); Allen v. City of Yonkers, 803 F. Supp. 679 (S.D.N.Y.1992) (civil rights suit). Title VII and the ADEA are directed toward employers, not individual non-employer natural persons, at least absent intentional misconduct. See Miller v. Maxwell's International, 991 F.2d 583 (9th Cir.1993).
The position successfully taken by plaintiff in sustaining the complaint against defendants' motion asserting lack of coverage *214 involves characterizing the individual defendants here as employees. As such, they cannot routinely or automatically be deemed liable for any improper employment practices of an institutional entity.
Congress in the public sector context has recognized that liability of individual personnel for acts attributable to an institutional entity can have an undesirably chilling effect on the ability of the entity to perform its functions. A recent federal statute limiting individual liability of governmental employees, Public Law 100-694, 1023 Stat. 4563 (1988), enacting 28 U.S.C. § 2679(b) and modifying the result in Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), was explained in part in H.Rep. No. 700, 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 5945, 5947 as follows:
The possible exposure of Federal employees to personal liability could lead to a substantial diminution in the vigor of Federal law enforcement and implementation.
Similarly, exposure of private sector employees to personal liability may interfere with the functions of their employers; on the other hand, ignoring misconduct not effectively remedied by suit against the employer could lead to a substantial diminution of law enforcement under Title VII and the ADEA.
In order for plaintiff to pursue this suit against the individual defendants if so minded, adequate specific allegations to support such action will be necessary. For example, sufficiently detailed[1] allegations of individualized personal misconduct as opposed to vicarious responsibility might in a proper case support individual liability. Likewise, if the employer in the present case is undercapitalized and for that reason unlikely to be able to pay any judgment, a basis for penetrating the corporate veil may exist. See Lowen v. Tower Asset Management, 653 F. Supp. 1542, 1551-56 (S.D.N.Y.), aff'd, 829 F.2d 1209 (2d Cir.1987); Amway Corp. v. Shapiro Export Co., 102 F.R.D. 564 (S.D.N.Y.1984); 1 W. Fletcher, Cyclopedia of Corporations § 44 (rev. perm. ed. 1983); Gelb, "Piercing the Corporate Veil the Undercapitalization Factor," 59 Chi-Kent L.Rev. 1 (1982).
If any of these or similar factors support personal liability and if plaintiff elects to seek to expand the litigation in that manner,[2] a motion to amend the complaint to add individual defendants may be filed without further leave, accompanied by a memorandum of law not to exceed ten (10) pages.
SO ORDERED.
NOTES
[1] See Barnes Landfill v. Town of Highland, 802 F. Supp. 1087 (S.D.N.Y.1992).
[2] Pursuant to the objectives of speedy, inexpensive and just determination of every action set forth in Fed.R.Civ.P. 1, sentence 2, and those inherent in the Judicial Improvements Act of 1990, Public Law 101-650, 104 Stat. 5089, enacting 28 U.S.C. § 473, additional defendants should not be added purely and simply because they might possibly be subject to suit.
Instead, plaintiff should evaluate whether or not potential additional defendants might be liable if other defendants already in the case might not be liable, and whether or not potential additional defendants may be able to pay a judgment where others already in the case could not. If the answers to these questions are negative, the purpose of the addition should be reexamined based on plaintiff's interest in moving her case as well as on the requirements of Fed.R.Civ.P. 11. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361789/ | 206 Okla. 666 (1952)
245 P.2d 1144
FRATER OKLAHOMA REALTY CORP. et al.
v.
ALLEN LAUHON HDWE. CO.
No. 34603.
Supreme Court of Oklahoma.
February 26, 1952.
Rehearing Denied July 15, 1952.
*667 Keaton, Wells, Johnston & Lytle, Oklahoma City, and Frank Settle, Tulsa, for plaintiffs in error.
Elton B. Hunt and W.L. Eagleton, Tulsa, for defendant in error.
PER CURIAM.
The parties to this action will be referred to in this opinion as they appeared in the trial court.
On January 26, 1948, Allen Lauhon Hardware Company filed its petition to quiet its title to the south 75 feet of lot three (3), block one hundred sixty two (162), in the city of Tulsa, Tulsa county, Oklahoma, and alleges the defendants are trespassing on the north wall of the building located on said premises, and asks for an order requiring defendants to remove any and all contact and physical connection of any kind they have with the north wall or the building situated on lot 3.
Defendants answer by general denial and specifically deny they are trespassing on the property of plaintiff, and claim an implied easement in the north wall of plaintiff's property. Issues were joined.
The material facts in this case are as follows: that lot three (3), block one hundred sixty-two (162) of the Original Townsite of Tulsa is a lot 100 feet wide north and south and 140 feet east and west.
On January 2, 1920, one James E. Duffey purchased the south 75 feet of lot 3, at which time there was a building on it, and still is. The defendants claim an implied easement on the north wall of said building. The plaintiff is now the owner of the south 75 feet of lot 3. On January 19, 1922, James E. Duffey became the owner of the north 25 feet of lot 3, which is now occupied by the Gem Theatre. Immediately north of lot 3 is lot 2, on which is located on a portion of said lot 2 and adjacent to lot 3 a building known as Kaybee Store building, and the lots on which it rests are now owned by the Frater Oklahoma Realty Corporation, one of the defendants herein. During the year 1929, a building was completed on the south portion of lot 2, adjacent to the north side of lot 3, by James E. Duffey.
That during 1929, James E. Duffey partially constructed a building on the north 25 feet of lot 3 by using the north wall of the Lauhon building, which is on the south 75 feet of lot 3, and the south wall of the Kaybee Store building, located on lot 2, for supports for the roof. This building on the north 25 feet of lot 3 had a solid steel and concrete roof and was partially completed for 20 feet back from the front. The front wall was only completed in skeleton form, and the back wall was incomplete. In such condition said building remained from 1929 until about July, 1933, a part of it being boarded up, and such building was not taxed as an improvement by the tax assessor, nor returned as such by the then owner. Said building was completed on or about July, 1933, to the alley.
While said property was in said condition, and on December 18, 1929, James E. Duffey and wife executed an ordinary Oklahoma form mortgage in favor of the Massachusetts Mutual Life Insurance Company on the south 75 feet of lot 3, which mortgage made no reference to any easement against said property in favor of the north 25 feet of lot 3, or the owner thereof.
