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https://www.courtlistener.com/api/rest/v3/opinions/1362791/ | 686 F. Supp. 354 (1988)
RAINBOW NAVIGATION, INC., Plaintiff,
v.
DEPARTMENT OF the NAVY, et al., Defendants.
Civ. A. No. 88-0992.
United States District Court, District of Columbia.
May 17, 1988.
Jeffrey Hunter Moon, Asst. U.S. Atty., Washington, D.C., for defendants; Richard Haynes, Daniel W. Wentzell, E. Duncan Hamner, Chaina Swedarsky, Alan W. Mendelsohn, Samuel Novello, Office of General Counsel, U.S. Dept. of the Navy, Washington, D.C., of counsel.
Karen Hastie Williams, Clifton S. Elgarten, Stuart H. Newberger, Crowell & Moring, Washington, D.C., for plaintiff.
Benjamin L. Zelenko, Martin Shulman, Landis, Cohen, Rauh & Zelenko, Washington, D.C., for intervenor Intern. Organization of Masters, Mates and Pilots.
OPINION
HAROLD H. GREENE, District Judge.
I
This is the third time that these parties have been before the Court with respect to similar controversies.[1]
*355 In October 1985, at the request of Rainbow Navigation, Inc. (Rainbow), the Court issued an injunction against the Department of the Navy, restraining Navy plans to deprive Rainbow of the preference granted to it by the Cargo Preference Act of 1904, 10 U.S.C. § 2631. It appeared that the Secretary of the Navy had determined that Rainbow's rates were "excessive and otherwise unreasonable"if true, a valid reason for denying it the otherwise available preference. But after briefing and hearing, the Court found that the Secretary's findings "were nothing more than an after-the-fact attempt to shore up a decision made on other grounds." Rainbow Navigation, Inc. v. Department of the Navy, 620 F. Supp. 534, 540 (D.D.C.1985). More specifically, the Court concluded that the Navy's determination was not based on Rainbow's freight rates but on "foreign policy, political, or geopolitical grounds." Id. at 541.
What had happened was that the Department of State, desirous of good relations with Iceland, an ally of the United States, gave in to entreaties from that nation for the recapture of the U.S. military cargo trade exclusively for Icelandic shipping interests.[2] The determinations, declarations, and representations made to the Court regarding Rainbow's allegedly excessive rates, it had turned out, not only were not borne out by the facts but were merely a pretext obscuring the real foreign policy purposes of our government.
Since Rainbow was not in violation of the Cargo Preference Act, and was entitled under law to the benefits of the Act, the Court issued an injunction which required the restoration of that company's preference with respect to the carriage of U.S. military supplies between this country and Iceland in accordance with the Act. The Court of Appeals, in an opinion by then Judge Scalia, affirmed this Court's decision. Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072 (D.C. Cir.1986).
While the issues regarding this Navy attempt to bypass the law were still in the courts, the Department engaged in yet a second subterfuge designed to elbow Rainbow out of the Icelandic trade. This time the Navy sought to dispense with Rainbow's services by a diversion of the cargo at issue to military aircraft. Government regulations provided that "the preferred method of transporting supplies for the Government is by commercial carriers," and that government aircraft may be used only "if ... they are available and not fully utilized...." 48 C.F.R. 47.101(b)(1). Once again, solemn declarations were submitted to the Court to the effect that all missions that carried cargo from Iceland to this country were scheduled there "for purposes other than the carriage of cargo back to the United States" and that "missions were not flown to [Iceland] for the purpose of picking up [such] cargo." This, too, was untrue.
The evidence showed that, after the then lawsuit was filed, a sharp increase occurred in the number of flights from Iceland to this country, and a corresponding decrease in the amount of cargo carried by Rainbow. The Court ultimately concluded that the Navy had once again taken steps unlawfully to squeeze Rainbow out of the Icelandic trade. Memorandum Order dated October 17, 1986.[3] This brings us to the current phase of the litigation.
II
On September 24, 1986, the United States and Iceland signed a treaty, including a memorandum of understanding (MOU),[4] regarding the same military cargo *356 route between the two countries that had been at issue previously.[5] That treaty provides for a competition between United States flag carriers and Icelandic shipping companies for the transport of military cargo between the two countries. The method by which the competition is to be carried out is described in the memorandum of understanding as follows:
Each competition shall result in contract awards to both an Icelandic shipping company and a United States flag carriers such that not to exceed 65 percent of the cargo shall be carried by the lowest bidder and the remainder shall be carried by the next lowest bidder of the other country....
Pursuant to the treaty and the MOU, a single competition was held in 1987 for the carriage of one year's worth of military cargo on the United States-Iceland route. Eimskip, an Icelandic concern, was the "lowest bidder," receiving 65%, and Rainbow took the remaining 35% as the "next lowest bidder." However, this year the Navy planned to change the process. Acting through the Military Sealift Command,[6] the Navy has announced that it intends to hold two separate competitions, separately pricedone competition for the 65% of the cargo, the other, a separate competition, for the remaining 35% of the cargo.[7] Had Rainbow[8] not filed this action to stop the procurement as violative of the treaty, the MOU, and the Administrative Procedure Act, the Navy would have awarded contracts for the two portions of the cargo carriage on April 25, 1988.[9] However, since April 15, 1988, the Navy has been under a temporary restraining order enjoining it from proceeding with the 1988 procurement in the manner planned.
III
Before the Court can reach the substance of Rainbow's complaint, it must address the Navy's threshold defensesthat Rainbow lacks standing to sue, that the Court has no jurisdiction, and that sovereign immunity bars the action. None of these defenses has merit; only the standing issue deserves extended discussion.
The Navy suggests that Rainbow lacks standing because neither the treaty nor the MOU expressly grants a private right of action.[10] However, the absence of *357 an express grant is not determinative. When a treaty is not explicit on the question whether it is of its own force a part of United States domestic law, a court must interpret it to effectuate the intent of the signatory parties.[11]
As the Court of Appeals for this Circuit concluded in Diggs v. Richardson, 555 F.2d 848, 851 (D.C.Cir.1976); and Cardenas v. Smith, 733 F.2d 909, 918 (D.C. Cir.1984),[12] the language of a treaty may manifest an intent by the signatories that it be or not be self-executing, and if the language is uncertain, resort may be had to the circumstances surrounding the treaty's execution to ascertain that intent. Id.[13] A court interprets a treaty as self-executing unless "the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation, or in those rare cases where implementing legislation is constitutionally required."[14] Applying these standards, the Court has no difficulty concluding that the United States-Icelandic treaty does not require implementing legislation.[15]
In the first place, the government has offered no evidence to rebut the presumption (see text to note 14, supra) that the Iceland treaty was intended to be effective as domestic law. That alone should end the matter. But there is also ample positive evidence of the self-executing nature of the treaty.
The language of the treaty itself suggests that it was intended to operate of its own force upon ratification. Article I declares that cargo transportation services "shall be provided" on the basis of a competition between United States and Iceland shipping companies which will "ensure" the continued well-being of shippers from each country. Since the subject of the treaty is U.S. military cargo, it is implicit that the United States contracting authority would carry out the competition. This understanding is borne out by the terms of the MOU which explicitly refer to the United States contracting authority.[16]
Similarly, the treaty goes on to state in Article IV that the "provisions of this Treaty and any implementing arrangements concluded pursuant to Article I shall apply notwithstanding any prior inconsistent law or regulation of the United States of America...." Thus, the treaty mandates in terms that, for domestic law purposes, it displaces existing American law.
Perhaps even more significant than the treaty language are the representations made by Executive Branch officials to the United States Senate in connection with the ratification proceedings. These statements, discussed below, clearly support the interpretation that rights would vest without further legislation, for the officials represented to the Senate that if ratified, the treaty would protect the existing U.S.-flag presence on the United States-Iceland route.[17]
*358 Thus, at the hearings on ratification of the treaty, the Honorable Edward J. Derwinski, Counselor of the Department of State, with Rear Admiral Walter T. Piotti, Jr., Commander of the Military Sealift Command, at his side, assured the Senate that he agreed with the statement by American maritime organizations of which the following paragraph is a part:
The Administration must further assure that the Treaty, if ratified, will be implemented in such a fashion that the existing United States-flag service in the Iceland trade will not be disadvantaged. In other words, the United States-flag presence and the maritime employment will be maintained just as if the 1904 Act were fully in effect in the Iceland trade.[18]
Similarly, on the question as to how the treaty would affect Rainbow, the only U.S.-flag carrier on that route, Senator Mathias asked and Mr. Derwinski replied:
SENATOR MATHIAS: What about the current American flag carrier? Are there any plans in effect to save harmless the current cargo carrier that is now carrying supplies to the [U.S.] military base in Iceland?
DERWINSKI: My understanding is that the current carrier has been involved in a number of discussions with appropriate authorities, and despite the fact that we could not provide, obviously, within the treaty for specific protection for an entity, we did have in mind at all times the need to protect the interests of the current carrier (emphasis added).[19]
Relying in part upon these representations, the Senate Foreign Relations Committee recommended that the Senate ratify the treaty. In fact, the Committee stated in its report to the full Senate that advice and consent were being conditioned upon three assurances given by the Departments of State and Defense, one of them being that
the treaty will be implemented in such a way that the existing United States-flag service in the Iceland trade would not be disadvantaged as a result of the Treaty. The Committee received these assurances at its hearing and recommends advice and consent on that basis only.[20]
Two days after the Committee Report was issued, and on the day the Treaty was ratified, Senator Pell repeated this condition of ratification on the Senate floor.[21]
This history clearly shows that the Senate was concerned about protecting the interests of the current American carrier;[22] that to give meaning to that concern, it intended the treaty to provide that protection without further requirements; and that the Executive Branch agreed.
By even raising the standing issue, the Navy is adding to its pattern of false representations discussed in Part I, supra. Having assured the Senate that the treaty would not disadvantage the "existing United States flag service ... [and that] United States presence and the maritime employment will be maintained" as under the Cargo Preference Act, the Navy is now arguing through its counsel that this assurance is meaningless unless new implementing legislation is first enacted. No mention *359 appears to have ever been made to the Senate or its committee regarding implementing legislation or the need therefor, and the Administration has never proposed such legislation.
The Court concludes that the Iceland treaty is self-executory and that Rainbow and the Union have standing to bring this action.
As to the other threshold defenses advanced by the Navy, they either fall away upon the determination that the treaty is self-executing or they are otherwise unfounded. The Navy protests that the Court lacks subject matter jurisdiction over Rainbow's claims, but according to 28 U.S. C. § 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under ... treaties of the United States." See also U.S. Const. Art. VI Cl. 2. And it is of course well established that the review provision of the Administrative Procedure Act, 5 U.S.C. § 502, waives sovereign immunity for injunction actions.[23]
IV
The Court now turns to the merits of Rainbow's complaint and its request for a preliminary injunction.[24] Rainbow alleges that the 1988 Navy procurement for the United States-Iceland route is contrary to the language and the purposes of the memorandum of understanding. The Navy's answer is that two competitions between American and Icelandic shippers are permitted by the treaty and MOUone competition for 65% of the cargo, and a second competition for 35% of the cargo. In the opinion of the Court, that construction of the treaty and the MOU is untenable.
The language of the MOU[25] is straightforward and unmistakable:[26]
... Each competition shall result in contract awards to both an Icelandic shipping company and a United States flag carrier such that not to exceed 65 percent of the cargo shall be carried by the lowest bidder and the remainder shall be carried by the next lowest bidder of the other country ... (emphasis added).
Thus, according to the MOU, for any given shipment period, there is to be a single competition dealing with 100% of the cargo. At each such competition, the Navy awards up to 65% of the cargo to the lowest biddera shipper from either country and the remainder, 35% of the cargo or more[27] to the next lowest biddera shipper from the other country.
However, under the Navy's construction of the MOU, and under the awards procedure *360 it contemplates, the "next lowest bidder" will never receive any portion of the contract. That result is achieved by having two competitions rather than one: once the lowest bidder from one country wins the contract for 65% of the cargo, instead of the remainder going to the next lowest bidder, a second competition is held for that remainder at which, again, the lowest bidder prevails. With respect to neither competition will the "next lowest bidder" even be considered; it would have to be the lowest bidder in the second competition to receive any portion of the contract.[28] The language in the MOU referring to the "next lowest bidder" is simply disregarded and given no effect.
The language of the MOUwhich the Court finds to be unambiguous in its support of Rainbow's positionis further buttressed by the construction placed thereon by the Secretary of Defense himself. Secretary Carlucci wrote as follows on March 25, 1988 to Senator Lugar of Indiana, a member of the Committee on Foreign Relations:[29]
The treaty and implementing memorandum of understanding foster competition between U.S. and Icelandic flag carriers for 100 percent of the cargo transported by sea between Iceland and the United States for purposes of the 1951 Defense Agreement between the two countries. The overall low bidder is awarded 65 percent of the cargo and the low bidder of the other country is awarded the remaining 35 percent. This is how the existing contracts were awarded.
Thus, the Secretary concluded that the MOU requires a single competition in which the contestants bid for 100% of the cargo, and that the "overall low bidder" wins a contract to carry 65% of the cargo, while the "remaining 35 percent" goes to the low bidder from the other country precisely as Rainbow asserts. Any still remaining doubt is allayed by the Secretary's reference to a continuation of the method by which the existing contracts were awarded. Those (1987) contracts were, of course, awarded precisely on the basis of the interpretation of the MOU urged upon the Court by Rainbow.
V
Rainbow and its seamen have an extremely strong likelihood of success on the merits. These parties also stand to be irreparably harmed if the procurement is not enjoined. As concerns Rainbow, its business would in all likelihood have to be shut down; as regards the Union, its members employed by Rainbow will lose their jobs. Indeed, the Court is persuaded, on the basis of the evidence before it, that Rainbow cannot secure alternate shipping business and that, in view of the depressed nature of the American merchant marine, its seamen are unlikely to find new employment.
By issuing a preliminary injunction, the Court preserves the status quo between the parties.[30] And, in view of the existence of present arrangements, there will be no interruption of the delivery of the cargo and thus no injury to the public interest or to the defendants.
VI
As indicated, the recent events connected with implementation of the treaty represent the third time that the Navy has attempted to eliminate Rainbow, a small American-flag shipper, from the Icelandic trade. In 1985, the Navy announced and assured the Court that Rainbow had to be disqualified from a cargo preference because its rates were excessive. Upon examination, it was found that this was untrue and that the real reason for the attempted disqualification was the Department of State's plan to permit Icelandic *361 shippers to regain their monopoly with respect to that trade. In 1986, the Navy assured the Court that Rainbow's services could be dispensed with because military aircraft which were flying by way of Iceland anyway could perform Rainbow's role. Upon inquiry, it became apparent that, contrary to the Navy's assurances and contrary to binding regulations, military air-craft were capable of taking on that role only if they were diverted from their normal duties.
Now the Navy is attempting to eliminate Rainbow once again, this time under the treaty with Iceland. The present effort is as disingenuous as the other two. The construction of the memorandum of understanding adopted by the Navy is contrary to the ordinary meaning of the language contained in that document. It is contrary also to the assurances given by Mr. Derwinski and Rear Admiral Piotti, Jr., to the Senate Committee on Foreign Relations when the treaty was before that committee for ratification. And it is contrary, finally, to an interpretation of the treaty announced just two months ago by Secretary of Defense Carlucci himself.
The Court understands that Iceland is a staunch ally of the United States, and it sympathizes with the efforts of our government to satisfy the demands of that nation. But this may not be done at the expense of one of the few remaining American-flag vessels of our merchant marine and the few remaining American seamen who have found employment there. More particularly, this may not be done in violation of American law, of the language and purpose of a treaty, and of the solemn representations made to the United States Senate in connection with the ratification of that treaty.
The Court has accordingly, once again, enjoined the Navy's attempt to put Rainbow out of business.
NOTES
[1] The parties are the Department of the Navy and some of its officials, Rainbow Navigation, Inc., the International Organization of Masters, Mates & Pilots (the Union), and Iceland Steamship Co., Ltd. (Eimskip). Eimskip is before the Court for the first time in the current phase of the litigation.
[2] Rainbow may be the only effective competitor of the Icelandic shippers.
[3] Partial Summary Judgment was granted to Rainbow as it had requested.
[4] Treaty between the United States of America and the Republic of Iceland to Facilitate their Defense Relationship, with related Memorandum of Understanding, September 4, 1986. The United States Senate ratified the treaty and memorandum of understanding on October 8, 1986.
[5] Before the treaty was signed and ratified, the Navy proposed a regulation that, as the Senate recounted in its report on the treaty, "purported to interpret the `excessive or otherwise unreasonable' provision in the 1904 [A]ct, but that would have, in effect, given the Secretary of the Navy the discretion to waive the [A]ct at any time." S.Rep. No. 27, 99th Cong., 1st Sess. 3 (1986). This appears to have been yet another attempt to oust Rainbow from the Icelandic trade route.
[6] The Military Sealift Command is the United States contracting agency responsible for procurements for the United States-Iceland military cargo sea route.
[7] The Request for Proposals for these competitions was issued on March 25, 1988. In addition to holding two competitions instead of one, other changes in the RFP included that all the cargo would be charged on a straight freight basis (rather than permitting the carrier of the 35% to use a time charter), that vessel specifications would no longer be required, that the Icelandic port of destination would be Rekjavik, much farther from the U.S. military base than Njardvik, that there would be no established schedule for travel, and that there would be no small business set aside. Rainbow complains about these changes as well, but the Court need only rest its preliminary injunction on the Navy's violation of the treaty and MOU.
[8] While the Court herein generally refers for the sake of convenience only to Rainbow on the plaintiffs' side of this litigation, the Union has intervened; it is proceeding on the basis of the same arguments as those made by Rainbow; and it is entitled to the same benefits flowing from the Court's orders. See note 1, supra.
[9] None of the changes from the 1987 requirements (see note 7, supra) may become effective if their purpose or effect would be to interfere, directly or indirectly, with the preliminary injunction or the Rainbow and Union rights recognized herein.
[10] In the Administrative Procedure Act, Congress conferred the right of judicial review upon any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. Potential and actual government contractors have standing to proceed in district court to challenge a procurement under the Administrative Procedure Act. Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 861-873 (D.C.Cir.1970).
[11] Restatement (Second) of Foreign Relations § 154 (1965).
[12] See also People of Saipan v. Department of Interior, 502 F.2d 90, 97 (9th Cir.1974).
[13] Reference by courts to contextual factors surrounding a treaty in order to determine whether it is self-executing occurred even in the politically charged atmosphere of Iranian seizures of property and a suit a against a foreign government. See American International Group v. Islamic Republic of Iran, 493 F. Supp. 522 (D.D.C. 1980).
[14] Restatement (Second) Foreign Relations (Revised) Tentative Draft No. 1 (1980) § 131.
[15] Were the treaty not to be read as self-executing, it would not become part of United States domestic law. As a result, Rainbow presumably could sue for relief under the Cargo Preference Act. However, that was not the intent of the two governments when they signed the treaty.
[16] As Article I is written, the United States may not qualify or modify the obligations placed upon it by the treaty through legislation or administrative regulation. See British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153, 1161 (D.C.Cir.1981).
[17] The Department of Justice disavowed in court the representations made by the Navy and the Department of State to the Senate during treaty ratification proceedings as merely "precatory" and "non-binding." Hearing on Rainbow's motion for a temporary restraining order, April 15, 1988. This position is disturbing since it undercuts the foundation upon which Senate ratification was based, at least in part. As Professor Henkin recently testified:
The President can only make a treaty that means what the Senate understood the treaty to mean when the Senate gave its consent ... The Senate's understanding of the treaty to which it consent is binding on the President. He can make the treaty only as so understood. He cannot make the treaty and insist that it means something else ... the Constitution clearly implies[] that it is what the Senate understands the treaty to mean that is what the treaty means for purposes of its consent.
The ABM Treaty Interpretation Resolution, Report of the Committee on Foreign Relations United States Senate, S.Rep. No. 164, 100th Cong., 1st Sess. 49 (1987). See also Restatement (Second) Foreign Relations Law of the United States (Revised), Tentative Draft No. 6 (1985), § 314, comment d and § 314(2).
[18] United States-Icelandic Treaty on the Carriage of Miliatry Cargo: Hearings on the Treaty Before the Comm. on Foreign Relations, 99th Cong., 2nd Sess. p. 9 (1986).
[19] Id. at 11.
[20] S.Rep. No. 27, supra, note 5.
[21] 132 Cong.Rec. S15661 (daily ed. October 8, 1986).
[22] As this discussion illustrates, Rainbow has standing since it could hardly be more directly within the "zone of interests" protected by the treaty.
[23] See Warin v. Director, Department of Treasury, 672 F.2d 590, 591-92 (6th Cir.1982); Neal v. Secretary of Navy, 639 F.2d 1029, 1036-37 (3d Cir.1981); Jaffee v. U.S., 592 F.2d 712, 717-719 (3d Cir.1979); Beller v. Middendorf, 632 F.2d 788, 796-97, 799 (9th Cir.1980).
[24] To prevail on a motion for a preliminary injunction, Rainbow must show (1) that it has a substantial likelihood of prevailing on the merits; (2) that it will be irreparably harmed if an injunction is not granted; (3) that the interests of all affected parties are properly balanced by the said relief; and (4) that the public interest is clearly served by the issuance of an injunction. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977); Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.1958).
[25] An MOU is an international executive agreement which must be interpreted according to the principles applicable to treaties. Air Canada v. U.S. Department of Transportation, 843 F.2d 1483, 1486 (D.C.Cir.1988). The general rule in interpreting treaties is:
The clear import of treaty language controls unless "application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories."
Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S. Ct. 2374, 2377, 72 L. Ed. 2d 765 (1982), quoting Maximov v. United States, 373 U.S. 49, 54, 83 S. Ct. 1054, 1057, 10 L. Ed. 2d 184 (1963).
[26] "An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its objects and purpose." Restatement of the Law (Second) Foreign Relations Law of the United States (Revised), Tentative Draft No. 6 (1985), § 325(1). This same rule of interpretation is prescribed by the Vienna Convention of the Law of Treaties Article 31(1). S.Exec.L. 92d Cong., 1st Sess. (1971), 8 I.L.M. 679. As the State Department has noted, "the Convention is already recognized as the authoritative guide to current treaty law and practice." Id.
[27] More than 35% of the cargo will be so awarded if the lowest bidder takes less than 65%.
[28] Rainbow claims that, for a variety of reasons, it will not be able to compete effectively under the Navy's two-competition system, and the Court is persuaded on the basis of the evidence available at this juncture, that this representation is correct.
[29] Secretary Carlucci's letter was attached to the Union's motion for preliminary injunction.
[30] Rainbow will continue to carry its share of the cargo under the 1987 procurement, and so will Eimskip, the Icelandic carrier. The Court takes no position on the issue of how Eimskip should be paid for transporting its 65% of the cargo during the period of this injunction. That is a matter for resolution between the Navy and Eimskip. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363038/ | 470 F.Supp. 520 (1979)
Stanley D. NEWMAN, Lloyd H. Cooper, Michael A. Beylotte, James B. McNamara, Robert J. Huntsman, Benjamin Gutierrez, and David Bean, Plaintiffs,
and
Netco Towing Company, Limited, John C. Townsend, the United States of America, Anchorage Marine Services, Inc., and Spencer Robinson, Plaintiffs in Intervention,
v.
The VESSEL LADY ARNNETTE, Sometimes Known as Captain "D", her engines, tackle, apparel, etc. in rem
and
Detco Towing Inc., a South Carolina Corporation, Arnnette Detyens and William J. Detyens, Jr., in personam, Defendants.
Civ. A. No. 78-1073.
United States District Court, D. South Carolina, Charleston Division.
April 26, 1979.
*521 *522 A. Arthur Rosenblum, Barry I. Baker, Stephen E. Darling, Gordon D. Schreck, Charleston, S. C., for plaintiffs.
ORDER
BLATT, District Judge.
This admiralty action was initiated by seven seamen, who filed a Complaint for seamen's wages on June 29, 1978. The Complaint named as defendants the vessel Lady Arnnette, sometimes known as the Captain "D", in rem, and Detco Towing, Inc., Arnnette Detyens, and William J. Detyens, Jr. in personam. The Court subsequently authorized and directed the U.S. Marshal to seize the vessel and to transfer custody and possession of the vessel to William J. Detyens, Senior, who was appointed substitute custodian of the vessel.
A timely Motion to Intervene was filed by the United States of America on behalf of the Maritime Administration of the U.S. Department of Commerce. Because the United States demonstrated an interest in the vessel the protection of which would be impaired by an unconditional judicial sale of the vessel, and since that interest was not adequately represented by the original parties, the United States was permitted to intervene in the action in accordance with Rule 24 of the Federal Rules of Civil Procedure.
Four other parties similarly have intervened as Plaintiffs in this action, and present monetary claims against the Defendants. Netco Towing Co., Ltd. advances a maritime claim against Defendants for salvage. Anchorage Marine Services, Inc. and Spencer Robinson were permitted to intervene on the basis of their maritime claims for supplies and services furnished upon the credit of the vessel. John C. Townsend advances the sole non-maritime monetary claim against Defendants, for unpaid wages.
With its Motion to Intervene the United States filed a Complaint and a Motion for Summary Judgment praying that, should the vessel be sold by order of this Court, it be sold subject to those terms and conditions *523 under which the Vessel had originally been sold by the United States. Upon consideration of the pleadings and the papers submitted by the United States, and after hearing counsel for the respective parties, the Court has determined that there is no genuine issue of material fact pertaining to the particular claim of the United States and that the United States is entitled to judgment as a matter of law. The Court, therefore, makes the following findings of fact and conclusions of law and orders that the Motion for Summary Judgment of the United States be granted and that the vessel be sold subject to the terms and conditions required by the United States as more fully set forth herein.
Findings of Fact:
1. The Oil Screw Lady Arnnette is registered with the United States Coast Guard as the Captain "D", Official Number 566594 (hereafter referred to as the Vessel). Originally the U.S.S. Reindeer (ATA-189), a U.S. Navy ocean tug, the Vessel was built in 1944, is approximately 143 feet in length, with a 34 foot beam and a 13 foot draft, of 610 tons displacement, and powered by a 1500 SHP diesel.
2. The Vessel was sold from the National Defense Reserve Fleet by the Maritime Administration of the U.S. Department of Commerce (hereafter referred to as MarAd). MarAd's standard operating procedure in ship disposals, and the one followed in disposing of the subject Vessel, is to select the vessels for sale, publish an invitation for bids, receive and publicly open the bids, evaluate the bids for responsiveness to the invitation and suitability of price, and make the award of the vessel (accepting the bid).
3. Vessels scheduled for disposal from the National Defense Reserve Fleet are only offered for sale under two conditions. Bids may be submitted by prospective buyers under either of these two conditions, at the bidder's option. Condition 1, known as the nontransportation use condition, provides that the buyer shall not use or operate the ship's hull, superstructure, or any structural component thereof, nor cause or permit same to be used or operated, as a means of or in aid in the transporting of passengers or cargo. Condition 2, known as the scrapping condition, requires that the buyer shall, within twenty-four months of the date of delivery, scrap the hull of the ship within the United States of America.
4. Since the National Defense Reserve Fleet ship disposal program began to operate in its current form in July, 1957, some two thousand two hundred and ninety-one (2,291) vessels have been sold encumbered by Conditions 1 or 2, three hundred and twenty-three (323) of which involved Condition 1 restrictions (approximately fourteen (14) percent). At present ninety-four (94) vessels in the National Defense Reserve Fleet are considered "nonretention" ships. In addition, MarAd is aware of some five (5) more vessels outside the reserve fleet scheduled for disposal within a year. All of these vessels will be sold by MarAd pursuant to Conditions 1 or 2, according to the bidder's option. All vessels sold from the National Defense Reserve Fleet would command substantially higher prices were it possible for MarAd to sell them without restrictions.
5. The Vessel subject to the present action was included in MarAd's Invitation for Bids No. PD-N-985, dated September 20, 1974. The original purchaser, Arctic Seafood Corporation of Miami, Florida, bid $16,666.66 for the Vessel under Condition 1, nontransportation use. This offer was accepted by MarAd on November 15, 1974, and the agreement was designated MarAd Contract No. MA-7621. The Invitation for Bids, with all the terms and conditions thereof, was expressly incorporated by reference into the Contract.
6. Conditions 1 and 2 were prominently featured in the Invitation for Bids, immediately under the caption. Condition 1, nontransportation use, was again discussed in Part IX (E) of the Invitation for Bids, while Condition 2, the scrapping condition, is found as Part IX (F).
7. Part IX (M) of the Invitation for Bids further provided that the buyer shall neither *524 sell nor assign any of its rights or obligations under the Contract, nor resell any ship purchased, without prior written consent of MarAd. Part IX (N) further provides that all the covenants, stipulations, and agreements contained in the Contract are and shall be binding upon the respective heirs, administrators, executors, successors and assigns, if any, of the buyer and of MarAd.
8. The Bill of Sale, also dated November 15, 1974, recited that title to the Vessel was being transferred pursuant to the terms and provisions of the Contract of Sale and the Invitation for Bids, and explicitly recognized, among other things, a provision that the buyer shall not use or operate, or permit the use or operation, of the Vessel as a means of or in aid in transporting passengers or cargo. The Bill of Sale was filed with the U.S. Coast Guard and became a document of public record.
9. By letter dated March 31, 1975 Arnnette C. Detyens requested MarAd's permission to purchase the Vessel and assume all the terms and conditions of Contract No. MA-7621 under Condition 1, nontransportation use. Her stated intent was to use the Vessels as a fire fighting vessel to be operated within U.S. waters.
10. By Amendment No. 1 to Contract No. MA-7621, dated April 3, 1975, MarAd consented to the sale of the Vessel by Arctic Seafood Corporation to Arnnette C. Detyens. The transferee Arnnette C. Detyens agreed to be fully liable, obligated and responsible for the faithful performance of all the terms and conditions of the Invitation for Bids and the Contract of Sale, that the Vessel would be used for nontransportation purposes only, and that the Vessel would not be sold or otherwise transferred without the prior approval of MarAd. The Bill of Sale from Arctic Seafoods Corporation to Arnnette C. Detyens again specifically recited that the Vessel was not to be used as a means of transporting passengers or cargo. This Bill of Sale was also filed with the U.S. Coast Guard, and remained available for public inspection.
11. By letter dated May 6, 1975, Arnnette C. Detyens assured MarAd of her understanding of the manner in which the Vessel might be used in conformance with the terms of the sale. She indicated that she planned to charter the Vessel to Detco Towing, Inc. for use as a fire fighting vessel. In this letter she guaranteed that anyone to whom she chartered the vessel would understand the terms of the Contract, and she accepted full responsibility for any violations of the Contract.
12. By letter dated July 21, 1975, Ms. J. C. Fernanders, Chief of MarAd's Fleet Disposal Branch, indicated to Arnnette C. Detyens that MarAd had information to the effect that the Vessel had been used on several occasions for the transportation of cargo. By letter dated August 12, 1975, John C. Townsend, then Ms. Detyens' attorney, admitted certain violations and explained that Ms. Detyens was prepared to accept full responsibility for the violations. By letter of November 12, 1975, J. C. Fernanders assessed liquidated damages in the amount of $6,000 for breach of contract. These damages were assessed in accordance with the formula included in the Invitation for Bids. In order that the sum be payable in installments, a cognovit note was signed by Arnnette C. Detyens and her husband William R. Detyens (also known in this action as William J. Detyens, Jr.) on July 12, 1976. The note confessed the violations and promised payment of the full amount of liquidated damages.
13. On June 29, 1978, the Complaint for seamen's wages was filed in this Court, and a warrant for the arrest of the Vessel by the U.S. Marshal was issued on the same date. On July 3, 1978, the U.S. Marshal was directed to transfer custody and surrender possession of the Vessel to William J. Detyens, Senior, who was appointed substitute custodian of the Vessel.
Conclusions of Law:
I.
Rule 56(c) of the Federal Rules of Civil Procedure provides for the immediate rendition of a judgment in the event that the *525 matters considered by the Court on a motion for summary judgment disclose that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The instant case, where the United States of America as Plaintiff in Intervention has presented an issue of law relating to one aspect of the case, is particularly appropriate for summary judgment. The factual background is not complex, and consists entirely of uncontroverted signed documents such as contracts, letters and reports setting forth the chain of events leading to the intervention of the United States, and documents of public record such as Bills of Sale, federal statutes and Congressional reports. The legal issues are thus completely isolated by the documentary evidence presented. Where, as here, the facts are clear and no genuine issue of material fact underlying the particular claim of the United States as Plaintiff in Intervention remains for trial, the rule providing for summary judgment should control. Kotmair v. Grey, 505 F.2d 744 (4th Cir. 1974); Kendall Elevator Co. v. LBC & W Associates of South Carolina, Inc., 350 F.Supp. 75 (D.S.C. 1972).
II.
The National Defense Reserve Fleet was established under authority of section 11 of the Merchant Ship Sales Act of 1946 (Sales Act), 50 U.S.C.App. § 1744. Unless otherwise provided by law, all vessels placed in the reserve fleet are required by the Sales Act to be preserved and maintained by MarAd for the purpose of national defense. The Sales Act provides that a vessel placed in the reserve fleet shall in no case be used for any purpose whatsoever. The only exception to this prohibition is that any National Defense Reserve Fleet vessel may be used for the account of any agency or department of the United States during any war or national emergency where the emergency power of the President to requisition privately owned vessels is activated.
Originally, section 11 of the Sales Act permitted unrestricted use by the federal government during war or national emergency, Ch. 82, 60 Stat. 41 (1946). The Senate report states that ". . . one of the objectives of this legislation is the establishment of an inactive merchant vessel reserve only available for security needs, but frozen so far as commercial use is concerned, except in situations where the requisition power of the United States may be invoked. . . ." S.Rep.No. 807, 79th Cong., 1st Sess. 21 (1945). The Senate report further indicates that ". . . those vessels which are of no substantial utility now or in the future are to be scrapped under a continuing scrapping program which will include the retirement of tonnage as it becomes of no real utility for a modern merchant marine or for national security. In this connection it may be stated that the committee has recognized the desirability of establishing and maintaining a ship-breaking industry in this country and the desirability of encouraging the maintenance of key shipyards and key personnel essential to an efficient, modern shipbuilding industry." Id., at 5. The House report substantially repeats the Senate report, H.R.Rep.No. 831, 79th Cong., 1st Sess. 13 (1945).
In 1950 section 11 of the Sales Act was amended to its present form, where the federal government's power to use vessels under national emergency conditions is restricted to inter-agency transfers, thus ending the use of government vessels for commercial operations of any kind. Ch. 427, 64 Stat. 308 (1950). The House report to the amending legislation stated that the changes were made "[i]n order to avoid competition by Government-owned ships with privately owned ships and to encourage new construction and continued development of a modern and well-balanced fleet . . .." H.R.Rep.No. 2353, 81st Cong., 2d Sess. 5 (1950), U.S.Code Cong. & Admin. News 1950, pp. 2653, 2657. The Senate report is to the same effect, S.Rep.No. 1783, 81st Cong., 2d Sess. 4 (1950). It is thus apparent that in addition to restraining competition by the federal government with private ship operators, Congress was also concerned with maintaining the shipbuilding *526 and ship scrapping industries, and promoting new construction and development of the U.S. flag merchant fleet, which objectives would not be served by the availability of previously constructed and technologically dated reserve fleet vessels.
Two statutory provisions in title V of the Merchant Marine Act of 1936, as amended (the 1936 Act), govern MarAd's authority to dispose of surplus reserve fleet vessels. They are sections 508 and 510(j) (46 U.S.C. §§ 1158 and 1160(j)). Section 508, which has not been amended in any relevant respect since its original enactment, provides that vessels acquired by MarAd which are determined to be of insufficient value for commercial or military operation to warrant their further preservation may be sold for scrap or for operation provided such operation is not in competition with any other U.S. flag vessel in foreign commerce owned by a U.S. citizen. Section 510(j), which amended the 1936 Act in 1965, provides that all vessels acquired by MarAd shall be placed in the National Defense Reserve Fleet, and shall not be traded out or sold except as provided in sections 510(g) and 510(i) of the 1936 Act (46 U.S.C. §§ 1160(g), 1160(i)). Section 510(g) prohibits the use of obsolete reserve fleet vessels for commercial operation by the Government, and section 510(i) relates to an exchange program whereby MarAd is authorized to acquire modern vessels in exchange for obsolete reserve fleet vessels to be scrapped. Section 510(j) further qualifies its limitation on vessel disposal by providing that existing authority to dispose of vessels provided by other sections of title V or by titles VII or XI of the 1936 Act is not to be affected. Section 508 is the only other vessel disposal authority in title V, and no authority provided by titles VII or XI is relevant to the present inquiry.
MarAd has construed the Sales Act together with the vessel disposal authority provided by the 1936 Act. MarAd considers that the broad language of section 508 has been qualified by later legislation, and that Congress has imposed on the agency an unequivocal mandate to the effect that vessels placed in the reserve fleet shall not be sold for use or operation in competition with other vessels privately owned by U.S. citizens. The agency views its interpretation as consistent with the further Congressional purpose of maintaining the ship-breaking industry and stimulating shipbuilding and the development of a modern, well-balanced merchant fleet.
MarAd designed the reserve fleet vessel disposal program to conform with its perception of the Congressional mandate. The agency considers that, absent the enactment of a private law, the relevant statutes authorize only the following types of sales of obsolete reserve fleet vessels:
(a) Sales for complete scrapping in the United States,
or
(b) Sales for use or operation other than as a means of transporting passengers or cargo.
MarAd's vessel disposal program further requires that all purchasers agree not to resell any ship purchased without the prior written consent of MarAd, and that all the covenants, stipulations and agreements contained in the Contract of Sale and Invitation for Bids are and shall be binding on the purchaser's heirs, administrators, executors, successors and assigns. This vessel disposal program has existed in this current form since July 1957.
This consistent and long-standing interpretation of the relevant statutes by MarAd, the executive agency delegated the statutory responsibilities for reserve fleet vessel disposal, is entitled to great respect by the Court in construing the relevant statutes, and should be followed unless there are compelling indications that it is wrong. E. g., Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977). This principle has been applied to MarAd's interpretation of other provisions of the 1936 Act in American Maritime Assoc. v. Stans, 329 F.Supp. 1179 (D.D.C.1971), aff'd 157 U.S.App.D.C. 394, 485 F.2d 765 (1973). In *527 the case at hand, the Court finds no such compelling indications that MarAd's interpretation of its delegated vessel disposal authority is wrong.
MarAd's interpretation of its vessel disposal authority is further supported by the fact that the administrative program offering outdated reserve fleet vessels for scrapping or nontransportation use has existed since 1957, while the Merchant Marine Act of 1936 was substantially reenacted in 1970, 84 Stat. 1018. The U.S. Supreme Court has stated as a general principle that a long-standing administrative interpretation applying to a substantially reenacted statute is deemed to have Congressional approval and hence the force and effect of law, C. I. R. v. Noel's Estate, 380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965). Although this principle is more persuasive when it can be demonstrated that Congress was aware of the administrative construction at the time of the reenactment, Mitchell v. C. I. R., 300 F.2d 533 (4th Cir. 1962), Congressional awareness may be presumed where, as here, the administrative construction is consistent and long-standing, Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), particularly when Congress has shown specific and repeated interest in the administratively construed sections prior to the reenactment.
In the lone instance where MarAd deviated from its established vessel disposal program, Congress was quick to close the perceived "loophole" in the pertinent statute. Section 510(j) of the 1936 Act was enacted as P.L. 89-254 in 1965 for that reason. The House report accompanying the bill addressed a MarAd plan to sell certain vessels on a stripped-down basis for use as barges. The House report indicated that sale of reserve fleet vessels even for such limited use and operation would be ". . . directly contrary to the intent of Congress when it established the reserve fleet under the Merchant Ship Sales Act of 1946 and provided that, except as otherwise expressly permitted, such vessels could not be disposed of. To close this loophole your committee has amended section 510 of the 1936 Act by adding a new subsection (j) . . .." H.R.Rep.No. 597, 89th Cong., 1st Sess. 3 (1965), U.S.Code Cong. & Admin. News 1965, pp. 3562, 3564. The U.S. Supreme Court has frequently recognized that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight, e. g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974); Red Lion Broadcasting Co. v. FCC, supra; FHA v. Darlington, Inc., 358 U.S. 84, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958), and it is accorded such weight by this Court.
Congress specifically acknowledged that MarAd's vessel disposal program properly construed the statutes in question in 1977. Private Law 95-20 authorized MarAd to sell two obsolete reserve fleet vessels for conversion and operation as transportation and processing ships in the fisheries of the United States. The committee reports explicitly endorsed MarAd's construction of the relevant vessel disposal statutes, and concluded that special legislation such as Private Law 95-20 would be required for sale of any reserve fleet vessel for use or operation. H.R.Rep.No. 95-784, 95th Cong., 1st Sess. 2 (1977); S.Rep.No. 95-314, 95th Cong., 1st Sess. 2 (1977).
In light of the above analysis, the Court finds that Congress has repeatedly and consistently demonstrated the legislative purpose fulfilled by the reserve fleet vessel disposal program, and has clearly indicated the parameters within which that program is to function. MarAd's determination that, absent the enactment of a private law, the relevant statutes authorize sale only for scrapping or for nontransportation use of such reserve fleet vessels as are found to be of insufficient value for commercial or military operation to warrant their further preservation is fully supported by those statutes and will not be disturbed by the Court.
It was in the context of this Congressionally mandated vessel disposal program that MarAd offered the subject Vessel for sale for scrapping or for nontransportation use. The Vessel was in fact sold under Condition *528 1, nontransportation use. The facts reveal beyond question that both the original purchaser, Arctic Seafood Corporation, and the subsequent purchaser, Arnnette C. Detyens, understood the nature of the condition barring use or operation of the Vessel as a means of transporting passengers or cargo. Indeed, the record shows that where uncertainty even appeared to exist, the Chief of MarAd's Fleet Disposal Branch personally explained the nature of the condition. All pertinent documents prominently featured the existence of the nontransportation use restriction against the Vessel, including the Bill of Sale, which is filed with the U.S. Coast Guard and is of public record. The Invitation for Bids (incorporated by reference into the Contract of Sale) expressly states that all covenants, stipulations and agreements contained in the Contract are and shall be binding upon the respective heirs, administrators, executors, successors, and assigns, if any, of both the buyer and MarAd. In conformity with MarAd's intent and the understanding of the buyers, the nontransportation use condition was meant to pass with title to the Vessel.
For MarAd's National Defense Reserve Fleet disposal program to function as intended by Congress, it is vital that the Vessel not be sold by the Court free of MarAd's restrictions. The conditions imposed by the United States on vessels sold from the reserve fleet are the key components of a vessel disposal program established and operated in strict conformity with legislative mandate. Sale in admiralty of a vessel originally purchased from the reserve fleet subject to nontransportation use or scrapping restrictions, if accomplished without similar restrictions, would frustrate the intent of Congress and circumvent the statutory provisions expressing that intent.
Much more is at stake than the future of any one vessel, however; what is threatened is a defense reserve fleet vessel disposal program national in scope. For the Court to sanction a sale in admiralty of a former reserve fleet vessel without MarAd's restrictions, as urged by the creditors here, would establish a judicial mechanism whereby sham transactions could be litigated and title to such vessels freed of all restrictions. The great increase in market value of former reserve fleet vessels stripped of MarAd's restrictions would certainly prompt repeated attempts to clear such vessels of those restrictions through admiralty sales. The extent of potential abuse is manifest in the fact that over three hundred former reserve fleet vessels are presently owned by private citizens under nontransportation use restrictions, and close to one hundred vessels presently in the reserve fleet have been marked for sale by MarAd in the foreseeable future. The possibility that through Court proceedings sales for scrapping or nontransportation use can be converted to sales for unrestricted use in competition with citizen-owned private vessels and in disregard of the nation's ship scrapping and shipbuilding industries poses a severe threat to MarAd's disposal program and would contravene the result intended by Congress.
The harm which might befall low priority creditors in this action is beyond the power of the Court to remedy. The Congressional purposes defining the parameters of the reserve fleet vessel disposal program are quite clear, and the harm to that program which would result from a contrary decision is both immediate and serious. The Court is not inclined to favor the interests of lienholders against the Vessel and creditors of the Vessel's owner above the national interests in proper management of the National Defense Reserve Fleet, in promoting new construction and development of a modern and efficient U.S. flag merchant fleet, and in maintaining the nation's shipbuilding and ship scrapping industries. This conclusion is particularly appropriate where, as here, the existence of MarAd's restrictions on the use of the Vessel was a matter of public record and readily obtainable by any prudent creditor.
Since the primary obligation of the courts in cases involving statutory construction is to ascertain and declare the intention of the legislature (e. g., United *529 States v. Cooper Corp., 312 U.S. 600 (1941); Federal Ins. Co. v. Speight, 220 F.Supp. 90 (D.C.S.C.1963)) and to carry such intention into effect (e. g., Philbrook v. Glodgett, 421 U.S. 707, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975); Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962)), it is concluded as a matter of law that the sale of the Vessel by this Court must be conducted pursuant to the same terms and conditions as were included in the Invitation for Bids and Contract of Sale by which the Vessel was originally sold by MarAd.
III.
A second, separate basis for the Court's decision to grant the Government's Motion for Summary Judgment stems from a review of basic principles of admiralty and contract law.
The nontransportation restrictions on the use of the Vessel do not constitute a lien on the vessel, nor do they involve any monetary claim or encumbrance, such as are normally fully executed by sale in admiralty. Gilmore & Black, The Law of Admiralty § ch.19, 9-20 (2d ed. 1975). Rather, the restrictions are contractual covenants, agreed to by the buyer, restraining the buyer's use of the vessel. As such these restrictions fall under the general legal heading of covenants in restraint of trade. Such covenants in restraint of trade are legal if the restraint is reasonable. Restatement (First) of Contracts § 514(19).
It is established that a covenant by the buyer of property not to use it in competition with or to the injury of the seller does not impose an unreasonable restraint on trade unless effecting, or forming part of a plan to effect, a monopoly. Id., § 516(b). However, the covenant may impose no restrictions greater than are required for the protection of the seller, may not impose undue hardship upon the buyer, and may not unreasonably restrict the alienation of the property or be based on a promise to refrain from competition. Id., § 515.
The restrictions imposed on buyers of National Defense Reserve Fleet vessels and on all subsequent heirs, administrators, executors, successors and assigns are reasonable in every respect and impose no conditions greater than are required for the protection of the interests of the Government. Considering that the nontransportation use restriction runs against a vessel with a limited life span, and that the Government's interests do not vary over the life of the vessel, the only reasonable time limitation is the life of the vessel. Considering the uses to which a vessel may be engaged, the territory which it may traverse, and the Government's interest in restricting competition by former reserve fleet vessels with privately owned vessels engaged in the carriage of passengers and cargo worldwide, it is again reasonable that the territorial extent of the restrictions be unlimited. That the restrictions do not unreasonably restrain the alienation of the property is demonstrated by the option exercised by Arctic Seafood Corporation to purchase this Vessel under the nontransportation use restriction rather than for scrapping, and the subsequent resale of the Vessel subject to that same nontransportation use restriction. Finally, the restrictions do not entail a promise by the buyer to refrain from competition, and do not in any respect infringe the buyer's right to conduct any business or engage in any form of competition. What the restrictions do accomplish is to prevent a particular range of uses of a particular vessel purchased far below market value in any competitive enterprise in which the buyer might be engaged. Buyers are fully aware of the restrictions before bidding for reserve fleet ships, and presumably take advantage of the reduced market value to acquire a vessel for a use which satisfies the restrictions. As is illustrated by this case, MarAd takes great care to ensure full comprehension of the meaning of the restrictions by all prospective purchasers. The Court, therefore, finds that MarAd's restrictions are valid and enforceable covenants in restraint of trade.
*530 Only two cases have been found addressing the issue of whether such covenants in restraint of trade survive a judicial sale of a vessel in admiralty. A case decided by the Court of Appeals for the Third Circuit supports this proposition, albeit in dictum. In Schaaf v. S.S. North America, 368 F.2d 925 (3d Cir. 1966) the right of a former owner to intervene to preserve the former owner's rights under a restrictive covenant contained in a sale of the vessel became moot where a sale of the vessel was held and confirmed, and the vessel was released. The court said that, assuming arguendo that the relief requested could be granted, the relief must operate on the vessel itself and not on the substituted res (the proceeds of the sale) still in custody of the court.
A second, much stronger case addressed the issue on equitable grounds. In Tri-Continental Corp. v. Tropical Marine Enterprises, Inc., 265 F.2d 619 (5th Cir. 1959) the U.S. Court of Appeals, Fifth Circuit, held that a restrictive covenant prohibiting the purchaser from engaging in certain transportation uses of a vessel was reasonable in time, territory and extent, and a valid and binding covenant in restraint of trade. In that suit to foreclose a mortgage on the vessel sold pursuant to the restrictive use covenant, plaintiff mortgagee prayed that the decree of foreclosure permit the vessel to be sold free of all restrictions on its use, arguing that such covenants do not run with chattels and are not enforceable against a non-assenting mortgagee. The original owner intervened in the action, asking that the vessel be sold by the court subject to the restrictive covenant. The court refused to consider the technical common law argument as to whether such covenants can legally "run" with a vessel. Rather, the court found it to be plainly inequitable, if not unconscionable, for the mortgagee, having itself furnished the money to make the purchase with full knowledge of the covenant, to deprive the beneficiary of the covenant's benefits and at the same time impose upon the former owner the heavy burden which would follow breach of the covenant.
These circumstances, although not congruent with the instant case, are similar enough to be instructive. Here, there is no "heavy burden" which would be imposed upon the Defendants, but the creditors can be charged with knowledge of the restrictions. As in Tri-Continental, it seems plainly inequitable for the beneficiary of the covenant the U.S. Government to be deprived of the benefits of that covenant through no fault of its own. It was the plain intention of the Contract that the restrictions would run with the Vessel against all subsequent heirs, administrators, executors, successors and assigns. The record repeatedly demonstrates that both Arctic Seafood Corporation and Arnnette C. Detyens clearly understood the nature of the restrictions. Each paid far less than market value for the Vessel because of the restrictions. Not only would an inequitable result follow were the beneficiary to be deprived of the benefit of the restrictions, but the courts would be opening the door to a variety of attempted sham transactions, where owners could net a substantial profit by permitting their vessels to be libelled and sold without the restrictive covenant. Indeed, should the Vessel be sold for unrestricted use and operation in this case, a sizeable windfall profit would revert to Arnnette C. Detyens. It seems patently inequitable to permit such a windfall to accrue to the benefit of the former owner, Ms. Detyens, where she was responsible for ensuring adherence of the covenant (and for the consequences of its breach) as well as for those acts and omissions which have resulted in the instant libel.
Covenants in restraint of trade such as are addressed in this case are not liens or other monetary encumbrances on vessels and should not be extinguished by judicial sale where such an inequitable result as is described above would result. Admiralty courts are authorized to grant equitable relief, Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), and may apply equitable principles to subjects within their jurisdiction, Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1935). Equity *531 and justice favor a judicial sale of the Vessel subject to the nontransportation use restrictive covenant. It is concluded that the general maritime law requires the survival of MarAd's conditions upon sale of the Vessel by this Court. Sale of the Vessel by the Court shall, therefore, be conducted pursuant to the same terms and conditions as were included in the Invitation for Bids and Contract of Sale by which the Vessel was originally sold by MarAd.
IV.
Based on the foregoing, it is
ORDERED, that the Motion for Summary Judgment in favor of Plaintiff in Intervention the United States of America be, and the same hereby is, granted.
IT IS FURTHER ORDERED, that the United States Marshal of the District of South Carolina be and hereby is authorized and directed to sell to the highest bidder at public auction the Oil Screw Captain "D", Official No. 566594, sometimes known as the Lady Arnnette, her engines, machinery, tackle, equipment, and apparel, etc., upon the terms stated further in the Notice of Sale annexed hereto as Exhibit A. The date, time and place of sale shall be set by further order of this Court. The costs of advertisement and sale may be advanced by the said Marshal as an administrative expense and shall constitute a first charge against the proceeds of any sale.
IT IS FURTHER ORDERED that the said Marshal bring the proceeds of such sale into the Court, and deposit the same with the Clerk thereof pending the further disposition of this action upon the claim of the Plaintiffs, and pending final judgment herein.
IT IS FURTHER ORDERED, that since this decision involves a controlling question of law as to which there are substantial grounds for difference of opinion and that immediate appeal from this Order may materially advance the ultimate termination of this litigation, any adverse party is hereby granted the right to seek immediate relief in the Court of Appeals for the Fourth Circuit pursuant to 28 U.S.C. § 1292(b), and, pending the seeking of such relief, further proceedings in this Court are hereby stayed.
AND IT IS SO ORDERED.
NOTICE OF SALE OF VESSEL
(EXHIBIT "A")
In accordance with the Order of the Court to which this Exhibit A is annexed, the following Notice of Sale shall be published by the United States Marshal of the District of South Carolina in the Charleston News and Courier, Charleston, South Carolina.
Said Notice of Sale shall be made for 4 consecutive days prior to the date of sale.
UNITED STATES MARSHAL'S SALE DISTRICT OF SOUTH CAROLINA
NOTICE IS HEREBY GIVEN that on May 21, 1979, at 11:00 AM, at the United States Court House Door, Broad and Meeting Streets, Charleston, South Carolina, the U.S. Marshal will sell to the highest bidder by public auction the Oil Screw CAPTAIN "D", Official Number 566594, also known as the LADY ARNNETTE, an ocean tug built in 1944, overall length 143 feet, beam 34 feet, draft 13 feet, of 610 tons displacement, powered by a 1500 SHP diesel. Specifications are not guaranteed.
The Marshal shall require of highest bidder at the sale a minimum deposit in cash, certified check or cashier's check, equal to five percent of the bid. The balance due shall be paid in cash, certified check or cashier's check within ten days of the sale.
The Vessel is to be sold "as is, where is" and the sale is subject to confirmation by the U.S. District Court for the District of South Carolina. The Vessel is now berthed at Cainhoy, South Carolina, State Road S-120, and may be inspected by any interested party at their sole risk and expense upon arrangement with the United States Marshal, United States Court House, Charleston, South Carolina, telephone number (803) 724-8364.
*532 Sale may not be made to one who is not a U.S. citizen as defined in Section 2 of the Shipping Act, 1916, as amended.
Conditions of Sale:
The Bill of Sale for the Vessel will include one of the following two conditions, at the bidder's option.
Condition 1 : The Buyer shall not use or operate
the Vessel, nor cause to permit
same to be used or operated, as
a means of or in aid in the transporting
of passengers or cargo,
or
Condition 2 (Alternate) : The Buyer shall within twenty-four
(24) months after the date
of delivery, scrap the hulls of
the ships within the United States.
The Bill of Sale for the Vessel will further include as a mandatory condition of sale that the Buyer shall not resell or assign the Vessel without prior written notice to the Fleet Disposal Branch, Maritime Administration, U.S. Department of Commerce, Washington, D. C. 20230. The Bill of Sale will also recite that all conditions included in the Bill of Sale are and be binding upon the respective heirs, administrators, executors, successors, and assigns, if any, of the Buyer.
ANDREW J. CHISHOM,
U. S. MARSHAL | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363140/ | 596 P.2d 760 (1979)
Jackie L. ANDERSON, Petitioner-Appellant,
v.
Dan CRONIN, Manager of Safety and Excise and Ex-Officio Sheriff of the City & County of Denver, and Wayne K. Patterson, Warden of the Jail of the City & County of Denver and State of Colorado, Respondents-Appellees.
No. 79SA105.
Supreme Court of Colorado, En Banc.
June 25, 1979.
Rehearing Denied July 2, 1979.
*761 J. Gregory Walta, Colorado State Public Defender, Craig L. Truman, Chief Deputy State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, Denver, for petitioner-appellant.
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Lynne Ford, Asst. Atty. Gen., Denver, for respondents-appellees.
GROVES, Justice.
The petitioner was arrested in Colorado and held for extradition to Texas. He filed a petition for habeas corpus claiming that the extradition request was defective because it did not include an authenticated copy of his prior conviction. The district court found his argument to be without merit, as do we.
The requisition of the Governor of Texas states that the petitioner is charged with the crime of "aggravated robbery by deadly weaponenhanced bond forfeiture." The accompanying indictment charges the petitioner with "aggravated robbery-enhanced" and also states that he was previously convicted of burglary. It is the latter charge which petitioner claims must be authenticated by a copy of his former conviction.
The governing statute reads:
"No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under section 16-19-107, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon, or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, or parole." Section 16-19-104, C.R.S.1973.
Here the indictment states two possible grounds for extradition, viz., the charge of aggravated robbery and the burglary conviction. The Governor's requisition indicates, however, that the charge of aggravated robbery is the actual basis for extradition here. Consequently, the statute requires only an accompanying indictment together with any warrants issued pursuant thereto and the allegation that petitioner was in Texas when the crime occurred and afterwards fled. These requirements have been met.
If the burglary conviction were the only basis of extradition the judgment of conviction would be necessary together with other essential statements. Morgan v. Miller, Colo., 593 P.2d 357 (1979).
Petitioner also contends that the indictment is defective because it does not include a statutory citation for the crime of aggravated robbery. This claim is an attempt to thwart the extradition by an insistence upon immaterial technicalities. Martello *762 v. Baker, 189 Colo. 195, 539 P.2d 1280 (1975). The indictment suffices to establish probable cause to believe that petitioner committed a crime in Texas. Eathorne v. Nelson, 180 Colo. 288, 505 P.2d 1 (1973).
We affirm the district court's order dismissing the writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005267/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6999
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMAL HICKS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CR-
99-520-S, CA-01-1460-S)
Submitted: September 6, 2001 Decided: September 14, 2001
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jamal Hicks, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jamal Hicks seeks to appeal the district court’s order denying
his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2000). We
have reviewed the record and the district court’s opinion and find
no reversible error. Accordingly, we deny a certificate of appeal-
ability and dismiss the appeal on the reasoning of the district
court. See United States v. Hicks, Nos. CR-99-520-S; CA-01-1460-S
(D. Md. May 24, 2001). We dispense with oral argument because the
facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363054/ | 470 F.Supp. 1091 (1979)
Olaguibeet A. López PACHECO et al., Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION et al., Defendants.
Civ. No. 76-83.
United States District Court, D. Puerto Rico.
May 10, 1979.
*1092 *1093 *1094 *1095 Arturo Aponte Paré, Roberto Busó Aboy, Rafael L. Franco Gracia, Hato Rey, P. R., for plaintiff.
Julio Morales Sanchez, U. S. Atty., Hato Rey, P. R., for defendants.
DECISION AND ORDER
TORRUELLA, District Judge.
The present suit was commenced on January 23, 1976, when Plaintiff filed a complaint against the Federal Bureau of Investigation (hereinafter referred to as the F.B.I.) and its Director, seeking disclosure of certain records in their possession pertaining to Plaintiff and his son. Jurisdiction was predicated on the Freedom of Information Act, as amended, 5 U.S.C. § 552(a)(4)(B). Shortly after the initiation of suit, the Court stayed the proceedings pending exhaustion of the available administrative remedies.
Progressive disclosures were made by the agency as a result of Plaintiff's pursuit of his claims at the administrative level.[1] In the interim, Plaintiff's complaint herein was amended twice. As now framed by the extant pleading, this action is based on the Freedom of Information Act, as amended (hereinafter referred to as FOIA), 5 U.S.C. § 552 and the Freedom of Information and Privacy Act, as amended, (hereinafter referred to as FOIPA) 5 U.S.C. § 552a. Plaintiff seeks an injunction against withholding certain information, as well as an order directing Defendants to amend some of the records that have been disclosed. The named Defendants now are the F.B.I., its Director, the United States Department of Justice and the Attorney General of the United States.[2]
Several matters are pending resolution by this Court. On August 30, 1978 the Defendants filed a Motion for Summary Judgment asserting full compliance with their duties under the FOIA and the FOIPA. Plaintiff requested that consideration of said Motion be held in abeyance pending completion of his discovery endeavors. Hence, his opposition was not submitted *1096 until February 1, 1979.[3] A Motion for In Camera Inspection and a Cross Motion for partial summary judgment were also filed by the Plaintiff on March 9, and April 12, 1979 respectively. As of this date, the first of these two requests remains unopposed.
Any resolution on the merits at the present instance would now be premature should an in camera examination be deemed necessary. We shall thus address ourselves to this aspect first.
I. PLAINTIFF'S MOTION FOR IN CAMERA INSPECTION.
Plaintiff vehemently requests that we hold an in camera examination of the entire records of himself and his son held by Defendants "to determine whether the records or any portion of the records held by Defendants . . . may be withheld from him under any of the exemptions claimed by Defendants and what records have been withheld without any claim of exemption."
The FOIA expressly provides for in camera examination of agency records. 5 U.S.C. § 552(a)(4)(B).[4] However, the Act does not contemplate in camera line-by-line inspections whenever a FOIA Plaintiff expresses incredulity concerning the agency's deletions of portions of documents under 5 U.S.C. § 552(b) in fine. Weissman v. Central Intelligence Agency, 184 U.S.App.D.C. 117, 122-23, 565 F.2d 692, 697-698 (1977). Congress made it clear that this section merely "permit[s] such in camera inspection at the discretion of the Court." H.R.Rep. No. 93-1380, Conference Rep. 93d Cong., 2d Sess. 9 (1974). Before such inspection is ordered, the Government must be afforded the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. Ibid. See also, S.Rep. No. 93-854, 93d Cong., 2d Sess. 15 (1974), U.S.Code Cong. & Admin.News 1974, p. 6267; Bell v. United States, 563 F.2d 484 (C.A. 1, 1977).
In the case at bar we do not believe that "the record is vague or the agency claims too sweeping or suggestive of bad faith" so as to warrant an in camera examination. Weissman v. Central Intelligence Agency, supra 184 U.S.App.D.C. at p. 123, 565 F.2d at p. 698. Although the burden of proof is on the agency claiming exemptions, and even though courts must apply that burden with an awareness that the Plaintiff is at a disadvantage in attempting to controvert the agency's assertions, it is also true that a submission by the agency of an index of withheld documents, accompanied by detailed justifications for their non-disclosure may adequately permit courts to evaluate the merits of Defendants' claims of exemptions. In this task, the court is expected to accord "substantial weight" to the agency's affidavit. Bell v. United States, supra, at 487. See, Ollestad v. Kelley, 573 F.2d 1109 (C.A. 9, 1978); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 344, 484 F.2d 820, 824 (1973), cert. denied 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
An evaluation of the record in light of the aforestated principles convinces us that no in camera review of documents need be conducted in this case. The Defendants have submitted copies of all the documents forwarded to Plaintiff. Those documents have been numbered and precisely identified in detailed affidavits by Special Agents John F. Loome, Jr., and Lowell B. Strong. These sworn statements, together with the detailed explanations which accompany each of the documents, describe in detail the contents of each excised or withheld record, citing and pinpointing the specific exemptions under which the F.B.I. has denied disclosure.
Most of the claimed exemptions pertain to portions of documents otherwise disclosed. *1097 The raison d'etre for the excisions can be reasonably gleaned from the exhibits on file. These factors tend to indicate that the agency has not exempted whole documents merely because they contained some exempt material. See, Weissman v. Central Intelligence Agency, supra, 184 U.S.App. D.C. at 123, 565 F.2d at 698.[5] We believe that the record is sufficiently pellucid to permit legal rulings without having to undertake further probes at this stage. See, Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 344, 484 F.2d at 824. See also, Mead Data Central, Inc. v. U. S. Dept. of Air Force, 184 U.S.App.D.C. 350, 566 F.2d 242 (1977); Fonda v. Central Intelligence Agency, 434 F.Supp. 498 (D.C.D.C., 1977); Marks v. Central Intelligence Agency, 426 F.Supp. 708 (D.C.D.C., 1976); Heublein, Inc. v. F. T. C., 457 F.Supp. 52 (D.C.D.C., 1978). As the Court of Appeals for the District of Columbia so aptly stated in Weissman v. Central Intelligence Agency, supra:
"In every FOIA case, there exists the possibility that Government affidavits claiming exemptions will be untruthful. Likewise, in every FOIA case it is possible that some bits of non-exempt material may be found among exempt material, even after a thorough agency evaluation. If . . . these possibilities are enough automatically to trigger an in camera investigation, one will be required in every FOIA case. This is clearly not what congress intended . . ." 184 U.S.App.D.C. at 122, 565 F.2d at 697 (footnote omitted).
Considering the above, Plaintiff's Motion for in camera inspection is hereby DENIED. We shall thus proceed to address the merits based on the record before us.
II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.
Defendants contend that the present action can be resolved without a trial, in consonance with the criteria set forth in F.R.Civ.P. 56.
In the Second Amended Complaint filed herein it is alleged that the F.B.I. has possession of a photograph of Plaintiff, allegedly taken without his knowledge or permission, in asserted violation of Plaintiff's privacy rights; that the agency has failed to disclose records concerning Plaintiff and his son; that some of the information contained in the records of the F.B.I. is "false, untrue and baseless"; that Defendant agency maintains records describing how Plaintiff exercises rights guaranteed by the First Amendment in alleged violation of 5 U.S.C. § 552a(e)(7); that the F.B.I. has not specifically indicated the reason for each particular excision and failed to establish the applicability of the exemptions claimed;[6] that the documents withheld from disclosure as records "currently and properly classified pursuant to Executive Order 11652" were not properly classified; that Defendant Agency has blocked Plaintiff's rights by failing to notify him of his right to judicial review as mandated in 5 U.S.C. § 552a(d)(3), and that Defendants have intentionally and willfully refused to comply with Plaintiff's request to amend his and his son's records. At this juncture, we deem it necessary to refer to certain general principles which ought to guide this Court in its resolution of the issues raised herein.
An agency faced with a request for information under the statute is bound to disclose all the information in its hands unless it is exempted. Morton-Norwich Products, Inc. v. Mathews, 415 F.Supp. 78, 81 (D.C.D.C., 1976). This principle mirrors the dual objectives embodied in the FOIA. It is true that the statute's limited exceptions "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Department of Air *1098 Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). But on the other hand, the Act "seeks to preserve the confidentiality undeniably essential in certain areas of Government operations." F. A. A. Administrator v. Robertson, 422 U.S. 255, 261, 95 S.Ct. 2140, 2145, 45 L.Ed.2d 164 (1975). With these principles in mind, we will engage in the delicate task of balancing the competing interests at stake.
As we indicated hereinbefore, Defendants have filed detailed affidavits by Special Agents of the F.B.I., together with an Exhibit "V" in support of their Motion for Summary Judgment. Said Exhibit V is an indexed compilation of the documents released, the withheld information and the statutory grounds for deletion. These, together with Plaintiff's sworn statement, Defendants' responses to discovery requests and the pertinent pleadings on file, shall form the frame of reference of our inquiry, against which the claimed exemptions will be analyzed in turn.
A. EXEMPTIONS UNDER 5 U.S.C. § 522(b)(7)(C)
Pursuant to this subsection of the FOIA, investigatory records compiled for law enforcement purposes are exempted from disclosure, to the extent that their production would constitute an unwarranted invasion of personal privacy.
Documents 3, 4, 5, 6, 9, 10, 11, 13, 16, 17, 18, 30, 33, 34, 35, 36, 37, 38, 44, 47, 48, 50, 51 and 54 of Exhibit V were released with deletions made to withhold information under exemption (b)(7)(C) of Section 522 of the Act. As revealed by Loome's affidavit and the Index in Exhibit V, excised were the names of Special Agents of the F.B.I., other federal employees and officers of the United States Air Force; information that would reveal an investigative interest in a person other than Plaintiff or his son and information which would invade the personal privacy of a source or of persons interviewed by the F.B.I.[7]
Defendants state under oath, that the purpose behind this claim for exemption in this case, when asserted to withhold the identities of Special Agents of the F.B.I. and employees of other Government agencies, is to protect them from unnecessary questioning and intrusion into their private lives by members of the public. Concerning the names, background data and other identifying information of third parties, it is Defendants' position that to release the same would reveal to the world that those persons were of F.B.I. interest or that they were in some way connected with an F.B.I. investigation, in violation of these persons' rights to privacy.
Plaintiff does not specifically rebut the justifications advanced by Defendants with regard to this exemption. Instead, Plaintiff argues that the F.B.I., while claiming this exemption in many documents, failed to protect the identities of several private parties in their disclosure and that the excision of F.B.I. Agents' names is not justified under the holding of Ferguson v. Kelley, 448 F.Supp. 919 (D.C.Ill., 1978).
The exemption established in 5 U.S.C. § 552(b)(7)(C) is very broad in scope, in that it protects anyone whose privacy might be invaded as a result of disclosure of information that could plausibly reveal their identities. Shaver v. Bell, 433 F.Supp. 438, 440 (N.D.Ga., 1977).[8] In deciding whether the exception is well invoked, we are bound to apply a balancing test "between an individual's right of privacy and the preservation of the public's right to government information." Campbell v. United States Civil Service Commission, 539 F.2d 58, 61 (C.A. 10, 1976). In this context, an important consideration is "the extent or value of the public interest purpose or object of the individuals seeking disclosure." *1099 Ibid., see also, Department of the Air Force v. Rose, supra, 425 U.S. at 372-373, 96 S.Ct. 1592.
Applying the foregoing principles to the case at bar, we have not been shown that the public interest in disclosure is so paramount as to overweigh the legitimate privacy interests at stake. Cf. Disabled Officer's Ass'n. v. Rumsfeld, 428 F.Supp. 454, 457-458 (D.C.D.C., 1977). It is true that the case of Ferguson v. Kelley, supra, stands for the proposition that F.B.I. agents and other public employees have no privacy rights to the deletion of their names from government records. Id. at 923. However, to the extent that more convincing precedent says otherwise, we decline to embrace this aspect of the Ferguson decision. As the Fourth Circuit laid down its view in Nix v. United States, 572 F.2d 998 (1978):
"One who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties. Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives. While the right of privacy to these F.B.I. agents is perhaps minimal, we find that the public interest in the identification of the F.B.I. agents . . . to be even less." Id., at 1006 (footnote omitted).
Likewise, in the instant case we fail to see how the identification of every F.B.I. agent or employee who may have participated in the official probes[9] pertaining to Plaintiff and his son could foster any significant public interest when pertinent countervailing interests are taken into account. By the very nature of the (b)(7)(C) exemption, most of the deletions made thereunder comprise portions of comparatively restricted dimensions. Neither the Plaintiff nor the public can be deemed to be prejudiced by such a relatively innocuous action. See, Varona Pacheco v. F.B.I., supra; Malloy v. United States Department of Justice, 457 F.Supp. 543 (D.C.D.C., 1978); Flower v. Federal Bureau of Investigation, 448 F.Supp. 567 (W.D.Tex., 1978).
The same holds true regarding those names deleted from the documents because the individuals were the focus of F.B.I. interest or, either willingly or not were subject to interviewing in any quest on Plaintiff or his son. As in the case of government officials, Plaintiff has claimed no particular need for this information which could override preeminent privacy interests. Ferguson v. Kelley, supra, at 923, n.2. Those interests have been adequately described in Maroscia v. Levi, supra, as follows:
"It is proper that such material be withheld in order not only to protect those citizens who voluntarily provide law enforcement agencies with information, but also to insure that such persons remain willing to provide such information in the future. Furthermore, references to third parties may be properly deleted to protect their privacy and to minimize the public exposure or possible harassment of those persons mentioned in the files. Their claim to privacy under Exemption 7(c) outweighs the minimal public interest which would be served by release of their names." 569 F.2d, at 1002; see also, Forrester v. U. S. Dept. of Labor, 433 F.Supp. 987, 989 (S.D.N.Y., 1977).
Our present holding is in no way altered by the fact that certain names which could arguably be covered by the exemption have not been deleted from the documents. The FOIA is "neutral", in the sense that it does not prohibit the disclosure of exempt information. Charles River Park "A" Inc. v. Department of Housing and Urban Development, 171 U.S.App.D.C. 286, 519 F.2d 935 (1975). Hence, nothing can lend support to a waiver theory under these *1100 circumstances, considering that no bad faith has been demonstrated and that the Plaintiff's interests have in no way been hampered by the disclosure in question.
The record has permitted us to precisely correlate the justifications advanced by Defendants with the portions of documents actually deleted. An application of the aforestated legal grounds to the precise circumstances of this case leads us to conclude that the deletions made in the aforementioned documents pursuant to 5 U.S.C. § 552(b)(7)(C) are proper and that Defendants are entitled to Judgment in their favor concerning the same.
B. EXEMPTIONS UNDER 5 U.S.C. § 552(b)(7)(D)
Documents 3, 6, 11, 18, 33, 34, 35, 36, 37, 38, 44, 46, 47 and 48 of Exhibit V were released to Plaintiff with deletions made pursuant to 5 U.S.C. § 552(b)(7)(D). This provision exempts from the disclosure obligations of the FOIA investigatory records compiled for law enforcement purposes, where production would "disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source."
The deletions made in the documents enumerated above include informant symbol numbers, information provided under an express or implied assurance of confidentiality, both from individuals and from law enforcement authorities in the State of Washington, and the identities of confidential sources or information that can lead to an identification of such sources. The reasoning behind the invocation of subsection (b)(7)(D) in this case appears in the affidavit of Special Agent Loome as follows:
"The identity of a person interviewed has been traditionally protected by the F.B.I. on the basis that the information received from these individuals was received confidentially. . . . When Agents of the F.B.I. conduct interviews, they seek information concerning individuals or matters within the investigative jurisdiction of the F.B.I. Persons interviewed often assume, quite logically, that the information they furnish is for the assistance of the F.B.I. only, in the fulfillment of its responsibility, and that their identities and the fact they cooperated with the F.B.I. will not be publicly exposed. Even witnesses to a crime who may expect to be called upon at a later date to testify in public during the course of a criminal prosecution should be secure in the knowledge that, absent the necessity of such public testimony, with its attendant judicial restraints and protection, the assistance rendered to their government will be held in confidence which will not be violated. The fear of such exposure all too often inhibits the cooperation of otherwise conscientious citizens. This consideration has been met by the traditional willingness and ability of the F.B.I. to assure persons interviewed that their identities would be protected. . . . Significantly, protection by exemption from disclosure is afforded by the statute to the information furnished solely by the source, as well as the actual identity of the source. This recognizes the reality that the identity of a source may be determined from an analysis of the information furnished by the source. This is particularly true when the analysis would be made by a knowledgeable person, familiar with the facts and circumstances which the information involves. To disclose the identity of a person interviewed under such circumstances would be more than an unwarranted invasion of his personal privacy. It would breach the confidentiality under which he was interviewed.
"While the sources referred to in the preceding paragraph were expressly or impliedly assured that the information would be received confidentially, there are other sources quoted in the pertinent documents from whom information was received under an expressed assurance of confidentiality. This information was received *1101 with the understanding that it would be held in strictest confidence. The experience of the F.B.I. in the area of confidential sources has lead to the policy of treating these individuals in a special way because of the information being received and the possible harm that may befall them if their identities were known. The manner in which the F.B.I. obtains information from these sources is demonstrative of the expressed assurance of confidentiality under which it was received. It is only with the understanding of complete confidentiality that the aid of such people can be enlisted in the first place, and only through this understanding, that such individuals can be persuaded to continue providing valuable assistance in the future.
"Confidential source material sought to be protected by assertion of (b)(7)(D) also includes local and state law enforcement agencies. The F.B.I. is firmly convinced that any adverse effect on the existing system of exchange of information between cooperating law enforcement agencies, both local and worldwide, would lead to disastrous far-reaching consequences on innumerable law enforcement proceedings, both actual and contemplated. The F.B.I. has been made aware that unless the confidentiality under which information exchanges currently exist is continued, the willingness of participating agencies to exchange essential information will be terminated. The same principles underlying the exchange of information on an international basis have also been the foundation for such exchanges between Federal and state law enforcement. That is, it has been based on a traditional understanding of confidentiality which is reinforced on a daily basis through contacts which Special Agents of the F.B.I. have with local law enforcement personnel. The free flow of information between cooperating law enforcement agencies plays an integral part in the solution of investigations on a daily basis. Without the assurances of confidentiality, upon which the exchange is based, the F.B.I.'s ability to carry out its investigative responsibilities would be seriously impaired."
Plaintiff attacks the sufficiency of Agent Loome's sworn statement on the grounds that the affiant did not make any promises to sources nor was he present when information was given in each case. Concerning the particular items assertedly exempted, Plaintiff argues that the records and information received from law enforcement authorities in the State of Washington,[10] as well as the name of a credit bureau,[11] have been improperly exempted by Defendants.
Exemption (b)(7)(D) of the FOIA was intended "to protect the disclosure of the identity of informants, and information received from informants." Committee on Masonic Homes, Etc., v. NLRB, 414 F.Supp. 426, 433 (E.D.Pa., 1976), vacated on other grounds 556 F.2d 214 (C.A. 3, 1977). Thus, if the provider of the information was a confidential source, both his identity as well as all of the information given by or related to him fall under the statutory exemption. Shaver v. Bell, supra. The joint explanatory statement of the House and Senate conferees respecting the 1974 amendments to the FOIA contains the following expressions:
"The conference substitute follows the Senate amendment except for the substitution of `confidential source' for `informer' . . .
"The substitution of the term `confidential source' in section 552(b)(7)(D) is to make clear that the identity of a person other than a paid informer may be protected if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. Under this category, in every case where the investigatory records sought were compiled for law enforcement purposes either civil or criminal in *1102 nature the agency can withhold the names, addresses, and other information that would reveal the identity of a confidential source who furnished the information. However, where the records are compiled by a criminal law enforcement authority, all of the information furnished only by a confidential source may be withheld if the information was compiled in the course of a criminal investigation."
Conf.Rep. No. 1200, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6285, 6291 (emphasis in the original).
Addressing ourselves to Plaintiff's challenge to the validity of Agent Loome's affidavit, we believe that it sufficiently shows that the information was acquired under an implied or express assurance of confidentiality "or in circumstances where such an assurance may reasonable be inferred." Ibid., Nix v. United States, supra. In his sworn statement, F.B.I. Agent Loome stated "the sources [in question] were expressly or impliedly assured that the information would be received confidentially, [and] there are other sources . . . from which information was received under an expressed assurance of confidentiality. This information was received with the understanding that it would be held in strictest confidence." This assertion should not be considered in isolation, but ought to be viewed in conjunction with the detailed and specific descriptions prefacing each and every one of the documents contained in Exhibit V, where the Defendants particularize the nature of the information excised under exemption (b)(7)(D), permitting a reasonably careful peruser to ascertain whether the aforestated standards were complied with.[12] See, Maroscia v. Levi, supra, at 1002. It is true that in every FOIA case there exists the possibility of inaccuracies in government affidavits. Weismann v. Central Intelligence Agency, supra, 184 U.S.App.D.C. at 122, 565 F.2d at 697. It is also true that the best statements would undoubtedly be those made by someone with direct personal knowledge of the investigatory transactions involved. But to accept Plaintiff's theory that every invocation of subsection (b)(7)(D) must be made by the specific agent who interviewed each source or who personally gave them promises of confidentiality would convert the evidentiary procedure contemplated by Congress[13] into a practical impossibility and would require long and time consuming trials *1103 even in the clearest cases. We are not convinced that Defendants must meet such an exacting burden. See, [1974] U.S.Code Cong. & Admin.News, at p. 6290.[14] As Judge Gesell accurately expressed in Morton-Norwich Products, Inc. v. Mathews, supra:
". . . The Freedom of Information Act must proceed in an atmosphere of confidence in government. If the agency cannot be trusted, the Act will never work. It is a profound mistake to transfer administrative responsibility to judges on the theory that persons employed by the Executive branch are not honest or lack judgment." 415 F.Supp., at 83.
In light of the above, it is now incumbent on us to consider the specific items in dispute.
At threshold, we note that Plaintiff does not seriously quarrel with the agency's decision to delete informant symbol numbers from the records produced. Clearly, these excisions are amply justified under subsection (b)(7)(D), insofar as disclosure would propend to the divulgement of the identity of informants, an evil which the exemption, by its very language was designed to discourage. Therefore, the excisions made on this ground are justified and must be upheld. Regarding the deletions made on page 3 of Document 11, i. e., the names of a credit bureau and of one of its employees, we cannot accede to Plaintiff's insistence on disclosure. The names of commercial or financial sources are exempt under 5 U.S.C. § 552(b)(7)(C) and (D). Varona Pacheco v. F.B.I., supra, at 1030. Specifically, the identity of persons who supply such routine information as credit reports or personnel information has been held to fall within the statutory exemptions, particularly where, as here, Plaintiff has demonstrated no real need to obtain said information. See, Ferguson v. Kelley, supra, at 925.
Invoking exemption (b)(7)(D), the Defendants have also withheld pages and portions of documents containing information provided under express or implied assurances of confidentiality. Withheld on this ground are page 5 of Document 3, pages 39 to 54 of Document 11, page 2 and portions of page 3 of Document 18, as well as portions of Documents 33, 34, 38, 44, 47 and 48. The thrust of Plaintiff's objection to these excisions, which is the sufficiency of the Loome's affidavit, has already been considered by the Court. The detailed nature of Defendants' submission adequately enables us to analyze the deletions against the applicable legal considerations.
Persons who give information to law enforcement agencies under express or tacit agreements of secrecy are "confidential sources" for purposes of the subsection of the F.O.I.A. in question here. Nothing in this case suggests that the excised information has not been furnished "only" by such confidential sources, and the same is therefore protected under the second phrase of subsection (b)(7)(D). Nix v. United States, supra. Moreover, even if we assume that part of said information substantially overlaps with released information, withholding is justified if a substantial risk is asserted that the sources' identities would become ascertainable by disclosure; certainty of identification not being required by the Act. Ibid.
The test was authoritatively explained by Senator Hart, author of the 1974 amendments to the FOIA, as follows:
"[T]he agency not only can withhold information which would disclose the identity of a confidential source but also can provide blanket protection for any information . . . supplied by a confidential source. . . . [T]he F.B.I. [need not] prove the disclosure would reveal an informer's identity; all the F.B.I. has to do is to state that the information was *1104 furnished by a confidential source and it is exempt. . . ."[15]
When the present record is tested by the foregoing requirements, we reach the forceful conclusion that the invocation of subsection (b)(7)(D) in the instant case is warranted, that no bad faith is apparent and that Defendants are entitled to summary judgment, as regards the excisions made under said subsection. This is also true concerning the withholding of information received by the F.B.I. from law enforcement authorities in the State of Washington.[16] The record reveals that the F.B.I. was willing to disclose that information and made an earnest appeal to the Washington authorities for permission to release the documents. (Defendants' Exhibit L). On November 16, 1977 the Washington authorities refused permission on the grounds that statutes in the State of Washington prohibit the release of the information involved. The letter written to the Associate Deputy Attorney General by Donald C. Brockett, from the Spokane County Court Police, reads in part as follows:
"I can appreciate the concern that you have with Dr. López-Pacheco learning finally that his son was not executed by the police as he has believed. I do not think, however, that is the question involved. The matter to be determined is whether or not once local law enforcement agencies release information to the F.B.I., that information may be released by the federal agencies by virtue of the Freedom of Information Act. It is our position that if information given to the federal agencies is subject to such release without the statutory constraints of the State of Washington being followed, further information of such nature will not be available to federal agencies." (Defendants' Exhibit L).
Plaintiff argues that the (b)(7)(D) exemption is only applicable to persons, not to entities such as law enforcement agencies. Again, sole reliance is placed by Plaintiff on Ferguson v. Kelley, supra, at 925. Once more, we decline to embrace the construction of the FOIA made in Ferguson, as regards this aspect of the instant case. More convincing precedent makes it clear that the Congressional intent to protect against disclosure of confidential information does extend to material provided by law enforcement agencies. Church of Scientology v. Department of Justice, supra, at 1302-1303; accord: Maroscia v. Levi, supra. In this context, the refusal to disclose on the part of the originating agency is indicative of an interest in confidentiality that deserves protection under the Statute as "information furnished only by the confidential source." 5 U.S.C. § 552(b)(7)(D). It is in the public interest that such a cooperative arrangement between the F.B.I. and a State police department not be breached, specially where the latter objects to disclosure. Lesar v. U. S. Dept. of Justice, 455 F.Supp. 921 (D.C.D.C. 1978). ". . . Congress did not intend to throw open the confidential files of law enforcement to the general public . . . [and nothing] support the proposition that confidential information provided by law enforcement agencies [is] any less important to the mission of federal law enforcement than information provided by ordinary citizens." Church of Scientology v. Department of Justice, supra, at 1303.[17]
C. SECTION 552(b)(1) OF THE FOIA
This provisions exempts from disclosure those matters that are "specifically authorized under criteria established by an Executive *1105 order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to Executive order."
The (b)(1) exemption is solely invoked by Defendants in relation to Document 33 of Exhibit V. The document is an F.B.I. report compiled by the San Juan Office, dated April 28, 1965, and consists of a total of 17 pages. It has underwent minor deletions under the subsections discussed hereinbefore. As to those made pursuant to exemption (b)(1), a detailed affidavit by Special Agent Lowell B. Strong[18] pinpoints the portions excised thereunder, and enables us to make a legal ruling without the necessity of conducting further proceedings. According to said affidavit, the document in question was classified by the affiant in accordance with the standards set forth in EO 11652. Succinctly stated, EO 11652 defines the "confidential" classification level assigned to Document 33 as "national security information or material which requires protection. The test for assigning `confidential' classification shall be whether its authorized disclosure could reasonably be expected to cause damage to the national security." The two exemption categories of EO 11652 which are of relevance here are: (1) "Classified information or material specially covered by statute, or pertaining to cryptography, or disclosing intelligence sources or methods." and (2) "Classified information or material disclosing a system, plan, installation, project or specific foreign relations matter the continuing protection of which is essential to national security."
The first three pages of Document 33, designated as pages A, B, and C, bear the overall classification of "Confidential" as their disclosure could assertedly reveal an intelligence source or method. The classified data in those three pages is circumscribed to two sets of brackets in page B, which encompass a very small portion of the page itself. The remaining 14 pages of the report were also classified under the same category, also because disclosure could allegedly reveal a "specific foreign relations matter", as contemplated in the above-quoted category of the Executive Order. The classified data in these pages is confined to certain deleted information in paragraph one, page one, paragraph one, page two and paragraph four, page seven.
Plaintiff insists on disclosure of the aforesaid items alleging that the document was not classified until almost two years after he requested his records from the F.B.I. The record reveals that classification was indeed made a posteriori. However, we do not believe that said factor per se compels us to disregard the classification made.
When exemption (b)(1) of the FOIA is applied to a given document, the burden is on the agency to demonstrate that the documents were properly classified pursuant to executive order. Schaffer v. Kissinger, 164 U.S.App.D.C. 282, 505 F.2d 389 (1974). However, the legislative history of the 1974 amendments makes it clear that, in evaluating (b)(1) claims de novo "substantial weight" is to be accorded to detailed agency affidavits setting forth the basis for the exemption. [1974] U.S.Code Cong. & Admin.News, p. 6290. Therefore the agency satisfies its burden by demonstrating that the document in question was classified "confidential" and, if so, that the classification procedures were consistent with the applicable Executive Order. Schaffer v. Kissinger, supra.
The affidavit filed by Defendants sufficiently fulfills this twofold test. The size of the deletions does nothing to suggest any "unnecessary classification" or "over classification" of Document 33, in transgression of Section 4 of EO 11652. [See note under 50 U.S.C. § 401]. Furthermore, the document, on its face, shows its classification, the "indefinite" date of declassification, in accordance with Section 5(B) of EO 11652, the date of classification and the *1106 code identity of the official authorizing the classification, all in accordance with Section 4(A) and (B) of EO 11652.
The function of determining whether secrecy is required in the national interest is expressly assigned to the Executive and it is far outside our province "to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, supra, 184 U.S.App.D.C. at 122, 565 F.2d at 697; Alfred A. Knopf Inc. v. Colby, 509 F.2d 1362, 1368-1369 (C.A. 4, 1975), cert. den. 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 482. Considering that the procedures and criteria for classification have been adequately explained, and in light of the limited nature of our reviewing faculties in this connection, we are compelled to defer to the agency's judgment concerning the deletions made to Document 33 under subsection (b)(1) of the FOIA. Even though we might disagree with the wisdom of the decision should the entire document be brought to our attention, it is settled that courts have neither the experience nor the expertise to determine whether these kind of classifications are substantially correct. Flower v. Federal Bureau of Investigation, supra, at 571 (W.D.Tex.1978), citing EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
Concerning Plaintiff's argument of untimeliness in Defendants' classification of Document 33, nothing in the Executive Order 11652 has been pointed out to us indicating that no information may be classified after it becomes the subject of an FOIA request. If, as the documents on file reveal,[19] the classification is consistent with the Executive Order and has been authorized by an official with classification authority, we cannot overrule an otherwise valid executive judgment on this ground, which is the only discernible objection of Plaintiff herein to the invocation of this exemption. See, The FOIA National Security Exemption and the New Executive Order, 37 Federal Bar Journal, 1 (Fall, 1978).
In view of the foregoing, we conclude that the assertion of subsection (b)(1) of the FOIA in this case is proper and that the excisions made thereunder from Document 33 of Exhibit V must be upheld.
SUMMARY
Documents 1, 2, 7, 8, 12, 14, 15, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 39, 40, 42, 43, 52 and 53 have been released to the Plaintiff in toto. Insofar as these documents are concerned, the instant case is moot.
Document 41, consisting of 37 pages is a "Motion to Dismiss or, Proceedings Pending Completion of Review" filed by Defendants in the instant case. Plaintiff has a copy of this document, and no harm whatsoever has been caused by its having been withheld.
The Defendants' Motion for Summary Judgment is granted insofar as it concerns the deletions made from the aforementioned documents under Exemptions (b)(7)(C), (b)(7)(D) and (b)(1) of the FOIA. There being no just reason for delay, the Clerk of the Court is instructed to enter Judgment dismissing the portions of the Complaint claiming that these statutory exemptions were illegally used.
D. PLAINTIFF'S REQUEST FOR AMENDMENT OF RECORDS
The complaint in this case prays for "an order and judgment of this Court that Defendant amend the records relating to Plaintiff's son." Plaintiff also avers that there are false, untrue and baseless statements against him in the records of the F.B.I.; that the agency has failed to give him any fact or information in support of such statements, and that the F.B.I. maintains records of Plaintiff describing how he *1107 exercises rights guaranteed by the First Amendment in alleged violation of 5 U.S.C. § 552a(e)(7).[20]
The FOIPA empowers individuals to request the amendment of records pertaining to them. 5 U.S.C. § 552a(d)(2). However, as in the FOIA, certain records have been exempted from said amendment provisions. Thus, Subsection (j)(2) of the Act provides, as is herein pertinent:
"The head of any agency may promulgate rules . . . to exempt any system of records within the agency from any part of this section . . . if the system of records is:
(1) . . .
(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws . . . and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders . . .; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual . . ." See also, 5 U.S.C. § 552a(k)(2).
Pursuant to the above-quoted provision, the head of the F.B.I. specifically exempted the Central Records System of the agency from the amendment provisions of the FOIPA 5 U.S.C. § 552a(d). (See, 28 C.F.R. 16.95). Congress was well aware that the peculiar interests of law enforcement demand that certain investigatory records should be immune from the avalanche of amendment requests which would arise were the amendment rights of the FOIPA be of blanket applicability to those records. See, generally, Section 2(b)(5) of Pub.L. 93-579, [1974] U.S.Code Cong. & Admin.News, p. 6916. See also, Pub.L. 94-183, [1975] U.S.Code Cong. & Admin.News, p. 2141. Therefore, the regulations exempting the system of records involved in this case have already been fully validated and applied by this Court. Varona Pacheco v. Federal Bureau of Investigation, supra, at 1034-1035.
Plaintiff makes no attempt to dispute the ban imposed by 28 C.F.R. 16.96 in relation to the records in question here. Instead, Plaintiff argues that the Defendant agency, by considering his request for amendment of records pertaining to him and his son, waived the exemption from the correction and amendment provisions of the FOIPA. Plaintiff bases this contention on a letter forwarded to him by the Director of the F.B.I. wherein it is stated that "it is the policy of [the] Bureau to consider each . . request [for amendment] on an individual basis in order to reach an equitable determination consistent with the best interests of both the individual and the Government." (Defendants' Exhibit U).
We simply cannot see how the Director's statement could amount to a waiver of the FOIPA exemptions. Cf. Cooper v. Department of Navy, 558 F.2d 274 (C.A. 5, 1977); Kanter v. International Revenue Service, 433 F.Supp. 812 (D.C.Ill., 1977). As stated before, the act is "neutral", in the sense that it does not prohibit the disclosure of exempt information. Charles River Park "A" Inc. v. Department of Housing and Urban Development, supra. Hence, any attempts to obviate a particular statutory exemption can only be indicative of good faith *1108 and ought not to be characterized as a waiver, specially in the absence of disclosure to third parties. Cf. State of N. D. ex rel. Olson v. Andrus, 581 F.2d 177 (C.A. 8, 1975); Mead Data Central, Inc. v. U. S. Dept. of Air Force, supra, 184 U.S.App.D.C. 361, 566 F.2d at 253.[21]
Considering the above, we conclude that there is no genuine issue as to any material fact with regard to the F.B.I.'s refusal to amend and that Summary Judgment must be entered for Defendants as a matter of law. The portions of the complaint which seek the amendment of records at the F.B. I.'s Central Record System must be and are hereby dismissed. There being no just reason for delay, the Clerk of the Court shall enter partial Judgment accordingly.
III. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT.
On April 17, 1979 the Plaintiff moved for partial Summary Judgment alleging the absence of a genuine issue as to any material fact regarding the withholding by Defendants of certain documents. We will only address ourselves to the items which have not been considered elsewhere in the present opinion.
A. The Alleged Absence of Itemization and Disclosure.
On March 19, 1976 111 pages of documents were released to Plaintiff. Thereafter, on February 15, 1978, 84 additional pages were released, for a total 195 pages. In his answers to Plaintiff's Interrogatories 9 and 12, Special Agent Loome stated, in response to an inquiry as to the total number of pages of documents in the F.B.I. files falling within the scope of this suit, that there existed 123 pages on Plaintiff and 182 on his son, for a total of 305 pages. Plaintiff argues that, since only 195 pages have been released, there are at least 110 pages which have been completely withheld without any itemization or claim of exemption.
A review of the itemization contained in Exhibit V discloses that Agent Loome's Answer to Interrogatory 9 precisely corresponds to the number of existing documents on Plaintiff, as evinced by said Exhibit V. The main case file in which Plaintiff is the subject of interest (file number XXX-XXXXXX) contains 93 pages and 11 documents. The main case file wherein Plaintiff is the complainant (file number 139-1619), contains 14 pages and 5 documents. Additionally, information concerning Plaintiff appears in 16 pages of files wherein he is not the subject of interest, which have been described as "see" references. Exhibit V demonstrates that, as to the aforesaid three categories, 123 pages have been itemized, which is the precise number stated by the F.B.I. affiant. Plaintiff's argumentation does not take into account the fact that 32 of those pages have been withheld pursuant to the claimed exemptions. The propriety of applying the exemptions to those pages is the precise object of our present endeavor and a fortiori, Plaintiff's insistence on total disclosure on this ground is unwarranted by the record. Disclosure would be appropriate only as to those documents improperly exempted.
The status of the records related to Plaintiff's son is not that clear. The answer to Interrogatory 11 states that the main case file relating to Olaguibeet A. López Vera (file number 44-19270) contains a total of 39 documents, "9 of which relate to Plaintiff's FOIPA request and this litigation", and the rest belonging to the F.B.I.'s Civil *1109 Rights investigation relating to the death of Plaintiff's son. According to the answer to Interrogatory 12, the total number of pages on the subject of Plaintiff's son is 134 pages relating to the F.B.I.'s investigation, plus 48 pages regarding Plaintiff's FOIPA request and this litigation.
Although Defendants have not specifically opposed this part of Plaintiff's Motion, we note at the outset, that the latter 48 pages are entirely in the hands of Plaintiff. They consist of letters exchanged while the administrative proceedings in this case were taking place, and are part of the file in this case. (Defendants' Exhibits A through U). However, as to the remaining pages, there exists, prima facie, a discrepancy between the answers to interrogatories and the index in Exhibit V. There are 32 documents under file number 44-19270 in said Exhibit, all relating to the F.B.I. investigation, comprising 157 pages.[22] Clearly, this discrepancy, if at all, is beneficial to Plaintiff insofar as there are more itemized documents and pages than what is stated in answers 11 and 12. Nevertheless, in order to clarify the doubts which have been cast by this conflict, the Defendants are hereby ORDERED to file an explanation of the inconsistency, within thirty (30) days from the date of this Order.
B. Plaintiff's Photograph, Security Index or Adex Cards.
Page C of Document 34 (Exhibit V) indicates, at paragraph 4, that a suitable photograph of Plaintiff, taken in 1962, is available. In the complaint, Plaintiff demands that the negative, and all copies of said photograph be surrendered by the agency.
The affidavits and exhibits submitted by Defendants do not explain the reasons for non-disclosure of Plaintiff's photograph. It is in their Memorandum in support of the Motion for Summary Judgment that Defendants assert that the contents of each file do not include the alleged photograph and that the agency "undertook a further search for the photograph to no avail." The same is expressed in regard to the Security Index or Adex Card which is also mentioned in page C of Document 34. These unsworn assertions by a U. S. Attorney who did not participate in the search and itemization conducted a quo, cannot controvert the indicia in the record of existence of the photograph and card. Since no evidentiary weight can be attributed to the bare arguments of counsel, and in view of the fact that we have no jurisdiction to deny disclosure on any grounds apart from the specific statutory exceptions (Tax Analysts and Advocates v. Internal Revenue Service, 164 U.S.App.D.C. 243, 248, 505 F.2d 350, 355 (C.A.D.C.1974), Defendants are hereby ORDERED to file, within thirty (30) days, a sufficient affidavit regarding the availability vel non of Plaintiff's photograph[23] and/or Reserve Index Card.
In the event the card is actually extant, the Defendants shall produce the same to Plaintiff, unless sufficient cause is demonstrated to us justifying nondisclosure, within the same period of thirty (30) days.
*1110 C. Documents Originating With Other Federal Agencies.
Three pages of Document 16, Exhibit V, were not released to Plaintiff on the ground that they comprise a document originating with the Post Office Department. Document 45 of the same exhibit, comprising five pages, was also withheld in its entirety by Defendants alleging that it was prepared by the Department of the Army. Finally, the 3 pages of Document 49 were not disclosed under the assertion that it originated with the United States Air Force.
In order to fulfill their duties under the statute, Defendants need demonstrate that each document in existence which has been requested either has been produced, is unidentifiable or is exempt under the Act. National Cable Television Association, Inc. v. F. C. C., 156 U.S.App.D.C. 91, 94, 479 F.2d 183, 186 (1973). Hence, only information which clearly falls within the exemptions listed in the Act may be withheld by a federal agency. General Dynamics Corp. v. Marshall, 575 F.2d 1211 (C.A. 8, 1978).
Nowhere does the statute exempt documents from disclosure by the sole reason that they have originated with an agency other than the F.B.I., and the latter cannot withhold any such document for referral to the originator for direct response to a FOIA complainant. Flower v. F. B. I., supra, at 572. If the record is contained in the files of the F.B.I., it must be released, absent a valid exemption. Ibid.
Considering the above, we are without jurisdiction to affirm the agency's refusal to disclose the aforesaid documents. Analysts and Advocates v. Tax International Revenue Service, supra, 164 U.S.App.D.C. at 248, 505 F.2d at 355. Wherefore, Defendants are granted a period of thirty (30) days in which to show cause why production of these records should not be ordered.
D. COINTELPRO Documents.
Plaintiff requests that all documents originating with the F.B.I.'s Counter Intelligence Program relating to groups and individuals seeking independence for Puerto Rico be disclosed to him by Defendants. We cannot accede to this prayer.
Subsection (a)(3) of the FOIA, 5 U.S.C. § 552(a)(3) requires that federal agencies make records available only upon a request which "reasonably describes" the same. This is of course consistent with the policy of having the concerned agencies handle all demands at the first instance. See, Shermco Industries v. Sec. of U. S. Air Force, 452 F.Supp. 306, 316-317 (N.D.Tex.1978).
A review of the requests submitted by Plaintiff at the administrative level clearly indicates that Plaintiff's demand for records was circumscribed to documents pertaining to him and his son. (See Defendants Exhibits A, C, J, and Oo). The documents now vehemently prayed for by Plaintiff regarding COINTELPRO were never involved in the proceedings before the agency. This is fatal to Plaintiff's prayer.
To permit Plaintiff to press the instant demand in this action would open the door to ad infinitum litigation and would obviate the applicable requirements of exhaustion of administrative remedies. Such a belated request for documents entirely falls outside of the scope of this action and must be pursued in a separate litigation. See, Shermco Industries, Inc. v. Secretary of U. S. Air Force, supra. F. T. C. v. Stanley H. Kaplan, 433 F.Supp. 989 (D.C.Mass.1977); Satra Belarus, Inc. v. NLRB, 409 F.Supp. 271 (D.C.Wis.1976). Accordingly, Plaintiff's Motion for partial summary judgment as to this item is totally devoid of merit. The request is DENIED as improperly brought.
E. The Remaining Items.
In clause 2 of his Motion for Partial Summary Judgment, the Plaintiff states that Defendants have failed to claim any exemption with regard to three items related to Plaintiff's son which, as per Exhibit 2, filed in support of Plaintiff's Motion, originated with the F.B.I. The same is also alleged in Clause 10 of the Motion in relation to certain documents in Seattle, Washington, Field Office Number 9-954, which are mentioned in a letter written on June 20, 1975 *1111 by the Assistant Director of Plans, Programs and Resources. (Defendants' Exhibit Aa)[24]
Although these may well be documents already described, we have no way of adequately ascertaining whether the documents have been included in the itemization submitted by Defendants. In view of this doubt, and considering Defendants' duty to establish through affidavits that no undisclosed documents are contained in their files in the absence of a valid exemption [Marks v. U. S. Dept. of Justice, 578 F.2d 261 (C.A. 9, 1978)], we hereby order the Defendants to show cause, within thirty (30) days, why production of the documents in question should not be ordered.