On July 21, 1933, James E. Duffey began to complete the building which had been started in 1929 on the north 25 feet of lot 3. This building was completed in 1933 and is now known as the Gem Theatre building. Said building was completed without the knowledge or consent of the mortgagee, who had the mortgage on the south 75 feet of lot 3. Said building occupies all of the 25 feet and extends the full length of the lot. The roof of said building is attached to the walls of the two adjacent buildings. The Lauhon building on the south and the Kaybee Store building on the north.
There is a drain pipe which extends from the property of the defendant, *668 known as the Gem Theatre property, on the rear wall and over and against the rear wall of plaintiff's property, known as the Lauhon building, at the alley, which drain pipe is, to some extent, damaging the said end wall of plaintiff's property. The defendants also have on the front end of their building on Main street a sign board that extends over a portion of the front of plaintiff's building. The evidence does not show when the drain pipe or sign board were placed in position.
It is possible and practicable by the expenditure of a reasonable sum of money and labor and upon reasonable notice to detach the end walls and roof of said Gem Theatre building from said Lauhon building and to construct a separate wall and support for the south side and roof of said building. The drain pipe in the rear and the front sign board can also, with the expenditure of a slight sum of money and labor, be easily removed.
On October 9, 1936, the Massachusetts Mutual Life Insurance Company filed an action in the district court of Tulsa county against James E. Duffey and his wife, Grace F. Duffey, to foreclose their said mortgage on the south 75 feet of lot 3. The petition also prayed, in addition for the foreclosure of said mortgage, that said defendants and each of them, be forever barred "from any lien, estate or interest or title" in and to said property, "and for such other and special relief as may be deemed proper."
The defendants entered their general appearance, and on December 2, 1937, a judgment of foreclosure in the usual form was entered. On January 4, 1938, said sale was confirmed, and on January 12, 1938, a sheriff's deed was issued to the Massachusetts Mutual Life Insurance Company, which was purchaser at sheriff's sale.
James E. Duffey continued to be the owner of the north 25 feet of lot 3 from January 19, 1922, until February 15, 1945, when he conveyed same to Mary M. Falletti; and through mesne conveyances, said property was, on the 10th day of July, 1946, conveyed to and became the property of the Frater Oklahoma Realty Corporation, which corporation is now the owner of the fee thereof.
The defendant Allied Theatres, Inc., a corporation, is the owner and holder of a ten year leasehold estate in and to said property from July 13, 1946.
The Phoenix Mutual Life Insurance Company has a mortgage interest in and to the north 25 feet of lot 3.
On February 28, 1945, James E. Duffey and wife executed a quitclaim deed to the Massachusetts Mutual Life Insurance Company for the south 75 feet of lot 3, to meet technical title requirements by purchaser at sheriff's sale.
On February 27, 1945, the Massachusetts Mutual Life Insurance Company, by limited warranty deed, conveyed the south 75 feet of said lot 3 to the plaintiff herein, who immediately notified defendants that plaintiff herein claimed all the north wall of the Lauhon building free and clear of any easement claims or rights of support, but plaintiff did offer to permit the use of the wall until such time as plaintiff should decide to rebuild or otherwise utilize the wall, which offer was declined by defendants, and this action was brought by plaintiff.
The case was tried to the court who found the plaintiff owned all the north wall of its building on lot 3 and said wall was all on lot 3, and that defendants had no implied easement in said wall or interest therein.
The court further ordered the drain pipe which extends from defendant's Gem Theatre property upon plaintiff's property to be removed by the defendant Frater Oklahoma Realty Corporation within 30 days from date of judgment.
The court further ordered, as a matter of equity but not as a legal right, *669 that the defendant Frater Oklahoma Realty Corporation shall retain and use the present north wall of plaintiff's building so long as the wall is permitted by the plaintiff, its successors or assigns, to remain in its present condition, to the extent that it is now being used by the Frater Oklahoma Realty Corporation. However, should plaintiff or its successor in title determine to alter, change or substantially repair, improve or rebuild said wall, it may do so by giving notice to owners and interested parties 60 days from date of service of notice to detach the building on the north 25 feet from the building on the south 75 feet of said lot 3.
The court further found that the other defendants had no rights in said wall and no privileges greater than those granted as a matter of equity to the Frater Oklahoma Realty Corporation. Costs were assessed against defendants. Motion for new trial was filed by defendants and overruled by the court, from which order the defendants appeal.
An easement is defined to be:
"An easement is a liberty, privilege or advantage without profit, which the owner of one parcel of land may have in the lands of another; or as conversely stated, it is a service which one estate owes to another, or a right or privilege in one man's estate for the advantage or convenience of the owner of another estate." 28 C.J.S. § 1-a, p. 619.
The creation of an easement may ordinarily be created by deed or prescription. 28 C.J.S. p. 639.
In this case an easement is based on an implied grant or "way of necessity" and may be implied in favor of either a grantor or grantee, and we quote:
"Although the law does not favor the implication of easements it is generally held that easements may be created by implication in favor of a grantor or a grantee. Such implication can only be made in connection with a conveyance. In view of the rule that a conveyance is to be construed against the grantor, the court will imply an easement in favor of the grantee more easily than it will imply an easement in favor of the grantor. Whether an easement arises by implication on a conveyance of real estate depends on the intent of the parties, which must clearly appear in order to sustain an easement by implication. In order to determine the intent the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted. No grant of an easement can arise by implication where there is an express contract relating to the matter." 28 C.J.S. § 30, p. 686.
In Haas v. Brannon, 99 Okla. 94, 225 P. 931, this court approves the necessary requisities to create an easement by implication as follows:
"Three things are regarded as essential to create an easement by implication on the severance of the unity of ownership in an estate: (1) a separation of the title; (2) that before the separation takes place, the use, which gives rise to the easement, shall have so long continued and so obvious or manifest as to show that it was meant to be permanent; (3) that the easement shall be necessary to the beneficial enjoyment of the land granted or retained."
19 Corpus Juris, § 115, p. 922, lays down the rule that:
"No implication of a grant of a right of way can arise from proof that the land granted cannot be conveniently occupied without it; its foundation rests in necessity, not in convenience. A party cannot have a way of necessity through the land of another, when the necessary way to the highway can be obtained through his own land, however convenient and useful another way might be."