CONCLUSION
Except to the extent already seen, the Defendants in this case have substantially complied with their obligations under the FOIA and the FOIPA. We note, however, that said compliance has been forced, in no small part, by Plaintiff's arduous, energetic and estimable efforts throughout all the proceedings. We can only hope that both sides of this litigation display a conscientious and reasonable attitude with regard to the outstanding aspects of this suit, in furtherance of the commendable principles of the statutes and in order to expeditiously achieve a satisfactory accommodation of the legitimate contraposing interests.
IT IS SO ORDERED.
NOTES
[1] By letter dated March 19, 1976 the F.B.I. released to Plaintiff 111 pages of material from records maintained in the Central Records of the F.B.I. Headquarters, pertaining to himself and his son, Olaguibeet A. López Vera. Plaintiff filed an administrative appeal on April 21, 1976, as a result of which 84 additional pages were released, along with those previously disclosed, but with fewer excisions.
[2] On October 20, 1978, Defendants' request for dismissal as to the F.B.I., its Director and the Attorney General of the United States was denied by us on the grounds set forth in Hamlin v. Kelley, 433 F.Supp. 180 (N.D.Ill., 1977).
[3] A second request for postponement of the Motion was filed by Plaintiff on that same date. Defendants answered the outstanding interrogatories on April 9, 1979 and the matter is finally ripe for disposition.
[4] The cited provision reads in part:
". . . [T]he court . . . may examine the contents of . . . agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section . . ."
[5] It is conceded that progressive disclosures were made as Plaintiff pursued his administrative remedies. This tends to detract from the need to conduct the examination requested by Plaintiff. Varona Pacheco v. F. B. I., 456 F.Supp. 1024, 1029, (D.C.P.R., 1978).
[6] At the outset we should point out that this allegation has been rendered moot, at least as to the documents covered in Defendants' submission (Exhibit V).
[7] This justification was usually asserted in conjunction with exemption (b)(7)(D), to be discussed hereinafter.
[8] It is interesting to note that the Court in Shaver found ample justification for nondisclosure under the subsection here in question. In so concluding, the Court placed primary reliance on an affidavit prepared by Special Agent John F. Loome, who is also an affiant in this case. 433 F.Supp. at 440, n.2.
[9] In our opinion, there can be no question that the deletions have been made from records clearly compiled for law enforcement purposes, within the meaning of 5 U.S.C. § 552(b)(7). See, Irons v. Bell, 596 F.2d 468 (C.A. 1, 1979); Center for Nat. Policy Review on Race and Urban Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974); see also, Maroscia v. Levi, 569 F.2d 1000 (C.A. 7, 1977).
[10] See note 17, infra.
[11] Excised from page 3 of Document 11, Exhibit V.
[12] The following is one of the descriptions contained in Exhibit V:
"This document is an investigative report prepared by a Special Agent of the FBI, relating to the Civil Rights investigation, wherein plaintiff's son was the alleged victim. The names of Special Agents of the FBI were excised from all pages wherein their names appeared, utilizing exemption (b)(7)(C) to protect their personal privacy. The name of a credit bureau was deleted from page 3, asserting exemption (b)(7)(D), inasmuch as information from this source was received under an implied assurance that the confidentiality of the source would be protected. The name of the credit bureau employee was excised under exemption (b)(7)(C), in order to protect the personal privacy of that individual. Pages 4 through 14 and 55 through 66 contain information received from enforcement authorities in the State of Washington, which was furnished to the FBI under an express assurance of confidentiality. Material was either excised or the complete page was withheld inasmuch as disclosure is protected by exemption (b)(7)(D). This material was expressly requested to be withheld by those authorities. The names and information which would identify individuals interviewed was deleted from pages 35 through 38, asserting exemption (b)(7)(D) in conjunction with (b)(7)(C) to protect them as source or their right to privacy. Pages 39 through 54 also contain the results of interviews with persons who provided information relating to this investigation which were withheld in their entirely asserting (b)(7)(D) in conjunction with (b)(7)(C). Exemption (b)(7)(D) was asserted for material withheld in the above stated pages 35 through 54, inasmuch as the information therein was provided under an implied assurance of confidentiality the disclosure of which would constitute a breach of the confidence under which it was received. Exemption (b)(7)(C) was cited also to protect the personal privacy of the individuals interviewed. The exemption (b)(7)(C) was also utilized to withhold the names of Air Force personnel who witnessed the above stated interviews in order to protect their personal privacy as well."
[13] Vaughn v. Rosen, supra.
[14] We decline to follow the holding in Nemetz v. Department of the Treasury, 446 F.Supp. 102 (N.D.Ill., 1978) insofar as it may apply to subsection (b)(7)(D). The Court in Nemetz was dealing with exemption 552a(k)(5) of the FOIPA.
[15] Quotation taken from Church of Scientology, etc. v. U. S. Dept. of Justice, 410 F.Supp. 1297, 1303 (C.A.Cal.1976).
[16] This information has been withheld in its entirety. It covers pages 4 through 14 and 55 through 66 of Document 11.
[17] It should also be noted that, to the extent that statutes of the State of Washington forbid disclosure, Section 552(b)(3) of the FOIA arguably furnishes additional support for the deletions in Document 11. See, National Commission on Law Enforcement and Social Justice v. Central Intelligence Agency, 576 F.2d 1373 (C.A. 9, 1978), but see, American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 574 F.2d 624 (1978).
[18] Agent Strong serves in a supervisory capacity in the Review Unit, Document Classification and Review Section, Records Management Division at F.B.I. Headquarters in Washington, D.C.
[19] In reading this conclusion we adhere to the view that "[a]n analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual language of the document." Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 346-47, 484 F.2d at 826-827.
[20] The complaint further avers that the F.B.I., after refusing to amend Plaintiff's and his son's records, failed to inform him of the internal review procedures, and did not inform him of the provisions for judicial review in asserted contravention of 5 U.S.C. § 552a(d)(2)(A), (d)(3) and (d)(2)(B)(ii). [Paragraphs XVIII, XIX, XX and XXX of the Second Amended Complaint]. Since we hold that the agency's refusal to amend the record is properly before this Court for decision, we fail to see how Plaintiff is being prejudiced in these proceedings by any such past nonfeasance. Accordingly, we conclude that this part of the complaint fails to state an actionable claim for relief and, there being no just reason for delay the same is therefore dismissed. See, Lybarger v. Cardwell, 577 F.2d 764, 767 (C.A. 1, 1978); Marks v. Central Intelligence Agency, supra, at 710, n. 3 (D.C.D.C., 1976); see also, Mead Data Central, Inc. v. U. S. Dept. of Air Force, supra, 184 U.S.App.D.C. 359, 566 F.2d 251. Judgment shall be entered accordingly.
[21] 5 U.S.C. § 552a(e)(7) prohibits agencies to maintain any record "describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or . . . unless pertinent to and within the scope of an authorized law enforcement activity." (Emphasis added). We believe that the affidavits filed in this case allege facts establishing a colorable claim of a law enforcement purpose in the F.B.I. investigations conducted. (See pp. 10-12 of the Loome's affidavit). See Irons v. Bells, supra, 596 F.2d 468 (C.A. 1, 1979). We thus reach a conclusion at variance with Judge Skinner's concerning the sufficiency of the sworn statement. Ibid. Furthermore, we hold that all investigative files of the F.B.I. fall under the exception contained in 5 U.S.C. § 552a(e)(7). Id., at pp. 474-476. Therefore, Paragraph XVI of the Second Amended Complaint is hereby dismissed. There being no just reason for delay, Judgment shall be entered accordingly.
[22] Of these, 39 have been withheld pursuant to asserted claims for exemption, something which has been totally obviated by Plaintiff in his Motion.
[23] We should point out, however, that Plaintiff is in effect requesting an expunction of the photograph from the record, something which would seem to fall within the exception discussed in Part II(D) of the present opinion. Moreover, apart from the hurdles presented with the all-or-nothing choice presented by Plaintiff, there are indications to the effect that disclosure of a photograph falls outside of the ambit of the FOIA. The statute deals with "records", which has been understood as that which is written or transcribed to perpetuate knowledge or events. Nichols v. United States, 325 F.Supp. 130 (D.C.Kan., 1971), aff'd. 460 F.2d 671 (C.A. 10, 1972), cert. denied 409 U.S. 966, 93 S.Ct. 268, 34 L.Ed.2d 232. On this basis, it has been intimated that neither the FOIA nor the FOIPA entitle Plaintiff to obtain the photograph requested. DiViaio v. Kelley, 571 F.2d 538, 542-543 (C.A. 10, 1978). We need not decide this conclusively, however, in light of our holding above, and in view of the fact that we cannot anticipate Defendants' response. See, Charles River Park "A" Inc. v. HUD, supra.
[24] Clause 11 of Plaintiff's Motion, dealing with a reference to Plaintiff's participation in an activity prior to the date when Defendants state that compilation of records on Plaintiff was commenced, fails to raise any genuine issue of material fact when viewed against the Sworn Statement of Agent Loome to the effect that "[t]he first record contained in the investigatory file wherein Plaintiff is the subject of interest . . . is a report dated April 28, 1965." (Answer to Interrogatory 2). A reference to a past activity of Plaintiff in page 6 of Document 33, Exhibit V, falls short of pointing towards the existence of older documents on Plaintiff, and does not genuinely place in issue the Sworn Statement of Agent Loome. See, Hahn v. Sargent, 523 F.2d 461 (C.A. 1, 1975), cert. denied 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363062/ | 470 F. Supp. 600 (1979)
John LEAKE, on behalf of himself and all other persons similarly situated, Plaintiffs,
v.
ELLICOTT REDEVELOPMENT PHASE II, Henry Van Landingham, Individually and in his capacity as manager of Towne Gardens Phase II Apartments and their agents, subordinates and employees, Defendants.
CIV-79-322.
United States District Court, W. D. New York.
May 4, 1979.
*601 James A. Kreuzer, Neighborhood Legal Services, Inc., Buffalo, N.Y., for plaintiff.
William A. Sims, Buffalo, N.Y., for defendants.
MEMORANDUM
ELFVIN, District Judge.
In my Order of May 3, 1979, I preliminarily enjoined defendants from "prosecuting the summary eviction action now pending in Buffalo City Court which is captioned TOWNE GARDENS, LTD. v. JOHN LEAKE, Index No. 62600." The following constitutes my Memorandum regarding said Order.
Plaintiff seeks a preliminary injunction under Fed.R.Civ.P. rule 65 enjoining defendants from evicting him and others similarly situated from a federally subsidized housing project designed for low and moderate income tenants. Inasmuch as plaintiff has not yet moved for class certification of the instant action, the discussion which follows and the relief ordered in my May 3rd Order is limited to him alone. Plaintiff asserts that his pending eviction is violative of Department of Housing and Urban Development ("HUD") regulations set forth at 24 C.F.R. § 450.1-7.
Oral argument was held April 26, 1979. Thereafter defendants agreed to delay any further eviction proceedings until May 4th or thereafter. The following facts alleged in plaintiff's verified complaint and exhibits thereto are not disputed by defendants. Plaintiff is a tenant of Towne House Gardens Phase II Apartments, a federally subsidized project within the meaning of 24 C.F.R. § 450.2(e). Among the provisions in plaintiff's rental agreement are a covenant that the tenant "pay the rent herein stated promptly when due" (¶ 9) and a provision permitting the landlord "at his election or option, to re-enter and take possession of the dwelling unit" if a tenant should fail to pay rent when due or fail to comply with any other provisions of the rental agreement (¶ 16).[1] By letter of February 27, 1979, defendant Van Landingham provided a thirty-day termination notice of the rental agreement. As grounds therefor, Van Landingham cited substantial violations of the rental agreement to wit, 12 late payments of rent, 3 late payments of rent in less than the full amount and 2 failures to pay any rent. Subsequently, defendants commenced summary eviction proceedings in the City Court of Buffalo (N.Y.) and a hearing was scheduled for April 25th.
A preliminary injunction may not be granted unless the moving party demonstrates "possible irreparable injury and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief." Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978).
*602 During oral argument, plaintiff asserted that the instant rental agreement does not contain provisions implementing subpart A of subchapter J of HUD's regulations (24 C.F.R. § 450.1-7), which set forth the requisite procedure and grounds for evicting tenants from federally subsidized projects.[2] In particular, plaintiff argues that defendants' failure to incorporate section 450.3 (which permits a landlord to evict such tenant for non-payment of rent) renders the pending eviction violative of plaintiff's due process rights in that plaintiff did not have notice that such non-payment constituted grounds for eviction. My examination of paragraph 16 of the rental agreement shows that while such provision does not conform in all respects with the criteria set forth in section 450.3, plaintiff was put on sufficient notice that he could be evicted for failure to pay rent. Inasmuch as plaintiff has not been prejudiced by defendants' failure to incorporate said section into the rental agreement, I find that plaintiff's due process rights have not been violated by such failure. In addition, I find unpersuasive an argument advanced by plaintiff that defendants are estopped from evicting him by reason of their past practice of accepting late rental payments. Paragraph 17 of the lease which assesses a penalty charge of $5.00 for late payments, clearly gives defendants the option of accepting such payments and does not estop them from evicting a tenant for his failure to make subsequent rental payments when due.
However, plaintiff further contends in his verified complaint that he was not given proper notice of termination as required by 24 C.F.R. § 450.4. Plaintiff argues that the notice he received did not contain information required by section 450.4(a) and was not served in the manner prescribed by section 450.4(b).
Section 450.3 provides in part that "[n]o termination shall be valid unless it is in accordance with the provisions of § 450.4." The pertinent portion of § 450.4 states:
"(a) Requisites of termination notice.
"The landlord's determination to terminate the tenancy shall be in writing and shall * * * (2) state the reasons for the landlord's action with enough specificity so as to enable the tenant to prepare a defense; (3) advise the tenant that if a judicial proceeding for eviction is instituted the tenant may present a defense; and (4) be served on the tenant in the manner prescribed by paragraph (b) of this section.
"(b) Manner of service. The notice provided for in paragraph (a) of this section shall be accomplished by (1) sending a letter by first class mail, properly stamped and addressed, to the tenant at his address at the project, with a proper return address, and (2) by serving a copy of said notice on any adult person answering the door at the leased dwelling unit, or if no adult responds, by placing said notice under or through the door. Service shall not be deemed effective until both notices provided for herein have been accomplished. * * *"
My review of the notice of termination shows it to be insufficient in one or more regards. First, the notice does not advise plaintiff that if a judicial proceeding for eviction is instituted he may present a defense. Such statement is required by section 450.4(a)(3). Second, while the notice appears to state with sufficient specificity the reasons for defendants' action as required by section 450.4(a)(2), section 450.4(e) indicates that such notice should also state the dollar amount of the balance due on the rent. Third, the notice was apparently served by mailing it to plaintiff without in addition serving a copy on an adult person at the leased premises or placing such notice under the door, as required by section 450.4(b). Thus, I find that the notice herein does not comport with HUD regulations set forth in section 450.4 and that termination pursuant to said notice would be invalid. Inasmuch as plaintiff has demonstrated the *603 possibility of irreparable injury and probable success on the merits, defendants must be enjoined from prosecuting the summary eviction proceedings pending in the City Court which seek to evict plaintiff pursuant to the invalid notice of termination.
NOTES
[1] The full text of paragraph 16 states:
"TENANT further agrees that if he should fail to pay the rent herein stipulated promptly when due, or should fail to comply with any and all other provisions of this Lease, then it shall be lawful for the LANDLORD, at his election or option, to re-enter and take possession of the dwelling unit, the TENANT hereby expressly waiving any and all notices to vacate said dwelling unit, and thereupon this Lease shall terminate, without prejudice, however, of the right of the LANDLORD to recover from the TENANT all rent due up to the time of such re-entry."
[2] 24 C.F.R. § 450.70 requires that "[e]very rental agreement entered into or renewed on or after the date on which this subpart is applicable to such tenant shall contain appropriate provisions implementing this subpart." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363064/ | 470 F. Supp. 1048 (1979)
In re Thomas M. COVEY d/b/a Tom's Appliance & Refrigeration, Bankrupt.
NORTHFIELD SAVINGS BANK
v.
John F. NICHOLLS.
No. B78-20, Civ. No. 78-136.
United States District Court, D. Vermont.
May 2, 1979.
Joseph C. Palmisano, Barre, Vt., for Covey.
Peter F. Young, Jr., Young & Monte, Northfield, Vt., for Northfield.
John F. Nicholls, Abare, Donaghy, & Nicholls, Barre, Vt., for respondent.
Memorandum of Decision
HOLDEN, Chief Judge.
This proceeding is presented by way of a petition for review of the decision of the *1049 Bankruptcy Court, Honorable Charles J. Marro, ordering dismissal of the Northfield Savings Bank to reclaim a 1974 Dodge pickup truck from the estate of the bankrupt, Thomas M. Covey. By agreement of counsel, the case was submitted without hearing in this court on the record and written memoranda of law. The facts are not in dispute and are agreed by the parties. The narrow question for review is whether the Bank had perfected a security interest in the subject vehicle.
On May 27, 1976, the Northfield Savings Bank (hereinafter "Bank") extended credit to Thomas and Gloria Covey in order that they might purchase a 1974 Dodge pickup truck. To secure the loan of $3,100 the Bank took a lien upon real property owned by the Coveys, rather than a security interest in the truck to be purchased. The Bank issued a check for the purchase price, payable to Dion Motors, the seller of the vehicle. The seller, assuming that the Bank had a security interest in the truck, listed the Bank as a first lienholder on the application for Certificate of Title. On June 17, 1976, the Commissioner of Motor Vehicles issued and sent to the Bank a Certificate of Title for the vehicle, indicating that the Bank was the first lienholder as of May 27, 1976. The agreed facts establish that there was no lien on the truck on that date. At that time neither the Bank nor the owners intended to create a security interest in the property. The reference to the Bank as first lienor was done at the instance of the seller through a misunderstanding.
On September 1, 1976, the Coveys gave a second promissory note and entered a security agreement, giving the Bank a security interest in the Dodge truck in the amount of $3,100. It was the intent of the parties to this transaction to substitute the security agreement on the truck for the security provided by the real estate mortgage given by the Coveys in May. The new loan was given to pay the original mortgage obligation. The bankrupt is indebted to the plaintiff on the September loan in the amount of $1,805. The Bankruptcy Judge held that since the Bank failed to file the application listing September 1 as the date of its lien, its security interest was not perfected. It is from this ruling that the Bank appeals.
The Bank argues that its failure to file is a minor error resulting in neither prejudice nor hardship to other creditors. Since the existing Certificate of Title was sufficient to put any subsequent purchaser, creditor, or lienholder of the bankrupt on notice as to the existence of the Bank's security interest, it should be regarded as having a perfected security interest in the truck. The Bank contends that this "accommodation" would not undermine the constructive notice policy of the Uniform Commercial Code's general scheme regarding the perfection of security interests.
Since the Dodge truck was a model subsequent to the year 1971, a certificate of title was required at the time of its registration. 23 V.S.A. § 2013(a). When the certificate was issued by the commissioner there was no security interest in the vehicle since the parties had entered no agreement to this effect. It was not until the following September that the Bank and the Coveys sought to create a security interest in the subject property.
The Vermont Motor Vehicle law imposes certain duties on the parties who seek to create a security interest in a previously registered vehicle. 23 V.S.A. § 2043. Added 1969, No. 297 (Adj.Sess.), § 1, eff. Sept. 1, 1971:
If an owner creates a security interest in a vehicle:
(1) The owner shall immediately execute the application, in the space provided therefor on the certificate of title or on a separate form the commissioner prescribes, to name the lienholder on the certificate, showing the name and address of the lienholder and the date of his security agreement, and cause the certificate, the application and the required fee to be delivered to the lienholder.
(2) The lienholder shall immediately cause the certificate, the application and the required fee to be mailed or delivered to the commissioner.
The statute further provides the method of perfecting the interest.
*1050 § 2042. Perfecting security interest
(a) Unless excepted by section 2041 of this title, a security interest in a vehicle of a type for which a certificate of title is required is not valid against creditors of the owner or subsequent transferees or lienholders of the vehicle unless perfected as provided in this subchapter.
(b) A security interest is perfected by the delivery to the commissioner of the existing certificate of title, if any, an application for a certificate of title containing the name and address of the lienholder and the date of his security agreement and the required fee. It is perfected as of the time of its creation if delivery is completed within ten days thereafter, otherwise as of the time of the delivery.
It is established in the record submitted for review that these statutory demands were not met. Although there is nothing ambiguous about these provisions, the appellant urges that the court should apply the principles and precepts of the Uniform Commercial Code, specifically 9A V.S.A. § 9-203. The Uniform Commercial Code was enacted in 1966; the pertinent provisions of the Motor Vehicle law were added in 1969 for effect in 1971. And the lawmakers, in the subsequent legislation, specifically provided:
The method provided in this subchapter of perfecting and giving notice of security interests subject to this subchapter is exclusive. Security interests subject to this subchapter are hereby exempted from the provisions of law which otherwise require or relate to the filing of instruments creating or evidencing security interests.
23 V.S.A. § 2047. Added 1969, No. 297 (Adj.Sess.), § 1, eff. Sept. 1, 1971. See also 1972 Op.Atty.Gen. 348.
In the face of the explicit statutory commands, essential for the creation and perfecting of a security interest in a previously registered motor vehicle, reliance on statutory construction of concepts of the Uniform Commercial Code is misplaced. In the absence of a validly created security interest in the motor vehicle, the appellant's argument that its security interest in the truck "relates back" to the time of its creation within the provisions of 23 V.S.A. § 2042(b) is not persuasive. There was no delivery to the commissioner of any application concerning the security agreement of September 1, 1976. Prior to that date the parties had no intention of creating a lien on the vehicle. Although the parties undertook to create a security interest in the property by their September agreement, the interest was never perfected within the provisions of the statute for the reason that no application concerning the newly created lien was ever delivered to the commissioner.
The order of the Bankruptcy Judge is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363069/ | 596 P.2d 17 (1979)
STATE of Alaska, DEPARTMENT OF HIGHWAYS, Appellant,
v.
Benjamin T. SALZWEDEL and Dorothy E. Salzwedel, Appellee.
No. 3976.
Supreme Court of Alaska.
June 15, 1979.
Abigail G. Dodge, Michael Sewright, Asst. Attys. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellant.
Leroy J. Barker, L.G. Berry, of Robertson, Monagle, Eastaugh & Bradley, Anchorage, for appellee.
Before RABINOWITZ, C.J., CONNOR, BOOCHEVER and MATTHEWS, JJ., and DIMOND, Senior Justice.
OPINION
BOOCHEVER, Justice.
The superior court awarded Benjamin and Dorothy Salzwedel $16,733.76 in costs *18 and attorney's fees[1] assessed against the State of Alaska in a condemnation proceeding. The state appeals certain aspects of that award. We find that the award improperly included two kinds of expenses: first, the Salzwedels' attorney's fees and costs resulting from proceedings before this court; and second, the Salzwedels' attorney's fees and costs resulting from their unsuccessful efforts to secure compensation for the taking of an expectancy of a renewal of a lease. Accordingly, we remand so that these sums may be subtracted from the Salzwedels' fee award.
The State Department of Highways filed a declaration of taking of a parcel of land owned by Benjamin and Dorothy Salzwedel. The Salzwedels agreed to authority for the taking, but contended that additional compensation should include the going concern value of their business and the value of an expectancy of a lease on an adjacent parcel. The state moved for partial summary judgment on the lease claim. The superior court granted the motion, based on the clear authority of Stroh v. Alaska State Housing Authority, 459 P.2d 480 (Alaska 1969). The superior court, however, awarded the Salzwedels fees and costs for unsuccessfully defending against the state's motion because the state could have moved for summary judgment much earlier.[2] Both parties unsuccessfully petitioned this court for review of the order adverse to them. [Supreme Court Case Nos. 3667 and 3851] While the petitions were before this court, the parties settled the case. The superior court made a second fee award to the Salzwedels, indicating that it would supercede the earlier award.
The state challenges the superior court's inclusion in the awards of any fees and costs related to the supreme court proceedings and the lease expectancy claim.
I. SUPREME COURT COSTS
A portion of the Salzwedels' fee award represents costs incurred on petitions for review to this court.[3] The state argues that the superior court had no jurisdiction to award fees for proceedings before the supreme court. The supreme court, according to the state, awards fees and costs arising from supreme court proceedings. It makes those awards pursuant to Appellate Rule 29:
Costs.
(a) Dismissal or Denial. If an appeal is dismissed or petition denied by this court, costs shall not be allowed to the appellee or respondent, unless otherwise ordered by the court.
(b) Affirmance of Judgment. In all cases of affirmance of a judgment or any order or decision of the superior court, costs shall be allowed to the appellee or respondent unless otherwise ordered by the court.
(c) Reversal of Judgment or Order. In cases of reversal by this court of any judgment, order or decision of the superior court, costs shall be allowed the appellant or petitioner, ... unless otherwise ordered by the court.
(d) Attorney's Fees. Where costs are allowed in this court, attorney's fees may also be allowed in an amount to be determined *19 by the court. If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney's fees may be awarded to the appellee or cross-appellee.
The Salzwedels argue that Civil Rule 72(k) governs fee awards for all condemnation-related proceedings, including appeals to the supreme court. It provides:
Costs. Costs and attorney's fees incurred by the defendant shall not be assessed against the plaintiff, unless:
(1) the taking of the property is denied, or
(2) the award of the court was at least ten (10) percent larger than the amount deposited by the condemning authority or the allowance of the master from which an appeal was taken, or
(3) the action was dismissed under the provisions of subdivision (i) of this rule, or
(4) allowance of costs and attorney's fees appears necessary to achieve a just and adequate compensation of the owner. Attorney's fees allowed under this subdivision shall be commensurate with time committed by the attorney to the case throughout the entire proceedings. [emphasis added]
The Salzwedels argue that the phrase "throughout the entire proceedings" permits the superior court to award costs for condemnation-related supreme court petitions or appeals.
We do not agree. The phrase "throughout the entire proceedings" in Civil Rule 72(k) refers to all phases of the proceedings" in Civil Rule 72(k) refers to all phases of the proceedings before the superior court. It does not mean proceedings before the supreme court.
Appellate Rules govern appellate proceedings. In Continental Insurance Co. v. United States Fidelity and Guaranty Co., 552 P.2d 1122, 1127 (Alaska 1976), we held that it was error for the superior court to award fees for a supreme court appeal:[4]
Article IV, Section 15 of the Alaska Constitution provides in part that the Supreme Court shall "... make and promulgate rules governing practice and procedure in civil and criminal cases in all courts." Pursuant to this constitutional grant, this court promulgated Rule 29, Appellate Rules, which vests the discretion to determine costs and attorney's fees pertaining to appeals in this court. In short, by rule in general, this court has the authority to award costs in connection with an appeal to the Supreme Court of Alaska.
We acknowledge "the special status" of condemnees, City of Anchorage v. Scavenius, 539 P.2d 1169, 1175 (Alaska 1975), as persons who are in court merely because the government happens to need their property for a public purpose. Appellate Rule 29 can accommodate that special status. It provides for fees to successful appellants or petitioners, and thus a successful property owner will receive fees. The rule also permits the court to disallow fees for successful petitioners or appellants, and thus this court could disallow costs to a successful government petitioner or appellant.[5] If the property owner unsuccessfully petitions or appeals, as here, the rule permits this court to award fees.[6]
*20 Thus, the superior court was without jurisdiction to award the Salzwedels fees for supreme court proceedings.[7]
II. LEASE-EXPECTANCY COSTS
The trial court awarded the Salzwedels expenses they incurred in developing their claim for the taking of an expectancy of a lease renewal.[8] Both parties agree that Civil Rule 72(k)(4), as interpreted by Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974), governs the propriety of that award. Civil Rule 72(k)(4) provides that a property owner's costs and attorney's fees may be assessed against the condemning authority when such "allowance . . appears necessary to achieve a just and adequate compensation of the owner."[9]
In Stewart & Grindle, three property owners appealed from the denial of their motions for costs. All three cases settled out of court for amounts far greater than the state's initial offer, but the property owners did not meet any of the three specific conditions for fees in Civil Rule 72(k)(1), (2) or (3).[10] We held that owners who did not meet any of these conditions were entitled to fees under Civil Rule 72(k)(4) if the expenses were "necessarily incurred":
We believe that Rule 72(k)(4) when construed in the framework of the "just compensation" clauses of the United States and Alaska constitutions does entitle the property owner to be made whole for expenses necessarily incurred in connection with the condemnation of his property. Without such a rule, the State forces a property owner to pay a greater portion of the costs of a public project than any other taxpayer must pay by afflicting him with the unavoidable expenses of condemnation. Placing such a burden on the property owner is no more than just than assessing a levy against him but no others.
524 P.2d at 1250 (emphasis in original).[11]
Our holding in Stewart & Grindle does not mean that the state must become the guarantor of costs incurred in advancing every possible legal theory an owner may have in an eminent domain proceeding.[12]*21 The Salzwedels sought compensation for the loss of an expected renewal of a lease. They had leased a parcel for a number of years, and the state did not renew the lease in 1973 because it needed the land for an airport access road. In Stroh v. Alaska State Housing Authority, 459 P.2d 480, 482 (Alaska 1969), we squarely held that a tenant's expectation of renewal of a lease was not a compensable interest.[13] Thus, expenses developing this claim were not "necessarily incurred" within the meaning of Civil Rule 72(k)(4).[14]
We cited two factors in Stewart & Grindle which indicated that the owners' expenses were necessarily incurred: land with no established market value and an initial grossly inadequate offer of compensation by the state. 524 P.2d at 1250-51.[15] The Stewart & Grindle factors do not characterize the Salzwedels' expectancy of a lease renewal. That interest had no compensable value. The state offered zero dollars for the lease expectancy, deposited zero dollars for it, and eventually paid zero dollars for it.
The trial court implicitly viewed the government's "late" successful motion for summary judgment as equivalent to an inadequate offer of compensation.[16] This reasoning is faulty. The government is under express, constitutional obligation to compensate the property owner adequately for a taking. Civil Rule 56 govern motions for summary judgment and neither it, nor the federal rule on which it is based,[17] imposes any duty to move for summary judgment, let alone move at some unspecified time prior to the date set for the close of motions.[18] Furthermore, the Salzwedels themselves could have moved for partial summary judgment on the question of law involved in the lease-expectancy claim, thereby avoiding whatever expenses that an earlier motion by the state could have avoided.
We hold that it was error to award fees incurred in unsuccessfully seeking compensation for the expectancy of renewal of the lease. The case is remanded for modification of the awards for costs and fees in accordance with this opinion.
REMANDED.
BURKE, J., not participating.
NOTES
[1] This decision uses the terms "fees" and "costs" interchangeably to mean both attorney's fees and court costs.
[2] The trial court reasoned that the exchange of appraisal reports in May 1976 informed the state that it differed with the Salzwedels over whether their loss of the expected renewal of the lease on parcel 19 was a compensable interest. The state, according to the trial judge, by waiting until September 2, 1977 to move for summary judgment on the lease claim, caused the Salzwedels expense in preparing on the summary judgment claim and therefore was obligated for those expenses.
[3] The Salzwedels incurred $3,462.50 of their $16,733.76 fee award in connection with two matters before the supreme court. The lion's share, $3,147.00, represented the cost to the Salzwedels of unsuccessfully petitioning this court for review of summary judgment on the lease claim. The remainder, $315.50, was the cost to the Salzwedels of defending against the state's unsuccessful petition for review of the award of attorney's fees in connection with the summary judgment motion.
[4] In Continental, the mandate we had issued in the previous appeal directed that costs be awarded to neither party.
[5] Cf. City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975) (when state appeals a master's award in a condemnation proceeding to the superior court, state may not recover attorney's fees even though it prevails).
[6] Furthermore, the guidelines in Appellate Rule 29 are specific to petitions for review or appeals, and thus produce more sensible results for allowing fees than would Civil Rule 72(k). The allowance or disallowance of fees in Appellate Rule 29 is keyed to the outcome of the particular petition or the particular appeal. The allowance of fees under Civil Rule 72(k) is basically keyed to the outcome of the entire condemnation action. In a particular case, for example, assume the property owners were unsuccessful in their petition and assume, arguendo, they met the requirements of Civil Rule 72(k)(2) for award of fees, namely that "the award of the court was at least ten (10) percent larger than the amount deposited by the condemning authority or the allowance of the master from which an appeal was taken." The overall outcome of the condemnation action should not require a fee award for a petition for review when the petition may have been frivolous.
[7] The Salzwedels have never asked this court to award them the expenses they incurred in the petitions for review. We do note, however, that the reasons which are discussed in Part II of this opinion for holding that the superior court's grant of lease-related fees was error, would prevent this court from awarding the Salzwedels costs for their petition for review, even if costs had been timely requested. The $315.50 spent by the Salzwedels in resisting the state's petition for review would require different analysis, had the issue been timely presented.
[8] The Salzwedels also incurred legal expenses resulting from the taking of the parcel which they owned. The government does not resist payment of any of those expenses.
[9] See page 19 supra for text of Civil Rule 72(k).
[10] The taking had not been denied; there was no court award ten percent higher than the amount deposited by the state; and neither the state nor the court had dismissed the condemnation action.
[11] The federal and state constitutional guarantees of just compensation when the government takes private property for a public use are set forth in U.S.Const. amend V; Alaska Const., art. 1, § 18.
[12] In City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975), we held that requiring a property owner to pay the government's legal fees when the government successfully appealed a master's compensation award would chill the owner's exercise of his or her right to just compensation. That holding does not suggest the government must pay the owner's fees when the government successfully challenges an owner's claim.
Of course, an owner is not barred from advancing unprecedented claims. When the owner is represented under a contingent fee arrangement, whether such claims are advanced will depend primarily on whether counsel is willing to invest the time and effort in pursuing the claim. Otherwise, the owner must decide whether to incur the expense required to prosecute the claim. In either event, we do not believe that the state should bear the costs of the owner's unsuccessful speculative efforts.
[13] We stated:
A tenant's right of renewal of a lease refers to a legal right, and this exists only when the lease expressly grants to the tenant the option to renew the lease at the end of its term. A mere expectation, or even probability, that the lease will be renewed based upon past practice and present good relations between landlord and tenant, is not a legal right of renewal. It is nothing more than a speculation on chance. Intentions which are subject to change at the will of a landlord do not constitute an interest in land so as to confer upon the tenants something to be valued and compensated for in a condemnation action.
459 P.2d at 482. The Salzwedels' lease did not have a right of renewal.
[14] We do not decide that a property owner's expenses in developing a compensation claim that the government defeats can never be reasonably incurred. We would have a different situation if the Salzwedels' claim involved an issue we had not decided and one about which other jurisdictions were divided.
[15] In Greater Anchorage Area Borough v. 10 Acres, 563 P.2d 269 (Alaska 1977), we awarded fees based on Rule 72(k)(4) and the Stewart & Grindle gloss on the rule:
In this case, as in Stewart & Grindle, the amounts initially offered to [the defendants] were sufficiently low to "have led the property owners to believe that it would be necessary to retain an attorney in order to obtain just compensation for the taking of their property."
563 P.2d at 273 (footnote omitted).
[16] The Salzwedels imply that the timing of the state's motion for partial summary judgment was in bad faith. The record does not suggest this, and the trial court did not so find.
[17] Fed.R.Civ.P. 56.
[18] The state moved for partial summary judgment two weeks before the date set for close of motions. The trial judge admitted the motion was "technically timely." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363057/ | 226 Kan. 26 (1979)
596 P.2d 805
JAMES D. MURRAY, et al., Appellants,
v.
STATE OF KANSAS, et al., Appellees.
No. 49,565
Supreme Court of Kansas.
Opinion filed June 9, 1979.
John D. Conderman, of Arthur, Green, Arthur & Conderman, of Manhattan, argued the cause and was on the brief for the appellants.
Donald Patterson, of Fisher, Patterson, Sayler & Smith, of Topeka, argued the cause and was on the brief for appellees Albert D. Wood, Frank Miller, Jr., and Winifred Miller; Janet Chubb, assistant attorney general, argued the cause, and Curt T. Schneider, attorney general, and Jonathan P. Small, assistant attorney general, were with her on the brief for appellee State of Kansas.
The opinion of the court was delivered by
MILLER, J.:
This is an appeal by the plaintiffs, James D. Murray and Jeanne F. Hoffman, individually and as trustees of certain trusts created in the wills of Edward F. Murray, Sr. and Esther M. Murray, from judgment entered in the Riley District Court quieting title to certain real estate in the defendant, Albert D. Wood, and quieting title to certain other real estate in the defendants, Frank Miller, Jr. and Winifred Miller. The plaintiffs, who will be referred to as the Murrays, are the appellants; defendants Wood and the Millers, together with the State of Kansas, appear as appellees.
Prior to 1951, land owned by the Murrays, land owned by the Millers, and land owned by Wood, were each riparian to the Kansas river, a navigable stream. The river channel changed suddenly, or by avulsion, following the 1951 flood. The State of Kansas, in 1967, sold the abandoned riverbed to the Millers and to Wood, and issued patents to them. The principal issues before us in this appeal are whether the river channel moved by accretion or avulsion during the period from 1857 to 1951; whether the State owned the land it sold in 1967; and whether the sale and conveyance by the State, without notice to the Murrays, was procedurally and constitutionally valid.
OWNERSHIP OF THE LAND
The land here involved lies in the west half and the northeast *28 quarter of section 33, township 10 south, range 7 east of the 6th principal meridian in Riley County, Kansas. Murrays owned (for all purposes here involved) the northwest quarter of section 33. Wood and the Millers owned land in the southwest quarter of section 33, and the Millers also owned a tract in the northeast quarter of that section. According to the 1857 government survey, the Kansas river channel traversed the southwest quarter of section 33, starting in approximately the middle of the south line of the southwest quarter and proceeding in a northeasterly direction toward the northeast corner of that quarter section. The river proceeded across the southeast corner of the northwest quarter and then continued into the east half of section 33.
The Millers, Wood, and the Murrays each derived title by mesne conveyances from the patentees designated in United States Patents issued more than a century ago. The Millers were the owners of Lot 5, which originally included all that part of the southwest quarter of section 33, lying east of the Kansas river, and also Lot 3, which included all that part of the northeast quarter of section 33 lying east of the Kansas river. Wood was the owner of Lots 6 and 7, which included all that part of the southwest quarter of section 33 lying west of the Kansas river. The Murrays were the owners of Lot 2, which included all that part of the southeast quarter of the northwest quarter of section 33 lying north and west of the Kansas river. The 1857 survey indicates that Lot 2 then contained 31 acres. Between 1857 and 1951, the river channel moved in a northwesterly direction into the northwest quarter, thus markedly reducing the acreage in Lot 2 lying north and west of the river. Immediately prior to the 1951 flood, Lot 2 had shrunk to approximately 9 acres, plus railroad and highway rights of way and a small triangular acreage north and west of the highway which is not involved here. During the flood, the nine acre tract was further eroded, and the river cut a new channel about one mile to the southeast.
A CHANGE IN FEDERAL DECISIONAL LAW
The petition was filed and this case was commenced on December 14, 1973. Three days later, on December 17, 1973, the United States Supreme Court handed down its opinion in Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 38 L. Ed. 2d 526, 94 S. Ct. 517 (1973), holding that ownership of the abandoned riverbed of a navigable stream is governed by federal law. The Colorado river's *29 course was changed by a federal rechanneling project; the Supreme Court of Arizona had held that the change in the river's course was an avulsive change, and that under Arizona law, title to the abandoned riverbed remained in the State. The United States Supreme Court reversed, holding that title to the abandoned riverbed vested in the riparian landowners under the applicable federal common law.
The case now before us was briefed and tried under the Bonelli doctrine. However, before a final judgment was entered, the United States Supreme Court on January 12, 1977, announced its decision in State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 50 L. Ed. 2d 550, 97 S. Ct. 582 (1977), overruling the Bonelli decision. Corvallis holds that the determination of title to the abandoned bed of a navigable river is a matter determinable under state law, rather than under the federal common law.
At the time the decision in Corvallis was announced, the trial court in this case had communicated its findings to counsel, but stated that a journal entry of judgment could not be entered until a survey was made; thus, no journal entry had been filed and judgment had not been entered. Shortly after the Corvallis decision was announced, defendants Miller and Wood filed a motion asking the trial court to set aside its conclusions of law (which were based on Bonelli); to adopt new conclusions, based on Corvallis and the applicable Kansas law; and to settle the form of the journal entry. That motion was sustained, and the final journal entry of judgment was filed September 19, 1977, incorporating the Corvallis holding as the law of this case.
THE TRIAL COURT'S JUDGMENT
The evidence was hotly disputed; there was testimony from the parties; from many witnesses who had observed the land from shortly after the turn of the century until the time of trial; and from expert witnesses: surveyors, a geologist, and a forester. The trial judge made detailed findings and conclusions 41 separate findings of fact and 27 conclusions of law which we summarize as follows:
FINDINGS OF FACT
"2. By a patent issued by the United States of America, dated September 1, 1860, plaintiffs' predecessors in title were granted title to [lot 2, section 33, township ten south, range 7 east, in the district of lands formerly subject to sale at Ogden now Junction City, Kansas].
*30 "3. Lot 2 ... was bordered at the time of the Government Survey [1857] ... on the south and east by the Kansas River....
....
"5. Plaintiffs acquired title to [lot 2, with certain exceptions not here material] as a result of the administration of the estates of Esther Mabel Murray and E.F. Murray, Sr.
....
"7. Miller, on the 24th day of April, 1957, by Warranty Deed, acquired title to Lot 5....
"8. On the 29th day of June, 1956, Miller acquired title to a portion of Lot 3....
"8a. At all and any times material to this action any ground that was north of the south line of the northwest quarter of Section 33, Township 10 South, Range 7 East of the 6th Principal Meridian and west of the east line of the northwest quarter of said Section 33, but southeast of the river channel, was not a part of Lot 2 but was at all times an accretion to Lot 5 of said Section 33 and that part of Lot 3 of Section 33 acquired by Miller by Deed in 1956.
"9. At all times material in this action, the defendants, Miller, and their predecessors in title are and were the owners of Lots 3 and 5 of Section 33.
"10. On February 28, 1967, the defendants, Miller, by patent from the State of Kansas, hereinafter referred to as "Miller patent" acquired all right, title, and interest of the State of Kansas in and to [the right half of the abandoned Kansas river channel, lying in the west half and the west half of the northeast quarter of section 33, containing approximately 50 acres].
"11. With respect to all real estate lying South and East of the above-described real estate set out in the Miller Patent that would, apart from any past, present, or abandoned river channel be a part of the Southeast Quarter of the Northwest Quarter of Section 33, Miller has at all times since April 24, 1957, been in continuous, uninterrupted, open, notorious, quiet, peaceable, exclusive, and adverse possession thereof claiming to be an owner of said real estate under color of title in good faith.
....
"13. With respect to the Miller Patent described above, there is no evidence of non-compliance by the defendants, Miller, or the State of Kansas with the provisions of K.S.A. 72-2142 and 72-2145. In the absence of evidence of noncompliance with such requirements, the court presumes that such requirements for valid execution and delivery were met.
"14. Albert Wood, father of the defendant, Albert D. Wood, by warranty deed on the 23rd day of February, 1944, acquired title to Lots 6 and 7 of Section Thirty-Three.
"15. At all times material to this action, Albert Wood, and his predecessors in title, are and were the owners of ... Lots 6 and 7.
"16. On or about February 28, 1967, the defendant, Albert D. Wood, by Patent from the State of Kansas, acquired all right, title, and interest of the State of Kansas in and to [the left or north one-half of the abandoned Kansas river channel in the west half and the west half of the northeast quarter of section 33, containing approximately 50 acres.]
"17. With respect to the execution and delivery of said patent, there is no *31 evidence of non-compliance by the patentee, Albert D. Wood, or the State of Kansas, with the requirements of K.S.A. 72-2142 and 72-2145. In the absence of evidence to the contrary, the law presumes that the patent is valid and all statutory requirements for valid execution and delivery were met.
....
"19. The State of Kansas, by its Answer and Motion for Summary Judgment, disclaims any right, title or interest in or to any real estate claimed by any of the named parties to this action.
....
"21. At no time since 1857, and prior to the Flood of 1951, has the State Auditor, or any other official of the State of Kansas ever conveyed any part of Lots 5, 6, 7, or 2 of said Section 33 to a patentee as a part of an abandoned bed of a navigable stream.
....
"24. Prior to the execution and delivery of the Miller and Wood patents, the owner of said Lot 2 [then, Esther Mabel Murray] was given no notice of surveying, no notice of the proposed sale, no notice of the sale, no notice of any appraisement, and no notice of the issuance of the patents other than the recording of the same in the office of the Register of Deeds of Riley County, Kansas.
"25. The 1951 Kansas Flood eroded the nine-acre field of that portion of Lot 2 North of the River and South of the Railroad tracks to approximately four (4) acres and the river cut a new channel around one mile to the south of said Lot 2.
....
"27. In 1967 the State of Kansas issued patents on the abandoned Kansas River channel running between Lots 6, 5 and 2 and through the Southwest Quarter of the Northwest Quarter of Section 33, to Albert D. Wood, Frank Miller, Jr., and Winifred Miller.
"28. Esther Mabel Murray, the record title holder of Lot 2 ... was given no opportunity to purchase whatever interest said State possessed, if any, of said abandoned river channel which bordered a portion of her property on the south and east.
"29. That as a result of the purported sale by the State of Kansas of the abandoned river channel running south and east of Lot 2 ... the value of said Lot 2 and said Southwest Quarter of the Northwest Quarter of Section 33 to the plaintiffs has depreciated considerably.
"30. With respect to the movement of the channel of the Kansas River from 1857, at the time of the United States Survey, until the 1951 Flood, when the location of the river channel changed by avulsion:
"(a) All of the evidence when considered ... that any movement that occurred from 1857 at the time of the United States Survey to the time of the 1903 flood was a process of erosion-accretion rather than avulsion.
"(b) All of the evidence produced by all parties shows that all movement that occurred from, during, and after the 1903 Flood to the time of the 1951 Flood in the channel of the Kansas River at the location in question was a process of erosion-accretion rather than avulsion.
"31. In 1951, during, after, and as a direct result of the Flood that occurred on the Kansas River, the location of the river channel as it existed before the Flood ... and as described by the legal descriptions appearing in the Miller *32 and Wood patents, was suddenly abandoned, and a new river channel was forged at a location [about one mile to the southeast]. The change that occurred in 1951 was a process of avulsion rather than erosion-accretion.
....
"33. At all times material in this action, and at all locations material, the Kansas River, also known as the Kaw River, is and was `navigable' within the meaning of K.S.A. 72-2128 to 2142 inclusive, and 82 (a)-201 to 205 inclusive, and within the meaning of Federal law.
"34. Upon admission to the Union in 1861, Kansas succeeded the Federal Government to the rights of the bed of the Kansas River as a navigable stream.
....
"38. The area of land lying between the abandoned river channel south and east of Lot 2 of Section 33 and in the Southwest Quarter of the Northwest Quarter of Section 33, Township 10 South, Range 7 East and the present channel of the Kansas River contains heavily wooded areas. The trees in said areas are predominately cottonwood, American elm and Chinese elm. One tree has a measured circumference of 9 feet 7 inches, another 7 feet 8 inches and many others have a circumference of 7 feet or more. Many trees are 50 to 65 feet in height. The Kansas River has not moved through nor occupied this area between the abandoned river channel and the current channel during the entire life span of these large trees. But, at all times from 1857 until 1951, the channel of the Kansas River was located to the north and west of said heavy wooded area, including the area in which the above trees are located.
"39. Various trees in Lot 2, Section 33, Township 10 South, Range 7 East were examined and found to be the following ages: An elm tree approximately 300 yards northwest of the center of Section 33 was found to be 73 years old; a hackberry tree approximately 300 yards northwest of the center of Section 33 was found to be 65 years old; two cottonwoods approximately 300 yards northwest of the center of Section 33 were found to be 69 and 85 years old respectively; a sycamore tree approximately 150 yards northwest of the center of Section 33 was found to be approximately 100 years old. However, at all times from 1857 until 1951 the channel of the Kansas River was located to the north and west of said wooded area.
"40. That, as established by reasonable scientific certainty, the Kansas River could not have moved through the wooded area ... between 1857 and 1951."
CONCLUSIONS OF LAW
A. BURDEN OF PROOF
"1. The law presumes that the State Auditor and all other government officials performed their official duties in a manner required by law at all times.
"2. At all times subsequent to 1915 the Law of Kansas imposed a statutory duty upon the State Auditor to have surveyed and sell pursuant to any one of three statutory procedures the abandoned bed of any navigable stream other than accreted land in the State of Kansas. The three procedures are K.S.A. 72-2128 to 2141, inclusive; 72-2142, and 82(a)-201 to 205 inclusive.
"3. Since no State Auditor or any other official conveyed or attempted to convey any patent to any patentee a part of an abandoned bed of the Kansas River at the location in question at any time from the time of the United States survey in *33 1857 to the 1951 Flood, the law presumes that no such abandonment occurred by avulsion and the State of Kansas owned the land described in the Wood and Miller patents. The plaintiffs have the burden of proving otherwise.
"4. The burden of proving the invalidity of the patents and their ineffectiveness of conveying property described by each of them is upon the plaintiffs....
B. ACCRETED LAND OF MILLER
"5. When there is a gradual and imperceptible accumulation of land on a navigable river bank by way of alluvion or reliction, the riparian owner is the beneficiary of title to the surfaced land.
"6. A riparian proprietor of land bounded by a stream, the banks of which changed by the gradual and imperceptible process of accretion or erosion continues to hold the stream as his boundary; if his land is increased, he is not accountable for the gain and if it is diminished, he has no recourse for the loss.
"7. The doctrine of accretion guarantees the riparian character of land by automatically granting to a riparian owner title to lands which form between the holdings and the river and thus threaten to destroy that valuable feature of his property.
"8. Defendants Miller, as owners of Lot 5, became the owner of all land that accreted to it prior to the 1951 Flood and thus, by accretion, and as owners of Lot 5, acquired ownership of the above-described tract by accretion.
"9. Defendants Miller, and their predecessors in title, for a continuous period of more than fifteen years, occupied the above-described real estate under a good faith claim of title; were in open, exclusive and continuous possession of said real estate, and by operation of K.S.A. 60-503, acquired ownership of said tract by adverse possession.
....
"16. Determination of the initial boundary between riparian fast lands and a riverbed which the state acquired under the equal footing doctrine whereby new states, upon their admission to the Union, acquire title to the lands underlying navigable waters within their boundaries is to be made as a matter of federal law rather than state law, but such determination is solely for the purpose of fixing the boundaries of the riverbed acquired by the state at the time of its admission to the Union; thereafter the role of the equal footing doctrine is ended, and the land is subject to the laws of the state.
....
"20. Where the boundaries of a navigable stream change by a process that involves erosion against one bank and the building up or accretion of another bank, ownership of the channel underneath the body of water between the banks at high water remains in the State of Kansas, and the riparian owner on the eroding side loses what ground is eroded, and the riparian owner of the accreted side acquires by accretion that land which accretes to the bank. (Green v. Ector, 187 Kan. 240, 356 P.2d 664; Schaake v. McGrew, et al, 211 Kan. 842, 508 P.2d 930; Rieke v. Olander, 207 Kan. 510, 485 P.2d 1335.)
"21. Where a change in the boundary of a navigable stream is accomplished by means of a sudden and violent eruption of water whereby a new channel is cut and the old one is abandoned, the State of Kansas retains ownership of the abandoned riverbed unless and until it conveys the same to a patentee by means of *34 a patent by the exercise of those powers granted the auditor (Secretary of State under present law) pursuant to K.S.A. 72-2142, or K.S.A. 82 (a)-201 to 205, et seq. (State ex rel v. Turner, 111 Kan. 302, Pessemier v. Hupe, 121 Kan. 511; Pessemier v. Nichols, 153 Kan. 267.
"22. At the time of execution of the patents in question to the defendants, Miller and Wood, the State of Kansas had power and authority to convey its ownership in the abandoned riverbed of the channel of the Kansas River as it existed prior to the 1951 Flood, which abandonment occurred by a process of avulsion, by selling and conveying said property without notice to riparian owners pursuant to K.S.A. 72-2142 or 82a-201 to 205. Riparian owners were not denied due process for the reason that the State sold only property it owned and riparian owners were denied no property interest.
"23. On February 27, 1967, the State of Kansas owned all portions of the abandoned river channel as the boundaries of that channel existed immediately prior to the 1951 Flood at all locations material to this case....
"24.... Both defendants Wood and Miller acquired title to the ground described by their respective [State] patents and both are entitled to have their title quieted against all other parties to this action with respect to their respective ownerships of said tracts.
"25. Plaintiffs are entitled to have their title to Lot 2 quieted against all parties to the action except real estate described and conveyed by the Wood Patent, the Miller Patent, and the property acquired by Millers by accretion to Lot 5 and adverse possession.
"26. Millers are entitled to have their title quieted against all named parties to the action with respect to that property described in the Miller Patent and that property described above which accreted to Lot 5 and which was acquired by Millers by adverse possession.
"27. Wood is entitled to have his title quieted against all named parties to the action with respect to that property described in the Wood patent."
Judgment was entered accordingly.
THE CORVALLIS DECISION
The appellants contend that the trial court erred in refusing to apply the Bonelli decision as the law of this case, and that the court erred in applying the Corvallis ruling retroactively. They say that since the case was tried while Bonelli was controlling, the circumstances dictate that Bonelli should have been applied.
Article VI of the Constitution of the United States provides in part that:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby...."
In Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied 361 U.S. 846 (1959), we said:
"[U]nder this constitutional mandate the interpretation placed on the Constitution *35 and laws of the United States by the decisions of the supreme court of the United States is controlling upon state courts and must be followed."
See also Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, cert. denied 382 U.S. 894 (1965). Bonelli decreed that the ownership of the abandoned channel of a navigable river was governed by federal, not state, law. That decision was controlling, and was binding upon the courts of this state under the supremacy clause, until it was overruled by Corvallis. The opinion in Corvallis spoke from the date on which it was handed down, and at once became the controlling law on the subject. This case had been fully tried but was yet pending. The trial court held a further hearing, at which the parties were free to offer additional evidence; it then applied state law, under Corvallis, to the established facts, and decided the case.
This was not a retroactive application of Corvallis, in the true sense of the word; it did not act upon or effect rights previously secured. The trial court simply applied the law, as construed in Corvallis, to the facts in the pending case. Trial courts are bound to apply the law as it exists when final judgment is entered. Appellants sustained no prejudice in the presentation of their case. We hold that the trial judge did not err in applying the Corvallis doctrine.
THE FINDING OF ACCRETION
Plaintiffs contend that the trial court erred in finding that all losses which occurred to Lot 2 by reason of the northwesterly movement of the Kansas river, from 1857 until the 1951 flood, were caused by accretion. They contend that some were perceivable and occurred at or following floodtide, and constituted avulsion; and therefore the State owned only the 1857 riverbed and not the riverbed which it sold and conveyed by patents to Miller and Wood in 1967.
Both parties agree that whether a river changes boundaries by avulsion or accretion is a question of fact, to be determined from the evidence in accordance with well established principles of law. In Schaake v. McGrew, et al., 211 Kan. 842, 844, 508 P.2d 930 (1973), we said:
"Avulsion is the sudden visible and violent movement of the channel due to storm, flood, or other known violent cause. Accretion is the slow and imperceptible deposit of alluvium or silt on one bank and erosion of the other bank which gradually changes the location of the river channel. (Fowler v. Wood, 73 Kan. 511, *36 85 P. 763; Wood v. McAlpine, 85 Kan. 657, 118 P. 1060, aff'd on rehearing 86 Kan. 804, 121 P. 916.)
"When a river or other watercourse is the boundary line between land owned by different parties, the boundary moves as the river's location changes by accretion. If, however, the river suddenly changes its course by avulsion the boundary line remains at the old channel and is forever stabilized there. (Craig v. Leonard, 117 Kan. 376, 232 P. 235; Fowler v. Wood, supra; Wood v. McAlpine, supra.)
"... What constitutes avulsion is a question of law, but whether avulsion occurred is a question for the trier of fact and the determination so made, if based on substantial evidence, is binding on appeal. (State, ex rel., v. Stockman, 133 Kan. 7, 298 P. 649; Pessemier v. Hupe, 121 Kan. 511, 247 P. 435.)"
In the Schaake case, plaintiff had owned 300 acres on the south side of the Kansas river; due to the southeasterly movement of the river, this acreage was reduced to some 10 acres. We noted that the evidence presented a typical "erosion-deposition" situation; we said:
"The river and, hence, the natural boundary between appellants' and appellees' property has moved south and east diagonally through the greater part of two quarter sections of land since 1889, destroying appellants' farm and increasing appellees' farm as it moves.... Centrifugal force causes the current in the main channel to constantly scour and erode the south bank causing its collapse. The felled portions gradually wash away. While the south bank is being constantly destroyed, sand bars are extended from the north bank by deposits of alluvium from the slower-moving portion of the stream." (pp. 843-844.)
Many of our cases have clearly stated the law relating to accretion and avulsion, and it would add little to this opinion to set them all forth here. Perhaps one of the most helpful statements comes from the early case of Wood v. McAlpine, 85 Kan. 657, 118 P. 1060 (1911) where, at the conclusion of a lengthy discussion of the subject, we said:
"It is fairly clear that the doctrine to be deduced from the foregoing authorities ... is that in order to constitute avulsion the change in the channel or bank must be considerable, visible, violent, sudden and unusual, and that a change not properly characterized by these adjectives must be classed as erosion as distinguished from avulsion." (p. 668.)
In Wood v. McAlpine, a central issue was whether the river bank was cut by avulsion or erosion. There was evidence that the river frequently undercut the bank, washing out a strata of sand, and causing huge chunks of bank to fall into the river, making noises like a cannon. Holding that the trial court erred in its instructions, we said:
"It is of necessity difficult, if not impossible, to fix the dividing line between *37 avulsion and erosion. Suddenness, visibility, rapidity, violence, quantity and unusualness mark the one as their absence marks the other. In view of the conditions shown, however, the jury should have been given to understand that, considering the character of the bank, and the characteristics of the stream, including the testimony as to its habit of `eating under' and its effect, they must, to find avulsion, determine from all the evidence that the destruction was sudden, rapid, visible, violent, of substantial amount, and in a manner unusual along the Missouri river, and these elements were not made sufficiently plain and prominent by the instructions given." (p. 672.)
It is clear, under the long established law of this state, that the State of Kansas owns the riverbed of navigable rivers within the boundaries of Kansas, and that the Kansas river is a navigable river; that where the course of a river moves slowly by accretion, the state continues to own the riverbed while the riparian owner on one side may lose land which is eroded or washed away, and the riparian owner on the other side may gain land by the process of accretion, or the gradual buildup of land on his or her side of the river. On the other hand, when a navigable river changes course by avulsion, the state must acquire title to the new channel by purchase or condemnation; it retains title to the abandoned channel, which it may sell; and the holdings of the owners of land riparian to the old channel are unaffected by the avulsive change.
The process of erosion-accretion is gradual; while the erosion process may be visible, it is something that occurs naturally, slowly, and regularly; the accretion process is gradual and imperceptible; and a new channel is never suddenly formed.
The process of avulsion, on the other hand, is characterized by a sudden or rapid change; a new channel is formed, usually by a violent eruption or major flood; and there is visible evidence thereafter of an abandoned river channel.
It is not the duty or function of this court to weigh conflicting evidence, to pass upon the credibility of witnesses, or to redetermine questions of fact. We are concerned only with evidence which supports the trial court's findings and not with evidence from which contrary findings might have been made. Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406 (1975).
Our earlier cases have not discussed the matter of burden of proof, nor have we adopted a presumption as to whether a change in a river's course is presumed to have occurred by accretion or avulsion. Cases in other jurisdictions have held that where there is a dispute as to whether changes in the course of a river resulted *38 from accretion or avulsion, the presumption is that the changes resulted from accretion, and one who claims that the change was by avulsion has the burden of showing the avulsion. Pannell v. Earls, 252 Ark. 385, 483 S.W.2d 440 (1972); Roe v. Newman, 162 Mont. 135, 509 P.2d 844 (1973); Municipal Liquidators, Inc. v. Tench, 153 So. 2d 728 (Fla. App. 1963); Schulz v. City of Dania, 156 So. 2d 520 (Fla. App. 1963); Ark. Land & Cattle v. Anderson-Tully, 248 Ark. 495, 452 S.W.2d 632 (1970); Woodland v. Woodland, 147 N.W.2d 590 (N.D. 1966); and see 65 C.J.S., Navigable Waters § 86(c); 93 C.J.S., Waters § 83; and 78 Am.Jur.2d, Waters § 427. The Pannell court said:
"[W]hen land lines are altered by the movement of a stream, the weight of authority, both state and federal, appears to recognize a strong presumption, founded on long experience and observation, that the movement occurs by gradual erosion and accretion rather than avulsion. United States Gypsum Co. v. Reynolds, 18 So. 2d 448 (1944); Dartmouth College v. Rose, 133 N.W.2d 687 (1965); Kitteridge v. Ritter, 151 N.W. 1097; Bone v. May, 225 N.W. 367." (p. 388.)
This general rule is sound and we adopt it.
The only evidence before the trial court in the case at hand as to the period between the 1857 government survey and the flood of 1903 was the testimony of Dr. Shenkel, a geologist, and Fred Deneke, a forester, and their testimony was primarily based upon the location and age of certain trees which were growing near the center of section 33. The age of the trees, and certain high ground nearby, caused these experts to conclude that the channel of the river was south of the trees, prior to 1903, and that it moved northwesterly by avulsion rather than accretion, since the river could not have moved slowly through that area. The difficulty with the testimony of these experts was that neither had accurately located the center of section 33. Defense witnesses disputed the location of the trees with reference to the center of the section, and indicated that certain of the trees were south of the center of the section; thus the large trees could have been at the south edge or on the south bank of the river channel as it existed in 1857. There was direct testimony, by witnesses who had observed the river from 1903 to the time of the 1951 flood, to the effect that there was no time when a river channel was abandoned during that period; and that although there was "cave-in" on the Murray side, and the river channel became wider, it did not relocate at any time. Upon the record before us we hold that there is substantial competent evidence to support the trial court's *39 finding that the movement of the river between 1903 and the 1951 flood was by a process of erosion and accretion, and not avulsion. As to the period between 1857 and 1903, in the absence of evidence it is presumed that the river moved by accretion and erosion; whether the evidence of the expert witnesses was sufficient to overcome that presumption was an issue of fact for the trial court. Since the facts upon which the opinions were based were disputed, we cannot reweigh that evidence. Accordingly, the trial court's conclusion must stand.
THE BURDEN OF PROOF
The trial court placed the burden of proof on plaintiffs; they contend this was error. Plaintiffs claimed that the Kansas river changed its course between 1857 and 1951 by avulsion, rather than by accretion. Under the rule stated above, there is a presumption that changes are by erosion and accretion unless the contrary is shown. The party claiming avulsion has the burden of proof on that issue.
Plaintiffs contend that the patent to Lot 2 predates the state patents under which Wood and Miller claim, and therefore the burden of proof should have been on Miller. The patents, however, covered different land. The federal patent did not purport to cover the riverbed; the state patents covered the abandoned riverbed, and no part of the land lying north of it. The state patents were issued pursuant to K.S.A. 72-2142 (since repealed). Plaintiffs' argument that the land sold by the state is not within the meander lines as shown by the 1857 survey fails in view of the fact that the "meander line" limitation contained in an earlier statute is not contained in K.S.A. 72-2142. Absent some facial invalidity, the patents are presumed valid. We conclude that the trial court did not err in placing the burden of proof on plaintiffs.
THE NOTICE ISSUE
Plaintiffs claim that under Kansas statutes and the due process clause, they were entitled to notice before the state sold the abandoned riverbed. The statute under which the land was sold, K.S.A. 72-2142, provides in substance that the state auditor shall cause the abandoned riverbed of any navigable stream to be surveyed, and shall sell it for the best price obtainable. The statute contemplates a private sale, not a public auction, and it does not require the giving of public or other notice of survey or *40 sale. An earlier statute, K.S.A. 72-2130 (since repealed), provides a wholly different method of survey and sale; that statute requires either actual or publication notice upon the occupants of all contiguous lands, before the survey is undertaken. The statutes are alternative. We hold that the statutes did not require notice in the matter before us.
Was the State, as a landowner, required by the 14th Amendment to the United States Constitution to give notice to all adjoining landowners before selling the abandoned riverbed? We think not. The river channel had moved; plaintiffs' land, Lot 2, was contiguous to the abandoned bed, but it was no longer riparian to the Kansas river. There were no longer any water rights involved, and no expectation of accretion. Plaintiffs were simply adjoining landowners. They had no property interest in the riverbed and no right to control or to have prior notice of its survey or sale. Plaintiffs' loss of a part of Lot 2 occurred over a long period of years by reason of the erosive action of the Kansas river. There was no taking by the State and no conveyance or cutting off of any right of plaintiffs by the 1967 sale and conveyance. We hold that prior notice of survey or sale was not required by either Kansas statute or the federal Constitution.
THE ADVERSE POSSESSION ISSUE
The trial court held that the Millers acquired certain land on the south or right-hand bank of the river by adverse possession. The court also held that the Millers acquired the same land as an accretion to their Lots 3 and 5. The latter holding was correct; and in view of that ruling, the adverse possession issue is moot.
THE SUMMARY JUDGMENT ISSUE
The State of Kansas, joined as a defendant, disclaimed any present interest in the realty at issue and moved for summary judgment. The trial court granted that motion. Following trial, the court quieted title as against the State. In view of the final determination of the litigation we find no error.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363068/ | 470 F. Supp. 559 (1979)
GEMINI ENTERPRISES, INC. and Marion Hensley, Plaintiffs,
v.
WFMY TELEVISION CORPORATION, a subsidiary of Harte-Hanks Newspapers, Inc., CBS, Inc., and National Association of Broadcasters, Inc., Jointly and Severally, Defendants.
No. C-77-74-G.
United States District Court, M. D. North Carolina, Greensboro Division.
May 1, 1979.
*560 *561 *562 William N. Martin, Greensboro, N. C., for plaintiffs.
Bynum M. Hunter and Harold N. Bynum, Greensboro, N. C., for WFMY Television Corp. and CBS, Inc.
James T. Williams and Edward C. Winslow, III, Greensboro, N. C., and Erwin G. Krasnow and Brenda L. Fox, Washington, D. C., for National Ass'n of Broadcasters, Inc.
MEMORANDUM OPINION AND ORDER
GORDON, Chief Judge.
The complaint in this action alleges that the defendant WFMY Television Corporation (WFMY), CBS, Inc. (CBS), and the National Association of Broadcasters, Inc. (NAB) have engaged in a conspiracy to limit access to broadcast programming and advertising. The specific acts of which the plaintiffs complain are WFMY's refusal to sell plaintiff Gemini television time with which to advertise Gemini's astrological forecasting services and WFMY's refusal to permit plaintiff Marion Hensley, an astrologer, to appear on WFMY's local programming. The plaintiffs contend that these acts were in furtherance of the alleged conspiracy and violated 42 U.S.C. § 1985(3) by depriving the plaintiffs of the equal protection of the law and First Amendment rights to freedom of expression.[1]
The case is before the Court for consideration of defendant NAB's motion to dismiss for lack of personal jurisdiction and a Rule 12(b) motion made jointly by all defendants.
BACKGROUND
Many of the material facts in this case are not in dispute. The NAB is a trade association of commercial radio and television broadcasters incorporated under the laws of the State of Delaware. NAB's principal place of business is located in Washington, D. C., with additional offices located in California and New York. Membership in NAB is voluntary. Both WFMY and CBS are members of NAB and are also subscribers to the Television Code.
The Television Code was promulgated by the Television Board of Directors of NAB and sets out a code of conduct for subscribers to follow in broadcast programming and advertising.[2] Two provisions of the Television Code are of particular interest in the present case. They state:
"IV. Special Program Standards
. . . . .
"12. Program material pertaining to fortune-telling, occultism, astrology, phrenology, palmreading, numerology, mindreading, character-reading, and the like is unacceptable if it encourages people to regard such fields as providing commonly accepted appraisals of life.
. . . . .
"IX. General Advertising Standards
. . . . .
"10. The advertising of fortune-telling, occultism, astrology, phrenology, palm-reading, numerology, mind-reading, character-reading or subjects of a like *563 nature is not permitted." NAB, The Television Code (19th ed. 1976).
WFMY is a CBS affiliate located in Greensboro, North Carolina. WFMY has admitted that the plaintiff Marion Hensley appeared on its local programming from time to time in the years 1973 to 1976. WFMY further admits that after an appearance in November 1976, the station informed the plaintiff that she would not be invited again to appear on WFMY programming. WFMY further agrees that it has from time to time refused to sell advertising time to the plaintiff Gemini and it on at least one such occasion referred to the above quoted sections of the Television Code.
NAB'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
NAB has moved to dismiss for lack of personal jurisdiction on the grounds that neither the applicable North Carolina statutory law nor the due process clause of the United States Constitution permits the exercise of jurisdiction by this Court. At the outset, the Court notes that the "minimal contacts" doctrine of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), on which NAB relies, is not directly applicable to a federal question case brought in a federal district court when the defendant has been personally served within the United States. The International Shoe decision involved the extraterritorial assertion of personal jurisdiction by a state court. Where defendants reside within the territorial boundaries of the United States, the minimal contacts are present that are required to justify a federal court's exercise of power over them. Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974); Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972). The only situation in a federal suit that is directly analogous to the International Shoe case occurs where a federal court attempts to assert personal jurisdiction over a defendant not found within the territory of the United States. See Gkiafis v. Steamship Yiosonas, 342 F.2d 546 (4th Cir. 1965).
The doctrine of International Shoe, however, does have a role to play in the present case because of a curious anomaly that occurs in the jurisdiction of a federal court dealing with federal questions where there is no federal procedure available to bring out-of-state defendants into court without resort to the mechanics of state law. Rule 4(e) of the Federal Rules of Civil Procedure authorizes use of state process when there is no federal statute authorizing nationwide service of process or because the defendant has no agent within the state who can be served. In such cases, the validity of service made pursuant to state law is measured by the statutory and constitutional standards applied to judge service by state courts. See Gkiafis v. Steamship Yiosonas, 342 F.2d at 549-58; see generally, Foster, Judicial Economy; Fairness and Convenience of Place of Trial: Long-Arm Jurisdiction in District Courts, 47 F.R.D. 73 (1969). In the present case, NAB had no agent present in North Carolina to be served and no nationwide service of process is authorized for cases arising under § 1985, Safeguard Mutual Insurance Co. v. Maxwell, 53 F.R.D. 116 (E.D.Pa.1971). Service of process was effectuated in the District of Columbia as authorized by N.C.Gen.Stat. § 1A-1, Rule 4(j). This Court's jurisdiction over NAB is, therefore, to be judged by the standards which would apply if this suit had been brought in the state courts of North Carolina.
To resolve a question of personal jurisdiction under International Shoe, the Court must engage in a two step examination. First the Court must determine if the applicable North Carolina law would allow exercise of long-arm jurisdiction over NAB. If the answer to this inquiry is yes, the Court must then determine if the exercise of jurisdiction by a court sitting in North Carolina comports with due process. Bowman v. Curt G. Joa, Inc., 361 F.2d 706 (4th Cir. 1966); United Advertising Agency v. Robb, 391 F. Supp. 626 (M.D.N.C.1975).
*564 The Court's task in determining whether there is a North Carolina statute authorizing assertion of personal jurisdiction in the present case is simplified by the recent holding of the North Carolina Supreme Court in Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977). N.C.Gen.Stat. § 1-75.4(1)(d) provides for personal jurisdiction over all persons who are "engaged in substantial activity within this state." In Dillon, the N.C. Supreme Court read this subsection to apply to any defendant who meets the minimal contacts requirement of International Shoe. Accordingly, the question of whether there exists statutory authority for the exercise of personal jurisdiction over NAB collapses into the question of whether NAB has the minimal contacts with North Carolina necessary to meet the requirements of due process.
In urging this Court to find that NAB has insufficient contacts with North Carolina to permit the exercise of personal jurisdiction, NAB has built its legal argument on the many familiar decisions involving personal jurisdiction issues. The cases relied upon by NAB involve contract and personal injury disputes the type of cases in which questions of personal jurisdiction usually arise. NAB contends that its most significant contacts with North Carolina rise from sporadic visits by a NAB regional manager for the purpose of membership solicitation. NAB further contends that such limited contacts will not support the exercise of personal jurisdiction over it. If this were a typical case, the plaintiffs' failure to substantiate additional contacts between NAB and North Carolina would be important since the plaintiffs have the burden of establishing sufficient facts to support personal jurisdiction.[3] The plaintiffs' failure, however, is immaterial because the undisputed facts in the record permit assertion of personal jurisdiction through reliance on what has been called the "conspiracy theory of personal jurisdiction."
The conspiracy theory of jurisdiction has evolved in connection with a number of cases alleging civil conspiracies. The theory seems to be based on the time honored notion that the acts of conspirator in furtherance of a conspiracy may be attributed to the other members of the conspiracy. While a few courts have adopted a very restrictive or expansive view of the theory, most courts have worked out a middle ground on the conspiracy theory. Compare I. S. Joseph Co., Inc. v. Mannesmann Pipe & Steel Corp., 408 F. Supp. 1023, 1024 (D.Miss.1976) and National Van Lines, Inc. v. Atlas Van Lines, Inc., 406 F. Supp. 1087 (N.D.Ill.1975), with Leasco Data Processing Equipment Corp. v. Maxwell, supra; Mandelkorn v. Patrick, 359 F. Supp. 692 (D.D.C. 1973); Socialist Workers Party v. Attorney General, 375 F. Supp. 318 (S.D.N.Y.1974); Ghazoul v. International Management Services, Inc., 398 F. Supp. 307 (S.D.N.Y.1975). While the cases are not entirely clear in explaining the theory, a fair statement of it would be that while the mere presence of a conspirator within the forum state is not sufficient to permit personal jurisdiction over co-conspirators, certain additional connections between the conspiracy and the forum state will support exercise of jurisdiction over co-conspirators. See Leasco Data Processing Equipment Corp. v. Maxwell, supra; Mandelkorn v. Patrick, supra. These additional connections exist where substantial acts in furtherance of the conspiracy were performed in the forum state and the co-conspirator knew or should have known that acts would be performed in the forum state. See Leasco, supra; Brady v. Alderman, 556 F.2d 571 (4th Cir. 1977) (unpublished); Sparrow v. Goodman, 376 F. Supp. 1268 (W.D.N.C.1974). The Court adopts this statement of the theory for purposes of deciding NAB's motion.
Although there is substantial agreement among the reported decisions *565 over the substantive content of the conspiracy theory of jurisdiction, the decisions disagree on what showing a plaintiff must make to satisfy his burden in proving facts to justify the exercise of jurisdiction. Judge Blair in a thoughtful decision in McLaughlin v. Copeland, 435 F. Supp. 513, 529-33 (D.Md.1977), has reconciled much of the disagreement between the cases by examining the peculiar factual allegations and pleadings in each case. Distilled from the Court's opinion in McLaughlin, the rules governing the degree of proof necessary to establish personal jurisdiction in a conspiracy seem to be: First, where the defendant has not controverted with evidence the plaintiff's allegations, the determination of personal jurisdiction may be based on whether the plaintiff has pleaded the factual allegations essential for jurisdiction. Second, where the defendant has provided evidence which denies facts essential for assertion of jurisdiction, the plaintiff must, under threat of dismissal, present sufficient evidence to create a factual dispute on each jurisdictional element which has been denied by the defendant. These rules agree well with the rules which govern proof of personal jurisdiction in the usual case and will be adopted by the Court for use in the present case.[4]
Applying the above standards to the present case, the Court notes that this is a case in which the material facts are not in dispute. The plaintiff has alleged and the defendant NAB concedes that there was an agreement between NAB and WFMY that the television station as a member of NAB and a subscriber to the Television Code would act in conformance with the Code. NAB further concedes the accuracy of the plaintiffs' allegations that WFMY acted in compliance with their agreement when it refused to accept advertising from Gemini or to permit Marion Hensley to appear on its programming. Furthermore, it is undisputed that all acts of which the plaintiffs complain took place within North Carolina. Finally, NAB cannot deny that when WFMY subscribed to the Code, NAB expected WFMY to perform acts in North Carolina in accordance with the Code. The Court concludes that the undisputed facts in this case provide the basis for exercising personal jurisdiction over NAB using the conspiracy theory of jurisdiction.
RULE 12(b) MOTION TO DISMISS
The defendants have jointly moved to dismiss the complaint for failure to state a claim upon which relief can be granted or, alternatively, for lack of subject matter jurisdiction on the ground that primary jurisdiction over this case lies in the Federal Communications Commission (FCC). The Court has considered the arguments and briefs of the parties and for the reasons set out below has concluded that the defendants' motion should be denied.
*566 In their motion to dismiss for failure to state a claim under § 1985(3), the defendants contend that the plaintiffs' claim is deficient in three respects. First, the defendants contend that the acts of which the plaintiffs complain do not violate § 1985(3) because there was no governmental involvement in WFMY's actions. Second, the defendants contend that the plaintiffs cannot recover because they did not have a right of access to WFMY's programming or advertising time. Third, the defendants assert the plaintiffs are not members of a class which § 1985(3) was intended to protect.
The seminal § 1985(3) case is the 1971 Supreme Court decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).[5] At issue in Griffin was the question of whether the coverage of § 1985(3) reached a racially motivated private conspiracy to deprive black citizens of certain civil rights, including the First Amendment rights of freedom of speech, association and assembly. After examining the text of the statute, its companion provisions, and its legislative history, the Court found that all indicators "point unwaveringly to § 1985(3)'s coverage of private conspiracies." 403 U.S. at 101, 91 S.Ct. at 1798. The Court further found that it was not the Congressional intention that § 1985(3) inaugurate a general federal tort law but that it was to cover conspiracies motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus . . .. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." 403 U.S. at 102, 91 S.Ct. at 1798. Having determined that Congress had clearly intended § 1985(3) to reach racially motivated private conspiracies, the final step in the Griffin Court's analysis was to determine whether Congress had constitutional power to enact a statute that imposed liability under federal law for the alleged conspiracy. On the facts alleged in Griffin, the Court found the necessary Congressional power to be present in § 2 of the Thirteenth Amendment and in the Congressional power to protect the right of interstate travel.
In the years following Griffin, the extent of § 1985(3)'s reach has remained uncertain. Neither the Supreme Court nor the Court of Appeals for the Fourth Circuit has decided whether § 1985(3) covers conspiracies motivated by non-racial discriminatory intent, Rodgers v. Tolson, 582 F.2d 315, 317 (4th Cir. 1978), although at least two Courts of Appeals have so extended § 1985(3), see Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975). Similarly the Supreme Court has never resolved the question it explicitly reserved in Griffin of whether § 5 of the Fourteenth Amendment provides Congressional power with which to reach private conspiracies.
*567 The Requirement of Governmental Action
While the Fourth Circuit has never decided whether § 1985(3) covers non-racially motivated conspiracies, it has clearly indicated that governmental involvement must be present in such conspiracies if they are to be reached by § 1985(3). In Bellamy v. Mason's Stores, Inc. (Richmond), 508 F.2d 504 (4th Cir. 1974), the plaintiff sued his former employer under Title VII of the 1964 Civil Rights Act and § 1985(3) for reinstatement to his former job and damages. He claimed that his First Amendment rights were violated, alleging his discharge stemmed from his membership in the Ku Klux Klan. The Court characterized the issue on appeal as "whether a private employee is protected by federal law from discharge on the ground that he belongs to an obnoxious organization, i. e., whether the right of association is protected against private interference." 508 F.2d at 505. Having found no grounds for an action under Title VII, the Court turned to the plaintiff's First Amendment (freedom of association) claim under § 1985(3). Noting that the language in the statute is identical to that found in the Fourteenth Amendment, the Court observed:
"[W]e think the language of equal protection chosen by the 1871 Congress cannot be interpreted to mean that persons who conspire without involvement of government to deny another person the right of free association are liable under this statute. This is so because the right of association derives from the first amendment itself framed as a prohibition against the federal government and not against private persons, and because the incorporation doctrine has never been extended by the Supreme Court to apply to private persons.
". . . It is perfectly true that the first amendment now speaks to the states by way of the fourteenth amendment, but to say that it also speaks to private persons seems to us an innovation that must come from the Congress or the Supreme Court." 508 F.2d at 506-07.
Despite the Court's recognition that other circuits have reached the opposite conclusion on this important matter, the Court in Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976) reaffirmed the position it took in Bellamy. See also Cohen v. Illinois Institute of Technology, 524 F.2d 818, 828 (7th Cir. 1975) (requiring governmental action); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) (requiring no governmental action). Thus the rule in the Fourth Circuit seems to be that § 1985(3) does not cover non-racially motivated conspiracies to deprive persons of First Amendment rights unless the defendant's conduct constitutes governmental action.
Although broadcasting is subject to federal regulation, the mere fact one or more of these defendants is licensed by the government does not convert their action into governmental action. The Supreme Court has required in cases involving regulated businesses not only that there be a connection between the government and the business but that a close nexus exist between the government and the challenged action of the business. Where there is a sufficiently close nexus between the government and the challenged action, the action of the business may be treated as that of the government itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972).
Most lower courts that have considered the question of whether broadcasters are instrumentalities of government for First Amendment purposes have concluded that they are not. Kuczo v. Western Connecticut Broadcasting Co., 566 F.2d 384 (3d Cir. 1977). The Court is aware of only two cases in which it has been suggested that a broadcaster's actions could be treated as governmental action. The first was Business Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642 (1971), rev'd on other grounds sub nom. C.B.S., Inc. v. Democratic National Committee, 412 U.S. 94, 93 S. Ct. 2080, 36 L. Ed. 2d 772 (1973). In reversing the Court of Appeals decision, a majority of the Justices did not agree on the governmental *568 action issue and the case was decided on other grounds. The second case, Writers Guild West, Inc. v. FCC, 423 F. Supp. 1064 (C.D.Cal.1976), appeal docketed, Nos. 77-1058, 1059, 1060, 1061 and 1103 (9th Cir. March 15, 1977), also raised this issue. In that case the District Court held that, under the particular facts of the case, the broadcaster conduct therein challenged adoption by the NAB and broadcasters of the so-called "family viewing" policy constituted governmental action. The District Court expressly stated that while mere governmental encouragement of the policy would be insufficient to justify a finding of governmental action, the exertion of significant pressure by the FCC to adopt the policy infected the broadcasters' decision with governmental action. 423 F.Supp. at 1135-43.
While the approach taken by the District Court in Writers Guild is consistent with the Supreme Court's decisions in Jackson and Moose Lodge, it is unnecessary at the present time for this Court to decide the degree to which broadcaster action must be intertwined with government involvement in order to constitute governmental action. For on a motion to dismiss for failure to state a claim, district courts are admonished not to grant the motion "unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969). The Court notes that plaintiffs' counsel at oral argument alluded to possible FCC involvement in the adoption of the challenged Television Code provisions. The Court also observes that at least one commentator has suggested that the FCC from time to time has played an active role in the adoption of various provisions of the Television Code. See Note, The Limits of Broadcast Self-Regulation Under the First Amendment, 27 Stanford L.Rev. 1527, 1150-53 (1975). Although, the Court doubts that the plaintiffs in the present case can establish the requisite government involvement in the adoption of the Television Code provisions, the proper motion with which to test the plaintiffs' evidence is one for summary judgment and not a motion to dismiss.
First Amendment Right to Access to the Broadcast Medium
The defendants next contend that the plaintiffs have failed to state a claim because they have no First Amendment right of access to the broadcast medium for advertising or programming even if the broadcaster conduct is considered governmental action. The defendants correctly assert that broadcast licensees are free under the First Amendment and the Communications Act to refuse to sell advertising time to individuals or groups wishing to speak out on issues of public interest. C.B.S., Inc. v. Democratic National Committee, supra. Similarly, within the requirements of their duties as public trustees of the airwaves, broadcast licensees are free under the First Amendment to refuse to individuals or groups access to programming. See, e. g., Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (1st Cir. 1950); McIntire v. William Penn Broadcasting Co., 151 F.2d 597 (3d Cir. 1946). These principles are grounded in the fundamental protections provided by the First Amendment. Broadcasters together with the members of the print media are the gatekeepers who control much of the flow of information in our society. Within wide bounds, the First Amendment protects the ability of these gatekeepers to make decisions without government interference.
These principles, however, do not provide a rationale for granting the defendants' motion to dismiss in the present case. For the plaintiffs' contention that there was significant FCC involvement in the adoption of the Television Code provisions places this case fundamentally apart from those cases that uphold the rights of broadcasters to make independent decisions concerning the content of their programming and advertising. Assuming for purposes of this motion to dismiss that the defendants' actions constituted governmental action, the question for the Court becomes whether *569 these actions if taken by the government would have violated the plaintiffs' First Amendment rights or would have deprived the plaintiffs of the equal protection of the law.
Cast in this light this case presents a difficult question for which there is a dearth of authority in previously decided cases. The Court notes the Supreme Court's recent decision in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978), which upheld the authority of the FCC to discipline a broadcaster for airing programming that included indecent speech. The Court observes that the operative facts in Pacifica are so different from those in the present case that the Supreme Court decision provides little guidance in the present case.[6] Of the decided cases, Writers Guild appears to be the case closest in point. The Court also notes that the Fourth Circuit in Joyner v. Whiting, 477 F.2d 456, 461-64 (4th Cir. 1973), discussed problems which arise when editorial decisionmaking becomes imbued with governmental action. The question presented in this case cannot now be decided for a constitutional question of this magnitude and uncertainty demands a degree of careful judicial scrutiny that is not possible given the present state of the record in this case. Consideration of the question must await further development of the facts at a later stage of this litigation.
The Classes Protected by § 1985(3)
The defendants' third contention is that the plaintiffs have failed to state a claim because they are not members of a class that § 1985(3) was intended to protect. The question arises because the pertinent part of § 1985(3) requires that the proscribed conspiracy be "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." In Griffin, the Supreme Court decided that the required purpose was present when racial animus existed but left open the question of whether the requirement could be met by some other class-based animus which was invidiously discriminatory. 403 U.S. at 102 n. 9, 91 S. Ct. 1790. The defendants assert that the coverage of § 1985(3) should be restricted to conspiracies for the purpose of discriminating against classes defined by sex, religion, national origin or some other class which would be considered a suspect category under the Fourteenth Amendment.
The Supreme Court's silence in Griffin concerning the extent of § 1985(3)'s coverage has created uncertainty in the lower courts about the matter. The Court of Appeals for the Fourth Circuit has declined on several occasions to decide whether § 1985(3) proscribes conspiracies that are motivated by invidiously discriminatory intent other than racial bias. See Rodgers v. Tolson, 582 F.2d at 317; Doski v. M. Goldseker Co., 539 F.2d at 1333; Hughes v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972). Other Courts of Appeals, however, have extended § 1985(3) beyond actions that were animated by racial discrimination. See e. g., McLellan v. Mississippi Power & Light Co., 526 F.2d 870 (5th Cir. 1976) (bankrupts); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (supporters of a political candidate); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973).
In deciding what is the extent of § 1985(3)'s coverage, the Court should observe the Supreme Court's admonition in Griffin that in construing the Reconstruction Era civil rights statutes courts should "`accord [them] a sweep as broad as [their] language.'" 403 U.S. at 97, 91 S.Ct. at 1796, citing United States v. Price, 383 U.S. 787, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966). The language of § 1985(3) is broad; it would extend coverage to "any person or *570 class of persons [who have been deprived] of the equal protection of the laws, or of equal privileges and immunities under the laws." To accord § 1985(3) a sweep as broad as its language, the scope of § 1985(3)'s coverage must be at least co-extensive with the scope of the Equal Protection Clause of the Fourteenth Amendment since the language of § 1985(3) is drawn from the Equal Protection Clause.
As the Fifth Circuit pointed out in a case extending the coverage of § 1985(3) to individuals obtaining discharges in bankruptcies, the Fourteenth Amendment does not protect only those who are members of "suspect" groups:
"It might be suggested that, since § 1985(3) alludes to `equal protection,' the animus must consist in hostility toward one of the `suspect classes' enjoying special protection under the Fourteenth Amendment. This view will not survive careful scrutiny. The Griffin case itself illustrates that the statute can be applied without any reliance on Fourteenth Amendment concepts. Moreover, blacks, aliens and other `suspect' groups are by no means the only beneficiaries of equal protection under the Fourteenth Amendment. Any other group can rely on the equal protection clause to challenge state action that is not rationally related to a legitimate state goal. Since the Fourteenth Amendment is not directed exclusively at suspect groups, we decline to hold that it circumscribes the "classes" that might be targets of a conspiracy actionable under § 1985(3)." McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 877-78 n. 15 (5th Cir. 1976) (citations omitted).
Accepting the Fifth Circuit's reasoning, the Court rejects the defendants' contention that the coverage of § 1985(3) extends only to members of a group that would be "suspect" class under the Fourteenth Amendment. Of course, as stated in McLellan, the group must be an identifiable one and the discriminatory animus must be "invidious," i. e., irrational. See 526 F.2d at 875-79.
The defendants also contend that the plaintiffs are not members of an identifiable group and therefore cannot avail themselves of the protection of § 1985(3). Since the oral argument of this case, the Fourth Circuit has decided a case which concluded that in order to be a victim of class-based discrimination actionable under § 1985(3) a person must be a member of a larger group that could be objectively identified. Rodgers v. Tolson, 582 F.2d 315, 317-18 (4th Cir. 1978). In the present case, the plaintiffs allege the defendants' refusal to permit them access to programming and advertising time was made on the basis of the interest in astrology which the plaintiffs share with others. The Court notes that WFMY's actions toward the plaintiffs were allegedly taken pursuant to the two challenged Television Code provisions. Any contention that the plaintiffs are not members of an objectively identifiable group is allayed by the fact that WFMY easily discerned on at least one occasion that these plaintiffs were members of a group toward which a Code provision was directed. Cf. McLellan v. Mississippi Power & Light Co., 526 F.2d 870; Cameron v. Brock, 473 F.2d 608.
SUBJECT MATTER JURISDICTION
In their alternative motion to dismiss, the defendants invoke the doctrine of primary jurisdiction. That doctrine applies when a court and an administrative agency have concurrent jurisdiction over the determination of an issue. The classic summary of the doctrine of primary jurisdiction is contained in Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S. Ct. 492, 494, 96 L. Ed. 576 (1952);
"[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and *571 consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure."
Thus the doctrine functions not to decide whether the court or agency will finally decide an issue but serves to delay the judicial decision until the court can take advantage of the administrative agency's expertise. The doctrine also promotes uniform decisionmaking in cases involving regulated industries. Nader v. Allegheny Airlines, 426 U.S. 290, 303-04, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976).
These dual policies which underlie the doctrine of primary jurisdiction provide the criteria with which to judge whether the doctrine should apply in a particular case. The factual issues encountered in the present case are almost entirely concerned with the existence of governmental action and the alleged conspiracy among the defendants. The FCC possesses no special expertise in such matters which could aid the Court in its resolution of the legal issues before it. Thus the referral of these issues to the FCC cannot be justified by the interest of informing the court's ultimate decision with "the expert and specialized knowledge," United States v. Western Pacific R. Co., 352 U.S. 59, 64, 77 S. Ct. 161, 1 L. Ed. 2d 126 (1956), of the Commission. Cf. Writers Guild of America, West, Inc. v. FCC, 423 F.Supp. at 1090. Although the plaintiffs' claim is in effect a challenge to what is alleged to be a covert FCC policy to keep astrological programming and advertising off the air, the policy of promoting uniform decisionmaking does not provide a basis for referring this case to the FCC. Decisions which invoke the doctrine on this ground typically involve situation where the court's decision will be materially aided by the administrative clarification of an uncertain administrative rule or policy. See e. g., Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S. Ct. 573, 34 L. Ed. 2d 525 (1973). Where the administrative rule or its application is clear there is no reason to postpone judicial action. The pertinent provisions of the Television Code and their application to these plaintiffs are clear and unambiguous. The FCC has little to add by way of clarification of these rules. It would also be inappropriate in the present case to invoke the doctrine of primary jurisdiction to commit consideration of this case to an agency which was allegedly the instigator of the challenged conspiracy. Cf. Writers Guild of America, Inc. v. FCC, 423 F.Supp. at 1090-91.[7]
*572 Even if the doctrine of primary jurisdiction applied to this case, the defendants' motion to dismiss should not be granted. The doctrine does not deprive the federal courts of subject matter jurisdiction to hear disputes but merely postpones the time for judicial consideration. K. C. Davis, Administrative Law of the Seventies, § 19.01 (1976). A stay of judicial action, rather than dismissal, is the usual result of the application of the doctrine. Dismissals rather than stays are approved only where there is assurance that no party is prejudiced thereby. United States v. Michigan National Corp., 419 U.S. 1, 5, 95 S. Ct. 10, 42 L. Ed. 2d 1 (1974).
ORDER
For the foregoing reasons, it is ORDERED that:
1. The defendant National Association of Broadcasters, Inc.'s motion to dismiss for lack of personal jurisdiction be, and the same hereby is, denied.
2. The defendants' joint motion to dismiss for failure to state a claim upon which relief can be granted or alternatively, for lack of subject matter jurisdiction, be, and the same hereby is, denied.
NOTES
[1] Although the plaintiffs originally asserted various federal and state claims, all parties agreed at the oral argument of the motions to dismiss that the only claim the plaintiffs would assert in this suit would be one brought under 42 U.S.C. § 1985(3).
[2] For a discussion of the development and structure of the Television Code, see Note, The Limits of Broadcast Self-Regulation Under the First Amendment, 27 Stanford L.Rev. 1527 (1975).
[3] The plaintiffs did not accept the invitation of the Court to conduct discovery on the jurisdictional issue, and have not presented the Court with any evidence of NAB's contacts with North Carolina. The Court is, therefore, left in ignorance of the nature and frequency of what may be a source of significant contacts between NAB and North Carolina NAB's contacts with its member radio and television stations in North Carolina.
[4] The plaintiff has the burden of alleging and proving the facts justifying the exercise of jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 80 L. Ed. 1135 (1936). A litigant seeking federal court jurisdiction must plead the essential jurisdictional facts. In the general case, if the allegations supporting personal or subject matter jurisdiction are challenged by his adversary, the litigant has the burden of establishing such facts by the preponderance of the evidence. Griffin v. Matthews, 310 F. Supp. 341, 342 (M.D.N.C.1969), aff'd 423 F.2d 272 (4th Cir. 1970), citing Gilbert v. David, 235 U.S. 561, 35 S. Ct. 164, 59 L. Ed. 360 (1915).
A needed exception has grown up around the general rule to handle situations in which a decision on the jurisdictional dispute also embraces questions of ultimate liability. When the determination of the jurisdictional facts is intertwined with and may be dispositive of questions of ultimate liability, courts have held that the plaintiff need only show "threshold" or prima facie jurisdiction when the defendant challenges jurisdiction. See McLaughlin v. Copeland, supra; Holfield v. Power Chemical Co., Inc., 382 F. Supp. 388, 390 (D.Md.1970); cf. Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir. 1965). Where the long-arm statute is co-extensive with the limits of due process, such a prima facie showing may be made by showing jurisdictional facts which supply the minimal contacts required by due process. Using a standard which is akin to the one for summary judgment, the Court should grant the motion to dismiss if there is no genuine issue as to any material jurisdictional fact and the jurisdictional defect appears as a matter of law. This exception to the general rule applies to the conspiracy theory of jurisdiction when the defendant's ultimate liability may depend upon the existence of the alleged conspiracy.
[5] Section 1985(3) provides:
"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."
Like the present case, Griffin involved an alleged conspiracy formed for the purpose of depriving a person "`of the equal protection of the laws or of equal privileges and immunities under the laws.'"
[6] In the present case there are overtones of prior restraint, a much less easily justified governmental intrusion than the after the fact enforcement involved in Pacifica. The Court also observes that neither of the interests cited by the Supreme Court in Pacifica to justify limitation on the content of speech is present here. This case does not involve entry into the home of patently offensive material nor does it involve indecent programming from which children should be protected.
[7] In suggesting that the doctrine of primary jurisdiction requires that this case be submitted to the FCC for initial consideration, the defendants rely primarily on three cases: Maguire v. Post Newsweek Stations, Capital Area, Inc., 24 P. & F Radio Reg.2d 2094 (D.C.Cir.1972); Morrisseau v. Mt. Mansfield Television, Inc., 380 F. Supp. 512 (D.Vt.1974); The Polite Society, Inc. v. WLS, Inc., No. 74-Civ. 3777 (N.D.Ill. 1975) (unreported). Maguire is a very brief, unofficially reported decision of the District of Columbia Circuit which applied the doctrine of primary jurisdiction to the Fifth Amendment due process claims of plaintiffs who challenged excessively violent programming by broadcasters. The Court's brief order suggests that heavy reliance was placed on the fact that the FCC had established procedures to consider viewer complaints about programming and that there was an ongoing rulemaking proceeding on the subject of television violence. The defendants have not pointed out similar circumstances in the present case. In Morrisseau, the plaintiff complained of the FCC's refusal to order a broadcaster to provide the plaintiff with free advertising for his political campaign. In disposing of the case, the Court relied on the doctrine of exhaustion of administrative remedies, not the doctrine of primary jurisdiction. As for The Polite Society, the Court notes that the defendants have not provided the Court with a copy of the decision as required by Local Rule 18(d) of the Court of Appeals for the Fourth Circuit which governs citation of unpublished opinions in the district courts and the Court of Appeals. The defendants did provide a copy of the complaint in the Polite Society case as an attachment to their brief. The Court in Writers Guild described the Polite Society case as one based, like Maguire, on a complaint of excessively violent programming. 423 F.Supp. at 1091. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363106/ | 499 F.3d 653 (2007)
SIERRA CLUB, et al., Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, and
Prairie State Generating Company, LLC, Intervenor-Respondent.
No. 06-3907.
United States Court of Appeals, Seventh Circuit.
Argued May 31, 2007.
Decided August 24, 2007.
Sanjay Narayan (argued), San Francisco, CA, for Petitioners.
Jon M. Lipshultz (argued), Department of Justice, Environmental Defense Section, Washington, DC, for Respondent.
*654 Kevin J. Finto, George P. Sibley, III, Harry M. Johnson, III (argued), Hunton & Williams, Richmond, VA, for Intervenor-Respondent.
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge.
The federal Environmental Protection Agency (actually, Illinois's counterpart to the EPA, exercising authority that the federal EPA had delegated to it, but we can ignore that detail) issued a permit to Prairie State Generating Company to build a 1,500-megawatt coal-fired electrical generating plant in southern Illinois, near St. Louis. Environmentalists asked the EPA's Environmental Appeals Board to reverse the issuance of the permit, and, the Board having refused, In re Prairie State Generating Co., No. 05-05 (EAB Aug. 24, 2006), they renew the quarrel in this court. They claim that the EPA violated two provisions of the Clean Air Act. One requires as a condition of receiving a permit that a plant or other source of air pollution be designed to have the "best available control technology" for minimizing pollution emitted by the plant. 42 U.S.C. § 7475(a)(4). The other attaches the further condition that the plant's emissions not exceed the limits imposed by the Act's national ambient air quality standards. § 7475(a)(3). The petitioners' first claim relates to the sulfur dioxide that will be produced as a byproduct of the production of electricity by Prairie State's plant, the second to the ozone that it will produce.
The plant is to be what is called a "mine-mouth" plant because it has been sited at the location of a coal seam. The seam is believed to contain 240 million tons of recoverable coal enough to supply the plant's fuel needs for 30 years. The siting of the plant will enable the coal to be brought by a conveyor belt, more than half a mile long, from the mine to the plant. Unfortunately, this coal has a high sulfur content. To burn low-sulfur coal Prairie State would have to arrange for it to be transported from mines more than a thousand miles away and would have to make changes in the design of the plant specifically, the design of the plant's facilities for receiving coal. The petitioners argue that the EPA must decide whether hauling low-sulfur coal from afar would be the best available means of controlling air pollution from the plant.
The Clean Air Act defines "best available control technology" as the "emission limitation" achievable by "application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment of innovative fuel combustion techniques." 42 U.S.C. § 7479(3). A "proposed facility" that would if built be a "major emitting facility," as the proposed Prairie State plant would be, must have "the best available control technology for each pollutant subject to regulation," § 7475(4), including sulfur dioxide. The EPA's position is that "best available control technology" does not include redesigning the plant proposed by the permit applicant ("traditionally, EPA does not require a . . . [permit] applicant to change the fundamental scope of its project," In re Old Dominion Electric Cooperative, 3 E.A.D. 779, 793 n. 38 (EPA Adm'r 1992); Environmental Protection Agency, "New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Permitting" B.13 (Draft, Oct. 1990)), unless the applicant intentionally designs the plant in a way calculated to make measures for limiting the emission of pollutants ineffectual. In re Prairie State Generating Co., supra, slip op. at 30, 33-34. But that is not contended in this case. Another provision *655 of the Act, distinct from the one requiring adoption of the best available control technology, directs the EPA to consider "alternatives" suggested by interested persons (such as the Sierra Club) to a proposed facility. 42 U.S.C. § 7475(a)(2); see, e.g., In re NE Hub Partners, L.P., 7 E.A.D. 561, 583 (EAB 1998). But that provision has not been invoked by the petitioners. Only compliance with the "BACT" (best available control technology) requirement is in issue.
The Act is explicit that "clean fuels" is one of the control methods that the EPA has to consider. Well, nuclear fuel is clean, and so the implication, one might think, is that the agency could order Prairie State to redesign its plant as a nuclear plant rather than a coal-fired one, or could order it to explore the possibility of damming the Mississippi to generate hydroelectric power, or to replace coal-fired boilers with wind turbines. That approach would invite a litigation strategy that would make seeking a permit for a new power plant a Sisyphean labor, for there would always be one more option to consider. The petitioners to their credit shy away from embracing the extreme implications of such a strategy, which would stretch the term "control technology" beyond the breaking point and collide with the "alternatives" provision of the statute. But they do not suggest another stopping point.
Now it is true that a difference between this case and our nuclear hypothetical is that a plant designed to burn coal cannot run on nuclear fuel without being redesigned from the ground up, whereas Prairie State's proposed plant could burn coal transported to the plant from afar. But to convert the design from that of a mine-mouth plant to one that burned coal obtained from a distance would require that the plant undergo significant modifications concretely, the half-mile-long conveyor belt, and its interface with the mine and the plant, would be superfluous and instead there would have to be a rail spur and facilities for unloading coal from rail cars and feeding it into the plant. See Kathryn Heidrich, "Mine-Mouth Power Plants: Convenient Coal Not Always a Simple Solution," Coal Age, June 2003, pp. 28, 30; Richard H. McCartney, "Bringing Coal Yards Into the 21st Century," Power Engineering, July 2005, p. 36.
So it is no surprise that the EPA, consistent with our nuclear hypothetical and the petitioners' concession regarding it, distinguishes between "control technology" as a means of reducing emissions from a power plant or other source of pollution and redesigning the "proposed facility" (the plant or other source) changing its "fundamental scope." The agency consigns the latter possibility to the "alternatives" section of the Clean Air Act, which as we said is not involved in this case. Refining the statutory definition of "control technology" "production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment of innovative fuel combustion techniques" to exclude redesign is the kind of judgment by an administrative agency to which a reviewing court should defer. Environmental Defense v. Duke Energy Corp., ___ U.S. ___, 127 S. Ct. 1423, 1434, 167 L. Ed. 2d 295 (2007); New York v. EPA, 413 F.3d 3, 19-20 (D.C.Cir.2005); Alabama Power Co. v. Costle, 636 F.2d 323, 397-98 (D.C.Cir.1979).
But this opens the further and crucial question where control technology ends and a redesign of the "proposed facility" begins. As it is not obvious where to draw that line either, it makes sense to let the EPA, the author of the underlying distinction, draw it, within reason.
*656 Suppose this were not to be a mine-mouth plant but Prairie State had a contract to buy high-sulfur coal from a remote mine yet could burn low-sulfur coal as the fuel source instead. Some adjustment in the design of the plant would be necessary in order to change the fuel source from high-sulfur to low-sulfur coal, Brian Schimmoller, "Western Coal Pushes East," Power Engineering, Aug. 1999, http://pepei. pennnet.com/articles/article_display.cfm?article_id=36230 (visited Aug. 21, 2007), but if it were no more than would be necessary whenever a plant switched from a dirtier to a cleaner fuel the change would be the adoption of a "control technology." Otherwise "clean fuels" would be read out of the definition of such technology. At the other end of the spectrum is our nuclear hypothetical. The plant proposed in this case falls between that hypothetical example and the example of a plant that has alternative off-site sources of high and low-sulfur coal respectively.
We hesitate in a borderline case, such as this, to pronounce the EPA's decision arbitrary, the applicable standard for judicial review of its granting the permit. Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461, 496-97, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004). The decision required an expert judgment. The petitioners' brief, though long, contains nothing about mine-mouth power stations. The petitioners pitch their case on the naked proposition that if a plant is capable with redesign of burning a clean fuel, it must undergo a "best available control technology" analysis. But they flinch by carving an exception for the nuclear case without explaining the principle that distinguishes it from this case. Of course there is a distinction, but it is one of degree and the treatment of differences of degree in a technically complex field with limited statutory guidance is entrusted to the judgment of the agency that administers the regulatory scheme rather than to courts of generalist judges. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984); Sierra Club v. EPA, 375 F.3d 537, 539-40 (7th Cir.2004).
What must give us pause, however, is the scantiness of the Environmental Appeals Board's discussion of the difference between, on the one hand, adopting a control technology, and, on the other hand, redesigning the proposed plant, in the specific setting of this case. Here are the critical passages: "`With respect to alternate sources of coal, e.g., low-sulfur western coal from Wyoming or Montana, the proposed plant is being designed and developed to burn high-sulfur Illinois coal, the locally available coal. It would be inconsistent with the scope of the project to use coal from other regions of the country. Rather, the BACT [best available control technology] determination addresses the appropriate control technology for SO2 [sulfur dioxide] emissions associated with use of this coal at the proposed plant. . . . The project that must be addressed when evaluating BACT is the project for which an application has been submitted, i.e., a proposed mine-mouth power plant. The source of coal for which the plant would be developed is a specific reserve of 240 million tons of recoverable coal, which would meet the needs of the proposed plant for more than 30 years. Accordingly, the use of a particular coal supply is an inherent aspect of the proposed project. To require an evaluation of an alternative coal supply . . . would constitute a fundamental change to the project.'" In re Prairie State Generating Co., supra, slip op. at 20-21. Alternative coal supplies would be "`beyond the scope of the project, a power plant fueled from *657 coal delivered by a conveyor belt from an adjacent dedicated mine.'" Id. at 23. "`The development of a mine-mouth power plant is an intrinsic aspect of the proposed plant, which would be developed to use a specific reserve of fuel, which is adequate for the expected life of the plant.' . . . [C]onsideration of low-sulfur coal, because it necessarily involves a fuel source other than the co-located mine, would require Prairie State to redefine the fundamental purpose or basic design of its proposed Facility." Id. at 31, 36 (emphasis added).
These passages might be read as merging two separate issues: the difference between low-sulfur (clean) and high-sulfur (dirty) coal as a fuel source for a power plant, and the difference between a plant co-located with a coal mine and a plant that obtains its coal from afar. The former is a difference in control technology, the latter a difference in design (or so the EPA can conclude). We think it is sufficiently clear from the passages that we have quoted from the Environmental Appeals Board's opinion, and especially from the clause that we italized, that the Board did not confuse the two issues; that it granted the permit not because it thinks that burning low-sulfur coal would require the redesign of Prairie State's plant (it would not), but because receiving coal from a distant mine would require Prairie State to reconfigure the plant as one that is not co-located with a mine, and this reconfiguration would constitute a redesign.
So the Board's ruling on the BACT issue must be upheld, and we move on to the ozone issue. Measuring the contribution of a power plant to atmospheric ozone is difficult because the ozone is not emitted directly by the plant; rather, it is produced by the interaction of some of the chemicals that the plant emits with sunlight. Until 2003 the EPA determined that a power plant was violating the limit on contributing to ozone in the area in which Prairie State's plant is to be located when on at least one day there was an hour in which the average concentration of ozone exceeded .12 parts per million. But that year it decided to replace the "1 hour" standard as it was called with an "8 hour" standard. The new standard looks at whether the concentration of ozone during an average 8-hour period (more precisely, a three-year average of the fourth-highest daily maximum 8-hour concentration) exceeds .08 parts per million. The agency explained that "the 8-hour standard is more protective of public health and more stringent than the 1-hour standard, and there are more areas that do not meet the 8-hour standard than there are areas that do not meet the 1-hour standard." "Proposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard," 68 Fed.Reg. 32,802, 32,804 (June 2, 2003) (to be codified at 40 C.F.R. Pt. 51).
The concentrations measured over these intervals are not actual measurements of ozone; they are estimates based on the levels of contributing factors, the chemicals and sunlight. The formula for estimating the average ozone concentration in one hour is not necessarily applicable to the 8-hour estimate, but the EPA has yet to adopt a formula for the latter estimate. So it used the 1-hour formula not only to show compliance with the 1-hour standard but also to generate an 8-hour estimate, and it used results from earlier studies of the St. Louis area to reinforce its conclusion. From both the 1-hour formula applied to 8-hour stretches and the earlier studies, the agency concluded that Prairie State's plant would not increase the amount of ozone in the local atmosphere. As best the agency could estimate, its 1-hour measurement would turn out to be below the limit of .08 parts per million that the EPA has set for the 8-hour limit.
*658 This was a plausible expectation because, as a matter of arithmetic, the emissions in the highest hour of a measurement period have to be at least as great as the emissions averaged over the highest eight hours in that period. Suppose the emissions in the highest hour are 10 parts per million, in the next highest hour 9 parts per million, then 8 parts, 7, 6, 5, 4, and 3. The average would be 6.5, which would have to be lower than the amount in the highest hour (10) unless the emissions were the same in every hour, in which event the 1-hour and the 8-hour averages would be identical. Admittedly, the example oversimplifies the case because different methods of averaging are used for the different standards. But an emissions level that satisfies the 1-hour standard is likely though not certain to satisfy the new standard as well even though the agency considers the latter to be more stringent.
The petitioners argue that the EPA simply cannot be permitted to rely on the 1-hour standard because it has been superseded by the 8-hour standard. It has; but pending adoption of a compliance measure tailored to the new standard, the agency was entitled to use the measure used for the older standard as a stopgap to demonstrate that if the plant complied with that measure it would be unlikely to violate the new standard. The petitioners do not suggest an alternative except to criticize the inference the agency drew from earlier studies. The criticisms have some merit but not enough to enable us to conclude that the agency was unreasonable in concluding that the plant is unlikely to increase the ozone level.
The petition for review is
DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363104/ | 596 P.2d 1318 (1979)
41 Or.App. 23
Lyle W. GARRETT, Respondent,
v.
Carl Henry LUNDGREN, Jr., the Unknown Heirs of Carl Henry Lundgren, Sr., Olive Haley, W.A. Kessler, the Unknown Heirs of John Kessler, Deceased, the Unknown Heirs of George Zook, Deceased, Harold I. Tenhaeff, the Unknown Heirs of Jacob H. Tenhaeff, Deceased, George M. Pring, the Unknown Heirs of Edwin Dale White, Deceased, the Unknown Heirs of Orlean White, Deceased, Pauline B. Threlkeld, Neil Clarence Threlkeld, the Unknown Heirs of Richard L. Threlkeld, Deceased, the Unknown Heirs of Frank Meagher Stuart, Deceased, Gordon V. McCorkell, Jean J. Racquemore, the Unknown Heirs of Gordon W. McCorkell, Deceased, the Unknown Heirs of Elijah Parr, Deceased, Ruth Parr, and Also All Other Parties and Persons Unknown, Having or Claiming to Have Any Right, Title, Estate, Lien or Interest in or to the Following Described Real Property, Defendants,
Donald R. Zook, Phillip G. Threlkeld, Fern Adrienne Wetzel Stuart, and Millicent Ruth Byrnes, Defendants-Appellants.
No. 8407; CA No. 11653.
Court of Appeals of Oregon.
Argued and Submitted March 26, 1979.
Decided July 2, 1979.
*1319 Donald R. Crane, Klamath Falls, argued the cause and filed the briefs for appellants.
Forrest E. Cooper, Lakeview, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and LEE, BUTTLER and JOSEPH, J.
LEE, Judge.
This is a suit in equity to quiet title to five ten-acre parcels adjacent to property owned by plaintiff. Defendants counterclaimed in trespass for the rental value of the parcels. The court rendered a decree in favor of plaintiff, finding that adverse possession had been established for the requisite ten-year period. Defendants contend that plaintiff's possession was not under claim of right or color of title for the requisite period because (1) he knew others held title to the parcels and paid taxes on them, and (2) he had not "owned" the land for ten years and could not tack on his parents' period of possession. We affirm.
The ten-acre parcels in dispute are situated within sections 35 and 36 in Township 39 South, Range 19 E.W.M., and section 5 in Township 40, South, Range 10 E.W.M. These three sections were divided by speculators into ten-acre tracts and sold to buyers all over the nation in the early 1900's. The disputed parcels were never occupied by the owners in the chain of title but were used by those who acquired the intermingled property via homestead patents, inheritance, or purchase of state school sections.
Plaintiff was born on section 35 approximately 55 years ago and has lived there most of his life. Sections 35 and 36 were sage brush until plaintiff and his family cleared the land in the 1930's.
In order to prove a title by adverse possession, plaintiff must establish by clear and positive proof that he and his predecessors have had actual, open, notorious, exclusive, continuous and hostile possession for the full statutory period of ten years under claim of right or color of title. Beaver v. Davis, 275 Or. 209, 211, 550 P.2d 428 (1976); ORS 12.050. Defendants contend that plaintiff failed to act under claim of right or color of title because plaintiff knew that others had title and paid the taxes on the land he was farming. These factors are not necessarily determinative. In Nedry v. Morgan, 284 Or. 65, 70, 584 P.2d 1381 (1978), the Oregon Supreme Court discussed claim of right and the relevance of the transferee's knowledge of outstanding interests in property, stating,
"Normally, one who realizes that another has legal title to property will not claim the property as his own. Nevertheless, *1320 knowledge of an outstanding interest in the property does not preclude the possessor from exercising the claim of right required for adverse possession. In Bessler v. Powder River Dold Dredg. Co., 95 Or. 271, 185 P. 753 (1919), reh. denied 187 P. 621 (1920), this court stated the rule as follows:
"`* * * The terms "claim of right," "claim of title" and "claim of ownership" when used in the books to express adverse intent mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right.'
In other words, `claim of right' simply means that the possession is not permissive and that the party in possession has not led the true owner to believe that the possessor recognizes the true owner's rights. 3 American Law of Property 776, § 15.4 (Casner ed. 1974); 4 Tiffany, Real Property, § 1142 (3d ed. 1975); see also Norgard et al. v. Busher et ux., 220 Or. 297, 301, 349 P.2d 490, 493, 80 A.L.R. 2d 1161 (1960). Cf., Smith et al. v. Tremaine et ux., supra (recognition of legal title in cotenants); Sertic v. Roberts, 171 Or. 121, 136 P.2d 248 (1943) (acknowledgement of title in lessor); Oregon City v. Or. & Cal. R. Co., 44 Or. 165, 74 P. 924 (1904) (request that the possessor be allowed to make certain use of the property). When it appears that the possessor is aware of the possibility that another party had an interest in the property, the court must examine the evidence to determine whether or not the possessor nevertheless intended to claim the entire property as his own. Norgard et al. v. Busher et ux., supra at 302." (Emphasis supplied.)
In the instant case, the evidence shows that plaintiff took over operation of the family ranch in 1965 and used the ranch land, including the disputed parcels, for grass, grain and hay production, as well as grazing, for over ten years. Furthermore, all three sections containing the disputed parcels have been surrounded by fences and posted against trespassers for over ten years. Plaintiff also testified that he would have evicted defendants if they attempted to use the disputed land at any time. Finally, although the failure to pay taxes may turn the scales in a doubtful case, it is not conclusive. Reeves v. Porta, 173 Or. 147, 156, 144 P.2d 493 (1944). See also Terry v. Timmons, 282 Or. 363, 367, 578 P.2d 405 (1978). We conclude that the evidence establishes that plaintiff acted under a claim of right for the requisite period.
Defendants' second contention is that plaintiff had not "owned" the land for ten years and could not tack his parents' possession because their rights were not conveyed to him. The word "owned" is misleading in this context because plaintiff is relying upon possession under claim of right rather than color of title. Therefore, plaintiff need only prove that he has actually used the land openly, notoriously, exclusively and in a hostile manner for a continuous ten-year period. See Almond v. Anderegg, 276 Or. 1041, 1045, 557 P.2d 220 (1976).
As stated above, plaintiff has operated the ranch since his father died in 1965. At that time, he shared an undivided interest in the deeded property with his mother and his brothers and sisters. In 1969, his mother died and in 1972 he bought his brothers' and sisters' interests in the land. Plaintiff asserted possession of the disputed parcels on behalf of himself and his family when he assumed operation of the ranch in 1965, and there is no evidence of interruption since that time. Periods of possession of successive holders may be united to complete the prescriptive periods necessary for acquisition of title by adverse possession, provided that there are no abandonments or other interruptions automatically returning seizure to the owner. Du Val v. Miller, 208 Or. 176, 181, 300 P.2d 416 (1956). Plaintiff may tack the prior possession of his mother and his siblings.
Our examination of the evidence confirms that plaintiff acquired the disputed parcels by adverse possession.
Affirmed.
*1321 BUTTLER, Judge, dissenting.
In this suit to quiet title, we review de novo. I do not agree that the plaintiff has established title by adverse possession by "clear and positive proof that he and his predecessors have had actual, open, notorious, exclusive, continuous and hostile possession for the full statutory period of ten years under claim of right or color of title." (41 Or. App. at 25, 596 P.2d at 1319.)
First, it must be understood that plaintiff's parents, from whom he acquired the property adjacent to (or surrounding) the ten acre parcels he now claims by adverse possession, did not claim title to those parcels in question by virtue of adverse possession, or otherwise. They were the ones, however, who cultivated the land or grazed cattle on it, and fenced it. After his father's death in 1965, plaintiff took over the operation of the ranch, and continued to do just as his parents had done, except that he contends that in continuing to cultivate all of the land within each of the sections in which the ten acre parcels in question are located, his intention was to claim title to those parcels.
The fact that the entire sections were fenced for over ten years, that is by plaintiff's parents, not by him, indicates absolutely nothing. It was the most economic way to fence the property admittedly owned by plaintiff, the alternative being to fence out each of the ten acre parcels. Equally insignificant is the posting of "no trespassing" signs on the outer perimeter of the section lines; without question, plaintiff was entitled to keep trespassers off of the property which he admittedly owned.
The only evidence, then, as to the necessary elements to support adverse possession come from plaintiff's testimony that he intended to claim title to each of the parcels in question against the world, even though neither his parents nor his brothers and sisters (from whom he acquired title to undivided interests in their parental property) had done so. As against that testimony plaintiff knew, as did his parents, that the record title to each of the parcels in question was in someone else and that the real property taxes were assessed and paid by the record owners. In Reeves et al. v. Porta, 173 Or. 147, 156, 144 P.2d 493, 497 (1944), relied upon by the majority for the proposition that the failure of the claimant to pay taxes is not conclusive, the Supreme Court held that adverse possession had not been established. In doing so, it stated:
"During all the period of the alleged adverse possession by plaintiffs, taxes were levied regularly against the property, but they paid none of them. The record owners paid them. Failure to pay taxes is, in itself, evidence against the plaintiffs' claims. Phipps v. Stancliff, 118 Or. 32, 245 P. 508; Looney v. Sears, 94 Or. 690, 185 P. 925, 186 P. 548; Holtzman v. Douglas, 168 U.S. 278, 18 S. Ct. 65, 42 L. Ed. 466; Todd v. Weed, 84 Minn. 4, 86 N.W. 756. It is held generally that such failure is not conclusive against one claiming title by adverse possession, and this is the rule in Oregon. In a doubtful case, however, it may turn the scales against the claimant. Looney v. Sears, supra. The owner of property is bound to know that such property is subject to assessment for its proportional share of the public burdens. `Ordinarily, a person pays taxes on that which he claims to own.' Phipps v. Stancliff, supra. The failure of one, claiming to hold land in adverse possession as against the legal owner, to have the land assessed to him and to pay the taxes thereon, particularly when he permits the legal owner to pay them, may be regarded as evidence of a furtive possession, or of a permissive one, or of a mere trespass. It is `strong and forcible evidence that the possessor did not intend to claim title adversely to the owner', (Todd v. Weed, supra) and in this case the trial judge so considered it."
It seems to me that the most that can be said is that plaintiff continued doing what his parents had done, namely, use the islands of land surrounded by land owned by *1322 plaintiff's parents, and later plaintiff, as a matter of convenience and because no one objected. I would hold, as the Court did in Reeves et al. v. Porta, supra, that the failure of plaintiff to have the land assessed to him and to pay the taxes thereon, and knowingly permitting the legal owners to pay them, is strong evidence of a "furtive possession" and "strong and forcible evidence that the possessor did not intend to claim title adversely to the owner."
In each of the cases relied upon by the majority, except Reeves, the party claiming adverse possession at least thought, rightly or wrongly, that the property claimed was a part of his property.
For the foregoing reasons, I would reverse the judgment below, and therefore respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363117/ | 23 Wash. App. 519 (1979)
596 P.2d 312
THE STATE OF WASHINGTON, Respondent,
v.
ROBERT J. CASTILLO, Appellant.
No. 2686-3.
The Court of Appeals of Washington, Division Three.
June 12, 1979.
Paul D. Edmondson, for appellant.
Jeffrey C. Sullivan, Prosecuting Attorney, and John C. Monter, Deputy, for respondent.
McINTURFF, J.
The defendant, Robert J. Castillo, appeals the denial of his motion to withdraw his plea of guilty to the crime of forgery. He also attacks the validity *520 of his conviction under the habitual criminal statute, RCW 9.92.090.[1]
On September 8, 1977, Robert Castillo was charged with the crime of forgery. At the arraignment, he entered a plea of guilty. Thereafter, a supplemental information was filed charging the defendant with having attained the status of a habitual criminal pursuant to RCW 9.92.090.
Mr. Castillo challenges the quality of legal representation he received during the habitual criminal proceeding. In support of his argument that he was denied his Sixth Amendment right to effective assistance of counsel, the defendant points to the following instance of alleged misfeasance by his court-appointed attorney.[2]
Mr. Castillo contends that his attorney failed to discover a defect in his prior conviction for grand larceny, which, if discovered, would have served as an absolute defense to the habitual criminal charge. Specifically, the defendant argues that his prior conviction arising out of the theft of a chain saw, valued in excess of $75, does not qualify as a prior felony conviction under the habitual criminal statute because, at present, a felony conviction under the theft statute, RCW 9A.56.040, requires a theft of property over $250.
[1] The present test in this state for determining whether a criminal defendant has received effective assistance of counsel is: "after considering the entire record, can it be said that the accused was afforded an effective representation and a fair and impartial trial?" State v. Thomas, 71 Wash. 2d 470, 471, 429 P.2d 231 (1967); State v. Adams, 91 Wash. 2d 86, 90, 586 P.2d 1168 (1978). Concerning the fact *521 that the grand larceny conviction involved the theft of a chain saw valued at $110 at the time of the conviction and now the same felony theft offense demands that the amount be in excess of $250 is of no moment. The crucial inquiry is whether at the time the crime was committed, the act was recognized as a felony in Washington. State v. Braxton, 20 Wash. App. 489, 493, 580 P.2d 1116 (1978); 19 A.L.R. 2d 235 (1951); People v. Irving, 54 App. Div.2d 765, 387 N.Y.S.2d 697 (1976); Ex parte Harincar, 29 Cal. 2d 403, 176 P.2d 58 (1946).
Counsel cites Haislip v. Morris, 84 Wash. 2d 106, 108, 524 P.2d 405 (1974), and State v. Jackovick, 56 Wash. 2d 915, 919, 355 P.2d 976 (1960), for the proposition that because the former felony is not now a felony, but is a misdemeanor, it cannot be considered as a felony for the present habitual criminal charge. Haislip is distinguishable because the issue was whether an Arizona conviction was a felony in Washington. That is not the issue here. In Jackovick, the court said the crimes in Minnesota are "both and were at the time when the appellant was convicted of those offenses felonies in the state of Washington." Based upon this statement, counsel states inferentially the crimes must be therefore felonies at the time the habitual criminal charge is commenced. We disagree. The court, by the above statement, did not hold it was necessary that the crime be a felony at the time the habitual criminal charge was filed as well as at the time it occurred. The statement of the court could be interpreted to mean that the convictions in Minnesota, then and at the time of the claimed convictions, were felonies in the state of Washington not that it was mandatory under our habitual criminal statute for the acts to be felonies at the time the habitual criminal charge is commenced.
[2] At least in this instance the substance of the crime of grand larceny has not changed the taking of property without permission. Merely the amount necessary to constitute a felony has changed because of inflation. Thus, we adhere to the interpretation of RCW 9.92.090 which allows *522 the conviction of a crime which was a felony at the time it occurred to be used within the meaning of our habitual criminal statute, even though subsequently it has been reduced from a felony to a misdemeanor. Consequently, the conviction of grand larceny in 1976 was properly used to form a partial basis for the habitual criminal charge against Mr. Castillo.
Thus, after considering the entire record we hold that Mr. Castillo received effective representation and a fair and impartial trial.
Judgment of the Superior Court is affirmed.
Pursuant to RCW 2.06.040, the remaining contentions and the court's answers to those contentions, having no precedential value, will not be published.
MUNSON and ROE, JJ., concur.
Reconsideration denied July 3, 1979.
Review denied by Supreme Court September 7, 1979.
NOTES
[1] "Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in the state penitentiary for life."
[2] Counsel on appeal was not trial counsel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363116/ | 24 Cal. 3d 629 (1979)
596 P.2d 1143
156 Cal. Rptr. 727
CYNTHIA MUNOZ et al., Plaintiffs and Respondents,
v.
DEREK OLIN et al., Defendants and Appellants.
Docket No. L.A. 30908.
Supreme Court of California.
July 17, 1979.
*630 COUNSEL
Burt Pines, City Attorney, John T. Neville, Assistant City Attorney, and Daniel U. Smith, Deputy City Attorney, for Defendants and Appellants.
Manuel Lopez, Fielder & Fielder and Hugh B. Fielder for Plaintiffs and Respondents.
OPINION
NEWMAN, J.
Appellants are the City of Los Angeles and two arson investigators who shot and killed William Munoz in the early morning hours of May 19, 1973. Respondents are his widow and children, plaintiffs in this wrongful death action.
*631 Several arson incidents involving commercial property in Munoz' neighborhood had been reported. On the night of the shooting defendants Olin and Halstead were staking out the area as arson investigators for the city, with the status of peace officers (Pen. Code, § 830.3, subd. (k), now § 830.3, subd. (j)). They testified that they intentionally shot Munoz as a suspected, fleeing arsonist.
Plaintiffs alleged both negligence and intentional tort. The judge instructed as to both theories. The jury returned a verdict for plaintiffs and found that Munoz' negligence contributed 35 percent to his death. The judgment for plaintiffs was reduced accordingly.
The issue is whether the jury verdict and the trial court instructions on negligence were erroneous. On a review of the record, we find substantial evidence to support a negligence theory and accordingly affirm the judgment.
The Evidence
The incident occurred near the intersection of Alhambra and Warwick streets. Alhambra is a lighted, four-lane thoroughfare that runs generally east and west. A few houses are interspersed with buildings used by small businesses. Decedent's house was on the south side of the street, behind a grocery store operated by his wife's parents.
Behind the buildings that front on that side of Alhambra is a 20-foot-wide alley that parallels Alhambra. Most of the buildings have common walls. There are, however, walkways that permit access from the alley to Alhambra. One of those passages runs alongside the building where the Munoz family resided.
One of the businesses in the area was the Royal Upholstery Co., located about 250 feet east of the Munoz' back entrance. Along the alley at the rear of the businesses were doors providing access to the alley, which contained trash receptacles. The alley was illuminated by lights on the rear of the buildings.
From the evidence certain facts emerge as undisputed. There had been arson activity in the alley and nearby areas. Olin and Halstead were there seeking to apprehend an arsonist. Munoz, walking westerly in the alley on May 19, 1973, was at one point at the rear of Royal Upholstery's building. He proceeded from there down the alley, through a walkway to *632 the courtyard of his home and then through another walkway to Alhambra. He was shot by Olin and fell mortally wounded in the street where the walkway exited on Alhambra. Olin made a report of a fire, and fire engines responded.
The evidence most favorable to plaintiffs, which we must examine for sufficiency, fills in those undisputed skeletal facts as follows: On May 18 at about 7 or 8 p.m. Cynthia Munoz drove her husband to the home of a friend. He remained there until about 9:30 p.m. when he was driven by his brother to his parents' home. He remained there playing pool until about 1 a.m. when he returned to the friend's residence, which he left to go home at about 2:30 a.m. at the end of a television rock concert.
He walked with another friend, Carrera, to the corner of Warwick and Alhambra where Carrera lived. The walk took about five minutes. They talked for about 10 minutes, and Munoz then walked south on Warwick and turned west into the alley. At that point he was some 500 feet from his home. Traversing that distance he would have passed the rear of the Royal Upholstery building, about halfway between the alley entrance and the walkway to his home.
His wife was dozing and was awakened by Munoz' tapping on the window and calling her name in an ordinary voice. That was usual because he did not carry a key. As she walked to the kitchen to open the door she heard five or more shots fired. She also heard running feet and the words, "Get in the car, Jerry."
She hid the children in the bathroom. After five minutes or so she went to her parents' home across a courtyard to find out what had happened. She walked through the market in front of their home to where she could see out on Alhambra and there saw her husband's body lying in the street.
The parents testified that they were awakened by and heard four, five or more shots. Carrera also heard more than three shots. Plaintiffs' witnesses also testified that they heard no shouts or sirens and saw no indication of a fire until the fire engines arrived.
Munoz was killed by a bullet through the lungs and heart. The coroner testified that this sort of wound is almost immediately fatal. Two men driving east on Alhambra ran over Munoz' body without seeing it. They had not seen any activity along the street. They stopped their car, walked *633 back to the body and stood there for two or three minutes until defendants approached and told them their car had not killed him.
A watch taken from the body by the coroner was broken and stopped at 2:48. A fire at Royal Upholstery was reported at 2:54. The loading door at the rear of Royal Upholstery had been burned in the past. Fires occurred in the neighborhood both before and after May 1973.
Defendants' evidence explains the incident as follows: The nearby fire station had reported several fires in the area that appeared to have been deliberately set. Two autos had been set on fire in the alley in the past month. Defendants had information that those two had been started by the ex-partner of the proprietor of Royal Upholstery, to whom the cars had belonged. The ex-partner was reported to be armed and dangerous. Three other fires had occurred about 300 feet east of Royal Upholstery around 3 a.m. in late April and early May and involved the use of scrap wood.
On the morning in question about 2:30 a.m. Halstead and Olin took up a position in the alley where those three fires had occurred, at the southeast corner of Warwick and Alhambra. They waited in an unmarked car from which they had a view of the alley to the west. They were wearing plain clothes.
After about 15 minutes they observed Munoz walk south on Warwick, turn west into the alley, and approach the rear of Royal Upholstery, located about 300 feet from their car. They saw him pick up a bundle of material of about two feet by three feet from a large trash receptacle, place the material against a rear door of Royal Upholstery, and ignite it. Flames quickly reached a height of two-to-three feet.
Olin immediately radioed a report to the fire station and turned on the siren. Halstead turned on the headlights and drove rapidly toward Munoz, who ran. Defendants pulled alongside, yelled that they were police officers, and ordered him to stop. He continued to run.
Halstead headed the car into a wall to his right, attempting to trap Munoz, who then slipped between the fender and the wall and ran up the walkway alongside what was, coincidentally, his home. Olin got out of the car with gun drawn, followed partway by Halstead, both yelling at Munoz to stop. After a few feet Halstead returned and drove to the front of the buildings on Alhambra to head off Munoz in case he ran that way.
*634 Olin reached a gate and saw Munoz in a lighted courtyard. He shouted, "Halt, police." When Munoz ignored the command Olin fired a shot over his head. He stopped, turned, and made a flinging motion with his arms. Olin said, "Stand still. Don't move."
Munoz, however, turned and ran toward the gate that led to Alhambra. He climbed the gate, and Olin fired two more shots. He went over the gate and out of sight, fatally wounded. Olin climbed the gate and continued to Alhambra where he saw a car run over an object he soon discovered to be Munoz' body.
The captain in charge of the fire station testified that four units responded to Olin's radio report of 2:54 a.m. The fire had burned through and up the height of the Royal Upholstery door and was impinging on the ceiling when it was put out.
Substantial Evidence to Support a Negligence Verdict
Defendants do not dispute that an officer's lack of due care can give rise to negligence liability for the intentional shooting death of a suspect. In Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575 [86 Cal. Rptr. 465, 468 P.2d 825] this court expressly so held. Nor do they dispute that negligence and intentional tort theories both may be available to a plaintiff in such a case. (Grudt at p. 586.)
However, defendants argue that negligence instructions were erroneous in this case because no substantial evidence supported a negligence verdict. They maintain that the only theory of liability available on the evidence was intentional tort; on that theory, they claim, defendants were not liable because the evidence conclusively showed that Munoz was an arsonist about to escape apprehension, so the killing was justified.[1]
*635 Plaintiffs respond that their evidence showed that Munoz was not an arsonist and the defendants did not attempt to stop him in the alley but rather shot at him as he stood in his courtyard and as he ran from them through the walkway. They argue that it showed the officers' lack of care in identifying Munoz as an arsonist and in attempting to apprehend him.
The evidence relevant to negligence and intentional tort overlaps here and presents a case similar to Grudt v. City of Los Angeles, supra, 2 Cal. 3d 575. Grudt was driving in a high-crime area shortly after midnight. Two plainclothes officers in an unmarked car tried to stop him by pulling up next to him, shouting, and showing their badges; but he attempted to elude them by driving on. When they saw him lean forward and reach under the front seat they became alarmed and radioed for help. Two other plainclothes officers saw him stop at a red light, approached his car, and rapped on the window with a loaded shotgun. The evidence conflicted as to whether he then accelerated his car toward one of the officers, but in any case they both shot at him. At trial evidence indicated that he was slightly hard of hearing, had no crime record, and had hidden his wallet containing $5 under the front seat.
This court held it was reversible error to exclude the negligence issue from the jury even though plaintiff also had pled intentional tort. The court pointed to the rule that a party may proceed on inconsistent causes of action unless a nonsuit is appropriate. Considered as a motion for nonsuit the exclusion motion failed in Grudt because there was evidence to support a verdict of negligence. "At the very least, the evidence favorable to plaintiff raised a reasonable doubt whether [the officers] acted in a manner consistent with their duty of due care when they originally decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and when they shot him to death.... Therefore, the trial judge should have instructed the jury on both negligence and intentional tort theories and left it to their judgment to decide which, if either, was factually established." (Grudt, supra, 2 Cal.3d at p. 587.)
(1a) We find that in this case, too, substantial evidence was presented to enable the jury to find negligence on the part of the officers.
(2) In reviewing for substantial evidence, we look at the evidence in support of the successful party, disregarding the contrary showing. (Nestle v. City of Santa Monica (1972) 6 Cal. 3d 920, 925 [101 Cal. Rptr. 568, 496 P.2d 480]; 6 Witkin, Cal. Procedure (2d ed. 1971) § 249, p. 4241.) All *636 conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. (Crawford v. Southern Pacific Co. (1935) 3 Cal. 2d 427, 429 [45 P.2d 183]; 6 Witkin, supra, § 245, pp. 4236, 4237.) Weight of the evidence must be disregarded. (Estate of Teel (1944) 25 Cal. 2d 520, 527 [154 P.2d 384].)
(1b) Considering the evidence in plaintiffs' favor to be true, the jury could have believed that Munoz spent the Friday evening in his usual manner with friends and went peacefully home along his usual alley route engaging in no criminal activity. Nothing in his background or in his activities that evening suggests an arsonist. After tapping on the window of his house on the walkway to awaken his wife, in his usual manner, he walked into the courtyard. The two investigators came down the quiet alley in an unmarked car. They stopped the car at the walkway where Munoz had turned and pursued him on foot. He was shot at in the courtyard. To escape the bullets he jumped over the gate and ran up the other walkway toward Alhambra. Olin followed and shot him as he ran into the street where he died almost instantly.
A jury taking that view of the facts could have found that under the circumstances the officers were negligent in identifying Munoz, the first man they saw in their rush, as the arsonist they had seen.[2] Testimony and a jury visit to the scene indicated that Royal Upholstery was 300 feet down the alley from the investigators' observation point, with telephone poles and trash receptacles in between. The jury could have found negligence in the failure adequately to warn Munoz and to attempt other means to apprehend him, if they disbelieved the investigators' testimony regarding their lights, siren and shouts as they drove down the alley. Munoz' wife, who was dozing under a window very near to the walkway entrance where defendants stopped their car, heard nothing but her husband's tap and calm voice at the window, followed by shots. Neighbors also testified that they heard shots but no sirens or shouts.
The jury also could have found negligence on Olin's part in interpreting the situation to require shooting at Munoz though Halstead could drive around to apprehend him on Alhambra, as indeed Halstead *637 testified he did. They could have found Olin negligent in the way he used his weapon under the circumstances, particularly in view of plaintiffs' evidence that he fired not just three but several bullets.
As the court repeated in the similar Grudt case, "`[T]he actor's conduct must always be gauged in relation to all the other material circumstances surrounding it and if such other circumstances admit of a reasonable doubt as to whether such questioned conduct falls within or without the bounds of ordinary care then such doubt must be resolved as a matter of fact rather than of law.'" (Grudt v. City of Los Angeles, supra, 2 Cal. 3d 575, 587, quoting Toschi v. Christian (1944) 24 Cal. 2d 354, 360 [149 P.2d 848].)
Because there is substantial evidence to support a finding of negligence, the trial court was correct in giving the negligence instructions and the jury's verdict will not be disturbed. In light of such a holding, we find no merit in defendants' other contentions.
The judgment is affirmed.
Bird, C.J., Tobriner, J., Mosk, J., and Richardson, J., concurred.
MANUEL, J.
I concur in the judgment under compulsion of Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575 [86 Cal. Rptr. 465, 468 P.2d 825].
Clark, J., concurred.
NOTES
[1] Defendants argue that their actions were privileged by virtue of Penal Code section 196: "Homicide is justifiable when committed by public officers ... when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest." (See also Pen. Code, § 835a as to lawful use of force by police officers.) The jury was, however, instructed on justifiable homicide as defined in section 196 and, by its verdict, necessarily rejected that defense. Contrary to defendants' contention, the evidence does not establish justifiable homicide as a matter of law. Since plaintiffs have not appealed and do not contend that the instruction prejudiced them, we need not address issues raised here as to the scope of the privilege to use deadly force.
We note also that plaintiffs have not questioned the jury's reduction of the award for contributory negligence.
[2] Though it is not required by plaintiffs' negligence theory to explain the fire, they argue that the jury might have believed that the officers started it to assure justification for the death they suddenly caused by shooting at a man they suspected as a potential arsonist or, perhaps, a burglar. Alternately, and perhaps more plausibly, the jury might have concluded that a still-unidentified arsonist (e.g., the Royal Upholstery ex-partner) was the man seen by the officers, who then erroneously assumed that Munoz, an innocent passerby, was he. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264872/ | 54 Cal. App. 4th 27 (1997)
KENSINGTON UNIVERSITY, Plaintiff and Appellant,
v.
COUNCIL FOR PRIVATE POSTSECONDARY AND VOCATIONAL EDUCATION et al., Defendants and Respondents.
Docket No. B103279.
Court of Appeals of California, Second District, Division Seven.
March 25, 1997.
*30 COUNSEL
Alfred A. Calabro for Plaintiff and Appellant.
Daniel E. Lungren, Attorney General, Charlton G. Holland III, Assistant Attorney General, John H. Sanders and Wendi A. Horwitz, Deputy Attorneys General, for Defendants and Respondents.
OPINION
LILLIE, P.J.
Kensington University (University) appeals from judgment denying its supplemental petition for writ of mandate which sought to vacate the decision of defendant Council for Private Postsecondary and Vocational Education (Council) denying University's application to operate as a degree-granting institution under Education Code section 94310. On appeal, University contends that certain procedures employed by Council deprived it of due process of law and constituted abuses of discretion, that the trial court failed to apply the proper standard of review to the record of the administrative hearing, the trial court erred in applying the law, and that Council's decision is not supported by substantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Council is authorized under Education Code section 94310 to approve applications for private postsecondary educational institutions to operate in California. In 1989, the Legislature enacted a comprehensive system of statutes known as the Private Postsecondary and Vocation Reform Act of 1989 (hereinafter Act; Ed. Code, §§ 94300 to 94350), which became effective on January 1, 1991. The Act transferred the responsibility for approving and regulating private postsecondary schools from the Department of Education to the newly created Council. At the times pertinent herein, Kenneth A. Miller was executive director of Council.
*31 University began operating in 1976 as an "allowed" institution under former Education Code section 29023, subdivision (a)(3), which provided in pertinent part that "filing pursuant to this section shall not be interpreted to mean ... that the State of California, the Superintendent of Public Instruction, the State Board of Education ... or any division or bureau thereof, has made any evaluation, recognition, accreditation, approval, or endorsement of the course of study." In 1984, former Education Code section 94310, subdivision (c), was modified to include provisions for a review by a visiting committee; in 1986, former Education Code section 94310, subdivision (c), was renumbered section 94310.3. Under former Education Code section 94310, subdivision (c), the visiting committee's responsibilities were to verify the financial stability of the institution. Any authorization received pursuant to former section 94310.3 "shall not be interpreted to endorse, and it is unlawful for, any institution to represent by any means that the State of California ... has made any accreditation or endorsement of the course of study or degree." (Former Ed. Code, § 94310.3, subd. (h).)
Under Education Code section 94310, as enacted in 1989, the Legislature granted schools which had prior authorization under former Education Code section 94310.3, the status of "candidate for approval" and required that the candidate file an application for approval within three years. (Ed. Code, § 94310, subd. (i).) Thus, on January 1, 1991, University operated under "candidate for approval" status until January 1, 1994; before the expiration of the three-year period after January 1, 1991, University was required to submit an application for approval to Council under new standards set out in Education Code section 94310.[1] Council was given authority pursuant to section 94305, subdivision (b), to establish minimum criteria for the approval of private postsecondary or vocational educational institutions to *32 operate in California and award degrees, and pursuant to section 94305, subdivision (c), Council was to adopt rules and regulations governing the conduct of such postsecondary institutions. Council submitted three sets of emergency regulations to the Office of Administrative Law, which were approved as emergency regulations and filed with the Secretary of State beginning August 17, 1992. Permanent regulations were approved and filed on April 19, 1994. These regulations appear as section 70000 et seq., in title 5 of the California Code of Regulations.
On July 12, 1993, University submitted, for the first time, an application under the Act for approval to operate as a degree-granting institution in California, seeking approval for its programs in business administration, computer science, environmental science, law, engineering, education administration, political science, and psychology counseling. Council impaneled a visiting committee for an on-site review, which was conducted on several days in February and March 1994. On April 6, 1994, Council sent to University the visiting committee's report, which identified areas of noncompliance with the Act by University.
With respect to the mission statement, the visiting committee recommended revising the statement to focus on the goals and objectives of the institution and also required University to provide documentation on the populations actually being served by University. With respect to the issue of administrative personnel, the committee found a violation of the requirement for a personnel manual with job descriptions for each primary administrative *33 position and a job performance evaluation process. With respect to the issues of curriculum and instruction, the committee report noted many students had completed Ph.D. programs, but their files failed to verify that a dissertation had been completed; in several instances, there was an unqualified dissertation committee; in some instances, the student dissertations did not meet accepted standards for a dissertation; some programs lacked academic rigor; the environmental science program lacked laboratory instruction, which is typically included in this type of program at more traditional institutions, and also lacked documentation of student learning outcomes, no criteria for determining experiential learning credits, and course outlines did not contain sufficient detail in defining prerequisites, course requirements, or learning outcomes. The non-bar juris doctor program did not meet the admission and graduation requirements of the California Code of Regulations (hereinafter regulations); the transfer policy of the doctor of jurisprudence program did not meet the requirements of the regulations.
In the engineering and computer science programs, the visiting committee found that course outlines did not exist for engineering; University administration was working on developing course outlines, but there was no faculty involvement in the development of the curricula; courses in the graduate program were not appropriate for advanced level courses; student files also revealed in several instances that experiential learning credits were not documented as being earned at college level and as relating to the degree program in which the student was enrolled. As to the degree programs in psychology, the visiting committee found the sequence of course work to be poorly defined, the curricula for the masters and doctoral degrees were not entirely appropriate for that particular degree title in psychology counseling, and none of the doctoral students whose files were reviewed had taken any research-oriented courses; the overall quality and content of the Ph.D. program was low.
The committee also found there were an insufficient number of faculty, at the appropriate level, to provide instruction, with only 11 current faculty for about 700 students; many faculty were working in an academic area in which they did not have qualified expertise; the committee had a "serious question that the program in Public Administration should even be offered," as only one faculty member was qualified in the area. The faculty for environmental science was found not to be appropriately qualified, and the doctoral committee was not appropriate for a Ph.D. in this subject. The committee also found insufficient faculty with appropriate qualifications to support the psychology counseling programs or to provide adequate supervision for doctoral students; it was also recommended that University establish standards for student evaluation.
*34 With respect to the physical facilities, University was required to establish a process for ensuring students have access to the appropriate level of library resources for their level of program. The committee also recommended numerous changes in University's admissions standards, including the award of experiential learning credits and transfer credits; also recommended were improvements in the recordkeeping process, increased faculty contact with students, and that advisers of Ph.D. candidates have the appropriate degree level and discipline for the student objectives.
On May 4, 1994, University submitted a 561-page response to the visiting committee's report; University provided some documentation requested by the committee, but other information was lacking; the response failed to contain a job description for the president of University, and there was no indication when a newly established job performance evaluation process was to be implemented; the evaluation process was not included in the personnel manual. Although the response indicated that more faculty were currently assigned to various programs, with a current faculty of 41 in May 1994, University also was in the process of "continuing a comprehensive review and enhancement of all existing University academic standards and objectives for all schools and educational programs...." The response detailed new admissions standards, grading criteria, expanded forms for student evaluation and an expanded format for course syllabi, which included course goals and expected student learning outcomes. An outline for one course appeared in the response, apparently offered as a sample of the new format for the development of new outlines for over 400 courses offered by University. The response also contained a new policy and criteria for experiential learning credit, new policies and procedures for doctoral degree programs and doctoral degree committees. The response also pointed out alleged "errors of observation" by the visiting committee, and provided actual student files and records to show correct facts. In response to concerns expressed in the visiting committee report, University also provided copies of its recently revised enrollment agreement.
In June 1994, the Degree-Granting Institutions Standing Committee proposed to Council that University's application be denied; Council accepted the recommendation for denial. By letter dated July 4, 1994, Council advised University of the denial of its application and delineated the grounds of denial. The letter contained citations to the governing regulations, the compliance issues and findings of the visiting committee, summaries of University's responses to each issue, and then Council's comment to the University's response. One of the grounds for denial dealt with the requirement of section 71710, subdivision (b) of title 5 of the regulations that "The institution shall maintain a course outline for each course offered." The letter *35 stated that "Course outlines are the architectural structure for each course offered, to be developed through a faculty involvement process. A change of format is cosmetic. Without faculty involvement and participation in modifying the 437 courses offered by the University, and without an administratively-supported direction for the ultimate objectives and student learning outcomes for each degree program, this is a pro-forma exercise. At the time of the review, none of the issues relating to missions, governance, curricula or faculty met minimum standards for degree program delivery. Admission requirements and scholastic regulations were also substandard. These issues, to be addressed, require a total restructure of the institution."
With respect to the issue of the inadequacy of the faculty, Council acknowledged that University "has virtually doubled the number of faculty at the institution; this has been done in a 30-day period. There is no evidence of faculty involvement in the selection/review process. The fact that there are now 22 additional bodies, on paper, does not address the years of insufficient, and often inappropriate faculty resources to instruct students. The institution would do well to develop a core academic program, and slowly expand it, with judicious recognition of the appropriate resources required for program delivery, administration, and monitoring."
In commenting on University's response in general to the visiting committee report, Council stated in its July 1994 letter: "[University] reinvented itself after the visit. If it were to operate according to everything they purport to do, it might be an institution that meets minimum standards. However, the institution was reviewed under California Code of Regulations that have been operative since August 1992. On the visit, it was learned that the institution's operation did not conform to the information included in the application, nor did it conform to the minimum standards established in the Emergency Regulations approved in August of 1992. [¶] Kensington University, with its response, proposes new policies, new procedures, and new agreements all on paper. There is no way currently to determine if the modus of operation has changed. The institution might do well to consider beginning a new operation in compliance with all requirements for operation as a degree-granting institution. [¶] Kensington, almost verbatim, utilized the University of Phoenix's mission statement and adopted it as its own. This creates false impression in that one reading it thinks it is really that of Kensington's. A mission statement is to be used as the framework for establishing goals of [a] school. Here it was not. An obvious afterthought.... [¶] For the reasons stated above, the application for approval *36 is being denied pursuant to Section 94310(d)(1)(C) of the California Education Code."[2]
University appealed Council's denial of its application.[3] An administrative hearing was scheduled for May 1995. In September 1994, Council conducted an audit of University's books and records, focusing on the calculation and payment of student refunds. In March 1995, in connection with the administrative hearing before an administrative law judge, Council filed a second amended statement of issues, which detailed numerous violations of the regulations in title 5, division 7.5 of the regulations (hereinafter title 5).
The statement of issues set out the following violations which were found to exist at the time of the site review: (1) University's mission statement was inadequate (tit. 5, §§ 71000, subd. (p), 71705, subd. (a); Ed. Code, § 94330, subd. (k)(2)) and it was also learned in June 1994, that an amended *37 mission statement was admittedly plagiarized from the mission statement of the University of Phoenix; (2) University's personnel manual was incomplete in failing to include a job description for its president (tit. 5, § 71730, subd. (b); Ed. Code, § 94330, subd. (k)(2)) and did not state when a newly created performance evaluation process would start; (3) University's affiliations with educational institutions in other countries, such as Japan and Australia were not documented with confirmation of the authority under which the programs were approved to operate in the foreign countries (Ed. Code, § 94330, subd. (k)(2)); (4) course outlines (tit. 5, § 71710, subd. (b)) were not maintained for each course at time of the site review; (5) curricula for the degree programs in environmental science did not require any laboratory courses as prerequisites, and thus the curricula did not support the environmental science degree programs; (6) the curricula in engineering and psychology counseling did not include prerequisites for the courses to show a logical development of knowledge and expertise, and the curricula for the masters and Ph.D. degrees in psychology counseling failed to include appropriate standard instruction in psychopathology, physiological psychology, and research methodology, among others, and the Ph.D. program for psychology counseling also was of overall low quality; (7) the faculty on the dissertation committee did not possess the required qualifications for any of respondent's doctoral programs, and an insufficient number of duly qualified faculty were employed to support the degree programs in law, business, education and public administration; and the faculty for the environmental science and psychology counseling disciplines were unqualified; (8) the award of credits for experiential learning violated the requirements of section 71890 of title 5; (9) University awarded Ph.D. degrees in violation of the requirements of sections 71875, 71880, and 71885 of title 5; (10) University violated section 71270 of title 5 by failing to provide a library or to assure that students have access to appropriate library collections and resources and to document compliance with such requirements; (11) University violated sections 94312, subdivision (f) and 71805 of title 5, pertaining respectively to the calculation of refunds upon withdrawal or cancellation (Ed. Code, § 94330, subd. (k)(8)), and to the format of its enrollment agreement; (12) faculty and student files were not maintained with the detail and consistency required by sections 94312 and 71920 of title 5.
After hearing and posttrial briefs by the parties, the administrative law judge (ALJ) issued a proposed decision dated September 20, 1995, determining that numerous regulatory violations found by the site committee were supported by a preponderance of the evidence. The ALJ found that the personnel manual was still incomplete in some respects, but that University had properly documented its affiliation with a Japanese educational institution; although the ALJ found that the state of the record did not support the *38 findings of inadequate course outlines for the business, education and public administration programs, the ALJ agreed with the allegations of deficiencies in curricula with respect to the environmental science, engineering, and psychology counseling programs; the ALJ found the faculty doctoral committees did not meet the regulatory requirements and that in many programs the faculty was inadequate in number and/or insufficiently qualified for the programs; the ALJ found violations with respect to the award of experiential learning credits and transfer credits; the ALJ found violations of scholastic regulations in the awarding of degrees, violations with respect to the format of enrollment agreements and in recordkeeping. Although the ALJ found that student refunds were not calculated according to the formula required by the regulations, University's schedule of repayments exceeded the sums claimed to be due by Council. The ALJ found that the record did not support violations with respect to the mission statement and affording of library facilities.
In a portion of the proposed decision captioned "Special Findings," the ALJ found that University "is not a diploma mill. [¶] Many of [University's] violations are minor, or of little consequence in over-all enforcement. The statute and rules are often needlessly highly technical and subject to varying determinations. As examples in defense of University the use of another's existing mission statement presents no violation of law, in and of itself; the University's `liberal' grading policy is no worse than the lawful `pass-fail' grading system; and the `acceptable' length of a dissertation is merely a conundrum. In addition, to compound difficulties, we have site committee members publicly quarreling over the Council's action.... [¶] Based upon its compliance record to date, the University's application can justifiably be denied. But in evaluating the various equities involved, in particular, its lengthy past service (i.e., [since] 1976) to the community, its long standing compliance record under the prior law, and its numerous successful graduates, make a strong statement for its continued viability under a more structured and strident administration and faculty. [¶] Although some of Kensington University's programs are clearly stronger than others, the University intends to concentrate on academic programs and degree levels which can be brought quickly into compliance.... This activity is underway and full compliance is likely to be achieved if granted a reasonable extension of time."
Thus, although the ALJ's decision concluded that University's violations "constitute grounds for refusing to issue an approval to operate as an educational institution pursuant to Section 94310 of the Education Code," the ALJ also found that no purpose would be furthered to deny University an *39 extension of time in order to conform to existing statutes and regulations. The ALJ proposed an order providing in pertinent part that "An extension of twenty-four months shall be granted to the respondent in order to comply with the existing statutes and regulations."
On October 27, 1995, Council issued a "Notice of Rejection of the Proposed Decision." University submitted a response to the Notice of Rejection. On December 21, 1995, Council issued a "Final Decision" denying University's application for approval to operate in California and award degrees. As to the alleged violations, the Final Decision was in most respects consistent with the findings of the ALJ, although Council determined two additional violations not found by the ALJ: Council found that University failed to provide confirmation of the authority under which it offered education services to students in Japan, and Council found a violation with respect to the provision of library services, inasmuch as there was no written documentation in student files concerning accessibility of library resources and whether such resources were utilized by students. The Final Decision provided that University's violations constitute grounds for refusing to issue an approval to operate as an educational institution under sections 94310 and 94330, subdivision (k), and that there "is no authority for extensions of time for purposes of compliances under the Postsecondary Act when the findings support a denial. (Ed. Code, § 94330, subd. (k)(1).)"
On February 21, 1996, the superior court continued its stay issued on August 8, 1994, until April 26, 1996. On April 4, 1996, University filed a supplemental petition for writ of mandate and memorandum of points and authorities in support thereof. On April 18, 1996, Council filed an answer to the supplemental petition and lodged the administrative record with the court. After several continuances of the hearing to permit both parties to file supplemental pleadings, the matter was heard and submitted on May 3, 1996. On May 3, 1996, the superior court issued a minute order denying the supplemental petition for writ of mandate and directing Council to prepare, serve and file a proposed statement of decision and proposed judgment. The proposed statement of decision contained 12 conclusions of law, including the conclusions that the findings in the Council's decision were supported by substantial evidence in light of the whole record; that the emergency regulations found at title 5 were valid and enforceable against University beginning August 17, 1992, until the permanent regulations were adopted on April 19, 1994; that University had a fair trial and there was no denial of due process of law by Council; and that University's violations of the Act constitute grounds to deny its application for approval to operate as a degree-granting institution under sections 94310 and 94330, subdivision (k), *40 and that there is no authority for extensions of time for compliance when the findings support a denial.
After University filed a notice of objection to Council's proposed statement of decision, the superior court issued a minute order notifying the parties that the statement of decision and judgment were signed and filed on June 3, 1996. On June 6, 1996, University sought a hearing on its objections to the statement of decision; the court issued a minute order denying a hearing, but stating that it had considered University's objections, and reasserted the previously signed statement of decision, deeming it signed and filed on June 6, 1996. University filed timely notice of appeal from the judgment.
I
TRIAL COURT STANDARD OF REVIEW
(1a) We find without merit appellant's contention that the trial court erred in applying a substantial evidence standard of review of the evidence in the administrative record instead of an independent judgment standard of review.
(2) "`The trial court is authorized to exercise its independent judgment on the evidence where the administrative agency is of legislative origin and its decision affects a fundamental vested right. [Citation.]' [Citation.] [¶] On the other hand, the trial court may not exercise its independent judgment, but must instead review the entire record for substantial evidence, if the agency is of constitutional origin and has been granted limited judicial power by the constitution [citation] or if the Legislature `... accord[s] finality to the findings of a statewide agency,' i.e., if the Legislature expressly provides that the trial court will review decisions of the agency under the substantial evidence test. [Citation.]" (Dominey v. Department of Personnel Administration (1988) 205 Cal. App. 3d 729, 741 [252 Cal. Rptr. 620].)
(1b) In the instant case the Legislature has provided by statute that a party aggrieved by Council's final decision and order "may seek judicial review by filing a petition for writ of mandate pursuant to Section 1085 of the Code of Civil Procedure within 30 days of the issuance of the final decision and order." (§ 94323, subd. (k)(1).) Further, the Legislature has provided in pertinent part that "The court shall deny the petition for a writ of mandate if the record submitted by the party is incomplete. The court shall not consider any matter not contained in the record. The factual bases supporting the final decision set forth in the council's statement of decision *41 shall be conclusive if supported by substantial evidence on the record considered as a whole." (Ed. Code, § 94323, subd. (k)(2).) The foregoing statute was enacted in 1994, and effective on January 1, 1995. Accordingly, we conclude that the statute governed the instant supplemental petition for writ of mandate, filed in April 1996, and decided by the trial court in June 1996. (See Anton v. San Antonio Community Hospital (1982) 132 Cal. App. 3d 638, 650 [183 Cal. Rptr. 423] [procedural statute operates in future if the trial postdates the enactment, regardless of the time of occurrence of the events giving rise to the cause of action].)
Accordingly, we conclude that appellant's reliance on Cleveland Chiropractic College v. State Bd. of Chiropractic Examiners (1970) 11 Cal. App. 3d 25 [89 Cal. Rptr. 572], and other cases cited in its opening brief, is misplaced, as the cases are inapposite. Moreover, even had there not been the statute governing the trial court's standard of review herein, we would conclude that Cleveland Chiropractic, although factually similar in some respects to the posture of appellant herein, would not control because it was decided prior to Bixby v. Pierno (1971) 4 Cal. 3d 130 [93 Cal. Rptr. 234, 481 P.2d 242], and thus Cleveland Chiropractic did not apply the analytical framework set out in Bixby for determining the proper standard of review.[4] For the foregoing reasons, we conclude that appellant fails to establish that *42 the trial court herein erred in applying the substantial evidence standard of review.
II
NO PROCEDURAL DUE PROCESS VIOLATIONS
(3) We conclude that appellant's contentions with respect to alleged procedural due process violations by Council are without merit, and, in any event, are unsupported by any pertinent citation of authority. (Eureka Teachers Assn. v. Board of Education (1988) 199 Cal. App. 3d 353, 369 [244 Cal. Rptr. 240].) Appellant contends that "The Council abused its discretion by not notifying petitioner that it would be permitted one and only one response to the evaluation report, and that the future of the institution stood or fell on that one document. Such an unannounced secret policy is violative of due process requirements of notice, arbitrary and is a prejudicial abuse of discretion." However, appellant fails to establish that the prehearing procedures employed by Council are, or were, secret; that it had no opportunity to respond further after it submitted its 561-page report in May 1994 in response to the visiting committee report; and that "the future of the institution stood or fell on that one document." It is clear from our record that an administrative hearing was held over the course of several days in May 1995, and that appellant was able to call witnesses and admit other evidence in addition to the materials submitted in May 1994. Thus, to the extent appellant implies that the final decision was made by Council in July 1994, and that appellant had no opportunity thereafter to address issues, we conclude that our record belies the claim. Further, as pointed out by respondents, this issue was not explicitly raised below and should be deemed waived.
Appellant contends that "The Council erroneously interpreted the statutes and regulations as not permitting the institution to make any corrections to bring it into compliance once it has made its response to the staff authored visiting committee evaluation report." This argument, also unsupported by any citation to authority, or even to a citation of the statutes and regulations allegedly misinterpreted by Council, simply seems to be a reiteration of the previous contention. This argument is without merit as it is unsupported by any authority and so vague that we cannot ascertain the statutes and regulations allegedly misinterpreted by Council.
*43 Similarly without citing any pertinent authority, appellant contends that it "was deprived of due process rights to adequate notice by being required to bring its operations into compliance with emergency regulations proposed just 90 days prior to the visiting committee site review and during the time that the emergency regulations were undergoing the public comment and amendment process." This argument is premised on several factual assumptions which are not supported by the record. The Act became effective on January 1, 1991; the Act sets out, in sections 94310 and 94311, among others, certain requirements and procedures regarding the application for approval process; the first set of emergency regulations promulgated under the Act were effective as early as August 1992, and appellant's site visit was not until February and March 1994. Accordingly, we cannot conclude on this record that appellant had only 90 days to bring itself into compliance.
III
EMERGENCY REGULATIONS
Appellant articulates the following two contentions pertaining to the emergency regulations: (1) Council abused its discretion in the use of the emergency regulation process by stretching an original one-hundred-eighty-day declaration of emergency from March 12, 1992, through April 19, 1994, when the permanent regulations were approved; and (2) the trial court erred in ruling that the emergency regulations were in effect from August 17, 1992, until the time in April 1994, when permanent regulations were approved, in that there were two periods of time from December 16, 1992, to April 13, 1993, and from August 11, 1993, to November 17, 1993 in which there were no emergency regulations in effect.
Appellant cites no legal authority to support the claim that Council could not submit or resubmit three sets of emergency regulations. Accordingly, appellant has not met its burden of establishing any procedural impropriety in the process in which the emergency regulations were promulgated.
(4) As to the alleged gaps in time when no regulations were in effect, even if we assume that the trial court's ruling was incorrect, we fail to see any relevance of this issue to our review of the findings and decision of Council. Appellant fails to cite to any applicable authority to establish the existence of the alleged gaps or the legal significance, if any, of such alleged gaps. Further, appellant fails to establish that it relied upon the alleged absence of regulations during the two time periods, or that it was prejudiced or misled in any way in conducting its business or in submitting its application for approval in July 1993. In fact, appellant fails to identify any *44 action it took, or any action Council took in relation to its application, during the two time periods at issue. University having failed to provide support for its contentions with pertinent legal authority, we find them to be without merit.[5]
IV
VISITING COMMITTEE REPORT
As we interpret appellant's contention with respect to the visiting committee report, appellant maintains that both Council and the trial court misinterpreted section 94310, subdivision (d)(1), as permitting Council, rather than the visiting committee, to draft the visiting committee report using the visiting committee's data. Appellant also claims that title 5, section 71465 of the regulations is inconsistent with the provisions of the statute because the regulation dispenses with the requirement that the visiting committee make quality improvement recommendations unless the council determines to grant an approval to operate.
Subdivision (d)(1) of section 94310 provides in pertinent part: "The council shall conduct a qualitative review and assessment of the institution and all programs offered, including the items listed in subdivision (b), through a comprehensive onsite review process, performed by a qualified visiting committee impaneled by the council for that purpose.... The visiting committee shall be impaneled by the council within 90 days of the date of the receipt of a completed application and shall be composed of educators, and other individuals with expertise in the areas listed in subdivision (b), from degree-granting institutions legally operating within the *45 state. Within 90 days of the receipt of the visiting committee's evaluation report and recommendations, or any reasonable extension of time not to exceed 90 days, the council shall take one of the following actions: [¶] ... [¶] (C) The council may deny the application.... ."
Section 71460 of title 5 of the regulations provides in pertinent part that "The visiting committee shall cooperate with the Council staff liaison in the preparation of a written evaluation report as described in Section 71465." (Tit. 5, § 71460, subd. (c).) Section 71465 of title 5 provides in pertinent part: "(a) The visiting committee report shall contain all of the following: [¶] (1) The committee's findings regarding the institution's compliance with the Act and this chapter and facts supporting those findings. [¶] (2) The committee's assessment of the quality of each educational program offered by the institution and facts supporting the assessment. [¶] (3) The committee's assessment of the quality of the institution as a whole and facts supporting the assessment. [¶] (4) The committee's recommendations for quality improvement based on its findings and assessment in the event the Council determines to grant an approval to operate. [¶] ... [¶] (c) Except as provided in subdivision (d), the Council shall accept the visiting committee's report as its basis for taking appropriate action. [¶] (d) The council shall not be bound by any of the following: [¶] (1) Any facts adduced by the visiting committee that are based on inaccurate or unreliable evidence or that are inconsistent with other facts found by the Council. [¶] (2) The findings or assessment made by the visiting committee if the findings or assessments are not supported by the facts or the facts support different findings or assessments that may be reasonably made by the Council. [¶] (3) The visiting committee's recommendations. Any actions taken which do not follow these recommendations must have some reasonable basis in fact or law."
(5) Contrary to appellant's arguments, we find no language in section 94310, subdivision (d)(1), which requires the evaluation report of the onsite review process to be drafted by the visiting committee itself a group of eight individuals with different areas of academic expertise, which areas together match the programs offered by University as opposed to a Council staff liaison person. In any event, we note that the testimony at the trial established that all of the individuals on the visiting committee signed off on a draft visiting committee report, which was prepared by the Council staff liaison using the documents and notes provided by the individual visiting committee members. In any event, appellant does not claim that the findings of all members of the visiting committee were not reflected in the report, or that a visiting committee member would have made a recommendation different than those in the report.
*46 With respect to the issue of whether Council interpreted the regulations to dispense with the requirement to provide recommendations in the report, we note that the visiting committee report contained quality improvement recommendations in the executive summary portion of the report, which contained numerous such recommendations, as well as additional areas of concern. Therefore, there is no evidence in our record that Council interpreted title 5, section 71465, subdivision (a)(4) of the regulations in the manner urged by appellant, which would be an absurd interpretation inasmuch as it would require an impossibility, i.e., that the report was required to contain such recommendations only in the event that Council, at some later time, decided to grant approval, which decision could not be known at the time of preparation of the visiting committee report. Clearly, the regulation reasonably cannot be construed in the manner urged by appellant. Rather, the regulation can only reasonably be interpreted to mean that the report was to contain recommendations for future improvements and changes which could be implemented in the event of approval, but which recommendations were to be set out in the report regardless of whether the application was subsequently approved or denied. We thus conclude that appellant fails to establish that title 5, section 71465 of the regulations is inconsistent with the provisions of section 94310, subdivision (d)(1).
V
SUFFICIENCY OF EVIDENCE
(6) Appellant's remaining contentions are best characterized as challenges to the sufficiency of the evidence to support Council's final decision to deny it approval to operate.[6]
Appellant contends that "The Council committed error by receiving and considering additional evidence at its closed session [after rejecting the proposed decision of the ALJ] without notice to [appellant] and without affording [it] an opportunity to be heard." Appellant maintains that the Council decision relies upon documents in student files for students J.H. and G.C.B., whose files were admitted into evidence even though no testimony was received about those student files and appellant thus had no notice and opportunity to explain or otherwise address such files. Appellant states that "The initials of student[s] J.H. and G.C.B. do not appear either in the Second Statement of Issues ... and the transcript of the seven day administrative hearing does not contain any mention of either students J.H. or G.C.B."
*47 Even though the instant record is voluminous, it is still no excuse for appellant to either misrepresent the record, or fail to notice that Dr. Philip Baslilin, one of the site reviewers, did testify as to students J.H. and G.C.B. Testimony about G.C.B. was quite extensive, and her initials appear on pages 97, 99, 100, 102, 116 of the transcript of the May 17, 1995, hearing. Appellant even cross-examined Dr. Baslilin about G.C.B. The testimony on student J.H. appears on pages 102 to 104 of the transcript of May 17, 1995.
Without merit also is appellant's final contention that "The trial court committed error in ruling that petitioner sustained its burden of proof at the administrative hearing. The evidence was to the contrary."[7] The relevancy of the issue as to the burden of proof is not explained; in any event, our task is only to review the administrative record for sufficiency of the evidence to support the agency decision. "On appeal, we review the administrative decision itself (not the decision of the trial court) to determine if it is supported by substantial evidence." (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 306 [58 Cal. Rptr. 2d 721].)
In connection with Council's findings of lack of compliance with regulations pertaining to University's governance and administration, appellant raises the issue of student E.W., who resided in Japan and to whom University issued a degree in January 1994 containing its own logo even though E.W. was enrolled in "Kensington University Japan." Council's decision noted that University violated section 94330, subdivision (k) (ante, fn. 2), and title 5, section 71610, subdivision (d) of the regulations permitting Council to request University to provide information, documents, or other evidence which it deems necessary for the evaluation of the institution's application for approval to operate. Dr. Sundberg, the Council specialist assigned to review University's application, testified that even though Council requested documentation on the nature of University's affiliation with Japan, there was insufficient evidence that E.W.'s master thesis (in Japanese) was evaluated by competent University faculty. In its appellate brief, University argues, without citation to the record, that E.W. was treated in the same manner as other students, but our record is insufficient to *48 indicate that any University faculty were involved in providing education to, or evaluation of, this student's work in any way because there was no evidence that University had any faculty proficient in the Japanese language. Accordingly, substantial evidence supports Council's findings regarding student E.W. and its concern that University was awarding degrees under the authority of California without following minimum standards of operation.
Appellant also contends that because E.W. enrolled on September 1, 1993, a time when there allegedly were no regulations in effect, this student should have been excluded from consideration. However, appellant fails to indicate that this issue was raised at the time of the administrative hearing, or before the trial court. Moreover, appellant fails to establish with any appropriate authority that there were no regulations in effect on September 1, 1993. Even if we assume, without deciding, that there were no regulations in effect on such a date, appellant fails to establish that it was not bound by the regulations at the time it granted E.W. a master's degree in January 1994. For all of the foregoing reasons, we conclude that appellant fails to show that Council's findings on the issues of its administration and governance were not supported by substantial evidence.
In the area of curriculum and instruction, appellant challenges Council's findings that it did not maintain a course outline for each course offered, and that the outlines were insufficient in failing to provide information on course objectives, learning outcomes, and method of student evaluation. Appellant notes that in its 561-page response to the visiting committee's report, it did show that it had changed the outline format, and that course outlines were "on file at the time of the site visit, which is what was required by law." However, testimony in our record reveals that at the time of the site visit, there were no course outlines for the mechanical engineering courses and the course outlines for environmental science were inadequate. Accordingly, appellant fails to establish that Council's findings with respect to course outlines were not supported by substantial evidence.
With respect to the findings of violations of the regulations pertaining to curriculum and instruction, appellant raises several factual points with respect to particular student files. However, even if appellant's particular evidentiary point is well taken, appellant still fails to establish that the findings are not supported by substantial evidence. For example, Council found that the level of quality and rigor of the business program was impossible to evaluate because there were no instructor comments on student work, no record of student-faculty contact as part of the doctoral program, and no specific documentation as to how transfer and experiential learning *49 credits were earned or what particular courses or activities were involved. Appellant charges that Council ignored the fact that the work of business doctoral student K.L. was indeed evaluated by faculty; however, K.L. was only one of three student files cited by Council in its findings as to the business program, and appellant fails to establish that the findings with respect to the two other students were insufficient to support Council's findings as to the business program.
With respect to the education and public administration programs, Council's findings cited to two students, R.B. and R.S. In both instances, Council found that the quality of the student work did not support the award of the degree. Appellant's arguments on appeal address other issues discussed at the hearing, but do not challenge the findings with respect to the quality of each students' work. Appellant's arguments, although lengthy and detailed, and possibly correct, fail to establish the findings are not supported by substantial evidence.
With respect to the degree program in environmental science, appellant charges the Council with misrepresenting the testimony as stating that such a program necessitates laboratory instruction, which is not required by University. Appellant also notes that after the site visit, it decided to phase out the environmental science program "because of Council's rigid stance." Appellant fails to note that its own witness, Dr. Clive Grafton, testified that environmental science could be taught in a correspondence-type setting "providing that a student had access to some other laboratory experience, either prior to or immediately following" such education, but that University did not require such laboratory experience. Accordingly, substantial evidence supported Council's reasonable inference that such laboratory experience was necessary. We also conclude that appellant fails to demonstrate that there is no substantial evidence to support Council's findings with respect to two other deficiencies in the engineering program: several advanced level mechanical engineering courses were actually basic level courses and should only be required at the undergraduate level, and that the courses do not include prerequisites to indicate the logical development of knowledge or expertise.
With respect to the psychology counseling program, appellant challenges the Council's findings by simply making different inferences from the evidence than the reasonable inferences made by Council and by affording less credibility to the site reviewer's conclusions than afforded by Council, because the site-reviewer came from a traditional educational program and not a correspondence school program. Appellant fails to show that Council's *50 findings with respect to this program were not supported by substantial evidence.
We also find without merit appellant's challenges to the sufficiency of the evidence to support findings pertaining to the qualifications and number of faculty, and pertaining to admissions standards. In many instances, appellant merely makes factual assertions that are not borne out by the record. For example, appellant asserts that Council could not rely on the file of student R.S. to show that the qualifications of faculty on University's dissertation committee violated the regulations because R.S. was enrolled prior to the enactment of the regulations in August 1992. However, the evidence established that R.S. enrolled in the doctorate program in education in November 1992 and was awarded a Ph.D. in April 1993. Appellant fails to establish that the regulations did not apply during the time R.S. was a doctoral student. For the most part, appellant points out changes, or proposed changes and corrections, that were made in its programs after the site visit. Those changes in no way challenge Council's findings pertaining to violations which existed at the time of University's application for approval and as found by the visiting committee in February and March 1994. Moreover, there was no evidence to establish that all of the changes to the various curricula and to the administration of University, as set out in University's response to the visiting committee report, were actually implemented, and when such changes were allegedly made. Although appellant devised a new form and procedure for awarding transfer credit and prior experiential learning credit, there is no evidence in our record documenting if and when such new forms were actually used and whether they resulted in compliance with the regulations governing award of transfer and experiential learning credits.
With respect to Council's citation of several student files illustrating the violations with respect to the award of transfer and experiential learning credits, appellant focuses on issues not pertinent to the reason the student file was cited by Council, or appellant simply makes inferences from the evidence different than the reasonable inferences made by Council. For example, Council noted that student A.W. was admitted into the bachelor's program in environmental science with some transfer units, but University did not document whether the units qualified for the general education requirements or any specific degree program. Appellant challenges the foregoing by noting that the number of transfer credits were "clearly shown on his Meadows College transcript which was in his folder," which does not respond to Council's point that it was impossible to determine how and in what manner appellant allocated those transfer credits to equivalent University courses or requirements.
*51 Appellant also contends that several students mentioned by Council to support its findings with respect to admission standards violations were admitted to University during times when there were allegedly no regulations in effect. As set out above, appellant has failed to establish with any appropriate legal authority that there were gaps in time when no regulations were in effect. Even if there had been such gaps, section 94310, subdivision (a)(7), provides in pertinent part that "If the institution offers credit for prior experiential learning it may do so only after an evaluation by qualified faculty and only in disciplines within the institution's curricular offerings that are appropriate to the degree to be pursued." Dr. Lambert, University's vice-president of academic affairs, admitted at the hearing that he awarded experiential learning credits to a student admitted into its environmental science program even though he (Dr. Lambert) had no background in that academic area, possessing a Ph.D. in psychology counseling. Thus, even in the absence of regulations, substantial evidence supports the finding of violations as to admission standards set out in section 94310, subdivision (a)(7). Dr. Lambert even admitted at the hearing that "we were not aware that the current law existed, but we did exceed them [regulatory limits on number of experiential learning credits], and it was a bad admission in several cases."
Council based its finding of violations of scholastic regulations on several student files which revealed that Ph.D. degrees were awarded to students with less than three years of full-time graduate study or the equivalent in part-time study, and that the doctoral candidates did not undergo two formal evaluations by a doctoral committee as required by the regulations. Appellant contends that the students cited had the appropriate number of credits, but appellant fails to respond to the basis of the violation, or to establish that all of those credits were appropriate for graduate and doctoral level degrees. Appellant also claims that one of the two required formal reviews of doctoral candidates was performed at the time the students were admitted to the doctoral programs, but appellant fails to establish that an appropriate doctoral committee, as required by title 5, section 71885, performed that admissions review process.
Substantial evidence supports the Council finding that University violated title 5, section 71740 in failing to provide written documentation that students had access to library facilities (tit. 5, § 71740, subd. (a)) and that such resources were actually utilized by students as part of the curricula. (Id., § 71740, subd. (d)(4).) Appellant's primary challenge to this finding is that after the site review, it developed a form for each student file validating the availability and use of library facilities. Thus, appellant impliedly admits *52 having violated the regulation prior to the site review; moreover, after the time of the site review, there was no evidence in our record that appellant actually used the forms and was in compliance with the regulation pertaining to library resources.
Substantial evidence also supports the findings of violations with respect to recordkeeping, enrollment agreements and refunds, although Council did find that University refunded more money to students than required by regulation, and our record establishes that after the time of the site review, appellant did change its procedures in these areas to bring it into compliance. However, most of appellant's arguments tacitly acknowledge that it was indeed in violation of the regulations in some respects from the time they were effective in August 1992, until after the time of the site visit in March 1994.
We conclude that appellant fails to establish that the findings set out in Council's decision were not supported by substantial evidence. Accordingly, the trial court properly denied appellant's supplemental petition for writ of mandate.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
Johnson, J., and Woods, J., concurred.
A petition for a rehearing was denied April 15, 1997.
NOTES
[1] Unless otherwise specified, all statutory references are to the Education Code.
Section 94310 provides in pertinent part that "No private postsecondary educational institution may issue, confer, or award an academic or honorary degree unless the institution meets the requirements of subdivision (a) or (i), as follows: [¶] (a) The institution is approved by the council to operate in California and award degrees.... [¶] (b) The approval process shall include a qualitative review and assessment of all of the following: [¶] (1) Institutional purpose, mission, and objectives. [¶] (2) Governance and administration. [¶] (3) Curriculum. [¶] (4) Instruction. [¶] (5) Faculty, including their qualifications. [¶] (6) Physical facilities. [¶] (7) Administrative personnel. [¶] (8) Procedures for keeping educational records. [¶] (9) Tuition, fee, and refund schedules. [¶] (10) Admissions standards. [¶] (11) Financial aid policies and practices. [¶] (12) Scholastic regulations and graduation requirements. [¶] (13) Ethical principles and practices. [¶] (14) Library and other learning resources. [¶] (15) Student activities and services. [¶] (16) Degrees offered."
Further, pursuant to subdivision (a) of section 94310, "The council shall not issue an approval under subparagraph (A) of paragraph (1) of subdivision (d) or a conditional approval under subparagraph (B) of paragraph (1) of subdivision (d) until it has conducted a qualitative review and assessment of, and has approved, each degree program offered by the institution and all of the operations of the institution, and has determined all of the following: [¶] (1) The institution has the facilities, financial resources, administrative capabilities, faculty, and other necessary educational expertise and resources to ensure its capability of fulfilling the program or programs for enrolled students. [¶] (2) The faculty are fully qualified to undertake the level of instruction that they are assigned and shall possess appropriate degrees or credentials and have demonstrated professional achievement in the major field or fields offered, in sufficient numbers to provide the educational services. [¶] (3) The education services and curriculum clearly relate to the objectives of the proposed program or programs and offer students the opportunity for a quality education. [¶] (4) The facilities are appropriate for the defined educational objectives and are sufficient to ensure quality educational services to the students enrolled in the program or programs. [¶] (5) The course of study for which the degree is granted provides the curriculum necessary to achieve its professed or claimed academic objective for higher education, and the institution requires a level of academic achievement appropriate to that degree. [¶] (6) The institution provides adequate student advisement services, academic planning and curriculum development activities, research supervision for students enrolled in Ph.D. programs, and clinical supervision for students enrolled in various health profession programs. [¶] (7) If the institution offers credit for prior experiential learning it may do so only after an evaluation by qualified faculty and only in disciplines within the institution's curricular offerings that are appropriate to the degree to be pursued. The council shall develop specific standards regarding the criteria for awarding credit for prior experiential learning at the graduate level, including the maximum number of hours for which credit may be awarded."
[2] Subdivision (d)(1) of section 94310 provides in pertinent part that "Within 90 days of the receipt of the visiting committee's evaluation report and recommendations, or any reasonable extension of time not to exceed 90 days, the council shall take one of the following actions: [¶] (A) If the institution is in compliance with this chapter and has not operated within three years before the filing of the application in violation of this chapter then in effect, the council may grant an approval to operate for a period not to exceed five years. [¶] (B) If the institution is in compliance with this chapter, but has operated within three years before the filing of the application in violation of this chapter then in effect, or if the council, in its discretion, determines that an unconditional grant of approval to operate is not in the public interest, the council may grant a conditional approval to operate subject to whatever restrictions the council deems appropriate.... [¶] (C) The council deny the application. If the application is denied, the council may permit the institution to continue offering the course of instruction to students already enrolled or may order the institution to cease instruction and provide a refund of tuition and all other charges to students."
Section 94330, subdivision (k) provides in pertinent part: "The council may refuse to issue or renew any private postsecondary or vocational educational institution's approval to operate, or may revoke any approval to operate for any one, or any combination, of the following causes: [¶] (1) A violation of this chapter, or any standard, rule or regulation established under this chapter. [¶] (2) Furnishing false, misleading, or incomplete information to the council, or the failure to furnish information requested by the council or required by this chapter. [¶] ... [¶] (5) The failure of the institution to maintain the minimum educational standards prescribed by this chapter, or to maintain standards that are the same as, or substantially equivalent to, those represented in the school's applications and advertising. [¶] ... [¶] (8) The failure to provide timely and correct refunds to students. [¶] ... [¶] (12) The failure to correct any deficiency or act of noncompliance under this chapter, or the standards, rules, regulations and orders established and adopted under this chapter within reasonable time limits set by the council...."
[3] University also sought relief from Council's decision by filing a petition for writ of mandate in the superior court. On August 8, 1994, the superior court granted a stay of the implementation of Council's denial of approval until the effective date of any decision after hearing under the Administrative Procedures Act. The August 8, 1994, order stated that "There has been no denial of due process of law to date by virtue of [Council] having properly and fully followed the applicable statutes and regulations."
[4] "The Bixby-Strumsky rule of judicial review was explained by Anton v. San Antonio Community Hosp. (1977) 19 Cal. 3d 802, 822 ... in the following fashion: `That rule, as stated by us in Strumsky, provides that if the subject order or decision "substantially affects a fundamental vested right, the court, in determining under section 1094.5 of the Code of Civil Procedure whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court's inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in light of the whole record."' ... [¶] ... [¶] The concept of a `fundamental' right has not been precisely defined. The Bixby court used language that `[i]n determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation.' [Citation.] ... The Bixby court defined the `vested' fundamental right in terms of a contrast between a right possessed and one that is merely sought: `[A]nd, if it is such a fundamental right, whether it is possessed by, and vested in, the individual or merely sought by him. In the latter case, since the administrative agency must engage in the delicate task of determining whether the individual qualifies for the sought right, the courts have deferred to the administrative expertise of the agency. If, however, the right has been acquired by the individual, and if the right is fundamental, the courts have held the loss of it is sufficiently vital to the individual to compel a full and independent review.' [Citation.] [¶] In Anton, the court applied the Bixby-Strumsky definitions and concluded that a physician's right to renewal of hospital and staff privileges which had been renewed annually for a number of years before, and which was now denied by a decision of the hospital's board of directors, was `both fundamental and vested within the meaning of Bixby and Strumsky.' [Citation.] The Anton court thus continues the traditional distinction made between an application for a license (a `privilege') and the revocation of a license (a `vested right')." (Coldwell Banker & Co. v. Department of Insurance (1980) 102 Cal. App. 3d 381, 406-407 [162 Cal. Rptr. 487].)
[5] We do not imply that respondents' contrary argument with respect to the effective dates of the three sets of emergency regulations is correct. On the instant record, we cannot determine whether or not there may have been two "gaps" when there may not have been emergency regulations in effect. The "History" annotation to many of the regulations in title 5 provides as follows: "1. New chapter 2 (articles 1-18, sections 71000 - 71930, nonconsecutive) filed 8-17-92 as an emergency; operative 8-17-92 (Register 92, No. 34). A Certificate of Compliance must be transmitted to OAL 12-15-92 or emergency language will be repealed by operation of law on the following day. [¶] 2. Certificate of Compliance as to 8-17-92 order transmitted to OAL on 2-3-93; disapproved by OAL on 3-24-93 (Register 93, No. 14). [¶] 3. New section refiled 4-12-93 as an emergency; operative 4-12-93 (Register 93, No. 16). A Certificate of Compliance must be transmitted to OAL 8-10-93 or emergency language will be repealed by operation of law on the following day. [¶] 4. Certificate of Compliance as to 4-12-93 order transmitted to OAL on 10-6-93; disapproval by OAL on 11-22-93 (Register 93, No. 49). [¶] 5. New chapter 2 and section refiled 11-17-93 as an emergency; operative 11-17-93 (Register 93, No. 47). A Certificate of Compliance must be transmitted to OAL by 5-16-94 or emergency language will be repealed by operation of law on the following day. [¶] 6. Certificate of Compliance as to 11-17-93 order transmitted to OAL with amendments 3-11-94 and filed 4-19-94 (Register 94, No. 16)."
[6] Appellant does not challenge the implied premise of Council's findings that the pertinent time period under scrutiny for compliance was August 1992 to the time of the site review. Further, appellant does not claim that the findings are insufficient to support the decision denying its application.
[7] Throughout its brief, University refers to itself as "petitioner" even though at the administrative hearing before the ALJ, the Executive Director of Council, Kenneth A. Miller, was the complainant. The trial court expressly found in its statement of decision that University "had the burden of proof at the administrative hearing to show that it was entitled to be approved to operate pursuant to Education Code section 94310 by a preponderance of the evidence and [it] failed to meet its burden of proof," and that the findings in the Council's decision "are supported by substantial evidence in light of the whole record." Accordingly, we deem appellant's brief to contain a clerical error and that what appellant means to assert is that the evidence is insufficient to support the Council decision. The arguments to support this point are factually oriented, and we proceed to address these arguments below. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264878/ | 54 Cal. App. 4th 190 (1997)
In re MICHAEL W. et al., Persons Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
MELISSA W., Defendant and Appellant.
Docket No. B103798.
Court of Appeals of California, Second District, Division One.
April 14, 1997.
*192 COUNSEL
Stephanie M. Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
De Witt W. Clinton, County Counsel, Auxiliary Legal Services, Jill Regal and Gary P. Gross for Plaintiff and Respondent.
OPINION
VOGEL (Miriam A.), J.
In this dependency case, the question is whether the noncustodial parent is entitled to an evidentiary hearing before the juvenile court decides custody and visitation issues ancillary to the termination of jurisdiction and the transfer of the case to the family law court. We hold that, when requested, an evidentiary hearing must be held.
FACTS
Melissa W. and Martin W. were husband and wife when their son Michael was born in April 1988, but they later separated and became embroiled in a custody dispute. In August 1993, the Department of Children and Family Services took five-year-old Michael into protective custody, and an amended *193 petition charging Melissa with physical abuse was ultimately sustained. Michael was placed with Martin, with monitored visits for Melissa which were changed to unmonitored, alternate weekend visits beginning in September 1994.[1] In March 1995, the juvenile court was prepared to terminate jurisdiction and award joint legal custody to Martin and Melissa, with sole physical custody to Martin and reasonable visits for Melissa, but backtracked when the parents were unable to agree on a summer schedule, at which point a supplemental psychological evaluation was ordered. While the court was waiting for the evaluation, DCFS reported that Michael had told his case worker that Melissa had given him a black eye during a recent weekend visit. As a result, the court temporarily abandoned its plan to terminate jurisdiction, restricted Melissa's contact to monitored visits, and directed DCFS to conduct a further investigation.
In August 1995, DCFS reported that Melissa was suffering from depression (she discussed her problems with the case worker and her medical records were reviewed by DCFS) and had been hospitalized earlier that summer. A variety of medications had been prescribed, and Melissa remained under treatment as an out-patient. The court retained jurisdiction and continued Melissa's monitored visits.
In April 1996, by which time Melissa's condition apparently had improved, the court held a hearing to determine whether to terminate jurisdiction and refer the case to the family law court for further proceedings. Melissa's request for an evidentiary hearing to establish her progress during recent counseling was denied, Martin was awarded physical custody of Michael, with only monitored visits for Melissa, and jurisdiction was terminated. A few days later, Melissa again requested a hearing on the issue of visitation (she wanted unmonitored visits). The court again refused to hold a hearing, finding there was no "change of circumstances," and that it was in Michael's best interests to continue with monitored visits until such time as Melissa's therapist could give an "unconditional recommendation" for unmonitored visits. The court said it was "strongly influenced and impressed by the lack of emotional control that the mother exhibited here in open court" which (without benefit of a hearing or expert testimony) the court said "belied the statement of [Melissa's attorney] that [Melissa] is ready for unmonitored visits."
On May 8, the court made its final order, enlarging its scope and granting not only physical custody to Martin, but also sole legal custody of Michael, with only monitored visits for Melissa. Melissa appeals.
*194 DISCUSSION
(1a) Melissa contends she was entitled to a hearing before the dependency court made its custody and visitation orders, terminated jurisdiction and transferred the matter to family law court. We agree.[2]
In In re Elaine E. (1990) 221 Cal. App. 3d 809 [270 Cal. Rptr. 489], the Sixth District held that subdivision (c) of section 364 of the Welfare and Institutions Code compels the juvenile court to terminate jurisdiction unless circumstances justifying an initial assumption of jurisdiction continue to exist.[3] The way the Sixth District reads the statute, when a section 364 hearing is held to determine whether jurisdiction should be terminated, the noncustodial parent is not entitled to an opportunity to present evidence to show why the visitation orders should be changed before the case is transferred to the family law court. Instead, the noncustodial parent's only remedy is a petition under section 388, which requires a showing of "changed circumstances."[4] (In re Elaine E., supra, 221 Cal. App.3d. at pp. 814-815.)
In In re Roger S. (1992) 4 Cal. App. 4th 25 [5 Cal. Rptr. 2d 208], Division Three of the Fourth District refused to follow Elaine E. We believe Roger S. is the better reasoned case and makes far more sense than Elaine E., and thus adopt its reasoning and follow it here. This is what Roger S. holds: "We think [that] when making an order to be transferred to the family court, the juvenile court has the power to hear evidence relevant to that order under *195 section 362.4, which the Elaine E. court did not discuss.[[5]] When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to a[] ... family court file and remain in effect until modified or terminated by the superior court. As section 362.4 gives the juvenile court power to fashion termination orders, it makes no sense to interpret section 364 to preclude the court from considering evidence relevant to that task. To the extent Elaine E. implies that a trial court cannot receive evidence concerning visitation under section 362.4, we decline to follow it.
"Section 388, on the other hand, is a general provision to be used by any interested party when circumstances merit an examination of the orders affecting a dependent child other than the periodic reviews prescribed by statute; if the petition is sufficiently compelling, the court is empowered to set an immediate hearing on the matter. In this case, however, the trial court had the parties before it for the specific purpose of assessing progress and determining whether judicial intervention could be withdrawn. Having decided to terminate jurisdiction, the court chose to exercise its power to make a termination order. It erred, however, in refusing to consider the father's evidence on visitation, closing its eyes to the recommendations of the case worker, and finding it was compelled to adopt the existing seven-month-old visitation order without change.
(2) "Although both the family court and the juvenile court focus on the best interests of the child, the juvenile court has a special responsibility to the child as parens patriae and must look at the totality of the child's circumstances. `It is one thing for a family law court to determine the best interests of the child as between two parents under title 4 of the Family Law Act (Civ. Code, § 4600 et seq.). It is quite another for a juvenile court to determine the best interests of the child in a proceeding where there is the possibility both parents could lose custody or visitation rights.' (In re Benjamin D. (1991) 227 Cal. App. 3d 1464, 1470, fn. 4....) By empowering the juvenile court to issue custody and restraining orders, the Legislature has expressed its belief that `the juvenile court is the appropriate place for *196 these matters to be determined and that the juvenile court's orders must be honored in later superior court proceedings.' (Seiser, Custody and Restraining Orders in the Juvenile Court (Aug. 1990) Family Law NewsAlert (Cal.Ed.) 4, 8.) The trial court here, by refusing to accept evidence relevant to the visitation order, was in danger of issuing an uninformed order which could fail to serve the best interests of the child." (In re Roger S., supra, 4 Cal. App.4th at pp. 30-31, fn. omitted.)
(1b) In our view, a dependency court ought to accept all the help it can get before it makes an order affecting the lives of the children and parents who appear before it, and we cannot condone a deliberate decision to impose artificial restrictions on the parties' ability to bring relevant evidence to the attention of the court. We therefore adopt the rule of Roger S. and refuse to follow Elaine E.
(3) There remains the issue of prejudice (Cal. Const., art. VI, § 13), a factor clearly present in this case. To begin with, we presume some prejudice from the simple fact that a family law court will naturally defer to a recent order of the dependency court concerning custody and visitation. During the period dependency jurisdiction continues, the juvenile court has preemptive jurisdiction to adjudicate custody and visitation, and no other court may enforce any order that conflicts or interferes with the juvenile court's orders. (In re Travis C. (1991) 233 Cal. App. 3d 492, 503 [284 Cal. Rptr. 469]; In re Benjamin D. (1991) 227 Cal. App. 3d 1464, 1469 [278 Cal. Rptr. 468].) Since the orders made by a juvenile court at a section 364 hearing are necessarily made while dependency jurisdiction continues, it follows logically that a family law court would defer to those orders and hesitate to second-guess the juvenile court judge, at least absent something more than the ordinary showing of changed circumstances. (Cf. In re Roger S., supra, 4 Cal. App.4th at p. 30 [the dependency court's custody order remains in effect until modified or terminated by subsequent order of the superior court]; In re Chantal S. (1996) 13 Cal. 4th 196, 203 [51 Cal. Rptr. 2d 866, 913 P.2d 1075] [same]; see also In re Jennifer R. (1993) 14 Cal. App. 4th 704, 711-713 [17 Cal. Rptr. 2d 759]; In re Robin N. (1992) 7 Cal. App. 4th 1140, 1145-1146 [9 Cal. Rptr. 2d 512].)
Moreover, on the particular record before us, we consider it probable that the result would have been different had the hearing been held and the doctor's testimony fairly considered. Melissa's motion was supported by a declaration from her doctor, to the effect that he had then-current relevant information regarding her progress, and that he "strongly recommend[ed]" that unmonitored visits be reinstated. For this reason, the juvenile court's comments about its familiarity with stale reports and its general attitude *197 suggest that its eagerness to get this case out of the dependency court and into the family law court might have had something to do with calendar management problems or budgetary issues and questions about whether Melissa would be entitled to appointed counsel if she had to make her motion in family law court. However real the court's fiscal problems may be, those considerations cannot affect decisions such as the one at issue here.
It follows that we find the juvenile court's refusal to hold an evidentiary hearing prejudicial, that we must reverse the order terminating jurisdiction (along with its ancillary custody and visitation orders), and that we must remand for the evidentiary hearing requested by Melissa.
DISPOSITION
The orders terminating jurisdiction, granting sole legal custody to Martin, and granting only monitored visits to Melissa are reversed, and the cause is remanded to the dependency court with directions to hold the evidentiary hearing requested by Melissa, and to thereafter decide anew the issues of jurisdiction, custody and visitation.
Spencer, P.J., and Masterson, J., concurred.
NOTES
[1] Michael has a half-sister, Megan L., who was originally detained with Michael. Megan was returned to Melissa in January 1994, and jurisdiction over Megan was terminated in August 1994.
[2] Although the juvenile court at one point said that Melissa's request for a hearing was untimely, DCFS does not, on this appeal, suggest there was a timeliness or any other procedural issue, and simply addresses the merits of Melissa's arguments. We do likewise.
[3] Unless otherwise stated, all section references are to the Welfare and Institutions Code. Subdivision (c) of section 364 provides as relevant that: "After hearing any evidence presented by the probation officer, the parent, the guardian, or the minor, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the probation department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that such conditions are likely to exist if supervision is withdrawn...."
[4] As relevant, section 388 provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court ... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court ... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court...." According to In re Elaine E., supra, 221 Cal. App.3d at page 815, this "section plainly provided a vehicle for [the noncustodial parent] to petition the court for increased or unsupervised visitation if he were dissatisfied with the existing juvenile court visitation orders."
[5] Section 362.4 provides, as relevant, that when "the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child ..., and proceedings for the dissolution of marriage ... of the minor's parents ... are pending in the superior court ..., the juvenile court ... may issue ... an order determining the custody of, or visitation with, the child. [¶] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the [superior court] proceeding ... at the time the juvenile court terminates its jurisdiction over the minor.... [¶] If no action is filed or pending relating to the custody of the minor in the superior court..., the juvenile court order may be used as the sole basis for opening a file in the superior court of the county in which the parent, who has been given custody, resides...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363138/ | 23 Wn. App. 171 (1979)
596 P.2d 1082
THE STATE OF WASHINGTON, Respondent,
v.
WALTER LEE STERLING, Appellant.
No. 5216-1.
The Court of Appeals of Washington, Division One.
April 23, 1979.
*172 Jack J. Ackerman, for appellant (appointed counsel for appeal).
Norm Maleng, Prosecuting Attorney, and Phillip Y. Killien, Deputy, for respondent.
CALLOW, C.J.
The defendant, Walter Lee Sterling, also known as Maurice Rice, was charged with two counts of delivering lysergic acid diethylamide (LSD) and one count of possessing amphetamine, all in violation of the Uniform Controlled Substances Act. A jury found the defendant guilty of all counts and the court set sentencing for August 16, 1972. The defendant failed to appear for sentencing and a bench warrant was issued on August 18, 1972, for his arrest.
In May of 1974, the defendant was arrested in California and imprisoned there on a 1969 parole violation. A teletype message was sent from California to the sheriff's office in Seattle on July 1, 1974. This message, referring to Walter Lee Sterling, read in part: "SUBJ NOW IN OUR CUSTODY TO COMPLETE STATE PRISON TERM. DO YOU WISH TO PLACE YOUR HOLD? SUBJ WANTS TO MAKE A DEMAND FOR TRIAL ON YOUR CHARGE." The return message to the California authorities merely noted that the matter had been turned over to a deputy prosecutor "FOR EXTRADITION CONSIDERATION. HE WILL REPLY BY MAIL." The record is silent as to whether any *173 action was taken by the deputy prosecutor or by the defendant relative to extradition and sentencing.
The defendant was placed on parole by the California authorities in April of 1975, and he was discharged in June of 1976. On August 25, 1976, the defendant was arrested in Washington under the 1972 bench warrant; he was booked into the King County jail. Appointed counsel moved to dismiss the charges on September 21, 1976. On October 13, 1976, the court denied the motion to dismiss, requested the preparation of a presentence report, and set a date for sentencing. On November 16, 1976, the defendant was sentenced to 5 years' imprisonment on each of the three counts, the sentences to run concurrently.
The defendant now appeals from the denial of his motion to dismiss.
The issues raised by this appeal are: (1) Is sentencing a part of the trial for purposes of the Sixth Amendment speedy trial rule? (2) Was there a violation of the defendant's rights?
In Klopfer v. North Carolina, 386 U.S. 213, 18 L.Ed.2d 1, 87 S.Ct. 988 (1967), it was held that the Sixth Amendment right to a speedy trial applied to the states under the due process clause of the Fourteenth Amendment. This right is also guaranteed by article 1, section 22 of the Washington State Constitution. Where the right to a speedy trial has been found to exist, it has been held as a necessary corollary that the affirmative burden is on the state, not on the defendant, to see that a trial is held with reasonable dispatch. Dickey v. Florida, 398 U.S. 30, 26 L.Ed.2d 26, 90 S.Ct. 1564 (1970); State v. Breaux, 20 Wn. App. 41, 44, 578 P.2d 888 (1978). This duty includes the requirement that the State make a timely demand for extradition if the accused is being held in another jurisdiction. See, e.g., Chauncey v. Second Judicial Dist. Ct., 474 F.2d 1238 (9th Cir.1973); cf. State v. Hattori, 19 Wn. App. 74, 77, 573 P.2d 829 (1978). The parameters of the State's constitutional obligation to extradite for trial are defined and determined by the same considerations involved in *174 ascertaining whether the defendant has been denied a speedy trial. However, it should be recognized that in those cases where the duty to extradite has been found or assumed to exist, the facts typically involved pending charges in the first jurisdiction against an accused defendant. See, e.g., Moore v. Arizona, 414 U.S. 25, 38 L.Ed.2d 183, 94 S.Ct. 188 (1973); Dickey v. Florida, supra; Smith v. Hooey, 393 U.S. 374, 21 L.Ed.2d 607, 89 S.Ct. 575 (1969); United States v. McConahy, 505 F.2d 770 (7th Cir.1974); Chauncey v. Second Judicial Dist. Ct., supra. But see Brooks v. United States, 423 F.2d 1149 (8th Cir.), cert. denied, 400 U.S. 872, 27 L.Ed.2d 111, 91 S.Ct. 109 (1970). The issue therefore becomes whether the right to a speedy trial attaches to the sentencing phase of a trial, thereby necessitating reasonable efforts by the State to extradite the convicted defendant.
[1] In Pollard v. United States, 352 U.S. 354, 361, 1 L.Ed.2d 393, 77 S.Ct. 481 (1957), it was assumed that sentencing is a part of the trial process for purposes of the Sixth Amendment speedy trial rule. The Pollard court found no constitutional infringement because there was no evidence of "purposeful or oppressive" delay on the State's part and because the sentencing error was promptly remedied upon its discovery.[1]See also United States v. Reese, 568 F.2d 1246 (6th Cir.1977); United States v. Campbell 531 F.2d 1333, 1335 (5th Cir.1976), cert. denied, 434 U.S. 851, 54 L.Ed.2d 120, 98 S.Ct. 164 (1977); Brady v. Superintendent, 443 F.2d 1307, 1310 (4th Cir.1971); Brooks v. United States, supra at 1151; Whaley v. United States, 394 F.2d 399, 401 (10th Cir.1968); United States v. Tortorello, 391 F.2d 587 (2d Cir.1968); Erbe v. State, 25 Md. App. 375, 336 A.2d 129, 133-34 (1975), aff'd, 276 Md. 541, 350 A.2d 640 (1976).
*175 We conclude that under the circumstances here there does not exist a delay of sufficient length, caused by the State, between trial and sentence to amount to a violation of the Sixth Amendment right to a speedy trial. As stated in United States v. Ewell, 383 U.S. 116, 120, 15 L.Ed.2d 627, 86 S.Ct. 773 (1966), the interests to be protected by the speedy trial rule are:
[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.
See also Barker v. Wingo, 407 U.S. 514, 532, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972); Smith v. Hooey, supra at 378. However, the interests enumerated do not remain paramount when criminal proceedings have reached the sentencing stage. As observed in Barker v. Wingo, supra at 532, referring to the United States v. Ewell criteria:
Of these [interests], the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.