In this case, each claims the burden of proof is on the other. This court has repeatedly held that one who alleges an implied easement must prove. Leeson v. Brooks, 199 Okla. 139, 184 P.2d 762; Friend v. Holcomb, 196 Okla. *670 111, 162 P.2d 1008; Thomas v. Morgan, 113 Okla. 212, 240 P. 735; Catterall v. Pulis, 137 Okla. 86, 278 P. 292.
The defendants claim an implied easement to use the north wall of the Lauhon building to support the roof of the Gem Theatre building. In order to prevail there must have been:
1. A separation of title. On December 18, 1929, when James A. Duffey and wife mortgaged the south 75 feet of lot 3 to Massachusetts Mutual Life Insurance Company, there was a separation of title. However, had Duffey retained an easement, he was foreclosed and barred therefrom by the foreclosure of the mortgage he had given and the matter is now res adjudicata.
37 Am. Jur. § 1032, p. 343, states the rule as follows:
"The proposition is fundamental that a mortgagor has no power or authority, in the absence of an express delegation or reservation thereof, to affect or impair the lien of a mortgage."
Our court has repeatedly held: A final judgment of a court of competent jurisdiction is conclusive between the parties and their privies in a subsequent action involving the same subject matter, not only as to all matters actually litigated and determined in the former action, but as to all matters germane to issues which could or might have been litigated and determined therein. Wheeler v. Smoot, 183 Okla. 447, 83 P.2d 186; Baker v. Leavitt, 54 Okla. 70, 153 P. 1099.
2. Before the separation takes place, the use which gives rise to the easement shall have been so long continued and so obvious or manifest as to show it was meant to be permanent. The evidence shows that during 1929 the skeleton of a building was erected on the north 25 feet of lot 3, and during the same year and on December 18, 1929, the Duffeys gave a mortgage on the south 75 feet of said lot, which was subsequently foreclosed. An abandoned partially completed building does not bring the defendants under the principle of law of the separation of title, that "Before the separation takes place, the use which gives rise to the easement shall have been so long continued and so obvious or manifest as to show it was meant to be permanent." Before the separation of the title, defendants had only used 20 feet of the north wall of the Lauhon building, and that use was temporary and that of a contractor's shop for a few weeks while building the Kaybee store building on its north, and the building had its front boarded up and its end was incomplete. It was an abandoned building of the depression years. Its use was not so long or continued and so obvious or manifest as to show it was meant to be permanent, and even if there was an implied easement for 20 feet, it could not ripen into an implied easement for 140 feet as now claimed by defendants.
If there was an implied easement, it must be necessary to the beneficial enjoyment of the land granted or retained. The evidence shows that it is both practical and possible, at no great expense, to detach the end walls and roof of the Gem Theater building from the Lauhon building and to construct end walls and side walls in the Gem Theater building.
Our court has cited this rule:
"No implication of a grant of a right of way can arise from proof that the land granted cannot be conveniently occupied without it, * * * for the law is jealous of a claim to an easement and the burden is on the party asserting such a claim to prove it clearly." Thomas v. Morgan, 113 Okla. 212, 240 P. 735.
We have examined the findings of facts and conclusions of law of the trial court, as well as the evidence adduced at the trial, and find that the judgment of the trial court is fairly established by the evidence appearing in the record. We see no reason why the judgment of the district court should be disturbed, and seeing none, the same is hereby affirmed.
*671 This Court acknowledges the services of Attorneys F. Hiner Dale, Wade H. Loofburrow, and C.E. Bailey, who as Special Masters aided in the preparation of this opinion. These attorneys were recommended by the Oklahoma Bar Association, approved by the Judicial Council, and appointed by the Court.
WELCH, CORN, GIBSON, DAVISON, JOHNSON, O'NEAL, and BINGAMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361796/ | 112 Cal. App. 2d 196 (1952)
JOSEPH MORRIS MARKS, Appellant,
v.
D. D. WATSON, as Real Estate Commissioner, etc., Respondent.
Civ. No. 18806.
California Court of Appeals. Second Dist., Div. Two.
July 11, 1952.
Macbeth & Ford, Norman Macbeth and John E. Howard for Appellant.
Edmund G. Brown, Attorney General and Lee B. Stanton, Deputy Attorney General, for Respondent.
FOX, J.
This is a mandamus proceeding to review an administrative order of the Real Estate Commissioner revoking plaintiff's license to act as a real estate broker. From an adverse judgment plaintiff appeals.
In September, 1948, one Rowley owned a motel in Santa Monica. Marks had learned from others that Rowley had listed the motel for sale. On September 24 Marks telephoned Rowley requesting a listing of the property. Rowley told him it was already on an "open listing" with several other real estate brokers. After some discussion Rowley agreed to give Marks also an open listing. Following this telephonic conversation Marks took two Los Angeles Realty Board's printed forms of "exclusive listing" for sale of realty and altered them by printing in his own handwriting at the top, the words "Open Listing" and by crossing out the word "exclusive" from the body of the instruments where it twice appeared. However, the language appearing later in the listing whereby the seller agreed to pay the agent a five per cent commission whether the property was sold by the agent or someone else including the owner was not stricken. These printed forms, thus altered, were then mailed to Rowley, accompanied by a note from Marks reading in part: "Please sign open listing, both copies enclosed. Return original. ..." Rowley marked out the provision requiring a termite report, signed the listing and returned it to Marks. Thereafter, when the motel had been sold by another broker, Marks, without making any demand for payment of a commission, filed an action for the collection thereof. The first knowledge Rowley had of Marks' claim was the service of a writ of attachment. Marks, however, was unsuccessful in his suit in both the trial court and on *198 appeal. (See Marks v. Rowley, 102 Cal. App. 2d 619 [228 P.2d 29].) Prior to the Rowley transaction Marks had made the same altered listing agreement with a Mrs. Bremberg, had sued her for a commission under similar circumstances, and had recovered judgment therefor in the Santa Monica Municipal Court.