Thus, once the guilt of a defendant has been determined, it is appropriate to apply a standard of reasonableness to the timeliness of sentencing rather than the standards that have evolved under the speedy trial rule.[2] The convicted defendant may be anxious, but it is no longer an anxiety resulting from public accusation, but apprehension of punishment. See Brooks v. United States, supra at 1152-53; *176 United States v. James, 459 F.2d 443, 444 (5th Cir.), cert. denied, 409 U.S. 872, 34 L.Ed.2d 123, 93 S.Ct. 202 (1972).
[2, 3] The defendant asserts that his rights were violated. We hold that the delay in the sentencing of the defendant was not a violation of his right to a speedy trial, but we will examine his claim as if it were. Barker v. Wingo, supra, adopted a balancing test to evaluate whether the right of a defendant has been violated wherein the conduct of both the prosecution and the defendant are weighed. As therein stated: "[L]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant" are but "some factors which courts should assess." Barker v. Wingo, supra at 530. The trial court's decision that Walter Sterling was not denied a speedy trial is justified when these factors are balanced.
A. Length of Delay.
The defendant was unavailable to the Washington authorities prior to May of 1974, this being the first time since Sterling's escape that notice of his whereabouts was received in Washington. More than 2 years elapsed between the notice and the defendant's subsequent arrest in Washington. Unless this 2-year delay "is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, supra at 530-31.
A delay of 2 years between verdict and sentencing must be considered presumptively prejudicial if the concepts behind the speedy trial rule are to be realized, but this does not mean that prejudice has been shown. The length of the delay should play only a part in the balancing process when the defendant has been convicted. This is so since "[a] presumptive prejudice from an inordinate delay in bringing a man to trial does not present the same question as prejudice after conviction because the concerns of defendants in such positions are so entirely different." Erbe v. State, supra at 549. In Erbe a 5-year delay was held to be insufficient to vacate the sentence imposed.
*177 B. Reasons for Delay.
The record indicates no bad faith on the State's part. The State was apparently negligent in the handling of its response to the California officials' inquiry, but such nonfeasance weighs less heavily against the State than purposefulness. Barker v. Wingo, supra at 645. As such, the State's inaction plays an almost neutral role in the balancing process.
C. Defendant's Assertion of His Right.
Although a defendant has no obligation to bring himself to trial, he does bear some responsibility in asserting his right. It has been emphasized that the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker v. Wingo, supra at 532. Contrary to the defendant's claim, the record reveals no attempt on his part to obtain extradition in order to be sentenced. Rather, the teletype message contains a vague reference to the fact that a Walter Sterling wanted to make "A DEMAND FOR TRIAL ON YOUR CHARGE." Common usage of the word "charge" indicates only that the defendant may have contemplated returning to Washington to face a charge of jumping bail. This does not amount to a demand that he be sentenced. This weighs against his claim that he has been denied due process.
D. Prejudice.
In determining whether a delay prejudiced the defendant, we find that the interests that the speedy trial rule was designed to protect have been protected. In an attempt to establish prejudice, the defendant maintains that the "possibility" of securing a Washington sentence concurrent with the California sentence was lost. While it is true that the defendant need not affirmatively prove prejudice in order to establish a denial of his constitutional right to a speedy trial, Moore v. Arizona, 414 U.S. 25, 26, 38 L.Ed.2d 183, 94 S.Ct. 188 (1973), it is equally true that speculation or possibility is insufficient to show prejudice, State v. Wieman, 19 Wn. App. 641, 645, 577 P.2d 154 (1978). See *178 also Alford v. State, 155 Ind. App. 592, 294 N.E.2d 168 (1973).
We have balanced the factors pertaining to the reason for and the length of the delay, the failure of the defendant to seek sentencing, and the absence of prejudice to him. We cannot say, after our consideration of these factors, that the defendant was denied a speedy trial or prejudiced by the delay in his sentencing, which was caused primarily by the defendant himself. Gonzales v. State, 582 P.2d 630 (Alaska 1978).
The judgment is affirmed.
SWANSON and WILLIAMS, JJ., concur.
NOTES
[1] The defendant points to the requirement in CrR 7.1 that sentencing be imposed without "unreasonable delay" and argues that the comments to the rule (Criminal Rules Task Force to the Washington Judicial Council, Washington Proposed Rules of Criminal Procedure (1971)) indicate that sentencing is a part of the trial for purposes of the speedy trial requirement.
[2] In the comment to CrR 7.1, the Criminal Rules Task Force identified Rule 32(a)(1) of the Federal Rules of Criminal Procedure as the basis for CrR 7.1. See footnote 1. A delay under the federal rule is not unreasonable unless it was "purposeful or oppressive," Welsh v. United States, 348 F.2d 885, 886-87 (6th Cir.1965). See also State v. Sims, 14 Wn. App. 277, 539 P.2d 863 (1975); State v. Lammert, 14 Wn. App. 137, 540 P.2d 466 (1975). Inadvertence on the State's part is not a sufficient basis for vacating a sentence. Pollard v. United States, 352 U.S. 354, 360, 1 L.Ed.2d 393, 77 S.Ct. 481 (1957). See also Erbe v. State, 276 Md. 541, 350 A.2d 640, 653-54 (1976). For an application of CrR 7.1 to facts similar to those presented here, see State v. Kelly, 20 Wn. App. 705, 708-10, 582 P.2d 891 (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363143/ | 596 P.2d 325 (1979)
Arthur Chris BEANE, Jr., Appellant (Defendant below),
v.
The STATE of Wyoming, Appellee (Plaintiff below).
No. 5061.
Supreme Court of Wyoming.
June 19, 1979.
*326 Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Mark J. Warns, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Gay V. Bartels, Asst. Atty. Gen., Cheyenne, for appellee.
Before RAPER, C.J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
ROSE, Justice.
The sole question presented by this appeal from a burglary conviction is whether, under the circumstances of this case, a warehouse manager is a "person in lawful possession" for purposes of Wyoming's burglary statute, § 6-7-201(a), W.S. 1977. We hold that he is and will affirm.
At trial, evidence was produced from which the jury could and did infer that appellant, Arthur Chris Beane, Jr., forcibly entered a building of the Wy-Mont Beverage Company at 200 Paul Street, Sheridan, Wyoming, during the late hours of June 27 or the early hours of June 28, 1978, and stole coins, candy and equipment. One of the elements of the crime of burglary is that the perpetrator enter "without the consent of the person in lawful possession." Section 6-7-201(a), supra. At trial, Andrew Marosok testified that at the time and place in question he was the warehouse manager of the plant broken into and that he did not give Beane permission to enter. Marosok further testified that he customarily leaves the plant in the late evening and checks the doors and lights before leaving. Marosok also testified that he kept items of personal property in "my box" and "my desk" in the building. He said that, upon seeing a Wy-Mont van being driven late at night, he became suspicious of a burglary, went to the plant, saw evidence of a break-in and informed the police. Marosok also described some of the plant operations.
At the close of all the evidence, defense counsel moved for an acquittal on the ground that the State failed to present evidence going to the question of lawful possession of the premises. Denial of that motion, pursuant to Rule 30 of the Wyoming Rules of Criminal Procedure, is the subject of this appeal.
Appellant argues that there was no proof that possession of the premises by the Wy-Mont Beverage Company was lawful or that Marosok had legal capacity to grant or deny consent to enter the building. Preliminarily, we observe that a finding that Marosok was the person in lawful possession makes unnecessary any inquiry into the extent of authority delegated to Marosok by his employer.
We now consider the phrase, "the person in lawful possession." Neither side has referred this court to any case law interpreting a burglary statute containing such language.
Under the common law, the element of burglary which corresponds to the element in dispute in this case had to do with whether or not the intruder did or did not enter the dwelling house "of another," and occupancy controlled the question of whether the dwelling was that of another. LaFave and Scott, Criminal Law, § 96 (1972). Thus, under a common-law analysis, Marosok's occupancy of the building would suffice for a burglary conviction against Beane.
*327 Turning to the modern burglary case law of other jurisdictions, we find that in Texas,
"... proof that the plant manager who had charge and was in possession of the property did not consent to the entry or theft is sufficient to prove ownership and lack of consent... ." Espinosa v. State, Tex.Cr.App., 463 S.W.2d 8, 9 (1971).
Similarly, in Indiana, to prosecute a burglary conviction,
"... it is not necessary to prove absolute title or ownership to be in the person alleged to be the owner. This Court has held it sufficient if the evidence shows him to be in possession of the property as bailee, agent, trustee, executor or administrator. We construe this to be a possessory right... ." Passwater v. State, 248 Ind. 454, 229 N.E.2d 718, 721 (1967).
A similar conclusion was reached in an older Colorado opinion, Sloan v. People, 65 Colo., 456, 176 P. 481, 482 (1918), which has been cited approvingly in more recent cases. People v. Howard, Colo. App., 541 P.2d 1252, 1254 (1975); and Kelley v. People, 166 Colo. 322, 443 P.2d 734, 736 (1968).
An Illinois Appellate Court goes even further:
"To sustain a burglary conviction it is only necessary for the State to plead and prove occupancy or possession of burglarized premises in a named party whose occupancy or possession is rightful as against the alleged burglar... ." People v. Saunders, 132 Ill. App.2d 421, 270 N.E.2d 217, 219 (1971).
Accordingly, we hold that Marosok's description of (1) his open and notorious possession of the premises, (2) the business activities conducted by Marosok therein, including his duties as warehouse manager, and (3) his seeking of police assistance to maintain exclusive possession of the premises, all support a reasonable inference that Marosok was in lawful possession of the premises. Proof of each element of a crime can be by either direct or circumstantial evidence, and circumstantial evidence includes inferences reasonably drawn from the evidence. Cloman v. State, Wyo., 574 P.2d 410, 416 (1978).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363144/ | 499 F.3d 1048 (2007)
INTRI-PLEX TECHNOLOGIES, INC., Plaintiff-Appellant,
v.
The CREST GROUP, INCORPORATED, a Delaware corporation, e/s/a Crest Ultrasonics Corporation, d/b/a Crest Ultrasonics Corporation, Defendant-Appellee.
No. 05-55923.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 10, 2007.
Filed August 27, 2007.
*1049 *1050 John A. Belcher, Law Offices of John Belcher, Pasadena, CA, for the plaintiff-appellant.
Marcus J. Kocmur (argued), Douglas B. Large, Archbald & Spray LLP, Santa Barbara, CA, for the defendant-appellee.
Before: B. FLETCHER and M. MARGARET McKEOWN, Circuit Judges, and RONALD M. WHYTE,[*] District Judge.
BETTY B. FLETCHER, Circuit Judge:
Intri-Plex Technologies, Inc. (Intri-Plex) appeals from the district court's order granting the defendant Crest Ultrasonics Corp.'s (Crest)[1] motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant Intri-Plex manufactures computer disk drive components called "baseplates."[2] Compl. ¶ 1. Intri-Plex sells finished baseplates to manufacturers of component parts for computer disk drive assemblies. Appellee Crest manufactures and sells ultrasonic cleaning equipment, including hot air dryer consoles, which are used by manufacturers in the computer disk drive industry. Intri-Plex purchased hot air dryer consoles with HEPA air filters and replacement filters from Crest and installed one of these consoles in its Goleta, California, facility. Crest warranted to Intri-Plex that the equipment supplied to it would be defect-free.
In May 2002, Intri-Plex's customers contacted Atlantic Mutual Insurance Co. (AMI), Intri-Plex's insurance company, regarding corrosion problems with the finished baseplates they received from Intri-Plex in April and May 2002. The corrosion was caused by defective air filters supplied to Intri-Plex by Crest. KR Precision Public Company Ltd. (KRP) is an Intri-Plex customer. KRP welded Intri-Plex's corroded finished baseplates into its suspension assemblies, and once attached, it was not possible to repair or replace the *1051 corroded baseplates without damaging the KRP product. This resulted in the recall of finished baseplates manufactured, distributed, and shipped by Intri-Plex as well as compensation to KRP for the damaged suspension assemblies.[3]
In June 2003, AMI commenced a subrogation action against Crest by filing a complaint in California superior court. In its complaint, AMI alleged, "The terms of the INTRI-PLEX insurance policy assign to plaintiff[AMI], to the extent of its payment, all rights, claims or causes of action of its insured against any parties legally or equitably responsible for these losses. Under California law, plaintiff is subrogated to the rights of its insured [Intri-Plex] against the defendants named in this action." AMI Compl.¶ 14.[4] AMI also alleged that it compensated its insured, Intri-Plex, for losses caused by Crest's defective product:
Under the terms of its insurance policy, plaintiff compensated its insured [Intri-Plex] for economic losses and other damages caused by the defendant's defective . . . Hot Air Dryer and replacement . . . HEPA Filters. Under the terms of its insurance policy, plaintiff paid for the identification, recall, and return of finished baseplates manufactured, distributed and shipped by INTRI-PLEX from its Goleta, Santa Barbara, facility . . . and for suspension assemblies manufactured by KRP . . . incorporating finished baseplates manufactured by INTRI-PLEX.
Id. ¶ 14. AMI asserted eight causes of action: breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, breach of oral and written contract, general negligence, negligence-failure to warn, negligence-concealment of material fact, strict liability in tort, and equitable indemnity.
In February 2004, Intri-Plex negotiated and filed a stipulation for a protective order relating to use of its proprietary documents and test results in the litigation between AMI and Crest. After AMI reached a settlement with Crest, California superior court dismissed AMI's action with prejudice on December 1, 2004.
On January 28, 2005, Intri-Plex filed a complaint against Crest in the United States District Court for the Central District of California. Intri-Plex asserted the same factual allegations and causes of action against Crest as AMI asserted against Crest in its state court action. For example, Intri-Plex alleged that it "received partial indemnity from[AMI] for the identification, recall, and return of finished baseplates manufactured, distributed and shipped by [Intri-Plex] from its Goleta . . . facility . . . and for suspension assemblies manufactured by KRP . . . incorporating finished baseplates manufactured by [Intri-Plex]." Compl. ¶ 14. Intri-Plex also alleged that it sustained some losses for which it was not insured, "including unsaleable inventory, deductibles and other losses, not covered by the [AMI] policy." Id.
Crest filed a motion to dismiss for failure to state a claim upon which relief could be granted, on the basis that Intri-Plex's action "improperly attempts to split a *1052 cause of action in pursuit of a claim that has previously been litigated and dismissed with prejudice and is, therefore, barred by the doctrine of res judicata." Def.s' Mot. to Dismiss at 1-2. Crest concurrently filed a request for judicial notice of (1) AMI's state court complaint, (2) Intri-Plex's stipulation regarding the protective order in state court, and (3) AMI's request for dismissal of its state court complaint with prejudice. Intri-Plex opposed the motion to dismiss.
The district court took Crest's motion to dismiss under submission without a hearing. On June 1, 2005, the district court granted Crest's motion to dismiss on the ground that Intri-Plex's complaint was an impermissible splitting of a single cause of action and therefore barred by res judicata. The district court also held that Crest did not waive the splitting defense because:
nothing before the Court indicates that any party, besides Intri-Plex itself, had knowledge of the additional claims that Intri-Plex seeks to raise. The complaint is devoid of any mention of the AMI action and is similarly devoid of any allegation that Crest settled the claim with AMI with knowledge of Intri-Plex's remaining claims against it.
Order Granting Def.'s Mot. to Dismiss at 4.
DISCUSSION
Standard of Review
We review de novo the district court's dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). See Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir.2004). All well-pleaded facts in the complaint are accepted as true and construed in the light most favorable to the nonmoving party. See id. at 595. Res judicata claims are reviewed de novo. Manufactured Home Communities, Inc. v. City of San Jose, 420 F.3d 1022, 1025 (9th Cir.2005) (citation omitted).
Generally, a court may not consider material beyond the complaint in ruling on a Fed.R.Civ.P. 12(b)(6) motion.[5]Lee, 250 F.3d at 688. However, "[a] court may take judicial notice of `matters of public record' without converting a motion to dismiss into a motion for summary judgment," as long as the facts noticed are not "subject to reasonable dispute." Lee, 250 F.3d at 689 (citation omitted); see also United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003).
Since this is a diversity action the law of the forum state, California, applies. See, e.g., Homedics, Inc. v. Valley Forge Ins. Co., 315 F.3d 1135, 1138 (9th Cir.2003).
I. The district court properly dismissed Intri-Plex's suit as an impermissible attempt to split a cause of action barred by res judicata.
A. Splitting the cause of action
To determine the preclusive effect of a state court judgment, federal courts look to state law. Palomar Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d 362, 364(9th Cir.1993). Res judicata "precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction." Rice v. Crow, 81 Cal. App.4th 725, 734, 97 Cal.Rptr.2d 110 (2000) (internal quotation marks omitted). Since an insuredhere, Intri-Plexand its subrogated *1053 insurerAMIare privies, see Ferraro v. S. Cal. Gas Co., 102 Cal.App.3d 33, 42, 162 Cal.Rptr. 238 (1980), the privity requirement is met here. AMI's dismissal of its California superior court complaint with prejudice is a final judgment on the merits. Rice, 81 Cal.App.4th at 733-34, 97 Cal.Rptr.2d 110. The only disputed issue is whether Intri-Plex's action against Crest is the same cause of actionseeking to vindicate the same "primary right"as AMI's action against Crest in state court.
The district court properly dismissed Intri-Plex's suit as an impermissible attempt to split a single cause of action. Intri-Plex partially subrogated its rights to AMI. Intri-Plex disputes this and claims that AMI "was acting as a partial subrogee of KR Precision, which was the only entity which received Atlantic Mutual funds." Pl.'s Br. at 6 (emphasis in original). Not only is this a misunderstanding of subrogation,[6] but it contradicts Intri-Plex's own complaint, which alleged that AMI was its insurance carrier and that "Plaintiff received partial indemnity from [AMI] for the identification, recall, and return of finished baseplates manufactured, distributed and shipped by Plaintiff . . . and for suspension assemblies manufactured by KRP . . . incorporating finished baseplates manufactured by Plaintiff." Compl. ¶ 14.
Thus, it is clear that (1) Intri-Plex had an insurance policy with AMI and (2) pursuant to the insurance policy, AMI paid for loss that Intri-Plex sustained as a result of Crest's defective air dryers and filters, and loss that KRP sustained as a result of receiving defective baseplates from Intri-Plex. We are persuaded by Crest's argument that:
when an insurer settles a claim brought against its insured, it becomes subrogated to the rights that its insured may have against third parties. It does not become subrogated to the rights of the insured's third party claimant. This is no less true when the "benefit" that the insured receives from its insurer is a payment directly to a third party to avoid the third party's claim. Atlantic Mutual settled KRP's claim on behalf of Intri-Plex, because it was Intri-Plex's insurer. It then became subrogated to Intri-Plex's rights against Crest.
Def.'s Br. at 17. Both Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal.App.4th 901, 92 Cal.Rptr.2d 151 (2000), and Ferraro, 102 Cal.App.3d 33, 162 Cal.Rptr. 238, are directly on point.
In Allstate, the tortfeasor, Mel Rapton, Inc., caused damage to Katie Gallagher's car when it negligently repaired her cigarette lighter and the lighter caused a fire. 77 Cal.App.4th at 905, 92 Cal.Rptr.2d 151. Gallagher tendered a claim to Allstate Insurance Co. (Allstate). Id. Allstate paid Gallagher pursuant to her insurance policy, and Gallagher subrogated to Allstate her claim against Mel Rapton, Inc. Id. Allstate demanded that Mel Rapton's insurance company, Farmers Insurance Group (Farmers), reimburse Allstate for the sum it paid to Gallagher, but Farmers denied responsibility for the loss. Id. Gallagher sought reimbursement from Mel Rapton for losses not covered by her insurance policy, such as pain and suffering and personal items inside the car that were destroyed by the fire. She filed a claim in small claims court and judgment was entered in her favor. Id.
*1054 Over one year later, Allstate filed a complaint in municipal court against Mel Rapton, alleging that it had negligently serviced the car, thereby causing the fire. Id. at 905-06, 92 Cal.Rptr.2d 151. Allstate sought the sum it paid Gallagher minus the salvage value of the car. Id. at 906, 92 Cal.Rptr.2d 151. Mel Rapton moved for summary judgment on the ground that Allstate's action was barred by res judicata and the rule against splitting causes of action. Id.
The California Court of Appeal, Third District, held that Allstate's action was barred because its claim was derived solely from the subrogation of Gallagher's rights against Mel Rapton. Id. at 909, 92 Cal. Rptr.2d 151. It also held that Mel Rapton did not waive the defense of impermissible splitting, even though it was aware of Allstate's claim. Id. at 910, 92 Cal.Rptr.2d 151. The court explained:
When, as often happens, the insured is only partially compensated by the insurer for a loss . . ., operation of the subrogation doctrine "results in two or more parties having a right of action for recovery of damages based upon the same underlying cause of action." The insured retains the right to sue the responsible party for any loss not fully compensated by insurance, and the insurer has the right to sue the responsible party for the insurer's loss in paying on the insurance policy. . . . Although the insurer may bring a separate action against the tortfeasor, the rule against splitting a cause of action is violated where both the insurer and the insured pursue separate actions.
Id. at 908, 92 Cal.Rptr.2d 151 (internal citation omitted) (emphasis added).
In Ferraro, plaintiffs whose property was damaged by a gas company settled their claims with their insurance company, Safeco. 102 Cal.App.3d at 37, 162 Cal. Rptr. 238. As part of their settlement, the plaintiffs subrogated their claims "to the amount of such payment" to Safeco. Id. at 38, 162 Cal.Rptr. 238. Safeco filed a complaint against the gas company. Several months later, the plaintiffs also filed a complaint against the gas company. Id. They alleged in their complaint that they had received insurance benefits from Safeco, but they did not attempt to join Safeco, and Safeco did not intervene. Id. The gas company did not raise the issue of impermissible claim-splitting until the trial was over and the plaintiffs appealed. Id. at 40, 162 Cal.Rptr. 238.
The California Court of Appeal, Second District, held that the appellants impermissibly split the claim:
the subrogation clause resulted in a partial subrogation to Safeco, that is, subrogation in the amount of the insurance proceeds only. Therefore, appellants could still maintain a cause of action against the tortfeasors for those losses beyond such insurance proceeds. Nonetheless, failure of appellants to join Safeco or of Safeco to intervene did result in a splitting of the cause of action. . . . "
Id. at 43, 162 Cal.Rptr. 238 (emphasis added). However, since the gas company did not raise this objection in the trial court, it waived the defense. Id. at 43-44, 162 Cal. Rptr. 238.
Here, AMI paid the claims of KRP against Intri-Plex for the defective baseplates and the suspension assemblies pursuant to Intri-Plex's insurance policy. Because Intri-Plex partially subrogated its rights to AMI, AMI filed an action against Crest, the tortfeasor, to recover the benefit AMI paid to its insured. Thus, AMI acted as a partial subrogee of IntriPlex.[7]
*1055 As Ferraro and Allstate make clear, although Intri-Plex was only partially compensated for its loss because its insurance policy with AMI did not cover all of its losses, Intri-Plex should have pursued its claims in a single action along with AMI. The fact that Intri-Plex was aware of AMI's complaint in state court against Crest is not subject to reasonable dispute, because it filed a stipulation regarding a protective order in California superior court on February 22, 2004. Intri-Plex did not intervene in that action. Intri-Plex argues instead that Crest could have joined Intri-Plex in that litigation, but it was Intri-Plex's duty to intervene to protect its own rights.[8] As the district court put it, "nothing before the Court indicates that any party, besides Intri-Plex itself, had knowledge of the additional claims that Intri-Plex seeks to raise." Order at 3.[9]
Intri-Plex argues that its claim for injury to reputation and damage to inventory were not covered by AMI, and that these constitute separate "primary rights." Intri-Plex, however, did not allege injury to reputation; it has only alleged damage to property not covered by insurance, such as damage to inventory. The right to recover for damage to property arises from one primary rightthe right not to have your property damaged by another. Here, the district court correctly held that "the AMI action and this action grow from the violation of a single primary right stemming from a single harm suffered: corrosion of the baseplate allegedly caused by Crest's faulty products." Order at 2.
B. Waiver
Under the principles articulated in Allstate and Ferraro, Crest did not waive the splitting defense. Crest raised the issue in its motion to dismiss, and Intri-Plex's action was not filed until after AMI's. In Allstate, the court held there was no waiver because "[u]ntil Allstate filed its action, there was no impermissible splitting; Gallagher simply had sued Mel Rapton for less than the full amount of her damages." 77 Cal.App.4th at 910, 92 Cal. Rptr.2d 151. The same principle applies here.
Allstate holds that a tortfeasor with knowledge of an insurer's subrogation claim may not settle the entire cause of action by settling only with the insured and thereby foreclose a subsequent action by the insurer. Id. at 912, 92 Cal.Rptr.2d 151. Intri-Plex argues that this permits it to bring a subsequent action where Crest settled with AMI knowing that Intri-Plex had claims. This is not so because even if Intri-Plex amended its complaint to allege *1056 that Crest settled with AMI with knowledge of Intri-Plex's remaining claims, this rule exists to protect the insurer from fraud. See id. Intri-Plex is the insured, not the insurer, and it does not have subrogation rights to protect.
II. The district court properly dismissed Intri-Plex's complaint without leave to amend.
"Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005) (internal quotation marks and citation omitted); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.1989) ("Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility. . . . ").
Intri-Plex argues that it could amend its complaint to allege that Crest settled with AMI with knowledge of Intri-Plex's unsatisfied claims. But as discussed, Intri-Plex cannot benefit from the rule that a tortfeasor with knowledge of an insurer's subrogation claim may not settle the entire cause of action by settling only with the insured and thereby foreclose a subsequent action by the insurer. See Allstate, 77 Cal.App.4th at 912, 92 Cal.Rptr.2d 151; see also Griffin v. Calistro, 229 Cal. App.3d 193, 196, 280 Cal.Rptr. 30 (1991). Because this rule "involves an insured's and tortfeasor's voluntary settlement and release of all claims with knowledge of an insurer's subrogation rights," Allstate, 77 Cal.App.4th at 912, 92 Cal.Rptr.2d 151 (second emphasis added), it exists to protect the insurer, not the insured. The insurer succeeds to the rights of the insured, and the tortfeasor cannot prevent the insurer from exercising those rights. Here, Intri-Plex did not succeed to the rights of AMI, so Intri-Plex did not have any subrogation rights to protect.
CONCLUSION
The district court's grant of defendant's motion to dismiss is
AFFIRMED.
NOTES
[*] The Honorable Ronald M. Whyte, United States District Judge for the Northern District of California, sitting by designation.
[1] Sued as "The Crest Group, Inc. dba Crest Ultrasonics Corp."
[2] Because this is an appeal from the dismissal of an action pursuant to Fed.R.Civ.P. 12(b)(6), we accept as true the facts alleged in Intri-Plex's complaint. See Lee v. City of Los Angeles, 250 F.3d 668, 677 (9th Cir.2001).
[3] Intri-Plex alleged, "Corroded finished baseplates contaminated by chlorine being welded into suspension assemblies manufactured by KRP resulted in the compensation of KRP for losses sustained for damaged product." Compl. ¶ 13. Intri-Plex next alleged that it "received partial indemnity from [AMI] for the identification, recall, and return of finished baseplates . . . and for suspension assemblies manufactured by KRP . . . incorporating finished baseplates manufactured by[Intri-Plex]." Compl. ¶ 14.
[4] Intri-Plex's complaint is referred to as "Compl." and AMI's complaint is referred to as "AMI Compl."
[5] Fed.R.Civ.P. 12(b) provides, "If, on a motion asserting the . . . defense to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
[6] "Under the doctrine of subrogation, when an insurer pays money to its insured for a loss caused by a third party, the insurer succeeds to its insured's rights against the third party in the amount the insurer paid. Upon subrogation, the insurer steps into the shoes of its insured." Hodge v. Kirkpatrick Dev., Inc., 130 Cal.App.4th 540, 548, 30 Cal.Rptr.3d 303 (2005) (internal citations omitted).
[7] As the district court correctly noted, Intri-Plex confuses equitable indemnity with equitable subrogation. "According to California law, equitable indemnity permits `a concurrent tortfeasor to obtain partial indemnity from another concurrent tortfeasor on a comparative fault basis.'" Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir.1998) (citing Am. Motorcycle Ass'n v. Superior Court of Los Angeles County, 20 Cal.3d 578, 598, 146 Cal.Rptr. 182, 578 P.2d 899 (1978)). This is not a situation involving concurrent tortfeasors, with one seeking to recover on a comparative fault basis from the other.
[8] Intri-Plex had the right to intervene under Cal.Civ.Proc.Code § 387(b), which provides, "if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene." Cf. Hodge, 130 Cal.App.4th at 550-52, 30 Cal.Rptr.3d 303(holding that intervention was the best way for the insurance company to protect its subrogation rights).
[9] As discussed above, even if Intri-Plex amended the complaint to allege these facts, its action would still be barred by the rule against splitting claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363146/ | 3 Kan. App. 2d 448 (1979)
596 P.2d 190
STATE OF KANSAS, Appellant,
v.
O.B. BOHANNON, JR., Appellee.
No. 50,458
Court of Appeals of Kansas.
Opinion filed June 15, 1979.
Robert J. Sandilos, assistant district attorney, Curt T. Schneider, attorney general, and Vern Miller, district attorney, for appellant.
Warren B. Wood, of Wichita, for appellee.
*449 Before FOTH, C.J., ABBOTT and PARKS, JJ.
ABBOTT, J.:
This is an interlocutory appeal by the State, pursuant to K.S.A. 1978 Supp. 22-3603, from an order suppressing evidence.
The defendant, O.B. Bohannon, Jr., was charged with one count of burglary (K.S.A. 21-3715) and one count of theft (K.S.A. 21-3701[a]). The charges arose out of a burglary of the residence of Eddie Taylor in which a number of pieces of citizens band (CB) radio equipment were stolen. Taylor was of the opinion his equipment made a distinctive sound when transmitting, and a few days after the burglary he heard what sounded like his equipment on the air. Through conversation, he learned the "handle" (Gambling Dog) and address of the person operating the equipment. Subsequent investigation disclosed that "Gambling Dog" was the handle of the defendant, O.B. Bohannon, Jr.
Taylor, a former reserve police officer with the Wichita Police Department, contacted a Lt. Bullins of the department and requested that Bullins meet him at 17th and Hillside. When Bullins arrived, Taylor told him of his suspicions regarding the defendant. Bullins and Taylor agreed that they had insufficient evidence to obtain a search warrant and that if they merely went to the defendant's home, the odds were that they would not be allowed to enter and the CB equipment would be disposed of. The two men then went to the home of Taylor's son-in-law, Robert Emerson. Taylor asked Emerson, who was familiar with the equipment, to go to defendant's home and verify that it was Taylor's equipment. Bullins instructed Emerson that he would need to be able to positively identify at least a portion of the equipment. Bullins and Taylor returned to 17th and Hillside in the police vehicle. Emerson, traveling in his own vehicle, proceeded directly to the defendant's home. Emerson's first attempt to view the equipment was unsuccessful and he returned to 17th and Hillside. The three men soon heard the distinctive transmitter noise, whereupon Emerson returned to defendant's home and verified that Taylor's CB equipment was in fact there.
Based on the information Emerson gave Bullins, a search warrant was obtained and the stolen CB equipment was seized. The defendant was charged with one count of theft and one count of burglary. On July 28, 1978, defendant's motion to suppress the evidence seized under the warrant was heard. In support of his *450 motion to suppress, the defendant argued that Emerson was acting as an agent of the police. The State argued that Emerson's search was private and hence outside the perimeters of the warrant requirement and the exclusionary rule. The trial judge found that Emerson was acting as an agent for the Wichita Police Department when he went to the defendant's home to view the CB equipment and accordingly suppressed the evidence. The State then brought this interlocutory appeal pursuant to 22-3603.
At the outset we are met with three jurisdictional arguments by the defendant that this Court is without jurisdiction as a result of the State's failure to timely file its appeal or comply with Rule 4.02(a) (224 Kan. xxxix) (failure to timely file a certified copy of the notice of appeal with the clerk of the appellate courts).
The first problem is one which is of growing concern to this Court and which results in unnecessary complications in many cases. The problem arises first as a result of trial judges issuing letter decisions and memorandum decisions in K.S.A. 60-258 judgments that fail to state whether the letter or memorandum alone is to serve as the journal entry or whether counsel should prepare a journal entry. Secondly, as in this case, some orders which are appealable are not judgments as contemplated by K.S.A. 60-258, but are otherwise appealable as contemplated by Rule 4.02(b)1 (224 Kan. xxxix), and this problem arises because the court fails to state whether the order is to be journalized before it is deemed to have been formally "entered."
The decision to sustain the defendant's motion to suppress was announced to defense counsel via a one-sentence letter dated 29 August 1978 from the trial judge, stating simply, "Please be advised that the Motion to Suppress, in the above entitled matter, has been sustained." The State filed its notice of appeal in the Sedgwick District Court on September 11, 1978, more than ten days after the letter announcing the trial court's decision.
K.S.A. 1978 Supp. 22-3603 provides that notice of appeal be filed within ten days after entry of the order. A journal entry which was approved by counsel and signed by the court was officially filed on September 27, 1978. The journalized order contained additional findings of fact and a conclusion of law that had not been previously announced by the trial judge. We can only conclude from these facts, plus the fact that the trial court neither made an oral order in the record nor filed its letter *451 notifying counsel of its decision, and subsequently signed the journal entry of September 27, 1978, that it was the trial court's intention that the order not be entered as contemplated by 22-3603 until the journal entry was filed with the court.
The defendant next contends the State's notice of appeal was of no force and effect since it was prematurely filed. He reasons that the notice of appeal was filed before the entry of the order, whereas, as noted above, 22-3603 requires the notice of appeal to be taken within ten days after entry of the order from which the appeal is taken. Defendant relies on the line of cases typified by Guerrero v. Capitol Federal Savings & Loan Ass'n, 197 Kan. 18, 415 P.2d 257 (1966), all of which were decided prior to the adoption of Rule 2.03 covering premature appeals.
K.S.A. 1978 Supp. 22-3606 provides that unless otherwise provided by statute or rule of the Supreme Court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases. Although Rule 2.03 speaks in terms of "judgments," when considered with Rule 4.02 (224 Kan. xxxix) and 22-3606 we are satisfied that it was intended to apply to appealable "orders" as well as judgments. The notice of appeal, although premature, was thus timely filed in this case. Carson v. Eberth, 3 Kan. App.2d 183, 186-87, 592 P.2d 113 (1979).
The defendant also makes a jurisdictional challenge because of the State's failure to forward a certified copy of the notice of appeal to the clerk of the appellate courts within three days after the filing of the notice of appeal, as required by Rule 4.02. The journalized order, however, was filed with the district court on September 27, 1978, and a certified copy of the same was filed with the clerk of the appellate courts the very next day. As noted in Carson, 3 Kan. App.2d at 186, a premature notice of appeal lies dormant until such time as the judgment (or, as in this case, the order) is entered, at which time under Rule 2.03 the notice of appeal has the same effect as if it had been filed simultaneously with the entry of the judgment or appealable order. The order having been entered on September 27, 1978, the premature notice of appeal is deemed to have been effectively filed on that date, and it follows that the filing of a certified copy of the order with the clerk of the appellate courts on the following day is timely and in full compliance with Rule 4.02.
*452 Both parties agree that the acts of Emerson would have constituted an illegal search if he had been a police officer, leaving as the sole issue in this case whether or not there is substantial competent evidence to support the trial court's finding that Emerson was acting as an agent for the Wichita Police Department when he conducted his warrantless search. We wish to emphasize that there is no question before this Court concerning the legality of the search or whether the viewing of the CB equipment came within the plain view doctrine.
It has been repeatedly held that the conduct of a private person acting independently and not under the authority or direction of the State is not included in the proscriptions of the Fourth Amendment of the United States Constitution or section 15 of the Kansas Bill of Rights. Burdeau v. McDowell, 256 U.S. 465, 65 L.Ed. 1048, 41 S.Ct. 574, 13 A.L.R. 1159 (1921); State v. Boswell, 219 Kan. 788, 793, 549 P.2d 919 (1976); State v. Gordon, 219 Kan. 643, 648, 549 P.2d 886 (1976).
In order to be admissible, evidence obtained through a search by a private individual must come to the State upon a "silver platter" and not as a result of any instigation by state officials or participation by them in illegal activities. Byars v. United States, 273 U.S. 28, 71 L.Ed. 520, 47 S.Ct. 248 (1927). The extent of official involvement in the total enterprise is the crucial element, for if it is too great the private individual's role may be reduced to that of an agent. Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971); Raymond v. Superior Court, 19 Cal. App.3d 321, 96 Cal. Rptr. 678 (1971). Once an agency relationship is established, the full panoply of constitutional provisions and curative measures applies, and any evidence which the police could not legally seize or observe is also off limits to the agent. People v. Esposito, 37 N.Y.2d 156, 371 N.Y.S.2d 681, 332 N.E.2d 863 (1975).
Our Supreme Court has further held, in State v. Hruska, 219 Kan. 233, Syl. ¶ 3, 547 P.2d 732 (1976), that:
"It is only when government has preknowledge of and acquiesces in a private party's conducting a search and seizure which the government itself could not have undertaken that the problem of compliance with Fourth Amendment standards arises from search by a private party."
In Hruska, the Court held that evidence was admissible when the acts that were alleged to constitute impermissible conduct were *453 performed by private parties prior to any contact with law enforcement authorities.
Various courts have applied a number of tests in addition to the preknowledge or acquiescence test set forth in Hruska. For example, was the search made under the authority or direction of the police (State v. Boswell, 219 Kan. 788); was the private citizen actively recruited by the police to make the search (State v. Boynton, 58 Hawaii 530, 574 P.2d 1330 [1978]); was he paid by them (Hajdu v. State, 189 So.2d 230 [Fla. App. 1966]); did the police instigate, influence, or arrange for the individual to make the search (Gundlach v. Janing, 401 F. Supp. 1089 [D. Neb. 1975]; United States v. Ellison, 469 F.2d 413 [9th Cir.1972]); did they encourage him or participate in the search themselves (Gundlach v. Janing, 536 F.2d 754 [8th Cir.1976])? In Raymond v. Superior Court, 19 Cal. App.3d 321, evidence was suppressed where the police provided transportation to the private individual, chose the time of day for the search, and described the amount of the item which needed to be seized (marijuana).
In Moody v. United States, 163 A.2d 337 (D.C. 1960), a Mr. Johnson told police that he had seen some of his previously stolen property in Mr. Moody's apartment. After Moody was arrested upon Johnson's complaint, Johnson and an officer went to Moody's apartment where the officer remained in the hall and Johnson made a warrantless entry and handed items he recognized as his to the officer. The court suppressed the evidence thus seized, holding that the Fourth Amendment may be violated just as effectively through the intervening agency of one not a policeman as by one who is, and that the policeman here could not be characterized as a willing but innocent beneficiary who stood silently by. Moody, 163 A.2d at 340.
In State v. Becich, 13 Or. App. 415, 420, 509 P.2d 1232 (1973), a Mr. Boley was under suspicion of theft. While claiming his innocence, he said that he knew where the stereo equipment was and would show his good faith by getting it back. The police drove him to the scene and observed him entering defendant Becich's house and removing some boxes. The court suppressed the evidence, noting that the officer's passive observation of a clearly illegal search and seizure constituted "sufficient official participation" to taint the items seized. Becich, 13 Or. App. at 420.
*454 In Stapleton v. Superior Court, 70 Cal.2d 97, 73 Cal. Rptr. 575, 447 P.2d 967 (1968), Mr. Bradford, an agent for a credit card company, was working with the police in a credit card fraud investigation and accompanied them to the defendant's house for the purpose of arresting him. Bradford noticed the defendant's car parked down the street. Searching it of his own volition, he found evidence which was turned over to the police. The court ruled that it must be excluded in light of the policemen's perception of the illegal search, which consisted of their silently standing by and observing the search, although they did nothing to aid in it.
An example of a search leading to admissible evidence is found in Gundlach v. Janing, 401 F. Supp. at 1090, wherein the manager of an airplane parts store reported a suspected theft. The police requested that he "establish that there was property missing from his inventory" before filing a complaint. No mention was made that the manager should attempt to obtain evidence. The manager, however, did search the defendant's garage and found stolen property. The court held that the mere knowledge the private individual might conduct a search that would be illegal if made by law enforcement personnel, without any encouragement or instigation, was not enough to turn the private search into a governmental one.
The facts in the case before this Court fall between the two extremes of when the police had only an idea of what might occur and when they actually witnessed the illegal search and seizure taking place. We pause to note that where the trial court has made findings of fact, the function of this Court on appeal is to determine whether the findings are supported by substantial competent evidence, and in doing so all reasonable inferences are drawn in favor of the party who prevailed below. City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976).
The trial judge made factual findings of the extent of participation of the police, and we hold that there is substantial competent evidence to support those findings. Officer Bullins participated in obtaining a person to go to the defendant's home, an entity enjoying special protection by our constitutions, and there obtain evidence the officer did not think he could successfully obtain. We note that a police vehicle was used in the trip to recruit Emerson. Counsel for the State candidly admitted at oral argument *455 that Bullins may have acted in a supervisory capacity, and he was clearly present during the entire planning stage. Bullins was also present when Emerson twice left to go to the defendant's home. He further participated when he explained to Emerson what the latter must observe in the home, and was standing by in the immediate neighborhood while the illegal search took place. While he did not instruct Emerson to take any illegal action, the record contains evidence from which the trial court could conclude that he must have been aware of the probability such activity would take place.
The record is such that the trial judge might have reached an opposite conclusion, but in our opinion it does contain substantial competent evidence to support the findings necessary to suppress the evidence under the issues presented to this Court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363147/ | 596 P.2d 585 (1979)
40 Or.App. 711
STATE of Oregon, Respondent,
v.
Alexander DELUCIA, Appellant.
No. DA 139115; CA 12535.
Court of Appeals of Oregon.
Argued and Submitted March 20, 1979.
Decided June 18, 1979.
*586 Daniel C. Lorenz, Portland, argued the cause for appellant. With him on brief, was Desmond D. Connall, P.C., Portland.
James M. Brown, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief, were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C.J., and RICHARDSON and ROBERTS, JJ.
ROBERTS, Judge.
Defendant appeals from his conviction of assault in the third degree following a jury trial. He makes two assignments of error: (1) that the trial court erred in refusing to give an instruction on the use of physical force in defense of premises and (2) that the trial court incorrectly limited cross-examination of the victim as to his financial interest in the criminal case arising out of a contemplated civil action. We affirm.
The incident giving rise to this prosecution occurred while defendant was acting as a security guard at a rock concert. Testimony at trial disclosed that defendant struck the victim in the face five or more times after the victim had refused first to move out of the aisle and then to leave the coliseum at defendant's request and had finally resisted defendant's efforts to forcibly evict him.
At trial, defendant requested that the following instruction be given:
"A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises."
The trial judge refused to give the instruction because no evidence had been presented as to the authority of defendant's employer, E.J.D. Security, to evict. We agree that the instruction was properly denied, but base our decision on the incompleteness of the instruction. We, therefore, find it unnecessary to reach the question of defendant's authority to evict.
The instruction, as requested, follows exactly the language of ORS 161.225(1) which delineates the use of physical force in defense of premises. It is, therefore, a correct statement of law insofar as it goes. Its defect lies in its incompleteness. ORS 161.225(1), as repeated in the instruction, allows the use of physical force to prevent or terminate what is reasonably believed to be the commission or attempted commission of a criminal trespass in or upon the premises. Therefore, in order to decide whether the defense was justified, the jury must know what a "criminal trespass" is so that it may determine whether defendant had a reasonable belief that one was indeed committed or imminent.
The term "criminal trespass" is statutorily defined[1] and should not be left to the jury's imagination. We shall assume, as we said in State v. Davis, 18 Or. App. 125, 127, 523 P.2d 1283, 1284 rev. den. (1974), *587 "that jurors are not lawyers and, even if lawyers, not versed in criminal law." We held in that case that a trial court may properly refuse an incomplete instruction; we so reiterate here. See also State v. Brazeal, 247 Or. 611, 612, 431 P.2d 840 (1967); State v. Simmons, 34 Or. App. 929, 935, 580 P.2d 564 rev. den. (1978); State v. Meek, 35 Or. App. 649, 654, 582 P.2d 464 (1978).
Defendant further contends that the trial judge erred in sustaining the state's objection to the following questions posed by defense counsel during cross-examination of the victim:
"You talked to a lawyer, you said, about this case?[[2]]
"* * *
"Do you have any financial stake in the outcome of this case?"
The judge listened to the arguments of counsel in chambers and sustained the objection. After the jury had retired, the trial judge allowed both lawyers to place their arguments on the record and stated his reasons for sustaining.
Defense counsel argued that the victim's intention to bring a civil suit for damages would indicate a bias in the way of a financial interest in the outcome of the criminal trial. Having determined in chambers that there was no civil suit pending at the time of this trial, the trial judge ruled that it would be too speculative to let the information in as it would probably confuse the jury more than it would assist them.
While recognizing that as a general rule cross-examination of the prosecuting witness should be allowed to show the pendency, existence and status of a civil action against the accused arising out of the same set of circumstances as those which served as the basis for the criminal prosecution. Anno. 21 ALR2d 1078, 1079 (1952), we find the error here to be harmless.
Both defendant and the prosecuting witness testified to the fact that force was used by the defendant. Defendant's primary defense, as discussed above, was that he had the right to use force under the circumstances. There was no contradiction to the prosecuting witness's testimony about the use of force and his testimony had no bearing on the question of authority, which question was, in any event, not presented to the jury. The sustaining of the objection was not prejudicial.
Affirmed.
NOTES
[1] ORS 164.245 provides in relevant part:
"(1) A person commits the crime of criminal trespass in the second degree if he enters or remains unlawfully in or upon premises." This is further statutorily defined as follows: ORS 164.205(3)(a) provides:
"(3) `Enter or remain unlawfully' means:
"(a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so; * * *"
ORS 161.225(1) and (3) provide:
"(1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.
"* * *
"(3) As used in subsection (1) and paragraph (a) of subsection (2) of this section, `premises' includes any building as defined in ORS 164.205 and any real property. As used in paragraph (b) of subsection (2) of this section, `premises' includes any building." ORS 164.205(6) provides:
"(6) `Premises' includes any building and any real property, whether privately or publicly owned.
[2] Earlier in defense counsel's cross-examination of the witness he had responded as follows when asked what he had done to prepare to testify:
"A. I had written out after this incident happened I had gone home and I had written out a account of what happened because I intended to see an attorney to see if there was anything that I could do about seeing that this didn't happen to somebody else or to me again." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264957/ | 261 N.J. Super. 458 (1993)
619 A.2d 257
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAUREN SPARKS, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted January 4, 1993.
Decided January 27, 1993.
*459 Before Judges JAMES H. COLEMAN, ARNOLD M. STEIN and CONLEY.
Jeffrey Evan Gold, P.C., attorney for appellant (Jeffrey Evan Gold on the letter brief).
Edward F. Borden, Jr., Camden County Prosecutor, attorney for respondent (Frederick H. Martin, Assistant Prosecutor, of counsel and on the letter brief).
The opinion of the Court was delivered by ARNOLD M. STEIN, J.A.D.
We granted leave to appeal from the Law Division judge's order reversing defendant's municipal court conviction for the disorderly persons offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4), and remanding the matter to the municipal court for a new trial. We reverse and remand to the Law Division for entry of a judgment of acquittal.
When the case was first scheduled for trial in the municipal court on March 16, 1992, defense counsel moved to dismiss the complaint because the State had not supplied the defense with the required discovery materials pursuant to R. 7:4-2(h), 3:13-2 and 3:13-3. Over defendant's objection, the case was adjourned to April 6, 1992, at the State's request.
*460 On the adjourned date, defense counsel objected to receiving the discovery materials just before trial. The judge ruled that defendant was not prejudiced by late delivery of the discovery documents. He gave defense counsel forty-five minutes to present more evidence of prejudice or proceed to trial. Defendant's attorney elected to go to trial so long as the State would proceed "without any other surprises...." When the judge asked the prosecutor whether he planned to present "anything outside of discovery that ... would have been discoverable," the prosecutor replied in the negative. However, he then added that he assumed that "there's no objection to the lab report." Defense counsel immediately objected to the laboratory report's admission into evidence as untimely. The municipal court judge eventually permitted the laboratory report, an analysis of the substance suspected to be marijuana, to be placed in evidence.
On de novo appeal to the Law Division, the judge held that the laboratory report was improperly admitted. That ruling was correct. A certificate of the laboratory report results cannot be admitted into evidence unless notice of the proposed proffer, together with a copy of the certificate and all reports relating to the analyzed substance, are provided to the opposing party at least twenty days before the beginning of a criminal or quasi-criminal proceeding. N.J.S.A. 2C:35-19c. The time limits of the statute cannot be relaxed except upon a showing of good cause. Ibid.
Exclusion of the laboratory certificate left the State without proof necessary to sustain a conviction. However, the judge did not acquit defendant. Instead he remanded the matter to the municipal court for retrial. The judge explained in a letter filed with this court pursuant to R. 2:5-1(b):
The Court found that the laboratory report should not have been admitted at the trial because the State failed to comply with 2C:35-19(c) and remanded the matter for a new trial to allow the State an opportunity to submit the laboratory report to the defendant and his counsel prior to trial and give the *461 defendant an opportunity to object. The Court also instructed the Municipal Court to entertain the defendant's motion for costs in this matter.
The Court did not rule that the laboratory report should be permanently barred from evidence and did not make any final ruling on the merits of this case. The Court merely remanded the matter back to the Municipal Court so that there could be a full hearing and the case adjudicated on its merits.
That ruling was incorrect. The procedure violated the requirements of R. 3:23-8(a) that the appeal from the municipal court must be heard de novo on the record below. As we pointed out in State v. Hardy, 211 N.J. Super. 630, 512 A.2d 545 (App.Div. 1986),
Nowhere in the rule is the State given the right to correct or bolster its case in chief; rather it may only respond to evidence admitted by defendant under the rule.... Thus the initial remand was improper. Defendant was clearly entitled to a trial of the appeal on the original record.
[Id. at 634, 512 A.2d 545 (citations omitted).]
The hearing in the Law Division required exclusion of the lab certificate and consideration of the case solely on the remaining testimony. Id. Accord State v. Musgrave, 171 N.J. Super. 477, 479, 410 A.2d 64 (App.Div. 1979).
We reject the State's contention that the Law Division judge properly remanded the matter for retrial in the municipal court under authority of that language in R. 3:23-8(a) which permits a remand or plenary trial de novo where "it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below. ..." (Emphasis added). We need not consider all circumstances under which prejudice to these rights of defendant require remand or de novo plenary hearing. The provision is doubtless meant to apply in such instances as where the municipal court erred in excluding evidence offered by the defendant, State v. Hardy, supra, 211 N.J. Super. at 633-34, 512 A.2d 545; or where defendant was entitled to but was not represented by counsel in the municipal court, Rodriguez v. Rosenblatt, 58 N.J. 281, 295-96, 277 A.2d 216 (1971). It surely is not intended to provide the State with a second *462 opportunity to plug holes in a case deficient of proof beyond a reasonable doubt.
We distinguish this case from State v. (Jackie) Williams, 226 N.J. Super. 94, 108-09, 543 A.2d 965 (App.Div. 1988), where we held that double jeopardy does not preclude a retrial in a criminal case when the trial court erroneously admitted evidence offered by the prosecution. Unlike Williams, this case involves an appeal from a municipal court conviction, and R. 3:23-8(a) requires the Law Division judge to examine the sufficiency of the evidence and to make a new determination of guilt or innocence based on the record below. If the evidence excluded by the Law Division is necessary to sustain defendant's guilt, defendant must be acquitted. State v. Hardy, supra, 211 N.J. Super. at 634, 512 A.2d 545; State v. Musgrave, supra, 171 N.J. Super. at 479-80, 410 A.2d 64.
Reversed and remanded to the Law Division for entry of a judgment of acquittal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363132/ | 499 F.3d 81 (2007)
UNITED STATES of America, Appellee, Cross-Appellant,
v.
Scott FINK, Defendant, Appellant, Cross-Appellee.
Nos. 06-1313, 06-1346.
United States Court of Appeals, First Circuit.
Heard June 6, 2007.
Decided August 16, 2007.
*82 Charles W. Rankin, with whom Michelle Menken and Rankin & Sultan, were on brief, for appellant.
William D. Weinreb, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.
Before TORRUELLA and LYNCH, Circuit Judges, and FUST
,[*] District Judge.
FUSTE, District Judge.
The issues in this case surround the sentencing of Scott Fink for conspiracy to distribute cocaine under 21 U.S.C. ß 846 (1999 & Supp.2007). Fink's participation in the crime was revealed when the government wiretapped a co-conspirator's phone beginning May 28, 2003. The wiretaps evidenced Fink's involvement from that date until July 13, 2003, when Fink was arrested for violating probation in an unrelated case. On December 3, 2003, a federal grand jury returned a one-count indictment charging Fink and five others with violation of ß 846.[1] Fink pleaded guilty without a plea agreement before Judge Rya W. Zobel on May 25, 2005. At Fink's December 19, 2005, sentencing hearing, the district court ruled that Fink was subject to a ten-year statutory mandatory minimum under 21 U.S.C. ß 841(b)(1)(B)(1999 & Supp.2007), but that he was not eligible for career offender *83 treatment under the United States Sentencing Guidelines (USSG). The district court sentenced Fink to ten years in prison and ten years of supervised release.
Fink appeals his sentence. He argues that ß 841(b)(1)(B) is unconstitutional and that, alternatively, the facts of his case render it inapplicable to him. The government cross appeals the sentence, alleging error in the district court's refusal to treat Fink as a career offender under the USSG. We reject Fink's arguments that the ten-year statutory minimum in ß 841(b)(1)(B) does not apply. We are persuaded, however, by the government's position that it should have been granted a continuance on Fink's career offender status and, therefore, vacate Fink's sentence and remand this case for resentencing consistent with this opinion.
I.
Background
Fink's presentence report (PSR), which was first issued on August 9, 2005, and later updated on November 9, 2005, stated that Fink should be held accountable at sentencing for 1,988 grams of cocaine. It also catalogued his multiple prior convictions for breaking and entering, larceny, car theft, assault and battery with a dangerous weapon, assault and battery with intent to murder, stay-away and abuse prevention order violations, resisting arrest, possession of cocaine, possession of marijuana, and probation violations.
A. The First Contested PSR Recommendation
The PSR recommended that Fink be treated as a "career offender" under Chapter 4 of the Sentencing Guidelines, an approach that would result in a higher advisory guideline sentencing range (GSR) for Fink. Section 4B1.1(a) of the Sentencing Guidelines sets forth preconditions that must be present if a defendant is to be considered a career offender. U.S.S.G. ß 4B1.1(a). One of these preconditions requires that the defendant have at least two prior felony convictions for either a crime-of-violence or a controlled-substance offense. U.S.S.G. ß 4B1.1(a)(3). In its discussion of Fink's career offender status, the PSR specifically identified three prior crime-of-violence convictions from Fink's criminal record that could serve as career offender predicates. The first was a 1990 Bristol County conviction for assault and battery with intent to murder, and the other two were December 1999 Fall River convictions for resisting arrest and assault and battery with a dangerous weapon ("the December 1999 convictions").
On December 7, 2005, Fink notified the district court that the two December 1999 convictions could not be career offender predicates because a state court judge Äî Gilbert J. Nadeau Äî had since vacated those convictions.
Some additional background is required to understand the complicated facts surrounding this aspect of the parties' sentencing dispute. Fink pleaded guilty to assault and battery in Fall River District Court in Massachusetts on February 2, 1999 ("the February 1999 conviction"), and was sentenced to suspended jail time and probation for that offense on April 28, 1999. Later that year, Fink was charged with four more crimes in Fall River District Court, including resisting arrest, assault and battery with a dangerous weapon, violating a stay-away order, and violating an abuse-prevention order. These four charges were combined, or "wrapped-up" for disposition purposes. Fink pleaded guilty to them all at once, and was sentenced to serve two and one-half years in prison in satisfaction of all *84 the charges ("the four wrapped-up convictions").
All five convictions Äî the February 1999 conviction and the four wrapped-up convictions Äî appeared in Fink's PSR in a section on his general criminal history. As already noted, two of these convictions also made a second appearance in the PSR's section on Fink's career offender status, where they were specifically flagged, along with the 1990 Bristol County conviction, as crime-of-violence predicates.
After pleading guilty in the present case, Fink moved to withdraw his state court guilty pleas in the four wrapped-up state convictions that raised the specter of career offender status for the present ß 846 violation, claiming that he had been the victim of a constitutionally-infirm plea colloquy. The state court judge who originally accepted Fink's guilty pleas in the four wrapped-up convictions in 1999 had since retired, so the motion was assigned to Fall River District Judge Gilbert J. Nadeau. Judge Nadeau granted Fink's motion in a December 7, 2005, order. Significantly, the order was captioned only with the four wrapped-up convictions' case numbers. Judge Nadeau's order observed that at the same time Fink had pleaded guilty to the four wrapped-up convictions, he had also admitted that they constituted a violation of his probation in the February 1999 case. Judge Nadeau stated that he granted Fink's motion to withdraw his guilty pleas in the four wrapped-up cases because none of their files contained the "Tender of Plea or Admission Waiver of Rights form" that was standard practice in the Fall River District Court. Finally, Judge Nadeau's order observed that Fink's February 1999 conviction file did contain the important plea colloquy form.
Fink then pointed out to the district court in the instant prosecution that only one of the crime-of-violence convictions specifically flagged in the PSR as a qualifying career offender predicate-Fink's 1990 Bristol County conviction Äî remained on his record, and that his record, accordingly, lacked the two convictions that would be necessary to designate him a career offender. One day later, on December 8, 2005, the district court convened a sentencing hearing for Fink, and the government responded to the vacated wrapped-up convictions by noting that the February 1999 conviction listed in Fink's PSR's criminal history qualified as a crime of violence that the district court could weigh in its deliberations. Given the still-evolving developments in the parties' career offender arguments, the district court prudently decided to postpone Fink's sentencing hearing until later in the month.
On December 15, 2005, the government filed a pleading titled "Memorandum Regarding Scott Fink's Criminal History," arguing that the February 1999 conviction qualified as a crime of violence predicate under ß 4B1.1 of the Sentencing Guidelines. The government appended the case's Complaint, Criminal Docket Sheet, and Tender of Plea for the district court's consideration.
The district court convened another sentencing hearing for Fink on December 19, 2005. At the hearing, Fink argued that the February 1999 docket sheet contained an entry dated December 8, 2005, reading "D's motion to withdraw guilty plea Äî allowed [Nadeau]." Fink argued that the February 1999 conviction had, according to its own docket, been vacated and could not, as the government alleged, serve as a career offender predicate.
The government responded that the docket entry had nothing to do with the continuing force of the February 1999 conviction. In the government's view, the docket entry reflected Judge Nadeau's observation that the vacatur of Fink's *85 wrapped-up convictions could have implications for his February 1999 case insofar as those convictions constituted parole violations for the February 1999 conviction. The government pointed out that this docket entry came only one day after Judge Nadeau's order of vacation. The government also asserted that Fink never moved to have his guilty plea withdrawn in the February 1999 case and offered a copy of the state court criminal file to sustain its point.
Fink did not deny that he had never moved to withdraw his guilty plea in the February 1999 case. Instead, he urged that the words "motion to withdraw guilty plea Äî allowed" appearing on the February 1999 case's docket be taken at face value without any reference to any of the other information submitted to the court by the government. The district court concluded that this approach was mandated by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).
The district court refused to consider the offered copy of the state court criminal file and accepted Fink's argument that Shepard prohibited it from considering evidence outside of the docket entry's plain language to interpret its meaning. The government requested a continuance so that it could obtain direct clarification from the Massachusetts state court whether the February 1999 conviction remained in force, which the district court denied. Working only from the docket entry's plain language, the district court found the February 1999 conviction had been vacated, and refused to qualify it as a career offender predicate.
B. The Second Contested PSR Recommendation
The PSR also recommended that the district court sentence Fink to a statutory mandatory minimum of ten years to a maximum of life, pursuant to 21 U.S.C. ß 841(b)(1)(B), the statute governing the sentencing of Fink's conviction under 21 U.S.C. ß 846. While ß 841(b)(1)'s standard mandatory minimum is five years, this figure doubles when a defendant has a prior felony drug offense.[2] The PSR identified Fink as having committed a prior felony drug offense in 2002, when he was convicted of cocaine possession in Rhode Island.[3]
Fink did not contest the existence of the 2002 conviction, but argued that the underlying conduct had been in furtherance of, and therefore could not be considered as having occurred prior to, the drug conspiracy for which he was about to be sentenced. Fink reminded the court that Congress' intent in passing *86 ß 841(b)(1)(B)'s sentence enhancement was to prevent criminal recidivism and argued that he was not a recidivist; he argued, in essence, that the district court could not truthfully say that he had gone back to selling drugs for the simple reason that he had never stopped. Fink also argued that the district court could not constitutionally invoke the 2002 conviction to enhance his drug conspiracy sentence because the cocaine possession offense would not be a felony and trigger the statute if it had occurred in Massachusetts instead of Rhode Island. According to Fink, allowing such geographic mischance to inflict a greater sentence upon him than upon a similarly-situated defendant would violate his constitutional right to equal protection.
The district court rejected Fink's arguments, and ruled that the 2002 conviction constituted a prior felony drug offense for the purposes of the ß 841(b)(1)(B) sentencing enhancement.
C. The District Court's Calculation of Fink's Sentence
Having determined that the February 1999 conviction could not be treated as a prior crime-of-violence conviction that would serve as a career offender predicate, the district court determined Fink's GSR using base calculations. The district court concluded that Fink's total offense level was 23[4] and his criminal history category was IV, yielding a GSR of seventy to eighty-seven months. Having also ruled that the 2002 cocaine possession conviction was a prior felony drug offense for the purposes of enhancing Fink's sentence under ß 841(b)(1)(B), the statutory mandatory minimum of ten years governed and the district court sentenced Fink to ten years in prison and ten years of supervised release.
Fink appeals the district court's ruling regarding ß 841(b)(1)(B), and also, for the first time on appeal, challenges the order that he serve ten years of supervised release. The government cross appeals the district court's ruling on Fink's career offender status.
II.
Discussion
A. Section 841(b)(1)(B) Sentence Enhancement
1. Incorrect Standard of Proof Challenge
Fink argues that the district court improperly failed to hold the government to its burden of proving that the 2002 conviction was distinct from his 21 U.S.C. ß 846 violation under the reasonable doubt standard. He claims that the government was obligated to indict and put the question to a jury, which he alleges is required by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He also avers that the government had to convince the district court of the 2002 conviction's distinctness beyond a reasonable doubt in an evidentiary hearing, which he alleges is required by 21 U.S.C. ß 851 (1999 & Supp.2007).
It is clear that Fink's Apprendi argument has no merit. In United States v. Coplin, this court ruled that the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), "made clear that a sentence enhancement may be *87 grounded on prior criminal convictions not . . . proven to a jury." 463 F.3d 96, 104 (1st Cir.2006). Fink's argument that the government failed to prove the 2002 conviction's distinctness to the district court beyond a reasonable doubt in a ß 851 evidentiary hearing is similarly unavailing. The multitude of fragmented sentencing hearings held in this case by a learned and patient district judge who carefully looked at all angles to formulate a reasonable sentence fully complied with the ß 851 evidentiary hearing requirement. To argue that the sentencing hearings were not evidentiary hearings disregards what happens daily in federal district courts throughout the nation, where district judges hold hearings in the sentencing context to find facts and decide the applicable law. Here, we are satisfied that such required hearing took place, irrespective of the label placed to describe it.
2. Equal Protection Challenge
Fink appeals the district court's use of the 2002 cocaine possession conviction to increase his sentence, alleging that this ruling violated his right to equal protection under the Fifth Amendment of the United States Constitution. Fink complains that 21 U.S.C. ß 841(b)(1)(B) imposes a much higher jail term upon him for having been convicted and punished in Rhode Island Äî a state that considers possession of an eight ball of cocaine to be a felony (therefore triggering ß 841 sentence enhancement) Äî than it would upon a similarly-situated criminal defendant arrested in Massachusetts Äî a state that does not designate possession of that quantity of cocaine as a felony. It is, therefore, Fink's position that this aspect of federal sentencing law has worked to arbitrarily discriminate against him simply because he had the misfortune to earn his criminal history in Rhode Island and not Massachusetts.
Fink argues that the ß 841(b)(1)(B) enhancement is subject to a strict scrutiny analysis under his equal protection challenge because the statute implicates his physical liberty. We disagree. This court has subjected a similar sentence enhancement statute Äî the Armed Career Criminal Act's (ACCA) 18 U.S.C. ß 924(e)(1) Äî to rational-basis review in United States v. Bregnard. 951 F.2d 457, 461 (1st Cir. 1991). Section 924(e)(1), which governs sentencing in the context of select firearms possession offenses, outlines a sentence enhancement for convicted persons who bear a history of three previous convictions for violent felonies, serious drug offenses, or a combination thereof. ß 924(e)(1). As applied, ß 924(e)(1), like ß 841(b)(1)(B), also achieves some disparate results among similarly-situated criminal defendants depending on the states in which they accrued their criminal histories.
In Bregnard, a defendant argued that he was denied equal protection of the law when ß 924(e)(1) was used to enhance his sentence due to crimes on his record that qualified as enhancement predicates according to criminal definitions in the state in which they occurred, but that did not qualify as such in all states. Bregnard, 951 F.2d at 461. We found that "[t]he mere fact that application of the ß 924(e) enhancement is ultimately predicated on the definition of crimes that may vary from state to state is insufficient to conclude that ß 924(e) violates the equal protection of the law." Id. We concluded that "[i]t was entirely rational" for Congress to structure the sentence-enhancement statute as it did, and we dismissed the equal protection challenge, as we do here. Id. (quoting United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976)).
3. Recidivism Challenge
Fink also argues that the district court erred when it treated the 2002 conviction *88 as a prior felony drug offense for the purposes of imposing a ß 841(b)(1)(B) sentence enhancement against him. According to Fink, the cocaine possession that gave rise to that conviction was conduct in furtherance of, and therefore indistinct from, the cocaine distribution conspiracy that is presently at issue. Fink claims that enhancing his sentence for the conspiracy under ß 841(b)(1)(B) therefore ignores the statute's aim of curbing criminal recidivism. According to Fink, he is not a recidivist. Fink contends that his 2002 cocaine possession and 2005 conspiracy conviction are both part and parcel of one epic crime that he has remained unwaveringly dedicated to over the course of many years. We apply a clear error standard to the factual determinations of the district court. Gonzalez-Velez, 466 F.3d at 40.
Fink's claim that the offense underlying his 2002 conviction was in furtherance of conduct that later also gave rise to his ß 846 violation is an argument that this court has heard, and rejected, on similar facts before. In United States v. Martinez-Medina, a defendant convicted of a drug conspiracy charge appealed the district court's enhancement of the sentence by reference to ß 841(b)(1)(B) and two prior felony drug convictions on the defendant's record. 279 F.3d 105 (1st Cir.2002). We repudiated the defendant's argument that the two prior felony drug offenses could not serve to enhance the sentence because they were part and parcel of the drug conspiracy, observing that the prior felony drug offenses had occurred over the course of several months and involved different drugs. Id. at 123; see also United States v. De Jesus Mateo, 373 F.3d 70 (1st Cir.2004) (observing that the defendant's prior convictions were for separate drug transactions occurring several months apart and quoting Martinez-Medina to deny defendant's challenge to the sentence enhancement he received under 21 U.S.C. ß 841(b)(1)(A)). In the instant case, Fink's 2002 cocaine possession conviction also occurred prior to, and involved different drugs from, the numerous offenses underlying the ß 846 conspiracy conviction, and we therefore conclude that the two convictions are separate and distinct episodes under Martinez-Medina. The district court therefore did not err in ruling that the 2002 conviction is a prior felony drug offense for the purposes of enhancing Fink's sentence under ß 841(b)(1)(B).
B. Career Offender Status
The government cross appeals the district court's refusal to grant it a continuance so that it could directly inquire with the Massachusetts state court as to the meaning of the contested docket entry and the February 1999 conviction's actual status. In denying the government's request for a continuance, the district court accepted Fink's position that the contested docket entry vacated his February 1999 conviction and ruled that he was not a career offender for sentencing purposes. The relevance of the government's cross appeal to Fink's ultimate sentence is that Fink's PSR recommends calculating his GSR at 262 to 327 months if he were found to be a career offender. Although the guidelines are advisory, 18 U.S.C. ß 3553(a)(4) still requires courts to properly calculate and consider a convicted defendant's advisory GSR prior to sentencing. See United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir.2006)(discussing the role of the guidelines for sentences imposed post-Booker).
In refusing to grant the requested continuance, the district court said that a continuance had already been granted before, when Fink got the four wrapped-up convictions vacated on the eve of his December 8, 2005, sentencing hearing. At the *89 time, the government's career offender arguments had been thrown into disarray and the district court granted the continuance so that the government could have the opportunity to review its strategy in light of the new developments. In rejecting a continuance on December 19, 2005, however, the district court stated that "at some point we need to stop clarifying" and proceed to sentencing.
A trial court has wide discretion to grant or deny a request for continuance, United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir.1995), and so in the past we have held that "[o]nly an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay" would amount to an abuse of that discretion. United States v. Brand, 80 F.3d 560, 564 (1st Cir.1996) (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)) (internal quotation marks omitted). We find such an abuse of discretion in the present case. Fink invoked the contested docket entry to challenge the validity of the February 1999 conviction in the middle of the December 19, 2005, sentencing hearing when the government had inadequate time to fully pursue all avenues of response. We find the government's request for time to clarify the veracity of Fink's argument justifiable given those circumstances, especially since it informed the district court precisely what steps it would take if the continuance were granted, i.e., that it would consult directly with the Massachusetts state court for clarification of the issue. While the district court's interest in concluding what had already become a protracted sentencing process is understandable, we conclude that this did not outweigh the government's interest in having Fink's sentence calculated using the most accurate criminal history information available. Accordingly, we reverse the district court's denial of the government's request for a continuance, and remand this case so that a third sentencing hearing may be convened. Before the third sentencing hearing takes place, the government can follow through on its announced plan to clarify the meaning of the contested docket entry by directly inquiring with the Massachusetts state court. As an aside, we note that even if the government were to prove the continuing force of the February 1999 conviction, the district court of course retains Booker discretion to craft a guideline or non-guideline sentence after considering the relevant 18 U.S.C. ß 3553(a) sentencing factors.
If the government's inquiry with the Massachusetts state court as to the February 1999 conviction reveals that it remains in force, Fink alternatively argues that the underlying assault and battery offense is not a qualifying crime of violence for the purposes of career offender designation. Notwithstanding Fink's brief argument in this regard, it is clear that the February 1999 assault and battery conviction was for a crime of violence, see United States v. Estevez, 419 F.3d 77, 82 (1st Cir.2005); United States v. Mangos, 134 F.3d 460, 463-64 (1st Cir.1998), and we decline Fink's invitation for this panel to overrule binding circuit law. The only real question surrounding the February 1999 conviction is whether it remains on the books.
Lastly, we would like to mention another appellate argument made by the government, which is that the district court's refusal to consider any materials beyond the contested docket entry in determining whether Fink's February 1999 conviction remained in force constitutes a misapplication of Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), where the Supreme Court limited a sentencing court's consideration of the nature of a defendant's prior conviction to the four corners of the convicting court's records. *90 The district court believed that the materials offered by the government in support of its interpretation of the contested docket entry Äî Judge Nadeau's order, for instance Äî were precisely the sort of records considered off-limits by Shepard. For the time being, we find it unnecessary to reach the government's Shepard argument because presumably the parties' dispute over the docket entry will be resolved on the remand we have already ordered.
C. Ten Years' Supervised Release
Finally, we observe that Fink disagrees with the ten years of supervised release ordered by the district court for which he alleges he had no advance warning. He argues that ß 841(b)(1)(B) sets the minimum term of supervisory release for "at least 8 years," that the ten years imposed therefore constitutes an upward departure, and that a court must notice a defendant that it is considering an upward departure in sentencing before ordering it. Because we are remanding, the issue is hypothetical. Fink may argue this point on remand.
III.
Conclusion
For the foregoing reasons, we affirm the district court's ruling that Fink's 2002 conviction is an adequate 21 U.S.C. ß 841(b)(1)(B) sentence enhancement predicate, but reverse the district court's denial of a continuance so that the government could clarify the continuing force of the February 1999 conviction for consideration in the context of an analysis of Fink's career offender status. Case remanded for further proceedings consistent with this decision.
Affirmed in part and reversed and remanded in part.
NOTES
[*] Of the District of Puerto Rico, sitting by designation.
[1] A superseding indictment that also charged Fink with one count under ß 841 for possession with intent to distribute and distribution of cocaine is irrelevant to the instant appeal. It was later dropped at the government's request when Fink agreed to plead guilty to the one count against him in the original indictment.
[2] The relevant portions of 21 U.S.C. ß 841(b)(1)(B) read as follows:
In the case of a violation of subsection (a) of this section involving Äî . . . (ii) 500 grams or more of a mixture or substance containing a detectable amount of [cocaine] . . . such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years . . . If any person commits such violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment . . . any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. . . .
[3] The government filed the statutorily-required information on May 2, 2005, notifying its intention to rely on the 2002 Rhode Island conviction for possession of cocaine to seek an enhanced sentence under ß 841(b)(1).
[4] Fink was being held responsible for 1,988 grams of the cocaine, which started his base offense level at 26 under USSG ß 2D1.1(c)(7) (applying to crimes involving "[a]t least 500 G but less than 2KG of Cocaine"). Fink then received a downward adjustment of three points for having accepted responsibility for the crime under USSG ß 3E1.1(a) and (b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363179/ | 596 P.2d 412 (1979)
BALL CORPORATION, a corporation, and Ball Brothers Research Corporation, a corporation, Plaintiffs-Appellees and Cross-Appellants,
v.
Thomas J. LORAN and Canyon Products, Inc., a corporation, Defendants-Appellants and Cross-Appellees.
No. 79CA0302.
Colorado Court of Appeals, Division III.
May 31, 1979.
Roath & Brega, P. C., Charles F. Brega, J. Stephen McGuire, Denver, for plaintiffs-appellees and cross-appellants.
Williams, Trine & Greenstein, David W. Griffith, Wilfred R. Mann, Boulder, for defendants-appellants and cross-appellees.
RULAND, Judge.
Appellees and cross-appellants, Ball Corporation and Ball Brothers Corporation (Ball), filed a motion to dismiss this appeal. In the alternative, Ball requests that this court clarify the appealability of a ruling by the trial court. Upon consideration of the motion, the brief in support of the motion and the response of appellants and cross-appellees, Thomas Loran and Canyon Products, Inc., we dismiss the appeal.
Ball initiated this case by a complaint asserting six claims for relief against Loran and Canyon. Specifically, Ball alleged breach of an employee agreement, breach of confidential and fiduciary duties, misappropriation of trade secrets, unfair competition, violation of the laws of Japan, and violation of the Trademark Act of 1946 (15 U.S.C. §§ 1051, et seq.). Based upon these allegations, Ball requested an award of damages, injunctive relief, attorneys' fees, and costs.
Defendants answered the complaint and asserted a counterclaim. The case was bifurcated for purposes of trial, and the liability and injunctive issues were tried to the court. The trial court determined that the marketing information acquired by defendants did not constitute a trade secret, that defendants had misappropriated but were not using the trade secrets of Ball, that defendants had gained a "head start" in Japan by use of the trade secret before changing compositions, that defendants had falsely advertised their product in Japan, and that defendants had disparaged Ball's product. The trial court denied Ball's claim for injunctive relief, but determined that defendants were liable in damages. The amount of damages, if any, was deferred for resolution in a future proceeding, and the trial court entered an order pursuant to C.R.C.P. 54(b) seeking to authorize an appeal of its order.
Defendants appeal from the trial court's determination that they are liable for damages, and Ball cross-appeals from the order denying it injunctive relief. However, Ball requests that if we determine that defendants' appeal must be dismissed, we also dismiss the cross-appeal.
*413 Insofar as pertinent here, C.R.C.P. 54(b) provides that when more than one claim for relief is presented, "the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay. . . ." The issue is whether the trial court resolves a claim when it determines that a party is liable, but defers for future consideration the question of damages.
Only those orders which finally resolve a claim may be certified as a final judgment pursuant to C.R.C.P. 54(b). Trans Central Airlines, Inc. v. Peter J. McBreen & Associates, Inc., 31 Colo. App. 71, 497 P.2d 1033 (1972). While we find no Colorado appellate decisions addressing the issue presented here, we are persuaded by decisions interpreting Rule 54(b) of the Federal Rules of Civil Procedure. In Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976), the plaintiffs had filed a complaint alleging that their employer's insurance and maternity leave regulations discriminated against women in violation of the Civil Rights Act of 1964. Plaintiffs requested an award of damages, injunctive relief, and other costs. The Federal District Court ruled that the employer was liable, but reserved for future consideration the issues of whether plaintiffs were entitled to damages and injunctive relief. The Supreme Court held that the question of plaintiffs' relief having been deferred for future consideration, the district court's ruling was not appealable under Rule 54(b) because the order was interlocutory. See also International Controls Corp. v. Vesco, 535 F.2d 742 (2d Cir. 1976); Western Geophysical Company of America, Inc. v. Bolt Associates, Inc., 463 F.2d 101 (2d Cir. 1972). Thus, we hold that the trial court's order determining that the defendants here are liable does not constitute the resolution of a claim unless and until the trial court determines what relief, if any, Ball may secure.
Appeal dismissed.
BERMAN and KELLY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264923/ | 240 P.3d 853 (2010)
DOS PICOS LAND LIMITED PARTNERSHIP, an Arizona limited partnership; Harry W. Shepard and Patricia P. Shepard, husband and wife, Plaintiffs/Appellees,
v.
PIMA COUNTY, a political subdivision of the State of Arizona, Defendant/Appellant.
No. 2 CA-CV 2009-0186.
Court of Appeals of Arizona, Division 2, Department A.
September 29, 2010.
*854 Ayers & Brown, P.C. By Charles K. Ayers and Melinda A. Bird, Phoenix, Attorneys for Plaintiffs/Appellees.
Barbara LaWall, Pima County Attorney By Thomas Weaver, Jr., Lesley M. Lukach, and Andrew L. Flagg, Tucson, Attorneys for Defendant/Appellant.
OPINION
ESPINOSA, Judge.
¶ 1 Pima County challenges the trial court's award of litigation expenses and its *855 calculation of interest on a judgment compensating landowners in an inverse condemnation action. Concluding the trial court relied on inapplicable statutes in awarding attorney fees, other litigation expenses, and interest, we vacate its ruling and remand this case to the trial court for a recalculation of the award.[1]
Factual and Procedural History
¶ 2 The following facts are undisputed. Dos Picos Land Limited Partnership and Harry and Patricia Shepard (collectively Dos Picos) owned 165 acres of property west of Tucson. Dos Picos's land was surrounded on the south, east, and west by Tucson Mountain Park, a mountain preserve owned by Pima County. At some point during the 1980s, a mountain ridge dividing the northern portion of Dos Picos's land from the southern portion was declared a "protected ridge," which meant a special use permit from Pima County was then required in order to develop it. During the 1990s, Pima County "identified and approved" Dos Picos's property for potential inclusion in the park and entered into negotiations to purchase it. Dos Picos was unwilling to sell, however, intending instead to subdivide the property and sell individual lots as homesites.
¶ 3 Although the northern portion of Dos Picos's property was accessible from Anklam Road, the southern portion was surrounded by county land with no road access. Consequently, in 1999 Dos Picos sought a special use permit to build a road across the protected ridge in order to connect the northern and southern portions of its land, but Pima County denied its request. Later, in 2004, Dos Picos petitioned the county to build a roadway across county land for access to the southern half of its property. After Pima County denied this request, Dos Picos sued for inverse condemnation, arguing the county's actions constituted a governmental taking of private property.
¶ 4 Thereafter, Dos Picos filed a motion for partial summary judgment. The trial court granted the motion, finding as a matter of law that Pima County had effected a taking of Dos Picos's land. Following a jury trial to establish the property's value, the court entered a judgment ordering Pima County to pay Dos Picos the principal sum of $1,466,455, plus interest at the rate of ten percent from the date of the taking. It also awarded Dos Picos $366,439 in attorney fees as well as $115,282 in other litigation expenses pursuant to A.R.S. § 11-972(B). Pima County timely appealed the award of fees, expenses, and interest. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(B).
Discussion
Applicability of A.R.S. § 11-972(B)
¶ 5 Pima County first argues the trial court erred in awarding Dos Picos its attorney fees and litigation expenses, contending § 11-972(B) does not apply because this was a regulatory and not a physical taking. A court may award attorney fees only when they are "`expressly authorized by contract or statute,'" and the party seeking fees must prove that the statute is applicable and authorizes compensation in his or her case. McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 7, 202 P.3d 536, 539-40 (App.2009), quoting Burke v. Ariz. State Ret. Sys., 206 Ariz. 269, ¶ 7, 77 P.3d 444, 447 (App.2003). On appeal, we review a trial court's interpretation of a statute de novo, Estate of DeSela v. Prescott Unified Sch. Dist. No. 1, 224 Ariz. 202, ¶ 7, 228 P.3d 938, 940 (App.2010), mindful that statutory language is the most reliable evidence of the legislature's intent and construing words "`in conjunction with the full text of the statute,'" McMurray, 220 Ariz. 71, ¶ 8, 202 P.3d at 540, quoting Golder v. Dep't of Rev., 123 Ariz. 260, 265, 599 P.2d 216, 221 (1979).
¶ 6 Section 11-972(B) provides that, when a trial court in an inverse condemnation action initiated "because of [an] alleged physical taking" awards compensation to the landowner "for the physical taking of property," the landowner is entitled to reimbursement *856 for reasonable costs and litigation expenses. The plain and unambiguous language of the statute establishes, therefore, that § 11-972(B) applies only to physical takings. See Arpaio v. Citizen Publ'g Co., 221 Ariz. 130, ¶ 6, 211 P.3d 8, 10 (App.2008) (statutory language controls if plain and unambiguous); see also Backus v. State, 220 Ariz. 101, ¶ 22, 203 P.3d 499, 504 (2009) (refusing to read into statute term not included by legislature). To hold otherwise effectively would eliminate the qualifying term "physical" from the statute, something we may not do. See Simpson v. Simpson, 224 Ariz. 224, ¶ 6, 229 P.3d 236, 237 (App.2010) (court will not interpret statute in manner rendering any word, phrase, or clause meaningless); see also State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962, 964 (1994) ("We presume the legislature did not intend to write a statute that contains a void, meaningless, or futile provision."). Accordingly, Dos Picos was entitled to its litigation expenses under the statute only if it showed Pima County had physically taken its property.
¶ 7 Physical and regulatory takings are two distinct events. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 548, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005); State ex rel. Herman v. Jacobs, 7 Ariz.App. 396, 400, 440 P.2d 32, 36 (1968); see also State ex rel. Herman v. Hague, 10 Ariz.App. 404, 406, 459 P.2d 321, 323 (1969) (impairing direct access to property constitutes compensable taking; actual physical taking of property not required). Physical takings are characterized by "direct government appropriation or physical invasion of private property." Lingle, 544 U.S. at 537, 125 S. Ct. 2074; see, e.g., United States v. Pewee Coal Co., 341 U.S. 114, 71 S. Ct. 670, 95 L. Ed. 809 (1951) (seizure of coal mine); United States v. Gen. Motors Corp., 323 U.S. 373, 65 S. Ct. 357, 89 L. Ed. 311 (1945) (occupation of private warehouse). Regulatory takings, in contrast, do not result from physical invasions of property but from government regulations that deprive an owner of the economic benefit of the property. Lingle, 544 U.S. at 537-38, 125 S. Ct. 2074. A "permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner's right to exclude others from entering and using her property" and warrants compensation. Id. at 539, 125 S. Ct. 2074. In contrast, whether a regulatory action constitutes a compensable taking depends "upon the magnitude of [the] regulation's economic impact and the degree to which it interferes with legitimate property interests." Id. at 540, 125 S. Ct. 2074.
¶ 8 To prove a compensable taking, therefore, Dos Picos was required to show either that Pima County had physically invaded its land or that county regulations substantially interfered with Dos Picos's economic interest in the land. Dos Picos presented no evidence the county had ever physically entered or invaded its property and, contrary to its assertions on appeal, the trial court did not expressly find a physical taking or that the county "had taken [its p]roperty in order to incorporate it into" Tucson Mountain Park.[2] Rather, the court's ruling that Dos Picos was entitled to its expenses under § 11-972 rested on its finding that a taking, generally, had occurred.[3] In so finding, the court apparently disregarded Pima County's argument that the court was required to find a physical taking before applying the statute.[4]
*857 ¶ 9 Dos Picos maintains that, by denying it a special use permit to build a road over the protected ridge and similarly denying its request that the county build a road to access the southern portion of its land, Pima County physically appropriated the land. Specifically, Dos Picos argues that, by denying all access to the property, Pima County effectively incorporated the land into the Tucson Mountain Park and thus accomplished the same result as a physical taking. Dos Picos further asserts that, because the county wanted the land only for open space within its mountain preserve, it was able to effect a physical taking for that purpose without needing to actually enter the property. Pima County, on the other hand, notes that it had no more physical access to or ownership of the property after it denied Dos Picos's administrative requests than it did before the denials. And it points out that Dos Picos's land was not made a part of Tucson Mountain Park and concludes nothing prevents Dos Picos from erecting fences, prohibiting trespassers, or exhibiting other indicia of private ownership.[5]
¶ 10 Despite the superficial appeal of Dos Picos's argument that this is an anomalous situation in which Pima County was able to effect a physical taking through regulatory means, such a characterization would undermine the definition of "regulatory taking" altogether. The hallmark of a regulatory taking is the imposition of governmental regulations that impermissibly limit an owner's free use of his or her property. See Lingle, 544 U.S. at 538-39, 125 S. Ct. 2074. "`[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.'" Ranch 57 v. City of Yuma, 152 Ariz. 218, 225, 731 P.2d 113, 120 (App.1986), quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 67 L. Ed. 322 (1922).
¶ 11 Dos Picos cites Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979), and Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), for the proposition that a physical taking occurs when the government interferes with an owner's right to exclude others from his or her property. Although we are not called on here to comment on this general proposition, that is not what happened here. Kaiser Aetna involved a privately owned pond that, when altered by its owners and converted to a marina, was classified a navigable waterway of the United States, to which the government asserted a right of public access. 444 U.S. at 165-66, 179, 100 S. Ct. 383. In finding such access amounted to a physical taking in violation of the Fifth Amendment, the Supreme Court held that "the imposition of navigational servitude... result[ed] in an actual physical invasion of the privately owned" waterway. Id. at 180, 100 S. Ct. 383. Thus, the actual physical taking turned on the government's insistence that the owners sacrifice their right to exclude others. Similarly, Nollan also involved a governmental entity's demanding public access to private property. In that case, the California Coastal Commission conditioned the granting of a permit to rebuild an uninhabitable house on the creation of a public easement across the coastline abutting the home. 483 U.S. at 827-28, 831, 107 S. Ct. 3141. The Supreme Court held the government had physically and permanently occupied private land when "individuals [we]re given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed." Id. at 832, 107 S. Ct. 3141.
¶ 12 The precedential value of Kaiser Aetna and Nollan is completely undercut here by the absence of any county mandate that Dos Picos open its property to public access or use. Dos Picos maintains that Pima County's regulations adversely affected its ability to exclude the public, who, as a result of the regulation, "had access to and use of Dos Picos['s] Property for hiking, picnicking and the like." But this contention is not *858 supported by the record nor is the use of Dos Picos's property by members of the public a logical or necessary consequence of the county's actions. Nothing in the record suggests that the absence of a road allowed or encouraged public access to Dos Picos's land.[6] Nor has Pima County required Dos Picos to hold the land open for public use or restricted its demarking the land as private and prohibiting trespass. The county's regulations did nothing but maintain the status quo on undeveloped, private land, and it is difficult for us to see how its refusal to make the land more accessible to both its owners and members of the public alike appropriated the property for public use.
¶ 13 Dos Picos also relies on an apparent belief that, if a regulatory taking is sufficiently egregious or is accomplished to promote an ulterior motive, a court may view it as tantamount to a physical taking. Citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992), Dos Picos argues that, when regulations amount to a "per se" taking, this effectively becomes a physical taking. But that case does not support Dos Picos's contention. Although in Lucas the Supreme Court acknowledged that "total deprivation of beneficial use [of land] is, from the landowner's point of view, the equivalent of a physical appropriation," it did not adopt this as a holding of the Court. 505 U.S. at 1017, 112 S. Ct. 2886. In fact, the Court specifically described regulations that "den[y] all economically beneficial or productive use of land" as "regulatory takings," albeit ones that, like physical takings, "categorical[ly]" warranted compensation. Id. at 1015-16, 1026, 112 S. Ct. 2886; see also Lingle, 544 U.S. at 538, 125 S. Ct. 2074 (citing Lucas as involving regulatory rather than physical taking).
¶ 14 A regulatory taking is not a less intrusive subset of "takings" generally, but rather a distinct method by which a governmental entity deprives an owner of his or her property rights. Not every regulation amounts to a taking, but only one that "`goes too far.'" Ranch 57, 152 Ariz. at 225, 731 P.2d at 120, quoting Pa. Coal Co., 260 U.S. at 415, 43 S. Ct. 158. Once regulation has impermissibly interfered with the owner's economic or other interests in the property, the taking is complete; there are not different degrees of "taking." Lingle, 544 U.S. at 539-40, 125 S. Ct. 2074 (finding of regulatory takings dependent on extent to which government actions interfere with private rights). Here, the trial court implicitly found the regulations became a taking when they went "`too far'" by effectively limiting Dos Picos's use of its property to be consistent with the surrounding county land used as a mountain preserve and park. Although a court may determine that governmental regulations have "denie[d] all economically beneficial or productive use of land," justifying compensation without further analysis of the benefits to the public versus the cost to the landowner, this still does not convert a regulatory taking into a physical one. Lucas, 505 U.S. at 1015, 112 S. Ct. 2886; see also Lingle, 544 U.S. at 548, 125 S. Ct. 2074 (distinguishing a physical taking from "a Lucas-type `total regulatory taking'").
¶ 15 Additionally, as previously noted, the trial court made no factual findings that Pima County either physically took the land to incorporate it into the park or intended to do so.[7] And, because fact-finding is not the province of an appellate court, we will not attempt to infer the county's motives from a barren record.[8]See Ahwatukee Custom Estates *859 Mgmt. Ass'n, Inc. v. Bach, 193 Ariz. 401, ¶ 14, 973 P.2d 106, 109 (1999) (factfinding within purview of trial court).
¶ 16 Accordingly, because Pima County effected a regulatory and not a physical taking of Dos Picos's land, § 11-972(B) does not apply. In light of this conclusion, we need not address Pima County's additional argument that, in accordance with our decision in Salaz v. City of Tucson, 157 Ariz. 251, 756 P.2d 348 (App.1988), disapproved of by Calmat of Ariz. v. State ex rel. Miller, 176 Ariz. 190, 859 P.2d 1323 (1993), the trial court was without authority to award attorney fees and expenses because Dos Picos's property was not taken in furtherance of a federally funded project, or Dos Picos's related argument concerning the ongoing validity of Salaz. Additionally, because we conclude Dos Picos is not entitled to its litigation expenses at all, we need not reach Pima County's argument that the court wrongly awarded Dos Picos its expenses connected to earlier proceedings regarding the special use permit.
Interest
¶ 17 We next consider Pima County's argument that the trial court improperly calculated interest on the judgment. The county asserts the court failed to apply the correct combination of interest rate and accrual date under either of the two statutes potentially applicable to this case, thus awarding "[a] higher rate of interest for [a] longer period" than authorized under either statute alone. Pursuant to A.R.S. § 44-1201(A), interest on a civil judgment is payable at the rate of ten percent per annum, while under A.R.S. § 11-269.04(1), the interest rate on a judgment in a direct condemnation action is "[t]he prime rate charged by banks on short-term business loans." Additionally, interest on a condemnation judgment begins to accrue on the date of the taking, see Tucson Airport Auth. v. Freilich, 136 Ariz. 280, 282, 665 P.2d 1002, 1004 (1983), while interest on a civil judgment begins to accrue when the amount of damages is liquidated, see Lake Havasu Cmty. Hosp., Inc. v. Ariz. Title Ins. & Trust Co., 141 Ariz. 363, 377-78, 687 P.2d 371, 385-86 (App.1984), overruled on other grounds by Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987). Here, the county contends the trial court applied the interest rate for a civil judgment but the accrual date applicable to a condemnation award. We review de novo the applicability of statutes. Schoneberger v. Oelze, 208 Ariz. 591, ¶ 12, 96 P.3d 1078, 1081 (App.2004).
Rate of Interest
¶ 18 Pima County argues § 11-269.04 should apply because the legislature's intent was to apply the same interest rate to direct and inverse condemnation judgments. It maintains the statutory interest rate was not established to provide a financial advantage or disadvantage to the government when it takes private property but rather to provide "a reasonable rate of interest that approximates" what a landowner could have earned by investing money. Accordingly, it contends the trial court erred when it applied the statutory ten percent rate applicable to civil judgments.
¶ 19 This case presents a perplexing problem in that Dos Picos clearly is entitled to interest on the judgment as part of just compensation for the taking of its land, see Ariz. Const. art. II, § 17; Calmat, 176 Ariz. at 192, 859 P.2d at 1325, but the legislature has failed to clearly so provide. Section 11-269.04 applies only to "[i]nterest on a judgment in a condemnation proceeding instituted by the county." Thus, the statute by its terms applies to judgments in direct condemnation actions, on which interest accrues from the date of the taking. In this inverse condemnation action, instituted by Dos Picos and not by Pima County, it appears, therefore, that § 11-269.04 does not control.
¶ 20 If § 11-269.04 is inapplicable, however, the trial court could only award interest on the judgment pursuant to § 44-1201, the statute governing interest on civil *860 judgments generally. But this statute also does not clearly suit this situation, because interest imposed under § 44-1201 accrues as of the date the amount of damages becomes liquidated. See Lake Havasu Cmty. Hosp., 141 Ariz. at 377-78, 687 P.2d at 385-86. And "[a] claim is liquidated `if the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance upon opinion or discretion.'" Id. at 378, 687 P.2d at 386, quoting Ariz. Title Ins. & Trust Co. v. O'Malley Lumber Co., 14 Ariz.App. 486, 496, 484 P.2d 639, 649 (1971); cf. Alta Vista Plaza, Ltd. v. Insulation Specialists Co., 186 Ariz. 81, 82-83, 919 P.2d 176, 177-78 (App.1995) (damages liquidated when value easily ascertainable). Application of this statute, therefore, would appear to demand a result at odds with our supreme court's decision in Calmat, which states that interest on a judgment for inverse condemnation "runs from the date of taking." 176 Ariz. at 196, 859 P.2d at 1329.
¶ 21 Given that neither statute plainly applies and Dos Picos is constitutionally entitled to interest, this court is faced with either applying a related statute that does not on its face control or relying on a more general statute and interpreting one of its terms in a manner contrary to established precedent. See id. at 192, 859 P.2d at 1325 (landowner entitled to compensation in inverse condemnation even when no specific statutory procedure governs). Based on guidance provided in Calmat, we elect the former. In Calmat, our supreme court articulated that, when doing so will further legislative intent, we may apply a direct condemnation statute to an inverse condemnation action. Id. at 193, 859 P.2d 1323.
¶ 22 It is well established that direct and inverse condemnation are considered similar procedures and many portions of the direct condemnation statutes can apply to inverse condemnation actions as well. See id.; see also Salaz, 157 Ariz. at 253, 756 P.2d at 350; State v. Hollis, 93 Ariz. 200, 203, 379 P.2d 750, 751 (1963). And at oral argument, Dos Picos agreed that the purpose of requiring the payment of interest in direct and inverse condemnation actions is the same. Although we acknowledge that statutes governing direct condemnation do not apply universally to inverse condemnation, we can see no reason why § 11-269.04 otherwise would not apply. The legislature exempted direct condemnation actions from § 44-1201(A) and mandated that the prime rate should apply even after judgment. By doing so, the legislature exhibited an intent to treat differently from other civil judgments those involving eminent domain. See A.R.S. § 44-1201(B). Because inverse condemnation "`is still in the nature of a condemnation of a private property right by the State under the sovereign right of eminent domain,'" we reasonably can infer the legislature intended to remove it from § 44-1201 as well. Calmat, 176 Ariz. at 193, 859 P.2d at 1326, quoting Hollis, 93 Ariz. at 203, 379 P.2d at 751.
¶ 23 Additionally, "[a]lthough the right to interest is intertwined with the right to just compensation, the right to interest is procedural because it relates only to enforcement of the substantive rightjust compensation." State ex rel. Miller v. Beardsley Indus. Prop., 173 Ariz. 19, 24, 839 P.2d 439, 444 (App.1992). And direct condemnation statutes governing procedural matters are more freely applied to inverse condemnation actions than those governing substantive rights. See Hollis, 93 Ariz. at 203, 379 P.2d at 751 (applying direct condemnation statute in procedural area of venue); see also Calmat, 176 Ariz. at 193, 859 P.2d at 1326 (distinguishing between direct application of procedural versus substantive statutes).
¶ 24 Although we normally will adhere strictly to statutory language, our supreme court has clearly indicated that in some instances, direct and inverse condemnations are essentially two sides of the same coin. See Calmat, 176 Ariz. at 193-94, 859 P.2d at 1326-27. It is therefore the duty of an interpreting court to look beyond the express language of a direct condemnation statute and "consider [it]s effects and consequences, as well as its spirit and purpose" to determine whether it should govern an inverse condemnation action as well. Id. at 193, 859 P.2d 1323. The parties have not identified, nor can we see, any reason for excluding inverse condemnation from § 11-269.04; its exclusion would appear to accomplish *861 no purpose. Cf. id. at 193-94, 859 P.2d 1323 (timing difference inherent between direct and inverse condemnation rendered direct compensation valuation statute inadequate compensation in inverse condemnation). Accordingly, we conclude Dos Picos is entitled to interest at a rate consistent with § 11-269.04 beginning April 3, 2008, the date on which the trial court found the taking had occurred.
Attorney Fees
¶ 25 Dos Picos has requested its attorney fees on appeal. There being no basis for an award of such fees, we deny its request.
Disposition
¶ 26 The trial court's order granting Dos Picos its litigation expenses is vacated, as is its award of interest on the judgment, and the case is remanded for a redetermination of interest consistent with this decision.
CONCURRING: JOSEPH W. HOWARD, Chief Judge, and VIRGINIA C. KELLY, Judge.
NOTES
[1] We previously issued an opinion in this case, filed August 31, 2010. Pursuant to Pima County's request for clarification of the relief granted, we have vacated that opinion and issue this one in its place.
[2] In its ruling, the trial court acknowledged that Tucson Mountain Park "encompass[ed]" Dos Picos's property and that the county in the past had targeted the land for acquisition to become part of the park. Similarly it noted that the county had indicated "no access to the southern portion of the property was acceptable." Acknowledgment of these facts, however, is far removed from stating that the county physically took the land and incorporated it into the park.
[3] For the same reason, it is immaterial that Dos Picos argued to the trial court that the county's actions constituted a physical taking.
[4] Even had the trial court expressly found a physical and not a regulatory taking had occurred, this would be a conclusion of law subject to our de novo review. See Mutschler v. City of Phoenix, 212 Ariz. 160, ¶¶ 8-9, 129 P.3d 71, 73 (App.2006) (reviewing de novo trial court's summary judgment on issue of taking); see also Gammoh v. City of La Habra, 395 F.3d 1114, 1122 (9th Cir.2005) (summary judgment ruling that no regulatory taking occurred subject to de novo review); City of Sherman v. Wayne, 266 S.W.3d 34, 46 (Tex.App.2008) (whether taking occurred ultimately question of law).
[5] In a notice of supplemental authority filed after oral argument, Dos Picos asserts its property is in a "No-Fence District" and asks this court to take judicial notice of this fact. Even were we to do so, however, the code regulation it cites expressly permits fencing, merely placing restrictions on the type and height of fence an owner may build. See Pima County Code § 18.67.050(D). Accordingly, any argument based on the existence of an alleged "No-Fence District" lacks merit.
[6] On the contrary, it would appear that the absence of a road leading to the southern portion of Dos Picos's land would serve as a deterrent rather than an inducement for members of the public to enter and trespass on the property.
[7] Dos Picos takes issue with the county's reliance on the absence of factual findings regarding the county's motivations, arguing "there was no need to present th[is] issue." Although the distinction between a regulatory and a physical taking may have been irrelevant for purposes of valuation, it was relevant under § 11-972. Accordingly, the burden was on Dos Picos, as the party seeking attorney fees and expenses, to prove this statute applied, which, in turn, meant proving the taking was a physical one. See McMurray, 220 Ariz. 71, ¶ 7, 202 P.3d at 539-40.
[8] Pima County's purported desire to incorporate the land into Tucson Mountain Park is not the only motive the record would support. Pima County's decisions restricted the building of a road across an environmentally protected ridgeline and declined to use or reprioritize county resources to build a road across county-owned, environmentally protected land. Environmental protection, cost-containment, and the prudent management of human and fiscal resources would appear to be other potential motives for the county's actions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726141/ | 721 So. 2d 473 (1998)
Angela Hammer Butz, wife of/and Russell BUTZ
v.
James P. LYNCH, the Estate of Patrick O. Lynch, State Farm Mutual Automobile Insurance Company, and State Farm Fire and Casualty Company.
No. 98-C-1247.
Supreme Court of Louisiana.
June 19, 1998.
Denied.
CALOGERO, C.J., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743810/ | 436 So. 2d 311 (1983)
SANTA ROSA MARBLE, INC. and United States Fidelity & Guaranty Co., Appellants,
v.
Raul UBIETA and the Division of Workers' Compensation, Appellees.
No. AQ-29.
District Court of Appeal of Florida, First District.
August 5, 1983.
Rehearing Denied September 6, 1983.
Summers Warden, Miami, for appellants.
Herman M. Klemick, Miami, for appellees.
SHIVERS, Judge.
In this workers' compensation appeal, the employer/carrier (E/C) seeks reversal of an order awarding claimant's attorney a fee. The order which is now before us for review awarded claimant's attorney a $4,000 fee for services rendered up to the date of the hearing and also reserved jurisdiction for "purposes of determining a reasonable attorney's fee owing to claimant's attorney for any future wage loss benefits obtained for the Claimant." The E/C raises several points on appeal, only one of which we find merits discussion. Specifically, the E/C contends that the order in question must be reversed because it erroneously retains jurisdiction to award a reasonable attorney's fee in the future based on future wage loss benefits which may be paid to claimant.
Reservation of jurisdiction to award attorney's fees based on future compensation which may be paid to claimant is improper. In Matera v. Gautier, 133 So. 2d 732 *312 (Fla. 1961), the Florida Supreme Court reversed an attorney's fee award which was based upon a percentage of annual disability benefits paid to claimant, stating that:
The fee represents compensation for services rendered up to the date of the hearing. There is no reason, either in logic or in law, for not determining the fee to which the attorney is entitled as of that date and awarding it in a lump sum... . To award an indeterminable fee on the basis of future compensation is to place too great an emphasis on the size of the award and insufficient emphasis on the other elements which go into the determination of the attorney's fee to be awarded.
See also City of Leesburg v. Padgett, 397 So. 2d 732 (Fla. 1st DCA 1981). Since it was improper for the deputy commissioner to retain jurisdiction to make a fee award in the future, we strike section 2 of the decretal portion of the order which attempts to do so and affirm the order in all other respects.
ROBERT P. SMITH, Jr. and NIMMONS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726134/ | 970 So. 2d 827 (2007)
LEE
v.
STATE.
No. 1D07-3106.
District Court of Appeal of Florida, First District.
December 10, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743858/ | 771 So. 2d 83 (2000)
STATE of Louisiana in the Interest of J.K.
No. 2000-CJ-2637.
Supreme Court of Louisiana.
October 6, 2000.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264899/ | 261 N.J. Super. 468 (1992)
619 A.2d 262
NATIONAL AMUSEMENTS, INC., PLAINTIFF,
v.
NEW JERSEY TURNPIKE AUTHORITY AND HERBERT I. OLARSCH, DEFENDANT.
Superior Court of New Jersey, Law Division Essex County.
Decided June 26, 1992.
*470 Morris M. Schnitzer, for plaintiff.
Martin J. Milita, Sills, Cummis, Zuckerman, Radin Tischman, Epstein & Gross, Attorneys), for defendants.
WEISS, J.S.C.
Plaintiff filed its second amended complaint on December 17, 1990. The complaint contains four counts; Count One seeks damages from defendant New Jersey Turnpike Authority ("Turnpike Authority") for inverse condemnation; Counts Two, Three and Four seek damages from both the Turnpike Authority and Defendant Herbert Olarsch ("Olarsch"). Count Two alleges tortious interference with an economic advantage; Count Three alleges unjust enrichment and Count Four alleges economic duress. Defendants have moved to dismiss Counts Two, Three and Four pursuant to R. 4:6-2(e) for failure to state a claim upon which relief can be granted.
Both parties have submitted to the court documents not contained in the pleadings. Since the court's decision relies on *471 facts beyond those contained in the pleadings, defendants' motion to dismiss is converted into a motion for summary judgment. R. 4:6-2.
The following facts are undisputed. Plaintiff owns an 18.74 acre tract of land in Newark, New Jersey ("Theater Property"). The land is bounded by Foundry Street, the New Jersey Turnpike and State Highway Routes 1 and 9. Plaintiff operated a drive-in movie theater on the property from approximately 1954 to 1985. Sometime in 1984, Plaintiff began plans to develop this property as a state-of-the-art, 12 screen movie theater complex. On February 4, 1985 it obtained site plan approval and on March 6, 1985 a building permit was issued by the City of Newark. Plaintiff proceeded to demolish the existing structures and to grade the property in preparation for construction.
In or about June 1985, the Turnpike Authority announced a proposal to widen various sections of the New Jersey Turnpike. By letter dated July 5, 1985, the Turnpike Authority notified plaintiff that its proposed project would require the purchase of a portion of plaintiff's property. By letter dated August 22, 1985, the Turnpike Authority informed plaintiff that its preliminary engineering designs for the proposed project were not yet complete and advised plaintiff not to proceed with the development of its property until a final right of way line was established.
As you and your organization are aware, due to the fact that National Amusements, Inc. was about to construct its project on the subject parcel, the Turnpike Authority felt it necessary to forward your organization a notice of taking as soon as possible. As the preliminary engineering design for the entire area is not as yet completed, there is a possibility that the right-of-way line, as forwarded to you, may be modified. Therefore, National Amusements, Inc. is advised, not to proceed with any further development of the remaining portion of the property until a final, fixed property right-of-way line is established for the subject acquisition by the New Jersey Turnpike Authority.
On September 16, 1985 plaintiff responded to the Turnpike's letter, setting forth its version of prior meetings held with Turnpike personnel and the supposed cooperative progress that the two groups were making. The letter then stated:
*472 Until the Turnpike Authority commits itself, officially and legally, to a definite and binding course of action with respect to our property, there is no assurance that the Authority will take any part of our Theatre property. Under these circumstances, we are entitled, as property owners, to proceed with the full construction of a Multiplex Theater, as nearly on schedule as possible, and we intend to do so.
In a letter dated September 23, 1985, the Turnpike Authority further advised plaintiff that the commencement of any construction by plaintiff would be done at plaintiff's risk.
To commence your construction operations after we specifically advised you of our intention can only be interpreted as a bad faith attempt to inflate the valuation of the property. This courtesy was extended to you as it was our intention for you to avoid the expenditure of funds for the short period between the date of my letter and finalization of the Turnpike Authority's plans. Should you still continue to commence construction of your project, you do so at your own peril. (Emphasis added)
In a letter dated October 4, 1985, plaintiff advised the defendants that plaintiff intended to commence construction of a theater complex on the portion of plaintiff's property excluded from the proposed taking. By letter dated October 18, 1985 the defendants again advised plaintiff that commencement of the construction would be at plaintiff's "own risk." Plaintiff built a 10 screen movie theater complex on the property, rather than the proposed 12 screen theater complex.
Upon completion of its engineering designs, the Turnpike Authority concluded that the proposed project would not require the condemnation of any portion of plaintiff's property. The Turnpike Authority communicated this decision to plaintiff on or about March 14, 1990.
The communications between plaintiff and the Turnpike Authority regarding the proposed project and the subsequent decision not to condemn a portion of plaintiff's property were executed by defendant Olarsch in his capacity as Counsel for the Turnpike Authority.
The following are the sole issues to be decided by this motion for summary judgment:
*473 1. As a matter of law, do Counts Two, Three and Four of plaintiff's second amended complaint state a claim upon which relief may be granted?
2. Does the N.J. Tort Claims Act, N.J.S.A. 59:1-1 immunize each of the defendants from liability for the tort claims alleged in Counts Two, Three and Four of plaintiff's second amended complaint?
A. TORTIOUS INTERFERENCE WITH AN ECONOMIC ADVANTAGE
Count Two of plaintiff's second amended complaint seeks damages for defendants' alleged tortious interference with plaintiff's economic advantage. According to plaintiff, the defendants were officially notified of plaintiff's construction plans on several occasions during the construction approval process, however the defendants never objected to the construction, nor did they warn the plaintiff that the project to widen the New Jersey Turnpike was under study and consideration.
It is undisputed that the defendants officially notified the plaintiff of the proposed widening project and possible taking of a portion of plaintiff's property on July 5, 1985. This was several months after plaintiff's plans to build a 12 screen movie theater complex were finalized and publicly announced, and after the drive-in movie theater on the property was demolished in preparation for the new construction. Prior to the July 5, 1985 notification of taking by defendant, the parties had numerous meetings in which there were discussions concerning the Turnpike's plans vis a vis plaintiff's property. The defendants notified plaintiff of their decision not to take any portion of plaintiff's property on March 14, 1990, almost five years after defendants initially notified plaintiff of the proposed taking. Although plaintiff did build a 10 screen movie theater complex on the property, plaintiff contends that the defendants tortiously interfered with plaintiff's construction. Said interference allegedly caused plaintiff to lose the economic benefits associated *474 with the ownership and operation of a 12 screen movie theater complex during the nearly five year period that the defendants contemplated the taking.
Plaintiff, in support of its allegation of an interference with "economic advantage," cites Printing Mart v. Sharp Electronics, 116 N.J. 739, 563 A.2d 31 (1989). In Printing Mart the Court set forth the elements of the cause of action. First, the complaint must demonstrate that the plaintiff was in "pursuit" of business. Second, the complaint must allege facts claiming that the interference was done intentionally and with malice. For the purposes of this element of the cause of action "malice is defined to mean that the harm was inflicted intentionally and without justification or excuse". id. at 751, 563 A.2d 31. Third, the complaint must allege facts leading to the conclusion that the interference caused the loss of the perspective gain; and fourth, the complaint must allege that the injury caused damage. id. at 751, 563 A.2d 31.
In the context of the present motion the court's inquiry is directed to the second element of the cause of action, i.e., that the acts of the defendants which interfered with plaintiff's economic advantage were done intentionally and with malice. Viewing the facts most favorably to the plaintiff, as the court must do in a motion for summary judgment, and giving the plaintiff the benefit of all doubts, the critical issue is whether the Turnpike's letter of August 22, 1985 sent by Olarsch to plaintiff was done with the necessary "malice" required to sustain an action for intentional interference with the perspective economic relation. It is the defendants' behavior in the context of the facts of the case which is critical. Did the defendants act intentionally and wrongfully without justification?
There is no question that the defendants' acted intentionally. The letter of August 22 was sent by Olarsch on behalf of the Turnpike to plaintiff. Was this a wrongful act without justification or excuse?
*475 ... The essence of the cases in this field is that in adjudging whether what the defendant has done is actionable, i.e., not done in the exercise of an equal or a superior right, the ultimate inquiry is whether the conduct was "both injurious and transgressive of generally accepted standards of common morality or of the law." ... In other words, was the interference by defendant "sanctioned by `rules of the game'." ... There can be no higher test of liability in this area than that of the common conception of what is right and just dealing under the circumstances. Not only must defendant'[s] motive and purpose be proper but also must be the means. Sustick v. Slatina, 48 N.J. Super. 134, 144, 137 A.2d 54 (App.Div. 1957)
The undisputed facts in this case are that the Turnpike in early 1985 announced plans for proposed widening of its highway. Thereafter, there were series of meetings between Turnpike and plaintiff's representatives, something which is not uncommon in situations such as this. These meetings were followed by a series of letters between the parties. It is the letter of August 22 written by Olarsch on behalf of the Turnpike to plaintiff which is the nub of plaintiff's complaint in this matter.
In its August 22 letter to plaintiff, after pointing out that the Turnpike's design was merely preliminary and might be modified in the future, it advised plaintiff not to proceed with further development of his property until final plans for fixing the right of way were established. The letter is written in terms of a suggestion, i.e., "advised". In plaintiff's September 16 reply to that letter it rejected this "advice" because of the lack of guarantee that the Turnpike would take any part of plaintiff's property and stated that it intended "to proceed with the full construction of a Multiplex Theater as nearly on schedule as possible." It was to this letter that the Turnpike responded that it could only interpret plaintiff's actions "as a bad faith attempt to inflate the valuation of the property". The letter concluded by stating "should you still continue to commence construction of your project, you do so at your own peril." In its subsequent letter of October 18 the Turnpike stressed that their plans were only preliminary plans and that if *476 plaintiff proceeded with construction of the theater project "you do so at your own risk".
The ultimate inquiry is whether the [defendant's] conduct was "both injurious and transgressive of generally accepted standards of common morality or of law." In other words, was the interference by defendant[s] "sanctioned by the rules of the game."
Printing Mart, 116 N.J. 739, 757, 563 A.2d 31 quoting Sustick v. Slatina, 48 N.J. Super. 134, 144, 137 A.2d 54 (App.Div. 1957); see also Baldasarre v. Butler, 254 N.J. Super. 502, 526, 604 A.2d 112 (App.Div. 1992)
This is a case of eminent domain. Defendants' verbal and written communications with plaintiff merely set forth the Turnpike's position with respect to the proposed taking of plaintiff's property and the corresponding issue of compensation. Plaintiff was not legally bound by the defendants' communications and was free to proceed with construction as plaintiff deemed appropriate. Plaintiff has pointed to no facts which inhibited it from carrying if ever out its construction plans.
To accept plaintiff's argument that the letter of August 25, 1985 from the Turnpike transgressed generally accepted standards of "socially acceptable conduct" would mean that every time a lawyer sets forth his client's position in a transaction and tells the other party that acting contrary to the lawyer's client's position would be considered an act of "bad faith", and there is modification of plans by the other party a cause of action for tortious interference would arise. Plaintiff has cited the court to no case which supports such a theory. The "rules of the game" sanctioned defendants' conduct. Defendants' had a perfect right to set forth their position in responses to plaintiff's position as contained in the letter of September 16, 1985, just as plaintiff had a perfect right to proceed with its construction plans. Each side understood the risk it ran by continuing in their respective courses of conduct. Each was free to make its own business and legal judgment as to the validity of its position in the matter. Plaintiff was under no legal compulsion *477 to reduce its plans for 12 theaters to 10 theaters. This was a decision it made and plaintiff may not now complain that the Turnpike must compensate it for its own decision on the facts in this case.
At oral argument plaintiff attempted to justify its scaling down of its project on the grounds of "proportionality." If only $500,000.00 were at stake then plaintiff might have made a different decision and proceeded with its 12 screen theater. However, because a much larger investment was required to build the 12 screen theater and plaintiff did not want to run the risk of not receiving this amount in condemnation, it made a business decision to proceed with the 10 screen theater. This decision was plaintiff's decision to make. The fact that Olarsch sent the August 22 letter which set forth the legal position that the Turnpike might take in a condemnation proceedings did not require the plaintiff to accept the Turnpike's statements as binding on it. In its letter of September 16, 1985 plaintiff clearly set forth its position that until the Turnpike "commits itself, officially and legally, to a binding cause of action " plaintiff was not bound by the Turnpike's actions and proceeded with construction.
In the case at bar, defendants' actions were not wrongful. The defendants did no more than what they were statutorily authorized to do plan and build a road project. Plaintiff had a choice. Plaintiff could wait for the Turnpike to determine what portion of plaintiff's property, if any, they were going to condemn, or plaintiff could proceed with construction.
The court will grant defendants' motion for summary judgment dismissing Count Two of the second amended complaint.
B. UNJUST ENRICHMENT
Count Three of plaintiff's second amended complaint seeks damages for defendants' unjust enrichment. Plaintiff claims that defendants were unjustly enriched by the hypothetical savings the Turnpike Authority would realize in the future if *478 the Turnpike Authority condemned a portion of plaintiff's property in an unimproved state. The speculative and ambiguous nature of this claim does not warrant a remedy in damages.
Unjust enrichment is not an independent theory of liability, but is the basis for a claim of quasi-contractual liability. The duty which forms the foundation of a quasi-contractual obligation rests on the equitable principle that a person shall not be allowed to enrich himself at the expense of another. Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 108, 219 A.2d 332 (App.Div. 1966). To recover on a theory of quasi-contract, plaintiff must prove that the defendants were "enriched, ... received a benefit, and that retention of the benefit without payment therefor would be unjust." Id. at 109, 219 A.2d 332.
In the case at bar, the defendants received no benefit from plaintiff. The Turnpike Authority never purchased plaintiff's property, nor did it derive any use or definitive benefit therefrom. Since the defendants received no benefit from the plaintiff or the plaintiff's property, there can be no quasi-contractual liability. This court will therefore grant the defendants' motion for summary judgment dismissing Count Three of plaintiff's second amended complaint.
Assuming, arguendo, that plaintiff could prove a substantive claim of unjust enrichment, plaintiff would still not recover under a theory of quasi-contractual liability. Restitution for unjust enrichment is an equitable remedy, available only when there is no adequate remedy at law. See generally State v. Singletary, 153 N.J. Super. 505, 380 A.2d 302 (Law Div. 1977) (finding that a court can not exercise equitable jurisdiction when there is an adequate remedy at law). To the extent that the defendants' conduct injured plaintiff, the appropriate legal remedy would be an award of inverse condemnation, not unjust enrichment. A finding that the defendants were unjustly enriched by the Turnpike Authority's decision not to condemn a portion of plaintiff's property would set a dangerous *479 precedent that could adversely affect public finances and exert a chilling effect on public works projects throughout the State.
C. ECONOMIC DURESS
The Fourth Count of plaintiff's second amended complaint seeks damages for wrongful economic duress. Plaintiff alleges that it suffered damages when defendants' actions caused plaintiff to permanently abort its project to build a "state of the art, 12 screen, indoor luxury theatre on the entire Theatre Property."
Although New Jersey courts recognize economic duress as a defense or a basis for contract recision, the courts do not yet recognize economic duress as an affirmative tort action in New Jersey. Even if this court were to expand current New Jersey tort law to include an affirmative cause of action for economic duress, plaintiff has not pled facts sufficient to support a finding of economic duress.
"Merely taking advantage of another's financial difficulty" or "driving a hard bargain" is not duress. Continental Bank of Pa. v. Barclay Riding Acad., 93 N.J. 153, 177, 459 A.2d 1163 (1983). Duress requires "an assent by one party to an improper or wrongful demand by another under circumstances in which the former has little choice but to accede to the demand." Woodside Homes, Inc. v. Town of Morristown, 26 N.J. 529, 544, 141 A.2d 8 (1958).
In the case at bar, defendants' actions were not wrongful. The defendants did no more than what they were statutorily authorized to do plan and build a road project. As in all cases where it plans a highway project the Turnpike notified property owners of its proposed plans. Each property owner retained the right to proceed as it saw fit. The fact that a property owner may change its plans for the property because *480 of concern as to the final decision by the Turnpike does not constitute redressable duress.
If plaintiff was injured by the defendants' decision not to condemn plaintiff's property, plaintiff's remedy is an action for inverse condemnation, not an action for economic duress. Defendants' motion for summary judgment dismissing Count Four of Plaintiff's second amended complaint will therefore be granted.
D. TORT CLAIMS ACT
Assuming, arguendo, that summary judgment was not granted on the Second, Third and Fourth counts of the second amended complaint, the Tort Claims Act, N.J.S.A. 59:1-1 et seq. would immunize the defendants from liability. The Turnpike Authority is a "public entity" within the meaning of N.J.S.A. 59:1-3. Defendant Olarsch is a "public employee" within the meaning of N.J.S.A. 59:1-3. The Turnpike Authority employed Olarsch as an attorney during the period of controversy in this case. All communications between plaintiff and Olarsch with respect to the proposed taking of plaintiff's property were within the scope of Olarsch's employment. It was Olarsch's responsibility to reconcile the conflicting construction plans of plaintiff and the Turnpike Authority and to communicate that reconciliation to plaintiff.
Insofar as plaintiff fails to allege sufficient facts to support a finding of criminal, fraudulent, malicious or wilful misconduct by defendant Olarsch, the following immunities shield Olarsch from any potential tort liability:
1. Discretionary Acts Immunity, N.J.S.A. 59:3-2 ("A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him....");
2. Execution or Enforcement of Laws Immunity, N.J.S.A. 59:3-3 ("A public employee is not liable if he acts in good faith in the execution or enforcement of any law....");
3. Misrepresentation Immunity, N.J.S.A. 59:3-10 ("A public employee acting in the scope of his employment is not liable for an injury caused by his representation.");
*481 Since a public entity can not be held liable "for an injury resulting from an act or omission of a public employee where the public employee is not liable," N.J.S.A. 59:2-2(b), neither Olarsch, nor Turnpike Authority could be held accountable for the torts alleged in Counts Two, Three and Four of plaintiff's second amended complaint.
The court has signed the form of order submitted by defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363277/ | 162 Ga. App. 674 (1982)
292 S.E.2d 558
TURNER
v.
WOOD.
63836.
Court of Appeals of Georgia.
Decided June 22, 1982.
William D. Smith, for appellant.
Paul C. Myers, for appellee.
CARLEY, Judge.
This is the second appearance of this garnishment case before us. In Turner v. Wood, 159 Ga. App. 850 (285 SE2d 589) (1981), appellant-defendant's appeal was dismissed as premature because there was no entry of a final order of the trial court disbursing the funds answered into court by the garnishee. The instant appeal is *675 from the final order of disbursal, and appellant asserts as error the denial of his traverse of appellee's garnishment affidavit.
1. Appellee's motion to dismiss the instant appeal is denied. Herring v. Herring, 138 Ga. App. 145, 146 (1) (225 SE2d 697) (1976).
2. Appellee's garnishment affidavit was filed on January 30, 1981, and alleged that appellant was $9,706.32 in arrears on a child support judgment. In related enumerations of error, appellant asserts, in essence, that the trial court erred in failing to find that "the amount claimed due" by appellee on the child support judgment was excessive. Code Ann. § 46-403 (a).
It is urged that the trial court erred in finding that the garnishment affidavit, insofar as it alleged arrearages in instalment child support payments for 1971, 1972, and 1973, did not seek enforcement of a "dormant" judgment. "[W]ith respect to instalment-payment alimony judgments, instalments that became due within seven years preceding the issuance and recording of the execution are collectible and enforceable, and instalments that are dormant, having become due seven to ten years prior to the filing of a revival action, are subject to being revived through the applicable statutory revival procedure." Bryant v. Bryant, 232 Ga. 160, 163 (205 SE2d 223) (1974).
It appears that the basis for the trial court's finding that the instalments for 1971, 1972, and 1973 were not "dormant" was the fact that appellee had instituted two garnishment proceedings in 1975 to collect instalments then owing under the judgment and that this "constituted an active and bona fide effort on the part of [appellee] to enforce her judgment so as to prevent the dormancy of the judgment upon which said garnishments were issued." The trial court made no finding that "written notice" of appellee's 1975 "bona fide efforts" to enforce the judgment had been filed with the clerk of the court and had been entered by the clerk on the general execution docket. Apparently, the trial court was of the opinion that such entry on the general execution docket was unnecessary to prevent dormancy because, in his conclusion of law to the effect that institution of garnishment proceedings in 1975 commenced the running of a new seven-year period within which the underlying judgment would not become dormant, the trial court quoted the following language from Hollis v. Lamb, 114 Ga. 740, 745-746 (40 S.E. 751) (1901): "[T]he dormancy of a judgment is prevented either by proper entries every seven years, duly recorded on the execution docket, or by a bona fide public effort on the part of the plaintiff in fi. fa. to enforce his execution in the courts of the country, at such times and periods that seven years will not elapse between such attempts, or between such an attempt and a proper entry . . . [E]ither proper entries on the *676 execution duly entered on the execution docket, or bona fide attempts to enforce the same against the property of the defendant within the stated period, will be sufficient to prevent dormancy."
The trial court erred to the extent that Hollis served as the predicate for the conclusion that the "dormancy" of the 1971, 1972, and 1973 instalments was not an issue in the instant case. Ga. L. 1955, p.417 has superseded the holding in Hollis that a mere bona fide public effort on the part of a judgment creditor to enforce his judgment in the courts without more will prevent the underlying judgment from becoming dormant. The 1955 statute amended Code Ann. § 110-1001 (3) so as to require not only that a bona fide public effort be made, but also that "due written notice of such effort, specifying the time of the institution of the suit or proceedings, the nature thereof, the names of the parties thereto and the name of the court in which it is pending, [be] filed by the plaintiff in execution or his attorney at law with the clerk and entered by said clerk on the general execution docket . . ." Ga. L. 1955, pp. 417, 418-419. Therefore, the trial court erroneously concluded that the mere institution of the 1975 garnishment proceedings, without the additional act of filing of notice thereof with the clerk and entry on the general execution docket, was sufficient to preclude a finding that the 1971, 1972, and 1973 instalments were "dormant."
However, any error in the underlying premise for the trial court's conclusion that the dormancy of the 1971, 1972, and 1973 instalments was not in issue does not require reversal of the instant case. This is true because, although the underlying premise may have been erroneous, the ultimate conclusion was not. "[P]ayments appellant made during the 10 years following the divorce were more than adequate to cover the amount of any arrearages dating from over seven years in the past. Appellee has the right to consider those payments as having been applied to the oldest amounts owing. Code Ann. § 20-1006. It follows that no amount currently owing and unpaid is more than seven years old and no dormancy issue is presented." Wood v. Wood, 239 Ga. 120, 121 (236 SE2d 68) (1977).
For the foregoing reasons, the trial court's ultimate conclusion that any arrearages on the 1971, 1972, and 1973 instalments were collectible and enforceable in the instant garnishment action was a correct one, although the premise for that conclusion was not. It follows that the trial court did not err in considering any arrearages on those instalments in the context of the instant garnishment action. "It is well-settled law that a correct judgment will be affirmed, although the judge may have based it on the wrong grounds or given the wrong reasons for it." White v. State, 71 Ga. App. 512, 513 (31 SE2d 78) (1944).
*677 3. In support of the contention that the trial court erred in failing to find that the $9,706.32 in arrearages alleged in appellee's affidavit was excessive, appellant further asserts that, because of emancipation of the children and other circumstances, his yearly obligations on the judgment, the base figures from which the arrearages were determined, were not so great as that implicitly found by the trial court. See generally Clark v. Clark, 150 Ga. App. 602 (258 SE2d 282) (1979). The evidence concerning appellant's yearly obligations under the judgment, while somewhat confusing, was sufficient to authorize the trial court's findings. Compare Thacker Const. Co. v. Williams, 154 Ga. App. 670 (269 SE2d 519) (1980). The trial court did not err in failing to find that $9,706.32 in arrearages alleged in appellee's affidavit was excessive.
Judgment affirmed. Quillian, C. J., and Shulman, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363298/ | 249 Ga. 561 (1982)
292 S.E.2d 681
THE STATE
v.
MEMINGER.
38316.
Supreme Court of Georgia.
Decided June 22, 1982.
Beverly B. Hayes, District Attorney, H. Jeff Lanier, Assistant District Attorney, for appellant.
Tony H. Hight, Charles T. Shean III, Drew Tanney, amicus curiae.
*565 Richard T. Taylor, for appellee.
JORDAN, Chief Justice.
This case concerns the applicability of Code Ann. § 27-1303.
The defendant was convicted of armed robbery in Laurens County Superior Court and given a life sentence.
Meminger's case was set for trial during the week of May 5, 1980. *562 On Friday, April 25, 1980, Meminger filed two discovery motions: one pursuant to Brady v. Maryland and a notice to produce pursuant to Code Ann. § 38-801. In the motions, Meminger requested to have disclosed and produced all results, reports, summaries, etc. of all forensic, scientific or other tests or examinations of any tangible items relating to the case. On Tuesday, April 29, 1980, Meminger was served with copies of the scientific reports, and on May 1, 1980, he was arraigned.
At trial, the state sought to introduce testimony regarding these reports, and the defense objected contending that § 27-1303 precluded such testimony as Meminger had filed his requests for discovery prior to arraignment and as the state failed to furnish him copies of these reports ten days prior to trial.
The trial judge overruled the objection to the testimony, but on appeal, the Court of Appeals reversed the conviction ruling that as a result of the state's failure to comply with a "timely written request" under § 27-1303, the scientific reports and the testimony thereon must be excluded, and that, in this case, the failure to exclude was prejudicial error. Meminger v. State, 160 Ga. App. 509 (287 SE2d 296) (1981). The state appeals. We granted certiorari and reverse.
1. We first address the question of whether either the Brady motion or the motion to produce constitutes a "written request" for the purposes of Code Ann. § 27-1303 (a).
Code Ann. § 27-1303[1] allows, for the first time, the pre-trial discovery in criminal cases of scientific reports, whether inculpatory or exculpatory, which the state intends to use in prosecution of the case-in-chief or in rebuttal. It mandates the production of those items at least 10 days prior to trial following a timely written demand.
Neither the Brady motion filed in this case requiring exculpatory matter to be furnished, nor the notice to produce under Code Ann. § 38-801 (g), mentioned Code Ann. § 27-1303 or in any other way informed the state that the defense was proceeding upon or *563 relying upon the provisions of this discovery procedure.
A pleading to constitute a request for discovery under § 27-1303 should give the state reasonable notice that the defense desires the disclosure of all available scientific reports no later than ten days before trial; this notice would be adequate if the defense specifically refers to § 27-1303, or if it makes clear that scientific reports, whether inculpatory or exculpatory, should be furnished prior to the ten-day limit.
However, the state admits that it treated the Brady Motion as a request for scientific reports pursuant to § 27-1303, and that, consequently, it provided the scientific reports to the defendant.
This action moves us to reach the crux of the problem in this case, i.e., what constitutes a "timely written demand" by the defense.
2. Code Ann. § 27-1303 provides that if a timely written demand has been made and if the report is available to the district attorney, then he must furnish the report or reports to the defense at least ten days prior to the trial of the case.
In regard to when a report is "timely" § 27-1303 (a) provides: "This request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. It shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial if such written request is not made at arraignment."
The "spirit and reason" of this statute is to provide for discovery of scientific reports in criminal cases, an opportunity which until the enactment of this statute had been withheld from criminal defendants. (Some reports could previously have been discovered under the authority of Brady v. Maryland). This discovery statute was obviously designed to implement, not to impede, the fair and speedy determination of cases. Code Ann. § 27-1303 highlights this purpose by calling for the scientific reports to be provided the defendant at least ten days prior to the trial of the case.
The construction of the statute urged by Meminger, i.e., that a request made "at arraignment" is timely, and that consequently, any request preceding arraignment is timely, allows for absurd and contradictory results in the application of the statute.
For instance, if arraignment occurs five days before trial, there is obviously no way the prosecution may meet its burden of complying with the request at least ten days before trial. Under a literal interpretation of the statute, the prosecution would then be faced with the choice of either proceeding to trial with inadequate evidence or moving for a continuance and delaying the trial. This result could *564 occur even if the defense knew far in advance of ten days before trial that it needed to request discovery pursuant to § 27-1303.
In the light of the potentially absurd and contradictory results and of the opportunity for delay which could occur under the reading of the statute suggested by Meminger, we decline to follow such an interpretation.
We believe a correct interpretation involves looking to the statute as a whole. Specifically, the burden the statute places on the prosecution to provide the scientific reports to the defense sometime prior to ten days before trial can reasonably be viewed to modify the "at arraignment" or "any reasonable time prior to trial" language. This means that for a request to be timely, whether it is made "at arraignment" or at some other time, it must precede the tenth day before the trial of the case. Otherwise, it would be impossible for the state to comply with the statute.
In Blanchard v. State, 247 Ga. 415, 419 (276 SE2d 593) (1981), we reached a similar result using similar reasoning when construing Code Ann. § 27-1302, the companion statute to § 27-1303. In that case, we held that the "any reasonable period of time prior to trial language" of § 27-1302 "obviously must precede the period of ten days prior to trial." Blanchard v. State, supra, p. 419. The holding that a request must be made sometime prior to ten days before trial to be timely decreases chances for delay under the statute, furthers the purpose of the statute, and resolves some of the discrepancies which could lead to absurd and contradictory results.
In this case, Meminger was arrested on January 25, 1980, and indicted on January 30, 1980. Trial was set for May 5, 1980. On April 25, 1980, ten days prior to trial, counsel for Meminger, who had represented him since shortly after his arrest in January 1980, filed his request for discovery. The reports were provided by the prosecution six days prior to trial.
Under the above construction, such a request is not timely and does not mandate that the state meet the ten-day deadline. As the defense did not file a timely request, it was not error for the trial court to admit the testimony regarding the scientific reports.
Judgment reversed. All the Justices concur.
NOTES
[1] § 27-1303 (a) reads as follows: "In all criminal trials, felony and misdemeanor, the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. This request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. It shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial if such written request is not made at arraignment. If the scientific report is in the possession of or available to the district attorney, he must comply with this section at least 10 days prior to the trial of the case." (Ga. L. 1980, p. 1388). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363283/ | 6 Kan. App. 2d 709 (1981)
633 P.2d 1166
WILLIE MAE ROBINSON, Mother of Howard L. Robinson, Deceased, Appellant,
v.
FLYNN'S FERRY SERVICE, INC., Appellee.
No. 52,538
Court of Appeals of Kansas.
Opinion filed August 28, 1981.
Petition for review denied December 9, 1981.
Randy S. Stalcup, of Kidwell & Williamson, Chartered, of Wichita, for the appellant.
Harry L. Eddy, of Wichita, for the appellee.
Before SPENCER, P.J., SWINEHART and MEYER, JJ.
SPENCER, J.:
This is an appeal from judgment of the trial court which sustained the findings of the examiner and the workmen's compensation director in denying coverage under the Workmen's Compensation Act.
Claimant's brief contains six issues, only one of which was considered by the examiner, director and district court. That issue is whether decedent was an independent contractor, and thus not *710 covered by the act, or a "statutory employee" pursuant to K.S.A. 1980 Supp. 44-503. Accordingly, only this issue will be considered on appeal.
Howard L. Robinson was the president as well as owner-operator of Maize Flying Service, Inc. Maize was a small operation, and Mr. Robinson from time to time contracted with other companies to ferry planes. When he did so, any money received went to Maize.
In February, 1978, Mr. Robinson contracted with Flynn's Ferry Service, Inc., to deliver a Cessna 185 from Wichita to Vancouver, British Columbia, Canada. On the morning of February 23, 1978, he left Wichita and flew to Hays where he picked up his mother (the claimant herein). The two then flew to Hygiene, Colorado, where Mrs. Robinson was to visit a daughter who lived there. The carrying of passengers violated the manifest for this trip. Mr. Robinson then continued on toward Vancouver. Near Yakima, Washington, he encountered bad weather and the plane crashed. Mr. Robinson was killed.
Thomas Flynn, owner-operator of Flynn's Ferry Service, Inc., with whom Mr. Robinson had contracted, stated that the plane was to be delivered to West Coast Air Services, a Cessna distributor, in Vancouver. He had received a telex from Cessna headquarters in Winnipeg requesting a bid to ferry the plane. He made a bid and got the job. Since all of his pilots were busy and Robinson had been asking him for work, he orally contracted with Robinson to ferry the plane. In doing so, it was his understanding that he was contracting with Maize Flying Service, Inc. (As such, Mr. Robinson did not have to make the flight personally. Mr. Flynn thought that Robinson was the only pilot Maize had who was qualified, although there might have been another.)
Mr. Flynn stated that 40 to 50% of his business was the ferrying of planes. 96% of this was done by pilots he employed. Bids to his customers were based on a per mile rate, cost of return fare, fuel, and insurance if desired. Payment to his own pilots was based on 6 per mile, a per diem (usually $30), cost of fuel, and return fare. Contract pilots, such as Mr. Robinson, took the job for the total bid less 10% which Flynn took off the top. At the time of this accident, Flynn had no workmen's compensation coverage.
Karen Sissom, Mr. Robinson's fiance and bookkeeper for Maize, was also a pilot and had flown some contract jobs. She *711 stated that a contract pilot "would get the packet and the keys and then it was up to him when he departed and what route he flew and he was truly pilot in command. There was no control."
Mr. Robinson's mother filed a claim for workmen's compensation benefits against Flynn's Ferry Service, Inc. Based on the evidence set forth, the examiner denied the claim, finding that Mr. Robinson was an independent contractor rather than an employee or statutory employee. The director affirmed, as did the trial court.
The trial court stated, as its combined findings of fact and conclusions of law:
"1. That the issue to be decided is whether or not the decedent, Howard L. Robinson, was a statutory employee pursuant to K.S.A. (1980 Supp.) 44-503.
"2. That there is no dispute as to the facts in regard to this case and the court specifically finds that Maize Flying Service, Inc. contracted with Flynn's Ferry Service, Inc. relative to the flight in question and Howard L. Robinson was an employee of Maize Flying Service, Inc. and the only issue presented to this court is the application of the law to the facts and the court concludes that Howard L. Robinson was an independent contractor and not a statutory employee of the respondent as set forth in K.S.A. (1980 Supp.) 44-503."
Our scope of review is limited to questions of law. The question of whether a district court's judgment is supported by substantial evidence is one of law, and if, when viewed in the light most favorable to the party prevailing below, there is substantial evidence to support the factual findings of the district court, this court is bound by those findings and has no power to weigh the evidence or to reverse the final order of that court. Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981).
It is important to put the legal arguments into context. It is basic that to be entitled to compensation under the Workmen's Compensation Act, the claimant, or the person through whom the claim is made, must be an "employee" of an "employer." K.S.A. 1980 Supp. 44-501; K.S.A. 1980 Supp. 44-508(b). Thus, the question has often arisen whether the claimant is an independent contractor rather than an employee. If so, the act does not apply. See, e.g., Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P.2d 771 (1966).
Claimant does not here contend that Mr. Robinson was an employee under the tests traditionally applied to determine that issue. Instead, she contends he was an employee by operation of K.S.A. 1980 Supp. 44-503(a), which provides in part:
*712 "(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen's compensation act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workmen's compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed." (Emphasis supplied.)
Under this section coverage is extended to employees who would not ordinarily be considered within the common law definition of an employee. It is therefore often referred to as creating "statutory employees." Durnil v. Grant, 187 Kan. 327, 356 P.2d 872 (1960).
Despite the fact the record demonstrates the applicability of K.S.A. 1980 Supp. 44-503 was presented to the examiner, director and district court, respondent does not address that issue. Instead, it states:
"The claimant urges the Court to apply the Loaned Servant Rule to find that the pilot was in the position of an employee of Flynn's Ferry Service. The test of servitude must be met before the deceased can be transferred from the category of an independent contractor, to that of an employee."
Contrary to respondent's statement, there is no issue here of the loaned servant doctrine. It has been recognized there is a distinction between statutory employees and special (or loaned) employees. A statutory employee is such by statute and in derogation of common law. A special or loaned employee is a creature of the common law and becomes a regular employee under the Workmen's Compensation Act without the need of a statutory provision. Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 701, 433 P.2d 558 (1967). Thus, where the question is whether the claimant is a statutory employee "the test of servitude" applied under the common law becomes irrelevant. The matter is governed by the terms of the statute. The bulk of respondent's brief is therefore immaterial to the issue of this case.
It has been stated that the principal purpose of K.S.A. 1980 Supp. 44-503(a) is:
"`[T]o give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal *713 as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.'" Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 315, 564 P.2d 521 (1977), citing Hoffman v. Cudahy Packing Co., 161 Kan. 345, Syl. ¶ 4; 167 P.2d 613 (1946).
The fundamental premise upon which liability is predicated under 44-503(a) is the existence of a contract between two employers. Ellis v. Fairchild, 221 Kan. 702, Syl. ¶ 3, 562 P.2d 75 (1977). Two tests are applied to determine whether work covered by a subcontract is a part of the principal contractor's trade or business. They are:
"(1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal's trade or business? (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative the work being done is part of the principal's `trade or business,' and the injured employee's sole remedy against the principal is under the Workmen's Compensation Act." Ellis v. Fairchild, 221 Kan. 702, Syl. ¶ 2.
It is not required that the work being performed by the injured workman be the primary business of the general contractor. It is sufficient if the work being performed is some integral part of the general contractor's trade or business or is work which the general contractor has contracted to perform for another. Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, Syl. ¶ 2.
Applying the statute and these tests to this case, we find: First, the principal contractor (Flynn's Ferry Service, Inc.), contracted to deliver a Cessna 185 to Vancouver, British Columbia. Mr. Flynn testified that 40 to 50% of his business was the ferrying of airplanes and that 96% of this was done by his own employees. Thus, both of the tests for determining whether the work was a part of Flynn's "trade or business" have been met. Either would have been sufficient. Second, Flynn's contracted with Maize Flying Service, Inc. (the contractor), for execution "of the work undertaken by the principal." Again, Mr. Flynn testified that he contracted with Maize, not Mr. Robinson as an individual. Third, Robinson was a "workman employed in the execution of the work." It is of note that the trial court specifically found Robinson was an employee of Maize Flying Service, Inc. The terms of K.S.A. 1980 Supp. 44-503(a) clearly apply and Robinson should have been found a statutory employee of Flynn's.
*714 The examiner, director and trial court did not address the question of whether 44-503(a) applied. This was apparently because they considered the conclusion that Robinson was an independent contractor determinative. Such would be the case if the evidence established that Robinson as an individual had contracted with Flynn's and the question was his employment status in relation to Flynn's. Under such circumstances, a finding that Robinson was an independent contractor could readily be affirmed. However, the undisputed testimony, including that of Mr. Flynn, and the trial court's own findings of fact establish that Flynn's contracted with Maize Flying Service, Inc., and that Robinson was an employee of Maize. It may be conceded that Maize was an independent contractor in relation to Flynn's, with Flynn's having no right of control over the details of ferrying the plane to Vancouver. This does not, however, preclude Robinson from being a "statutory employee" of Flynn's. Our Supreme Court has consistently held that employees of independent contractors performing work which is part of the principal's "trade or business" are statutory employees of the principal. See, e.g., Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976); Anderson v. Beardmore, 210 Kan. 343, 502 P.2d 799 (1972); Durnil v. Grant, 187 Kan. 327; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P.2d 239 (1951); Swift v. Kelso Feed Co., 161 Kan. 383, 168 P.2d 512 (1946); Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P.2d 701 (1945); Lehman v. Grace Oil Co., 151 Kan. 145, 98 P.2d 430 (1940); Purkable v. Greenland Oil Co., 122 Kan. 720, 253 P. 219 (1927).
In Durnil v. Grant, 187 Kan. 327, for example, an employee of an independent contractor hired by a wholesale fruit and vegetable distributor to deliver its product was found to be a statutory employee of the wholesaler. The court stated that the fact the wholesaler had "no particular control over the manner of operating the route itself is immaterial, since the function of a contractor is to perform work according to his own methods." 187 Kan. at 336. Thus, respondent's arguments and analysis of whether Robinson was an independent contractor in relation to Flynn's is immaterial to this case.
Finally, respondent makes much of the fact that Robinson was in violation of his flight manifest by taking a passenger for a *715 portion of the trip and that the "deviation" in doing so was a fatal mistake in this case. "Deviation" is completely immaterial to the issue on appeal and the issue decided below. By holding that Robinson was a "statutory employee" all that is done at this stage is to establish the employment relation for workmen's compensation purposes between Robinson and Flynn's. All other matters relating to whether compensation should be awarded and in what amount must be determined on remand. Among those matters is whether the "deviation" in this case was such as to work a deprivation of compensation otherwise available. See 99 C.J.S., Workmen's Compensation § 222, p. 745, for the general rule that an injury sustained by an employee during a temporary deviation or departure from his employer's business is not compensable. Of course, here it would appear that even if there was a deviation, there had been a return to the employer's business at the time of the accident. See 99 C.J.S., Workmen's Compensation § 222, p. 748. In any event, such matters are not material to the question presented.
We conclude that Howard L. Robinson was a statutory employee of respondent under the provisions of K.S.A. 1980 Supp. 44-503(a). Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363313/ | 633 P.2d 1381 (1981)
STATE of Alaska and Alaska Psychiatric Institute, Petitioners,
v.
Mattie GREEN, Respondent.
No. 5834.
Supreme Court of Alaska.
October 2, 1981.
William B. Mellow and John B. Gaguine, Asst. Attys. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for petitioners.
Ronald T. West, Anchorage, for respondent.
Before RABINOWITZ, C.J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.
OPINION
PER CURIAM.
On May 21, 1981, this court entered an order granting the state's petition for review and summarily reversing the superior court's order reinstating Green's claim for relief under 42 U.S.C. § 1983 (1970). In this opinion we set forth the reasons for our order.
Green filed suit against the state and the Alaska Psychiatric Institute (A.P.I.), alleging violations of 42 U.S.C. § 1983 (1970)[1] and of her constitutional rights. The state and A.P.I. moved to dismiss the complaint on the ground that neither were a "person" within the meaning of section 1983. The motion was granted. Upon Green's motion for reconsideration, however, the dismissal was set aside and the complaint was reinstated. The state and A.P.I. then sought reconsideration of that order, which was denied. This petition for review followed. We granted the petition only as to the issue of whether the superior court erred in reinstating Green's section 1983 claim for relief. We concluded that the United States Supreme Court opinion in Quern v. Jordan, *1382 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979), mandates the dismissal of Green's claim for relief under section 1983.
We interpret Quern v. Jordan as holding not only that section 1983 does not abrogate the state's eleventh amendment immunity, but as holding that states are not "persons" within the meaning of the section. The only other state appellate court to consider this issue thus far has reached the same conclusion. In Edgar v. State, 92 Wash.2d 217, 595 P.2d 534 (1979) (en banc), cert. denied, 444 U.S. 1077, 100 S. Ct. 1026, 62 L. Ed. 2d 760 (1980), the Washington Supreme Court analyzed the issue as follows:
With respect to section 1983, the Superior Court's conclusion was in accord with the decision of the United States Supreme Court in Quern v. Jordan, [440] U.S. [332], 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979). It was there held that the Congress of 1871, in adopting a provision which is now section 1983, did not intend to subject the states to liability under the act, since such liability would have deprived them of the immunity from suits in federal courts which is provided in the eleventh amendment to the United States Constitution. The plaintiff argues that Congress may nevertheless have intended to permit such suits in state courts. However, he points to no language of the act which would justify such an interpretation... .
The question before the Court in Quern, as Justice Brennan's dissent quite clearly points out, was whether the word "person" as used in this statute included states. It is the inescapable holding of the court that it did not. That holding affirmed the earlier case of Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974), and removed any doubt cast upon the question in Monell v. Department of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), wherein the court had found, reversing prior holdings, that the Congress did not intend to exclude the municipal corporations from the coverage of the act.
595 P.2d at 537. We find this analysis persuasive. If Green's arguments were accepted, it would be necessary to assume that Congress intended the word "person" in section 1983 to include states for the purpose of suits in state courts but not for the purpose of overriding the states' eleventh amendment immunity from suits in federal courts. Although this interpretation is possible, we believe it is beyond the province of this court to place such an interpretation on section 1983 in the absence of any indication that this is what Congress intended.
The order of the superior court reinstating Green's claim for relief under section 1983 is accordingly REVERSED.
RABINOWITZ, C.J., dissents.
RABINOWITZ, Chief Justice, dissenting.
I disagree with the majority's summary reversal of the superior court's decision, because I take issue with the majority's interpretation of Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979). Although the approach of the majority here is in accordance with Justice Brennan's concurring opinion in that case, characterizing Justice Rehnquist's opinion as holding that a state cannot be a "person" for purposes of 42 U.S.C. 1983, Justice Rehnquist's opinion in fact carefully avoids that issue, instead holding that Congress did not, in enacting § 1983, utilize its power under § 5 of the Fourteenth Amendment to abrogate the States' immunity from suit under the Eleventh Amendment. Thus, Quern's holding only becomes relevant when the Eleventh Amendment issue is raised, which is not the case here; this suit is in state, not federal, court. Under Justice Rehnquist's approach, the states are free to render themselves amenable to suit under 42 U.S.C. 1983; under Justice Brennan's approach, this is not the case. I think Justice Rehnquist's approach, besides being entitled to more weight as a majority ruling, is also more compatible with the Court's dictum in Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3058, 57 L. Ed. 2d 1114, 1116 (1978), to the effect that Alabama would be able to *1383 waive its Eleventh Amendment immunity from a § 1983 suit were it not for a state constitutional provision to the contrary.
I am bolstered in this conclusion by the reasoning in the recent case of Marrapese v. State of Rhode Island, 500 F. Supp. 1207 (D.R.I. 1980), which noted this very conflict and adopted the Rehnquist approach in holding that Rhode Island had statutorily rendered itself amenable to a § 1983 suit in federal court. The opinion notes:
Justice Rehnquist's opinion, while emphatic in reasserting the Court's belief that Congress had not intended to abrogate the states' immunity through § 1983, see 440 U.S. at 345, [99 S.Ct. at 1147] conspicuously avoided any statement that the term `person' did not include `state.' Stated precisely, Quern concluded only that the Congress which enacted § 1983 did not intend to force the states to answer in federal court for their constitutional violations. Of itself, this holding does not mandate the further conclusion that the 42d Congress did not intend to allow the states to answer in federal court for their constitutional violations if they consented to do so. The alternate interpretation of Quern, then, would recognize that the word `person,' when considered in light of the Dictionary Act and the legislative history of § 1983, is broad enough to encompass the state as a `body politic and corporate.' Limiting the practical effect of this construction would be the caveat that the statute leaves untouched Eleventh Amendment immunity, so that a state is not compellable to respond to § 1983 claims in federal court.
... .
Faced, then, with two possible interpretations neither of which is particularly satisfactory this Court accepts the one that gives greatest latitude to § 1983's broad remedial purpose. It concludes that the states are `persons' potentially liable for constitutional deprivations inflicted through official custom and policy, but that because Congress has not exercised its § 5 powers to abrogate Eleventh Amendment immunity, each state must consent to the imposition of such liability. This interpretation allows victims of unconstitutional activity the largest possibility for redress, while exacting little cost in terms of federalism. Because there is no forced waiver, each state maintains ultimate control over its own potential liability. Moreover, this interpretation is consistent with earlier cases in which the Supreme Court seems to have assumed that a state could consent to § 1983 liability. Therefore, this Court holds that Rhode Island is a `person' within the meaning of § 1983.
500 F. Supp. at 1211-12 (footnotes and citations omitted) (emphasis in original).
The issue before this court is not as difficult as Marrapese, since we deal here with a suit against the state in state court, not in federal court. I think that the Eleventh Amendment has no bearing on this issue, and thus the ruling of Quern does not control. If Rhode Island is a "person" within the meaning of § 1983, Alaska is no less a person. Alaska's own statutory provision regarding amenability to suit is the pertinent consideration here. I would remand for consideration of whether AS 09.50.250 allows this suit to go forward in the superior court.
NOTES
[1] 42 U.S.C. § 1983 (1970) provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264944/ | 422 Pa. Super. 479 (1993)
619 A.2d 779
Robert A. LYNN and Dolores M. Camacho, Appellants,
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
Superior Court of Pennsylvania.
Argued September 17, 1992.
Filed January 28, 1993.
*481 Lee Albert, Philadelphia, for appellants.
Christine M. Brenner, Philadelphia, for appellee.
Before McEWEN, DEL SOLE and HUDOCK, JJ.
HUDOCK, Judge:
Robert Lynn and Dolores Camacho (Appellants) appeal from the order of the trial court granting summary judgment in favor of Prudential Property and Casualty Insurance Company (Appellee) regarding all claims Appellants had against Appellee. We affirm.
The parties stipulated to the facts pertinent to the case: On December 5, 1989, Appellant Robert Lynn and Appellee entered into a contract of insurance which provided, inter alia, first party benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).[1] The contract of insurance was effective from that date until June 5, 1990. Appellant Robert Lynn paid a premium of $553. The premium was calculated to provide first party coverage under the MVFRL at the time the parties entered into the contract.
On May 2, 1990, Appellants were injured in a motor vehicle accident in Philadelphia. At the time of the accident, Appellant Robert Lynn was the owner and operator of the car in which Appellant Dolores Camacho was riding as a passenger. As a result of the accident, Appellant Robert Lynn and Appellant Dolores Camacho incurred certain medical expenses. *482 Appellants made proper applications for first party benefits to Appellee pursuant to the above contract of insurance. Appellee paid or challenged these medical bills pursuant to 75 Pa.C.S. § 1797(a) & (b) (Purdon Supp.1992).[2]
On August 22, 1990, Appellants filed a lawsuit for payment of those medical bills which were either not paid or challenged by Appellee. Subsequently, compulsory arbitration was held which resulted in an award for Appellants. Appellee appealed this award to the trial court. The parties entered into a stipulation of fact and thereafter filed cross-motions for summary judgment. Following oral argument and clarification of the order, the trial court entered an order granting Appellee's motion for summary judgment as to all claims brought by Appellants. This appeal followed.
On appeal, Appellants claim that the trial court erred in granting Appellee's motion for summary judgment. Our standard utilized when reviewing such claims is well-settled:
Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment is to be entered only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.C.P. 1035(b). The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party. Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). The court's responsibility is to determine whether a genuine issue of material fact exists; the court may not resolve such an issue. Moreover, the court should not enter summary judgment unless *483 the case is free from doubt. Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980); Amabile v. Auto Kleen Car Wash, supra; McFadden v. American Oil Co., 215 Pa.Super. 44, 257 A.2d 283 (1969).
Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). With these standards in mind, we shall review the following two claims of alleged trial court error in granting Appellee's summary judgment:
1. Whether 75 [Pa.C.S.] [§] 1797(a)(b), effective April 15, 1990 shall not be applied retroactively to a contract in effect prior to the April 15, 1990 [MVFRL] Amendments?
2. Whether 75 [Pa.C.S.] [§] 1797(a)(b) violates the Contract Clauses of the Consitutions [sic] of the United States and Commonwealth of Pennsylvania, where the act impairs a contractual right entered into prior to the enactment of the statute.
Appellants' Brief at p. 3.
The trial court found no merit in Appellants' first claim since the regulations implementing Section 1797 clearly state that the new amendments were applicable to medical services rendered after April 15, 1990. Because the motor vehicle accident in which Appellants were injured occurred on May 2, 1990, approximately seventeen days after the amendments went into effect, and medical services were rendered thereafter, the trial court found that Section 1797 was not applied retroactively. We agree.
In reaching its determination, the trial court cited the following regulation:
[Section 1797] applies to payments by property and casualty insurers for medical treatment or services rendered on or after April 15, 1990, for the treatment or care of persons covered by automobile insurance, regardless of when the accident or incident resulting in the need for medical care occurred or when the claim was filed.
31 Pa.Code Ch. 68, § 1(a) (emphasis added). In concluding that Section 1797 was applied prospectively, the trial court *484 stated, "[T]hus, the critical date which triggers application of § 1797 is the date when the medical services were rendered, on or after April 15, 1990, even if the accident occurred, or the pertinent policy was issued, prior to April 15, 1990." Trial Court Opinion at p. 5 (emphasis added). That part of the Pennsylvania Code emphasized above does not discuss the effective date of the amendments in regard to when the pertinent policy was issued. This brings us to a more fundamental issue stated in Appellants' second issue enumerated above.
The Contract Clauses of the United States and Pennsylvania Constitutions protect contracts freely arrived at by the parties from subsequent legislative impairment or abridgement. First National Bank of Pennsylvania v. Flanagan, 515 Pa. 263, 528 A.2d 134 (1987); Beaver County Building and Loan Association v. Winowich, 323 Pa. 483, 187 A. 481 (1936); Ministers and Missionaries Benefit Board v. Goldsworthy, 253 Pa.Super. 321, 385 A.2d 358 (1978).[3] The trial court found, citing both Pennsylvania Medical Society v. Foster, 137 Pa.Cmwlth. 192, 585 A.2d 595 (1991), and Keystone Bituminous Coal Association v. Nicholas DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987), for the proposition that the Contract Clauses do not prevent the state from exercising police powers for protection of the public which is paramount to any rights under contracts between individuals, that the amendments to the MVFRL, including Section 1797, were "designed to reduce the cost of providing private passenger automobile insurance in Pennsylvania and provides mechanisms to pass those cost savings from insurance companies to insurance consumers." Trial Court Opinion at pp. 7-8 (citing Pennsylvania Insurance Department Proposed Regulations, May 18, 1991). The trial court further *485 found that the changes to Section 1797 in no way impaired Appellee's basic obligation under the policy to provide Appellants with first-party benefits of $10,000. While we find such a conclusion to be overly generalized, for the reasons stated below, we find that the trial court properly granted summary judgment.[4]
A later law cannot abridge a party's rights under a prior contract; only substantive laws that are in effect when parties enter into the contract are implicitly incorporated into it. Second Federal Savings and Loan Association v. Brennan, 409 Pa.Super. 581, 598 A.2d 997 (1991). However, the Contract Clauses of the state and federal constitutions do not preclude the legislature from passing laws which impose new procedures on the enforcement of substantive rights. First National Bank of Pennsylvania v. Flanagan, supra. Thus, we must determine whether the amendments to Section 1797 infringe upon the substantive rights of Appellant Robert Lynn under his contract of insurance.
At the time Appellant Robert Lynn entered into a contract of insurance with Appellee, Section 1797 read as follows:
A person or institution providing treatment, accommodations, products or services to an injured person for any injury covered by medical or catastrophic loss benefits shall not make a charge for the treatment, accommodations, products, or services in excess of the amount the person or institution customarily charges for like treatment, accommodations, *486 products and services in cases involving no insurance.
Section 1797 now reads:
(a) General rule. A person or institution providing treatment, accommodations, products, or services to an injured person for any injury covered by liability or uninsured and underinsured benefits or first party medical benefits, including extraordinary medical benefits, for a motor vehicle described in Subchapter B (relating to motor vehicle liability insurance first party benefits) shall not require, request or accept payment for the treatment, accommodations, products or services in excess of 110% of the prevailing charge at the 75th percentile; 110% of the applicable fee schedule, the recommended fee or the inflation index charge; or 110% of the diagnostic-related groups (DRG) payment; whichever pertains to the specialty service involved, determined to be applicable in this Commonwealth under the Medicare program for comparable services at the time the services were rendered, or the provider's usual and customary charge, whichever is less.
. . . Providers subject to this section may not bill the insured directly but must bill the insurer for a determination of the amount payable. The provider shall not bill or otherwise attempt to collect from the insured the difference between the provider's full charge and the amount paid by the insurer.
(b) Peer review plan for challenges to reasonableness and necessity of treatment.
(1) Peer review plan. Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary. An insurer's challenge must be made to a PRO within 90 days of the insurer's receipt of the *487 provider's bill for treatment or services or may be made at any time for continuing treatment or services.
* * * * * *
(7) Determination in favor of insurer. If it is determined by a PRO or court that a provider has provided unnecessary medical treatment or rehabilitative services or merchandise or that future provision of such treatment, services or merchandise will be unnecessary, or both, the provider may not collect payment for the medically unnecessary treatment, services or merchandise. If the provider has collected such payment, it must return the amount paid plus interest at 12% per year within 30 days. In no case does the failure of the provider to return the payment obligate the insured to assume responsibility for payment for the treatment, services or merchandise. (Emphasis supplied).
* * * * * *
Appellants claim that these amendments allow
the insurance company to alter the manner of payment of the insured's claims for medical expenses by altering the rules for customary charges for treatment which are covered by the insurance company and instituting a peer review plan for challenging the reasonableness and the necessity of treatment. These amendments change the first party benefit coverage of the insurance contract having a detrimental effect on the insured.
Appellants' Brief at pp. 15-16. Appellants do not sufficiently state how these amendments work to their detriment. As indicated by the language of both sections emphasized above, the insured is held harmless under sub-section (a) for the difference between the amount charged by the provider and the amount paid by the insurer and, under sub-section (b), in no way does the provider's failure to return a payment for unnecessary medical treatment or services obligate the insured to assume responsibility for payment for these services. *488 Thus, these cost-containment provisions of Section 1797 do not impair the contract with the insured; the only effect of the amendments is to change the way in which a provider is compensated for the services rendered.
In regard to Section 1797(b), Appellants argue that "[i]f the Peer Review determines that the treatment is unreasonable and based upon such conclusion, [Appellants] are denied further payment of their bills then the medical providers will deny further treatments." Appellants' Brief at p. 11. While Appellant Lynn speculates that his contract would be impaired if, due to lasting injuries from the 1990 accident, he desires treatment and is denied same, there is no evidence in the record that this scenario has arisen.[5] We cannot find the obligations of a contract to be impaired based on some future event which may or may not occur.
There being no genuine issue of material fact as to whether Appellant Lynn's contract of insurance is presently impaired *489 by the 1990 amendments to Section 1797, we find that summary judgment was proper.
Order affirmed.
NOTES
[1] See generally, Chapter 17 of the Motor Vehicle Code; 75 Pa.C.S. (Purdon Supp.1992).
[2] As shall be discussed infra, Section 1797 of the MVFRL was substantially amended by Act of February 7, 1990, P.L. 11. No. 6, § 18, effective April 15, 1990.
[3] Article 1, § 10 of the United States Constitution reads in pertinent part:
no state shall . . . pass any Bill of Attainder, ex post facto Law, or law impairing the Obligation of Contracts . . .
Article 1, § 17 of the Pennsylvania Constitution reads in pertinent part:
No ex post facto Law, nor any Law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.
[4] Initially, Appellee argues that Appellants have waived consideration of this constitutional claim on appeal because they were raised for the first time in Appellants' 1925(b) statement of matters complained of on appeal. Upon review of the record, we find that the constitutional claim was raised in Appellants' cross-motion for summary judgment. Moreover, the trial court addressed the merit of this claim and we shall, therefore, do the same. But cf., Rutledge v. Com., Department of Transportation, 97 Pa.Cmwlth. 98, 508 A.2d 1306 (1986) (waiver found where appellant sought a remand so that the trial court could consider a constitutional issue raised by counsel in a 1925(b) statement filed one month after the trial court wrote its opinion).
[5] We find little indication in the present record that Appellant Camacho has received or requested continuing treatment for injuries incurred from the automobile accident at issue. Appellee concedes that it has referred treatment Appellant Robert Lynn received in 1991 to a PRO. Exhibit D to Appellants' motion for summary judgment consists of a letter to Appellee from a PRO recommending that Appellee refuse to reimburse for physiotherapist treatments which were administered without a licensed physical therapist. This recommendation, if acted upon, would still not impair Appellee's obligation to Appellant Lynn because he will not be responsible for payment for treatment already received. Moreover, under the former No-Fault Act, the MVFRL prior to the cost-containment provisions, and the MVFRL as it exists today, an insurer can compel an insured to submit to a physical examination. In this way, an insurer has always been able to challenge the legitimacy and necessity of continued treatment of injuries related to automobile accidents. Rather than using the courts to challenge the treatment or expense, the insurer can now refer the treatment to a PRO. The courts remain an option for claims for treatment or services which the insurer refuses to reimburse but does not submit to peer review. See 75 Pa.C.S. § 1797(b)(4) (Purdon Supp.1992). Section 1797(b) has been interpreted to allow for an appeal to a court of law if an insured or provider disagrees with the determination of a PRO and reconsideration is denied. See Elliott v. State Farm Mutual Automobile Insurance Co., 786 F. Supp. 487 (E.D.Pa.1992); Danton v. State Farm Mutual Insurance Co., 769 F. Supp. 174 (E.D.Pa.1991). Thus, the PRO process does not impair any obligation; it merely changes the procedure for challenging medical treatment and expenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264946/ | 422 Pa. Super. 455 (1993)
619 A.2d 766
COMMONWEALTH of Pennsylvania
v.
Mark MUKINA, Appellant.
Superior Court of Pennsylvania.
Argued November 17, 1992.
Filed January 27, 1993.
*456 William P. Weichler, Erie, for appellant.
Patrick M. Carey, Asst. Dist. Atty., Erie, for Com., appellee.
Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ.
HESTER, Judge:
Mark Mukina appeals the judgment of sentence of six to twenty-four months imprisonment which was imposed after a jury convicted him of one count of driving while under the influence of alcohol. This was appellant's fourth conviction for driving while under the influence and his fifth arrest for that crime. We reject appellant's contention that his conviction of driving under the influence with a blood alcohol content in excess of .10 percent is infirm because the Commonwealth failed to relate back his blood alcohol content test readings to the time that he was driving. Instead, based upon the reasoning of Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), we conclude there was sufficient evidence for the jury to determine that appellant was driving with a blood alcohol content of .10 percent or greater, We affirm.
Pennsylvania State Police Trooper Richard E. Gemmell testified that at 12:25 a.m. on June 20, 1991, he and his partner, Trooper Gregory A. Walton, were patrolling Route 6N in Edinboro. One mile before the intersection of Drake Town Road and Route 6N, they started following a white General Motors mini van. They followed the van for approximately one mile, and it was being driven erratically. The vehicle was weaving back and forth and on "three occasions the vehicle did cross the double yellow line of the highway." Notes of Testimony, 2/7/92, at 22. They stopped the van and found that appellant was the sole occupant and driver. The Troopers detected a "strong odor of alcoholic beverage" on *457 appellant's breath and noticed that he had "slurred speech" and "glassy, bloodshot eyes." Id. at 22-23.
The officers asked appellant to exit the car and perform field sobriety tests. He failed them, was given Miranda warnings, and was placed under arrest and immediately transported to Millcreek Community Hospital for blood extraction. The blood sample was drawn at 1:26 a.m., one hour after appellant was driving. Appellant's blood alcohol content was.204 percent, more than twice the legal limit.
Appellant cross-examined the Commonwealth's expert toxicologist, Dr. Kenneth Walter Simkowski, extensively about the blood alcohol content test. Dr. Simkowski admitted that the test would not measure a person's blood alcohol content one hour prior to when the blood was drawn, that a second test was not administered, and that if a second test had been administered, it would have established whether appellant's blood alcohol content was rising or falling.
Based on this evidence, the jury convicted appellant of driving while under the influence to a degree which renders the person incapable of safe driving, 75 Pa.C.S. § 3731(a)(1), and driving while under the influence with a blood alcohol content of .10 percent or greater, 75 Pa.C.S. § 3731(a)(4). This appeal followed imposition of the described sentence.
Appellant contends that based on Jarman and Modaffare, his convictions are infirm. In Jarman, a state trooper noticed that one of the headlights of the defendant's car was extinguished. The defendant was driving steadily within his lane and was not traveling too fast or too slow. The trooper pulled over the defendant's car and detected alcohol on his breath. Appellant's performance on the field sobriety tests was slightly substandard. He was transported to a hospital, and one hour after the defendant exited his vehicle, his blood was drawn. His blood alcohol content was .114 percent.
The Supreme Court observed that in order to be convicted under section 3731(a)(4), one's blood alcohol content while driving must be .10 percent or greater. The Court determined that the jury lacked a sufficient basis to convict the *458 defendant under section 3731(a)(4) since the Commonwealth's expert failed to relate back the test results to the time that the defendant was driving. The Court based its decision on the fact that the test result barely exceeded the .10 percent level and that the time lapse between the driving and the taking of the sample was not insignificant. The Court also observed that the expert admitted that the laboratory's blood testing equipment had a margin of error of plus or minus 10%, which would have placed the defendant's blood alcohol level as low as .104 percent at the time that the sample was drawn. Finally, the defendant testified that he had his last drink during a time which would have meant that his blood alcohol content was rising between when he was driving and when the sample was drawn. This evidence was not contradicted. The Court concluded that under those circumstances, the inference of guilt was too weak to sustain the conviction under section 3731(a)(4).
In Modaffare, the defendant struck a parked car. Two hours after the accident his blood sample was taken, and he had a blood alcohol content of .108%. The physician who drew the blood sample testified that a person's blood alcohol level fluctuates so that the level rises after drinking until a peak is reached and then declines. He admitted that the defendant's level may have been rising during the time of the accident and when the sample was drawn. Once again, the Court concluded that the expert testimony on the issue of blood alcohol content at the time that the defendant was driving was ambiguous and left open to speculation whether a violation of section 3731(a)(4) occurred. Specifically, the Court's conclusion rested on the fact that the result of the test exceeded the legal limit by only a small amount, and the time lapse between when the defendant was driving and when the blood was drawn was significant.
In both Jarman and Modaffare, the Court limited its holding to the facts presented. Furthermore, and highly relevant to the present case, the following language appears in both opinions:
*459 In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been stopped, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, where, as in the present case, the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was not insignificant, the inference of guilt is weakened.
Commonwealth v. Jarman, supra, 529 Pa. at 96, 601 A.2d at 1230-1231; see also Commonwealth v. Modaffare, supra, 529 Pa. at 105-06, 601 A.2d at 1235 (where the Court used identical language except that it characterized the two-hour delay between the driving and the extraction of the blood sample as a "significant" delay).
Herein, the blood alcohol content reading was more than double the legal limit. Further, the one hour delay between when the sample was taken and when the defendant was driving was not viewed as significant by the Supreme Court in Jarman, it was viewed as "not insignificant." Moreover, the decision in Jarman rests upon two key factors not present in this case. First, the expert in Jarman admitted that his equipment had a margin of error which would have placed the defendant's blood alcohol content within .004 percent of the legal limit at the time the defendant was driving. Second, the uncontradicted evidence was that the defendant's blood alcohol content would have been rising between the time that he was driving and when the sample was drawn.
Herein, appellant's blood was significantly more than the legal limit, the one hour delay between when he was driving and when the sample was taken is not substantial, and there was no evidence that his blood alcohol content was rising. We therefore conclude that the inference of appellant's guilt was not weak, and there was sufficient evidence to support appellant's conviction under section 3731(a)(4). Also compare Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992) (relation-back testimony required since .1488 percent was not a substantial departure from .10 and evidence established that *460 defendant's blood alcohol content was rising between driving and blood extraction).
Appellant's second argument relates to the form of the trial court instructions. As we conclude that the trial court correctly disposed of that issue, we reject this argument based on its opinion dated April 6, 1992, at pages three to four.
Judgment of sentence affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3075674/ | Opinion filed March 20, 2014
In The
Eleventh Court of Appeals
__________
Nos. 11-12-00014-CR & 11-12-00015-CR
__________
DAVID WAYNE BOSWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause Nos. CR-03371 & CR-03370
MEMORANDUM OPINION
David Wayne Boswell, Appellant, appeals his convictions for aggravated
assault with a deadly weapon and for evading arrest. In Cause No. 11-12-00014-
CR, the jury found Appellant guilty of the offense of aggravated assault with a
deadly weapon, and upon Appellant’s plea of true to the enhancement allegation,
the jury assessed punishment at confinement for eight years. 1 In Cause No. 11-12-
00015-CR, the jury found Appellant guilty of the offense of evading arrest with the
use of a vehicle, a state jail felony, and it assessed punishment at confinement for
one year. 2 Appellant challenges both convictions in three points of error. We
affirm.
I. Evidence at Trial
Although Appellant does not challenge the sufficiency of the evidence, we
provide a summary of the evidence at trial to provide context in understanding
Appellant’s points of error and our analysis of them.
A. The Alleged Assault
Appellant arrived at Randy and Kristy Burns’s property in the afternoon to
drop off the bed of a pickup. Appellant’s wife—Tiffany Boswell (Boswell)—and
their children were already on the property when Appellant arrived. Charles
Fonville, whom Appellant had met once or twice before, and Mason Jade Warren,
who is Boswell’s first cousin, arrived in the evening. The men spent the late
afternoon and evening in Randy’s shop, drinking alcohol, while the women spent
most of their time inside the Burnses’ home. Some of those present testified that
Fonville and Appellant had disagreements that created tension while they were in
the shop and when everyone was inside the Burnses’ home. Kris and Kristin
Scitern arrived later at the Burnses’ property.
Around 10:00 p.m., Fonville and Warren left the property in Fonville’s
pickup, but they returned shortly. Appellant testified that, when Fonville and
Warren returned, Appellant and Boswell had gathered their children and were
about to leave. Appellant saw Kris Scitern approach Fonville’s pickup and have a
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
2
See former TEX. PENAL CODE § 38.04(a), (b)(1)(B) (2009).
2
brief discussion with Fonville and Warren. Appellant knew that Warren did not
like him because they had been in an altercation at a previous party.
After Kris backed away from the pickup, Appellant saw Warren get
something from the back of Fonville’s pickup. Appellant said that Fonville and
Warren approached him and that Fonville said, “I’ll bet you can’t whip me and my
little friend here.” As they approached, Warren was holding a shovel, and Fonville
was holding something in his left hand, although Appellant could not identify the
item at the time. At that point, Fonville jabbed at Appellant, and the two of them
struggled with each other to the ground.
Appellant grabbed at Fonville’s wrist and was cut in the hand by the object
Fonville was holding. As Appellant wrestled with Fonville to take control of the
object that had cut him, Warren hit Appellant over the head with the shovel. The
shovel blows caused multiple gashes in Appellant’s head, and he bled profusely.
Eventually, Appellant escaped, walked away from the altercation, told Boswell to
call 911, got in his pickup, and drove away toward the hospital.
Boswell also testified on Appellant’s behalf. Boswell said that she was
present during the altercation between Fonville and Appellant and that, after
Appellant yelled at her to call 911, she drove to get help because she could not get
cell phone reception. Boswell found Billy Carson, a Gorman police officer, and
told him that a fight was taking place. Officer Carson followed her back to the
Burnses’ property. By the time Boswell and Officer Carson arrived, Appellant had
left the scene.
The remaining witnesses testified against Appellant. According to their
version of the events, Fonville, while in the Burnses’ shop, disapproved of
Appellant’s boasts about the towing capacity of Appellant’s pickup. These
witnesses claimed Boswell had left with her children and did not see the fight
between Appellant, Fonville, and Warren. They also said that Fonville and Warren
3
left the Burnses’ property to get ice but returned to the Burnses’ property after they
discovered the store was closed. Once Fonville and Warren had returned to the
Burnses’ property, Appellant and Fonville exchanged words, and Appellant
approached Fonville with a knife in his hand. Appellant walked toward Fonville,
and the two of them wrestled to the ground; almost immediately, the witnesses saw
large pools of blood coming from beneath Fonville on the ground. Someone yelled
that Appellant was killing Fonville, so Warren retrieved a shovel from the back of
Fonville’s pickup and hit Appellant several times in the head to break up the fight.
Randy Burns testified that, during the scuffle, he stepped on Appellant’s hand and
took the knife away. Appellant then got off Fonville and fled the scene in his
pickup while Fonville was on the ground bleeding from the stab wounds. Warren
called 911, and Fonville was later taken in an ambulance to a hospital.
B. Appellant’s Encounter with Police
Police Officer Chase Stiles of the De Leon Police Department, having heard
a description of an alleged assailant’s vehicle from a dispatch call, pursued
Appellant as he drove past him in De Leon. Officer Stiles drove a clearly marked
police car and wore a De Leon Police Department uniform when he turned on his
lights in an attempt to stop Appellant’s vehicle. Officer Stiles turned his siren on
after he followed the vehicle for about a quarter of a mile. Appellant did not pull
over.
When Appellant kept driving and increased his speed, Officer Stiles swerved
to the left and changed different siren tones to give Appellant every opportunity to
notice him and pull over. Appellant slowed down and turned into a residential
neighborhood, and Officer Stiles pulled in front of him as he approached a stop
sign. Appellant exited his vehicle, covered in blood, and approached the officer.
Officer Stiles had his gun drawn and told Appellant to get on the ground, but
Appellant did not cooperate and continued to walk toward Officer Stiles. As
4
Appellant moved closer, he used coarse language and threatened Officer Stiles.
Officer Stiles drew his Taser, and Appellant turned back toward his pickup. After
Appellant told Officer Stiles that he “ha[d] something for [him],” Officer Stiles
deployed the Taser, sending Appellant to the ground. Officer Stiles then
handcuffed Appellant, called for backup, and requested an ambulance. Because
Appellant continued to be uncooperative and was hostile toward the E.M.S. staff,
Officer Stiles rode with Appellant in the ambulance to the hospital.
Appellant testified he was disoriented and could barely see after he left the
Burnses’ property, and he never heard sirens or saw police lights until
Officer Stiles pulled in front of him on the residential street. Appellant said that he
stopped when a bright light shone in his face and that he could not tell from whom
or what the bright light was coming. Appellant exited his vehicle, identified
himself, and asked for help. He did not know that the person stopping him was a
police officer until after he had been tased and put on the ground.
Appellant was arrested and charged with one count of aggravated assault
with a deadly weapon and one count of evading arrest. He agreed to consolidate
the cases and proceed to trial on both charges.
C. Appellant’s Trial
Jury selection for Appellant’s trial began on Monday, November 14, 2011.
The trial judge told the jury that he expected to conclude the trial by the end of the
same week. Throughout Appellant’s trial, the trial court repeatedly stressed the
importance of these time restraints and the trial judge’s intent to finish the trial by
Friday. After hearing the evidence, the jury began deliberations at 3:19 p.m. on
Friday, November 18, 2011. During the course of deliberations, the jury asked to
review physical evidence, which the trial court granted in part. Later, the trial
court denied the jury’s request to review witness testimony. The jury later
informed the trial court that it had reached a verdict on the evading arrest charge
5
but that it was deadlocked 10-2 on the aggravated assault charge. The trial court
instructed the jury to continue deliberating and asked counsel, because it was early
evening, if they thought the trial court should ask the jurors if they wanted a
sandwich. The State said, “No,” and defense counsel responded, “See what
happens for a little bit.”
Still later in the evening, Juror Tamera Lack, who was not the jury foreman,
attempted to send a note to the trial court. The trial court denied the request. Later
on, the jury sent a note to the trial court indicating that it was still deadlocked and
that the two jurors who could not agree with the other ten said there was nothing
that would change their minds. The State suggested that the trial court submit an
Allen 3 charge to the jury, to which the defense objected as being too coercive. The
trial court then submitted the following supplemental charge to the jury:
If this jury finds itself unable to arrive at a unanimous verdict, it
will be necessary for the court to declare a mistrial and discharge the
jury. The indictment will still be pending, and it is reasonable to
assume that the case will be tried again before another jury at some
future time. Any such future jury will be empanelled in the same way
this jury has been empanelled and will likely hear the same evidence
which has been presented to this jury. The questions to be determined
by that jury will be the same questions confronting you, and there is
no reason to hope the next jury will find these questions any easier to
decide than you have found them.
With this additional instruction, you are requested to continue
deliberations in an effort to arrive at a verdict that is acceptable to all
members of the jury, if you can do so without doing violence to your
conscience. Don’t do violence to your conscience, but continue
deliberating.
Still later in the evening, the jury requested to view the police video of the
Burnses’ property, which was taken after police arrived on the scene. The trial
3
See Allen v. United States, 164 U.S. 492 (1896).
6
court granted the request. Just before 10:00 p.m., the jury notified the trial court
that it had reached a verdict on both offenses. Thereafter, the jury foreman read
the jury’s verdict of guilty as to each offense and confirmed each verdict was
unanimous. The trial court accepted both verdicts and proceeded to the
punishment phase of trial.
After the punishment phase was complete, Appellant moved for new trial on
grounds that, because the unanimity of the verdict was at issue, he received
ineffective assistance of counsel when defense counsel failed to poll the jury. At
the hearing on Appellant’s motion, Juror Lack testified that she did not agree with
the verdict and that, if she had been asked if guilty was her verdict, she would have
said “no” as to both offenses. According to Juror Lack, she did not speak up when
the verdict was being read because she had never served on a jury and did not
know she had the option to do so. Juror Lack further testified that, when the jury
came into the courtroom to read the guilt/innocence verdict, she was upset and had
tears falling down her face the whole time.
Defense counsel testified he elected not to have the jury polled because he
did not believe the jury was divided and, given that the case was moving onto
punishment in the first-degree felony range, he did not want to antagonize the
foreman and the other jury members by polling them individually. Counsel
thought at the time that the dissenting jurors had changed their votes based upon
their review of the evidence that was requested after the jury notified the trial court
for the second time that it was deadlocked. Although defense counsel admitted his
failure to poll the jury may have been an error in judgment, he testified he had no
indication that the verdict was not unanimous until after the trial was over. When
the verdict was read, defense counsel looked into the jurors’ faces and saw nothing
to make him believe that the probability of achieving anything favorable to the
7
defense by polling the jury outweighed the possible damage to Appellant in the
punishment phase.
II. Issues Presented
Appellant brings three points of error on appeal. First, Appellant claims he
was denied effective assistance of counsel when his trial counsel failed to poll the
jury to ensure the unanimity of the verdict. Second, Appellant claims he was
egregiously harmed by the trial court’s submission of a “coercive” Allen charge
during the guilt/innocence phase of trial. Finally, Appellant contends that the trial
court abused its discretion when it denied his motion for new trial.
III. Analysis
A. Ineffective Assistance of Counsel
Appellant contends in his first point of error that he received ineffective
assistance when his trial counsel failed to poll the jury. The standard of review for
an ineffective-assistance-of-counsel claim is whether counsel’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Strickland v. Washington, 466 U.S.
668, 686 (1984). The Strickland standard is two-pronged: (1) a performance
standard and (2) a prejudice standard. Id. at 687.
For the performance standard, we must determine whether counsel’s
representation fell below an objective standard of reasonableness. Id. There is a
strong presumption that trial counsel’s conduct fell within the wide range of
reasonable professional assistance. Id. at 689; Walker v. State, 406 S.W.3d 590,
594 (Tex. App.—Eastland 2013, pet. ref’d). To overcome this presumption, an
allegation of ineffective assistance must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). “[W]hen no reasonable trial
strategy could justify the trial counsel’s conduct, counsel’s performance falls
8
below an objective standard of reasonableness as a matter of law, regardless of
whether the record adequately reflects the trial counsel’s subjective reasons for
acting as [he] did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
For the prejudice standard, we determine whether there is a reasonable
probability that the outcome would have differed but for counsel’s errors.
Strickland, 466 U.S. at 686; Andrews, 159 S.W.3d at 102. The reasonable
probability must rise to the level as to undermine confidence in the outcome of the
trial. Walker, 406 S.W.3d at 594. Courts may dispose of a claim of ineffective
assistance if an appellant fails to prove either prong of the Strickland test. Cox v.
State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (citing Strickland, 466 U.S. at
687).
Appellant claims the unanimity of the verdict was clearly at issue because
the jury sent out multiple notes asking to review inconsistencies in the evidence
and twice notified the trial court it was deadlocked. Furthermore, Juror Lack
requested to speak personally to the trial judge during the lengthy deliberations,
and she was crying while the verdict was returned. According to Appellant,
because the unanimity of the verdict was at issue, there was no conceivable reason
for his trial counsel’s failure to poll the jury.
While the Code of Criminal Procedure allows the jury to be polled, there is
no requirement that trial counsel do so. TEX. CODE CRIM. PROC. ANN. art. 37.05
(West 2006). According to his testimony in the hearing on the motion for new
trial, defense counsel considered the circumstances surrounding the verdict and
elected not to poll the jury to benefit Appellant in the next phase of the trial.
Defense counsel articulated his strategy of not offending jurors before the
punishment phase by declining to poll them in light of their demeanor and the
unanimous verdict. We cannot conclude that his strategic decision was
unreasonable, and Appellant has failed to overcome the presumption that defense
9
counsel’s conduct fell within the wide range of reasonable professional assistance.
We overrule the first point of error.
B. Allen Charge
Appellant contends in his second point of error that the Allen charge
submitted to the jury by the trial court was “coercive.” An Allen charge instructs a
deadlocked jury to continue deliberating to reach a verdict if the jurors can
conscientiously do so. See Allen, 164 U.S. at 501. This supplemental charge
“reminds the jury that if it is unable to reach a verdict, a mistrial will result, the
case will still be pending, and there is no guarantee that a second jury would find
the issue any easier to resolve.” Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex.
Crim. App. 2006). Both the United States Supreme Court and the Court of
Criminal Appeals have sanctioned the use of an Allen charge. See Allen, 164 U.S.
at 501–02; Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996). On
appeal, the primary inquiry when considering the propriety of an Allen charge is
its “coercive effect” on juror deliberation in its context and under all
circumstances. Howard, 941 S.W.2d at 123 (citing Lowenfield v. Phelps, 484 U.S.
231, 237 (1988)); Freeman v. State, 115 S.W.3d 183, 186–87 (Tex. App.—
Texarkana 2003, pet. ref’d).
The Allen charge in this case was not coercive. The charge made no
indication of a preferred verdict and did not express the trial court’s opinion of the
case. It spoke to the jury as a whole rather than addressing a minority of the jurors
and instructed the jury it should arrive at a verdict only if it could do so “without
doing violence to your conscience.” See Freeman, 115 S.W.3d at 187. The Court
of Criminal Appeals and many of our sister courts have approved Allen charges
containing nearly identical language. See, e.g., Arrevalo v. State, 489 S.W.2d 569,
570–72 (Tex. Crim. App. 1973); Draper v. State, 335 S.W.3d 412, 417 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d); West v. State, 121 S.W.3d 95, 108–
10
09 (Tex. App.—Fort Worth 2003, pet. ref’d). The Fifth Circuit has also held that a
similar Allen charge was not coercive. See, e.g., United States v. Kelly, 783 F.2d
575, 576–77 (5th Cir. 1986); United States v. Anderton, 679 F.2d 1199, 1203 n.3
(5th Cir. 1982).
Nevertheless, Appellant argues he was egregiously harmed by the trial
court’s submission of the Allen charge, in its context, because the trial court
repeatedly stressed the time constraints associated with the case and forced the jury
to work unusually long hours. The fact that the trial court may have pressured the
jury to reach a verdict within a particular period of time does not mean the jury
was unduly coerced. See Hollie v. State, 967 S.W.2d 516, 524 (Tex. App.—Fort
Worth 1998, pet. ref’d) (holding that supplemental Allen charge that imposed
deadline on jury was not unduly coercive under the facts). Given that the charge in
this case referred to the jury as a whole, warned the jurors against violating their
consciences, and did not impose a deadline, we do not find under the facts that any
temporal pressure communicated to the jury was, either in itself or in combination
with other factors, coercive. Because we have found that the Allen charge in this
case was not coercive under the circumstances, we overrule Appellant’s second
point of error.
C. Motion for New Trial
Appellant contends in his final point of error that the trial court erred when it
denied his motion for new trial. We review a trial court’s ruling on a motion for
new trial under an abuse of discretion standard. Webb v. State, 232 S.W.3d 109,
112 (Tex. Crim. App. 2007). We must view the evidence in the light most
favorable to the trial court’s ruling and uphold that ruling if it was within the zone
of reasonable disagreement. Id. A trial court abuses its discretion in denying a
motion for new trial only when no reasonable view of the record could support the
ruling of the trial court. Id.
11
Appellant argues a new trial was warranted because the evidence produced
demonstrated that trial counsel’s failure to poll the jury constituted ineffective
assistance of counsel and contributed to Appellant’s conviction and punishment.
However, we have held that trial counsel’s failure to poll the jury did not constitute
ineffective assistance of counsel; we also hold that the trial court did not abuse its
discretion when it denied Appellant’s motion for new trial on the same grounds.
We overrule Appellant’s final point of error.
IV. This Court’s Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE
March 20, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
12 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2265020/ | 261 N.J. Super. 409 (1993)
619 A.2d 232
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
J.G., DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted December 8, 1992.
Decided January 6, 1993.
*412 Before BILDER, BAIME and WALLACE, JJ.
Zulima V. Farber, Public Defender, attorney for appellant (Robert Brigliadoro, designated counsel, of counsel and on the brief).
*413 Robert J. Del Tufo, Attorney General, attorney for respondent (Lisa Sarnoff Gochman, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by BAIME, J.A.D.
This appeal presents novel questions concerning the newly created victim-counselor privilege. N.J.S.A. 2A:84A-22.15 provides that a victim counselor has a privilege not to be examined as a witness with regard to any confidential communication. In addition to extending a testimonial privilege, the statute renders immune from discovery or legal process records of the victim's statements. N.J.S.A. 2A:84A-22.13. We hold that the privilege is sufficiently broad to encompass the confidential communications of both direct and secondary victims of violence. Statements made by the mother of a sexually abused child to the counselor are thus protected from disclosure. We also find no basis to require an in camera inspection of confidential files. Absent some compelling reason, we view even such a limited disclosure as a substantial dilution of the statutory privilege. Finally, we conclude that the mistaken release of confidential files by the victim's counselor does not constitute a waiver of the privilege. The privilege may be waived only by the written consent of the victim or his or her guardian.
Other important questions are raised concerning the "tender years" exception to the hearsay rule and the admissibility of confessions. Evid.R. 63(33) permits introduction of a child's statement relating to a sexual assault if, after a hearing, the court finds, among other things, that the declaration is trustworthy. We hold that the court may not consider the congruity of the child's statement and the defendant's confession in determining the trustworthiness of the declaration. The statement must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial. *414 We also conclude that a police officer's promise to release a suspect from custody if he gives a statement does not, by itself, taint a confession. A police officer's promise, even if disingenuous, is merely one of the factors to be considered in deciding whether the defendant's will was overborne.
I.
Tried by a jury, defendant was found guilty of three counts of aggravated sexual assault (N.J.S.A. 2C:14-2a(1)), three counts of second degree endangering the welfare of a child (N.J.S.A. 2C:24-4b(4)), and three counts of third degree endangering the welfare of a child (N.J.S.A. 2C:24-4a). The trial court sentenced defendant to an aggregate term of 55 years and ordered him to serve 27 1/2 years without parole eligibility. The codefendant, Robert Perozzi, was convicted of similar offenses at the joint trial. He was sentenced to an aggregate term of 30 years and was directed to serve 12 years without parole eligibility. Separate appeals were filed. This opinion pertains solely to the arguments advanced by defendant J.G.[1]
On July 15, 1989, defendant's wife, who was blind, left her home for a 20 day training course at a "seeing eye dog" clinic in northern New Jersey. In her absence, defendant assumed sole parental responsibility for their four children who ranged in age from one to eight years old. During this period, defendant and Perozzi allegedly sexually abused the three oldest children. We need not describe in detail the sordid facts except as necessary to explicate our responses to defendant's arguments. Suffice it to say that defendant and Perozzi allegedly engaged in homosexual acts in the presence of the children, had them perform sexual acts with each other and with them, and photographed much of this aberrant conduct. In addition, defendant allegedly compelled each of the three children to *415 sleep with him on a rotating basis at which time he engaged in various sexual activities. Each of the children testified at trial and recounted the lurid details surrounding these crimes.
After the return of defendant's wife, she noticed that one of her children was having severe nightmares. Eventually, the child told her that she had been sexually abused by defendant. The local pastor, the family physician and the Division of Youth and Family Services were then notified. In varying degrees of detail, each of the children ultimately revealed what had transpired. Their statements were admitted at the trial under Evid.R. 63(33) after the judge determined that the foundational requisites were satisfied.
The children's accounts of these incidents were given in a series of interviews conducted by Detective Carl Metroka, a member of the State Police, over a period of time. Defendant's daughter was the first to reveal defendant's sexual abuse. Thereafter, defendant's two sons confided in their mother that other sexual acts had occurred. Initially, defendant was confronted with his daughter's accusations. After waiving his constitutional rights, defendant gave an audiotaped confession in which he admitted that he digitally penetrated his daughter's vagina on three occasions. After defendant's sons divulged other sexual misconduct, defendant was confronted with each new accusation and, after waiving his constitutional rights, confessed to having sexually abused each of them. Following an Evid.R. 8 hearing, defendant's statements were admitted into evidence.
Both defendant and Perozzi testified at trial. Perozzi denied that he was present at defendant's residence when the offenses were committed. Defendant denied all allegations of sexual abuse. He testified that his confessions were untrue and were made only after the police convinced him he could return home if he were to give a statement.
*416 II.
We first consider defendant's arguments pertaining to the victim-counselor privilege. A brief recitation of the salient facts is necessary for a complete understanding of defendant's contentions. Following defendant's arrest, his wife and the three infant victims underwent counseling by Family Services of Burlington County, a private nonprofit mental health group. Family Services provides counseling to families and children where allegations of sexual abuse have been made or there is a history of child abuse. As part of the program, a clinical team of social workers, all of whom hold masters degrees in their specialties, provide counseling under the supervision of a board certified psychiatrist and a clinical psychologist.
Prior to trial, defendant's former attorney, Janet Zoltanski, served a subpoena on Family Services, demanding the files of the three children and their mother. Apparently unaware of the privilege, a clerk employed by Family Services complied with the subpoena and the files were delivered to Zoltanski who examined them. Upon learning of the release of the files, the trial judge quashed the subpoena, ordered the return of the privileged documents and directed Zoltanski not to reveal their contents. The Public Defender's Office assigned another attorney to represent defendant.
Against this factual backdrop, defendant contends that (1) his wife was not a victim of the crimes alleged in the indictment and her file should have been released, (2) all of the files should have been submitted to the trial judge for an in camera inspection to determine whether they contained confidential information and, if so, whether the constitutional right of confrontation served to override the privilege, and (3) the inadvertent production of the documents by Family Services constituted a waiver. We disagree with all of these claims.
The victim-counselor privilege was enacted by the Legislature in 1987 and has yet to be allocated as a rule by the Supreme *417 Court. See Biunno, Current N.J.Rules of Evidence, Rule 26A-5 at 413 (1992). N.J.S.A. 2A:84A-22.15 provides as follows:
Subject to Rule 37 of the Rules of Evidence, a victim counselor has a privilege not to be examined as a witness in any civil or criminal proceeding with regard to any confidential communication. The privilege shall be claimed by the counselor unless otherwise instructed by prior written consent of the victim. When a victim is incompetent or deceased consent to disclosure may be given by the guardian, executor or administrator except when the guardian, executor or administrator is the defendant or has a relationship with the victim such that he has an interest in the outcome of the proceeding. The privilege may be knowingly waived by a juvenile. In any instance where the juvenile is, in the opinion of the judge, incapable of knowing consent, the parent or guardian of the juvenile may waive the privilege on behalf of the juvenile, provided that the parent or guardian is not the defendant and does not have a relationship with the defendant such that he has an interest in the outcome of the proceeding. A victim counselor or a victim cannot be compelled to provide testimony in any civil or criminal proceeding that would identify the name, address, location, or telephone number of a domestic violence shelter or any other facility that provided temporary emergency shelter to the victim of the offense or transaction that is the subject of the proceeding unless the facility is a party to the proceeding. (emphasis added).
The statute supersedes N.J.S.A. 2A:84A-22.11, which created a rape counselor privilege, and is intended to offer comparable protection to a broader class of victims. Biunno, Current N.J.Rules of Evidence, Comment to Rule 26A-5 at 415. The statutory language tracks that contained in a model law proposed by the United States Department of Justice, but the protection accorded by N.J.S.A. 2A:84A-22.15 is wider in scope. See Final Report of the President's Task Force on Victims (1982).
The articulated objectives of the privilege are set forth in the legislative findings and declarations contained in N.J.S.A. 2A:84A-22.13. In brief, the Legislature found that the psychological scars of victims of violent crimes can often be ameliorated by counseling, N.J.S.A. 2A:84A-22.13b, that treatment is most successful when the victims are assured their thoughts and feelings will not be disclosed, N.J.S.A. 2A:84A-13d, that confidentiality should be accorded to those who require counseling whether or not they are able to afford the services of private psychiatrists or psychologists, N.J.S.A. 2A:84A-13e, and *418 that it is the public policy of this State to bar disclosure of communications maintained by the counselor. N.J.S.A. 2A:84A-13. We are bound to construe the privilege consonant with its essential purpose.
Initially, we hold that the protection afforded by the privilege is broad enough to encompass both direct and indirect victims of crimes of violence. N.J.S.A. 2A:84A-22.14c defines "victim" as one "who consults a counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by an act of violence." Conspicuously absent from this definition is any requirement that only the primary target of a violent crime is protected. Instead, the statutory privilege encompasses those whose "emotional condition [is] caused by an act of violence" whether or not he or she is the individual upon whom the crime was perpetrated. N.J.S.A. 2A:84A-22.14c. By adopting this statutory definition, the Legislature recognized that emotional trauma can be as disabling as a visible physical wound, see N.J.S.A. 2A:84A-22.13; cf. Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 538 A.2d 346 (1988); Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 508 A.2d 1095 (1986); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979); Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 301 A.2d 754 (1973); Folzone v. Busch, 45 N.J. 559, 214 A.2d 12 (1965), and that the pain of violence is often felt by those other than the immediate victim. We have no occasion here to define the outermost limits of the protection accorded by the statute. However, we are entirely satisfied that the mother of a sexually abused child is a victim of the crime and that her communications with a counselor fall within the purview of the statutory privilege.
We also reject defendant's argument that the files should have been examined by the trial judge in camera to determine whether the information was confidential and, if so, whether the accused's right to a fair trial nevertheless militated *419 in favor of disclosure. In a variety of factual settings, we have required in camera inspection of otherwise confidential materials. See, e.g., State v. Postorino, 253 N.J. Super. 98, 601 A.2d 223 (App.Div. 1991); State v. Cusick, 219 N.J. Super. 452, 530 A.2d 806 (App.Div.), certif. denied, 109 N.J. 54, 532 A.2d 1118 (1987); Arena v. Saphier, 201 N.J. Super. 79, 492 A.2d 1020 (App.Div. 1985); United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 483 A.2d 821 (App.Div. 1984). However, we are reluctant to adopt this course where, as here, the statute grants an absolute privilege. See In re Maraziti, 233 N.J. Super. 488, 559 A.2d 447 (App.Div. 1989). We acknowledge that there are situations in which the defendant's constitutional rights are paramount and override the State's policy of protecting records and documents from disclosure. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, even a preliminary disclosure of the contents of confidential files intrudes upon the victim's rights and dilutes the statutory privilege. We hold that in the absence of compelling circumstances, communications between a crime victim and a counselor consulted for treatment are absolutely immune from disclosure.
Finally, we conclude that Family Services' inadvertent release of the confidential files did not constitute a waiver of the privilege. We recognize that some courts have held the attorney-client privilege is waived by a mistaken disclosure. See, e.g., F.D.I.C. v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D.Va. 1991); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204 (N.D.Ind. 1990); Suburban Sew 'n Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254 (N.D.Ill. 1981); Underwater Storage, Inc. v. United States Rubber Co., 314 F. Supp. 546 (D.D.C. 1970). This approach is based on the premise that the privilege interferes with the search for the truth and therefore must be narrowly applied, see, e.g., F.D.I.C. v. Marine Midland Realty Credit Corp., 138 F.R.D. at 481, and that the risk of insufficient *420 precautions should rest with the party at fault, see, e.g., United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461, 465 (E.D.Mich. 1954). Others have questioned this thesis, characterizing the traditional rule as "atavistic, generating... harsh results out of all proportion to the mistake of inadvertent disclosure." Mendenhall v. Barber-Greene Co., 531 F. Supp. 951, 955 n. 8 (N.D.Ill. 1982); see also Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir.1981); Transamerica Computer v. Intern. Business Machines, 573 F.2d 646 (9th Cir.1978); Bud Antle, Inc. v. Grow-Tech Inc., 131 F.R.D. 179 (N.D.Cal. 1990); Niagara Mohawk Power Corp. v. Stone & Webster Eng. Corp., 125 F.R.D. 578 (N.D.N.Y. 1989); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46 (M.D.N.C. 1987); Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323 (N.D.Cal. 1985); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985), aff'd, 799 F.2d 867 (2d Cir.1986); W.R. Grace & Co. v. Pullman, Inc., 446 F. Supp. 771 (W.D.Okla. 1976); 8 Wigmore, Evidence § 2325-2326, at 633-34 (McNaughton rev. 1961); Note, Inadvertent Disclosure of Documents Subject to the Attorney-Client Privilege, 82 Mich.L.Rev. 598 (1983); George A. Davidsen and William H. Voth, Waiver of the Attorney-Client Privilege, 64 Or.L.Rev. 637, 644 (1986). The issue in terms of the attorney-client privilege is not before us. We question, however, whether our courts would adopt the strict approach and conclude that the privilege is automatically waived by reason of an inadvertent disclosure. See State v. Davis, 116 N.J. 341, 362-63, 561 A.2d 1082 (1989); State v. Loponio, 85 N.J.L. 357, 363, 88 A. 1045 (E. & A. 1913); State v. Tapia, 113 N.J. Super. 322, 330, 273 A.2d 769 (App.Div. 1971).
We are convinced that the mistaken release of confidential files does not abrogate the victim-counselor privilege. N.J.S.A. 2A:84A-22.15 expressly says that the privilege must be claimed by the counselor and cannot be waived "unless otherwise instructed by prior written consent of the victim." Waiver of the privilege rests solely with the victim, not the *421 counselor. If disclosure of privileged material is wrongfully or erroneously made by the counselor, evidence of the disclosed material is inadmissible. Evid.R. 38. Any other rule would render nugatory this State's strong public policy favoring the confidentiality of communications between victim and counselor.
III.
Defendant contends that the trial court erred by admitting into evidence the infant victims' statements. Following Evid.R. 8(1) hearings, the court found that the statements were trustworthy and thus admissible under the "tender years" exception to the hearsay rule. See Evid.R. 63(33). Regarding the statements made to Detective Metroka, the court observed that each child was questioned individually, that each provided detailed descriptions of sexual acts without prompting, and that the victims' accounts were corroborated by other evidence in the case including defendant's confessions. The court alluded to essentially the same circumstances in finding admissible the victims' statements to their mother. Although these statements were less detailed, the court determined that their reliability was established by the totality of the circumstances. The statements made to the family's pediatrician were found to be trustworthy because they were made "under clinical conditions," they disclosed a sexual knowledge beyond the ken of a young child, and they were corroborated by defendant's confessions. These findings and conclusions are supported by substantial, credible evidence present in the record. See State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964).
We add the following brief comments. Although we find the error harmless, we note that the trial court should not have considered defendant's confessions and other corroborative evidence in finding the victims' statements trustworthy under Evid.R. 63(33). In State v. D.R., 214 N.J. Super. 278, 518 A.2d 1122 (App.Div. 1986), rev'd on other grounds, 109 N.J. 348, *422 537 A.2d 667 (1988), we alluded to the congruity of a defendant's confession and the child's story in finding the victim's statement trustworthy. 214 N.J. Super. at 298, 518 A.2d 1122. However, in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), the United States Supreme Court subsequently held that "evidence corroborating the truth of a hearsay statement may [not be considered] to support a finding that the statement bears `particularized guarantees of trustworthiness.'" Id. at 822, 110 S.Ct. at 3150, 111 L.Ed.2d at 656-57. The Court said that "[t]o be admissible under the Confrontation Clause, hearsay evidence must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Ibid. The use of corroborating evidence to support a hearsay statement's "particularized guarantees of trustworthiness" would "permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial...." Ibid. The trial court thus erred by considering defendant's confessions in finding that the victims' statements were reliable. See State v. Roman, 248 N.J. Super. 144, 152-53, 590 A.2d 686 (App.Div. 1991).
We are nevertheless convinced that the other circumstances identified by the trial court supported its ultimate findings that the statements were admissible. In the overall setting, we view the judge's error as harmless beyond a reasonable doubt because the victims' statements clearly possessed the indicia of reliability.