The court found that an "open listing" has, by usage and custom between the general public and the members of the real estate business, been accepted as a listing wherein the commission is considered to be earned by the broker who first finds a buyer who meets the terms of the listing or whose offer is accepted by the seller, and that there is no obligation on the part of the seller to notify any of the brokers of the sale of the property and that the seller is not obligated to pay a commission to any broker except the broker who secured the buyer for the property. Marks' testimony indicates he understood the term "open listing" in accordance with this finding.
Marks testified he placed the words "Open Listing" on the forms so that the other brokers could sell the motel after contacting him, and they would be entitled to half the commission. However, Marks sued for the full five per cent, not for just half of it. Marks knew when he procured the listing several other brokers were making efforts to sell the property.
[1] An accusation against Marks based on the Rowley transaction was signed and filed by a Deputy Real Estate Commissioner. Disciplinary action was requested against Marks on the grounds that in securing and attempting to enforce a listing agreement for the sale of certain real estate he (1) made substantial misrepresentations in violation of section 10176(a) of the Business and Professions Code; (2) conducted himself in a manner which constituted fraud and dishonest dealings contrary to the provisions of subdivision (i) of that section; and (3) violated section 10177(f) of the Business and Professions Code by acting and conducting himself in a manner which would have warranted the denial of his application for a license.
After a hearing the Real Estate Commissioner found the allegations of the accusation to be true, and revoked Marks' license. He sought review by the superior court under section 1094.5 of the Code of Civil Procedure. After a review of the administrative record the court sustained the action of the commissioner. *199
Plaintiff's first contention is that his conduct was not within the purview of the Real Estate Act because the claimed fraud and dishonest dealing occurred prior to the creation of any broker relationship between the parties. This position is not well taken. The representations and conduct on the part of plaintiff in securing Rowley's signature to the listing is only the first part of the fraud. The attempt to consummate it occurred after the "open listing" had been signed by the seller through the institution by Marks of court action to enforce it as an exclusive listing agreement. The attempted fraudulent enforcement of such a listing may constitute grounds for revocation of a realtor's license. (See Castleman v. Scudder, 81 Cal. App. 2d 737 [185 P.2d 35].)
It is difficult to conceive of an action which comes more within the purview of the Real Estate Act than does a lawsuit for the collection of a real estate commission. In fact, if Marks had not been a licensed real estate broker, he could not even have maintained the action. (Sheble v. Turner, 46 Cal. App. 2d 762 [117 P.2d 23].)
[2] Plaintiff's second contention is that the findings of fact fail to show more than a possible fraudulent intent. The conduct of Marks goes further than this. He not only negotiated by telephone for an "open listing" with Rowley well knowing what that term meant but then purposely changed parts of an exclusive listing form, representing it in his note to Rowley to be an open listing while he fully intended to enforce it as an exclusive listing in the event someone else sold the property. He later tried to carry out this fraudulent intent by court action against Rowley as he previously had done against Mrs. Bremberg. This constituted the overt act and resulted in damage to Rowley since it was necessary for him to employ counsel to handle his case both in the trial court and on appeal.
Plaintiff's third contention is that as a matter of law there was no fraud. In support of this proposition he argues that the case of Marks v. Rowley, supra, "in legal effect, destroys the possibility of fraud upon the part of Marks." In that action Marks was simply trying to enforce the contract and collect the commission. The question of fraud was not in issue. The court merely held that the written portion of the "Open Listing" contract should prevail over the printed portion. (P. 621.)
[3] The fraud was in the false representation by Marks that the agreement was an open listing and that he only *200 intended to enforce it as such, and his subsequent action in attempting to enforce it as an exclusive listing in violation of the prior representations as to its character which he had made to Rowley both orally and in writing. [4] The fact that Rowley could have frustrated Marks' scheme by striking out the printed matter in the agreement which is repugnant to the accepted definition of an open listing does not lessen the culpability of Marks' conduct nor does it relieve him from disciplinary action for his attempt to consummate his fraudulent plan. He cannot excuse his violation of the cited sections of the Business and Professions Code by charging his client with negligence.
[5a] Plaintiff's final point is that the severity of the punishment establishes abuse of discretion. In support of this plea Marks argues he "was found guilty of questionable conduct that in fact hurt no one," and that the "degree of harm to Rowley should be of controlling importance to the punishment and revocation would seem disproportionate for an act harmful to no one." Plaintiff clearly misconceives the detrimental effect of his conduct in this transaction on Rowley. It was not only necessary for Rowley to employ an attorney to represent him in court and pay for such services but he also had an attachment levied on his property, and undoubtedly was required to spend considerable time in connection with the various phases of this litigation. It therefore cannot properly be said that Marks' conduct "hurt no one."
[6] The "degree of harm" to the victim is not a matter of controlling importance in fixing the penalty in disciplinary proceedings. It is simply one of the facts to be taken into consideration. [7] The basic reason for disciplinary action in matters of this kind is the protection of the public against unethical and dishonest conduct on the part of those engaged in the real estate business. [5b] In view of this purpose we cannot say that the revocation of plaintiff's license establishes, as a matter of law, an abuse of discretion on the part of the Real Estate Commissioner.
The judgment is affirmed.
Moore, P. J., and McComb, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361799/ | 173 Kan. 236 (1952)
245 P.2d 1206
JESSE HOMER BRADLEY and CLEO M. BRADLEY, Appellees,
v.
FRED C. MINOR and REBECCA R. MINOR, Appellants.
No. 38,564
Supreme Court of Kansas.
Opinion filed July 3, 1952.
W.L. Cunningham and D. Arthur Walker, both of Arkansas City, argued the cause, and Wm. E. Cunningham and William R. Howard, both of Arkansas City, were with them on the briefs for the appellants.
Harry O. Janicke, of Winfield, argued the cause, and J.A. Herlocker, of Winfield, was with him on the briefs for the appellees.
The opinion of the court was delivered by
PRICE, J.:
This was an action for the specific performance of a written contract for the sale of a farm and for an accounting of rents and profits because of the alleged wrongful refusal of defendants to convey the property and to surrender possession according to the terms of the contract. Judgment was for plaintiffs, and defendants appeal.
Defendants assign twenty-one specifications of error, among them being the overruling of their demurrer to plaintiffs' evidence, and in our disposition of the appeal we confine ourselves to the propriety of that ruling.
The facts, and concerning which there is no dispute, as disclosed by plaintiffs' evidence, are very simple. Defendants were the owners of and lived on a 320-acre farm in Cowley county. Plaintiffs were desirous of purchasing a farm in that locality, but in order *237 to do so it was necessary for them to borrow the full purchase price from an agency of the Federal government. Pursuant to negotiations and an investigation they were approved for a government loan. In the summer of 1946 they contacted defendants concerning the purchase of the latters' farm of 320 acres. It developed that plaintiffs could not obtain a government loan sufficient to buy that much acreage. Later the parties orally agreed to the purchase and sale of 240 acres at $43 per acre, making a total purchase price of $10,320. They later met at the government loan office in Winfield for the purpose of executing an option to purchase for which plaintiffs paid defendants the sum of one dollar. Because of circumstances, not here material, the office secretary did not prepare the option on this occasion, but it was understood she would do so later and mail it to defendants for their signatures. This was done, and the option so prepared and mailed listed the selling price as $10,320.
When defendants examined this option, which was on a prepared government form, they noticed that it provided that they, as vendors, were required to obtain and pay for title insurance. They objected to this requirement and so advised plaintiffs. In the meantime the matter had been taken up with the local government loan agent and he estimated the title insurance would cost $60. Plaintiffs, as purchasers, agreed to pay the amount themselves but were advised by the loan agent that they could not do so under the government contract and that it would be necessary to raise the option in the amount of $60 so as to cover the charge. Apparently this arrangement was satisfactory to defendants as their chief concern was to receive the sum of $10,320 net for the 240 acres.
Pursuant to this arrangement a new option agreement was prepared and was signed by defendants on September 12, 1946. It listed the purchase price of the property as $10,380, and by its terms defendants agreed to deliver, without charge to plaintiffs, a policy of mortgage title insurance in favor of the government in the amount of the purchase price of the property. This option was irrevocable for a period of sixty-one days from the date of its execution, and on October 31, 1946, plaintiffs accepted the same in writing and delivered such acceptance to defendants on November 4, 1946, which date was within the period of the option. In the written application for title insurance, which was signed by one of the defendants on September 19, 1946, the sale price of the farm was *238 listed as $10,320. On November 13, 1946, defendants delivered to plaintiffs a written notice of termination of the option, which under its terms they were permitted to do. In the meantime plaintiffs' loan application went through, government money was made available to them and they at all times stood ready, willing and able to complete their end of the deal. Defendants refused to convey hence this lawsuit.
Defendants rely upon a number of defenses in order to justify their refusal to carry out the contract, but in our view of this case only one need be mentioned and discussed. That defense is that by the "boosting" of the purchase price in the amount of $60, so as to take care of the premium for title insurance, a fraud was perpetrated upon the government, and that it amounted to a "side agreement" in violation of law and federal rules and regulations, thus making the contract contrary to public policy, void and unenforceable.
At the trial it was stipulated that certain federal laws and regulations were in effect during the period covered by the negotiations in question. These will not be set out, but it is sufficient to say that they prohibited false representations of any nature, concealment, side agreements and the like, and provided for the infliction of penalties, such as fine and/or imprisonment, for violation thereof. One of the government regulations provided in part:
"The full purchase price of all farms purchased in connection with this program must be named in the option between prospective borrowers and their vendors. Side agreements between prospective borrowers and their vendors upon a purchase price greater or less than the option price shall not be permitted."
In other words, we have this situation: Defendants agreed to sell the 240 acres for $43 per acre, making a total sum of $10,320. When they learned that the option agreement would require them to furnish title insurance costing approximately $60, they refused to sign. Later, at the suggestion of the government loan agent, a second option agreement was prepared which raised the sale price to $10,380, it being understood that the additional $60 would be used to pay for such title insurance. Defendants executed this agreement, but when they learned of the hazard to which they were subjecting themselves, refused to carry out the agreement. This option agreement contained the provision that:
*239 "... the purchase price herein stated represents the entire consideration for the sale of the farm. Any side agreement between the Seller and the Buyer for the payment of a greater or lesser sum shall be void and unenforceable."
The question, then, is: Did the negotiations and dealings between the parties, disclosed by plaintiff's evidence, constitute a "side agreement" or other acts prohibited by law?
We think there can be but one answer, and that is that they did.
By the express terms of the option agreement defendants were to deliver, without charge to plaintiffs, a policy of mortgage title insurance in favor of the government. The agreement itself was to list the true purchase price. Plaintiffs argue there was no fraud or concealment as the agreement showed the purchase price to be the higher amount, $10,380, which sum was actually to be paid to defendants. The only trouble with that argument is that in truth and in fact such higher amount was not the actual purchase price. Defendants were to receive a net amount $60 less than that figure, under any theory. The effect of the side agreement was that the government, in the first instance, would be paying the cost of the insurance, and ultimately would be reimbursed by plaintiffs as they paid off the loan. The sum and substance, therefore, of the whole matter is that the option contract, being the result of the side agreement, was in direct contravention of law and unenforceable under the universal rule to the effect that no action can be maintained, either at law or in equity, upon any contract or agreement made in violation of law. (Bourbon County Comm'rs v. Miller, 132 Kan. 52, 294 P. 863; Cook v. Donner, 145 Kan. 674, 66 P.2d 587, 110 A.L.R. 244; Roddy v. Hill Packing Co., 156 Kan. 706, 715, 137 P.2d 215; Murphy v. Plains State Bank, 157 Kan. 530, 142 P.2d 733; and Brumm v. Goodman, 164 Kan. 281, 188 P.2d 913.)
In view of our holding it is unnecessary to discuss numerous other contentions made by the parties in support of or to overthrow the judgment rendered. The judgment of the lower court is therefore reversed with directions to sustain the demurrer to plaintiffs' evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1361783/ | 111 Cal. App. 2d 475 (1952)
JOHN A. KEPPELMAN, Respondent,
v.
JOHN D. HEIKES et al., Defendants; SALINAS NEWSPAPERS, INC., Appellant.
Civ. No. 15091.
California Court of Appeals. First Dist., Div. One.
June 4, 1952.
Lacey & Thornberry for Appellant.
Foster & Redhead for Respondent.
BRAY, J.