IV.
Prior to trial, defendant moved to suppress his confessions. At the motion hearing, Detective Metroka testified that on September 14, 1989, he telephoned defendant and informed him of the allegations that were made by his daughter. Defendant replied that he had applied a prescription cream to his daughter's vagina, but had never engaged in sexual activities with her. The detective asked defendant to give a formal *423 statement at the State Police barracks. Metroka testified that he expected defendant's written statement would reflect the exculpatory account he had given orally. Based on that assumption, he told defendant that he would be permitted to return to his home after giving his statement.
When defendant arrived at the barracks, he was apprised of his constitutional rights and thereafter signed a waiver form. Questioning was initially conducted by Detective Edward McDonough. In the course of the interrogation, McDonough suggested that perhaps defendant had inserted his finger in his daughter's vagina thinking she was his wife. Defendant nodded in agreement, at which point McDonough suggested that he tell the truth. Defendant then admitted that he molested his daughter. After again being advised of his constitutional rights, defendant gave an audiotaped confession, approximately ten minutes in length.
Defendant was arrested the same day. After a brief stay in the Burlington County Jail, he posted bail and was released. As a condition of bail, defendant was required to remove his belongings from the family residence escorted by a State Police officer. In the interim period between defendant's release from jail and his return to the State Police barracks, Metroka learned of additional allegations of sexual misconduct. Upon entering the barracks, defendant was advised of his constitutional rights. After signing a waiver form, defendant admitted that he performed fellatio on both his sons.
The trial judge found both statements had been voluntarily given. In reaching this conclusion, the judge determined that Metroka's promise to release defendant was based upon his assumption J.G. would provide an exculpatory account. The judge concluded that the promise was not the determinative factor motivating the defendant to give the statements he now challenges. Defendant's confessions were said to be the product of his free and independent decision. We find no basis in *424 the record to disturb the judge's factual findings and legal conclusions.
Based upon our examination of the record, we are satisfied that defendant's confessions were the "product of an essentially free and unconstrained choice." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973). We are in complete accord with the trial judge's conclusion that Metroka's promise to release defendant did not constitute an unlawful inducement so as to render the confessions involuntary. We acknowledge dictum in earlier decisions of the United States Supreme Court that a confession is involuntary if "extracted by any sort of threats or violence [or] obtained by any direct or implied promises, however slight." Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568, 573 (1897). However, in more recent opinions, the Court has disavowed the idea that an accused's statement induced by a promise is inherently involuntary. See Arizona v. Fulminante, 499 U.S. ___, ___, 111 S.Ct. 1246, 1251, 113 L.Ed.2d 302, 315, reh. denied, ___ U.S. ___, 111 S.Ct. 2067, 114 L.Ed.2d 472 (1991). Instead, the proper inquiry is whether, under the totality of circumstances, the defendant's "will has been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U.S. at 225-26, 93 S.Ct. at 2047, 36 L.Ed.2d at 862, quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057 (1961). Among the relevant factors are "the defendant's age, education, intelligence, advice concerning his constitutional rights, and the nature of the questioning specifically, whether the questioning was repeated and prolonged and whether it involved physical punishment or mental exhaustion." State v. Bey, 112 N.J. 123, 135, 548 A.2d 887 (1988); State v. Miller, 76 N.J. 392, 402, 388 A.2d 218 (1978).
Applying these principles, we are convinced that Metroka's promise to release defendant did not taint the confessions. In reaching this conclusion, we treat the officer's promise as *425 part of the totality of the circumstances. See Green v. Scully, 850 F.2d 894, 901 (2d Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988); United States v. Pelton, 835 F.2d 1067, 1073 (4th Cir.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986); State v. DiFrisco, 118 N.J. 253, 257, 571 A.2d 914 (1990); State v. Watford, 261 N.J. Super. 151, 161, 618 A.2d 358 (App.Div. 1992) (Havey, J.A.D., concurring); State v. Starling, 188 N.J. Super. 127, 133-34, 456 A.2d 125 (Law Div. 1983), aff'd o.b., 207 N.J. Super. 79, 504 A.2d 18 (App.Div. 1985), certif. denied, 103 N.J. 481, 511 A.2d 658 (1986). The promise may have been disingenuous, but it was not false. State v. DiFrisco, 118 N.J. at 257, 571 A.2d 914. In the context of the overall picture, we are satisfied that the detective's comment did not overbear defendant's will.[2]
V.
Defendant's remaining arguments in which he challenges the fairness of the trial and the jury's verdict are clearly without merit. R. 2:11-3(e)(2). Specifically, we are entirely unpersuaded by defendant's claim that he was denied the effective assistance of counsel and that the jury's verdict was against the weight of the evidence.
VI.
Finally, we reject defendant's argument that the sentences imposed were excessive. As we noted earlier, defendant *426 was sentenced to an aggregate term of 55 years and was ordered to serve 27 1/2 years without parole eligibility. On two of the aggravated sexual assault convictions, defendant was sentenced to consecutive 20 year terms with ten year parole disqualifiers. The sentence on the third conviction for aggravated sexual assault, 20 years, is to run concurrently. The sentences on the three convictions for second degree endangering the welfare of a child, each ten years, are to run concurrently. Defendant received three consecutive five year sentences on the convictions for third degree endangering the welfare of a child, each with a 2 1/2 year parole disqualifier. These sentences are undoubtedly harsh. However, we find no abuse of the sentencing court's discretion.
In support of the sentences imposed, the court cited the heinous nature of the crimes, N.J.S.A. 2C:44-1a(1), the gravity and seriousness of the harm inflicted on the victims, N.J.S.A. 2C:44-1a(2), the risk of future criminal misconduct, N.J.S.A. 2C:44-1a(3), and the need to deter, N.J.S.A. 2C:44-1a(9). Each of these findings is "grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363, 471 A.2d 370 (1984). The judge found only one factor in mitigation of sentence, defendant's lack of a criminal record. N.J.S.A. 2C:44-1b(7). This circumstance was said to pale when considered in the context of the aggravating factors. We cannot fairly say that the judge erred in reaching this conclusion. State v. Roth, 95 N.J. at 366, 471 A.2d 370. In light of these findings, the quantum of each sentence and the parole ineligibility term imposed were entirely appropriate. See State v. Ghertler, 114 N.J. 383, 390, 555 A.2d 553 (1989); State v. Kruse, 105 N.J. 354, 359-60, 521 A.2d 836 (1987).
Imposition of consecutive terms was not an abuse of discretion. The crimes were committed at different times and involved multiple victims. State v. Yarbough, 100 N.J. 627, 644, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986). Each offense involved a separate *427 act of violence. Ibid. Although the aggregate term exceeds the cumulative sentence for the two most serious crimes committed, ibid., this case is so extreme and so extraordinary that deviation from the guidelines is appropriate, id., at 647, 498 A.2d 1239. See also State v. Moore, 113 N.J. 239, 309, 550 A.2d 117 (1988); State v. Mujahid, 252 N.J. Super. 100, 120, 599 A.2d 536 (App.Div. 1991), certif. denied, 127 N.J. 561, 606 A.2d 372 (1992); State v. Craig, 237 N.J. Super. 407, 417, 568 A.2d 100 (App.Div. 1989), certif. denied, 121 N.J. 662, 583 A.2d 348 (1990); State v. Lewis, 223 N.J. Super. 145, 153-54, 538 A.2d 399 (App.Div.) certif. denied, 111 N.J. 584, 546 A.2d 510 (1988); State v. Day, 216 N.J. Super. 33, 37-38, 522 A.2d 1019 (App. Div.), certif. denied, 107 N.J. 640, 527 A.2d 462 (1987).
We acknowledge that the aggravated sexual assault and endangering the welfare of a child convictions somewhat overlap. See State v. Miller, 108 N.J. 112, 122, 527 A.2d 1362 (1987). We also recognize that where the offenses are closely related it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively. Ibid. However, it is equally plain that "the offenses are different because the crime of endangering the welfare of a child is aimed not only at specific conduct but also at the violation of the duty that a parent owes a child." Id. at 118, 527 A.2d 1362; see also State v. D.R., 109 N.J. at 377, 537 A.2d 667. Here, defendant's repeated violations of his parental duty were so egregious as to warrant cumulative penalties. Because his wife was blind and sought clinical assistance, defendant was able to treat his children as sexual pawns. The infant victims depended upon defendant for their safety and welfare. He abused this trust and, along with his homosexual lover, committed perversities beyond description. In that context, we cannot fairly conclude that the overall sentence was excessive.
Affirmed.
NOTES
[1] We have this day affirmed codefendant Perozzi's conviction and sentence. State v. Perozzi (A-5652-90T5).
[2] In his brief, defendant contends that he requested an attorney, but he was not allowed to call a "lawyer friend." This contention was not advanced in the pretrial Evid.R. 8 hearing. The point was raised for the first time in defendant's direct examination at the trial. We deem the argument waived. State v. McDougald, 120 N.J. 523, 562, 577 A.2d 419 (1990). In any event, we regard as dispositive the evidence presented at the Evid.R. 8 hearing. That evidence indicates that defendant declined to have an attorney present while in custody despite repeated warnings regarding his constitutional rights. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070143/ | IN THE
TENTH COURT OF APPEALS
No. 10-14-00319-CV
ESTATE OF BETTIE M. MAXEY, DECEASED
From the County Court
Falls County, Texas
Trial Court No. 8305
ORDER
Appellants indicated in their docketing statement that this appeal should be
referred to mediation.
The Legislature has provided for the resolution of disputes through alternative
dispute resolution (ADR) procedures. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.001-
154.073 (West 2011). The policy behind ADR is stated in the statute: “It is the policy of
this state to encourage the peaceable resolution of disputes . . . and the early settlement
of pending litigation through voluntary settlement procedures.” Id. § 154.002 (West
2011). Mediation is a form of ADR. Mediation is a mandatory but non-binding
settlement conference, conducted with the assistance of a mediator. Mediation is
private, confidential, and privileged.
We find that this appeal is appropriate for mediation. See id. § 154.021(a) (West
2011); 10TH TEX. APP. (WACO) LOC. R. 9.
The parties are ordered to confer and attempt to agree upon a mediator. Within
fourteen days after the date of this Order, Appellant is ordered to file a notice with the
Clerk of this Court which either identifies the agreed-upon mediator or states that the
parties are unable to agree upon a mediator. If the notice states that the parties are
unable to agree upon a mediator, this Court will assign a mediator.
Mediation must occur within thirty days after the date the above-referenced
notice agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty
days after the date of the order assigning a mediator.
No less than seven calendar days before the first scheduled mediation session,
each party must provide the mediator and all other parties with an information sheet
setting forth the party’s positions about the issues that need to be resolved. At or before
the first session, all parties must produce all information necessary for the mediator to
understand the issues presented. The mediator may require any party to supplement
the information required by this Order.
Named parties must be present during the entire mediation process, and each
party that is not a natural person must be represented by an employee, officer, agent, or
representative with authority to bind the party to settlement.
Estate of Maxey Page 2
Immediately after mediation, the mediator must advise this Court, in writing,
only that the case did or did not settle and the amount of the mediator’s fee paid by
each party. The mediator’s fees will be taxed as costs. Unless the mediator agrees to
mediate without fee, the mediator must negotiate a reasonable fee with the parties, and
the parties must each pay one-half of the agreed-upon fee directly to the mediator.
Failure or refusal to attend the entire mediation as scheduled may result in the
imposition of sanctions, as permitted by law.
Any objection to this Order must be filed with this Court and served upon all
parties within ten days after the date of this Order, or it is waived.
We refer this appeal to mediation.
The appeal and all appellate deadlines are suspended as of the date of this Order.
The suspension of the appeal is automatically lifted when the mediator’s report to the
Court is received. If the matter is not resolved at mediation, any deadline that began to
run and had not expired by the date of this Order will begin anew as of the date the
mediator’s report to the Court is received. Any document filed by a party after the date
of this Order and prior to the filing of the mediator’s report will be deemed filed on the
same day, but after, the mediator’s report is received.
PER CURIAM
Estate of Maxey Page 3
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Order issued and filed November 20, 2014
Estate of Maxey Page 4 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2632834/ | 157 P.3d 670 (2007)
STATE
v.
ZUGG.
No. 96478.
Court of Appeals of Kansas.
May 11, 2007.
Decision without published opinion. Affirmed in part, vacated in part, and remanded with directions. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264987/ | 619 A.2d 978 (1993)
In re Richard John UNTALAN, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
No. 90-SP-91.
District of Columbia Court of Appeals.
Submitted January 13, 1993.
Decided February 2, 1993.
Before TERRY and STEADMAN, Associate Judges, and KERN, Senior Judge.
PER CURIAM:
On July 13, 1989, respondent upon entry of a plea of nolo contendere was convicted in the Superior Court of Guam for criminal facilitation of a felony of the second degree, theft by deception, which is a misdemeanor under 9 G.C.A. § 4.65.[1] On September 20, 1990, the Board on Professional Responsibility (the "Board") determined *979 that the crime for which respondent was convicted did not involve moral turpitude per se within the meaning of D.C.Code § 11-2503(a) (1989 Repl.).[2] The case was referred to a Hearing Committee for a determination of whether respondent's conduct involved moral turpitude.
The Hearing Committee determined that although respondent was convicted of a misdemeanor, the circumstances of his crime involved moral turpitude as proscribed by D.C.Code § 11-2503(a) and therefore recommended disbarment. The Board's Report and Recommendation concludes that respondent shall be disbarred for committing an offense in which his conduct involved moral turpitude under D.C.Code § 11-2503(a).[3] Respondent did not appear before either the Hearing Committee or the Board, but he did submit an answer and, through his counsel, delivered a letter objecting to some of the characterizations in the Hearing Committee Report.
The Board rejected respondent's objections and adopted the Hearing Committee's Report which found that respondent's conduct was fraudulent and that it involved moral turpitude. Our prior cases hold that crimes involving theft or fraud generally have been found to be crimes of moral turpitude. See In re Boyd, 593 A.2d 183 (D.C.1991); In re Bond, 519 A.2d 165 (D.C. 1986). The Board did not review the elements of the offense in the instant case, but rather the circumstances of respondent's actions. "[N]o conviction of a misdemeanor may be deemed a conviction of a crime involving moral turpitude per se, even though that misdemeanor may be properly characterized as a `serious crime,'... and may be held to involve moral turpitude on the facts of the case." McBride, supra, 602 A.2d at 629. Cf. In re Youmans, 617 A.2d 534, 534 (D.C.1993) (respondent's felony conviction in New Jersey for conspiracy to commit theft by deception was a per se offense involving moral turpitude under D.C.Code § 11-2503(a)).
The Board concluded in its Report that respondent's offense contained the elements of a classic scam and was effected for respondent's personal gain. See In re Shorter, 570 A.2d 760, 765 (D.C.1990) (stating that "the concept [of moral turpitude] has commonly been found to involve intentional dishonesty for personal gain"). We approve and adopt the report and recommendation of the Board.
Accordingly, it is ORDERED that respondent is disbarred from the practice of law in the District of Columbia, pursuant to D.C.Code § 11-2503(a).
So ordered.
APPENDIX
District of Columbia Court of Appeals Board on Professional Responsibility
In the Matter of RICHARD J. UNTALAN, Respondent.
Bar Docket No. 53-90
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
Respondent was convicted of Criminal Facilitation of the Felony of Theft by Deception, a misdemeanor on July 13, 1989, in *980 the Superior Court of Guam in violation of 9 G.C.A. § 4.65.[1] By Opinion and Order dated September 20, 1990, this Board determined that the crime for which Respondent was convicted was not an offense involving moral turpitude per se within the meaning of D.C.Code § 11-2503(a). The case was referred to a hearing committee for a determination of whether the circumstances of Respondent's offense portray a crime of moral turpitude.
In the Report of Hearing Committee Number Three dated February 25, 1992, they determined that, although Respondent was convicted of a misdemeanor, his crime involved moral turpitude as proscribed by D.C.Code § 11-2503. The Hearing Committee recommended his disbarment.[2]
Respondent did not appear before the Hearing Committee or this Board but he did submit his Answer to the Petition and, through his counsel, delivered a letter objecting to some of the characterizations in the Hearing Committee Report.
The misconduct involved here arises from the sale of the Windward Hills Golf and Country Club in Guam. The golf course was the sole asset of the Intraterra Golf and Country Club, Inc. Respondent was an officer, director and legal counsel for the corporation and for Intraterra Development, Inc., the parent corporation. Respondent and Gerald A. (Pat) Burke told the stockholders of the corporation that the golf course was being sold for $2.5 million. But, the actual sale price was $4 million. Respondent did not reveal to the stockholders that $1 million was transferred to the buyer through Tetsuro (Hank) Fuseya. The remaining $500,000 was retained by Respondent, Gerald A. (Pat) Burke and Tetsuro (Hank) Fuseya. BX-2, Plea Agreement, ¶ 2, pp. 2-3.
Respondent, in his Answer, represents that the purchaser insisted that the sale price for the property be $4 million in order to allow the buyer to secret $1 million out of Japan, evading the country's currency regulations. Further, he insists that the stockholders were better off under his actions than under the true configuration. That is, the organization at the time of sale was undergoing bankruptcy. The corporation was pulled out of the court process because the sale enabled the company to pay its debts and obligations. Respondent maintains that the actual price was $2.5 million. After the debts were paid, there remained $240,000. All of this, according to Respondent was distributed to the minority stockholders. Instead, if the property was sold for $4 million and since the debts were $2,260,000, the minority shareholders (entitled to 10%) then would have only received $174,000. Respondent's Answer, ¶¶ 9-10. Moreover, Respondent insists that he was tired from the protracted investigation in Guam, fearful of being tried with a foreign national and thus, entered into what, he argues, amounts to an "Alford" plea.[3] Answer, ¶ 16.
*981 As we said, after the scheme was detected by the authorities, Respondent entered into a plea agreement with the prosecutors which settled all the criminal charges against him. In the Superior Court of Guam, Respondent agreed to enter a plea of nolo contendere (no contest) to one misdemeanor count charging Criminal Facilitation of a Felony of the Second Degree, Theft by Deception. 9 G.C.A. § 4.65 filed pursuant to 9 G.C.A. §§ 80.34 and 80.50. Respondent agreed to pay $300,000 in restitution to the stockholders of Intraterra Golf and Country Club, Inc. and pay a fine of $25,000 (which apparently was in excess of the statutory limit). There were other conditions, for example that Respondent would be placed on probation for two years. See, BX-2, Plea Agreement.
When the matter was referred to this Board to determine if Respondent's conviction was for a offense whose elements established it to be a crime of moral turpitude per se, the Board in an Opinion and Order dated September 20, 1990, determined that the statute in question, Criminal Facilitation of the Felony of Theft by Deception, could be committed under a configuration of elements which were not proscribed as a crime of moral turpitude per se. The case was then referred to a hearing committee for a review of the facts to determine if the circumstances of the misdemeanor revealed it to be a crime of moral turpitude.
Hearing Committee Number Three rejected Respondent's arguments. Respondent claims there was no fraud. See, Answer, ¶ 9-10. Yet, the Committee correctly points out that Respondent in his Answer admits to the configuration of, as he terms it, a "dummy" sale of $4 million. See, Answer ¶ 6. Despite the paper work showing a sale for this amount, the actual monies received by the corporation was $2.5 million. Answer ¶ 7. Of the complete sale price, $1 million was received back by the purchaser and the remaining $500,000 was used, as he further states, to purchase property in a corporation which owned land surrounding the golf course. Id. Yet, the Plea Agreement, BX-2, ¶ 2, p. 3, clearly shows that this $500,000 was received by Respondent, Gerald A. (Pat) Burke and Tetsuro (Hank) Fuseya from the original $4 million purchase price. Thus, the Committee Report is supported by substantial evidence as a whole, when it concludes that Respondent participated in a fraudulent sale of Windward Hills Golf and Country Club.
Respondent did enter a nolo contendere or a no contest plea, but this is no different in result from an actual, specific admission of guilt. Moreover, his arguments that his Plea Agreement was tantamount to an Alford plea is of no real assistance to his position. First, an Alford plea is indistinguishable from a guilty plea in result for the purposes of the disciplinary process. In re Kerr, 424 A.2d 94, 96 n. 12 (D.C.1980) (en banc) (despite protestations of innocence after an Alford plea, the hearing committee was correct not to revisit the issue of guilt). Second, a valid guilty plea acts as a conviction of the crime charged, as well as an admission of all the material facts alleged by the government. In re Colson, 412 A.2d 1160, 1164 (D.C.1979) (en banc) (citations omitted).
In a letter dated March 26, 1992, Attorney Jerry E. Hogan argues on Respondent's behalf that a portion of the Hearing Committee Report is inaccurate. He complains about the following statement of the Hearing Committee Report at n. 2, p. 3:
Respondent glosses over the fact that the only reason the stockholders received the $240,000 was because it was part of his criminal restitution and in settlement of civil litigation based upon the same facts.
The Plea Agreement, BX-2, clearly requires Respondent by its terms to pay $300,000 in restitution. Nevertheless, the Board finds that the above-quoted statement's impact upon the Hearing Committee's considerations of whether Respondent's actions reveal a crime of moral turpitude or in connection with their recommendation on what sanction should be imposed is de minimis.[4] The Hearing Committee's *982 fraud determination remains without regard to how the Board decides whether the stockholders received this money as a result of the sale of the golf club or from the court ordered restitution. Moreover, this statement on restitution did not enhance the sanction recommended by the Hearing Committee from a reading of their Report.
The Hearing Committee determined that the circumstances of Respondent's crime involved moral turpitude. Our prior cases hold that crimes involving theft or fraud generally have been found to be crimes of moral turpitude. In re Boyd, 593 A.2d 183 (D.C.1991); In re Bond, 519 A.2d 165 (D.C. 1986). A crime in which the "intent to defraud" is an essential element has been determined to be a crime involving moral turpitude per se. Id. at 166, citing In re Anderson, 474 A.2d 145 (D.C.1984); In re Willcher, 447 A.2d 1198 (D.C.1982). The Board understands in this case that we are reviewing the circumstances of Respondent's actions, not the elements of the crime. It is, however, helpful for us to use whatever analogies are available in making our determination on the conduct of Respondent. The Board has previously been given three alternative definitions of the term "moral turpitude:" (1) the act denounced by the state offends the generally accepted moral code of mankind; (2) the act is one of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man, or (3) conduct contrary to justice, honesty, modesty, or good morals. In re Colson, supra, 412 A.2d at 168; In re Wolff, 490 A.2d 1118, 1119 (D.C.1985) adopted en banc 511 A.2d 1047 (D.C.1986); In re Campbell, 522 A.2d 892, 894 (D.C. 1987) (per curiam); In re Shillaire, 549 A.2d 336, 345 (D.C.1988).
Recently, the District of Columbia Court of Appeals said:
We have never defined "intent to defraud" for lawyer disciplinary purposes, but our disciplinary caselaw to date has concerned convictions for crimes in which the "intent to defraud" has reflected the common law definition: an intent to obtain property by false or fraudulent pretense, representation, or promise.
In re McBride, supra, 602 A.2d at 633 (citations omitted).
Common law fraud is focused upon personal gain. Id. at 634. Under the District of Columbia Court of Appeals definition of fraud, Respondent's actions seem to fit the pattern. He, with others, used fraudulent pretense (saying the sale of the golf club was for $2.5 million when the price was $4 million) and, deception (allowing $1 million to be kickback to the buyer enabling him to evade Japan's currency laws) while receiving a portion of the purchase price for personal gain (sharing $500,000 of the purchase price with two others). This crime had all the tenants of a classic scam. Was this formula devised to insure that the minority stockholders received their fair share for their interests in the golf club? We think not. The amended indictment, BX-1, set forth an elaborate chain of wire transfers, telexes and shell corporations between Guam, Hong Kong and Japan. Business relationships will never exist, internationally, interstate or intra-city unless mankind can depend upon the honesty and veracity of contractual transactions. The moral turpitude in this scheme exists "because the act denounced ... grievously offends the moral code of mankind and would do so even in the absence of a prohibitive statute." United States v. Carrollo, 30 F. Supp. 3, 6 (W.D.Mo.1939) cited with approval in In re Shorter, 570 A.2d 760, 765 (D.C.1990). This crime effected personal gain for Respondent in the process of secretly providing money back to the purchaser. It does not matters that the stockholders eventually got some money from the sale of a corporate asset at a time when the corporation was about to declare bankruptcy. The transaction was primarily utilized to line the pockets of Respondent and the others involved in doing the business deal.
*983 Thus, having concurred with the Hearing Committee's determination that the circumstances of Respondent's crime involves moral turpitude, we agree with the sanction recommended by the Hearing Committee for disbarment. D.C.Code § 11-2503. We make similar recommendations on both the determination on the facts and as to sanction to the District of Columbia Court of Appeals.
Board on Professional Responsibility
By: /s/ Francis D. Carter
Francis D. Carter
Date: July 27, 1992
All members of the Board concur in the foregoing Report and Recommendation except Mr. Cohen who did not participate in this decision.
NOTES
[1] As part of the plea to one misdemeanor count of theft by deception, respondent agreed, inter alia, to be suspended from the practice of law in Guam for one year, to pay $300,000 in restitution to the stockholders of a country club for his participation in its sale, and to pay a $25,000 fine.
[2] In re McBride, 602 A.2d 626 (D.C.1992) (en banc), limited the procedural analysis for disciplinary proceedings by making a distinction between felonies and misdemeanors. Prior to McBride, the Board would make an initial determination, for both felonies and misdemeanors, whether the offense giving rise to the conviction involves moral turpitude per se. See, e.g., In re Colson, 412 A.2d 1160 (D.C.1979) (en banc). If the Board decides that an offense inherently involves moral turpitude (i.e., per se), then no hearing is conducted since the Board must recommend disbarment. Id. at 1164.
McBride limited this analysis and, consequently, only felony offenses may be deemed to inherently involve moral turpitude (i.e., moral turpitude per se). McBride, supra, 602 A.2d at 629. The practical effect of the McBride decision, as pertaining to misdemeanors, is that the Board must conduct a hearing to determine whether the attorney's conduct under the particular circumstances, rather than the crime itself, involves moral turpitude. Id. at 633.
[3] Respondent was temporarily suspended from the practice of law in the District of Columbia pending disposition of this proceeding, effective February 6, 1990, under D.C.Bar R. XI, § 10(c).
[1] The disciplinary system of this jurisdiction can certainly consider actions by Respondent outside the District of Columbia "... as reflective of his ... fitness to practice as [well as Respondent's] conduct occurring in our own courts." In re W.E. Thompson, 478 A.2d 1061, 1063-1064 (D.C.1984).
[2] Respondent has been convicted of a crime and thus, we proceed under the statutory provisions of D.C.Code § 11-2503. The same conduct without a criminal conviction would allow the Board, instead, to proceed under DR 1-102(A)(3) which reads in relevant part: "A lawyer shall not ... [e]ngage in illegal conduct involving moral turpitude that adversely reflects on his fitness to practice law." Moreover, a determination of the misconduct by this Board under the statutory prohibition produces a single sanction, that is disbarment. See, In re McBride, 602 A.2d 626, 629 (D.C.1992) (en banc). However, if we were in a position to determine that Respondent committed misconduct under the disciplinary code provision and did reach such a conclusion, the Board would have the full range of sanctions, consistent with dispositions for similar misconduct, available to us.
[3] Under the aegis of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) a defendant is allowed to enter a plea by maintaining his innocence, but stating that the evidence of the government is of such quantity and quality that if he went to trial that he would be convicted. The legal effect, however, is the same as if the defendant admitted each and every element of the crime for which he stands convicted.
[4] Blacks Law Dictionary defines the terms: "de minimis non curat lex" as the law does not care for, or take notice of, very small or trifling matters. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363540/ | 205 S.E.2d 622 (1974)
21 N.C. App. 615
Thomas W. BURBAGE, Plaintiff,
v.
ATLANTIC MOBILEHOME SUPPLIERS CORPORATION, Defendant and Third-Party Plaintiff,
v.
REESE PRODUCTS, INC., Third-Party Defendant.
No. 7429DC153.
Court of Appeals of North Carolina.
June 5, 1974.
*623 Ramsey, Hill, Smart & Ramsey by Allen Van Turner, Brevard, for plaintiff-appellee.
Morris, Golding, Blue & Phillips by James F. Blue, III, Asheville, for defendant-appellant.
Roberts & Cogburn by Landon Roberts, Asheville, for third party defendant-appellee.
CARSON, Judge.
The plaintiff bases his claim upon the breach of an implied warranty by defendant Atlantic. In 1965, when North Carolina enacted the Uniform Commercial Code, the long accepted concept of implied warranty in sales transactions was codified. G.S. § 25-2-314 provides an implied *624 warranty of merchantability with respect to goods sold by merchants. In order to effectively assert a claim under the statute, the plaintiff must prove the giving of the warranty, the breach of that warranty, and damages resulting to him as a proximate result of the breach. Douglas v. Mallison, 265 N.C. 362, 144 S.E.2d 138 (1965); Uniform Commercial Code, White and Summers, Sec. 9-1, p. 272 (1972). We do not feel that the plaintiff has satisfied this burden.
In the case of Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392 (1955), the plaintiff brought an action for breach of warranty against the retailer of a hair rinse which she alleged caused damage to her scalp. No analysis of the hair rinse was made. The only showing was the use of the rinse and a severe scalp infection which followed. In affirming the nonsuit granted to the defendant at the close of the plaintiff's evidence, the court held that the mere use of the product and the damage were insufficient to submit the matter to the jury. Without an analysis of what was in the hair rinse and what effect it had on the plaintiff, the cause of the damages was purely speculative, and the suit was properly dismissed.
In the instant case the plaintiff admitted that he did not read the instructions furnished with the trailer hitch. He further admitted that he knew the tongue weight should be between 350 and 525 pounds, but he stated that he picked up the tongue and placed it on the ball. Whether the breaking of the trunnion was caused by a defect in the part, or by the improper load distribution or connection, is pure speculation and should not have been submitted to the jury. The only evidence presented was the testimony of the plaintiff and the trunnion itself. No evidence was presented as to why the trailer hitch broke. No expert or opinion testimony was given concerning the suitability of the trailer hitch. The plaintiff contends that a layman would know from experience that steel is of uniform consistency and color, that it sometimes contains processed impurities, that impurities render steel less resilient and more brittle, that manufacturers of steel products use steel which provides a minimum margin of strength to meet product stresses, and that steel products which contain impurities may not be sufficiently strong to meet such stresses. However, these matters are not common knowledge and cannot be inferred without competent evidence. It is only conjecture as to whether the improperly loaded or balanced trailer caused the trunnion to break, whether the trunnion was defective, or whether the accident was caused by another force. This matter should not have been submitted to the jury, and the defendant's motion for a directed verdict should have been allowed.
Because the motion for a directed verdict should have been granted to the defendant, it is not necessary to decide the third party defendant's questions concerning lack of jurisdiction and running of the statute of limitations. The judgment is reversed.
BRITT and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1866002/ | 422 So.2d 60 (1982)
James Alvin EVANS, Appellant,
v.
The STATE of Florida, Appellee.
No. 82-959.
District Court of Appeal of Florida, Third District.
November 9, 1982.
Bennett H. Brummer, Public Defender and Harold Mendelow, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Scott Silver and Calvin Fox, Asst. Attys. Gen., for appellee.
Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
FERGUSON, Judge.
Appellant visited the victim's jewelry store purportedly to purchase jewelry. While the owner was in the rear of the store engraving, the saleslady waiting on the appellant left him alone in the front to get him water at his request. After receiving the water, the appellant told the saleslady that he had spilled some on himself and would like to go out and clean up. The saleslady then unlocked the electronically controlled front door and he left. The storeowner came out, saw appellant getting into a cab and noticed that several items of expensive jewelry were missing from display cabinets. He ran after appellant attempting to catch him, but was unsuccessful. Neither the saleslady nor the owner saw any other person in the store during the entire episode.
At trial the following exchange took place between the victim and defense counsel on cross-examination:
Q. How many times did the police come to your store other then on the first day?
A. I believe that's all. We went down to the police station instead of them coming to us.
Q. It was once or twice?
A. Twice.
Q. Once for what purpose?
A. We had to identify who it was by mug shots. (e.s.)
Defense counsel's motion for mistrial set forth no specific grounds and was denied. There was no request for a curative instruction. Appellant contends that the reference to mug shots was so prejudicial that a new trial is required. We cannot agree.
Usually, a reference to mug shots does not necessitate an automatic reversal; rather the question must be resolved on the *61 basis of the entire record and surrounding circumstances. See Loftin v. State, 273 So.2d 70 (Fla. 1973); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977). Appellant concedes that identification of defendant as a person in the store on the date of the theft is not an issue. The real question is whether the circumstantial evidence excludes as a reasonable inference that someone other than the appellant took the jewelry from the store. The words "mug shot", used by the witness in describing how she identified appellant, on this record, did not injuriously affect the substantial rights of the defendant and was therefore, at most, harmless error. A reference to a mug shot in police files does not necessarily convey to a jury that a defendant has committed prior crimes or has previously been in trouble with the police. Under these circumstances, including eyewitness identifications, a jury instruction, if requested and given, would have cured the error. Loftin v. State, 273 So.2d 70; Moore v. State, 418 So.2d 435 and Mancebo v. State, 350 So.2d 1098.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265002/ | 54 Cal. App. 4th 453 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
EDWARD ALVARADO GALLEGOS, Defendant and Appellant.
Docket No. E015983.
Court of Appeals of California, Fourth District, Division Two.
April 21, 1997.
*455 COUNSEL
Charles R. Khoury, Jr., 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, Holly D. Wilkens and Frederick B. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
RAMIREZ, P.J.
A jury convicted Edward Alvarado Gallegos of second degree murder (Pen. Code, § 187), willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664, 187), possession of heroin (Health & Saf. Code, § 11350)[1] and six counts of assault with a handgun (Pen. Code, § 245, subd. (a)(1)). The jury further found that during all the nondrug offenses, Gallegos had used a handgun. (Pen. Code, § 12022.5.) He was sentenced to prison for 15 years to life, with a consecutive life term, and appeals, claiming jury instruction error and insufficiency of the evidence. We reject all his contentions, save his insufficiency of the evidence argument as to three of the assaults.
FACTS
On January 24, 1992, Gallegos was among a crowd of hundreds at a Coachella nightclub where a Tejano singer and his band were performing. Gallegos, who was standing inches from the stage at the front of the very crowded dance floor, leapt up onto the stage, pulled out a .25-caliber handgun, approached the singer and began firing from about three feet away, hitting him in the upper body. The singer, hereinafter referred to as the attempted murder victim, tried to run from Gallegos, who continued to fire at him. The attempted murder victim pulled out a 10-millimeter handgun he had placed in his waistband just before beginning his performance and fired once at Gallegos. The gun malfunctioned, and the attempted murder victim threw it at Gallegos, hitting him in the face with it. Gallegos eventually ended up on the dance floor, where he continued to shoot until he was subdued by other patrons there. When the shooting was over, one patron (hereinafter referred to as the murder victim), who had been dancing with his wife on the dance floor, lay dead from a bullet wound, and his wife had been shot, as had a member of the band and four other patrons.
*456 ISSUES AND DISCUSSION
1. Jury Instruction
a. Provocative Act Murder
(1) The jury was instructed as to the elements of the provocative act theory of murder, upon which the People were relying, as follows:
"1. The crime of attempted murder [or] its lessor [sic] included crimes listed elsewhere in these instructions was committed; and
"2. During the commission of such crime, a person committing the crime also intentionally committed a provocative act; and
"3. The provocative act was deliberately performed with knowledge of the danger to and with conscious disregard for human life; and
"4. Such act was sufficiently provocative that the intended victim of the attempt[ed] murder or its lessor [sic] included crimes in a reasonable response thereto killed a third person." (Italics added.)
The trial court refused to give the following instruction proffered by the defense: "The life[-]threatening act on which the implied malice liability is premised must be something beyond the underlying felony itself, the attempted murder, and must be a proximate cause of death." Gallegos now claims the trial court's refusal to give this instruction warrants reversal of his conviction for the murder. We disagree.
First of all, the proffered instruction, as worded, and although taken from In re Joe R. (1980) 27 Cal. 3d 496, 505 [165 Cal. Rptr. 837, 612 P.2d 927],[2] would have confused this jury by its reference to "[t]he life[-]threatening act[,]" a phrase which had not been used in any of the other instructions given. This would have left the jury wondering what "life-threatening act" this instruction meant. Of course, those well versed with In re Joe R. and other similar provocative act cases know that "the life-threatening act" is the provocative act, but this jury could not have been expected to make the connection without assistance, which the proffered instruction did not provide.
Aside from this matter looms the larger problem addressed by Gallegos, i.e., that the proffered instruction made clearer than the instruction given that *457 the provocative act had to be independent of the attempted murder. The People correctly point out that CALJIC No. 8.12 implies by its requirement that the defendant "also intentionally commit ... a provocative act ... [d]uring the commission of" (italics added) the attempted murder, that the provocative act be something beyond the underlying felony itself. Indeed, the prosecutor, in his argument, reminded the jury of this, contending that Gallegos's acts of jumping up on the stage, approaching the attempted murder victim, pulling out his gun, aiming it at the attempted murder victim and firing it were provocative acts upon which the jury could imply the malice necessary for murder. The simple truth, however, is that those acts were essential parts of the attempted murder itself; therefore, they could not have been "something beyond the underlying felony itself."
So, what of this requirement that the provocative act(s) be independent of the underlying felony? Contrary to Gallegos's claim, In re Joe R. did not declare this to be the law. It was done 15 years earlier, in People v. Washington (1965) 62 Cal. 2d 777 [44 Cal. Rptr. 442, 402 P.2d 130]. In Washington, the California Supreme Court concluded that a robber's cohort approaching the robbery victim, while pointing a loaded gun at him, was an insufficient basis upon which the jury could imply to the robber the malice necessary for murder when the victim shot and killed the cohort. The court stated its rationale thusly: "In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce." (Id. at p. 781.)
There is other important language in Washington pertinent to our analysis. In setting forth the various means by which a defendant may be held criminally responsible for a death caused by another, the Supreme Court commented that a defendant may be liable as a conspirator, as an aider and abettor or as one who uses another to kill. The final means of attaching criminal responsibility in such a situation was stated by the Supreme Court thusly: "Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, `the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.' [Citation.] ..." (People v. Washington, supra, 62 Cal.2d at p. 782.)
This latter point was reiterated in People v. Gilbert (1965) 63 Cal. 2d 690, 703 [47 Cal. Rptr. 909, 408 P.2d 365], in the context of a gun battle initiated *458 by a robber while attempting to escape from the robbery scene, during which a police officer killed the defendant's cohort. However, the problem in Gilbert was that the jury had not been given the opportunity to determine if the cohort had been "killed in response to a shooting initiated by [the defendant] ... or solely to prevent the [defendant and his cohort from escaping with the spoils of the] robbery." (Id. at pp. 703-704.) If the killing had been a result of the defendant's "initiation of gunplay" (People v. Reed (1969) 270 Cal. App. 2d 37, 46 [75 Cal. Rptr. 430]), malice sufficient for murder could have been implied. (People v. Gilbert, supra, 63 Cal.2d at p. 704; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 478, p. 539.)
Whether the defendant had initiated a gun battle became a pivotal issue in Taylor v. Superior Court (1970) 3 Cal. 3d 578 [91 Cal. Rptr. 275, 477 P.2d 131], overruled on other grounds in People v. Antick (1975) 15 Cal. 3d 79, 92, footnote 12 [123 Cal. Rptr. 475, 539 P.2d 43], the next California Supreme Court case to discuss provocative act murder. Crucial to the outcome, held the court, was whether threats by one of the defendants towards one of the robbery victims and the defendants' cohort's pointing a gun at the victim while looking "apprehensive" and "intent" were sufficient to constitute the initiation of the gun battle that followed between both robbery victims and the cohort, during which the cohort was killed. Citing two cases which did not even explore whether the provocative acts were independent of the underlying felony,[3] the California Supreme Court made the same omission and held that the acts constituted sufficient evidence that *459 the defendants had "`initiate[d]' the gun battle" and were thus liable for their cohort's death. (Taylor v. Superior Court, supra, 3 Cal.3d at p. 584.)[4]
Holding that "[i]nitiating a gun battle is not the only means of manifesting malice[,]" Pizano v. Superior Court (1978) 21 Cal. 3d 128, 136 [145 Cal. Rptr. 524, 577 P.2d 659], the next California Supreme Court case to address provocative act murder, concluded that a robber using his victim as a shield to effect his escape constituted a sufficient basis upon which to infer malice for the accidental killing of the victim by a third party who was attempting to foil the robbery and did not realize that the victim was present. The court rejected the defendant's attempt to have his criminal liability determined solely on the basis of the shooter's state of mind that he was reacting to the robbery, rather than to the use of the victim as a shield. Instead, the court held, the question should be whether the accidental shooting of the victim was proximately caused, on an objective basis, by the provocative acts of the robber in using him as a shield.
The California Supreme Court's next stab at provocative act murder, In re Joe R., supra, 27 Cal. 3d 496, upon which Gallegos relies, was, as the People correctly point out, a sufficiency of the evidence case. There, the court concluded that the defendant's provocative acts during a robbery were an inadequate basis for implying malice because they did not provoke the victim's lethal response and, therefore, did not proximately cause the death of one of the defendant's cohorts. The Supreme Court distinguished In re Tyrone B. (1976) 58 Cal. App. 3d 884 [130 Cal. Rptr. 245] and People v. Velasquez (1975) 53 Cal. App. 3d 547 [126 Cal. Rptr. 11] on the basis that "[e]ach involved a deadly assault initiated in part by defendant, which predictably produced lethal resistance from the victim." (In re Joe R, supra, 27 Cal.3d at p. 507, italics original.) In Tyrone B., the minor and his cohort assaulted their attempted robbery victim, who responded by fatally shooting the cohort. Without discussing whether the assaultive conduct was independent of the attempted robbery, the court cited Washington and Gilbert for the proposition that "[w]here a defendant, with a conscious disregard for life, intentionally commits an act likely to cause death, and his victim kills in a reasonable response to such act, the defendant is guilty of murder." (In re Tyrone B., supra, 58 Cal. App.3d at p. 888.) In Velasquez, the defendant and *460 his brother assaulted two police officers as part of the defendant's efforts to resist being arrested by the officers. One of the officers shot and killed the brother. The Court of Appeal concluded that malice could be implied. It did not even discuss whatever independence there could have been between the provocative acts of assault and the underlying felony of resisting arrest. Of course, there was none.[5]
Although cases involving deaths resulting from robberies have continued to adhere to the requirement that the provocative act be independent of the robbery (see, e.g., People v. Kainzrants (1996) 45 Cal. App. 4th 1068 [53 Cal. Rptr. 2d 207]), the above discussed authorities and logic dictate a different approach when the underlying offense is attempted murder, such as here. This approach was first declared in In re Aurelio R. (1985) 167 Cal. App. 3d 52 [212 Cal. Rptr. 868]. Therein, the minor and his fellow gang members drove into rival gang territory, armed and intent upon shooting a rival member as revenge for an earlier attack on one of their own. They shot into a house where they believed two members of the rival gang lived and initiated an exchange of gunfire with a car occupied by members of the rival gang. During the melee, one of the minor's cohorts was killed.
The Court of Appeal began its discussion of provocative act murder by noting, "To satisfy the `actus reus' element of this crime the defendant ... must commit an act which provokes a third party into firing the fatal shot. To satisfy the `mens rea' element, the defendant ... must know this act has a `high probability' not merely a `foreseeable possibility' of eliciting a life-threatening response from the ... person who actually fires the fatal bullet...." (In re Aurelio R., supra, 167 Cal. App.3d at p. 57.)
Aurelio R. went on to state, "The instant case differs significantly from [cases involving police chases following robberies] where most of the law of `provocative act' murder has evolved. Here there was no act over and above the felony these juveniles originally intended to commit which induced a third party to kill one of their number. They drove into a rival gang's territory with the specific intent of shooting a member of that gang. They fired at a car and perhaps a house they had every reason to believe contained gang members they had come to shoot. The occupants of the car *461 shot back killing one of the juveniles. But this was a natural and `highly probable' reaction to the felony they originally intended to and did commit.... Accordingly, if the `provocative act' indeed must be something other than the underlying felony it is hard to bring these defendants within the compass of this doctrine. [¶] However, ... [t]he requirement of an independent provocative act has grown up in the context of felonies which do not themselves inherently involve an intent to kill.... [Robbers] r[u]n some risk they might have to actually fire th[eir] weapons in order to achieve their objective, but they [do] not necessarily intend to shoot anyone. If all [goes] according to plan, no one [has to get] hurt and they [get the money]. Good reasons exist to require these robbers to do something further before they can be held accountable for a death resulting from a third person's bullet. Without that additional intentional and provocative act, the defendants lack the necessary state of mind an intent to kill or at least an intent to commit life-threatening acts. Moreover, by holding them responsible for murder only if they do something beyond the underlying felony we encourage felons to halt the cycle of violence before someone is killed.... [¶] In the instant case, however, the felony the appellant and his fellow gang members undertook to commit involved an intent to kill.... [T]hey drove in[to rival gang territory] for the specific purpose of shooting and possibly killing someone. Thus there is no danger we are punishing an innocent mind if we convict them for a death which resulted when their plans misfired. Beyond that, their intentional felony was itself a `provocative act,' that is, it was a crime which was likely to provoke others to shoot back and perhaps kill one of the cofelons.... Thus, the appellant and his confederates set out to commit a felony which in and of itself comprised a `provocative act.' [¶] Accordingly, under the circumstances of this case, we hold no separate and independent `provocative act' need be committed. The felony the appellant intended to and did commit satisfies that element of this specie of murder." (In re Aurelio R., supra, 167 Cal. App.3d at pp. 59-60, italics original.)
The holding of the court in Aurelio R. not only has tremendous logical appeal, but it is entirely consistent with language in most of the cases cited above concerning liability when a defendant initiates gunplay.
The jury here necessarily found, under the instructions given, that "the natural consequences of" Gallegos's shooting at the attempted murder victim "[were] dangerous to human life," the shooting was "deliberately performed with knowledge of the danger to and with conscious disregard for human life" and was "sufficiently provocative that the [attempted murder] victim ... in a reasonable response thereto killed [the murder victim]" and the shooting "was a cause of that death." Certainly, the facts justify such findings Gallegos was in an extremely crowded dance hall, jumped up on *462 the slightly elevated stage crowded with band members, which was inches from patrons dancing on the floor, began shooting at the attempted murder victim, and continued to do so after the latter jumped off the stage and was trying to leave the hall, and even while Gallegos was on the dance floor and was being subdued by other patrons. This satisfies both the "actus reus" and "mens rea" elements of provocative murder, as set forth in Aurelio R. As in Aurelio R., there was a "high probability" under the circumstances that Gallegos's shooting would elicit a life-threatening response from the attempted murder victim, or from anyone else present, for that matter.
b.-f.[*]
.... .... .... .... .... .... .... .
2. Insufficiency of the Evidence[*]
.... .... .... .... .... .... .... .
DISPOSITION
Gallegos's convictions for assault with a firearm in counts III, IV and VIII are reversed. The trial court is directed to amend the abstract of judgment to reflect this fact and to strike the concurrent terms for each of those counts. In all other respects, the judgment is affirmed.
Hollenhorst, J., and Ward, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 30, 1997. Kennard, J., was of the opinion that the petition should be granted.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 1.b., 1.c., 1.d., 1.e., 1.f. and 2.
[1] The trial court dismissed this count at sentencing.
[2] The reference in the proffered instruction to attempted murder was added by Gallegos. In re Joe R. involved a robbery.
[3] The Supreme Court cited People v. Reed, supra, 270 Cal. App. 2d 37, and Brooks v. Superior Court (1966) 239 Cal. App. 2d 538 [48 Cal. Rptr. 762]. In Reed, after relieving a gas station attendant of some of the station's money, the defendant forced him, at gunpoint, to get into a car. When officers approached, the defendant pointed his gun in their direction and in the direction of the robbery victim. Officers shot at the defendant in response, accidentally killing the victim. The Court of Appeal cited Gilbert, saying, "... malice may be established when a defendant initiates a gun battle, and under such circumstances he may be convicted of murder for a killing committed by another during such a battle." (People v. Reed, supra, 270 Cal. App.2d at pp. 44-45.) The court went on to hold that a defendant need not fire the first shot in order to be considered to have initiated a gun battle. To hold otherwise, concluded the court, would be to unreasonably require the officer to give the defendant "the courtesy of the first shot." (Id. at p. 45.) In Brooks, which did not involve a robbery, the defendant used foul language concerning a police officer who approached his car during the Watts riots after the defendant had failed to heed the officer's command to leave the area. The defendant then placed his hand over the midsection of the officer's shotgun. The officer, fearing the defendant was attempting to disarm him, pulled back on his gun, and it accidentally discharged, killing another officer. Citing Gilbert, the Court of Appeal concluded that the evidence was sufficient to support an indictment for murder, as the defendant's placing his hand on the officer's gun, under the circumstances, "was fraught with grave and inherent danger to human life." (Brooks v. Superior Court, supra, 239 Cal. App.2d at p. 540.)
[4] Taylor did not escape criticism, both from those who dissented from it and from others, due to its seemingly factual inconsistency with Washington and its sidestepping of the requirement established by Washington and Gilbert, and their progeny, that the provocative acts be independent of the underlying robbery. (Taylor v. Superior Court, supra, 3 Cal.3d at pp. 585-594 (separate dis. opns. by Peters, J., and Mosk, J.); see also Note, Criminal Responsibility for the Death of a Co-Felon: Taylor v. Superior Court of Alameda County (1971) 7 Cal. Western L.Rev. 522; The Supreme Court of California 1970-1971: Criminal Law (1972) 60 Cal.L.Rev. 856; but cf. In re Joe R., supra, 27 Cal.3d at p. 505.)
[5] Nor was there any in People v. Claflin (1978) 87 Cal. App. 3d 1 [150 Cal. Rptr. 693]. Therein, the defendant and his cohorts got in an angry exchange with off-duty police officers. After realizing one of the officers was armed, the defendant and company left, but returned with their own weapons and charged the officers. In the melee, one of the defendant's cohorts was killed. Again, without noting that there could be no independence whatsoever of the provocative acts, which were the assaults, from the assaults, the Court of Appeal, in reliance upon Tyrone B. and Velasquez, reversed the trial court's order dismissing the order setting aside the charges.
[*] See footnote, ante, page 453. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265006/ | 54 Cal. App. 4th 100 (1997)
Estate of DORIS C. McCRARY, Deceased.
HELEN L. CARNAHAN, as Executor, etc., Petitioner and Respondent,
v.
STANTON M. ALWARD et al., Objectors and Appellants;
ELIZABETH S. JOCHIM, Claimant and Respondent.
Docket No. E017682.
Court of Appeals of California, Fourth District, Division Two.
April 8, 1997.
*101 COUNSEL
Wilson, Borror, Dunn & Davis and Caywood J. Borror for Objectors and Appellants.
No appearance for Petitioner and Respondent.
Hinojosa & Khougaz and Lynard C. Hinojosa for Claimant and Respondent.
OPINION
WARD, J.
Objectors Stanton M. Alward, Charles Cliston Alward, Leston Linton Alward, and John Q. Alward (the Alwards) appeal from the order for final distribution of the estate of decedent Doris C. McCrary. The Alwards contend they are the only relatives of the decedent entitled to inherit her estate under the statutes governing intestacy; however, the trial court awarded 14/18ths of the estate to more remote relatives, who, the Alwards contend, were not entitled to anything. We disagree with the Alwards' interpretation of the controlling statutes, and we affirm.
*102 FACTS
Doris C. McCrary died intestate on June 28, 1994.[1] She was not survived by any children, parents, siblings, grandparents, aunts or uncles. The Alwards were maternal first cousins of decedent. The decedent had also had 14 paternal first cousins, all of whom had predeceased her.
The trial court distributed 4/18ths of the residue of decedent's estate to the Alwards and 14/18ths of the residue of the estate to 67 relatives of the decedent who were issue of the 14 deceased paternal first cousins. The Alwards objected to the distribution, filed points and authorities in opposition to the distribution, and moved to vacate the judgment. These measures were unsuccessful, and the present appeal ensued.
DISCUSSION
Standard of Review.
This appeal involves a pure question of law; thus, the trial court's determination is reviewable de novo. (Estate of Coate (1979) 98 Cal. App. 3d 982, 986 [159 Cal. Rptr. 794].)
Laws Governing Intestate Succession.
(1) The right to succession is defined by statute. (Estate of Knutzen (1948) 31 Cal. 2d 573, 578 [191 P.2d 747].) Courts are without power to change the statutory rules governing the law of succession. (Estate of Berk (1961) 196 Cal. App. 2d 278, 288 [16 Cal. Rptr. 492].)
Probate Code[2] section 6400[3] et seq. define those who are entitled to inherit from an intestate decedent. Section 6402, subdivision (d), which applies to the present case, provides, "If there is no surviving issue, parent, or issue of a parent but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of such grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240."
Section 240 determines how the estate shall be distributed among those defined as heirs under section 6402, subdivision (d). Section 240 states, "If *103 a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue."
Section 50 defines "`[i]ssue' of a person" as being "all his or her lineal descendants" of all generations.
Distribution of Residue of Estate.
(2) The probate court found that all of decedent's first cousins were from a generation that had some living member, and thus the court made distribution to the issue of the deceased paternal first cousins as well as to the living maternal first cousins.
The Alwards argue that they, as the four living maternal first cousins of decedent, are the "nearest generation of issue then living" from any of decedent's grandparents, and accordingly, they are the sole heirs of the estate. Citing section 50, the Alwards contend a "generation of issue," as the term is used in section 240, must come from a single common ancestor. They note that the Law Revision Commission Comment to section 245 states, "Under Section 240, if the first generation of issue of the deceased ancestor are themselves all deceased, the initial division of the property is not made at that generation, but is instead made at the first descending generation of issue having at least one living member." (Cal. Law Revision Com. com., 52 West's Ann. Prob. Code, § 245 (1990) p. 153.) They contend that the 14 paternal first cousins of decedent were of a different "generation of issue" because they were descendants of a different grandparent. Thus, they contend, because those 14 paternal first cousins all predeceased decedent, their issue cannot be the "nearest generation of issue then living" under section 240.
The Alwards' reading of section 50 is strained. Importing the definition of a generation of issue under section 50 into the language of section 240, which in turn governs distribution among heirs of unequal degree under section 6402, subdivision (d) deprives the phrase "issue of grandparents" in section 6402, subdivision (d) of any meaning. Section 20 recognizes that when the context so requires, a word or phrase used in a particular section may be given a meaning different from the statutory definitions in section 20 et seq. In this instance, so as to give meaning to the use of the plural form in the phrase "issue of grandparents" in section 6402, subdivision (d) we reject the Alwards' construction of section 50.
*104 In Estate of Hawkins (1987) 194 Cal. App. 3d 102 [239 Cal. Rptr. 464], the trial court interpreted the phrase "nearest generation of issue then living" to include both paternal and maternal first cousins. In that case, the probate court distributed one-eighth of the residue of an intestate decedent's estate to each of six maternal first cousins and one paternal first cousin and one-sixteenth of the residue to each of the two children of a deceased maternal first cousin. (Id. at p. 104.) One of the first cousins objected to the distribution to the children of the deceased first cousin. However, the appellate court affirmed the distribution, explaining, "Because a person's `issue' means `all his or her lineal descendants of all generations' (Prob. Code, § 50), respondents are the issue of decedent's maternal grandparents under Probate Code section 6402, subdivision (d) and are entitled to share in decedent's estate even though they are related to her in a more remote degree than her seven first cousins. This conclusion is clearly mandated by the plain language of Probate Code sections 50 and 6402, subdivision (d). [¶] At the time of decedent's death, Probate Code section 6402, subdivision (d) in pertinent part stated that issue of grandparents are to `tak[e] equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation,' and Probate Code section 240 provided `If representation is called for by this code, ... the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue.... [¶] In accordance with Probate Code section 240, the trial court properly distributed one-eighth of the residue of decedent's estate to each of decedent's seven first cousins the living members of the nearest generation of issue and one-sixteenth of the residue of decedent's estate to each respondent the living issue of the deceased member of the nearest generation. Respondents were entitled by right of representation to share that portion of decedent's estate (one-eighth thereof) that their deceased mother ... would have inherited had she not predeceased decedent." (Id. at p. 107, fn. omitted.)
Although Hawkins is not precisely on point, because in that case, the generation of living first cousins included maternal and paternal relatives, nevertheless, the principles of Hawkins apply equally to the present case. Section 6402 defines who is entitled to inherit from an intestate decedent. Under section 6402, subdivision (d), the estate must be distributed among "the issue of ... grandparents." (Italics added.) Section 240 merely controls how the estate will be distributed among those defined as intestate heirs in section 6402, subdivision (d), but does not enlarge or decrease that group. *105 The flaw in the Alwards' position is that they seek to find rules of succession, rather than rules of distribution, in section 240.
The Alwards argue that Hawkins is distinguishable because when it was decided, section 6402, subdivision (d) declared that remoter relatives take by representation rather than under section 240. However, the Law Revision Commission Comment to section 6402 states, "The 1985 amendment substituted the references to Section 240 for the former references to taking `by representation.' This change is nonsubstantive." (Cal. Law Revision Com. com., 53 West's Ann. Prob. Code, § 6402 (1990) pp. 477-478, italics added.) Thus, although the words of the statute may have changed, the Hawkins court applied the same rule that governs the present case.
We note that in other situations, the Legislature has adopted rules similar to the one the Alwards advocate. In Marlow v. Superior Court (1941) 17 Cal. 2d 393 [110 P.2d 11], the court held that under former section 226 the children of a deceased cousin of the decedent were excluded from inheriting by living cousins of the decedent. Former section 226 provided, "If the decedent leaves neither issue, spouse, parent, brother, sister, nor descendant of a deceased brother or sister, the estate goes to the next of kin in equal degree, ..." The Marlow court stated, "under the phrase `next of kin in equal degree, ...' as defined by section 253 of the Probate Code and as interpreted by the cases of Estate of Nigro, 172 Cal. 474 [156 P. 1019] and Estate of Moore, 162 Cal. 324 [122 P. 844], [the] first cousins of [decedent] would take to the exclusion of petitioners." (Marlow, supra, at p. 395.)
Thus, had the Legislature intended the result the Alwards wish for, the Legislature knew how to reach such a result simply and directly. It did not do so in enacting section 6402, subdivision (d), even when that section is considered in conjunction with sections 240 and 50.
We find no error, and we affirm.
DISPOSITION
The judgment is affirmed.
Hollenhorst, Acting P.J., and Richli, J., concurred.
NOTES
[1] Decedent's husband died more than five years but less than fifteen years before decedent; thus, his heirs were entitled to one-half the proceeds from the sale of real property. (Prob. Code, § 6402.5, subd. (a).) The Alwards do not dispute this portion of the order of distribution.
[2] All further statutory references are to the Probate Code unless otherwise indicated.
[3] Section 6400 states, "Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in this part." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265011/ | 152 Pa. Commw. 6 (1992)
619 A.2d 801
FIRST NATIONAL BANK OF BATH, Petitioner,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
Commonwealth Court of Pennsylvania.
Argued April 9, 1992.
Decided August 5, 1992.
Publication Ordered January 11, 1993.
*7 David G. Knerr, for petitioner.
Maribeth Wilt-Seibert, Asst. Counsel, for respondent.
Before COLINS and FRIEDMAN, JJ., and LORD, Senior Judge.
*8 FRIEDMAN, Judge.
First National Bank (Employer) petitions for review of the June 17, 1991 order of the Unemployment Compensation Board of Review (Board), denying Employer's request for relief from charges under section 302(a) of the Unemployment Compensation Law,[1] because a prior eligibility determination allowing benefits was not appealed. We affirm.
The relevant factual and procedural history may be summarized as follows. Kenneth Longley (Claimant) resigned from his position at First National Bank and applied for unemployment compensation benefits which were granted in an Office of Employment Security (Bureau) notice of determination dated January 14, 1991. Both Claimant and Employer received copies of this notice. (Before the notice of determination was sent to Employer, Employer also received form UC-44FR "Request for Relief from Charges" from the Harrisburg office of the Department of Labor and Industry).
The January 14, 1991 notice of determination stated that Claimant was discharged "for reasons which are not considered willful misconduct in connection with his or her work because of unknown reasons" (R.R. 2a). It provided detailed instructions for filing an appeal.
The front of the form contained the following language:
APPEAL INSTRUCTIONS Under Section 501(e) of the Pennsylvania Unemployment Compensation Law, this determination becomes final unless an appeal is timely filed. If you disagree with this determination you may file an appeal at the office where you are claiming benefits or file an appeal by mail.
If the appeal is filed in person, it must be filed on or before the last day to appeal shown in the upper right corner.
If the appeal is filed by mail, the appeal letter must include your name and social security number, and state specifically that you want to file an appeal from this determination *9 and the reason for this appeal. The appeal letter must be addressed to the Pennsylvania Employment Security office which appears in the lower right corner and postmarked on or before the last day to appeal shown in the upper right corner.
EMPLOYER: THIS IS NOT A DETERMINATION ON RELIEF FROM CHARGES.
(Finding of Fact No. 5).
The back of the form stated:
EMPLOYER: THIS IS NOT A DETERMINATION ON RELIEF FROM CHARGES. If you are a base-year employer and desire to take advantage of the Relief from Charge provision of the Law, it is necessary that you apply by letter, or by filing Form UC-44FR previously supplied to you, to the Relief From Charges Unit, 7th Floor, Labor and Industry Building, 7th and Forster Streets, Harrisburg, PA 17121. Requests for Relief from Charges must be filed within fifteen (15) days from the date which appears in Block "Financial Decision" on Form UC-44FR in order to be considered timely filed. A Request for Relief filed later than the time limitations indicated above may be approved only with respect to claims for weeks ending fifteen (15) days or more subsequent to the date such request was filed. A Request for Relief from Charges, whether granted or not, will have no effect on this determination.
(Finding of Fact No. 6).
During the fifteen day statutory appeal period, Employer did not follow the instructions provided on the face of the notice of determination, but completed the UC-44FR "Request for Relief from Charges" instead. (R.R. 3a-4a). On the completed UC-44FR form, Employer indicated that Claimant resigned after falsifying records and would have been discharged for willful misconduct if he had not resigned. The letter which accompanied Employer's UC-44FR form merely stated that Employer was enclosing a request for relief from charges.
On March 7, 1991, the Bureau's Relief from Charges unit denied Employer's request for relief from charges pursuant to *10 section 501(e)(1) of the Act.[2] Employer appealed that determination. The Referee held an evidentiary hearing at which Employer's representative and a Bureau representative both testified.
The Referee issued a decision on April 16, 1991, affirming the Bureau's determination and denying Employer's request for relief from charges. Employer then appealed to the Board from the Referee's decision. On June 17, 1991, the Board issued an order affirming the Referee's decision.[3] Employer now appeals from the order of June 17.
Employer contends on review[4] that 1) the Referee elevated form over substance and denied Employer due process by denying Employer the right to be heard on the merits of its claim of willful misconduct; and 2) Employer's completed form UC-44FR should be treated as a legal alternative to the appeal procedure described on the Bureau determination form. More specifically, Employer alleges that its UC-44FR form manifested the intent to appeal.
The Board counters that Employer failed to meet its burden of proving that it intended to appeal, and that furthermore, there is a jurisdictional distinction between eligibility for *11 unemployment compensation benefits under section 402 and a request for relief from charges under section 302 of the Act. We agree with the Board that Employer never appealed the original Bureau determination of eligibility according to the requirements of section 501(e) of the Act.
Under Pennsylvania law, an Employer seeking relief from charges is requesting a tax exemption. Thus, strict construction is required. Department of Labor and Industry v. Unemployment Compensation Board of Review, 88 Pa.Commonwealth Ct. 519, 501 A.2d 297 (1985). The burden of proof lies with the employer to bring itself within the relieving provisions of the Act or relief will be denied.
The language of section 501(e), cited previously in this opinion, is both clear and mandatory. Employers have fifteen (15) days to file an appeal from a determination of willful misconduct or that determination "shall be final and compensation shall be paid or denied in accordance therewith." (Emphasis supplied). Because appeal provisions of the Act are mandatory, appellants carry a heavy burden to justify untimely appeals, and, absent proof of fraud, cannot prevail. Leight v. Unemployment Compensation Board of Review, 49 Pa.Commonwealth Ct. 312, 410 A.2d 1307 (1980).
Employer argues that it was confused by the two different documents it received, and claims that the appeal instructions on the notice of determination were misleading. According to Employer, Pennsylvania case law clearly supports granting parties "the right to proceed with their case before an administrative agency after having been misled by agency authorities." (Brief at 12). In support of its position, Employer cites such cases as Moore v. Commonwealth of Pennsylvania, Board of Probation and Parole, 94 Pa.Commonwealth Ct. 527, 529, 503 A.2d 1099, 1101 (1986) (holding that "negligence on the part of administrative officials may be deemed to be the equivalent of fraud" for extension purposes); Nayak v. Pennsylvania Department of Public Welfare, 107 Pa.Commonwealth Ct. 504, 510, 529 A.2d 557, 560 (1987) (holding that the time permitted for appeals of agency decisions *12 "may be extended nunc pro tunc upon a showing of fraud or breakdown in the administrative process"); and West Greene School District v. Unemployment Compensation Board of Review, 112 Pa.Commonwealth Ct. 334, 535 A.2d 697 (1988) (holding that claimant who was incorrectly told by intake workers that his appeal could wait was entitled to an extension of time).
Additionally, Employer argues that this court has "expressed a pronounced policy favoring the full and fair hearing of all legal issues rightfully before the court irrespective of a litigant's procedural errors" (Brief at 10, citing Lautek v. Unemployment Compensation Board of Review, 136 Pa.Commonwealth Ct. 79, 583 A.2d 7 (1990)). Contrary to employer's contention, Lautek is inapposite to the present case because the petition for review at issue in Lautek was timely filed, although incomplete. Thus, the procedural error in Lautek resulted in a delay but did not affect the validity of the petition for review because the defect was curable. The procedural defect in the case at bar is not curable.
Our thorough review of the record in the present case reveals no evidence of fraud, deception, or concealment on the part of compensation authorities, or any breakdown in the administrative process. Mr. Sutter, Employer's president, completed the UC-44FR form without advice of counsel, thereby assuming the risk of error. The law is clear that risk is inherent in all proceedings without counsel. Groch v. Unemployment Compensation Board of Review, 81 Pa.Commonwealth Ct. 26, 472 A.2d 286 (1984). Employer's error and its legal ramifications were self-created and not induced by fraud. Had Employer sought advice of counsel, it would have understood that the filing of an appeal from an eligibility determination is separate and distinct from the filing of a request for relief from charges. Thus, Employer's argument of form versus substance is without merit.
Employer's final argument is that the UC-44FR form submitted on January 28, 1991 is in accordance with the permissive alternative written procedures contained in 34 Pa. Code § 101.82(c)(1). Section 101.82 states in pertinent part:
*13 Form of appeal from decision of Department.
. . . .
(c) Use of the prescribed appeal form is not mandatory to initiate an appeal. The following procedure may be followed:
(1) Any written notice specifically advising that the interested party thereby files an appeal or requests a review of decision, delivered or mailed to a representative of the Department or Board, within the prescribed fifteen-day appeal period, shall constitute an appeal from the decision of the Department and will be processed accordingly without requiring the appellant to complete the appeal form.
Contrary to Employer's assertion, careful reading of the language of section 101.82(c) reveals the need for appellants to "specifically advise" that they are filing an appeal. The Board is correct to argue that Employer did not do so in the present case.
Accordingly, because Employer erred procedurally, and has failed to produce independent evidence of its alleged intent to appeal, we affirm.
ORDER
AND NOW, this 5th day of August, 1992, the order of the Unemployment Compensation Board of Review, dated June 17, 1991, is affirmed.
NOTES
[1] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 782(a) (Act).
[2] 43 P.S. § 821(e). Section 501(e) states:
Unless the Claimant or last Employer or base year Employer of the Claimant files an appeal with the Board from the determination contained in any notice required to be furnished by the Department under section 501(a), (c) and (d) within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the Department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.
[3] The Board specifically found:
12. The employer filed an appeal from the Notice of Decision on Request For Relief from Charges.
13. The employer did not file an appeal from the Notice of Determination.
[4] Our scope of review in unemployment compensation cases is limited to whether necessary findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Phoebus v. Unemployment Compensation Board of Review, 132 Pa.Commonwealth Ct. 518, 573 A.2d 649 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265035/ | 54 Cal. App. 4th 565 (1997)
PALA BAND OF MISSION INDIANS, Plaintiff and Appellant,
v.
BOARD OF SUPERVISORS OF SAN DIEGO COUNTY et al., Defendants and Respondents; SERVCON-SAN MARCOS, INC., Real Party in Interest and Respondent.
Docket No. D024621.
Court of Appeals of California, Fourth District, Division One.
April 23, 1997.
*569 COUNSEL
Alexander & Karshmer, Richard A. Cross, John R. Shordike and Barbara E. Karshmer for Plaintiff and Appellant.
John J. Sansone, County Counsel, Diane Bardsley, Chief Deputy County Counsel, Mark C. Mead, Deputy County Counsel, Peltzer & Oliva, *570 Wesley W. Peltzer, Nielsen, Merksamer, Parrinello, Mueller & Naylor and James R. Parrinello for Defendants and Respondents.
Jan S. Driscoll as Amicus Curiae on behalf of Defendants and Respondents.
No appearance for Real Party in Interest and Respondent.
[Opinion certified for partial publication.[1]]
OPINION
HALLER, J.
In 1994, San Diego County voters approved Proposition C, an initiative entitled the "Gregory Canyon Landfill and Recycling Collection Center Ordinance." Proposition C amended the San Diego County General Plan (General Plan) and the San Diego County Zoning Ordinance (Zoning Ordinance) to designate an area known as "Gregory Canyon" for use as a privately owned solid waste facility. The initiative conditioned the development of the facility on approval from various state and federal agencies. The initiative placed the responsibility for obtaining the state and federal permits on the "Applicant," defined as "Servcon-San Marcos, Inc. or its assignee or authorized representatives."
Pala Band of Mission Indians[2] (Pala), which owns property near the Gregory Canyon site, petitioned for a writ of mandate, requesting the court to declare the initiative invalid because several of its provisions violated the California Constitution and state law. Pala named the County of San Diego and the San Diego County Board of Supervisors (collectively County) as respondents/defendants, and named Servcon-San Marcos, Inc. (Servcon) as the real party in interest. The County and Servcon filed answers urging the court to deny Pala's petition and to enter judgment in respondents' favor. After considering the parties' written submissions and their counsels' oral argument, the court denied Pala's petition.[3] Pala appeals.
We conclude section 8, subdivision A (Section 8A) of the initiative violates the California Constitution's prohibition on an initiative naming a private entity to "perform any function or to have any power or duty...." (Cal. Const., art. II, § 12.) We determine, however, Section 8A is severable. We reject Pala's additional challenges to Proposition C. Accordingly, we affirm the judgment, except with respect to Section 8A.
*571 FACTUAL SUMMARY
Proposition C, a copy of which is attached to this opinion, contains eight pages of text and two maps. The proposition text is divided into 12 separate sections. We summarize these sections below.[4]
Section 1 states the intent of the initiative measure is to (1) "provide for the siting of a new recycling collection center and... solid waste landfill ..."; (2) "ensure that the [collection center and landfill] ... fully comply with all environmental laws and regulations ..."; (3) "amend the General Plan, Zoning Ordinance and other ordinances and policies of the County of San Diego to allow the construction and operation of a [recycling center and landfill] ... on ... [the] Gregory Canyon site ..."; and (4) "provide that at least 1313 acres of the ... site will be dedicated as permanent open space to create a substantial preservation area...."
Section 2, entitled "Findings and Purpose," sets forth the reasons a new solid waste facility is needed in North San Diego County and the reasons Gregory Canyon is a preferred location for the facility. This section describes a "solid waste crisis" in San Diego County, resulting from "[l]ocal opposition to landfill sites and disagreement between north county cities and the County... over the handling of the solid waste system...." The section further states that the Gregory Canyon site was selected as one of the preferred landfill sites based on a 1987 study evaluating 168 alternate sites.
Section 3, entitled "Description of the Project," identifies the location of the Gregory Canyon site, by referring to an attached map, and describes the main features of the project, including a lined landfill, access road and bridge, scale area, recycling collection center, and activities and operation center. Section 3 then states "[t]he Applicant shall be entitled to adjust the size and location of solid waste operations and to alter the proposed facilities based on a detailed site plan to be submitted to the [California] Integrated Waste Management Board for its review and approval as part of the solid waste facilities permit."
Section 4, entitled "Permits," states the applicant "shall secure" or "shall obtain" numerous identified environmental and other regulatory permits and "shall conduct" consultations with specified government agencies.
Section 5, entitled "Mitigation Measures," provides "voter approval of the Project" is conditioned on various "mitigation measures" to ensure "the *572 Project is constructed and operated in a manner which minimizes its environmental impacts...." Section 5 then lists 18 mitigation measures that the applicant must comply with in operating the facility.
Section 6, entitled "Tipping Fee and Financial Guarantees," states the tipping fee charged "by the Project" cannot exceed the fee currently charged at county-owned landfills, but that the fee schedule "shall be subject to changes or adjustments based upon tipping fees negotiated between the Applicant and various public agencies agreeing to provide solid waste to the Project."
Section 7, entitled "Implementation" contains four subparts. Sections 7, subdivision A (Section 7A) and 7, subdivision B (Section 7B) amend the County General Plan, subregional plans, community plans, and the County Zoning Ordinance to designate the Gregory Canyon site for use as a solid waste facility. Sections 7, subdivision C (Section 7C) and 7, subdivision D (Section 7D) direct the County to make all necessary amendments to ordinances, rules and regulations, the general plan, subregional and community plans, and the Zoning Ordinance. Section 7D provides the County "shall cooperate with the Applicant wherever possible in issuing permits and approvals so that the Project can proceed in a timely fashion."
Section 8 is the "Definitions" section. Section 8A defines "Applicant" as "Servcon-San Marcos, Inc. or its assignee or authorized representatives." Section 8, subdivision D (Section 8D) defines "Project" as "the recycling collection center and landfill and associated structure and improvements as described in Section 3 of this initiative measure as subsequently modified by a detailed site plan submitted by Applicant to the [California] Integrated Waste Management Board as part of the solid waste facilities permit." (Italics added.) Section 8B identifies the location of the Gregory Canyon site.
Section 9 recognizes the private ownership of the proposed solid waste site. The section states, "[t]he Gregory Canyon site shall remain private land until purchased by a public agency or Joint Powers Authority for its fair market value. Nothing contained herein shall restrict the right of any public agency to exercise its eminent domain power as authorized by law to acquire the Gregory Canyon site."
Section 10 provides "[t]his measure may be amended or repealed only by a majority of the voters voting in an election thereon."
Section 11 contains a severability clause, stating that if one portion of the initiative is declared invalid, "such decision shall not affect the validity of the remaining portions of this measure."
*573 Section 12 sets forth rules governing the initiative's relationship with other ballot measures.
DISCUSSION
I. General Overview
The main purpose of Proposition C is to amend the General Plan[5] and Zoning Ordinance to permit a solid waste facility constructed and operated in compliance with all relevant environmental laws and regulations to be located at the Gregory Canyon site. (1a) Our Supreme Court has long held zoning ordinances are subject to amendment by initiative (see Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal. 3d 511, 516 [169 Cal. Rptr. 904, 620 P.2d 565]) and recently confirmed that a general plan may also be amended by initiative. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 775.) The court has further "specifically recognized that the Legislature conceives land-use planning as legislative action part of the political process and not as `something distinct from the local legislative function, to be performed by an apolitical planning commission.' (DeVita v. County of Napa, supra, 9 Cal.4th at p. 773, fn. 3.)" (Memorial Hospitals Assn. v. Randol (1995) 38 Cal. App. 4th 1300, 1313-1314 [45 Cal. Rptr. 2d 547].)
We are additionally mindful of the substantial public concern with proper solid waste management and appropriate landfill siting in this state. In 1989, the Legislature declared "[t]he amount of solid waste generated in the state coupled with diminishing landfill space and potential adverse environmental impacts from landfilling constitutes an urgent need for state and local agencies to enact and implement an aggressive new integrated waste management program." (Pub. Resources Code, § 40000, subd. (d).) Thus, "... the responsibility for solid waste management is a shared responsibility between the state and local governments" (Pub. Resources Code, § 40001, subd. (a)) and "... it is in the public interest for the state ... to authorize and require local agencies ... to make adequate provision for solid waste handling...." (Pub. Resources Code, § 40002.)
(2) Our review of this appeal is also strictly circumscribed by the long-established rule of according extraordinarily broad deference to the *574 electorate's power to enact laws by initiative. The state constitutional right of initiative or referendum is "one of the most precious rights of our democratic process." (Mervynne v. Acker (1961) 189 Cal. App. 2d 558, 563 [11 Cal. Rptr. 340].) These powers are reserved to the people, not granted to them. Thus, it is our duty to "`"jealously guard"'" these powers and construe the relevant constitutional provisions liberally in favor of the people's right to exercise the powers of initiative and referendum. (Rossi v. Brown (1995) 9 Cal. 4th 688, 695 [38 Cal. Rptr. 2d 363, 889 P.2d 557].) An initiative measure "`must be upheld unless [its] unconstitutionality clearly, positively, and unmistakably appears.'" (Id. at p. 711.) (1b) An initiative measure amending a general plan or zoning ordinance is valid "so long as reasonable minds might differ as to the necessity or propriety of the enactment...." (Garat v. City of Riverside (1991) 2 Cal. App. 4th 259, 292 [3 Cal. Rptr. 2d 504], disapproved on other grounds in Morehart v. County of Santa Barbara (1994) 7 Cal. 4th 725, 743, fn. 11 [29 Cal. Rptr. 2d 804, 872 P.2d 143].)
Pala does not challenge these general principles. Pala instead asserts numerous specific arguments in an attempt to persuade us that Proposition C violates constitutional and statutory provisions. Pala argues Proposition C is invalid because it (1) proposes only indirect amendments to the General Plan and Zoning Ordinance; (2) is inconsistent with other portions of the General Plan; (3) violates Public Resources Code section 50000.5; (4) reflects administrative acts; (5) eliminates "essential" County functions; (6) fails to adequately inform the voters of the initiative provisions; (7) contains an invalid "tipping fee" provision; and (8) violates California Constitution, article II, section 12 by defining the applicant as "Servcon."
In the published portion of this opinion, we explain why we reject the first ("indirect amendment") argument and explain the basis of our conclusion that Section 8A violates the California Constitution but that Section 8A is severable and does not affect the validity of the remainder of the initiative. In the unpublished portion of the opinion, we reject Pala's additional contentions.
We emphasize that in addressing these issues, our role is limited to determining whether Proposition C, approved by San Diego County voters, violates any constitutional or statutory provisions. It is not our role, and we make no attempt, to judge the merits of the initiative.
*575 II. Proposition C Is Not Invalid as "Indirect" Legislation
Pala first argues Proposition C is constitutionally infirm because the initiative's "Implementation" section (section 7)[6] proposes only "indirect" amendments to the General Plan and Zoning Ordinance. Pala relies on Marblehead v. City of San Clemente (1991) 226 Cal. App. 3d 1504 [277 Cal. Rptr. 550] (Marblehead).
Marblehead invalidated a local initiative measure that directed the San Clemente City Council to enact general plan amendments to reflect specified "concepts." (Marblehead, supra, 226 Cal. App.3d at p. 1510.) The San Clemente initiative provided that before any other general plan amendment could be approved, certain defined levels of transportation services and other city services must "`be achieved and maintained.'" (Id. at p. 1507.) The initiative stated "`[u]pon the effective date of this initiative, the general plan of the City shall be deemed to be amended to contain these concepts and enforced as such by the City.... The City shall within six (6) months revise the text of the general plan and other ordinances to specifically reflect the provisions of this amendment and ordinance.'" (Ibid.)
Marblehead concluded this initiative was beyond the scope of the electorate's initiative power. Noting that the California Constitution limits the *576 initiative power to the enactment of "statutes" (Marblehead, supra, 226 Cal. App.3d at pp. 1508-1509; Cal. Const., art. II, § 8; see American Federation of Labor v. Eu (1984) 36 Cal. 3d 687, 707-716 [206 Cal. Rptr. 89, 686 P.2d 609]), the Marblehead court reasoned the initiative measure was invalid because it did "not directly amend San Clemente's general plan" and therefore it was not a "statute." (Marblehead, supra, 226 Cal. App.3d at p. 1510.) The court explained the initiative "constitutes a resolution by the voters declaring that the city's general plan should be revised to reflect the `concepts' expressed in the measure. The actual amendment of the general plan is left to the city council. Which elements of the general plan are affected and how the substantive terms of Measure E are to be incorporated into these elements is unexplained." (Ibid.) Marblehead stressed that the city council "could not simply append [the initiative] to the existing [general plan]" since a general plan must be a "consistent" and "integrated" document. (Ibid.)
(3) Relying on Marblehead, Pala argues each of the subsections of section 7 "are indirect legislation" and therefore they are "unconstitutional and must be stricken." We disagree. Proposition C's implementation section is not comparable to that found inadequate in Marblehead.
Unlike the conceptual directives underlying the Marblehead initiative, Section 7A amends the General Plan; it does not rely on future legislative action. This is accomplished by language directing that the land use element of the General Plan be changed to permit a previously impermissible land use (waste disposal) in a particular area (Gregory Canyon). Section 7A provides the land use element and all relevant community plans and maps "shall be amended to designate the Gregory Canyon site Public/Semi-public lands with a Solid Waste Facility Designator."[7] This is a proper amendment as it makes a specific change to a specific portion of the General Plan. Because the General Plan's land use element sets forth the county's intentions concerning the distribution, location and use of real property (Gov. Code, § 65302), this was the appropriate element to amend.
We reject Pala's argument that additional text was necessary to designate Gregory Canyon as a site for a solid waste facility. Respondents have presented portions of the General Plan reflecting that the Section 7A text is the appropriate method for amending the General Plan to allow a landfill to be developed and operated on the site. Under the General Plan, a "Public/Semi-public *577 Lands with a Solid Waste Facility Designator" is a term of art and the label is all that is necessary to designate a waste disposal use on that land. Pala has not presented any authority to support its assertion that more is required.
Likewise, Section 7B specifically amends the Zoning Ordinance to create a new zoning classification applicable to the Gregory Canyon site. This is a proper amendment since it makes a specific change to the Zoning Ordinance. The fact that the initiative did not cite to the particular ordinance number where the amendment will be located does not invalidate the initiative. We are unaware of any authority requiring that an initiative specify the particular numerical section that will contain the proposed amendment.
While Sections 7C and 7D do not propose "direct" amendments to the laws or to the General Plan, Marblehead does not provide a basis for invalidating these sections. The proposed general plan amendments in Marblehead did not state how any specific element of the general plan would be changed. Rather, the San Clemente initiative required the city council to make amendments as necessary to promote land use "concepts" identified in the initiative. Marblehead stated the voters could not propose such unspecified amendments to the San Clemente general plan because such vague mandate is inconsistent with the purpose of a general plan, to serve as an "`integrated, internally consistent and compatible statement of policies....'" (Marblehead, supra, 226 Cal. App.3d at p. 1510; see Gov. Code, § 65300.5.)
Here, the voters said precisely how the General Plan is to be amended Section 7A changes the land use element to designate the Gregory Canyon site for use as a solid waste facility. Sections 7C and 7D merely tell the County to enact any necessary amendments to ensure the General Plan amendment will take place. Such enabling legislation promotes, rather than violates, the requirement that a general plan reflect an integrated and consistent document. Further, on this record there is no basis to believe any amendment to the General Plan would be necessary since there is no evidence Proposition C creates an inconsistency in the plan.[8]
We additionally decline to read American Federation of Labor v. Eu, supra, 36 Cal. 3d 687 as establishing a blanket rule that initiatives proposing *578 "indirect" legislation such as those identified in Sections 7C and 7D are necessarily beyond the scope of the electorate's power. American Federation of Labor concerned a proposed initiative mandating the California Legislature to apply to the United States Congress for a constitutional convention to adopt a balanced budget amendment. (36 Cal.3d at p. 707.) The California Supreme Court determined the balanced budget initiative "merely express[ed] the wishes of the enacting body" and therefore it was not a "statute" within the meaning of California Constitution article II, section 8. (36 Cal.3d at p. 708.) In so concluding, American Federation of Labor recognized the "distinction between an initiative which enacts a statute and one which commands the Legislature to do so ... may be constitutionally significant." (Id. at p. 714.) The court, however, did not base its holding on that distinction. The court's holding was instead premised on its view that the initiative measure sought only to express the policy views of the voters: "... the crucial provisions of the balanced budget initiative do not adopt a statute or enact a law. They adopt, and mandate the Legislature to adopt, a resolution which does not change California law...." (Id. at p. 694, original italics.)
Section 7C does not ask the board of supervisors to adopt a resolution it tells the legislative body to enact any necessary laws to permit the "Project" to take effect. Section 7D likewise tells the legislative body to enact any needed General Plan or Zoning Ordinances to ensure consistency with the Sections 7A and 7B amendments. Neither Marblehead nor American Federation of Labor can fairly be read as prohibiting the voters from exercising such powers.[9]
We reject Pala's argument Proposition C was beyond the electorate's power because it failed to propose a "statute."[10]
*579 III.-VIII.[*]
.... .... .... .... .... .... .... .
IX. "Servcon" as the "Applicant"
California Constitution, article II, section 12 provides: "No amendment to the Constitution, and no statute proposed to the electors by the Legislature or by initiative, that names any individual to hold any office, or names or identifies any private corporation to perform any function or to have any power or duty, may be submitted to the electors or have any effect."[15] Pala contends Proposition C violates this constitutional provision because Section 8A defines Servcon as the "Applicant" and the initiative provides the applicant with "powers," "duties," and "functions" relating to the application process and to the operation of the solid waste facility.
Respondents counter that (1) article II, section 12 restricts only statewide initiatives and is inapplicable to a county initiative; (2) Proposition C does not violate article II, section 12 because the initiative does not identify Servcon to "perform any function" or "to have any power or duty"; and (3) even assuming Proposition C violates article II, section 12, the provision identifying Servcon is severable and this court should enforce the remaining provisions or rewrite the definition of "Applicant" to eliminate the reference to Servcon.
As explained below, we conclude article II, section 12 applies to Proposition C and that Section 8A violates the constitutional provision. We determine, however, that Section 8A is severable.
A. Article II, section 12 applies to Proposition C
Article II, section 12 applies to an "amendment to the Constitution" and a "statute proposed to the electors by the Legislature or by initiative." (Italics added.) (4a) Respondents argue that because a statute generally means a state law and an ordinance generally means a local law, article II, section 12's reference to a "statute" must mean a state law and therefore the constitutional provision applies only to statewide initiatives.
(5) In determining the meaning of a constitutional provision, we apply established principles of statutory construction. (Mutual Life Ins. Co. v. City *580 of Los Angeles (1990) 50 Cal. 3d 402, 407 [267 Cal. Rptr. 589, 787 P.2d 996].) Our primary objective is to ascertain the legislative intent. In so doing, we first examine the particular words used, keeping in mind that words should be interpreted in the context of the relevant constitutional provisions as a whole. (Quintano v. Mercury Casualty Co. (1995) 11 Cal. 4th 1049, 1055 [48 Cal. Rptr. 2d 1, 906 P.2d 1057]; Schmidt v. Retirement Board (1995) 37 Cal. App. 4th 1204, 1210 [44 Cal. Rptr. 2d 297].) If there is no ambiguity, the constitutional provision should be interpreted according to its plain meaning. (Mutual Life Ins. Co. v. City of Los Angeles, supra, 50 Cal.3d at p. 407.) Where an ambiguity exists, we may resort to extrinsic evidence to determine the intent of the Legislature or of the voters. (Ibid.)
(4b) Applying these principles, we conclude the term "statute" as used in article II, section 12 does not reflect a legislative intent that the constitutional provision apply only to statewide initiatives.
First, the term "statute" does not unambiguously refer only to a state law. As reflected in the dictionary definitions, the commonly understood meaning of a "statute" broadly extends to "law[s] enacted by the legislative branch of a government," without limiting the definition to the laws of a particular legislative body. (See Webster's New Collegiate Dict. (9th ed. 1987) p. 1152.) While in legal terminology a statute generally means a state or federal law and an ordinance is used to specifically refer to a municipal or county law, a court must apply the "usual and ordinary" meaning of words, rather than a technical construction.
Second, the origin of article II, section 12 reveals the term "statute" was not selected for the purpose of limiting the scope of the constitutional provision to state initiatives. Article II, section 12 derived from two voter initiatives contained in former article IV, section 1d, a 1950 initiative and a 1964 initiative, both of which sought to prevent voters from "confer[ing] special privilege or advantage on specific persons or organizations." (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal. 3d 805, 832 [258 Cal. Rptr. 161, 771 P.2d 1247].) Under the wording of the 1950 initiative, the prohibition against identifying individuals applied not to "statutes" but more broadly to a "law ... proposed by the initiative or by the Legislature." (Former art. IV, § 1d, subd. (a).) The 1964 initiative concerned only proposed constitutional amendments. (Former art. IV, § 1d, subd. (b).) In combining the two provisions to create the present version of article II, section 12, the 1966 Constitution Revision Commission changed the word "laws" to "statutes," but stated it was not intending to change the meaning of the provision. (Cal. Const. Revision Com., Proposed Revision (Feb. 1966), at p. 50.)
*581 Thus, respondents' insistence that the word "statute" was intended to impart a special meaning different than the word "law" or "ordinance" is not supported. We are further unpersuaded by respondents' focus on the fact that the 1950 and 1964 initiatives were triggered by perceived problems with particular state initiatives. We have examined the legislative history materials and have found nothing in those materials indicating that the voters believed these same problems would not exist with local initiatives or that the voters intended to exclude local initiatives from the reach of the restrictions. Further, respondents have failed to articulate, and we have been unable to identify, any policy basis for the voters to have intended a distinction between state and local initiatives with respect to the rule that initiatives may not identify individuals or entities.
Third, viewing article II, section 12 in combination with the other relevant constitutional provisions shows that the voters in 1950 and 1964 and the Constitution Revision Commission in 1966 would have understood that the article II, section 12 restriction would extend to local initiatives. When voters enact an initiative, they are "deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted." (People v. Weidert (1985) 39 Cal. 3d 836, 844 [218 Cal. Rptr. 57, 705 P.2d 380].)
Article II, sections 8 and 9 create the statewide initiative and referendum powers.[16] Article II, section 11 extends these powers to voters in local elections.[17] (6) The courts have long recognized that the rights of initiative and referendum reserved to local voters under article II, section 11 (and its predecessor provision) are co-extensive with the rights reserved to the people of the state as set forth in the state Constitution, unless a local charter gives the voters broader powers. (See Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 609 [150 P. 977]; Midway Orchards v. County of Butte (1990) 220 Cal. App. 3d 765, 777 [269 Cal. Rptr. 796]; Dye v. Council of the City of Compton (1947) 80 Cal. App. 2d 486, 489 [182 P.2d 623]; see also Rossi v. Brown, supra, 9 Cal.4th at pp. 694-699; Geiger v. Board of Supervisors (1957) 48 Cal. 2d 832, 836-837 [313 P.2d 545].) Thus, unless a charter extends the local initiative or referendum power, constitutional limitations on the statewide initiative and referendum powers generally apply to also *582 restrict the power of local voters to vote on countywide initiatives. (See Rossi v. Brown, supra, 9 Cal.4th at p. 698; Geiger v. Board of Supervisors, supra, 48 Cal.2d at pp. 836-837; see also Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. 4th 765, 778 [35 Cal. Rptr. 2d 814, 884 P.2d 645].)
While the cases recognizing that the statewide limitations on the initiative and referendum power apply in local elections have arisen mostly in the context of limitations on the referendum power, the reasoning of these cases apply equally to the initiative power. (See Ortiz v. Board of Supervisors (1980) 107 Cal. App. 3d 866, 870 fn. 3 [166 Cal. Rptr. 100].) At least one court has assumed that the single subject rule applicable to statewide initiatives applies equally to county initiatives. (See San Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38 Cal. App. 4th 523, 553 [45 Cal. Rptr. 2d 117].)[18] Likewise, respondents here concede the applicability of article II, section 8, subdivision (a)'s requirement that initiatives must enact "statutes," even though article II, section 8 pertains to the statewide initiative power. (See American Federation of Labor v. Eu, supra, 36 Cal. 3d 687; Marblehead, supra, 226 Cal. App. 3d 1504.)
(4c) We thus presume the voters understood that when they approved the 1950 and 1964 propositions prohibiting naming of entities in initiatives, the proposed rules would apply equally to statewide and local initiatives, unless a local charter provided otherwise. Had these voters or the Constitution Revision Commission wanted a different rule, they could have said so. They did not.
The San Diego County Charter (County Charter) does not expand the local initiative power. Instead, the charter confirms that the county voter's initiative and referendum powers in county elections are equivalent to that of the state voter's powers. The charter provides "[t]he people of the County may exercise the initiative, referendum, and recall provisions of general law." (County Charter, art. II, § 200.) The charter defines "[g]eneral [l]aw" as "the Constitution, Statutes, and Codes of the State of California." (County Charter, art. I, § 100, italics added.) Thus, under the County Charter, county voters are bound by the same restrictions in enacting laws by initiatives as are applicable to state voters.
*583 We reject Servcon's argument in its supplemental brief that County Charter, article II, section 200 is unconstitutional because it "enact[s] initiative provisions different from those contained in the general statutes of the State applicable to county initiatives and referenda." The charter merely makes the local initiative power equivalent to that of the statewide initiative power. Such rule is consistent with the state Constitution.[19]
Respondents additionally argue their interpretation of article II, section 12 as applying only to state statutes is supported by our Supreme Court's recent reference to article II, section 12 as a "limitation[] on the ... statewide initiative power." (Rossi v. Brown, supra, 9 Cal.4th at p. 695.) Reading the quoted language in context, the Supreme Court did not state or suggest that article II, section 12 was inapplicable to the local initiative power.
Servcon further argues that if we were to hold that article II, section 12 applied to Proposition C, this would "severely curtail[]" the "long ... recognized" power of the people to use initiatives to designate private parties as public franchises. Servcon cites to two cases holding that the granting of a franchise is subject to the referendum process. (See Pacific Rock etc. Co. v. City of Upland (1967) 67 Cal. 2d 666, 668 [63 Cal. Rptr. 572, 433 P.2d 476]; Orange County Cable Communications Co. v. City of San Clemente (1976) 59 Cal. App. 3d 165, 171 [130 Cal. Rptr. 429].) Article II, section 12 applies to initiatives, and not referendums. Respondents do not cite, nor are unaware of, authority in this state upholding a local electorate's right to use the initiative power to designate a private individual or corporation to act as a franchise. Thus, our conclusion does not place any new limits on an existing right.
We additionally reject Servcon's argument that holding article II, section 12 applicable to Proposition C would violate the general rule that the power of the voters by initiative and referendum is co-extensive with the legislative power of the governing body. (See DeVita v. County of Napa, supra, 9 Cal.4th at p. 775.) As our Supreme Court has recognized, article II, section 12 creates an exception to that general rule. (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at p. 835, fn. 29.) In striking a portion of Proposition 103 that would have established a private corporation to represent consumers, the court noted "Article II, section 12, limits only the power of the voters, not *584 the Legislature. The Legislature remains free to adopt measures to provide for consumer representation...." (Id. at p. 835, fn. 29.)
B. Does Proposition C violate article II, section 12?
(7) Respondents argue that even assuming article II, section 12 applies to Proposition C, Section 8A does not violate that constitutional provision because the initiative does not name or identify Servcon "`to perform any function'" or "`to have any power or duty.'" We disagree.
Most fundamentally, the express intent and purpose of the initiative is to authorize a "Project" to be constructed on the Gregory Canyon site after the necessary permits are obtained. Section 7C requires the County to amend all ordinances, rules and regulations "to accommodate the Project." Section 4, subdivision K "directs" the County "to include the Project in its Integrated Waste Management Plan ... and to make any findings required for issuance of any necessary permits." The proposition defines the "Project" as a "recycling collection center and landfill and associated structures and improvements as described in Section 3 of this initiative measure as subsequently modified by a detailed site plan submitted by Applicant to the Integrated Waste Management Board as part of the solid waste facilities permit." (§ 8, subd. D, italics added; see also § 3, subd. A.) Thus, the proposition provides the applicant (defined as Servcon) with the sole responsibility of preparing and submitting the site plan that will ultimately define the precise nature of the project created by the proposition. This imposes functions, powers, and duties on Servcon within the meaning of article II, section 12.
Further, the initiative repeatedly states that the applicant "shall consult" with federal and state agencies and "shall secure" numerous specified permits and approvals required by state or federal law. (§ 4.) The proposition also recognizes the applicant will be the operator of the solid waste facility and imposes on the applicant numerous duties and powers related to the operation of the facility. (§ 5.) For example, the initiative states the applicant (1) "shall widen and realign State Route 76" (§ 5, subd. I, italics added); (2) "shall ... implement[]" a landscaping plan prepared by a licensed architect (§ 5, subd. O, italics added); (3) "shall submit a mitigation and monitoring program meeting state and federal law to the Integrated Waste Management Board" (§ 5, subd. R, italics added); (4) "shall maintain trained, full-time personnel engaged exclusively and continuously in the inspection of incoming refuse loads for hazardous waste" (§ 5, subd. D, italics added); and (5) "shall retain a qualified archaeologist to investigate and recommend appropriate mitigation measures" and "shall" implement these mitigation measures (§ 5, subd. P, italics added).
*585 Respondents argue that Proposition C does not vest Servcon with a function, power, or duty, but rather it merely identifies a land use designation and permits Servcon to "apply" to perform a function. As set forth above, Proposition C does much more than that. The initiative specifies functions and duties that Servcon must perform in operating the facility and gives Servcon the exclusive authority to prepare a site plan, apply to operate, and operate the project.
Respondents alternatively argue we should interpret article II, section 12 to mean that an initiative may not identify an entity to perform any "new" functions, powers, or duties. Respondents point out that as the "owner" of the property, Servcon already had the ability to apply for the necessary permits and to operate the facility. In response to the petition below, Servcon submitted the declaration of a Servcon project manager, stating that "[o]n July 23, 1993, North San Diego Development Company, ... entered into a written agreement with Servcon granting Servcon the exclusive right to develop a landfill on ... the `Gregory Canyon site'.... Pursuant to this agreement, Servcon has sole ownership rights to develop a landfill and acquire the property."
Even assuming the word "new" should be read into article II, section 12, Proposition C gave Servcon functions and powers it did not have before the voters approved the initiative. Before Proposition C, Servcon apparently had the exclusive contractual right to develop and operate the solid waste facility at Gregory Canyon. Proposition C elevates that contractual right to a right under a county ordinance. In practical terms, it means that the current owner of the property is now bound by local law to follow through with that contract and, should a third party attempt to claim a superior right, Servcon would have the ability to rely on the terms of Proposition C to establish its exclusive right.[20] Servcon's contractual rights are not identical to the powers, duties, and functions accorded it in the initiative. Thus, Servcon's contractual rights do not exempt it from the reach of article II, section 12.
C. Are the provisions severable?
(8) When an initiative provision is invalid, the void provision must be stricken but the remaining provisions should be given effect if the invalid provision is severable. (Gerken v. Fair Political Practices Com. (1993) 6 *586 Cal.4th 707, 721 [25 Cal. Rptr. 2d 449, 863 P.2d 694]; California Gillnetters Assn. v. Department of Fish & Game (1995) 39 Cal. App. 4th 1145, 1158 [46 Cal. Rptr. 2d 338].) Where, as here, the initiative contains a severability clause, the invalid provision is severable if it can be separated grammatically, functionally, and volitionally. (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at pp. 821, 836.) This rule applies to an initiative provision held invalid under article II, section 12. (48 Cal.3d at p. 836.)[21]
The volitional requirement concerns whether the voters would have adopted the initiative without the invalid provisions. (Gerken v. Fair Political Practices Com., supra, 6 Cal.4th at pp. 714-715; California Gillnetters Assn. v. Department of Fish & Game, supra, 39 Cal. App.4th at p. 1159.) "`The test is whether it can be said with confidence that the electorate's attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.'" (Gerken v. Fair Political Practices Com., supra, 6 Cal.4th at pp. 714-715, italics deleted.) In applying this test, "[w]e may examine the proposition itself, as well as the ballot materials...." (California Gillnetters Assn. v. Department of Fish & Game, supra, 39 Cal. App.4th at p. 1159.)
(9) Other than naming "Servcon," the initiative text did not describe any facts about Servcon, such as identifying the nature of Servcon's business or that Servcon had development rights to the proposed landfill, nor were the voters given such information in the ballot materials. Likewise, neither the county counsel's impartial analysis nor the ballot arguments discussed or even mentioned Servcon. Further, there is no showing that the identification of Servcon as the operator of the proposed facility was part of the public debate about the merits of the initiative. On this record, the voters' decision to site a solid waste facility at Gregory Canyon could not have been motivated by the fact that Servcon was identified as the proposed operator of the facility. The volitional test is thus satisfied.
The next question is whether Section 8A is functionally and grammatically severable. We conclude that it is.
*587 Section 8A is contained in a discrete separate section and therefore it is grammatically severable.
Section 8A is also functionally severable because the proposition specifically imposes functions, powers, and duties on the "Applicant," not Servcon. Although striking Section 8A will leave the identity of the applicant and the term "Applicant" undefined, a textual definition of applicant is unnecessary to support the validity of the remainder of the initiative. Without an express definition, "Applicant" as set forth in Proposition C necessarily means the "proposed operator of the facility" or the "operator of the facility," depending on the particular section of the initiative. By definition, only the proposed operator of the private facility is entitled to apply to operate the facility and only the owner or operator of the facility would be required to engage in the mitigation measures.