In an action on three counts (1) for the reasonable value of work done and materials furnished, (2) an open book account, and (3) an account stated, plaintiff recovered judgment on the first two counts in the sum of *477 $1,302.18, against defendants Peden and Salinas Newspapers, Inc. [fn. *] The last named defendant appeals.
Questions Presented
1. Sufficiency of evidence.
2. Alleged errors in admission and rejection of evidence.
3. Alleged abuse of discretion by court in refusing to reopen cause to take a deposition.
4. Book account.
1. Sufficiency of Evidence
[1] Taking the facts and the reasonable inferences therefrom most strongly in favor of plaintiff, as we are required to do, it appears that there is substantial evidence to support the findings and judgment. Plaintiff is a newspaper publisher and printer in Monterey. He printed about 6,000 copies of a business directory booklet entitled "KDON 1950-1951 Directory and Guide Book," and several other matters including stationery and mailing envelopes for the directory. The order was given by John D. Heikes and the main controversy is whether defendant either joined in the order or held out Heikes to plaintiff as its agent. Heikes was the general manager of James H. Peden Associates, the business name of defendant Martha E. Peden. She does not deny liability and has not appealed. Defendant owns radio stations KDON and KSNI and the Salinas "Californian," a newspaper. Gilbert Baymiller is the general manager of station KDON and the Californian. Peden has been engaged for several years in the business of promotion and advertising, and has published numerous similar business directories in California and elsewhere. She had an agreement with defendant by which she was to publish the directory at her own expense. She was to pay defendant $3.75 for each advertiser listed in the directory which charge included $3.50 for two radio announcements of the advertiser and 25 cents for setting each listing in type. Defendant had this type made by a third party. Peden charged each advertiser $15 per listing. The contract provided that all payments by advertisers were to go into a bank account called the KDON Special Directory Account. Funds from this account could be paid out only by checks signed by Baymiller.
Heikes came to plaintiff stating that he was representing *478 KDON and ordered the printing of the directory. About a month or six weeks later and before any work was started plaintiff called Baymiller on the phone. "I told him that it was a fairly large printing order for us to do; probably would involve, for us, quite a bit of money, and that I wanted to be sure that we didn't get stung on it, and he said that I would have nothing to ... He simply told me that all of the funds--that I would have nothing to worry about in payment of the book because all of the funds which involved the book were being handled by him and were coming through his account, and before anything was paid out in the way of profit or remuneration to the parties doing it, that all the costs would be paid. I had had some unfortunate experiences before and I didn't want to get caught again." At the trial after giving the above testimony plaintiff was asked if Baymiller gave him any authorization to print the directory for KDON. He replied, "Strictly speaking, I don't think he did quite that way." Later, when asked by the court to repeat the conversation in more detail, plaintiff testified: "I said, 'A fellow by the name of Heikes has been coming in here to find out about the printing of a KDON Directory. You were manager of KDON. I don't know the guy. I don't know anything about him, and we have been stung previously on some accounts and I wanted to find out whether this was authorized, whether it is a genuine order and something about him,' and Gil said, 'Yes.' He said, 'It is perfectly genuine.' He said, 'Have you got the order?' I said, 'Well, to the best of my knowledge we have, but I don't want to order any paper or do any printing until I have some idea whether it is to be paid.' Well, Gil said, 'Kep, you don't have a thing to worry about on this.' He said, 'All the funds come into my hands,' and he said, 'I make out all the checks on it,' and he said, 'Nothing will be paid out to them at all until all the costs are paid.' I said, 'That is swell, Gil. I think that is wonderful. I just wanted to make sure that it is on the up and up and that somebody more responsible than this guy was going to see that I got paid' ..." Plaintiff went to the Californian building where defendant and KDON are located and received the type for the directory from defendant's composing room. An advertisement was run in defendant's newspaper concerning "KDON-KSNI Compiled Directory for the County." This was with Baymiller's sanction and approval. A similar advertisement was run in other county papers, including plaintiff's. Plaintiff *479 could not recall who ordered it run in his newspaper. (It probably was Heikes.) A small part of plaintiff's charge, and included in the judgment, is the cost of running this advertisement. Baymiller testified he did not know of the advertisements in any of the newspapers other than his own. However, as he signed the checks for the cost, it is a reasonable inference that he did. Defendant did authorize the use by Peden of the name KDON Directory. Baymiller's version of the phone conversation with plaintiff is drastically different from that of plaintiff. Baymiller denied that he told plaintiff that he would see that the costs were paid. He admitted, however, that he told plaintiff about the bank account and that he was going to issue checks and explained how the bank account was to be handled. He admitted telling plaintiff that he would have nothing to worry about on the account, but claimed it was in connection with explaining to plaintiff that Peden had an excellent reputation and was "A- 1."
Plaintiff claimed that at no time in the conversation did Baymiller mention Peden. When the first 600 directories were printed Baymiller took some of them. Other directories were shipped to KDON, Salinas. All checks for subscribers to the directory were made to KDON Directory. A KDON Special Directory Account was set up by Heikes and Baymiller. Most of these checks were given to Heikes by the debtors and by him turned over for deposit to Baymiller's secretary handling the account. Some, however, were mailed directly to KDON. Baymiller testified that all disbursements from this account were made only on authorization of Heikes and signed by Baymiller. Some of the checks were made out by Heikes and some by Baymiller's secretary. Apparently on occasions she made out checks and was to get Heikes' authorization later. Among the checks signed by Baymiller were four to Heikes totaling $480 and three to Peden totaling $2,400. Defendant controlled KDON advertising and did not make known the fact either to plaintiff or through the advertisements run in the various newspapers concerning the KDON directory that Peden had anything to do with it. Defendant desired the directory to be known as the KDON Directory, and although other directories put out by Peden contained her name, no mention of Peden appears in this directory. Heikes had his headquarters in defendant's office and used its phones. Defendant know that the name KDON was to be used in soliciting advertising *480 for the directory and that telephone solicitations were to be in the name of KDON. A Mrs. Dear in the name of KDON directory solicited plaintiff for an advertisement in the directory. Plaintiff received an invoice for this on a billhead containing defendant's name (one of those printed by plaintiff). From time to time as the work progressed plaintiff sent bills to KDON and received no objection to them. Baymiller denied he had ever seen them. The first bill of $550 was so sent and plaintiff received a check for that amount signed "KDON Special Directory Account [typewritten], Gilbert V. Baymiller [in ink]." Plaintiff had performed services in the past for defendant and kept a ledger sheet showing charges and credits, the last entry upon which (prior to the matters involved here, which were also charged to that account) shows a balance of the account. On June 24, 1950, Peden and plaintiff signed a memorandum agreement, referred to in defendant's brief as "an accepted offer of compromise" in which plaintiff agreed to accept $1,629.32 as the price of the directory, subject to various adjustments specified and less the sum of $550 already paid on account. It provides that it "is a compromise settlement between the parties hereto" and that all directories are available to Heikes as of that date.
The conversation between plaintiff and Baymiller coupled with the other matters above set forth which occurred before and during the printing of the directory would cause any reasonable person to conclude that Heikes was the agent of defendant in the getting out of the KDON directory and that Baymiller had approved of the order given plaintiff by Heikes. It is true that in that conversation nothing was said in exact words that Heikes was KDON's agent, but such a conclusion is a reasonable one to be deduced from plaintiff's version, and it was plaintiff's version that the trial court believed. "An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him." (Civ. Code, 2300.) The test is: " 'before a recovery can be had against a principal for the alleged acts of an ostensible agent, three things must be proved, to- wit:' (quoting from Hill v. Citizens Nat. Tr. & Sav. Bank, 9 Cal. 2d 172, 176 [69 P.2d 853]) '[First] The person dealing with the agent must do so with belief in the agent's authority and this belief must be a reasonable one; [second] such belief must be generated by some act or neglect *481 of the principal sought to be charged; [third] and the third person in relying on the agent's apparent authority must not be guilty of negligence. [Citations.]' " (Stanhope v. Los Angeles Coll. of Chiropractic, 54 Cal. App. 2d 141, 146 [128 P.2d 705].)
An examination of the evidence in our case shows that there is substantial evidence in plaintiff's favor to meet this test.
The trial court held both defendant and Peden liable to plaintiff. Defendant contends that there can only be a joint liability where the promisors are joint venturers or partners. The cases cited for this proposition do not support it. Norris v. Campbell Electric Corp., 54 Cal. App. 72 [201 P. 132], held that there was no contractual relationship between plaintiff and two of the three defendants held liable by the trial court. In Tryon v. Clinch, 32 Cal. App. 150 [162 P. 428], the court held that there was no evidence to support a finding that the appellant had given anyone authority to bind him for the full cost of the improvement of a street. In McEwen v. Taylor, 106 Cal. App. 2d 25 [234 P.2d 754], the reviewing court sent the case back to the trial court for further determination of the question of whether there was a joint liability. [2] In our case the evidence supports the conclusion that Heikes was an agent for both Peden and defendant and therefore they were jointly and severally liable. Section 1659 of the Civil Code provides: "Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several." We know of no authority to the effect that in order to hold two persons joining together in a promise they must be strictly speaking joint venturers or partners.
2. Rulings
(1) Rejection of Contract.
Defendant sought to introduce the agreement between Peden and defendant under the terms of which Peden was to produce and pay for the directory, on the theory of the improbability of Baymiller's ordering the work of printing in view of the fact that Peden was to pay for it, and to show the circumstances surrounding the transaction. [3] Assuming that the contract should have been admitted, its rejection would be error without prejudice for the reason that *482 its principal terms were already in evidence. Baymiller testified at some length to the terms of the contract.
[4] The evidence, in addition to showing a holding out by defendant to plaintiff of Heikes as its agent, brings the case within the rule "Where one performs for another, with the other's knowledge, a useful service of a character usually charged for, and the latter expresses no dissent, or avails himself of the service, a promise to pay the reasonable value of the services is implied." (Young v. Bruere, 78 Cal. App. 127, 132 [248 P. 301]; see, also, Medina v. Van Camp Sea Food Co., 75 Cal. App. 2d 551 [171 P.2d 445]; Resetar v. Leonardi, 61 Cal. App. 765 [216 P. 71].)
(2) Admission of Evidence.
[5] (a) Plaintiff's exhibit 4 is a billhead or invoice with, among other matters, blanks for name and address of the directory advertiser "For insertion of your card in Directory as per your order--$15.00." These invoices were one of the items which Heikes ordered plaintiff to print after the original order for printing the directory was given. All checks by advertisers were made to KDON or KDON Directory and some were mailed to KDON long before plaintiff completed the work on the directory. It is a reasonable inference that these invoices accompanied the checks and thereby defendant was put on notice of their use. No objections to their use was made by defendant. The invoices, therefore, were admissible to show the holding out by KDON of Heikes as its agent.
[6] (b) Plaintiff's exhibit 5 is a statement headed "Radio Station KDON" and its address. This was a form of statement the upper part of which was detachable and to be returned with the check in payment of the charge contained in the lower portion. This particular statement was addressed to Pacific Grove Tribune, plaintiff's newspaper, and contained a charge against it for $15 for "One Listing in the 1950 Directory and Guide Book and Announcements over KDON and KSNI, $15.00." This statement is in the same category as (a) above discussed. Moreover, this was a direct charge against plaintiff by KDON.
[7] (c) Plaintiff's exhibit 6 is a copy of the Pacific Grove Tribune containing an advertisement "KDON, KSNI Compile Directory for County." This stated that such a directory was being compiled and prepared by these stations. While the evidence fails to disclose who ordered it, Baymiller admitted that a similar advertisement was run in the *483 Salinas Californian, defendant's own publication. Of this he had knowledge, although he denied knowing of the advertisements in the Tribune and other county papers. These advertisements were run long before any of the work was done by plaintiff. It is doubtful if Baymiller, a newspaper man, and the other executives of defendant, would not know that advertisements of this type were being printed in the county's newspapers. No repudiation of them was ever made. These are circumstances bearing on the question of ostensible authority. Hence the advertisement was admissible.
[8] (d) Plaintiff's exhibit 1 is the KDON 1950-1951 Directory and Guide Book. An examination of it gives the very definite impression that it is published by KDON. Peden is nowhere mentioned in it. Defendant had notice of its contents when the first 600 were complete (10 per cent of the order). It in nowise repudiated the very definite holding out that it was the publisher of the book. It was admissible as another chain in the circumstances justifying plaintiff in the belief that Heikes was KDON's agent.