Section 3, subdivision A (Section 3A), for example, states "[t]he Applicant shall be entitled ... to alter the proposed facilities based on a detailed site plan to be submitted to the Integrated Waste Management Board ... as part of the solid waste facilities permit." The California Code of Regulations states that the entity entitled to apply for such solid waste facilities permit is an "Applicant" defined as "the proposed operator of a facility." (Cal. Code Regs., tit. 14, § 18011, subd. (a)(3).) Thus, the applicant referred to in Section 3A means "the proposed operator of the facility." It is unnecessary to set forth that definition in the text of the initiative for the initiative to make sense. The deletion of Servcon as the "Applicant" will not alter the implementation of the initiative.[22]
Because Section 8A is grammatically, functionally, and volitionally severable from the remainder of Proposition C, the balance of the initiative remains valid. (See Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at pp. 821, 836.)
X. Additional Argument[*]
.... .... .... .... .... .... .... .
*588 DISPOSITION
We affirm the judgment, except that we conclude Section 8A is void and must be stricken from the initiative. Each party to bear its own costs.
Benke, Acting P.J., and McDonald, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 9, 1997.
*589 APPENDIX
COUNTY OF SAN DIEGO
Proposition C
(This proposition will appear on the ballot in the following
form.)
-----------------------------------------------------
GREGORY CANYON LANDFILL AND RECYCLING
PROP C COLLECTION CENTER ORDINANCE. Shall the Gregory
Canyon Landfill and Recycling Center
Initiative Ordinance be adopted?
-----------------------------------------------------
NORTH COUNTY RECYCLING AND SOLID WASTE DISPOSAL INITIATIVE
The People of San Diego County Do Hereby Ordain as Follows:
SECTION 1. INTENT.
It is the intent of this initiative measure:
A. To provide for the siting of a new recycling collection center and class III solid waste landfill to allow the residents and business in northern San Diego County to dispose of their solid waste in an environmentally sound and economically competitive manner.
B. To ensure that the recycling collection center and landfill are designed, constructed, and operated in a safe and efficient manner by requiring that they fully comply with all environmental laws and regulations. The Project will be monitored during its life on a regular basis by regulatory agencies including, but not limited to, the Integrated Waste Management Board, the San Diego County Air Pollution Control District and the Regional Water Quality Control Board.
C. To amend the General Plan, Zoning Ordinance and other ordinances and policies of the County of San Diego to allow the construction and operation of a recycling collection center and class III solid waste landfill on approximately 270 acres of land within the 1683 acre Gregory Canyon site located off State Route 76 approximately 3 1/2 miles east of the intersection of Interstate 15 and State Route 76 in San Diego County. The general location of the Gregory Canyon site is shown on Figure 1 attached to this measure.
D. To provide that at least 1313 acres of the Gregory Canyon site will be dedicated as permanent open space to create a substantial preservation area for sensitive habitat and species.
SECTION 2. FINDINGS AND PURPOSE.
A. The San Marcos landfill is the only remaining landfill serving northern San Diego County which includes the cities of Carisbad, Encinitas, Del Mar, Solana Beach, Escondido, Oceanside, San Marcos and Vista, and the unincorporated areas of northern San Diego County including Pauma, Bonsall, Valley Center, and Fallbrook.
B. The 1986 San Diego County Regional Solid Waste Management Plan and studies performed by the County of San Diego have documented the critical need for new solid waste facilities to serve the growing north San Diego County population.
C. The County of San Diego has been unsuccessful in siting any landfills in northern San Diego County since the San Marcos landfill was approved in 1977. This has occurred as a result of local opposition and the County of San Diego not proceeding with acceptable sites which have been extensively studied.
D. The conditional use permit issued in 1992 by the City of San Marcos for expansion of the San Marcos landfill requires the County of San Diego to aggressively pursue alternative north county landfill sites, and will expire by or before the year 1999, unless the City of San Marcos agrees to extend the term of the permit.
E. Local opposition to landfill sites and disagreement between north county cities and the County of San Diego over the handling of the solid waste system has created a solid waste crisis involving disputes between the cities and the County of San Diego.
PR-1200-3 SD ooo-ooo
*590 F. The Gregory Canyon site was selected as one of three preferred landfill sites by the County of San Diego based upon a 1987 study which evaluated 168 alternative sites in northern San Diego County covering a study area of 1150 square miles. Subsequently, one of these sites, Blue Canyon, was dropped by the County of San Diego and two new landfill sites have been added. The Gregory Canyon site is now one of four finalist sites.
G. In 1990 the County of San Diego prepared an environmental impact report evaluating the environmental impacts of operating a landfill at the Gregory Canyon site. This Environmental Impact Report concluded that a landfill could be operated at the Gregory Canyon site consistent with all federal and state regulations governing landfill operations.
H. All of the San Diego County landfills have been successfully operated by a private party for the County of San Diego since 1982.
I. The Gregory Canyon site is located in a sparsely populated area of San Diego County. Solid waste operations will occur on approximately 270 acres of the Gregory Canyon site. At least 1313 acres will be dedicated as permanent open space to provide an important habitat and sensitive species preserve.
J. The voters hereby find and determine that the project will be compatible with other uses in the area and the County's general plan for uses in the area upon implementation of the mitigation measures required by this measure.
K. The voters hereby reaffirm the policy of the County of San Diego that each sub-region of the County shall be responsible for providing sufficient solid waste facilities to handle the solid waste generated in each sub-region and solid waste shall not be shipped from one sub-region to any other sub-region except where an emergency exists.
SECTION 3. DESCRIPTION OF THE PROJECT.
The Project will include the following components:
A. General Description of the Project.
The recycling collection center and landfill will occupy approximately 270 acres of the Gregory Canyon site. The landfill footprint containing refuse will cover approximately 150 acres of the site. The main features of the Project include a lined landfill, construction of a new access road and bridge providing access to the site from Highway 76, a scale area, a recycling collection center, a facilities and operation area, a borrow and stockpile area, a leachate collection system, and storm-water retention facilities. The facilities and operation area will include a visitors' center, an office building, a maintenance office, a snop and yard, a fueling station/storage area, a water tank truck wash and wash-water treatment area, a water supply well, groundwater monitoring wells, a landfill gas collection and recovery system, and a leachate collection tank. The Applicant shall be entitled to adjust the size and location of solid waste operations and to alter the proposed facilities based on a detailed site plan to be submitted to the Integrated Waste Management Board for its review and approval as part of the solid waste facilities permit.
B. Dedicated Open Space.
The remaining 1413 acres of Gregory Canyon site shall be dedicated as permanent open space to the County of San Diego, the Pala Band of Mission Indians, another public agency, or a Resource Conservation Group for long-term preservation of sensitive habitat and species. The actual amount of acreage dedicated may be adjusted as necessary to accommodate construction and operation of the Project. The open space area shall not be less than 1313 acres as a result of any adjustment.
C. Access Road.
The Project includes construction of a new access route and bridge from Highway 76 to the Gregory Canyon site.
D. Relocation of San Diego Gas & Electric Power Lines.
The project includes relocation of San Diego Gas & Electric transmission lines that are located within the area for the proposed landfill and recycling collection center. All such relocation will occur in accordance with plans reviewed and approved by San Diego Gas & Electric.
PR-1200-4 SD ooo-ooo
*591 E. Realignment of Highway 76.
The Project includes the widening and realignment of State Road 76 on either side of the new access road to improve sight distance and to facilitate truck movements. The realigned segment would provide approximately 1000 feet of sight distance in both directions for traffic leaving the landfill. The Applicant shall contribute on a fair share basis to the widening of State Route 76 west of the access road to applicable state standards. The fair share shall be based upon the state standard average daily trips. This realigned portion of Highway 76 will be restriped to provide for acceleration/deceleration lanes and an over-take lane for through traffic. Detailed plans for the realignment of Highway 76 will be submitted to CalTrans for review and approval prior to commencing any realignment work.
F. Bridge.
The Project will include a bridge over the San Luis Rey River to provide separate roadways for access to and from the landfill, and to and from the topsoil stockpile area. This will facilitate adequate internal circulation for the landfill operations.
G. Protection of San Diego Aqueduct.
The Project will include work required to protect any San Diego Aqueduct pipelines to the extent and in the manner required by the San Diego County Water Authority.
A map showing the Project elements is shown on Figure 2 attached to this measure. The Applicant shall be entitled to alter or change these elements based upon a detailed site plan to be submitted to the Integrated Waste Management Board for review and approval in conjunction with the solid waste facilities permit.
SECTION 4. PERMITS.
To ensure that the Project is designed, constructed and operated in a safe and efficient manner, the Project shall be required to secure all of the following permits and approvals to the extent required by state or federal law:
A. Environmental Review.
The Project shall complete any additional environmental review required by federal or state law to secure the remaining permits and approvals.
B. Consultation with Advisory Council on Historic Preservation.
The Applicant shall consult with the Advisory Council on Historic Preservation in accordance with § 106 of the National Historic Preservation Act.
C. 404 Permit.
The Applicant shall secure a permit relating to § 404 of the Clean Water Act from the Department of the Army Corps of Engineers.
D. U.S. Fish & Wildlife Service.
The Applicant shall conduct a § 7 consultation with the Department of Interior, U.S.Fish & Wildlife Service in compliance with the Endangered Species Act and shall coordinate the § 404 permit with the U.S.Fish & Wildlife Service as required by federal law.
E. California Department of Fish and Game.
The Applicant shall secure a § 1601 Streambed Alteration Agreement with the California Department of Fish & Game and any other permits required by the California Department of Fish & Game.
F. State Water Resources Control Board.
The Applicant shall secure a National Pollutant Discharge Elimination System Permit from the State Water Resources Control Board.
G. Regional Water Quality Control Board.
The Applicant shall secure a Waste Discharge Permit from the Regional Water Quality Control Board.
PR-1200-5 SD ooo-ooo
*592 H. California Integrated Waste Management Board.
The Applicant shall obtain a Solid Waste Facility Permit from the California Integrated Waste Management Board and from the local enforcement agency for the California Integrated Waste Management Board.
I. California Department of Transportation.
The Applicant shall secure an encroachment permit from the California Department of Transportation as necessary for improvements to Highway 76.
J. State Office of Historic Preservation.
The Applicant shall review cultural sites within the Gregory Canyon site with the State Office of Historic Preservation for eligibility for the National Register of Historic Places.
K. County of San Diego.
The Applicant shall secure a Water Course Alteration Permit, Bridge Permit, Grading Permit and Building Permit from the County of San Diego. The County of San Diego is hereby authorized and directed to include the Project in its Integrated Waste Management Plan as required by State law and to make any findings required for issuance of any necessary permits.
L. San Diego Air Pollution Control District.
The Applicant shall secure all permits required by the San Diego Air Pollution Control District to construct and operate the solid waste facilities authorized by this measure.
M. San Diego Local Agency Formation Commission.
The Applicant shall obtain approval from the San Diego Local Agency Formation Commission for any possible annexation into local water districts as required by the rules and regulations of the San Diego Local Agency Formation Commission.
N. Utilities Services.
The Project shall comply with the requirements of local utility suppliers in securing electric, telephone, water and fire protection services. Sewer service will be provided by chemical toilets used by workers at the landfill. The Applicant will be required to provide the sewage disposal service, removing effluent once per week by pumper truck from the chemical toilets for treatment and disposal away from the site.
O. Other Permits and Approvals.
The Applicant shall secure all other permits and approvals as required by federal or state law.
SECTION 5. MITIGATION MEASURES.
To ensure that the Project is constructed and operated in a manner which minimizes its environmental impacts, the following mitigation measures are hereby adopted as a condition of voter approval of the Project:
A. Days of Operation.
The solid waste facilities shall remain open for the receipt of refuse a minimum of eight (8) hours a day, six (6) days a week, excepting those holidays observed by county-owned landfills.
B. Hours of Operation.
Solid waste operation shall occur only between the hours of 7:00 AM and 6:00 PM, Monday through Friday, and 8:00 AM to 5:00 PM on Saturday unless different hours are established by the Integrated Waste Management Board. For the purposes of this mitigation measure "solid waste operations" shall include the receipt, handling, processing, and/or disposal of solid waste or recyclable materials; cover operations; site grading and/or excavation, including blasting and rock crushing; and heavy equipment operation. Other site activities such as the operation of gas and leachate collection and treatment systems, remedial activities required by a regulatory agency, maintenance within the maintenance yard, and activities conducted in a completely enclosed building shall not be limited to these hours of operation.
PR-1200-6 SD ooo-ooo
*593 C. Litter and Illegal Dumping.
At least five (5) days each week, the Applicant shall inspect for, and clean up, all litter and illegal dumping which occurs on, or adjacent to, the landfill access road and that portion of Highway 76 between the intersection with interstate 15 and the site. The clean up team shall consist of at least one truck with a minimum crew of two persons.
D. Hazardous Waste Exclusion Program.
The Applicant shall maintain trained, full-time personnel engaged exclusively and continuously in the inspection of incoming refuse loads for hazardous waste. These personnel shall be stationed at the working face of the landfill whenever the landfill is open to accept waste and shall inspect loads as they are tipped. Hazardous wastes encountered in this fashion shall be handled and disposed of in accordance with state regulations.
E. Liner and Leachate Collection System.
A liner and leachate collection system shall be installed and monitored as required by the Regional Water Quality Control Board.
F. Landfill Gas System.
The Project shall include a network of vertical extraction wells, lateral transmission pipes to a gas recovery facility, and perimeter gas monitoring probes. With this system, the landfill gas will be extracted from the landfill and combusted in an enclosed flare.
G. Water Quality.
The Project shall comply with all requirements of the Regional Water Quality Control Board to ensure protection of surface and underground water quality.
H. Earthquakes.
All structures located at the Gregory Canyon site shall be designed by a qualified engineer to withstand the maximum probable earthquake to avoid potential impacts associated with earthquakes and ground shaking.
I. Traffic Impacts.
In order to mitigate traffic impacts, the Applicant shall widen and realign State Route 76 on either side of the access road to improve sight distance and to facilitate truck movements. The realigned segment will provide approximately 1000 feet of sight distance in both directions for traffic leaving the landfill. The Applicant shall contribute on a fair share basis to the widening of State Route 76 west of the access road to applicable state standards. The fair share shall be based upon the state standard average daily trips. Striping will be provided for acceleration/deceleration lanes and an over-take lane for through traffic. These realignment plans may be modified as necessary to meet CalTrans requirements.
J. Air Quality.
Air quality impacts associated with the Project shall be mitigated by meeting all requirements imposed by the San Diego County Air Pollution Control District for the Authority to Construct and Authority to Operate permits.
K. Noise Abatement.
The Applicant shall prepare a Noise Abatement Plan to include:
1. Physical design provisions to ensure that ambient noise levels do not exceed 65 CNEL at the boundaries of the Gregory Canyon site;
2. Installation of landfill equipment and vehicles with noise suppressing equipment to assist in meeting the above restrictions;
3. Provisions for at least 24 hour in advance written notice of any blasting on-site to residents within a one-mile radius of the blast site.
4. Where ambient noise levels exceed 65 CNEL at the boundaries of the Gregory Canyon site, the Applicant shall retain a qualified noise expert to evaluate the problem and recommend mitigation measures. These mitigation measures shall be implemented by the Applicant.
PR-1200-7 SD ooo-ooo
*594 L. Odor Control.
To control odors on-site, the Applicant shall submit an Odor Control Plan to the San Diego County Air Pollution Control District for review and approval.
M. Dust Control Plan.
To control dust from Project operations, the Applicant shall submit a Dust Control Plan to the San Diego County Air Pollution Control District for review and approval.
N. Biological Impacts.
All sensitive species and habitat impacted by the Project shall be mitigated in accordance with requirements imposed by the United States Fish & Wildlife Service as part of the § 7 consultation.
O. Visual Impacts.
In order to mitigate visual impacts associated with the Project, the Applicant shall employ extensive use of landscaping emphasizing native vegetation, and rounding/undulation of slopes on the refuse column and changes in slope angles. All landscaping shall be performed by a licensed landscape architect in the State of California. This licensed architect shall prepare a detailed landscape plan designed to minimize visual impact associated with the Project to the maximum feasible extent. The plan prepared the licensed architect shall be implemented by the Applicant upon completion.
P. Cultural Impacts.
Impacts to Native American resources impacted by the Project shall be mitigated through the development of a Memorandum of Agreement between the Applicant and the appropriate regulatory agencies in accordance with § 106 of the National Historic Preservation Act. To mitigate archaeological impacts caused by the Project, the Applicant shall retain a qualified archaeologist to investigate and recommend appropriate mitigation measures. These mitigation measures shall be implemented by the Applicant.
Q. Citizen Environmental Review Board.
A Citizen Environmental Review Board (the "Board") shall be established by agreement between the Applicant and the cities or other governmental entities agreeing to supply waste to the Project. The members of such Board shall be appointed by each such city or entity and shall be individual citizens who are not employees or officials of such city or entity. The Board shall have the authority to inspect and review all reports submitted by the Project to any other regulatory agency and to make recommendations to any such regulatory agency with respect to the operation of the Project, including any enforcement actions the Board may deem appropriate. The Board shall establish an environmental review team consisting of qualified personnel to monitor the operations of the landfill which team shall have reasonable access to the landfill during all hours of operation of the landfill.
R. Additional Mitigation Measures.
Mitigation measures included as part of any subsequent environmental review of the Project shall be included as additional mitigation measures for the Project. The Applicant shall submit a mitigation and monitoring program meeting state and federal law to the Integrated Waste Management Board for review and approval as part of the solid waste facilities permit.
SECTION 6. TIPPING FEE AND FINANCIAL GUARANTEES.
A. Tipping Fee.
It is the intention of the voters to ensure that the tipping fee charged by the Project to any public agency supplying waste to the project does not exceed the tipping fee currently charged at county-owned landfills as adjusted for inflation. This fee is currently $43 per ton. For calendar year 1994, this tipping fee shall be $43 per ton. Commencing January 1, 1994, and continuing on January 1 of each year thereafter, this tipping fee may be increased by the percentage charge in the Consumer's Price Index. All Urban Consumer's for the Los Angeles - Anaheim - Riverside Area (1967 = 100) for December of the prior year to December of the year the price increase is to occur.
PR-1200-8 SD ooo-ooo
*595 The tipping fee as set in this section shall be subject to changes or adjustments based upon tipping fees negotiated between the Applicant and various public agencies agreeing to provide solid waste to the Project.
B. Financial Guarantees.
The Applicant shall provide a closure and post-closure plan complying with federal and state law and shall provide bonds or other financial guarantees to ensure performance as required by federal and state law.
SECTION 7. IMPLEMENTATION.
A. Amendments to County General Plan.
Upon the effective date of this initiative, the land use element of the County General Plan and all sub-regional and community plans which apply to the Gregory Canyon site and any related maps shall be amended to designate the Gregory Canyon site Public/Semi-public lands with a Solid Waste Facility Designator. Notwithstanding the Public/Semi-public designation, the Gregory Canyon site shall remain private lands unless purchased or condemned by a public agency.
B. Amendments to County Zoning Ordinance.
Upon the effective date of this initiative, the County Zoning Ordinance shall be amended to create a new zoning classification designated Solid Waste Facility ("SWF"). This SWF zoning classification shall be applied only to the Gregory Canyon site and shall allow the Project without the need for any permits from the County of San Diego except the Water Course Alteration Permit. Bridge Permit, Grading Permit and Building Permit.
C. Amendments to Other County Ordinances and Policies.
All other County ordinances, rules and regulations which constitute legislative acts shall be amended as necessary to accommodate the Project as set forth in this initiative.
D. County Cooperation.
The County of San Diego shall cooperate with the Applicant wherever possible in issuing permits and approvals so that the Project can proceed in a timely fashion.
The County of San Diego is hereby authorized and directed to amend other elements of the General Plan, sub-regional plans, community plans, Zoning Ordinance, and other ordinances and policies affected by this initiative as soon as possible and in the manner and time required by State Law to ensure consistency between this initiative and other elements of the County's General Plan, sub-regional and community plans, Zoning Ordinance and other County ordinances and policies.
SECTION 8. DEFINITIONS.
For the purpose of this measure, the following words and phrases shall have the following meanings:
A. "Applicant" shall mean Servcon-San Marcos, Inc. or its assignee or authorized representatives.
B. "Gregory Canyon site" shall mean the approximately 1683 acres of land located off State Route 76 approximately 3 1/2 miles east of the intersection of Interstate 15 and State Route 76 occupying portions of Sections 4 and 5 of Township 10 South and Sections 32 and 33 of Township 9 South Range 2 West of the San Bernardino Principle Meridian.
C. "Integrated Waste Management Board" shall mean the State of California Integrated Waste Management Board.
D. "Project" shall mean the recycling collection center and landfill and associated structures and Improvements as described in Section 3 of this initiative measure as subsequently modified by a detailed site plan submitted by Applicant to the Integrated Waste Management Board as part of the solid waste facilities permit.
E. "Recycling collection center" shall mean a facility for the buy-back of source separated materials but not the processing of mixed waste.
PR-1200-9 SD ooo-ooo
*596 SECTION 9. PURCHASE BY PUBLIC AGENCY.
The Gregory Canyon site shall remain private land until purchased by a public agency or Joint Powers Authority for its fair market value. Nothing contained herein shall restrict the right of any public agency to exercise its eminent domain power as authorized by law to acquire the Gregory Canyon site.
SECTION 10. AMENDMENT OR REPEAL
This measure may be amended or repealed only by a majority of the voters voting in an election thereon.
SECTION 11. INTERPRETATION AND SEVERABILITY.
This measure shall be interpreted so as to be consistent with all federal and state laws, rules and regulations. If any section, sub-section, sentence, clause, phrase, part or portion of this measure is held to be invalid or unconstitutional by a final judgment of court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this measure. The voters hereby declare that this measure, and each section, sub-section, sentence, clause, phrase, part or portion thereof would have adopted or passed irrespective of the fact that any one or more sections, sub-sections, sentences, clauses, phrases, parts or portions are declared invalid or unconstitutional.
SECTION 12. CONSISTENCY WITH OTHER BALLOT MEASURES.
In the event that another ballot measure is placed on the same ballot as this measure purporting to deal with the same subject matter, and if both measures should pass, the voters expressly declare their intent that both measures shall be put into effect except to the extent that specific provisions of such measures are in direct conflict. In the event of such a direct conflict, the measure which obtained more votes will control as to the conflicting provisions only. The voters expressly declare this to be their intent, notwithstanding any language to the contrary in any other ballot measure.
PR-1200-10 SD ooo-ooo
*597
*598
NOTES
[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Discussion parts III., IV., V., VI., VII., VIII. and X.
[2] Pala is a federally recognized Indian tribe located on the Pala Indian Reservation, which is adjacent to the Gregory Canyon site. (25 U.S.C. § 476.)
[3] Another neighboring property owner, Stephen L. Wheeler, also unsuccessfully petitioned for a writ of mandate. Wheeler did not file an appeal.
[4] All further section references are to Proposition C, unless otherwise specified.
[5] A general plan is a required statement of long-term development policies. (DeVita v. County of Napa (1995) 9 Cal. 4th 763, 772-773 [38 Cal. Rptr. 2d 699, 889 P.2d 1019].) "The planning law ... compels cities and counties to undergo the discipline of drafting a master plan to guide future local land use decisions." (Id. at p. 773.) The plan must include seven identified elements and must be "`comprehensive [and] long[]term'... as well as `internally consistent.'" (Ibid.)
[6] Section 7 reads:
"A. Amendments to County General Plan.
"Upon the effective date of this initiative, the land use element of the County General Plan and all sub-regional and community plans which apply to the Gregory Canyon site and any related maps shall be amended to designate the Gregory Canyon site Public/Semi-public lands with a Solid Waste Facility Designator. Notwithstanding the Public/Semi-public designation, the Gregory Canyon site shall remain private lands unless purchased or condemned by a public agency.
"B. Amendments to County Zoning Ordinance.
"Upon the effective date of this initiative, the County Zoning Ordinance shall be amended to create a new zoning classification designated Solid Waste Facility ("SWF"). This SWF zoning classification shall be applied only to the Gregory Canyon site and shall allow the Project without the need for any permits from the County of San Diego except the Water Course Alteration Permit, Bridge Permit, Grading Permit and Building permit.
"C. Amendments to Other County Ordinances and Policies.
"All other County ordinances, rules, and regulations which constitute legislative acts shall be amended as necessary to accommodate the Project as set forth in this initiative.
"D. County Cooperation.
"The County of San Diego shall cooperate with the Applicant wherever possible in issuing permits and approvals so that the Project can proceed in a timely fashion.
"The County of San Diego is hereby authorized and directed to amend other elements of the General Plan, sub-regional plans, community plans, Zoning Ordinance, and other ordinances and policies affected by this initiative as soon as possible and in the manner and time required by State Law to ensure consistency between this initiative and other elements of the County's General Plan, sub-regional and community plans, Zoning Ordinance and other County ordinances and policies."
[7] The land use element of the General Plan provides "[t]he Solid Waste Facility Designator (SWF) may be applied on a case-by-case basis to areas of the (22) Public/Semi-Public Designation that contain existing solid waste facilities or sites proposed for that use. It is the intent of this designator that proposed and existing waste facility sites be protected from encroachment by development or incompatible uses."
[8] Because there are no inconsistencies on the face of the plan, Pala's reliance on Sierra Club v. Board of Supervisors (1981) 126 Cal. App. 3d 698 [179 Cal. Rptr. 261] is unavailing. In Sierra Club, the county adopted a land use element that was inconsistent with the general plan's open space element. (Id. at p. 703.) The county recognized the inconsistencies, but "[b]ecause of a lack of time" did not attempt to make the elements consistent and instead inserted a clause stating that the land use element would take precedence over other general plan elements. (Ibid.) The court held this "`precedence clause'" was improper and could not be used to cure conflicts within a general plan. Here, unlike in Sierra Club, there is no evidence of an inconsistency or that section 7 requires the land use element to take "precedence" over the other elements.
[9] We note that California Constitution article I, section 28, subdivision (b), enacted by the voters in Proposition 8, contained an analogous provision that has never been challenged as beyond reach of the electorate's power. Article I, section 28 expresses the voters' intent that victims should recover restitution and then states "[t]he Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."
[10] For similar reasons, we also reject Pala's argument that the initiative is invalid because the County could not have enacted Sections 7C and 7D since these amendments are "prospective." We likewise reject Pala's argument that Proposition C is invalid because it "constrains" the County's ability to enact future legislation.
[*] See footnote 1, ante, page 565.
[15] All further article references are to the California Constitution.
[16] Article II, section 8 provides "[t]he initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." Article II, section 9, subdivision (a) states "[t]he referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State."
[17] Section 11 provides "[i]nitiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. This section does not affect a city having a charter."
[18] Ex parte Haskell (1896) 112 Cal. 412, 421 [44 P. 725], relied upon by respondents is inapposite. Haskell held that a different constitutional provision, providing that a statute must "embrace but one subject, which shall be expressed in its title" (now contained in art. IV, § 9), does not apply to laws passed by a city. (112 Cal. at p. 421.) Haskell reasoned the extension of the constitutional provision to municipalities was not intended and would be impractical. Haskell's reasoning has no applicability to article II, section 8's single-subject rule pertaining only to initiatives.
[19] We likewise reject Servcon's argument that if we interpret the charter as making article II, section 12 applicable to county initiatives, we would also be required to construe the charter as requiring the county to be bound by state statutes pertaining to other levels of government, such as municipalities and school districts. The county charter's provision that the county voters may exercise the initiative powers of "general law" does not mean that the procedures specially applicable to other entities, such as municipalities or school districts, would apply to the county.
[20] At oral argument Servcon's counsel suggested that Servcon's rights under Proposition C as the "Applicant" were not personal and instead "ran with the land." Counsel, however, failed to cite any authority supporting this rule in the factual context presented here. Further, we do not believe such rule affects our analysis on the specific issue as to whether Proposition C identifies Servcon to perform a function or to have any power or duty.
[21] Calfarm held a consumer-advocacy provision of Proposition 103 (concerning automobile insurance) violated article II, section 12, but that the provision was severable from the remainder of the initiative. In so holding, the court noted that article II, section 12 "precludes severability only within the confines of the particular statute which impermissibly names or identifies a person or private corporation." (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at p. 836.) The court went on to apply the three-part test to determine whether the invalid provision was severable from other statutes enacted by the proposition. We reject Pala's argument that Calfarm established a blanket rule against severing an invalid provision from a statute of which it is part.
[22] We note that in practical terms, our conclusion will not necessarily change the fact that Servcon will be responsible for performing the functions of the "Applicant." This result derives from the fact that a private property owner ultimately has the right to select the entity that may apply to operate, and operate, a business on its property. We further stress that nothing in this opinion is intended to impact Servcon's contractual rights or obligations as they relate to the Gregory Canyon site or the operation of the solid waste facility. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265070/ | 54 Cal. App. 4th 246 (1997)
ROBERT G. BITTERS, Plaintiff and Respondent,
v.
NETWORKS ELECTRONIC CORPORATION, Defendant and Appellant.
Docket No. B092270.
Court of Appeals of California, Second District.
April 15, 1997.
*247 OPINION
THE COURT.[*]
Approximately two years ago, appellant Networks Electronic Corporation filed a notice of appeal in this case. To date, the record on appeal has not been completed, due to the failure of the lead reporter, Susan Gollaher, to prepare the reporter's transcript. Appellant paid the reporter directly for the transcript; the reporter absconded with the fees and failed to prepare the transcript. We issued orders to show cause directed to appellant and the Clerk of the Los Angeles Superior Court to determine whether (1) the appeal should be dismissed unless appellant redeposits the estimated fees with the clerk or (2) the clerk should be ordered to prepare the reporter's transcript at the superior court's expense.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant's counsel contacted the lead reporter to obtain an estimate for the preparation of a reporter's transcript for the purpose of an appeal. The reporter provided an estimate of $3,400. On April 17, 1995, appellant filed a *248 notice of appeal and paid $1,700 directly to the reporter at her Simi Valley home.[1] On April 27, 1995, appellant filed a notice to prepare the reporter's transcript with a waiver of deposit (Cal. Rules of Court, rule 4(c)) signed by the reporter. On July 11, 1995, appellant paid an additional $1,500 directly to the reporter. On August 4, 1995, appellant paid an additional $2,327.60 directly to the reporter at a motel in New Mexico. On September 1, 1995, the reporter telephoned appellant's counsel from Tennessee and requested an additional $695, claiming the transcript was completed. On September 5, 1995, appellant paid an additional $695 directly to the reporter in Tennessee. The reporter has not prepared the reporter's transcript, her whereabouts are unknown, and she has apparently absconded with the $6,222.60 in fees paid to her by appellant.
The reporter was hired by the superior court in January 1990. She was consistently evaluated as an outstanding reporter. The superior court had no notice of any fraudulent conduct or delinquencies on the part of the reporter. From April 17, 1995, to June 9, 1995, the reporter was absent from the courtroom for various reasons including bereavement, jury duty, vacation, illness and leave without pay. On June 12, 1995, she was absent due to a temporary back disability. She was scheduled to return to work on July 20, 1995, but did not do so, and all efforts to contact her were unsuccessful. She was terminated on August 2, 1995.
On July 12, 1995, this court issued an OSC directed to the reporter with respect to certain delinquent criminal transcripts. The reporter did not appear for the hearing on the OSC on July 31, 1995, and the superior court arranged for other reporters to prepare the transcripts.
On December 19, 1996, this court issued an OSC to the clerk of the superior court with respect to the failure to file the record on appeal in the instant matter. The clerk responded that appellant had been dealing directly with the reporter, who had failed to prepare the reporter's transcript. The clerk's transcript had been prepared. On February 10, 1997, this court issued an OSC to both appellant and the clerk of the superior court in order to determine who was to bear the cost of the preparation of the reporter's transcript. It was appellant's position that the superior court was required to provide the reporter's transcript, because appellant had already paid in full for the preparation. The reporter's notes were available to the superior court for preparation of a transcript. It was the superior court's position that when appellant had undertaken to pay the reporter directly, rather than depositing *249 the fees with the court, it had assumed the risk of the reporter's delinquency. The superior court noted that it had received none of the fees, and the preparation of the transcript by another reporter would require payment to that replacement reporter. After briefing, we conducted a hearing on March 17, 1997.
DISCUSSION
The California Rules of Court set forth procedures that require an appellant to deposit with the superior court the estimated fees for the preparation of a reporter's transcript and require the clerk to pay the reporter from the deposit when the transcript is completed. California Rules of Court, rule 4(a) provides in part: "When an appellant desires to present any point which requires a consideration of the oral proceedings or the instructions given by the court, whether written or oral, or of any instructions requested but refused by the court, the appellant shall serve on the respondent and file with the clerk of the superior court, within 10 days after filing of the notice of appeal, a notice to prepare a reporter's transcript of the oral proceedings and such instruction given, which cannot be copied by the clerk, that the appellant desires copied or transcribed. [¶] The notice filed with the clerk shall be accompanied by a deposit of the approximate cost of the transcript, either (1) pursuant to a written estimate secured from the reporter in advance, or (2) computed at $325 per fraction of a day's proceedings that appellant or counsel states did not exceed three hours, or $650 per day or fraction of a day's proceedings greater than three hours, to be transcribed. The deposit shall be accompanied by directions to the clerk to retain the deposit and use it to pay the reporter's fee when the transcript is complete. The clerk shall not file the notice unless it is accompanied by the deposit, a waiver of deposit by the reporter, an order relieving the appellant of the obligation of making the deposit, or an original of a transcript of the proceedings specified.... [¶] When the transcript is completed, the reporter shall bill the appellant at the statutory rate with a copy to the clerk, and the clerk shall pay the reporter from the funds deposited and promptly refund any excess deposit to the appellant or give notice to the appellant of any additional funds needed. If more than one reporter is producing the transcript, the clerk shall pay promptly each reporter who certifies under penalty of perjury that all of his or her portions of the transcript are completed."
The California Rules of Court also provide for the use of an alternative procedure at an appellant's option. California Rules of Court, rule 4(c) further provides: "The appellant ... may substitute the reporter's written waiver of a deposit for a deposit of fees required by this rule."
*250 "When the record on appeal has been completed in accordance with these rules the clerk [of the superior court] shall forthwith transmit any original transcripts ... to the reviewing court." (Cal. Rules of Court, rule 10(b).) "After the filing of a notice of appeal, the failure of any court reporter or clerk to perform a duty imposed on him by statute or these rules which delays the filing of the record on appeal is an unlawful interference with the proceedings of the reviewing court and may be treated as such in addition to or in lieu of any other sanction imposed by law for the same breach of duty." (Cal. Rules of Court, rule 46.5.) "If the appellant fails to perform any act necessary to procure the filing of the record within the time allowed or within any valid extension of that time, and such failure is the fault of the appellant and not of any court officer or any other party, the appeal may be dismissed on motion of the respondent or on the reviewing court's own motion." (Cal. Rules of Court, rule 10(c).)
(1) In this case, appellant chose to deal directly with the reporter rather than deposit the fees with the superior court. In making this decision, appellant assumed the risk of loss should the reporter fail to prepare the transcript. If an appellant deposits the fees with the superior court and the reporter fails to produce the transcript, the fees are available for payment to a replacement reporter. Use of this court deposit procedure both ensures timely payment of the reporter and provides protection of appellant from a reporter's default. When an appellant elects to use the alternative waiver procedure, the safeguards of the court deposit procedure are defeated. The superior court cannot elect to refuse the waiver of deposit; an appellant has a right to make this election under the court rules.
In addition, the superior court had no notice of any problems with the reporter until it received, on July 12, 1995, notice from this court of an OSC on certain delinquent criminal transcripts. It had no notice of any problem in the preparation of this transcript. Moreover, the reporter had been an outstanding reporter from 1990 until April 1995, and in April 1995, the reporter was on leave. In addition, appellant and its counsel possessed information which reasonably should have caused them to be suspicious. Appellant was advised in April 1995 that the reporter was on extended leave from the superior court. Appellant knew that the reporter was not at the court and sent money to the reporter at her home. The reporter made repeated demands for additional funds without producing any portion of the transcript. In August 1995, appellant knew that the reporter was in a motel in New Mexico and sent additional money to her in New Mexico. In September 1995, appellant knew the reporter was in Tennessee and sent additional money to the reporter in Tennessee.
Where both appellant and the superior court appear to have been taken advantage of by the reporter, fairness dictates that the party which could have best prevented the fraud should bear the loss.
*251 DISPOSITION
Within 15 days of the date of this order, the clerk of the superior court is ordered to provide to appellant an accurate estimate of the cost to transcribe the notes of the delinquent reporter, Susan Gollaher. In the event that appellant fails, within 15 days of the date of the estimate, to deposit with the clerk of the superior court the estimated fees for the reporter's transcript, the clerk of the superior court is ordered to immediately advise this court in writing and the appeal shall be dismissed forthwith.
Upon deposit of the estimated fees by appellant, the clerk of the superior court is directed to complete and file the reporter's transcript in conformance with California Rules of Court, rule 4(d).
The order to show cause as to the clerk of the superior court is discharged. The order to show cause as to appellant is hereby discharged.
NOTES
[*] Other amounts were paid directly to other reporters. These reporters have prepared their portions of the reporter's transcript and are not involved in these order to show cause (OSC) proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264979/ | 54 Cal. App. 4th 121 (1997)
CRUSADER INSURANCE COMPANY, Plaintiff and Appellant,
v.
SCOTTSDALE INSURANCE COMPANY et al., Defendants and Respondents.
Docket No. B089620.
Court of Appeals of California, Second District, Division Two.
April 10, 1997.
*123 COUNSEL
Staitman, Snyder & Tannenbaum and Jack M. Staitman and Gerald P. Peters for Plaintiff and Appellant.
Manatt, Phelps & Phillips, Richard A. Brown, Barry S. Landsberg, Brand W. Seiling, Greve, Clifford, Wengle & Paras, Lawrence A. Wengel, Irving H. Perluss, Thelen, Marrin, Johnson & Bridges, Gary L. Fontana, William F. Holbrook, Dorais & Wheat, Claude J. Dorais, Marilyn A. Monahan, Cooksey, Howard, Martin & Toolen, David Cooksey, McNitt, Schraner & Loeb, Roger L. McNitt, Robert K. Schraner, White & Case, John A. Sturgeon and Bryan A. Merryman for Defendants and Respondents.
[Opinion certified for partial publication.[*]]
OPINION
ZEBROWSKI, J.
This case raises the question of the proper test for determining whether a regulatory statute creates a new private right to sue. Two competing approaches have been presented. The first is the "legislative intent approach." The legislative intent approach examines the wording of the statute, its legislative history, its statutory context and similar factors, and asks whether the Legislature intended to create a new private right to sue by enacting the statute. The second approach is the "Restatement approach." The Restatement approach follows the legislative intent approach in most respects. However, in a situation in which the Legislature simply never *124 contemplated the possible creation of a private right to sue, the Restatement approach deviates from the legislative intent approach. In this latter situation, the Restatement approach allows the court itself to create a new private right to sue, even if the Legislature never considered creation of such a right, if the court is of the opinion that a private right to sue is "appropriate" and "needed."
This case involves Insurance Code section 1763, which regulates the activities of surplus line brokers in California. The plaintiff is Crusader Insurance Company. Crusader is admitted to conduct the business of insurance in California. There are two categories of defendants: Some are surplus line brokers who have placed California risks with nonadmitted insurers; others are non-admitted insurers who have accepted such risks.[1]
Insurance Code section 1763 in summary provides that a surplus line broker must conduct a "diligent search" for an admitted insurer who will accept a risk before placing that risk with a nonadmitted insurer. The "diligent efforts" expended by the broker to find an admitted insurer must be set forth on a "standardized form" prescribed by the Insurance Commissioner. It is "prima facie evidence" that a "diligent search among admitted insurers" has been made if the "standardized form" establishes that "three admitted insurers that actually write the particular type of risk in this state have declined the risk." However, the Insurance Commissioner may review the adequacy of the broker's efforts and may make remedial orders notwithstanding the prima facie showing provided on the standardized form. The Insurance Commissioner is further authorized to "publish reasonable rules and regulations" with respect to surplus line transactions and to take disciplinary action for violations, which "may include any action authorized to be taken against a licensed person by" the Insurance Code.[2]
Crusader contends that defendant surplus line brokers have placed California risks with the nonadmitted insurer defendants without conducting the type of "diligent search" required by Insurance Code section 1763. Crusader, however, had no relationship or transaction with any defendant out of which any common law duty enforceable by Crusader could arise. Crusader therefore had no common law causes of action to allege, such as negligence, breach of contract or implied covenant, fraud, negligent misrepresentation, *125 etc. Instead, Crusader's suit depends wholly upon the proposition that Insurance Code section 1763 gives Crusader (and hence every other admitted insurer in California) a new private right to sue on the claim that California risks have been placed on a surplus line basis without an adequately diligent search. Crusader's complaint sought $20 million, punitive damages, an injunction and other relief.
The trial court rejected Crusader's central proposition that Insurance Code section 1763 gives Crusader a new private right to sue, concluding instead that section 1763 authorizes regulatory remedies only. Inasmuch as Crusader had no claim against defendants other than their alleged violation of the "diligent search" requirements of Insurance Code section 1763 (i.e., no common law theories such as negligence, fraud, breach of contract, etc.), the trial court sustained defendants' demurrers without leave to amend and dismissed Crusader's action. This appeal followed.
1. Summary of Decision.
In the published portion of this decision, we will conclude that the Restatement approach is not valid in California to the extent that it deviates from the legislative intent approach. This determination will rest primarily upon California Supreme Court cases which regularly employ the legislative intent approach to resolve questions of whether a statute creates a private right to sue, and upon Code of Civil Procedure section 1858, which provides that a judge may not insert what has been omitted from a statute. We will then apply the legislative intent approach and conclude that the Legislature had no intent that Insurance Code section 1763 would create a new private right to sue. In the unpublished portion of this decision, we will deal with related issues of conspiracy, unfair competition and interference with prospective economic advantage.
In concluding that legislative intent determines whether a statute creates a new private right to sue, and that a judge may not engraft a new private right to sue onto a statute when the Legislature had no such intention, we will distinguish an allied, but significantly distinct, concept. This latter concept involves the use of statutes to establish the elements of common law causes of action. The use of statutes as evidence of the standard of care in a negligence action is a common example. In such a case, the statute does not create a new private right to sue. The statute instead serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action. This use of statutes to establish elements of preexisting common law causes of action presents an issue quite distinct from the issue of whether a regulatory statute creates a wholly new private right to sue.
*126 In the instant case, Crusader would have no claim against the defendants in the absence of Insurance Code section 1763. The case presented by Crusader is therefore different from a case in which a statute is offered to establish an element of a preexisting common law cause of action. Case law, however, has often failed to distinguish clearly between the issue of whether a statute creates a wholly new private right to sue, and the use of a statute to establish an element of a preexisting common law cause of action. The failure to distinguish between these two significantly different questions has confused the case law regarding the proper test for determining whether a regulatory statute creates a wholly new right to sue. In concluding that the legislative intent approach answers the question of whether section 1763 creates a new private right to sue, we will therefore distinguish cases which concern the quite different question of whether a statute may be used to establish an element of a common law cause of action.
2. The Restatement Approach.
a. Section 874A.
(1a) Crusader contends that the question of whether Insurance Code section 1763 gives Crusader a private right to sue should be decided according to the broad considerations set forth in the Restatement Second of Torts, section 874A and its commentary. Section 874A states: "When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action." (Italics added).
b. Comparison between the Restatement approach and the legislative intent approach.
The commentary to Restatement Second of Torts section 874A identifies four categories of cases involving the question of whether a statute creates a new private right to sue: (1) when the statute expressly creates a private right to sue, (2) when the court finds that the Legislature "did actually intend for civil liability to be imposed," even though the statute may not expressly so state, (3) when the court finds that the Legislature affirmatively "intended that there be no civil liability," and (4) when the Legislature did not contemplate the issue and therefore had no legislative intent one way or the other. (Rest.2d Torts, § 874A, coms. b, c & d, pp. 301-303.)
*127 In categories one, two and three, the Restatement approach is consistent with the legislative intent approach: The court simply determines and then abides by the legislative intent. Many regulatory statutes, however, fall into the fourth category, in which the Legislature does not manifest any intent regarding a private right to sue, and in which the Legislature may simply not have considered the subject. Regulatory statutes which make no express mention of a private right to sue often fall into this fourth category. It is with respect to this common situation that the Restatement approach and the legislative intent approach diverge.
If the Legislature simply did not consider the possibility of creating a new private right to sue, then the Legislature cannot have had an intent to create a new private right to sue. Hence pursuant to the legislative intent test a statute cannot be interpreted as creating a private right to sue. In such a circumstance, the proper course for a party who believes that there should be a private right to sue is to bring the matter to the attention of the Legislature so that the Legislature can in fact consider whether it should, or should not, create such a right. The Restatement, by contrast, takes quite a different approach.
c. The divergence between the Restatement approach and the legislative intent approach.
According to the Restatement, if a court finds that the Legislature "had no specific intent in fact on the issue" of whether to create a private right to sue as is the case whenever the Legislature simply did not consider the question the court must "decide this question on its own." According to the Restatement, deciding this question "involves looking for the policy behind the legislative provision ... and ... determining the most appropriate way to carry it out.... [¶] This process requires policy decisions by the court, and it should be aware of them and face them candidly. In these cases, it is the court itself that is according the civil remedy to the injured party ... what is involved is judicial rather than legislative modification of the existing law ... judicial tradition gives [the court] the authority to do this under appropriate circumstances. The court has discretion and it must be careful to exercise that discretion cautiously and soundly." (Rest.2d Torts, § 874A, com. d, p. 303, italics added.)
In deciding how to exercise this postulated discretion to decree a "judicial ... modification" of a statute, the Restatement advises that courts should engage in a series of subjective inquiries and form a series of subjective opinions. According to the Restatement, the court should decide whether a private right to sue is "appropriate" and "needed," examine the "adequacy of *128 existing remedies," decide whether the existing remedies are "sufficient," consider which remedies would be "better," decide whether injecting the private interests of a plaintiff is "good or bad in regard to the particular legislation," examine the staffing levels and degree of "apathy" in responsible regulatory agencies, consider whether the penalty of a civil action would be "too heavy" or "too erratic," determine whether court-created remedies will "enable the court to exercise tighter control," evaluate the "significance of the purpose that the legislative body is seeking to effectuate," decide how "important" the Legislature's purpose is and whether it has been "adequately protected," determine "[t]he extent to which the tort action will aid or supplement or interfere with existing remedies and other means of enforcement," and a host of similar quasi-legislative considerations. (Rest.2d Torts, § 874A & com. h, p. 309.) The Restatement thus postulates that even though the Legislature had no intent to do so, the Legislature may nevertheless have unintentionally and inadvertently created a new right to sue by enacting a statute, depending upon how a court later evaluates the factors noted.
In this fourth category of cases, the legislative intent approach and the Restatement approach can therefore yield opposite results. A legislative intent analysis would lead simply to the conclusion that the Legislature cannot have intended to create something that it never considered. In the same situation, the Restatement approach would allow the court to use a statute to create a new private right to sue if the court found it "appropriate" and "needed" in light of the considerations summarized above.
d. Importation of the Restatement approach into California law by the Middlesex case.
Crusader relies on Middlesex Ins. Co. v. Mann (1981) 124 Cal. App. 3d 558 [177 Cal. Rptr. 495] to contend that section 874A of the Restatement Second of Torts states the law in California. In Middlesex, defendant Mann was selling insurance policies written by Middlesex and remitting the net premiums to Middlesex's agent. Mann allegedly failed to remit the net premiums. Middlesex sued Mann on common law and equitable theories of breach of fiduciary duty, accounting, and imposition of a constructive trust. (Middlesex, supra, 124 Cal. App. 3d 558, 564.) Judgment went for Mann, and Middlesex appealed.
One issue on appeal was whether Mann owed Middlesex a "fiduciary" duty with respect to the net premiums received by Mann and payable to Middlesex. Mann was allegedly entrusted with funds which constituted the property of Middlesex, and allegedly either misappropriated them or lost them through lack of care. It therefore appears that Middlesex had ample *129 common law claims against Mann. (See, e.g., 1 Witkin, Summary of Cal. Law (9th ed. 1988) Contracts, § 791, p. 715 [breach of contract]; 5 Witkin, Summary of Cal. Law, supra, Torts, § 610, p. 707 [conversion]; 6 Witkin, Summary of Cal. Law, supra, Torts, § 729, p. 56 [negligence].) However, Middlesex had cited Insurance Code section 1733, which provides that an insurance agent receives premiums in a fiduciary capacity, to establish Mann's duty of care. (Cf. Evid. Code, § 669 [codifying the doctrine of negligence per se]; 6 Witkin, Summary of California Law, supra, Torts, § 819, p. 171 [negligence per se]). In dealing with the effect of section 1733, the Middlesex opinion, in one scant paragraph out of seventeen pages, states that "... the appropriate rule is the general rule stated in Restatement Second of Torts, section 874A." Middlesex then summarily finds that "[a] civil remedy against [insurance agents] responsible for the misapplication or dissipation of premium payments will best effectuate the purpose of" section 1733, and concluded that "... a civil action will lie for damages proximately resulting from [an insurance agent's] breach of the fiduciary obligations imposed by" section 1733. (Middlesex Ins. Co. v. Mann, supra, 124 Cal. App. 3d 558, 570.)
The Restatement Second of Torts section 874A, thus has ambiguous beginnings in California jurisprudence. The substance of the decision in Middlesex was simply that the statute there involved could be used in establishing the standard of care or implied obligation elements of what appeared to be a common law negligence or breach of contract case styled as breach of fiduciary duty.[3]Middlesex did not use section 874A, as Crusader tries to use it here, to create a wholly new cause of action out of a regulatory statute.
Middlesex cited two cases as support for its conclusion that Restatement Second of Torts section 874A states the "appropriate rule" in California. One was Haft v. Lone Palm Hotel (1970) 3 Cal. 3d 756, 763 [91 Cal. Rptr. 745, 478 P.2d 465]. Haft involved a drowning death in a hotel pool that failed to meet safety standards. Haft found the hotel negligent. The statutory standards involved in Haft were invoked simply to set the standard of care in a common law negligence action. The other case cited by Middlesex was Wetherton v. Growers Farm Labor Assn. (1969) 275 Cal. App. 2d 168, 174 [79 Cal. Rptr. 543], questioned and overruled on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510-521 [28 Cal. Rptr. 2d 475, 869 P.2d 454]. In Wetherton, defendants allegedly coerced plaintiffs not to join a labor union. Labor Code sections 922 and 923 *130 declared such coercion to be a misdemeanor. The question was whether these penal code provisions also supported a private right to sue for money damages. Wetherton stated, expansively but simply, and without elaboration, that "[v]iolation of a statute embodying a public policy is generally actionable even though no specific remedy is provided in the statute; any injured member of the public for whose benefit the statute was enacted may bring an action." Neither Haft nor Wetherton mentions the Restatement.
e. Other cases applying Restatement section 874A.
The other case principally relied upon by Crusader is Kentucky Cent. Life Ins. Co. v. LeDuc (1992 N.D.Cal.) 814 F. Supp. 832, 837. In Kentucky Central, insurer Kentucky Central alleged that insurance agents had misrepresented facts to policyholders to induce them to change their policies from Kentucky Central to another carrier. The court ruled that Kentucky Central had stated common law claims for interference with contractual relations and interference with economic advantage. In addition, however, Kentucky Central had alleged that the insurance agents had violated Insurance Code section 781, which prohibits misrepresentation of facts to policyholders to induce them to change insurers. In Kentucky Central, the federal district court cited Middlesex for the proposition that "courts may imply a right of action from a statute" pursuant to section 874A of the Restatement Second of Torts, and found that section 781 creates a private right to sue. The practical significance of this abbreviated federal trial court ruling is unclear inasmuch as plaintiff was already proceeding on common law theories based upon the same allegations and covering the same damages, and inasmuch as it is presumed in California that a party has failed to use due care if that party violates a statute. (Evid. Code, § 669).
Also citing Middlesex for the proposition that Restatement Second of Torts section 874A states the law in California is Castillo v. Friedman (1987) 197 Cal. App.3d Supp. 6 [243 Cal. Rptr. 206]. Castillo involved a suit by a tenant against a landlord for common law fraud. Also advanced, however, was a contention that the landlord had violated a rent control ordinance. The question was whether the tenant could sue for violation of the ordinance. Again, the practical significance of the question is unclear inasmuch as plaintiff had successfully pursued a common law fraud cause of action on the same allegations for the same damages. In stating that the ordinance created a private right to sue, the Appellate Department of the Los Angeles Superior Court cited Middlesex and applied the Restatement.
*131 3. The Legislative Intent Approach.
a. The Supreme Court applies the legislative intent approach and has not adopted the Restatement approach.
The leading case on the proper analysis for determining whether a regulatory statute creates a private right to sue is Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287 [250 Cal. Rptr. 116, 758 P.2d 58]. In Moradi-Shalal, the Supreme Court overruled its earlier decision in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal. 3d 880 [153 Cal. Rptr. 842, 592 P.2d 329]. In Royal Globe, the court had ruled that certain provisions of the Insurance Code, which provided only regulatory remedies, nevertheless created a private right to sue. In so holding, the Royal Globe majority examined the language and purpose of the statutory provisions, considered the legislative history, and expressly applied a legislative intent analysis. In dissent, three justices argued that the majority had erred in its analysis of legislative intent and, also applying a legislative intent analysis, concluded that the statutes there in question were not intended to create a new private right to sue. Neither the majority nor the dissenting opinion mentioned the Restatement. Neither suggested that a Restatement-style "judicial modification" of the statute would be proper, or that any analysis other than a search for legislative intent was proper.
In reversing Royal Globe in Moradi-Shalal, the Supreme Court first reviewed the bases for the Royal Globe decision and examined decisions on similar issues from sister states. The Moradi-Shalal court also examined scholarly criticism and noted that the Royal Globe decision had "forced the lower courts to make quasi-legislative decisions." Much of this discussion was directed to the issue of stare decisis and whether Royal Globe should be revisited. On the subject of whether the statute created a private right to sue, the Moradi-Shalal court applied a legislative intent analysis and held that "thus far the Legislature has not manifested an intent to create such a private right of action." (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal. 3d 287, 305.) Since the Legislature had not manifested an intent to create a private right to sue, Moradi-Shalal found that there was no private right to sue. In dissent, Justice Mosk (the author of the majority opinion in Royal Globe) argued only that the interpretation of legislative intent in Royal Globe was correct. Neither the majority nor the dissenting opinion in Moradi-Shalal mentioned the Restatement. Neither suggested that a Restatement-style "judicial modification" of the statute would be proper, or that any analysis other than a search for legislative intent was proper.
Both of these famous antagonists in California law, Royal Globe and Moradi-Shalal, thus expressly applied a legislative intent analysis. Although *132 Royal Globe has been criticized by some for applying the legislative intent approach in a style so free-form that it seems indistinguishable from the Restatement approach, not even Royal Globe itself expressly claimed to apply anything other than legislative intent analysis. The difference in outcome between Royal Globe and Moradi-Shalal was not due to admitted application of a different test in Royal Globe, but rather to the contrary understanding of legislative intent developed by Moradi-Shalal (and also by most other courts around the country which have considered the issue). Thus both Royal Globe and Moradi-Shalal are expressly in agreement that the legislative intent approach must be applied.
When Moradi-Shalal found that "thus far the Legislature has not manifested an intent to create such a private right of action," it placed the case in the fourth category discussed in the Restatement comments cases in which no manifestation of legislative intent can be found on the subject of private right to sue because the Legislature did not consider the subject. Moradi-Shalal found that in this situation no private right of action has been created. By contrast, a court applying the Restatement approach in the same situation could itself "modify" the statute by creating a private right to sue if the court found it "appropriate" and "needed."
As the dissent stated in Royal Globe, if the Legislature had truly intended to create a private right to sue "`one would reasonably have expected that the Legislature simply would have directly imposed such liability in clear, understandable, unmistakable terms, as it has done in numerous other statutes.'" (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal. 3d 287, 295; see also Schaefer v. Williams (1993) 15 Cal. App. 4th 1243, 1248 [19 Cal. Rptr. 2d 212] [if the Legislature had intended to create a private right to sue, it surely would have done so by "clear and direct language," citing Moradi-Shalal].) Moradi-Shalal found that the points raised in the Royal Globe dissent "seem irrefutable," and reversed Royal Globe on that basis. (Moradi-Shalal, supra, 46 Cal. 3d 287, 304; cf. Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1392 [241 Cal. Rptr. 67, 743 P.2d 1323] ["[a]bsent express language dictating otherwise, it will not be presumed that the Legislature intended to authorize an administrative agency" to award punitive damages]; and California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal. 4th 342, 349 [45 Cal. Rptr. 2d 279, 902 P.2d 297] [had Legislature intended to exempt certain parties from reach of statute, it could readily have done so].) Moradi-Shalal further noted that "[t]he fact that neither the Legislative Analyst nor the Legislative Counsel observed that the new act created a private right of action is a strong indication the Legislature never intended to create such a right of action." (Moradi-Shalal, supra, 46 Cal.3d at p. 300; see also Manufacturers Life Ins. *133 Co. v. Superior Court (1995) 10 Cal. 4th 257, 275 fn. 7 [41 Cal. Rptr. 2d 220, 895 P.2d 56] [noting Legislative Analyst's statement that new act made no substantive change in existing law].) Thus when neither the language nor the history of a statute indicates an intent to create a new private right to sue, a party contending for judicial recognition of such a right bears a heavy, perhaps insurmountable, burden of persuasion.
In Manufacturers Life Ins. Co. v. Superior Court, supra, 10 Cal. 4th 257, the Supreme Court rejected an argument that the decision in Moradi-Shalal means that insurers are not subject to any statutory liabilities. Instead, the court explained that Moradi-Shalal marked a return to "the fundamental principle" that a statute is "to be applied according to its terms." (Manufacturers Life Ins. Co., supra, 10 Cal. 4th 257, 279.) Analyzing several statutes according to the legislative intent approach, the court determined that some statutes create civil liability, and others do not, all according to legislative intent. No mention was made of the Restatement.[4] (See also Arriaga v. Loma Linda University (1992) 10 Cal. App. 4th 1556, 1564 [13 Cal. Rptr. 2d 619] [standards in Rest.2d Torts, § 874A, p. 301 for determining whether statute creates a private right to sue have arguably been superseded by Moradi-Shalal]; cf. Dyna-Med Inc. v. Fair Employment & Housing Com., supra, 43 Cal. 3d 1379, 1389 [Legislature did not intend sub silentio to empower commission to impose punitive damages].)
b. The statutory "general rule" for construction of statutes.
(2) Code of Civil Procedure section 1858 states the "general rule" for construction of statutes as follows: "In the construction of 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...." (See Manufacturers Life Ins. Co. v. Superior Court, supra, 10 Cal. 4th 257, 274 [citing § 1858 as one of the "[w]ell established canons of statutory construction" and describing it as a "mandate"] and California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 11 Cal. 4th 342, 349 [office of judge neither to insert nor to omit].) *134 Section 1858 is itself an expression of legislative intent regarding the proper interpretation of the statutes enacted by the Legislature. Thus a court "is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language." (In re Hoddinott (1996) 12 Cal. 4th 992, 1002 [50 Cal. Rptr. 2d 706, 911 P.2d 1381].) "... [C]ourts are not at liberty to impute a particular intention to the Legislature when nothing in the language of the statute implies such an intention." (Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal. App. 4th 644, 658 [11 Cal. Rptr. 2d 850].)
(1b) The Legislature can have legitimate reasons for not creating a private right to sue for violation of a regulatory statute. Entrusting enforcement of a regulatory statute solely to an administrator can serve at least three possible legislative objectives: expertise of enforcement, uniformity of enforcement, and avoidance of the burdens and possibly counterproductive effects that can be created when litigation is motivated by private objectives. The question of whether to create a private right to sue does implicate considerations of the kind discussed in the comments to Restatement Second of Torts section 874A. However, resolution of such issues "involves a difficult weighing of competing policies. Such a determination is more properly made by the Legislature." (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal. 3d 287, 303-304.)
c. The legislative intent approach does not abrogate common law rights.
A mode of analysis which provides that a statute does not create a private right to sue except when the Legislature so intended does not diminish justice it simply declines to distort a statute beyond the bounds of the legislative intent that created it. As Moradi-Shalal noted, available common law remedies are not limited by legislative intent analysis. (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal. 3d 287, 304-305.) As noted in Industrial Indemnity Co. v. Superior Court (1989) 209 Cal. App. 3d 1093, 1096 [257 Cal. Rptr. 655], Moradi-Shalal's determination that the statutes there involved created no private right to sue "usually does not matter" to an insured, because an insured may still pursue common law claims. (Accord, Zephyr Park v. Superior Court (1989) 213 Cal. App. 3d 833, 837 [262 Cal. Rptr. 106] [first party insureds in privity with insurer have common law claims]; see also Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 1996) ¶ 14:119 et seq., p. 14-27 [discussing breach of implied covenant and negligence].) Similarly, in the surplus line context, an insured suffering a loss because of improper conduct by a broker in placing surplus line coverage may pursue common law claims against that broker, which may include negligence, breach of contract, etc.
*135 4. An Admitted Insurer Has No Private Right to Sue Arising out of Insurance Code Section 1763.
(3) Crusader's first cause of action was stated expressly as a claim for "Violation of Insurance Code § 1763." Insurance Code section 1763 prescribes the procedures, noted above, that must be followed by surplus line brokers in soliciting and placing insurance with nonadmitted insurers. The core of these procedures is the "diligent search" requirement coupled with reporting requirements, supplemented by the Insurance Commissioner's authority to investigate and to order remedial action. Crusader argues that the surplus line brokers make no real effort to find admitted insurers who will cover a risk but instead seek three insurers who will decline coverage, and then place the insurance with nonadmitted insurers. Since the nonadmitted insurers need not comply with California regulatory requirements, their rates can allegedly be lower than California insurers and California consumers might not be as protected as they would be with admitted insurers. The Insurance Commissioner is presumably taking no action, or taking only action that is inadequate in Crusader's view, to enforce section 1763. The central issue, even assuming that all this is true, is whether an admitted carrier like Crusader has a private right to sue for alleged noncompliance with section 1763.
In Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal. 3d 287, the Supreme Court held that an injured third party has no private right to sue the insured's carrier under Insurance Code section 790.03 or 790.09. Specifically, "[n]either section 790.03 nor section 790.09 was intended to create a private civil cause of action against an insurer that commits one of the various acts listed in section 790.03, subdivision (h)." (Moradi-Shalal, supra, 46 Cal. 3d 287, 304.) Crusader argues that its claims are not barred by Moradi-Shalal simply because they do not arise out of claimed violation of section 790.03. Crusader relies instead on Middlesex Ins. Co. v. Mann, supra, 124 Cal. App. 3d 558, and Kentucky Cent. Life Ins. Co. v. LeDuc, supra, 814 F. Supp. 832. Middlesex was decided before Moradi-Shalal and has never been followed by the Supreme Court.[5]Kentucky Central is a federal district court case that relies on Middlesex. Moradi-Shalal did involve different code sections than the instant case, and it is therefore true that Moradi-Shalal does not directly answer the specific question now posed. However, Moradi-Shalal did clarify the test by which the question must be answered. That test is the legislative intent test. No reason has been suggested why the legislative intent test would apply in Moradi-Shalal but not here.
Crusader also cites the legislative history of Insurance Code section 1763. The Legislature clearly was concerned about the danger faced by California *136 consumers dealing with unstable and underfunded nonadmitted insurers.[6] Much of the legislative history deals with tales of carriers headquartered in the Caribbean or similar offshore locales, backed by unreliable assets such as bonds of dubious value issued by third world governments or enterprises of questionable stability. Nevertheless, there is no indication that the Legislature intended to create a private right to sue when it enacted Insurance Code section 1763. Testimony was presented to the Legislature by at least one witness recommending that private parties be given a right to sue, yet the Legislature enacted no such right. Rather than creating a private right to sue, the Legislature instead increased regulatory procedures and created a "surplus line advisory organization."[7] Insurance Code section 1780.50, subdivision (a), which creates the "surplus line advisory organization," states "[t]he Legislature finds and declares that consumers in the State of California have insurance needs which cannot always be met through the admitted insurance market. For this reason, many insurance consumers need access to insurance underwritten by nonadmitted insurers, as permitted by law...." Thus in response to claims of regulatory noncompliance in the surplus line area, the Legislature created not a private right to sue, but instead expressly recognized the value of the surplus line market, created new regulatory procedures, and created a "surplus line advisory organization ... to perform certain duties delegated by the Insurance Commissioner...." (Ins. Code § 1780.50, subd. (a)). Nothing in the legislative history suggests a legislative intent to create a private right to sue; instead the legislative history suggests that the Legislature purposefully refrained from creating such a right. (Cf., e.g., Gov. Code, § 91004; Civ. Code, § 52; Health & Saf. Code, § 1430, subds. (a) and (b) [each expressly creating a private right to sue].)
Crusader also cites cases that have allowed a private suit based on a statute, even though the statute itself did not expressly provide a civil remedy. (See, e.g., Castillo v. Friedman, supra, 197 Cal. App.3d Supp. 6 [citing Middlesex, rent stabilization ordinance found to create a private right of action]; Czap v. Credit Bureau of Santa Clara Valley (1970) 7 Cal. App. 3d 1 [86 Cal. Rptr. 417] [collection agency's garnishment of exempt wages supports private civil action for abuse of process]; Laczko v. Jules Meyers, Inc. (1969) 276 Cal. App. 2d 293 [80 Cal. Rptr. 798] [tort cause of action available for setting back odometer].) Each of these cases was decided before Moradi-Shalal. Castillo, discussed above, concerned a case of common law fraud that was also a violation of a rent control ordinance. Czap *137 involved an abuse of process committed by garnishing exempt wages. Laczko involved a suit against the perpetrator of a criminal fraud. Neither Czap nor Laczko involved a comprehensive regulatory scheme of the type involved in the instant case. (See also Arriaga v. Loma Linda University, supra, 10 Cal. App. 4th 1556, 1564 [Restatement standards for determining whether statute creates a private right to sue have arguably been superseded by Moradi-Shalal; even if Middlesex survived Moradi-Shalal, no private right of action where there is a comprehensive regulatory scheme to address a problem and the statute does not provide for a private right of action].)
Finally, Crusader argues that the courts themselves should create a private right of action on the theory that there is a policy preference for admitted carriers over nonadmitted carriers, and that California insureds might be better protected by admitted insurers who contribute to the California Insurance Guarantee Association (an organization which provides compensation following a financial failure of an admitted insurer). This argument is a reiteration of Crusader's argument for application of the broad policymaking approach of the Restatement Second of Torts section 874A, an approach which has never been applied by the California Supreme Court. Moreover, similar arguments could be made regarding the public policy considerations implicated in Moradi-Shalal. Those injured by California insureds benefit from carriers' compliance with Insurance Code section 790.03. Nevertheless, the Supreme Court held in Moradi-Shalal that the courts cannot create a private right of action to enforce compliance with that statute, precisely because many competing policy considerations are implicated, and because those considerations should be weighed and addressed by the Legislature. Thus the trial court was correct to sustain the demurrers to Crusader's claim that defendants violated Insurance Code section 1763.
5.-7[*]
.... .... .... .... .... .... .... .
8. Crusader's Complaint Presents Issues Properly Directed to the Department of Insurance or to the Legislature.
This matter comes to us after a demurrer was sustained; the record was not developed to the point of evidence. We therefore intend no comment upon the factual merit of Crusader's claims. Crusader's contentions, however, can be summarized as this: Crusader contends that the Department of Insurance *138 is not adequately performing its legislatively assigned task of regulating surplus line brokers and, indirectly, non-admitted insurers. Yet Crusader seeks not a writ of mandate directing the department to perform a duty mandated by the Legislature, but rather seeks court-created regulation of surplus line brokers as well as nonadmitted insurers through the medium of damage awards, injunctions and "restitution" orders.
The question of what type or level of regulation is adequate or appropriate is uniquely a question for executive or legislative policy choice. The question implicates issues of cost and price, product availability, allocation of economic burdens and benefits, optimum utilization of tax money, consistency of regulatory effect, suitability of court-imposed resolutions, and a myriad of similar concerns. The subject of creation of a private right to sue necessarily raises similar policy issues, issues uniquely within the policy-investigating and policy-setting powers of the executive and legislative branches.
Crusader's complaints are therefore properly directed either to the Department of Insurance or to the Legislature. If the Department of Insurance is without the resources to address this area of responsibility with the level of vigor the department finds appropriate, the department can report its inabilities to the Legislature. If the Legislature finds it appropriate, either in response to advice from the department or independently, the Legislature can direct reallocation of resources to this effort. Should the Legislature find ancillary enforcement through private litigation preferable to reliance on department enforcement alone, the Legislature can supplement the department's regulatory attentions by providing a private right to sue. Such a legislatively created private right to sue could be limited to injunctive or restitutive remedies, could extend to suits for large amounts of money damages such as the one filed by Crusader here, or could be otherwise tailored as the Legislature finds advisable. Crusader itself can petition the Legislature to create a private right of action for enforcement of Insurance Code section 1763.
Institutional systems are therefore in place to deal with the problem Crusader raises. There is no need or justification for the courts to interfere with the Legislature's efforts to mold and implement public policy in this area by extrapolating the Legislature's enactments into areas beyond those specified by the Legislature itself. (See California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 11 Cal. 4th 342, 349 [task of a court is to construe, not to amend, a statute].)
*139 DISPOSITION
The judgment of dismissal is affirmed. Appellant is to bear costs on appeal.
Boren, P.J., and Nott, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 9, 1997.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 5, 6 and 7.
[1] The named surplus line brokers are Transcal Associates, R.I.C. Insurance General Agency, Inc., and Canyon Pacific Wholesales Insurance Service, Inc. The named nonadmitted insurers are Scottsdale Insurance Company, Admiral Insurance Company, Western Heritage Insurance Company, and Illinois Insurance Exchange.
[2] The nonadmitted insurers are not regulated directly under Insurance Code section 1763. The statute applies directly only to the surplus line brokers. Crusader sues the nonadmitted insurer defendants as coconspirators and on related claims.
[3] Many of the "Illustrations" in the comments to Restatement Second of Torts section 874A are also situations in which a statute is used to establish an element of a common law claim, especially duty of care in a negligence case.
[4] Oral argument before the trial court in the instant case took place before the Supreme Court issued its opinion in Manufacturers Life, and while the now superseded Court of Appeal opinion in Manufacturers Life was outstanding. At that oral argument, Crusader argued that the Restatement approach was "alive and well in the State of California" inasmuch as it was "in part relied upon" in the then outstanding Court of Appeal opinion in Manufacturers Life. That now superseded Court of Appeal opinion did cite and in part rely upon the Restatement approach. Although the Supreme Court complimented the Court of Appeal for its "thorough and thoughtful review" of the issues presented, and affirmed its decision in the Supreme Court version of Manufacturers Life, the opinion of the Supreme Court hews strictly to the line of legislative intent analysis and omits any mention of the Restatement approach.
[5] Moreover, Justice Kaufman, the author of Middlesex as a Court of Appeal justice in 1981, concurred in Moradi-Shalal as a Supreme Court justice in 1988.
[6] There is no allegation, and we do not imply, that the insurer defendants involved here are in the underfunded and unstable category. Rather, insofar as this record suggests, they appear simply to be legitimate companies regulated by other states, but not admitted in California.
[7] According to the legislative history, one reason for formation of the "surplus line advisory organization" was that industry organizations which previously had been voluntarily advising and providing information to the Insurance Commissioner had ceased these activities for fear of being sued.
[*] See footnote, ante, page 121. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264981/ | 6 F. Supp. 859 (1934)
DU PONT CELLOPHANE CO., Inc.,
v.
WAXED PRODUCTS CO., Inc.
No. 6839.
District Court, E. D. New York.
May 11, 1934.
*860 *861 *862 Nims & Verdi, of New York City (Harry D. Nims, of New York City, C. R. Mudge, of Wilmington, Del., and J. Hanson Boyden, of Washington, D. C., of counsel), for plaintiff.
Watson, Bristol, Johnson & Leavenworth, of New York City (L. A. Janney, E. W. Leavenworth, and D. A. Woodcock, all of New York City, of counsel), for defendant.
Hugh M. Morris, of Wilmington, Del., as amicus curiæ on behalf of Societe La Cellophane of Bezons, France, Kalle & Co. Aktien-Gesellschaft, Wiesbaden-Biebrich, Germany, and Cellophane Company, Limited, of Manchester, England.
CAMPBELL, District Judge.
This is an action brought by the plaintiff for the alleged infringement by the defendant of a trade-mark of the plaintiff, "Cellophane," by using the same in connection with goods not of plaintiff's manufacture, in which plaintiff seeks an injunction.
Plaintiff is a Delaware corporation, and a wholly owned subsidiary of E. I. DuPont de Nemours & Co.
Defendant is a New York corporation, a citizen of the Eastern District of New York, a wholesaler and converter of transparent sheets.
The defendant purchases goods from Sylvania Industrial Corporation, which is one of the plaintiff's principal competitors, and admits that Sylvania Industrial Corporation manufactures the material which was sold by the defendant as alleged in the complaint.
It is admitted by the defendant that attorneys selected and paid by Sylvania Industrial Corporation, and not by defendant, are defending and guiding this suit.
That plaintiff claims Cellophane as its *863 trade-mark is known to defendant, but on calls for Cellophane defendant sells the product of Sylvania Industrial Corporation as Cellophane, but bills it as cellulose.
In addition to the formal allegations, the complaint alleges that plaintiff owns the registered trade-mark Cellophane, and complains of substitution of merchandise not manufactured by plaintiff on calls for Cellophane, representation that merchandise other than plaintiff's is Cellophane, infringement of plaintiff's trade-mark rights, and facilitation of substitution and passing off by causing transparent wrapping, not of plaintiff's manufacture, to be put up in such a manner as to make it difficult, if not impossible, for the public to identify its source, that defendant threatens to continue these acts, and the damage resulting will be irreparable.
The defendant by its answer denies these essential allegations, both as to ownership of the trade-mark and as to defendant's acts, but admits that the defendant has supplied a product not plaintiff's to customers ordering Cellophane.
The amended answer alleges the following as separate defenses:
(1) Cellophane is the generic name of a product manufactured under certain expired patents; (2) irrespective of said patents, it is the only descriptive and generic name used by the public for this product and plaintiff itself has so used it; (3) if Cellophane ever was a valid trade-mark, it has been abandoned through the descriptive use made of it by plaintiff, and its acquiescence in such use by others; and (4) plaintiff is estopped to deny Cellophane is the generic name of a product.
I find the following facts:
Dr. Little, an American chemist, in the year 1892, knew of film of hydrated cellulose and other material. He actually made it in the same year, in connection with the American Viscose Company and the Cellulose Products Company.
Cross and Bevan, English chemists, applied for and received, in 1894, a United States patent for what they described as "plastic compound of cellulose," and stated that this compound of cellulose might be rolled in sheets, and was afterwards called viscose.
Cross and Bevan, in 1893, applied for and later received a patent for the "modification of cellulose" obtained from the above compound and adapted to be manufactured into sheets. It contained glycerin for softening purposes.
Dr. Cohoe, an American chemist, knew of transparent sheets and the terms "transparent foil," "film," and "sheets."
Dr. Little, in 1897, demonstrated transparent cellulose hydrate sheets which he had made himself at the Franklin Institute, an account of which appeared in the Journal of that Institute.
Dr. Little said that in 1898 "there was an extraordinary amount of industrial interest in viscose all over Europe * * * the properties of the material were exceedingly well known."
Stearn, in 1898, applied for and later received a British patent for the manufacture of a film of cellulose.
Chorley, in 1899, applied for and later received a British patent for making cellulose film.
Little went to England in 1899 to investigate the viscose industry and saw the Chorley process in actual operation, in the Manchester Viscose Company plant, turning out cellulose hydrate films, glycerin being used as a softener, and the material being transparent.
The written report, of 425 pages, made by Dr. Little, which is in evidence, states in part: "The manufacture of continuous films of cellulose has been developed by Mr. Chorley as chemist for the Manchester Viscose Co., Ltd., and a thoroughly practical and well-designed machine has been evolved and is now set up and in operation at the small plant of the company in Manchester * * *." "The most important use which has thus far been proposed for these films is for soap wrappers in place of tinfoil, and the company is in receipt of a request from Mr. A. Pears, who desires to use large quantities of the films, and has expressed his willingness to pay two shillings a pound for them * * *."
The film which Dr. Little saw manufactured in England was substantially the same as that produced by plaintiff to-day.
In his said report Dr. Little recommended the acquisition of the rights to the use of the continuous film machine for the United States, gave complete details of the Chorley manufacture of continuous films, and a drawing of the machine.
Stearn, in 1903, applied for and received a second patent for the manufacture of sheets or films from cellulose, and Dr. Little was acquainted with Stearn and familiar with his patents and processes.
Cross and Bevan, in 1908, manufactured film, and Dr. Cohoe knew of a firm in Lyons, France, making transparent film prior to that year.
*864 The words "film," "foil," "sheets," "cellulose," "viscose," and "transparent" were all part of the English language at that time.
The word "Cellophane" was coined prior to April, 1908, and its first use was as a trade-mark by Blanchisserie et Teinturerie de Thaon, of Thaon les Vosges, France, on its transparent film, which is thus described in an application for a trade-mark registration: "* * * cellulose sheets obtained by the regeneration and transformation of viscose whether transparent, opaque, colored, or uncolored."
Brandenberger, in 1909, applied for and later received two United States patents, one for a machine, describing it as an "Apparatus for the continuous manufacture of cellulose films," and the other for "Manufacture of cellulosic films."
Both were purchased by the plaintiff in 1923, and neither patent mentioned the term "Cellophane."
Euler, in January, 1912, obtained an exclusive sales agency for the French company's product in the United States and Canada.
Shipments were made by the French company to Franz Euler & Company, New York, in the form of rolls of one hundred pieces, three or four rolls to a case.
Later, bundles of five hundred sheets were shipped.
These packages bore a factory label, and sometimes were received in larger bales by Euler, broken up, and the small packages distributed, which packages also bore the factory labels, and sometimes shipments were made directly from the factory to Euler's customers in America, and these also bore the French labels.
Henle Paper Company was one of these customers, and the witness Jacobson was from that concern.
None of the original labels can be found, but they contained the name and address of the French company, Blanchisserie et Teinturerie de Thaon, the word "Cellophane," and French measurements. Jacobson of the Henle Paper Company remembers them, and says that they were similar to the later label which is in evidence as Exhibit 119, and I so find.
This label was identified by Euler as having been first used between August, 1914, and April, 1917. Packages received by Henle Paper Company from Euler, bearing these factory labels, were shipped by that company to its customers with said labels, and without adding any other labels.
Euler did not use any labels of his own which reached the consuming public; he "did distribute some small labels at one time with a slogan on it indicating that the material that was wrapped around that merchandise was La Cellophane."
Blanchisserie registered Cellophane as a trade-mark in France, No. 245, dated March 25, 1912, in renewal of a prior registration made in the year 1908.
Euler applied to register in Class 37, Paper and Stationery, the term "La Cellophane" for parchment tissue, on May 11, 1912.
At that time Euler was the exclusive agent or distributer of the factory for the United States. The factory neither authorized Euler to register the trade-mark, nor even knew of the registration by him. He acted solely on his own responsibility.
Blanchisserie, on August 2, 1912, applied under sections 1 and 2 of the Trade-Mark Act of 1905, as amended (15 USCA §§ 81, 82), based on a French registration No. 245, dated March 25, 1912, to register the word "Cellophane" in the United States as its trade-mark for cellulose sheets, claiming first use in its business since April 11, 1908.
Euler issued a circular to his trade as follows: "`La Cellophane' (made in France) * * * a transparent parchment tissue paper of the highest merit. La Cellophane is imported only by Franz Euler & Co. * * * who are the representatives for the Cellophane factory of France in the United States and Canada. La Cellophane is registered in the United States Patent Office and infringers will be prosecuted to the fullest extent of the law. Every package or roll bears the Factory's label with the registered trade mark La Cellophane."
Every package or roll carried the factory's label, "La Cellophane."
At first Euler bought his goods in the open market in France.
From the beginning until the purchase by DuPont, the word "Cellophane" was used only as a trade-mark on film sold in the United States by the French manufacturers, and by Euler as distributer, and by no one else except by persons whose use was promptly objected to by Euler, and without exception these persons respected his protest and stopped when objections were made by him.
No film has been sold here at any time under the brand Cellophane, except goods of Blanchisserie and its successors.
Euler always confined the word to the product of this one concern.
*865 Euler filed his trade-mark registration with customs authorities about this time, to protect his interest as importer of this material.
Cross and Bevan's book was published in England in 1912. It stated at pages 161 and 162 (87): "* * * the manufacture of cellulose film from viscose by continuous processes is a result attained only after long years of persistent study of the exceptionally complex technical problem * * *." "The viscose film (cellulose) under the powerful auspices of the Societe Industrielle de Thaon is at length a fait accompli, and is an article of commerce under the descriptive term Cellophane."
Chemical Abstracts, published by the American Chemical Society, stated at page 2469: "The use of Cellophane for inclosing food substances * * *" "A favorable report to the Minister of Agriculture on this product, which is a thin cellulose membrane * * *."
After 1912, others than Euler imported the material, but they did not get very much of it; that which Birn sold he secured through jobbers in Paris, Belgium, and Germany, as he was not able to buy direct from the French manufacturers at that time, and his business was very limited from 1913 to 1921. The film he imported carried the label "La Cellophane" from the beginning, and was manufactured by the French concern.
Euler began in 1913 to advertise in the Confectioners' Journal, and continued this until January, 1917, and held himself out in such advertising as the exclusive agent of the French factory, pointing out that La Cellophane, described as transparent paper, is "made in France," and in connection with the name, the notice, "Reg. U. S. Pat. Off." In these advertisements, especially the issue of August, 1913, reference is made to the factory labels thus, "See that the factory labels state the quality number."
Candy companies, which prior to this time had used gelatin paper, began to use transparent paper, and witnesses from two such companies testified. The witness Guth produced no specimens of advertising in which the word "Cellophane" appears, and his testimony as to uses is speculative.
There is nothing in the Guth testimony to show any connection of plaintiff with such uses, or that those customers ever used the word "Cellophane" in a manner which would injure plaintiff's rights.
Guth says that when he bought from Birn & Wachenheim he thought he was buying a DuPont product and adds: "I naturally always associated DuPont with Cellophane, * * * they did a great service to anybody that puts out package goods." He thought Sylvania was a part of DuPont's business, but remembers Fenestra as the trade-mark of Birn & Wachenheim.
The witness Hinds, representing Daggett, the other candy manufacturer, testified that they did not begin to use the product before 1919.
The Journal of Industrial and Engineering Chemistry, in June, 1913, under the heading "Cellophane," says: "Mueller regards Cellophane as `Viscose' of the highest technical importance. The elasticity of Cellophane is said to be remarkable * * *. Cellophane is soluble in water and alcohol * * *."
The Literary Digest of March 7, 1914, describes this film as a "novelty."
The War interfered with Euler's importations, and this is indicated by his advertisements in December, 1914, January, February, and March, 1915.
Birn says that Euler handled practically no Cellophane from the latter part of 1914 to 1921. This is denied by Euler, who says that from 1914 to 1921 they were the accredited agents of La Cellophane Company, and while their imports were restricted between 1914 and 1918, they continued up to 1921, and that he thinks they received all that came over, not during the entire time, but during the greater part of the time, and is corroborated as to this by Jacobson. Euler protested in writing to Birn & Wachenheim against their use of the trade-mark "Cellophane," and they stopped it.
The French factory did not, between 1914 and 1920, so far as Euler knows, export direct to the United States except to him. After 1919, he also obtained the product of the factory through French jobbers. This product was always sold by Euler as Cellophane. Birn & Wachenheim and Bendix purchased a small amount from jobbers, even while Euler's agency existed. Euler notified competitors to stop the use of the term "Cellophane," and every one of them did so, and adopted trade-marks of their own.
In the New York Times of March 11, 1915, is an article headed "Uses of Cellophane," which states: "Appraisers hold it should not pay duty as gelatin." Impressed with the great variety of uses to which an article known as "Cellophane" is put, the Board of General Appraisers sustained a protest by Franz Euler and Rose & Frank Company *866 against Collector Malone's assessment on the product. Appraiser Sague reported that: "The merchandise consists of thin sheets of cellulose variously described as cellophane, flexoloid, dramantine, and brilliantine," and stated that its use is a substitute for thin gelatin sheets in wrapping various things.
On December 31, 1915, the time limit of Euler's contract was reached, but his agency relationship with the factory continued.
It was in 1915 or 1916 that Euler first learned of the registration of the trade-mark by Blanchisserie.
From time to time from 1916 to 1923, Birn & Wachenheim, Catty, and Bendix imported some of the product from French jobbers, and, after 1920, sometimes from the factory; but seldom did more than one concern have it at the same time.
They sold it under different trade-marks of their own creation some time during this period; that of Bendix Company being "Bendiphane," Catty used "Glassolyn," and Birn & Wachenheim, "Fenestra."
On March 16, 1916, Laussedat, assignor to the French company, applied for, and in 1917 secured, a United States patent for a label for bottles and other receptacles, stating: "This invention relates to a label made of cellophane * * *." "The cellophane label could be put over some other label * * *." "The label could be stuck on the cellophane one." "The label * * * can be made of any other material than cellophane."
Birn & Wachenheim, in 1917, began the use of "Fenestra" as their own trade-name, because, among other reasons, as stated by Birn, Euler had the name "Cellophane" copy-righted, and they did not want to get into any controversy with him. Euler continued to sell, and the demand so far exceeded the supply that advertising became unnecessary. Birn & Wachenheim used the trade-mark "Fenestra" on labels and bills, but they had no film business to speak of until 1921.
Transparent film was used in the French Army and was considered for use in the American Army, the material used here coming from France.
In a number of reports and letters in 1917 and 1918 from different government departments regarding gas masks, the word "Cellophane" was used, sometimes with capitals, sometimes with quotations, and sometimes with a small "c."
A report dated November 10, 1917, in Chemical Warfare Service, vol. 1, part I, p. 6, states: "Cellophane is a French trade name for sheet cellulose * * *." Again the same statement is found at page 195, part II, of the same volume.
Chemical Abstracts for October, 1919, p. 2490, published by the American Chemical Society, contained an article relating to photography, and used the word "cellophane" with a small "c."
Technology of Cellulose Esters, vol. I, p. 3075, published in 1919, stated: "The viscose sheets of C. Stearn, F. Woodley, Brozykoski, and especially of E. Brandenberger, deserve mention. The product of the latter inventor, under the name of `Cellophane' has found wide application as a wrapping material for the protection of packages * * * Flexoloid, Biophane, Dramantine, Brilliantine, and Visca are commercial names for similar products."
The witness Hinds, of Daggett Chocolate Company, produced no records, and relied solely on his recollection as to how he used the word "Cellophane" in 1919, but says that in purchases from H. D. Catty Company he used the word "Cellophane," and later when Birn & Wachenheim came along, he called it "Fenestra," which was their trade-name.
On March 18, 1920, Euler sent Pfaltz to France to re-establish his agency with the French concern, which, after seeing Pfaltz, wrote him asserting its ownership of the trade-mark and refusing to continue relations, unless Euler's registration was transferred to it as owner. Euler wrote the French concern refusing to transfer the trade-mark under the conditions stated in the letter of the French concern, which were that it would sell to Euler, but would not give him the agency.
Euler continued to claim rights even against concerns that thereafter were appointed exclusive agents of the factory.
Euler in his advertising in 1921 referred to his registration, and described the product as "transparent wrapper."
Brandenberger, assignor to the French company, on January 25, 1921, applied for, and on February 17, 1922, received, a United States patent for bands of cellulosic material. In the specification he gave "cellophane," printed in this manner with a small "c," as an example of the cellulosic material which might be used in connection with his invention, and used descriptive terms such as "cellulosic material," and "transparent cellulosic material."
Catty was given exclusive agency in the United States in 1921, but Euler thought it *867 was in 1919 or 1920. Catty sold the French film under the trade-name "Glassolyn."
In the transcript of record of Custom Appeal No. 2135, the protest of Roland Freres used a capital "C" for Cellophane, but in other places the word "cellophane" is sometimes used with a small "c." Catty testified in that proceeding that the product was sold under other names in the trade, such as "Glassolyn," "Fenestra" and "Flexoloid."
Dr. Cohoe, in 1921 and 1922, exchanged letters with his partner, La Meistre, in which the word "Cellophane" was sometimes used with a capital "C," and sometimes with a small "c."
Birn & Wachenheim, on January 1, 1922, obtained the factory agency in the United States, and held it until plaintiff took it over. They imported the genuine material, which from the beginning came wrapped in packages bearing labels marked "La Cellophane," and they resold it as "Fenestra," which they registered as their trade-mark, claiming use since 1917.
The factory printed and distributed through Birn & Wachenheim about 10,000 circulars, dated January 1, 1922, which read: "La Cellophane * * * the ideal transparent wrapper, can be furnished in all sizes, in all colors, in thickness from 0.02-0.12 m. m., plain and embossed. Exclusive sale for the United States, Birn & Wachenheim, 121, 125 West 17th Street, New York City."
The Confectioners' Journal for January, 1922, contained this advertisement: "Societe La Cellophane, France, announce Birn & Wachenheim, 121 West 17th Street, New York, their American agents. Fenestra is the trade name used in America."
There is no evidence to connect the last-recited advertisement with either Euler or the factory; on the contrary, the circular issued by the French company shows that the advertisement was not authorized by it. Euler protested against it. The advertisements by Birn & Wachenheim that followed in later months in the same publication show that they heeded that warning. That the advertisement in question emanated from Birn & Wachenheim is shown by their advertisements in February and March of that year. In October, 1922, they dropped all use of the word "Cellophane" and did not resume it.
One, Lader, bought this material from Birn & Wachenheim while they were agents, and later sold it to Euler, who in turn sold it as "Cellophane." Euler also bought at times from one Schick, who in turn bought from Amecousema, a French jobber.
The Tariff Act of 1922 states (§ 1, par. 1213 [19 USCA § 121, par. 1213]): "Products of cellulose, not compounded, whether known as visca, cellophane, or by any other name * * *."
On November 30, 1922, the Paper Trade Journal contained an article entitled "Cellophane, Its Properties and Methods of Testing," which stated: "Cellophane, which in Germany is called `Cellulose-Glass Film,' is a product similar to our artificial silk, in the form of a sheet as in paper. * * * A plant has been erected in Germany for manufacturing cellophane which today is made solely by the Societe La Cellophane in Bezons, France." The word "cellophane" is used several times in this article with the small "c."
In 1922 the name "DuPont" had become a most valuable trade-mark, identified with a large diversity of products. The name, in the oval, was advertised as a badge of quality, and many trade-mark names were advertised in connection with the word "DuPont." The DuPont name had a large sales value.
The history of the DuPont oval as a trademark is given in the DuPont Magazine of September, 1925, and it had been in use for sixteen years.
The DuPont business was founded in 1802, and in 1925 the company was the owner of many United States registered trademarks and many foreign registrations, of which the oval was the best known. A number of trade-marks include the word "DuPont" and another word within an oval. In some cases the word used has been claimed as a trade-mark, i. e., "DuPont Cellophane," "DuPont Fabrikoid," and "DuPont Duco"; in other cases the word has been the name of a product, i. e., DuPont Rayon and DuPont Dyestuffs.
Prior to August in the year 1923, the DuPont interests and the French interests owning the Thaon factory arranged to join forces and begin the manufacture of the material in America, and for this purpose a corporation, plaintiff's predecessor of the same name, was organized in June. In the corporation charter the word "cellophane" was spelled with a small "c." The new corporation acquired the two Brandenberger patents, one for "Improvement in Apparatus for the Continuous Manufacture of Cellulose Films," and the other for "Improvements in or Relating to the Manufacture of Cellulosic Films," also the registration by Blanchisserie of the name of "Cellophane."
By this arrangement the French interests' patents, the trade-mark "Cellophane," and *868 their business of exporting film to the United States, the certificate of registration, together with the good will of the business in connection with which said trade-mark is and has been used, were assigned by the French concern to plaintiff's predecessor, on October 13, 1923, and the assignment was recorded November 10, 1923, in the Patent Office.
In August, 1923, DuPont Cellophane Company, Inc., announced: "That as of August 1, 1923, they have secured the exclusive sales and manufacturing rights of the product known as Cellophane, and manufactured by La Cellophane, of Bezons, France. We are now importing this product and all inquiries will receive our prompt attention * * *."
This advertisement appeared in the August and September numbers of the Manufacturing Confectioner.
In August, 1923, Euler's attorney wrote the new corporation regarding his trade-mark claims. The letter is not in evidence, but the reply to it is in evidence, in which its attorney made plain its position, and in the concluding paragraph of that letter said: "However, we feel that in the assignment now being executed by the Blanchisserie et Teinturerie de Thaon to the DuPont Cellophane Company, the latter will acquire in this country the right to the use upon its products of the trade mark Cellophane, and we are prepared to protect our rights."
A period of development of three or four years followed the organization of the DuPont Cellophane Corporation, in which the corporation built its factory and devoted its attention to improving the quality and uniformity and reducing the cost of the product. Production in the new plant at Buffalo began in 1924, but during the development period the output was comparatively small.
Plaintiff began to use the DuPont oval device with the brand Celophane in it on its goods, at first without a registration notice, but following the registration of the mark in 1924, with the notice, "Reg. U. S. Pat. Off.," which has been used consistently ever since.
The DuPont Magazine of October, 1923, contains an article headed "Cellophane A New DuPont Product," subtitle "The DuPont Cellophane Company will manufacture it at Buffalo, New York."
In this article the word "cellophane" is used with a small initial letter. It is called a "transparent cellulose product," and states: "The DuPont Cellophane Company has obtained the patent rights for North America, and pending the completion of its factory at Buffalo, will be the selling agents in this country for the product which the company is now importing. It is expected that the new factory will be completed in May or June of next year."
In the same magazine for December, 1923, appears another article "That New Wood Product Cellophane."
In this article the name is used with a small letter.
Euler continued his advertisements in the Confectioners' Journal, in November, 1923, January, February, and March, 1924: "La Cellophane (Reg. U. S. Pat. Off.) The peerless transparent wrapping paper."
Euler sold very little of it after August, 1923.
Plaintiff on December 28, 1923, applied for registration of the DuPont oval Cellophane trade-mark for "cellulose sheets obtained by the regeneration and transformation of viscose, * * *" in which application the word "cellophane" was used with a small "c." In the file wrapper for the same registration, Cellophane appears with a capital, and is referred to as a "trade mark."
The word "Cellophane" was not considered descriptive in this application, and that is shown by the fact that no disclaimer of the word "Cellophane" was made. Where such descriptive words as "Fibersilk" and "Rayon" were included in registrations with the word "DuPont," such registrations carried disclaimers of the descriptive word.
Birn, testifying in a customs case, stated that he did not sell film in this country under the name "Cellophane," that he dealt in "Fenestra," and that "Cellophane," "Fenestra," "Bendiphane," "Glassolyn" were trade-names relating to the same article.
Plaintiff spent only about $500 for advertising in 1923.
"Transparit," a cellulose hydrate film imported from Germany, was alleged to be first sold here on January 1, 1924. This material was sold in competition with Cellophane, and the competition was substantial. It was sold as transparent wrapping paper, under the trade-marks "Transparit" and "Krystal Klear."
Yerkes, on January 24, 1924, filed an amendment to his company's application for registration of the DuPont Cellophane oval trade-mark, in which "cellophane" is used several times with a small "c."
Yerkes testified that: "* * * this document was prepared by the legal department and signed by me as a matter of course. I have no distinct recollection of what I meant *869 by signing any of this. This was done in a routine way by the patent or trade mark attorneys in Wilmington, and was sent over to me for signature. * * * I think obviously whoever wrote this document was responsible for it. * * * It was written by somebody writing for this application in the Patent Office. I didn't write it. I signed it but I certainly did not dictate it."
Another amendment was filed by Yerkes on February 13, 1924, to the same application, using a capital "C," and describing the word as a "trade mark." "We also note that our application is rejected on the registration No. 92036 * * * for the trade mark `Cellophane' * * * which had been assigned to plaintiff in 1923." Subsequent office letters and amendments also refer to "Cellophane" and the trade-mark "Cellophane."
The Literary Digest, on February 2, 1924, carried an article entitled "Cellophane: A Substitute for Paper," stating: "A substitute free from these defects is cellophane, a French invention, which is being increasingly used abroad and is making its way in this country."
The defects referred to were the defects of wax paper and gelatin.
Euler, on February 14, 1924, assigned his good will and rights in the word "Cellophane," which he had used as the importer of the French product, to plaintiff, the American successor of the French concern, but did not sell any physical assets.
After the sale, Euler continued to buy from plaintiff and sell as a distributer for plaintiff.
DuPont Cellophane Company imported film from the French factory until toward the summer of 1924, when the factory at Buffalo was completed.
On April 17, 1924, "Paper" stated that Cellophane is: "A product made of a specially treated paper or pulp, somewhat resembling glassine; made from a bibulous waterleaf similar to that used for artificial silk or vegetable parchment."
In July, 1924, DuPont trade paper advertising was begun (except for two announcements in the previous year). In all the trade paper advertising from July, 1924, on, the word "Cellophane," whether used with "DuPont" or not, has been spelled with a capital "C."
On July 22, 1924, the registration of the DuPont oval with the word "Cellophane" within it was granted.
In August, 1924, the advertising of the plaintiff contained the DuPont oval Cellophane trade-mark, and stated: "The New Super Wrap is Now Available for your Holiday Line." The description "New Super Wrap" is used; also the term "Cellophane-wrapped." The advertisement states: "The plant shown above has just been erected at Buffalo, N. Y., by the DuPont Cellophane Company. It is now supplying American Manufacturers with the beautiful protective wrapping material that for years has been manufactured in France * * *."
Various concerns issued advertising containing the word "Cellophane," in phrases such as: "Transparent La Cellophane display top." "Wrapped in Cellophane." "Cellophane Package." "Wraps of Cellophane."
During the year 1924 the plaintiff published a total of twelve advertisements in four different trade publications. (No advertising was done in 1924 to the public.) In the advertisements the DuPont Cellophane oval device was prominently displayed (but without registration notice, registration not having been granted until July 22, 1924). Various descriptive terms were used: "Protective wrapping material." "Super-wrap." "This wonderful new DuPont wrapping material." In the October Perfumers' Journal: "Cellophane, the superior wrapping material, hitherto obtainable only from France in limited quantities, is now available to the American Perfumer * * *." "The modern, new factory, shown above, has recently been erected at Buffalo, N. Y., by the DuPont Cellophane Co., Inc., and from now on will assure a steady supply as well as maintain the uniform quality of Cellophane."
In September, 1924, the Dictionary of Tariff Information, United States Tariff Commission, stated: "Cellophane and visca are cellulose products, precipitated from the plastic solution of chemically dissolved wood pulp or cotton. Cellophane, sometimes called fenestra paper, flexaline, flexoloid, brilliantine, dramantine, glassolyn, and cellulose glass film, in its simplest form resembles in appearance and texture manufactures of gelatin, photographic films, or thin sheets of isinglass."
An article appeared in the November, 1924, DuPont Magazine, page 6: "`Cellophane' the Super Wrap." This is the third article in this magazine relating to Cellophane. In it, and thereafter almost without exception in this magazine, the word is used with an initial capital letter. It speaks of it as "`Cellophane,' the super wrap," "a wrap *870 of cellophane," and shows a diversity of its uses. In the December, 1924, DuPont Magazine the fourth article appeared, in which it was described as a "super wrap." Throughout the article the capital "C" is used. The file of this magazine contains only two articles on transparent film, using "cellophane" with a small "c," and both of these were in 1923, just after the plaintiff was organized.
The October, 1924, Scientific American stated: "In making cellophane the viscose passes into a manifold. * * * It is a perfectly transparent resistant substance. * * * All the cellophane that has hitherto been used in this country has come from France, but now announcement has been made that an American company has succeeded in devising a process for making this substance in America."
In the year 1925, plaintiff published a total of two hundred and twelve advertisements in twenty-five different trade publications, in which the DuPont Cellophane oval trademark was prominently displayed. Following the granting of the registration, a notice of registration was constantly used. Descriptive terms appear throughout these advertisements such as: "Cellophane is a new and unusual wrapping material of absolute transparency," "transparent material," "transparent wrap," and "transparent wrapping."
In March, 1925, DuPont advertised "Cellophane is a new and unusual wrapping material of absolute transparency, strong," etc. Also: "Cellophane is a new wrapping material unusual because it is absolutely transparent," etc. In the same advertisements appears the DuPont oval; always, after September 5, 1924, with the registration notice.
In 1925 plaintiff's "direct mail" advertising began, i. e., printed matter distributed by mail. All carried the Cellophane oval, also various trade-mark notices. The distribution of this "direct mail" material has continued to the present time. The specimens in evidence are merely typical, as it would require too much space to show samples of all of it. Much of the advertising matter which was inclosed in these "direct mail" letters was reprints of Cellophane advertisements from trade or consumer publications, in all of which notice of trade-mark was clearly shown.
In 1925, Wolff & Co., Walsrode, Germany, applied to register the word "Transparit" for cellulose hydrate films, claiming use since January 1, 1924, and it was granted. This product was sold here in competition with Cellophane.
In 1926, plaintiff began to advertise to the public. It placed seven advertisements in the Literary Digest, which carried Cellophane in the oval and registration notice. The material was described as "outer wrap," "sparkling wrapping material," "transparent wrapping," and "transparent protective wrapping material." Plaintiff's advertising contained warnings.
In 1926, plaintiff published one hundred and sixty-three advertisements in fifteen different trade publications, and in all of them the DuPont Cellophane oval with the registration notice was displayed. Cellophane was described as "new wrapping material," "crystal-like wrap," "protective wrapping material," "wrapping material, unusual because it is absolutely transparent." In four issues plaintiff's notice read: "DuPont Cellophane is an unusual material, patented and trade marked, used for wrapping and many other purposes," etc.
Plaintiff advertised a "Booklet Your product is a showcase of its own," describing this unusual wrapping material.