The above-mentioned evidence which was admitted over defendant's objections was properly admitted as circumstances tending to bring the case within the rule set forth in Wainwright Trust Co. v. Kinder, 68 Ind.App. 88 [120 N.E. 419], and quoted with approval in Moore v. Spremo, 72 Cal. App. 2d 324, 331, 332 [164 P.2d 540]: " ' "The intention to pay and the expectation of compensation may be inferred from conduct where equity and justice require compensation, as well as from direct communications between the parties ... To warrant the finding of such contract, the elements of intention to pay on the one hand, and expectation of compensation on the other, must be found to exist, but such elements, like other ultimate facts, may be inferred from the relation and situation of the parties, the nature and character of the services rendered, and any other facts or circumstances which may reasonable be said to throw any light upon the question at issue" ' "
3. Refusal to Reopen Case
[9] The trial was started February 14, 1951. It ended and the case was submitted for decision February 21. March 7, defendant filed a "Notice of Motion to Reopen Cause and for Commission to Take Deposition." The trial court denied the motion and thereafter rendered judgment. Defendant contends that the trial court abused its discretion in denying this motion. It is well settled that permitting or denying *484 a party the right to reopen a case for the purpose of introducing further proof, and particularly after the trial has concluded even though before judgment, is a matter within the discretion of the trial court and will not be disturbed on appeal unless there has been a clear abuse of discretion. (See Weber v. Marine Cooks' & Stewards' Assn., 93 Cal. App. 2d 327 [208 P.2d 1009], and Gelberg v. Consolo, 51 Cal. App. 2d 516 [125 P.2d 74].) Defendant wanted the submission set aside to enable it to take the deposition of Heikes in Pennsylvania and use it on a further hearing. The ground of the motion was that the whereabouts of Heikes was not known and could not with reasonable diligence have been known, prior to the trial. Accompanying the notice of motion was the affidavit to the effect that Heikes had now been found in Harrisburg, Pennsylvania; that he would testify that he had ordered the printing of the directory from plaintiff, telling him he represented Peden who was having the printing done and would pay for it; that in September, 1950, plaintiff told Heikes that plaintiff knew that KDON was not responsible for the bill but that plaintiff was going to try to collect it from somebody; that they were unable to discover Heikes' whereabouts prior to trial; that on February 16 [fn. *] after the first day's trial, Baymiller inquired of the Salinas manager of the telephone company as to Heikes' last known telephone number and was informed that it was located in Santa Barbara and that certain phone calls from said number were unpaid for several months, among which calls was one to a number in Harrisburg; that Baymiller then placed calls to all of said numbers and upon calling the Harrisburg number found that it was that of Heikes' brother-in-law and that Heikes was there at the time and talked to Baymiller; that Heikes said he was unwilling to come to California but would give his deposition in Harrisburg. An affidavit was filed by one of plaintiff's attorneys to the effect that plaintiff was en route to the Caribbean; that plaintiff had advised affiant that at no time did he state that he would look solely to anyone but KDON for payment of his bill.
There is no question but that the testimony of Heikes would have been material and important. Nevertheless, we cannot say that the court abused its discretion in refusing to reopen the case to obtain his deposition. There was no showing of diligence by defendant in attempting to locate *485 Heikes prior to the trial. The affidavits merely state that his whereabouts was unknown to Peden, defendant and its attorneys, from whom alone inquiry appears to have been made. There is no showing of any diligent attempt before trial to locate Heikes. "It is not an abuse of discretion to refuse to set aside a submission for the taking of further testimony unless a good excuse is offered for the failure to produce the testimony before submission." (Kan v. Tsang, 90 Cal. App. 2d 538, 542 [203 P.2d 86].) There is no showing why Baymiller could not have made the same inquiry of the telephone company prior to the trial that he made during the trial. But even more important is the fact that prior to the end of the trial defendant and its attorneys had contacted Heikes, knew what he was willing to testify, and where he was, but did not call that fact to the attention of the court or ask for a continuance to obtain his deposition, until after the trial was concluded and plaintiff had gone to the Caribbean. This was a lack of diligence which justified the court in denying the motion filed two weeks after the submission of the case. While the record does not disclose whether the judge had intimated what his decision would be, it is significant that defendant having all the information concerning Heikes that it later set up in its motion to reopen, permitted the case to be submitted without giving the judge that information. (See Engstrom v. Auburn Auto. Sales Corp., 11 Cal. 2d 64 [77 P.2d 1059], where the motion to reopen was not made until after the court had indicated its probable ruling on a motion for a directed verdict.)
Winkler v. Winkler, 54 Cal. App. 2d 398 [129 P.2d 43], cited by defendant, where the reviewing court held that the trial court erred in not granting a continuance of the case for the testimony of the child of the parties, or, at least, a new trial upon the showing made by the "undenied affidavits" (p. 404), is readily distinguishable from our case. There were "peculiar circumstances here existing" (p. 404) which do not appear in our case.
4. Book Account
Defendant's contention that there is no evidence to support the finding that defendant became indebted to plaintiff on an open book account is based primarily upon its claim that there is no evidence to support the court's finding that the work was ordered by KDON. We have heretofore *486 pointed out that there is such evidence. Hence its contention falls. [10] Defendant contends that the fact that the signature "KDON Special Directory Account" on the check for $550 in part payment of the account was in typewriting, in some way was notice that the check was not sent in payment of a KDON obligation. This is a nonsequitur. Any reasonable person on seeing the check so signed would conclude that it was a payment of a KDON obligation. He would reasonably assume that the special directory account was simply a matter of intraoffice bookkeeping. The court's finding in favor of defendant on the account stated count is not necessarily a finding that defendant did not receive the bills sent it by plaintiff.
The judgment is affirmed.
Peters, P. J., and Wood (Fred B.), J., concurred.
NOTES
[fn. *] *. Defendant Salinas Newspapers, Inc., will be referred to herein as defendant.
[fn. *] *. Both parties state the trial commenced February 16. The transcript gives February 14 as the starting date. | 01-03-2023 | 10-30-2013 |
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