Beginning in 1926, plaintiff's labels uniformly contain the following statement, in addition to the oval with the registration notice: "This package is sold subject to the express license restriction to which each purchaser agrees by the acceptance hereof, that no purchaser shall resell the contents whether cut to size or not, except under the registered trade mark name `DuPont Cellophane' * * *."
In 1926 the Celluloid Company claimed to have used the word "Protectoid" for acetate film since April in that year.
In 1926, the Henle Company, New York, commenced selling, in competition with Cellophane, under the names "Transparit" and "Krystal Klear," a cellulose hydrate film made by Wolff & Co., Walsrode, Germany.
Plaintiff warned advertisers to respect its trade-mark rights in the word in their advertising (see Exhibit 128).
DuPont's business really began to grow in 1927.
Its advertising was extended to the Saturday Evening Post, in which, beginning in February, 1927, plaintiff inserted half-page advertisements in eight different issues. Each contained the following: "Cellophane is the registered trade mark of DuPont Cellophane Company, Inc., to designate its transparent cellulose sheets and films."
The DuPont Cellophane oval trade-mark was prominently displayed and, with the exception of the first two, the "Reg. U. S. Pat. *871 Off." notice was used. Various descriptive terms were used, "transparent wrapping," "transparent protective wrapping material," "glistening protective wrapping." These half-page spreads were circulated to the extent of about 21,000,000 insertions, the circulation of the Post being something like 2,700,000.
Early in 1927 DuPont began to use the notice, "Cellophane is the registered trade mark of the DuPont Cellophane Company, Inc., to designate its transparent cellulose sheets and films," in all of its advertising, including "direct mail" and on its labels and letterheads. This notice has been used continuously down to date. Red ink was often used to print this and the registration notice.
The Cellophane labels, from this date on, have carried the DuPont Cellophane oval trade-mark with the "Reg. U. S. Pat. Off." notice, the provision that the product should be resold under the registered trade-mark "DuPont Cellophane," and "Cellophane is the registered trade mark of DuPont Cellophane Company, Inc., to designate its transparent cellulose sheets and films."
Plaintiff continued in 1927 its trade advertising in seventeen trade publications, in which the oval trade-mark, with registration notice, was prominently displayed, as was the notice, "Cellophane is the registered trade mark of DuPont Cellophane Company, Inc., to designate its transparent cellulose sheets and films"; both often being in red ink.
The plaintiff also continued in 1927 direct mail advertising, which was mailed with letterheads carrying trade-mark notices referred to above in red ink, and there was also included therewith price lists, which from 1927 to date have carried the notice, "`Cellophane' and/or `DuPont Cellophane' are the registered trade marks of DuPont Cellophane Company, Inc., to designate its transparent cellulose sheets and films," together with a prominent display of the DuPont Cellophane oval trade-mark with the "Reg. U. S. Pat. Off." notice. Numerous pieces of advertising matter were mailed to customers and prospective customers.
Plaintiff's advertising to the public was extended in 1928 to full-page space and the use of two colors. For specimens of consumers' advertising see Exhibit 47, and for trade advertising see Exhibit 41.
Five issues of the Saturday Evening Post, March, May, June, September, and November, 1928, were used. The circulation of the Post was approximately 2,700,000.
The total appearances for this advertising was 13,500,000. In this advertising, the word "Cellophane" is prominently displayed in juxtaposition with the oval and the two trade-mark notices. In three instances the oval is in red ink.
The product is described as "transparent wrapping," "transparent sheets," etc.
Birn & Wachenheim were selling in 1928 film under the name of "Fenestra," which they described as "transparent wrapping."
The Celluloid Company claimed to be selling film under the name of "Protectoid," which name it registered in August, 1928.
Modern Packaging refers to film of various manufacturers as "transparent wrapping," "transparent paper," "transparent covering," "transparent cellulose wrapper."
Cellophane was now being used as a wrapping in over thirty industries, and companies using it began to refer to it in their advertisements.
Prior to 1928, there had been some use of the expression "wrapped in Cellophane," but it was not until the plaintiff's consumer advertising had become effective that such expressions became general. In 1928, many customer advertisements and articles in public press referred to Cellophane, some with the small initial "c," and others with the capital "C." The customers' advertising, in the period 1927-1932, reflects the increasing uses for plaintiff's material, and the desire of users to take advantage of its popularity by advertising their products as "Wrapped in Cellophane," "Cellophane Wrapping," and the like.
Plaintiff began in 1928 to check such advertising, and where errors came to its attention, to make every effort, through correspondence and direct approach, to get the trade to indicate that Cellophane was not a common word of the language. They asked to have it italicized or underscored, or used with all capitals in a distinctive form. They did not attempt to describe details. Plaintiff always wished to have the word Cellophane in customer advertising spelled with a capital "C," or quoted, or distinctively marked, because it wanted it identified as a trade-mark, and wanted them to use it so it would appear as a trade-mark.
Plaintiff's president stated the policy of his company to be as follows:
"* * * our policy has been to attempt in every way to get them to use the word Cellophane as it should be used * * * and as we thought it should be used * * *. We thought it should be used as a trade mark *872 name and we endeavored, where customers did use the word Cellophane, to get them to use it as such * * *. We wanted them to show in some way that it was a trade mark name of our product * * *. We endeavored, either by mail or by personal contact, to impress the customer with the fact that this was our trade mark name and get him to respect it."
"We tried to get him to respect the fact that this was our trade mark name. * * * We tried through our sales organization to get customers who advertised their product with Cellophane, with the word Cellophane, to use the word as we wanted him to use it. * * * The policy of the company, broadly speaking, was to have this word respected, and so far as I know an endeavor was made to do that." The use of a small "c" was not compatible with plaintiff's policy.
The plaintiff asked Modern Packaging to capitalize the letter "C" in Cellophane, and not use it with a small "c." Modern Packaging, after plaintiff protested, used the term (editorially) "transparent cellulose sheetings" or "transparent cellulose wraps."
Numerous letters were written to stores, newspapers, magazines, and others, protesting against the use of the word Cellophane except as a trade-mark; the following being illustrative of the form of notice which was given in all of these letters, viz.: "Our legal department wishes us to point out, however, that Cellophane is a registered trade mark, not a generic term, and therefore should be spelled with a capital `C.'" The letters were written on plaintiff's regular letterheads, which carried the notice in red: "Cellophane is the registered trade mark of DuPont Cellophane Company, Inc., to designate its transparent cellulose sheets and films."
It was not the policy of the plaintiff to ask its customers not to use the words "DuPont Cellophane," nor was it the policy to ask them habitually to use the DuPont oval. Plaintiff wanted the word Cellophane in customer advertising identified as a trade-mark.
The company's policy was to follow this plan diligently. It did not attempt to drive its customers out of business. It was not a part of the company's policy to refuse to sell people who would not use the word Cellophane in their advertising as the company wanted it used. There was not a specific list of do's and don'ts, but from the early days of plaintiff's business, letters were written, etc., to agents and various people that Cellophane was the plaintiff's trade-mark.
It was against trade practice to try to compel customers to advertise reference to the trade-mark character of the word Cellophane. "It is good advertising practice and common advertising practice to use a trade name with a capital letter, or all capitals, or in quotation marks, or in italics or underlined, for instance, taking the trade name Duco, or Kodak, or Vapex; that is what is common advertising."
It would be presumption for plaintiff to ask its customers to advertise the word Cellophane accompanied by the word "trade-mark."
It would not be good business practice, because it would be asking the customer to spend his advertising money and detract from his own advertising effort. The customer would have been glad to do it, if plaintiff had paid part of the cost, and plaintiff had plenty of offers of that sort.
Tilney, of General Baking Company, called by defendant, testified that if the Sylvania Company asked him to advertise "Sylphrap" in his advertising, he would not do it, because "* * * we are selling bakery products, not wrappers."
Plaintiff in 1929 inserted six full-page, two-color advertisements in the Saturday Evening Post. The two trade-mark notices were always used, also descriptive terms, as "modern wrapping," "scientific wrapping material," "transparent wrapping material," "transparent cellulose sheets and films." Plaintiff, in 1929, also published trade advertisements in seventeen different publications, in which the word Cellophane appeared with the two trade-mark notices. Descriptive terms used were "modern wrap," "wrapping," "transparent wrapper," and "material for wrapping." Direct mail advertising was carried on in 1929, and the trade-mark notices above referred to were employed throughout.
In January, 1929, a pamphlet entitled, "The Modern Merchandising Aid," was sent out. It said: "This new factor is the sparkling, transparent wrapping material which is seen everywhere as a wrap on candy boxes and many other products of all descriptions. It is DuPont Cellophane. * * * The word Cellophane is not a generic term, but is the registered trade mark of the DuPont Cellophane Company to designate its transparent cellulose sheets and films."
April 1, 1929, plaintiff succeeded to the business of the corporation of the same name formed in June, 1923. The certificate of incorporation was obviously copied from the certificate filed in 1923, and used the small *873 "c." The object clause states the purpose to be: "To manufacture, buy, sell, import, export, ask, prepare, treat, finish and in all ways handle and deal in cellophane, transparent wrapping material, viscose products, textiles, fabrics, materials and articles manufactured from viscose or nitro-cellulose, or of materials or articles entering into composition or manufacture thereof * * *."
June 11, 1929, plaintiff's attorney wrote to the Commissioner of Patents, that Cellophane was the registered trade-mark of the plaintiff, and cited the trade-mark registration, and requested that examiners be instructed not to permit the use of the term in patent specifications.
June 21, 1929, the chief clerk of the Patent Office replied that the Patent Office could not undertake to supervise the terms used by applicants for patents, to the extent of excluding trade-marks from the description in patent applications.
September 1, 1929, Birn & Wachenheim sold their business to the Sylvania Industrial Corporation. The trade-mark "Fenestra" of Birn & Wachenheim was well known before this sale. When Sylvania entered the field, there were four companies manufacturing transparent material, which was sold, as follows: DuPont "Cellophane," Sylvania "Fenestra" and "Sylphrap," Eastman "Kodapak," and Celluloid Corporation "Protectoid." Newark Paraffin & Parchment Paper Company sold an acetate sheeting under the trade-name "Aquatone." Other transparent film was sold as "Transparit." The descriptive terms used for all these products were "transparent wrapping material," "transparent cellulose," and the like. Kodapak is not the same as Cellophane technically, but is practically. Kodapak is cellulose acetate; Cellophane is cellulose hydrate; Protectoid and Aquatone are also acetate products. These various trade-marks are registered. Henle Waxed Paper Manufacturing Company sold "Transparit" under its own trademark "Krystal Klear" as "transparent wrapper." Kodapak and Protectoid are the same as Sylvania and DuPont products, so far as the general usage is concerned.
August 9, 1929, in an interview published in the New York City Journal of Commerce regarding the plans for Sylvania's new plant at Fredericksburg, Va., Dr. Wallach, Sylvania's president, is reported to have stated: "In this plant we are going to manufacture transparent paper similar to the imported and domestic types which are known under the trade names `Fenestra,' `Cellophane,' etc."
October 28, 1929, Hopkins, of plaintiff's legal department, warned Sylvania against using "Cellophane." Dr. Wallach replied November 2, 1929, and stated: "We have no intention of using the word Cellophane either by itself or in conjunction with our company's name, nor to in any way interject the slightest difficulty in your continuing to do so as long as it does not interfere with our doing business and marketing our products under our own trade mark."
November 1, 1929, Birn & Wachenheim and Sylvania Industrial Corporation announced that Sylvania had acquired the business of Birn & Wachenheim, and would continue to import Fenestra until after the completion of its manufacturing plant at Fredericksburg, Va. The word "Cellophane" was not mentioned. This was followed by an announcement on November 27, 1929, referring to many inquiries received from customers and friends, asking, "When we will be able to supply transparent cellulose sheets," and stating that pending the construction of the new plant, "meanwhile our ability to import the present grade of Fenestra permits us to rush the completion of the first unit for the production of our moisture proof Fenestra under a new process of our own." The word "Cellophane" was not mentioned.
Sylvania instructed its advertising agents to use the generic term "transparent cellulose sheets" or "wraps" for its product, and such a description appeared in all advertising.
Webster's New International Dictionary carried the following definition of "Cellophane": "Viscose solidified in thin transparent waterproof sheets or strips, bearing the trade mark Cellophane. It is used for wrapping confectionery, ornamental novelties, surgical dressings and the like. * * *"
In 1929 plaintiff wrote letters to users and publications calling attention to the fact that "Cellophane" is its trade-mark, and protesting against misuse of the word.
In the year 1930, plaintiff extended its customer advertising to seven issues in the Saturday Evening Post, and went to four colors. The word "Cellophane" was prominently and distinctively displayed in association with the name "DuPont," in all of these advertisements. The plan inaugurated in 1927, of using a trade-mark notice including a descriptive term, was continued, and every advertisement carried the notice, "Cellophane is the registered trade mark of DuPont Cellophane Company, Inc., to designate its transparent cellulose sheeting," as well as *874 the registration notice often in red ink. Descriptive terms such as "wrapping," "transparent wrapping," and "wrap" were used.
The circulation of the Saturday Evening Post was over 2,900,000, making a total of 20,300,000 appearances of these advertisements.
In 1930 there were 129 insertions of trade advertising by plaintiff in sixteen different publications, all of which carried the trademark notices hereinbefore referred to. In addition, descriptive terms were used throughout this advertising, such as "wrap," "modern wrapping," "wrappers," etc., and in many of the advertisements the name "DuPont" was associated with the trade-mark "Cellophane."
March 25, 1930, plaintiff registered DuPont Cellophane in oval for caps and bands, etc., No. 269,030, and the DuPont Cellophane in oval with the word "Moistureproof" beneath the oval, for moistureproof cellulose sheets, etc., No. 269,111. In neither of these registrations was the word "Cellophane" disclaimed as being descriptive.
Beginning with 1930 and running down to date, Sylvania has published numerous advertisements in trade papers which contain such expressions as "Sylphrap, the finest transparent cellulose sheets," "Sylphrap, the aristocrat of transparent wrappers." In many the "Sylphrap" and "Nymphrap" labels were displayed reading: "Sylphrap quality's best attire Reg. U. S. Pat. Off. Transparent cellulose paper," and "Nymphrap Extra Quality's moistureproof protection Reg. U. S. Uat. Off. Moistureproof transparent cellulose paper."
In none of these advertisements has the word "Cellophane" been used.
Prior to this date Sylvania attempted to imitate Cellophane by use of "Sylphane." DuPont protested and filed an opposition, on the ground of its resemblance in sound to "Cellophane." Wallach, Sylvania's president, wrote plaintiff: "In view of your present exclusive use of what we consider your real trade mark, viz., `DuPont Cellophane,' we frankly admit that this possibility had not occurred to us. However, we are just as anxious as yourselves not to have any such confusion occur, even if only in your own mind. In conformity with our letter of November second, 1929, we take pleasure in advising you that contrary to legal advice, we will allow the date of June third to pass without contesting your opposition."
Hatt, plaintiff's general manager, replied June 5th, stating: "We appreciate very much the spirit expressed in your letter on this subject, and assure you that your position in this matter is very gratifying to us. * * *"
May 25, 1930, Sylvania applied for registration of the word "Sylphrap" as a trademark for sheets made of regenerated cellulose in Class 1, Raw or Partly Prepared Materials, claiming use since May 16, 1930, and registration No. 276,127 was issued on October 7, 1930. The word "Cellophane" was not mentioned. Sylvania on its labels and in its literature has never used "Cellophane," but always such terms as "transparent cellulose," "transparent wrapping," "transparent cellulose paper," "transparent wrapper," "transparent cellulose sheets."
The Mirror Candy Company, in its inter-office requisitions, orders, and receipt book, used the word "Cellophane," but the material was supplied by Sylvania.
The direct mail advertising of plaintiff for the year 1930 carried the two trade-mark notices in red ink at the top of letterheads. The price lists for the year 1930, on the front page and prominently displayed, carried the notice: "`Cellophane' and/or `DuPont Cellophane' are the registered trade marks of DuPont Cellophane Company, Inc., to designate its transparent cellulose sheets and films." Also: "`Cellophane' and/or `DuPont Cellophane' is sold subject to the express license restriction to which the purchaser agrees by the exhibit thereof, that no person shall resell it either in the delivered sizes or cut to smaller sizes except under the registered trade mark names `Cellophane' and/or `DuPont Cellophane.' * * *"
Plaintiff continued to notify users that Cellophane is its trade-mark, and to protest against its misuse.
In 1931, plaintiff continued its advertising campaign in the Saturday Evening Post. Eight four-color pages were used. Good Housekeeping Magazine was added, with five four-color pages. The circulation of the Saturday Evening Post in 1931 was over 2,900,000, and of Good Housekeeping over 1,700,000, and the total of advertising messages in these two publications was well over 32,000,000. The two trade-mark notices appeared in all of the advertising. Descriptive terms, such as "Modern wrapping," were used.
In 1931, advertisements appeared in twelve different trade publications with the trade-mark notices above referred to, and descriptive terms such as "wraps," "wrapping," *875 and the like. Some space was devoted to the moistureproof material.
Direct mail advertising contained and carried the trade-mark notices throughout, and descriptive terms such as "transparent wrapper," "wrap," "transparent protective sheeting," were used. Some of the mail matter carried a label reading: "Cellophane being a registered trade mark of the DuPont Cellophane Company and not a generic term should be spelled with a capital `C.' We will appreciate your cooperation in this respect."
March 25, 1931, plaintiff's attorney wrote the Commissioner of Patents, protesting against use of "Cellophane" in patents.
April 28, 1931, the Commissioner of Patents replied that in his judgment the fact that the specification writers employ trademark names in their specifications will not endanger trade-mark rights.
In July, 1931, defendant began handling cellulose sheets which it bought from Sylvania. The material sold by defendant was billed and labeled "cellulose," because, as defendant's secretary said, "cellulose was the descriptive name for the article." Defendant was told by Sylvania at the outset not to use "Cellophane."
Defendant offered patents in evidence in some of which the word Cellophane is spelled with a small "c," and in others with a capital "C," or in quotations. In three of these patents which issued with the word "cellophane" spelled with a small "c," the applicant used a capital "C." In another, the file wrapper showed that the examiner stated to the applicant, "The word `Cellophane' is trade marked and cannot therefore be used in the specifications," to which the applicant replied, "The word `Cellophane' is capitalized in the specification and its use is, therefore, believed to be entirely proper." The patent issued accordingly.
Plaintiff offered in evidence sixty-six patents granted by the Patent Office in which the word "Cellophane" was not used, and in which descriptive terms were used such as "Films of cellulose," "Cellulose hydrate," "Viscose film," "Transparent wrapper." Another group of nineteen patents granted by the Patent Office offered in evidence set off the word Cellophane in quotation marks, or in capital letters, thus designating it as a trademark according to the rules of the Office.
Yerkes, president of the plaintiff, signed an affidavit in connection with a "Petition to make Special," filed in Charch & Prindle's application for Patent No. 1,826,699, October 6, 1931, relating to "a method of moisture-proofing transparent materials, such as transparent sheets or films of regenerated cellulose." In this affidavit it is stated: "DuPont Cellophane Company, Inc., is engaged in the manufacture of Cellophane, which is a transparent wrapping material consisting of sheets of regenerated cellulose." "DuPont Cellophane Company, Inc., is the originator of moistureproof Cellophane which is a thin transparent wrapping material, having moistureproof properties many times in excess of the best waxed paper."
Pritchard, plaintiff's patent attorney, in the same application also signed an affidavit in which it is stated: "* * * Said Charch & Prindle application number 534,688 is one of a series of five applications pertaining to the manufacture of moistureproof Cellophane * * *. I am very familiar with the art relating to moistureproof Cellophane * * *. DuPont Cellophane Company, Inc., has been engaged in the manufacture of Cellophane since 1924. * * * Unless the rights of my client can be promptly adjudicated it will suffer great damage not only by the present infringer but also by others who are contemplating engaging in the manufacture of moistureproof Cellophane in infringement of my client's rights * * *."
The word "Cellophane" was used with a capital "C" throughout these affidavits, which shows an intent to use the word as a trademark in accordance with the Patent Office rules. The word was obviously misused in the eleventh paragraph, and the only explanation therefor is the mistake of the person who drew the affidavit. In 1931 and 1932, numerous advertisements of users of transparent cellulose film appeared, in which the material was described as "transparent cellulose papers," "transparent wrapping," and the like. In June, 1931, in Modern Packaging, an advertisement of an automatic packager refers to "Sylphrap or other transparent cellulose papers," and to "Cellophane or other transparent cellulose papers."
Plaintiff continuing its policy of protecting its trade-mark wrote many letters calling attention to the fact that "Cellophane" was its trade-mark and protesting against incorrect uses of it.
In 1932, eight full-page four-color advertisements were run in the Saturday Evening Post, and five in Good Housekeeping. Each of these advertisements also carried the statement, "Made only by DuPont," immediately beneath the word "Cellophane."
In addition to the Saturday Evening Post and Good Housekeeping, the plaintiff, in *876 1932, ran four full-page four-color advertisements in the Ladies Home Journal, similar to those in the Saturday Evening Post and Good Housekeeping, with the two trade-mark notices, and the expression, "Made only by DuPont."
The total number of advertising messages in these two publications was over 40,000,000.
Trade paper advertising was carried by fourteen different publications in seventy-eight insertions, with the phrase, "Made only by DuPont," and the two trade-mark notices. Descriptive terms were used, such as "Modern wrap," "Transparent wrap," etc.
The direct mail campaign was continued, using the two usual notices. The material was referred to as "Transparent wrapping," "Wrap," and "Transparent material."
Plaintiff filed oppositions to applications for trade-mark registration of words similar to Cellophane. In all, except two not yet determined, the applications were either withdrawn or the opposition sustained.
February 26, 1932, booklet of advertising by customers, featuring Cellophane, was distributed by plaintiff. In a few instances a small "c" was used in the reproduced advertisements.
In May, 1932, the Eastman Kodak Company registered the word "Kodapak" as a trade-mark for "thin transparent sheeting of cellulose composition," claiming use since June 15, 1931.
May 24, 1932, the Official Gazette of the Patent Office published a notice urging care in use of trade-mark names.
August 10, 1932, plaintiff protested to Wrigley regarding the latter's use of the word "Cellophane." Mr. Wrigley testified: "The DuPont Company called it to our attention, that the word was a trade mark word * * *." He had seen DuPont's advertising for four years. He noted it was "written in a certain style" during the four years which he had observed their advertising. The particular style he referred to is: "The `C' is rather prominent." Wrigley never advertised any one else's product or trade-marks. Plaintiff wrote to Webster, advertising manager of Wrigley: "Our legal department has asked us, however, to point out to you the omission of a capital `C' in the name `Cellophane' as it is being used in your poster campaign," and added, "is not a generic term but the registered trade mark of the DuPont Cellophane Company, and therefore should be spelled with a capital initial letter as with any proper name." In reply Webster noted what was said about the use of the capital "C" in the name "Cellophane," and stated: "We were not aware of this feature and will see that all our artists are advised of it pronto."
Plaintiff protested against the Camel and Lucky Strike advertising.
In September, 1932, Modern Packaging, a glue company, stated: "Cellophane, Kodapak, Protectoid, and Sylphrap any transparent cellulose film plain or moistureproof may be well sealed."
The label used by Sylvania referred to moistureproof Sylphrap, the modern and ideal transparent moistureproof cellulose paper.
Plaintiff, in 1932, continued its policy of writing letters referring to "Cellophane" as its trade-mark, and protesting against incorrect uses of the word.
This suit was commenced in February, 1933, and no consumer advertising for the year appeared until March.
Trade advertising was begun in January, in seven different publications, and carried the usual two trade-mark notices and the words, "Made only by DuPont." Direct mail advertising was continued with the usual trade-mark notices.
The price list effective January 11, 1933, was announced in an accompanying letter as the fifteenth Cellophane price reduction. In this connection it was stated: "It is a continuation of the established policy of the DuPont Cellophane Company to furnish its products to American industry at the lowest possible prices commensurate with manufacturing costs."
The price list announced a complete packaging service including "advice regarding the relative advantages of sheet wrapping." On the first page appeared the word "Cellophane" distinctively displayed, together with the DuPont Cellophane oval with "Reg. U. S. Pat. Off." notice and "Made only by DuPont" arranged so that the oval trade-mark appeared in the center. The price list also carried the notice in bold face type: "`Cellophane' and/or `DuPont Cellophane' are the registered trade marks, etc. * * * Cellophane and/or DuPont Cellophane is sold subject to the expressed license restriction to which the purchaser agrees by the acceptance thereof, that no purchaser shall resell it, either in the delivered sizes or cut to small sizes except under the registered trade mark names `Cellophane' and `DuPont Cellophane.'"
October 3, 1932, Patent No. 1,929,013 for an adhesive adapted to be used with cellulose materials was granted to the plaintiff. *877 This patent was incorrectly issued by the Patent Office, the word "cellophane" appearing throughout with small letters, whereas in the original application as filed December 31, 1929, the word "CELLOPHANE" was written in all capitals. On request of plaintiff a certificate of correction was issued by the Patent Office.
Plaintiff continued to write letters drawing attention to the fact that "Cellophane" is its trade-mark, and requesting co-operation in using the word correctly.
Defendant offered the evidence of the man in charge and of the investigators employed by him in an investigation of what the word "Cellophane" means to the public to-day. These investigators testified to their talks with hundreds of people whom they met casually house to house, or on the street, and to the correctness of the answers of such person which the investigators had written to the following questions: (1) What does the word "Cellophane" mean to you? (2) Do you know of any other name than "Cellophane" which you could use if you wanted to buy that kind of material?
To 6 per cent. the word "Cellophane" meant nothing. The remaining 94 per cent., with a few exceptions, who evidently had some knowledge of Cellophane, obviously understood the inquiry as directed to an enumeration of the uses of Cellophane, typical answers being "tough wrapping paper," "transparent material," "cleanliness," "protection for products," "sanitary," "wrapping fruit cake," "keeping vegetables fresh," "nice to wrap things in," "attractive."
Some of the investigators testified that no one whom they met refused to answer the questions. Others said that 3 per cent. to 25 per cent. of the people they talked with refused answers. No record of these refusals was kept. Some said that they explained the questions before they recorded the answers. Others said that 20 per cent. of the people interviewed did not understand what the questions meant.
None of those who are said to have answered the questions were produced for examination or cross-examination, and plaintiff did not know of the existence of the test until it was produced in court.
Plaintiff offered a survey of a different sort. At its request a mail advertising house sent out letters in which, among other things, it said: "I am trying to determine, for one of the leading advertisers of the country, how familiar our most intelligent magazine readers are with trade marked names. Will you help me by putting an `x' after each name given below which you look upon as a trade mark? You understand, of course, that a trade mark is a name or mark which indicates that the goods bearing this name or mark are manufactured or sponsored by one concern only. * * * Will you put an `x,' please, after each name below, which you think is a trade mark? Just give your immediate reaction, without investigation or study. Then fill in your name and address, and return it in the addressed envelope attached * * *" "P. S. Just put your `x' marks below, sign and mail." "Vaseline, Silk, Carbona, Ammonia, Cellophane, Cocomalt, Iodine, Cologne, Postum, Kodak. * * *"
The mail advertising house made arrangements with the publishers of Good Housekeeping, Saturday Evening Post, Ladies Home Journal, and Delineator, for them to mail from their own offices copies of this letter to subscribers to these magazines.
The replies came to the mail advertising house and were tabulated there. Seventeen thousand letters were sent out. Four thousand replies were received.
The following table shows the percentage of the total number of persons who checked the respective names as trade-marks: Silk 6 per cent., Ammonia 10 per cent., Iodine 11 per cent., Cologne 17 per cent., Vaseline 52 per cent., Cellophane 72 per cent., Carbona 78 per cent., Kodak 81 per cent., Cocomalt 94 per cent., Postum 95 per cent.
Vaseline, Carbona, Cocomalt, Postum, and Kodak are trade-marks, and the percentage of replies checking them as trade-marks ran from 52 per cent. to 95 per cent.
Silk, Ammonia, Iodine, and Cologne are not trade-marks, and the percentage of replies checking them as trade-marks ran from 6 per cent. to 17 per cent.
Cellophane was checked as a trade-mark by 72 per cent.
None of the signers of these letters were called and examined or cross-examined. Plaintiff's survey was made in May and June, 1933, and was known and accessible to defendant for four months before the trial.
The testimony of the clerks of Kress stores as to the questions asked and answers received to the questions propounded in defendant's survey does not differ to any great extent from that of the investigators. Users of transparent wrapping were called by both plaintiff and defendant.
Plaintiff called witnesses representing prominent concerns having a nation-wide business, who were familiar with various *878 trade-marks used by the different manufacturers of transparent wrapping. "Cellophane" meant to them DuPont's transparent wrapping, and "Sylphrap," Sylvania's product.
Defendant's witnesses stated that when they used the word "Cellophane" they did not expect to get any particular manufacturer's product, but all had seen plaintiff's advertising, and some had received price lists from plaintiff on which the trade-mark notices were prominently displayed.
Defendant called paper dealers who were its customers, who testified that they regarded defendant as a distributer, and in specifying orders placed with the defendant, or in inquiries for prices, they did not intend to get the product of any particular concern. When their customers ordered Cellophane, they delivered the material bought from the defendant, without asking whether or not they wanted DuPont's product. These customers usually called for Cellophane or Cellophane paper. The expressions "transparent cellulose wrapping," "transparent wrapping paper," "cellulose," "transparent," and "transparent paper" are well known to the trade in connection with the material. Witness Chatfield testified: "As I said before, it did not make any difference to us as long as it was cellulose." And: "I knew that Cellophane was put out by the DuPont Company, but I would not say that I knew it was a trade mark, because I don't think I ever have seen it marked as a trade mark." "Cellophane is transparent paper." Witness Turkel placed orders with defendant for cellulose, transparent cellulose, and transparent wrapping paper, and obtained the material he wanted. Some of the dealers admitted having seen DuPont's advertising in the Saturday Evening Post and other publications. One dealer, Selfin, testified that he had to substitute "Kodapak" because he was out of stock from defendant.
Breskin, publisher of the magazine Modern Packaging, testified that in 1927 Modern Packaging spelled the word "cellophane" with a small "c"; subsequently his magazine changed from the small "c" to the large "C" at the request of the plaintiff. About 1930 when Breskin began writing advertising for Sylvania and publishing it in Modern Packaging, he discontinued using Cellophane in news items and switched to "transparent cellulose sheetings," or "transparent cellulose wraps." Sylvania instructed Modern Packaging not to use the word "Cellophane" in its advertising, but to qualify "Sylphrap" by the use of the words "transparent cellulose sheets" or "wraps." About that time two other companies appeared, making four, and the use of the expression "transparent cellulose sheets" as applied to all these products seemed to be a good way for Modern Packaging to avoid showing favoritism by using the trade-marks of any of the four companies that were in the field at that time. The two other companies were the Eastman Company and the Celluloid Corporation. Eastman manufactured Kodapak, and Celluloid manufactured Protectoid, both cellulose acetate sheetings. So far as physical characteristics, general usage, and appearance were concerned, Kodapak and Protectoid were the same as the DuPont and Sylvania products.
Breskin includes Cellophane, Sylphrap, Kodapak, and Protectoid under the term "transparent cellulose." He differentiates between Glassine and transparent cellulose in connection with a machine that will handle the latter but not the former.
The defendant in its business has supplied, and has been in the habit of supplying, transparent wrapping and sheets not manufactured by plaintiff but manufactured by Sylvania Industrial Corporation, to customers who order "Cellophane" wrapping and sheets, and billing for the same as "cellulose," thereby misrepresenting and acting in such a manner as in all likelihood to mislead the customers into the belief that the sheets and wrapping so supplied were of plaintiff's manufacture.
This case, as is true of trade-mark cases, must be determined on the facts of this particular case, and therefore I have made a complete finding of the facts.
From the facts as found it clearly appears that Cellophane was an invented and fanciful name adopted by the French manufacturer as its trade-mark, under which it manufactured and sold, not a new product, but one which had been known for many years as "cellulose film." This is corroborated by the fact that Brandenberger, in the patents for his machines applied for in 1909, and later issued, describes the product as "cellulose film" and does not mention the word "Cellophane." Further, the registration taken out by the French company in 1912 describes the product as "cellulose sheets," and is based on a registration of the trade-mark in France in 1908.
The claim of the defendant that Cellophane was a new commercial product does not find support in the evidence. The fact that Mr. Yerkes, the president of the plaintiff, *879 speaking of the French manufacturer, said that "Cellophane was a fanciful name which he gave to a new product he invented," does not change the established fact, as Mr. Yerkes is a business man not a chemist, and I prefer to accept Dr. Little's opinion, as well as that of other chemists, on that subject. But I am convinced that Mr. Yerkes thought they were buying a trade-mark, otherwise the predecessor of the plaintiff would never have made the investment it did with patents covering only the machines, and having but five years to run, as its sole protection. Especially when it is considered that the cellulose film was introduced into this country as a wrapping material, to compete with other then well-known wrapping materials of varying degrees of transparency.
The contention of the defendant that Cellophane never functioned as a trade-mark of the French factory, based as it is almost entirely on the fact that the labels on goods of the French factory, which were shipped to the United States and delivered to customers, with the word "Cellophane" on them, did not contain a notice calling attention to the trademark character of the word, nor a chemical synonym such as "cellulose hydrate," is not sustained.
The acquisition of title to a trade-mark does not depend on the use of notices of trade-mark rights, nor is the owner required to give a synonym for his product. Capewell Horse Nail Co. v. Mooney (C. C.) 167 F. 575, affirmed (C. C. A.) 172 F. 826; Armand Company v. Marvin, 349 O. G. 961, 1926 Cow. D. 73; Columbia Mill Co. v. Alcorn, 150 U.S. 460, 463, 14 S. Ct. 151, 37 L. Ed. 1144; Hanover Star Milling Co. v. Allen & Wheeler Co. (C. C. A.) 208 F. 513, 517, affirmed 240 U.S. 403, 36 S. Ct. 357, 60 L. Ed. 713.
The word "Cellophane" was a distinctive, coined word, and was not descriptive of the goods, nor was it a geographical or personal name, and therefore plaintiff was not required to prove a secondary meaning. Hopkins Definitions (4th Ed.) § 3. See, also, decision of English court, Rowland v. Mitchell, L. R. 1, Ch. D, 71, 74.
The French company first used the word "Cellophane" as a trade-mark in the United States, on the goods it exported to the United States, and sent to Euler as the factory's American distributer, and thereby acquired trade-mark rights in the United States in the name of "Cellophane," which name was not, at that time, used by any one else in the United States. Soc. Enf. Gombault v. Lawrence-Williams Co., 16 Trade Mark Rep. 467, affirmed (C. C. A.) 22 F.(2d) 512, Cert. denied, 276 U.S. 619, 48 S. Ct. 214, 72 L. Ed. 735; Loonen v. Deitsch (C. C.) 189 F. 487; Deitsch Bros. v. Loonen, 1912 Cow. D. 531, 180 O. G. 1397, 39 Ohio App. D. C. 114; Batcheller v. Thomson, 93 F. 660; Soc. Anon. Du Filtre Chamberland Systeme Pasteur v. Pasteur Chamberland Filter Co., 8 Trade Mark Rep. 298.
The same rule prevails in the English courts. La Soc. Anon. Des Anciens Establissements Panhard Et Levassor v. Panhard-Levassor Motor Co., 18 R. P. C. 405; Matter of European Blair Company's Trade Mark, 13 R. P. C. 600.
Defendant questions the agency of Euler, but whether the contract between him and the French company be defined as one of general agency or not, the fact remains that under that contract he was an exclusive distributer in this country of the product of the French factory which bore the trade-mark "Cellophane" and acquired a special right and interest in the trade-mark. Upton on Trade Marks, p. 23.
The evidence shows that during the period of the existence of that relationship between Euler and the French factory, and even after the term of the agreement expressed therein had expired, and while the French factory continued to ship goods to Euler, as it had done during the expressed term of the agreement and until 1920, when the relationship between the French factory and Euler ceased, he protected the mark and built up the good will by his advertising, always preserving the identity of the trade-mark and the French factory.
When the relationship between the French factory and Euler ceased, his limited right to the trade-mark came to an end, and the trade-mark reverted to the French concern. Lawrence-Williams Co. v. Soc. Enf. Gombault, supra, and (C. C. A.) 22 F.(2d) 512, 514; Soc. Anon. v. Pasteur Chamberland Co., supra; Hicks v. Anchor Packing Co. (C. C. A.) 16 F.(2d) 723.
The same rule prevails in England. Matter of Trade Mark of Elaine Inescourt, 46 R. P. C. 13.
This doctrine is also applied when a domestic manufacturer grants exclusive selling agency. J. F. Rowley Co. v. Rowley (C. C. A.) 18 F.(2d) 700; Morand Bros. v. Chippewa Springs Corporation (C. C. A.) 2 F. (2d) 237; United States Ozone Co. v. United States Ozone Co. of America (C. C. A.) 62 F.(2d) 881.
The only product ever sold by Euler as *880 Cellophane was that manufactured by the French factory, and he always maintained the identity of the mark and the manufacturer of the product.
After Euler ceased to be the exclusive distributer of the product, the French concern was entitled to an assignment of the trade-mark registered by Euler.
The DuPont Company became the successor of the French concern, and as such successor was entitled to all the rights of the French concern in the trade-mark registered by Euler. After the assignment by Euler to the DuPont Company, the mark Cellophane was used on the same article, from the same source, on which it had always been used, and on which the public had come to expect it to be used; that is, the product of the French concern, or of DuPont, its successor.
The assignment from Euler, following the assignment from the French concern, vested the DuPont Company with full title to the trade-mark, whatever may have been the rights of Euler.
It is undoubtedly the law that a bare assignment of a trade-mark, unaccompanied by the business and good will which the mark represents, is invalid. The reason for that rule is stated in MacMahan Pharmacal Co. v. Denver Chemical Mfg. Co. (C. C. A.) 113 F. 468, 475, as follows: "The essential value of a trade-mark is that it identifies to the trade the merchandise upon which it appears as of a certain * * * person. * * * Disassociated from merchandise to which it properly appertains, it lacks the essential characteristics which alone give it value, and becomes a false and deceitful designation."
In a case like the present one where the rights of an exclusive distributer are transferred to the manufacturer, which is the successor of the former manufacturer of the product on which the mark has been used, so that after the transfer the mark continues to be used on the identical product with which it has been associated of the same manufacturer, there is no reason for applying the rule.
The public cannot be deceived nor can the essential nature of the mark be affected. What happened by that assignment was that Euler gave up, surrendered, or quitclaimed any rights that he had to the owner of the trade-mark, the successor of the original manufacturer.
This assignment was valid. Witthaus v. Braun, 44 Md. 303, 22 Am. Rep. 44; The Coca-Cola Bottling Co. v. The Coca-Cola Co. (D. C.) 269 F. 796, 806; Batcheller v. Thomson, supra; Morand Bros. v. Chippewa Springs Corporation, supra.
The fact that Euler after the assignment continued to sell cellulose film still under the trade-mark "Cellophane," is not inconsistent with a valid assignment in good faith of the trade-mark rights by Euler to DuPont, because the film he sold was not manufactured by him, but by DuPont, and he was selling it as a DuPont distributer, and the assignment was valid. American Crayon Co. v. Prang, various decisions reported at (D. C.) 28 F.(2d) 515; Id. (C. C. A.) 38 F.(2d) 448; Id. (C. C. A.) 58 F.(2d) 715.
The case of Eiseman v. Schiffer (C. C.) 157 F. 473, 476, is not in point.
The French concern had exclusive use of the trade-mark "Cellophane" abroad, and had the right to register it here as the owner, and Euler had limited rights to the trade-mark, and was entitled to register it here to protect his rights; but his rights to the mark inured to the owner on the termination of his relations as distributer. Scandinavia Belting Co. v. Asbestos & Rubber Works (C. C. A.) 257 F. 937, 953, 955; Lawrence-Williams Co. v. Soc. Enf. Gombault, supra; LaLanne v. F. R. Arnold & Co. (Cust. & Pat. App.) 39 F.(2d) 269.
The fact that neither knew of the registration by the other is not important, as such registrations were not antagonistic or contradictory one to the other, but were for the protection of the respective rights of each of them.
In any event the defendant cannot justify infringement by questioning the title to the mark, as between the French company, the manufacturer, and Euler, its distributer. Scandinavia Belting Co. v. Asbestos & Rubber Works, supra; United States Ozone Company v. United States Ozone Company of America, supra.
The registration of a trade-mark is prima facie evidence of ownership. Act of February 20, 1905, § 16, 33 Stat. 728. (Title 15, § 96, U. S. Code, 15 USCA § 96); Rossmann v. Garnier (C. C. A.) 211 F. 401, 407.
A similar effect was given to a similar provision of the Trade-Mark Registration Act of 1881 (21 Stat. 502). Elgin Nat. Watch Co. v. Illinois Watch Co., 179 U.S. 665, 672, 21 S. Ct. 270, 45 L. Ed. 365.
The registration of a trade-mark creates a presumption of validity. Feil v. American Serum Co. (C. C. A.) 16 F.(2d) 88; Planten v. Gedney (D. C.) 221 F. 281, 283; *881 Chapin-Sacks Mfg. Co. v. Hendler Creamery Co. (C. C. A.) 254 F. 553, 556.
The French concern first had reason to believe that Euler was making claims beyond those justified by his relations with it in 1920, when he refused to transfer his registration to the French concern.
The French concern never acceded to these claims, nor did it at any time indicate any intent to abandon its trade-mark rights to Euler, and the dispute was finally ended by Euler's assignment to DuPont after the French concern had assigned to DuPont.
Euler at no time up to the end of December, 1915, when his contract with the French concern, by its terms, was to end, nor up to 1920, during which time the relationship was continued, and the French concern continued to ship goods to him as War conditions permitted, or even after the relationship ended, sold or advertised as Cellophane anything but the product of the French concern.
The trade-mark rights of the manufacturer were not affected by Euler's claim to the trade-mark rights, after the termination of his relations with the French concern. Morand Bros. v. Chippewa Springs Corporation, supra; United States Ozone Co. v. United States Ozone Co. of America, supra.
Having shown that the word "Cellophane" was an invented and fanciful name, adopted as a trade-mark for an old, and not a new, product known as "cellulose film," a genuine trade-mark was acquired, and not a trade-mark by secondary meaning. The distinction between genuine trade-marks and trade-marks by secondary meaning is clearly drawn by the Supreme Court. Delaware & H. Canal Co. v. Clark, 13 Wall. 311, 323, 20 L. Ed. 581; Lawrence v. Tennessee Mfg. Co., 138 U.S. 537, 546, 11 S. Ct. 396, 34 L. Ed. 997.
Trade-mark rights in a nondescriptive mark accrue immediately after the first use. 38 Cyc. 692; Wallace & Co. v. Repetti (C. C. A.) 266 F. 307, 308; Waldes v. International Mfrs. Agency (D. C.) 237 F. 502; Kathreiner's, etc., v. Pastor Kneipp Medicine Co. (C. C. A.) 82 F. 321; Ritz Cycle Car Co. v. Driggs-Seabury Ordnance Corp. (D. C.) 237 F. 125, 128.
The defendant's contention that the plaintiff has not established its right to a trade-mark in the word "Cellophane," by secondary meaning, seems to me to be beside the mark, as I have found that plaintiff has established a genuine trade-mark, therefore the defendant cannot pass the burden to the plaintiff; but defendant having interposed the defense of abandonment, it must prove it. The law is well settled that a fanciful word which has become a trade-mark cannot pass into the public domain unless it is abandoned by its owner, and abandonment is a question of intent. Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31, 21 S. Ct. 7, 45 L. Ed. 60; Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 419, 36 S. Ct. 357, 60 L. Ed. 713; Beech-Nut Packing Co. v. P. Lorillard Co. (D. C.) 299 F. 834, 847, affirmed (C. C. A.) 7 F.(2d) 967, affirmed 273 U.S. 629, 47 S. Ct. 481, 71 L. Ed. 810; Mulhens & Kropff v. Ferd Muelhens, Inc. (D. C.) 38 F.(2d) 287, 294, affirmed (C. C. A.) 43 F. (2d) 937; Belden v. Zophar Mills (C. C. A.) 34 F.(2d) 125, 127; Wallace v. Repetti, supra.
The Saxlehner Cases, 179 U.S. 19, 21 S. Ct. 7, 45 L. Ed. 60; 179 U.S. 43, 21 S. Ct. 16, 45 L. Ed. 77, and (C. C. A.) 157 F. 745; Dietz v. Horton Mfg. Co. (C. C. A.) 170 F. 865, 871; and Liebig's Extract of Meat Co. v. Walker (C. C.) 115 F. 822, 825; cited by the defendant, are not in point, as I have found that Cellophane had not become a generic name for the product.
As pleaded by defendant in this case, the defense is abandonment through acquiescence in the use of Cellophane by others. To establish that defense defendant would have to show infringing use by others, of which there is no evidence until after Sylvania came on the scene; but even if acquiescence in trade-mark use by competitors had been shown, it would furnish no ground for denying protection to the trade-mark, unless there were present elements of an equitable estoppel. Menendez v. Holt, 128 U.S. 514, 9 S. Ct. 143, 32 L. Ed. 526.
The facts in this case definitely negative any infringement by others of the trade-mark "Cellophane" or acquiescence by the French concern, plaintiff's predecessor, or plaintiff, in the use of the mark by competitors, or the existence of any elements of an equitable estoppel.
Continuously from 1912 to 1923, except for interruptions during the War period, the French factory shipped goods to the United States marked with its trade-mark. Direct shipments went to Euler until 1920, and between 1920 and 1923 to other exclusive distributers. And likewise the French factory shipped to DuPont from 1923 until its plant was in operation.
*882 It is true that others were able to get some shipments from foreign jobbers, but that did not affect the validity of the trade-mark, as all the goods sold by the French factory were marked with its trade-mark "Cellophane," and the trade-mark could not be destroyed because sales were made by others than Euler. Neither did the acts of Birn & Wachenheim, Catty, or Guth, have any legal effect on the rights of the French factory to its trade-mark, because during the whole time it continued to sell its product marked with its trade-mark, and never admitted the right of any other concern to use it.
That Euler and others used other trade-marks to sell the factory's product has no legal effect on the trade-mark.
This case, like all others, must be determined on the facts and not on probabilities and impressions, but even if this were not so, the impression would not probably be created that there were plural sources of supply of Cellophane, simply because a number of importers and dealers were competing in the sale of a kind of material they called "Cellophane."
There are no elements of estoppel in this case. There is no evidence of any representation by plaintiff, on which defendant relied, that plaintiff no longer claimed "Cellophane" as its trade-mark; on the contrary, the defendant, by its own admission, never applied the mark to the goods it sold, but in billing its goods used the descriptive term "cellulose."
As I view it, defendant attempted to bring its case under the decision in Bayer Co. v. United Drug Co. (D. C.) 272 F. 505, the effect of which it has misinterpreted, and unless it has succeeded, it can find no support in any other authorities cited.
This case differs vitally from the Bayer Case on the facts.
The Bayer Company manufactured the drug in bulk and sold it under its name to all the leading manufacturing chemists, who compressed the powder into tablets, and put them out for many years in their own packages, with the word "Aspirin," and their own names on the labels, with no reference to Bayer.
It was not of so much importance that Bayer's name did not appear on the labels, but the thing of real importance was that Bayer allowed many other well-known manufacturing concerns to appear as independent manufacturing sources of it.
The public, therefore, became familiar with the name "Aspirin" in association with the names of a variety of dealers, during a period of over ten years, while this practice continued uninterruptedly, and during all of which time no advertising by the Bayer Company reached the consumer.
The course pursued by the Bayer Company resulted in informing the general public that there were many sources of the drug.
In the Bayer Case, it does not seem to me that in so far as the general public was concerned, there was an abandonment of the mark, but rather the use of the mark, with the owner's knowledge and consent, from the time of its first use on labels going to the public, in a way that affirmatively pointed to many manufacturing sources, and not as a trade-mark to the general public.
Under these conditions, the question was whether Bayer could establish a secondary meaning.
The mark was held to be a true trade-mark so far as the trade (as distinguished from the general public) was concerned, but not so far as the public was concerned.
This case is clearly distinguished from the Bayer Case.
Cellophane has never been used in connection with the name of anybody, except the French factory, its exclusive distributers or agents Euler, Catty, and Birn & Wachenheim, and its successor DuPont.
I do not agree with the defendant that in this case the trade-mark "Cellophane" depends upon what is in the customer's mind, nor do I agree with the defendant's contention that the opinion in the Bayer Case is authority for such a holding in this case.
In this case the word "Cellophane" was a true trade-mark from the beginning, while in the Aspirin case, the court held that the word "Aspirin" was not a trade-mark from the beginning, so far as the public was concerned, because its owner by allowing many manufacturers to use it, so as to indicate a product made by them, from the beginning of its use, has introduced it to the public as a generic term.
Under these circumstances the Bayer Company, when attempting in 1915 to reclaim the word "Aspirin" as a trade-mark, was not dealing with a fanciful, coined word, but with an ordinary word of the language.
Therefore, the law as to secondary meaning was properly and adequately stated and applied in the Bayer Case, but has no application in this case.
No authority has been cited or found by me that sustains what I understand to be the defendant's contention that a coined, fanciful *883 word cannot become or have protection as a trade-mark unless secondary meaning be affirmatively proven. Waldes v. International Mfrs. Agency, supra, holds to the contrary.
In this case the packages received by customers from the beginning bore the words "La Cellophane" and "Bezons" or "Thaon." The product was advertised by Euler as a "transparent paper," or "transparent wrapper," sold under the trade-mark "Cellophane," produced by a French concern, of which he was the agent. From 1923 until its plant was completed, DuPont sold as agent of the factory, under the trade-mark name.
During the organizing period, and while its plant was being constructed, DuPont did not advertise to any extent. DuPont commenced to advertise the product to the public in 1926. Practically all of this advertising states that the word "Cellophane" is its trade-mark. Euler protected the name by objecting to its use by other concerns, and they stopped its use. DuPont has been active in seeing that its trade-mark rights were respected.
There is no evidence of any use of the word "Cellophane" in any advertising, or on labels of third persons, which tended to disassociate the word "Cellophane" from the French factory or DuPont. Defendant's assumptions as to the effect of the labels or advertising of Birn & Wachenheim, Bendix, Catty, or Henle, with reference to the trade-mark, are not supported by the evidence, and were inconsequential; but in any event, the burden of proof was on the defendant and not on the plaintiff, and assumptions do not take the place of proof.
That Henle, who bought his supply from Euler, advertised "La Cellophane" during a few months in 1914, as well as Euler, did not denote a plural source for the product. A dealer does not destroy the trademark by advertising any trade-marked article.
The advertising by Birn & Wachenheim, during the short period of their agency in 1922, did not impair the trade-mark; it referred to the French factory, and described themselves as distributers.
After the American corporation was formed by DuPont and the French company, that corporation became the sole source of supply in this country.
There is no evidence of the use of the word "Cellophane" by others than DuPont, which was calculated to give the impression that the product came from plural sources. The great extent of the plaintiff's consumer and trade advertising in newspapers, trade papers, magazines, and direct mail advertising, and its advertising by letters, is clearly shown in the facts as I have found them, and was a sufficient compliance with all legal requirements. So great was the volume of such advertising that space would be needlessly occupied in attempting to analyze it, as it is fully described in the facts as found.
The diligence of the plaintiff in protecting its trade-mark clearly appears in the facts as found.
In the face of all this, there is no basis for the application of the Aspirin case to this case, and this is true as well before as after the formation of the American company.
The fact that users of the product advertise it as Cellophane, without reference to the trade-mark, is no evidence of abandonment by plaintiff, as plaintiff could not stop it, although as the facts as found show it has for years been diligent in its efforts to persuade its customers to emphasize the trade-mark character of the word "Cellophane," which it could not enforce by legal proceedings. Prestonnettes, Inc., v. Coty, 264 U.S. 368, 44 S. Ct. 350, 68 L. Ed. 731; Lysol, Inc., v. Montgomery (D. C.) 23 F.(2d) 682; Standard Oil Co. v. California Peach & Fig Growers (D. C.) 28 F.(2d) 283, 285; Columbia Art Works v. Defiance Sales Corp. (C. C. A.) 45 F.(2d) 342.
That the small "c" was used at times furnishes no legal ground of complaint. See the way in which trade-mark names are written in the opinion in Lambert Pharmacal Co. v. Listerated Co. (D. C.) 24 F.(2d) 122; Barnes v. Pierce (C. C.) 164 F. 213.
Even if it was true that the article sold by plaintiff has obtained such a wide sale that the mark "Cellophane" has also become indicative of quality, that would not destroy the rights of the plaintiff in said trade-mark. Lawrence v. Tennessee Mfg. Co., supra; Burton v. Stratton (C. C.) 12 F. 696; N. K. Fairbanks Co. v. Central Lard Co. (C. C.) 64 F. 133; Imperial Cotto Sales Co. v. N. K. Fairbanks Co., 50 Ohio App. D. C. 250, 270 F. 686; B. V. D. Co. v. Montgomery Ward & Co., 16 Trade Mark Rep. 423; Ethyl Gasoline Corporation v. Klibanow (D. C.) 1 F. Supp. 584; Ethyl Gasoline Corporation v. Jay-Craver, Inc. (D. C.) 4 F. Supp. 264; Selchow v. Baker, 93 N.Y. 59, 45 Am. Rep. 169; California Cyanide Co. v. American Cyanamid Co. (Cust. & Pat. App.) 40 F.(2d) 1013.
*884 The name "Cellophane" characterizes a single thing coming from a single source, and is a valid trade-mark, even if it should be shown that the product is more emphasized than the producer, or that the identity of the producer was unknown. Coca-Cola Co. v. Koke Co. of America, 254 U.S. 143, 146, 41 S. Ct. 113, 65 L. Ed. 189; Coty, Inc., v. LeBlume Import Co. (D. C.) 292 F. 264, 268, affirmed (C. C. A.) 293 F. 344, 352; Coca-Cola Co. v. Carlisle Bottling Works (C. C. A.) 43 F.(2d) 119, 121; Lambert Pharmacal Co. v. Bolton (D. C.) 219 F. 325; Lambert Pharmacal Co. v. Listerated Co. (D. C.) 24 F.(2d) 122.
Defendant offered in evidence the following patents: United States patent No. 991,267, issued to Edwin Brandenberger, for apparatus for the continuous manufacture of cellulose films, granted May 2, 1911, on an application filed July 23, 1909. United States patent No. 1,002,634, issued to Edwin Brandenberger, for manufacture of cellulosic films, granted September 5, 1911, on an application filed July 23, 1909.
In the specification of the last-quoted patent the patentee says: "This invention relates to a machine intended for drying cellulosic films * * *."
These patents were granted to Brandenberger shortly after or about the time when the name "Cellophane" was coined, and protected certain machinery used by him for the manufacture of a product which he described in these patents as "cellulose films," an old product known under that and other names, and not a new product.
No monopoly in the manufacture of cellulose film was given by these patents, as that was an old and well-known product before they were granted, and long before they expired cellulose film, made under other processes, was sold under the mark "Transparit," in competition with the product made under these patents, and the doctrine of the Singer Case (Singer Mfg. Co. v. June Mfg. Co.) 163 U.S. 169, 16 S. Ct. 1002, 41 L. Ed. 118, does not apply. President Suspender Co. v. MacWilliam (D. C.) 233 F. 433; Id. (C. C. A.) 238 F. 159.
The name "Cellophane" was not the only name to describe the article which the machines were designed to manufacture, as that product was known by a number of names; in fact, the name "Cellophane" does not appear in those patents, but the product to be manufactured is therein described by a name which has survived to this day, "cellulose film," and as there was no patent monopoly, and as the claimed trade-mark "Cellophane" was not the only name to identify the product made by the patented machines, the doctrine in the Singer Case, supra, is inapplicable. Holzapfel's Compositions Co. v. Rahtjen's American Comp. Co., 183 U.S. 1, 22 S. Ct. 6, 46 L. Ed. 49; Shaver v. Heller & Merz Co. (C. C. A.) 108 F. 821, 65 L. R. A. 878.
The case of Singer v. Loog, L. R. 8 App. Cases 15, cited by the defendant, is not in point.
Neither plaintiff nor its predecessor ever had a patent on the product; the only patents were machine patents used in connection with the manufacture of the article, and the doctrine of the Singer Case does not apply. Scandinavia Belting Co. v. Asbestos & Rubber Works, supra; Prest-O-Lite Co. v. Davis (C. C. A.) 215 F. 349, 351; Searchlight Gas Co. v. Prest-O-Lite (C. C. A.) 215 F. 692, 696.
The cases of Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S. Ct. 1002, 41 L. Ed. 118; Linoleum Co. v. Nairn, L. R. 7 Ch. D. 834; Warren Featherbone Co. v. American Featherbone Co. (C. C. A.) 141 F. 513; Hostetter v. Fries (C. C.) 17 F. 621; Centaur Co. v. Heinsfurter (C. C. A.) 84 F. 955; Merriam Co. v. Saalfield (C. C. A.) 198 F. 369; Walworth Co. v. Moore Drop Forging Co. (C. C. A.) 19 F.(2d) 496; Bayer Co. v. United Drug Co. (D. C.) 272 F. 505, cited by defendant, are not in point.
Plaintiff's trade-mark rights in the word "Cellophane" are in no way affected by the use in association with it of the DuPont oval, as two or more trade-marks on the same article may indicate the same origin, whether used separately or together. Loonen v. Deitsch, supra; President Suspender Co. v. MacWilliam, supra, affirmed (C. C. A.) 238 F. 159; Layton Pure Food Co. v. Church & Dwight Co. (C. C. A.) 182 F. 24; Capewell Horse Nail Co. v. Mooney (C. C.) 167 F. 575, affirmed (C. C. A.) 172 F. 826.
Defendant's contention that plaintiff was negligent is in line with its contention that because the public makes widespread general use of the word "Cellophane," notwithstanding the plaintiff's claim to the word as a trade-mark, the word is now public property, and that the word is within the doctrine in the Singer Case, is not sustained, but like both of the latter contentions is clearly disproved by the evidence.
Defendant's greatest effort on the trial was to establish its contention that the word "Cellophane" is now public property, and in *885 making that effort it offered the evidence of what it called a "survey," in which many persons were interviewed by its investigators and by clerks in the Kress stores. This was in no sense a fair test, as it seems to me the answers given were exactly what could be expected to such questions, and I cannot see how plaintiff could even test the facts, as it had no opportunity for cross-examination of those who were supposed to have answered the questions. And if the theory on which I am deciding this case is the proper one, then this evidence is neither competent, material, or relevant; and it might likewise be said of the plaintiff's survey, that it is not competent, material, or relevant; but if any of the evidence of the surveys is admissible, then the plaintiff's survey, which fairly presented the question, shows that an overwhelming number of those who answered knew of "Cellophane" as a trade-mark.
The testimony of purchasers from defendant who dealt in such wrapping paper is that of persons interested, who would be greatly benefited by a victory for defendant. I have not given any consideration whatever to the so-called "surveys" of the defendant or plaintiff, or to the testimony of those participating therein, or the exhibits offered in connection therewith, but have denied the motion of the plaintiff to strike out such testimony and exhibits, and other testimony and exhibits enumerated in said motion, and will allow the record to stand as made.
Plaintiff is not responsible for the opinions or acts of others, but only for its own acts and those of its officers, agents, servants, and employees.
Defendant also produced many little acts of plaintiff, its officers and servants, which it hoped might be construed as not consistent with its trade-mark claims.
The plaintiff is not responsible for, nor could it prevent by legal proceedings, the uses by the public, by advertisers of articles made out of film, and of machines for handling it, where the word is used with a small "c," and the same is true of the uses of the word in the public press, where the general practice is not to capitalize trade-mark names.
Such uses as can be traced to plaintiff either directly or indirectly are too insignificant to furnish ground for depriving it of its trade-mark. Jacobs v. Beecham, 221 U.S. 263, 273, 274, 31 S. Ct. 555, 55 L. Ed. 729; Coca-Cola Co. v. Koke Co., supra.
In any event, the mistakes that individual employees of plaintiff's large organization may have made in using the trade-mark "Cellophane" could not have reached the public at large, and could not have caused any public confusion as to its meaning, nor deceive any one.
The use of the word by plaintiff in connection with such words as "material" or "product," in phrases like "the material called Cellophane," does not support the argument that if there had been any name for it other than Cellophane, it would have been used, because as I have hereinbefore pointed out, there were a number of such names and in the patents and registration names that well described the product, other than Cellophane, were used.
There are many familiar trade-marked articles for which the public seldom uses any name except the trade-mark name itself, and if that fact be sufficient to destroy the trade-mark character of the word, then the purpose of the trade-mark is defeated.
Infringement of a trade-mark has been enjoined where no generic name of the article appeared in the record. Buffalo Specialty Co. v. Van Cleef (C. C. A.) 227 F. 391.
I can find no negligence on the part of the plaintiff, its predecessor, Euler, or the French concern, nor any intent to abandon the trade-mark; on the contrary, there has been diligence displayed in protecting the same.
Defendant admits that on calls for Cellophane it sells the product of Sylvania.
This constitutes infringement of plaintiff's trade-mark. Cutler on Passing Off, p. 1; N. K. Fairbanks Co. v. Dunn (C. C.) 126 F. 227, 228; Barnes v. Pierce, supra; B. V. D. Co. v. Montgomery Ward & Co., supra; B. V. D. Co. v. Kaufmann & Baer Co., 272 Pa. 240, 116 A. 508, and Id., 279 Pa. 152, 123 A. 656; Morgan's Sons Co. v. Wendover (C. C.) 43 F. 420, 10 L. R. A. 283; American Fibre-Chamois Co. v. De Lee (C. C.) 67 F. 329; Winthrop Chemical Co. v. Weinberg (C. C. A.) 60 F.(2d) 461.
Where there has been substitution the law does not require proof that any particular person has actually been misled; it is sufficient that there is likelihood of customers being deceived. Rice & Hutchins v. Vera Shoe Co. (C. C. A.) 290 F. 124, 126; B. V. D. Co. v. Kaufmann & Baer Co., 272 Pa. 240, 116 A. 508; Id., 279 Pa. 152, 123 A. 656; Fuller v. Huff (C. C. A.) 104 F. 141, 145, 51 L. R. A. 332; Rouss, Inc., v. Winchester Co. (C. C. A.) 300 F. 706, 723.
The injunctive relief that may be granted *886 should be limited as in B. V. D. Co. v. Montgomery Ward & Co., supra; Holeproof Hosiery Co. v. Wallach Bros. (C. C. A.) 172 F. 859; Morgan's Sons Co. v. Wendover (C. C.) 43 F. 420, 10 L. R. A. 283.
The defense in the instant case rests wholly on the denial that Cellophane is a trade-mark, and the burden rests upon the defendant to prove either that Cellophane never was a trade-mark, or else that it has been abandoned. Abandonment is not favored and must be strictly proved. 38 Cyc. 881; Recamier Mfg. Co. v. Harriet Hubbard Ayer, Inc. (D. C.) 59 F.(2d) 802; Ansehl v. Williams (C. C. A.) 267 F. 9, 13; Browne on Trade Marks (2d Ed.) 655.
Defendant has failed to bear the burden.
Plaintiff has spent great sums in advertising its trade-mark and product, and defendant is seeking to reap where it has not sown.
Plaintiff's trade-mark Cellophane is valid and infringed.
A decree may be entered in favor of the plaintiff against the defendant, with injunction, accounting, and damages, and of defendant's profits, with costs and the usual order of reference; but the injunction to be issued shall be limited as in B. V. D. Co. v. Montgomery Ward & Co., supra; Holeproof Hosiery Co. v. Wallach Bros., supra; and Morgan's Sons Co. v. Wendover, supra.
Settle decree on notice.
Submit proposed findings of fact and conclusions of law in accordance with this opinion, for the assistance of the court, as provided by Rule 70½ of the Equity Rules (28 USCA § 723) and Rule 11 of the Equity Rules of this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264985/ | 6 F. Supp. 773 (1934)
HILLSDALE GROCERY CO.
v.
UNION & PEOPLE'S NAT. BANK OF JACKSON, MICH., et al.
No. 11024.
District Court, E. D. Michigan, S. D.
March 20, 1934.
McLeod, Fixel, Abbott & Fixel, of Detroit, Mich., for petitioner.
Bisbee, McKone, Wilson & King, of Jackson, Mich. (David W. Kendall, of Jackson, Mich., of counsel), for receiver, conservator, and Union & People's Nat. Bank of Jackson.
*774 KNIGHT, District Judge.
On February 14, 1933, when a bank moratorium in the state of Michigan was declared by the Governor of that state, the Union & People's National Bank of Jackson, Mich., as trustee in the estate of the Hillsdale Grocery Company, bankrupt, had on deposit in the Union & People's National Bank $2,526.98. This proceeding was instituted to have this deposit declared a preference and under a summary order to compel the payment thereof by the conservator. Since the conclusion of the hearings in this proceeding, the aforesaid bank was declared to be insolvent by the Comptroller of the Currency, and a receiver has succeeded the conservator. This court is asked to review and reverse the order of the referee in bankruptcy granting the prayer of the petitioner and making summary directions in the matter of enforcement.
This case differs in certain respects from In re Battani et al. (D. C.) 6 F. Supp. 376, recently decided by me, though certain of the same questions are involved.
The funds in question were deposited in violation of General Order in Bankruptcy No. 46 (11 USCA § 53), in that the local bankruptcy court never authorized such deposit. No question is raised regarding this statement of fact. Such general order was not offered in evidence. The receiver for the bank asserts the court cannot now take judicial notice of this rule. This can hardly be considered seriously. By the very nature of its authority the court may take such notice. The referee has found as a fact that the bank depository knew or should have known of the rule. I do not find support for this finding. But the receiver claims that the bank had the right to presume the rule had been observed. The diligence of counsel has pointed to no authority which supports this position.
Section 30 of the Bankruptcy Act (11 USCA § 53) empowers the Supreme Court to make all necessary rules as to procedure and for carrying the Act into effect. General Order 46 (11 USCA § 53) was adopted by the Supreme Court and became effective June 1, 1931. Except it conflict with the Constitution or laws, a rule adopted pursuant to authority conferred by law has the force and effect of law. "A rule of the court thus authorized and made, has the force of law, and is binding upon the court, as well as upon parties to an action, and cannot be dispensed with to suit the circumstances of any particular case," was declared many years ago in Thompson v. Hatch, 3 Pick. (Mass.) 512, and that statement of the law has uniformly been followed. Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U.S. 603, 19 S. Ct. 761, 43 L. Ed. 1103; Clawans v. Whiteford et al., 60 Ohio App. D. C. 412, 55 F.(2d) 1037; Woodbury v. Andrew Jergens Co. (C. C. A.) 61 F.(2d) 736. In R. C. L. vol. 7, 1027, cited on behalf of the receiver, we find this significant expression: "Rules adopted by a court without exceeding the limits of its authority are often spoken of as having the effect of rules enacted by the legislature, or positive law, and therefore, as being obligatory on the court and on the parties."
Section 61 of the Bankruptcy Act (11 USCA § 101) provides for the designation of a depository, "for the money of bankrupt estates," and that such depository shall give bond. Where a banking institution was named receiver or trustee, it was not deemed always necessary that the deposits of the estate be made in a separate institution, and a banking institution acting as trustee or receiver was authorized to hold the money on certain conditions. No. 46, General Orders in Bankruptcy (11 USCA § 53). The rule recognized the necessity of the approval of the Circuit Judges of the circuit in respect to the financial ability of depository. It provides that a majority of Circuit Judges may adopt a rule authorizing the holding of such deposits under "such provisions for the supervision and control * * * as the court may deem adequate." The bank as trustee occupies the same relative position as an individual. He is required by law to deposit funds of the estate in a depository. The bank was a designated depository, but it, like an individual, should have recognized that it could not hold its own deposits without specific authority of law. It was the bank's business to know its right in this respect, just as it was to know it was a designated depository for other bankrupt funds. It did not do this, and by virtue of accepting such deposits, such deposits become ex maleficio trust funds provided the deposits are traced to and augment the assets of the bank. Hancock County et al. v. Hancock National Bank of Sparta (C. C. A.) 67 F.(2d) 421; American Surety Co. v. Jackson (C. C. A.) 24 F.(2d) 768; Board of Commissioners v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100; Conqueror Trust Co. v. Fidelity & Deposit Co. of Md. (C. C. A.) 63 F.(2d) 833; Citizens' & Southern Bank v. Fayram (C. C. A.) 21 F.(2d) 998; Farmers' Bank of Alamo v. United *775 States Fidelity & Guaranty Co. (C. C. A.) 28 F.(2d) 676; Alexander v. Security Bank & Trust Co. (D. C.) 273 F. 258.
The Referee has found that all the cash received by the bank, as local circuit court receiver, receiver in bankruptcy, and trustee in bankruptcy, went into the bank's general cash fund and all of the checks received by the bank in the same capacities were credited to the account of the bank at the Federal Reserve Bank of Chicago, Detroit Branch. He has also found that since September 30, 1930, and until the appointment of the conservator, the bank's cash, including its deposit with solvent banks, has always exceeded the total of bankruptcy and local circuit court receivership funds on deposit with the bank, and that the balance in favor of the bank in the Federal Reserve Bank of Chicago, Detroit Branch, has always exceeded the bankruptcy and receivership funds on deposit with the bank. The Referee has also found that all the deposits mentioned in these several deposits augmented the assets of the bank, that they became a part of said assets, and that the balance aforesaid of $2,526.98 was included in said assets when the same were taken into custody and control of the conservator. It seems to me the findings of the Referee in this respect are supported by the record. The deposits and withdrawals through the different stages are numerous. All deposits appear to have been made by cash and by deposits of checks, as hereinbefore stated in such findings. The old rule as regards the tracing of funds and augmentation of assets was that trust funds wrongfully misapplied cease to be such when they were mixed and confounded with other funds. Philadelphia National Bank v. Dowd (C. C.), 38 F. 172, 2 L. R. A. 480; Peters v. Bain, 133 U.S. 670, 10 S. Ct. 354, 33 L. Ed. 696. The more modern rule is that where the money increases the assets of the holder, it may, under certain circumstances, be made the subject of a trust, in order to accomplish the ends of justice. Harmer v. Rendleman (C. C. A.) 64 F.(2d) 422. The latter rule has been limited to the extent that it must be clearly shown that the trust property has directly augmented the fund upon which the trust is to be declared, "so that a court of equity can see with certainty that the trust property is in his (receiver's) hands." Harmer v. Rendleman (C. C. A.) 64 F.(2d) 422, 423; Empire State Surety Co. v. Carroll County et al. (C. C. A.) 194 F. 593. I think this latter rule has been met in this case. I may add that the case also presents a stronger case in favor of augmentation than is usually found since the receiver and the depository are one and the same. The decisions by the courts on the question of augmentation are many. Aside from those hereinbefore mentioned, we may cite: People's National Bank v. Moore (C. C. A.) 25 F.(2d) 599; Fidelity & Deposit Co. of Md. v. Farmers' Bank (C. C. A.) 44 F.(2d) 11. In my opinion the finding of the Referee that the deposit in this estate augmented the assets of the depository should be sustained.
Holding that these are trust funds, I come to the question of legality of the summary order directing the payment of such funds by the conservator. The Comptroller of the Currency is directed by statute to make a ratable distribution of the funds of the insolvent bank, and the receiver acts under his direction. 12 USCA § 194; Earle v. Pennsylvania, 178 U.S. 449, 20 S. Ct. 915, 44 L. Ed. 1146. Service of a certified copy of the judgment entered upon this decision and proof of the nonpayment of such judgment are sufficient proof of a claim. Claims adjudicated in a court of record are expressly directed to be paid ratably. 12 USCA § 194. The funds of this estate are not in the hands of the trustee as such. They are in the hands of the insolvent depository in which payment of the claim is to be made pursuant to statute. The facts in Earle v. Pennsylvania, 178 U.S. 449, 20 S. Ct. 915, 917, 44 L. Ed. 1146, are comparable. There an attachment against an insolvent bank was sustained but payment was directed to be withheld pending distribution by the Comptroller of the Currency. The language of the court in that case is in point: "The scheme of the statute relating to suspended national banks is that from the time of a bank's suspension all its assets, of whatever kind, as they are at the time of suspension, pass, in the first instance, to the receiver, the proceeds thereof to be distributed by the Comptroller among those whose claims are proved to his satisfaction or are adjudicated by some court of competent jurisdiction. So, when the Chestnut Street National Bank suspended and went into the hands of a receiver the entire control and administration of its assets were committed to the receiver and the Comptroller, subject, however, to any rights or priority previously acquired by the plaintiff through the proceedings in the suit against Long." In Re Bologh (D. C.) 185 F. 825, it was held that the bankruptcy court could not order the Superintendent of Banks summarily to pay over moneys and the distinction between the authority of the court over property held by the trustee and money in the hands of the depository is pointed out. *776 In Bank of Bethel v. Pahquioque Bank, 14 Wall. 383, 20 L. Ed. 840, it was held that payment of a judgment must wait distribution under the banking law. The orderly administration of the affairs of the insolvent bank require that the assets be marshaled so that the rights of creditors as between themselves may be determined. Preferred claims necessarily must be paid first, but all preferred claims might be required to be paid ratably among themselves. The proper course, it seems to me, is to present to the receiver proof of the claim on account of these deposits as a preferred claim and to await the payment thereof by the Comptroller of Currency, through the receiver, in the regular and orderly administration of the affairs of the insolvent bank.
It does not seem to me to be necessary in this opinion to pass specifically upon each conclusion of law found by the Referee. With the exception of the finding that the bond given by the depository is not such a bond as contemplated by law, I think the opinion declares the view of the court as regards the other findings. In Re Battani et al. (D. C.) 6 F. Supp. 376, the question raised with regard to the validity of this bond was passed upon by me, and I held that the bond given by the same surety as that in this proceeding was a valid bond. I adhere to that decision now, and the finding of law of the Referee to the contrary is reversed.
Findings may be submitted in accordance with this decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264991/ | 54 Cal. App. 4th 407 (1997)
THE PEOPLE, Petitioner,
v.
THE SUPERIOR COURT OF SAN LUIS OBISPO COUNTY, Respondent; JOHN FREDERICK MUDGE, Real Party in Interest.
Docket No. B107385.
Court of Appeals of California, Second District, Division Six.
April 18, 1997.
*409 COUNSEL
Barry T. LaBarbera, District Attorney, for Petitioner.
Edward R. Jagels, District Attorney (Kern), as Amicus Curiae on behalf of Petitioner.
James B. Lindholm, Jr., County Counsel, and Ann Duggan, Deputy County Counsel, for Respondent.
Samuel T. Crump as Amicus Curiae on behalf of Respondent.
John Frederick Mudge, in pro. per., for Real Party in Interest.
*410 OPINION
YEGAN, J.
Code of Civil Procedure section 170.65 subdivision (a), enacted in 1995, and recodified in 1996 provides: "A retired judge shall not hear and try any criminal cause when it is stipulated jointly by the prosecuting attorney and the defendant and his or her counsel, and submitted to the court as hereinafter provided, that the retired judge is not capable or qualified to hear and try the criminal cause." This statute has a "sunset" provision, i.e., it "shall remain in effect until January 1, 2001, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 2001, deletes or extends that date." (Code Civ. Proc., § 170.65, subd. (c).)[1]
We conclude that the sun shall set sooner on section 170.65. This legislative experiment substantially impairs the Chief Justice's constitutional power to appoint retired judges who he determines are "capable and qualified." A stipulation filed pursuant to the statute is evidentiary in nature and specific to the assigned retired judge. It cannot be reconciled with the Chief Justice's implied factual determination that the assigned retired judge is possessed of his or her faculties so as to render him or her "capable and qualified." We thus agree with the trial court's ruling and hold that section 170.65 is unconstitutional.
(1) Before proceeding to the merits of the writ petition, we must disclose that the members of this court belong to the California Judges Association which has filed an amicus curiae brief in support of the trial court's ruling. Our membership in this organization does not disqualify us from acting here. Section 170.2, subdivision (a) provides: "It shall not be grounds for disqualification that the judge [or justice]: [¶] (a) Is or is not a member of a racial, ethnic, religious, sexual or similar group and the proceeding involves the rights of such a group." The majority of trial judges and appellate court justices of this state, approximately 90 percent according to the California Judges Association's amicus curiae brief, are members of the California Judges Association. Some appellate panel must hear the case and the rule of necessity allows us to do so here. (See Olson v. Cory (1980) 27 Cal. 3d 532, 537 [178 Cal. Rptr. 568, 636 P.2d 532], citing Atkins v. United States (1977) 556 F.2d 1028, 1036 [214 Ct. Cl. 186] ["The rule of necessity ... means that a judge is not disqualified to try a case because of his [or her] personal interest in the matter at issue if there is no other judge available to hear and decide the case."].)
Real party in interest, John Frederick Mudge, is charged with various counts of forgery in respondent court, which is a five-judge court. The *411 record shows a dismal inability of the justice system to get this criminal case tried. One judge disqualified himself. Both sides exercised peremptory challenges to judges. In addition, real party challenged another assigned retired trial judge for cause. That judge did not contest the challenge and by operation of law, consented to disqualification. (§ 170.3, subd. (b)(4).) Then, real party challenged the instant retired assigned judge, the Honorable Harry E. Woolpert, for cause.[2] Another superior court judge denied the challenge for cause.
Thereafter, the parties entered into a stipulation that "the Honorable Harry E. Woolpert retired is not capable or qualified to hear and try the above captioned case." This challenge was not allowed. The Presiding Judge of the San Luis Obispo Superior Court, the Honorable Michael L. Duffy, both orally and by written opinion, declared section 170.65 to be unconstitutional. The People petitioned for an extraordinary writ. We issued an alternative writ of mandate, stayed the trial, heard argument, and now file our opinion.
(2) "`[A]ll presumptions and intendments favor the validity of [the] statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.' [Citations.]" (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal. 3d 805, 814 [258 Cal. Rptr. 161, 771 P.2d 1247].) The judiciary may not second-guess the wisdom of statutes passed by the Legislature. (Superior Court v. County of Mendocino (1996) 13 Cal. 4th 45, 53 [51 Cal. Rptr. 2d 837, 913 P.2d 1046].) Nevertheless, unless a higher court has upheld the constitutionality of a statute, it is the obligation of the trial and appellate courts to independently measure legislative enactments against the Constitution and, in appropriate cases, to declare such enactments unconstitutional. (Byers v. Board of Supervisors (1968) 262 Cal. App. 2d 148, 157 [68 Cal. Rptr. 549].) "It is the duty of [all] courts to maintain supremacy of the Constitution. [Citations.]" (Id. at p. 157.)
Article III, section 3 of the California Constitution provides: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." In association with this separation of powers principle of government, article VI section 6 of the California Constitution expressly grants the Chief Justice the constitutional power to *412 administer the assignment of judges. It provides: "The Chief Justice may provide for the assignment of any judge to another court but only with the judge's consent if the court is of lower jurisdiction. A retired judge who consents may be assigned to any court."
(3) The assignment of a retired judge to act temporarily as a regular sitting judge is sui generis. That is to say, such a judge is unlike a judge who is either appointed or elected to office. "The manner, method, or criteria for selection of duly qualified assigned judges is within the inherent power of the Supreme Court and within the discretion of the Chief Justice in the exercise of her [or his] constitutional authority to make the assignments." (Mosk v. Superior Court (1979) 25 Cal. 3d 474, 483 [159 Cal. Rptr. 494, 601 P.2d 1030], fn. omitted; see also People v. Ferguson (1932) 124 Cal. App. 221, 231 [12 P.2d 158] [Chief Justice has "discretion of the broadest character" in the assignment of judges].)
(4) By enacting section 170.65, the Legislature has determined that the parties to a criminal action can veto the Chief Justice's constitutional assignment, i.e., they can erase the Chief Justice's signature from the written assignment. Generally, this "chills," i.e., substantially impairs, the Chief Justice's constitutional power. In the particular case it "freezes", i.e., actually defeats, the Chief Justice's constitutional power. Mr. Witkin says that "... the Legislature may not exercise its power so as to interfere with the independence of the judiciary. [Citation.]" (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 111, p. 163.) This is what the Legislature has done here. Upholding the constitutionality of section 170.65, would have the effect of adding the following language to article VI, section 6 of the California Constitution: "However, in criminal cases, the Chief Justice's assignment may be vetoed upon the parties' stipulation." It is inappropriate for the Legislature, by statute, or this court, by opinion, to add language to the California Constitution.
It is true that "[t]he Legislature may adopt reasonable rules and regulations regarding the disqualification of judges [citation]" (Johnson v. Superior Court (1958) 50 Cal. 2d 693, 696 [329 P.2d 5]; Superior Court v. County of Mendecino, supra, 13 Cal.4th at p. 56) as long as it does not defeat or materially impair the judicial function. (13 Cal.4th at pp. 55, 58.) Phrased otherwise, our Supreme Court has said that any legislative regulation must not "substantially impair" an express provision of the California Constitution. (Sacramento etc. D. Dist. v. Superior Court (1925) 196 Cal. 414, 432 [238 P. 687]; In re Lance W. (1985) 37 Cal. 3d 873, 891 [210 Cal. Rptr. 631, 694 P.2d 744].)
In Superior Court v. County of Mendocino, supra, 13 Cal. 4th 45, the California Supreme Court identified those instances where it was permissible for the Legislature to regulate the judicial function: when the trial courts *413 shall be in session (Superior Court v. County of Mendocino), admission to practice law (Brydonjack v. State Bar (1929) 208 Cal. 439 [281 P. 1018, 66 A.L.R. 1507]), peremptory challenge to a trial court (Johnson v. Superior Court, supra, 50 Cal. 2d 693), fixing of a punishment for contempt of court (In re McKinney (1968) 70 Cal. 2d 8 [73 Cal. Rptr. 580, 447 P.2d 972]). (13 Cal.4th at pp. 54-57.) In each of these instances there was no substantial impairment of a separate and distinct constitutional provision. Here there is.
While the filing of a stipulation pursuant to section 170.65 might not have as great a potential for materially impairing the functions of the court in the larger counties, it may have such an effect in the smaller counties. There is no limitation on how many times the parties may file a section 170.65 stipulation. Thus, if the Chief Justice makes five assignments to the County of San Luis Obispo, the parties could veto all five assignments by filing stipulations. This would materially impair the judicial function. The instant case illustrates how even the single use of a section 170.65, may do so.
We have examined the legislative history of the statute and observe that there appears to have been two motivating factors for its enactment. First the Legislature believed that the parties were entitled to a trial judge who would "answer to the electorate." (Sen. Com. on Criminal Procedure, Analysis of Assem. Bill No. 1736 (1995-1996 Reg. Sess.) June 6, 1995, p. 2.) This premise demonstrates that the statute cannot withstand constitutional scrutiny. Although prior to retirement all judges may have to "answer to the electorate," a retired judge appointed by the chief justice is no longer subject to election. This is the case whether or not the parties seek to disqualify the judge through a section 170.65 stipulation. If a retired judge must be answerable to the electorate, then the Chief Justice's constitutional power could never be exercised.
We parenthetically observe that the thought that a retired judge would abuse his or her power because he or she would not be accountable to the electorate impugns the integrity of all assigned retired judges. History has shown that assigned retired judges sitting at all levels of the California judiciary have performed with the highest levels of integrity, fairness, and scholarship. As stated by the late Chief Justice, Phil S. Gibson, retired judges "render valuable assistance to the courts with savings to the taxpayers." (Gibson, For Modern Courts (1957) 32 State Bar J. 727, 732.) Before enacting section 170.65, the Legislature should have explored the question posed by its staff on the Senate Committee on Criminal Procedure: "Will this interfere with the Chief Justice's constitutional right to assign a retired judge to any court?" (Sen. Com. on Criminal Procedure, Analysis of Assem. Bill No. 1736 (1995-1996 Reg. Sess.) June 6, 1995, p. 5.)
*414 Second, the Legislature also appears to have been motivated by the California District Attorney's Association claim that "unlike active judges who deal daily with the constantly changing state of California criminal law and procedure, retired judges, who sometimes sit irregularly or infrequently, often are not familiar with recent changes in criminal law, which works to the disadvantage of both parties." (Sen. Com. on Criminal Procedure, Analysis of Assem. Bill No. 1736 (1995-1996 Reg. Sess.) June 6, 1995, p. 4.)
There is but little doubt that the laws relating to criminal procedure are complex. (E.g., People v. Rosbury (1997) 15 Cal. 4th 206 [61 Cal. Rptr. 2d 635, 932 P.2d 207].) This, however, does not translate into the proposition that an assigned retired judge is not "capable or qualified" to listen to evidence, consider changes in the law, independently research the issues, and make a sound legal ruling. Effective January 1, 1996, the Chief Justice promulgated "standards and guidelines for judges serving on assignment." These standards and guidelines discuss eligibility to sit on assignment, continuing judicial education requirements, and provide for a signed agreement that the assigned retired judge "... will maintain familiarity with current statutes, case law, court rules, court procedures, and comply with the continuing education requirements...." (Retired Judge Application to Serve on Assignment.) These procedures were in place prior to the assignment of retired Judge Woolpert. It is presumed that he complied with the standards and guidelines and the signed agreement.
The Legislature's choice of words, while offensive to the individual targeted assigned retired judge, probably derives from the Supreme Court opinion in Austin v. Lambert (1938) 11 Cal. 2d 73 [77 P.2d 849, 115 A.L.R. 849], which struck a predecessor statute to section 170.6 (peremptory challenge) because it empowered the litigant to disqualify "`without reason or for an undisclosed reason'...." (Johnson v. Superior Court, supra, 50 Cal. 2d 693, 698; see also Daigh v. Shaffer (1937) 23 Cal. App. 2d 449 [73 P.2d 927].) The words chosen by the Legislature do not say that the parties believe that the particular retired judge is "not capable or qualified." It purports to be an evidentiary stipulation reciting the fact that the particular retired judge is "not capable or qualified." Retired Judge Woolpert has served 20 years as a judge, serving on just about every calendar available including criminal law and motion and trials. We have reviewed his cases since 1983, when this division was created. In our view, he is "capable and qualified" as a matter of law. No stipulation to the contrary can change this fact.
Our holding that section 170.65 is unconstitutional works no hardship on the parties to a criminal action. There remain three ways to disqualify an *415 assigned retired judge in a criminal case. The assigned retired judge may recuse himself or herself because the judge is disqualified for the reasons set out in the Code of Civil Procedure. (See § 170.1.) The parties may challenge the assigned retired trial judge for cause. (See § 170.3, subd. (c)(1).) The parties may peremptorily challenge the assigned retired trial judge. (§ 170.6.) These are three significant arrows in the disqualification quiver. We simply remove the defective fourth arrow. The trial court correctly ruled that section 170.65 was unconstitutional.
Almost 60 years ago, Justice Plummer authored the opinion in Daigh v. Shaffer, supra, 23 Cal. App. 2d 449, which struck another disqualification statute. His eloquence is apposite today: "[T]he empowering upon attorneys and litigants of arbitrary action, ... militate[s] not only against the independence of the judiciary as a coordinate branch of the government, ... [it] also tend[s] to obstruct the orderly administration of justice.... The rights of all of the parties and of the public as well must be considered instead of simply the arbitrary action of the attorney[s] or litigant[s] who [seek] to remove a qualified judge from hearing a particular case." (Id., at p. 463.)
The alternative writ is discharged. The request for a peremptory writ is denied. The stay order is vacated.
Stone (S.J.), P.J., and Gilbert, J., concurred.
On May 9, 1997, the opinion was modified to read as printed above.
NOTES
[1] All statutory references are to this code.
[2] By order (No. 1740-96), signed November 18, 1996, Chief Justice Ronald M. George appointed the Honorable Harry E. Woolpert, retired judge of the Superior Court, County of San Luis Obispo, to sit as a judge thereof from November 18, 1996, to November 27, 1996, and from December 2, 1996, to December 20, 1996, and "... until completion and disposition of all causes and matters heard pursuant to this assignment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264994/ | 54 Cal. App. 4th 1346 (1997)
In re PATRICK H., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
PATRICK H., Defendant and Appellant.
Docket No. A074385.
Court of Appeals of California, First District, Division Four.
May 12, 1997.
*1347 COUNSEL
Paul Bernstein for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman and Christopher J. Wei, Deputy Attorneys General, for Plaintiff and Respondent.
*1348 OPINION
REARDON, J.
At issue in this case are the placement alternatives available to a juvenile court once it has found that a mentally disordered minor accused of criminal-type misconduct is unable to assist in his or her defense. (See James H. v. Superior Court (1978) 77 Cal. App. 3d 169 [143 Cal. Rptr. 398] (James H.).)
In April 1995, the Napa County District Attorney filed a juvenile court petition pursuant to Welfare and Institutions Code[1] section 602 against the 16-year-old appellant, Patrick H. The petition contained one allegation of burglary of a vehicle (Pen. Code, § 459); two allegations of assault upon a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2)); one allegation of attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e)(1), 187); and one allegation of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). The district attorney alleged several "serious felony" and "use of firearm" enhancements. (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.5, subds. (a) & (d).) Pursuant to section 707, subdivision (b), the district attorney requested that appellant be declared unfit to be dealt with under the juvenile court law.
At the time of the alleged offenses, Patrick was a patient at Napa State Hospital. At a hearing in June 1995, defense counsel expressed a doubt concerning his client's mental competence to stand trial. The juvenile court appointed an expert to examine the minor. In October 1995, the court found that he was incompetent to stand trial. Following an evaluation, the court, acting pursuant to Penal Code section 1370, ordered that appellant remain committed to Napa State Hospital.
After several hearings, the juvenile court in April 1996, acting pursuant to section 705, ordered that the minor be evaluated pursuant to Penal Code section 4011.6 to determine whether he had a mental disorder or was developmentally disabled, and if so, whether as a result of the disorder, he was a danger to others, or to himself, or was gravely disabled. Following an evaluation, the county mental health department found that appellant was gravely disabled as a result of a mental disorder and met the criteria for involuntary hospitalization pursuant to section 5150.
On May 20, 1996, the juvenile court ordered the Los Angeles County Department of Health and Human Services to file a petition for conservatorship pursuant to section 5150. Over defense objection, the court also ordered that the minor continue to be held pursuant to Penal Code section 1370.
*1349 Patrick appeals from the order committing him pursuant to Penal Code section 1370.
I. STATEMENT OF FACTS
Patrick is a profoundly deaf minor who was voluntarily admitted to Napa State Hospital when he was 10 years old. He was later declared a dependent child of the Los Angeles County Juvenile Court. At the time of the alleged offenses, he was 16 years old.
According to reports in the clerk's transcript, Patrick escaped from Napa State Hospital on March 17, 1995, entered a locked sheriff's patrol car, and removed a semiautomatic rifle. When Sergeant Doug Koford came out of the sheriff's office, Patrick pointed the rifle at him. Koford pulled out his revolver and Patrick ran away. Koford pursued him and radioed for assistance. Napa Police Officer Tim Cantillion, accompanied by a civilian passenger, drove up in his vehicle. Patrick pointed the rifle at Cantillion and his passenger. Cantillion stopped his vehicle, pulled out his revolver, and shot Patrick twice. Patrick was arrested, treated for his injuries, and was then transported back to Napa State Hospital.
II. PROCEDURAL FACTS
During pretrial proceedings, defense counsel on June 16, 1995, expressed a doubt concerning Patrick's mental competence to stand trial and requested the court to appoint an expert to examine him. The juvenile court granted counsel's request "under [Penal Code section] 1368 or its juvenile equivalent."[2]
The court appointed Dr. Peggy Kelly, a neuropsychologist at the Center on Deafness, University of California, San Francisco. In an amended report, Dr. Kelly concluded that Patrick had the ability to understand the charges before him, but he was not able to comprehend the personal implications of criminal proceedings, nor was he able to cooperate with counsel in his own defense.
In October 1995, based on Dr. Kelly's report, the juvenile court found the minor incompetent to stand trial. The court referred him to the community program director of the Napa County Conditional Release Program for a *1350 placement evaluation.[3] The community program director recommended that Patrick "remain committed to Napa State Hospital in order to regain trial competency."
On November 21, 1995, the juvenile court stated it had read and reviewed the "report pursuant to Section 1370." Citing James H., supra, 77 Cal. App. 3d 169, defense counsel objected, arguing that once the juvenile court found Patrick not competent to stand trial as defined in Penal Code section 1367, it should no longer follow the statutory scheme for adult criminal proceedings (Pen. Code, § 1368 et seq.). Instead, counsel argued that the juvenile court should apply existing juvenile procedures under section 705,[4] which section provides that if a minor is believed to be mentally disordered, the court should proceed as provided in section 6550[5] or Penal Code section 4011.6.[6] Alternatively, since the Los Angeles County Juvenile Court had ongoing dependency jurisdiction over Patrick, counsel *1351 suggested that the Napa County Juvenile Court should transfer the entire matter to Los Angeles for proceedings in that county. When the juvenile court indicated its intent to commit appellant to Napa State Hospital for a three-month evaluation, counsel expressed his opinion "that the statutory scheme would allow the Court to commit him to Napa State Hospital for a seventy-two hour evaluation for them to make a determination as to whether he's gravely disabled, whether he's a danger to himself or to others, or whether he is developmentally disabled. But I don't think that the statutory scheme would allow the Court to commit him to Napa State Hospital for a three month period of time. [¶] THE COURT: Okay. [¶] I disagree. Anything further?" The court then ordered Patrick to remain committed to Napa State Hospital "pursuant to Section 1370 of the Penal Code ... for the purpose of being treated in order to regain his trial competency." The record does not show if the minor sought review of that order at that time.
In February 1996, Napa State Hospital reported Patrick was not yet competent to stand trial and recommended that he "be retained at this facility for further care and treatment." On March 7, 1996, defense counsel asked the court to reconsider its procedures and elaborated on the legal basis for his request. He concluded that "... since there is no statutory scheme that has been adopted by the legislature applicable to juvenile court proceedings, I think James H. is the law in this area." (Original underscore.) When the court asked what it should do, defense counsel suggested that "... it really makes sense to transfer this case to Los Angeles pursuant to their ongoing dependency jurisdiction and allow them to do the best they can to find an appropriate placement for Patrick." The court stated that defense counsel's request was "very thoughtful" and "should be taken very seriously...." It continued the matter so the prosecutor could respond to counsel's procedural arguments.
*1352 By the next hearing, the court had developed a concern over the status of the unadjudicated section 602 matter if commitment proceedings were pursued. Defense counsel suggested the section 602 case would remain in a suspended status based on the minor's incompetency. (See § 6551; fn. 5, ante.) The court was also concerned about the willingness of Los Angeles authorities to establish an LPS conservatorship and to treat the minor with a view toward regaining trial competency. The court again continued the matter to permit defense counsel to consult with Los Angeles authorities and to give the prosecutor more time to brief the procedural issues.
In April 1996, Napa State Hospital reported that the minor continued to manifest a mental illness interfering with his ability to assist in his defense. It reported that he was making progress toward attaining competency "and may attain this goal within three years." The state hospital recommended that he be retained at its facility "for further care and treatment."
Meanwhile, the prosecution submitted its points and authorities responding to the procedural issues raised by the defense. The prosecution agreed that section 705, providing that the juvenile court proceed against a mentally disordered minor under section 6550 or Penal Code section 4011.6, applied. But whereas the defense emphasized section 6550, the prosecution argued that a Penal Code section 4011.6 placement was required in this case.[7] The prosecution therefore requested "that the minor be placed, per Penal Code section 4011.6, for evaluation and treatment under Welfare and Institutions Code [section] 5150 and that the local mental health director be ordered to prepare an evaluation and report concerning the minor and his course of future treatment. This report should address, among other things, whether the minor is gravely disabled, a danger to self, or a danger to others."
At an April 11, 1996, hearing, each side suggested the court start by invoking section 705. The court defended the position it had been taking: "It seems to me the placement that Patrick has at this time is where he should be.... I don't think we need at this point in the case a Welfare [and] Institutions Code proceeding under [section] 5150 or any other situation regarding his status. I just don't see the need for conservatorship at this point." The court believed that it had the inherent power under Penal Code *1353 sections 1368 and 1370 to act as it had. It explained: "I'm not committing him. I'm simply making the same order I would in any other case concerning an adult where he has been found not competent to stand trial. I'd simply refer him to placement or treatment until he regains his trial competency." (Italics added.)
Ultimately, however, the court decided that since counsel were in agreement, it would order the minor to be evaluated pursuant to Penal Code section 4011.6 and section 5150 as to whether he had a mental disorder or was developmentally disabled, and if so, whether as a result he was currently a danger to others, or to himself, or was gravely disabled. The court requested reports from both the Napa State Hospital and the Napa County Mental Health Department.
In its report, Napa State Hospital concluded appellant had a mental disorder and, as a result, there was reason to believe he was gravely disabled and a danger to others. It did not believe that Patrick was developmentally disabled. In its report, the county mental health department commenced its report by stating that since Patrick was currently committed to the state hospital "under PC 1370, this opinion should be considered hypothetical." But continuing with its evaluation, the department stated its belief that appellant was not a danger to himself or others due to his mental illness, but acknowledged that this lack of dangerousness was "dependent on the highly structured and well-supervised environment provided by [his] hospital setting."[8] The department concluded that appellant could not care for himself, was gravely disabled as a result of a mental disorder and that "he would meet the criteria for involuntary hospitalization pursuant to Section 5150 of the W&I Code if the PC 1370 hold were dropped." It recommended that the case be "referred to the Los Angeles County Department of Social Services or Mental Health for a conservatorship investigation or residential placement."
In subsequent hearings, defense counsel agreed that the court should pursue an appropriate LPS commitment, but he continued to object to any commitment purporting to be made pursuant to Penal Code section 1370.[9] Moreover, the community program director pointed out to the court that so *1354 long as there was a Penal Code section 1370 hold on the minor, Los Angeles County authorities would be reluctant to pursue a section 5150 petition. The court expressed concern, however, that absent its commitment order, the minor could be released before any petition was filed in Los Angeles.
On May 20, 1996, the juvenile court ordered that the Los Angeles County Department of Health and Human Services, within 10 days, file a section 5150 conservatorship petition regarding the questions of the minor's ability to provide for his food, clothing and shelter and whether the minor was a danger to himself or others.[10] It also ordered that appellant continue to be held pursuant to Penal Code section 1370, as previously ordered. The minor appealed.
III. DISCUSSION
(1) Appellant contends the juvenile court erred "in committing [him] as an adult rather than as a juvenile." He argues that "when the dust settled" after several months of hearings and evaluations, "the court made both the 1370 commitment and the LPS referral" (original italics) pursuant to Penal Code section 4011.6 and section 5150. He does not object to the LPS referral, but does object to the juvenile court's commitment order under Penal Code section 1370.
In the juvenile court, the district attorney agreed with the defense that the court should act pursuant to section 705 but, instead of resorting to section 6550 as suggested by the minor, it successfully urged the court to proceed under the alternative provisions in Penal Code section 4011.6. The prosecutor did not make any recommendation concerning the juvenile court's commitment order under Penal Code section 1370.
At this level, the Attorney General argues that there is nothing in the statutes or case law standing for the proposition that once a juvenile is found incompetent, civil commitment proceedings under section 6550 or Penal Code section 4011.6 are the exclusive remedies available. He concludes that nothing "prohibits the juvenile court from interposing in a juvenile proceeding, the proceedings for committing an adult adjudged to be mentally *1355 incompetent. Thus, the juvenile court properly exercised its inherent powers and continued treatment of appellant under section 1370."
In James H., supra, 77 Cal. App. 3d 169, the Court of Appeal held that absent any statutory procedure for doing so, a juvenile court has the inherent power to determine a minor's mental competence to understand the nature of the pending proceedings and to assist counsel in a rational manner at that hearing. (Id. at p. 172.) Absent a statute or statewide Judicial Council rule on the subject, the Court of Appeal exercised its inherent power to formulate a suitable procedure when a minor's mental competence is at issue. (Id. at pp. 175-176.)
In James H., the Court of Appeal ruled that if the juvenile court entertains a doubt as to the minor's capacity or ability to cooperate with his attorney, "then it should immediately suspend proceedings and conduct a hearing into the question of the minor's present competence. In making that determination, the court may borrow from Penal Code section 1367 and use as a yardstick the definition of incompetency set forth in that section, i.e., that the minor, by reason of mental disorder or developmental disability, is unable to understand the nature of the proceedings taken against him and assist counsel in the conduct of those proceedings in a rational manner." (James H., supra, 77 Cal. App.3d at p. 176, italics added.) If, as a result of that hearing, the court finds that the minor can cooperate with counsel, the court should then reinstate the pending proceedings. (Id. at pp. 177, 178.)
"If, however, the court finds that the minor cannot cooperate with his counsel, resort should then be made to existing juvenile court proceedings under Welfare and Institutions Code section 705, wherein a minor who is mentally disordered may be committed to an approved facility for care and treatment under Welfare and Institutions Code section 6550." (James H., supra, 77 Cal. App.3d at p. 177.)
Under the facts in James H., it was appropriate for the juvenile court to proceed under section 6550. As section 6550 makes clear, the evaluation procedures set forth in the sections which follow "are not triggered unless the juvenile court has initially found the minor to be a person described by section [300], 601, or 602." (In re Vicki H., supra, 99 Cal. App.3d at p. 496, fn. 5.)
In contrast, the juvenile court in In re Mary T., supra, 176 Cal. App. 3d 38 proceeded under Penal Code section 4011.6. In that case, the issue was *1356 whether it was error for the juvenile court to suspend the section 602 proceedings and order the initiation of civil commitment proceedings under Penal Code section 4011.6 without first requiring a prima facie showing that the minor fell within the jurisdiction of the juvenile court under section 602. (In re Mary T., supra, at pp. 40-41.) In deciding that issue, the Court of Appeal observed: "In an adult proceeding, a finding of present incompetence results in an immediate suspension of the criminal proceedings. The next issue is simply whether the defendant should be confined in a state hospital or other facility or released on an outpatient status. (Pen. Code, § 1370, subds. (a)(1) and (a)(2).) [¶] A finding of incompetence in a juvenile proceeding under the authority of James H. v. Superior Court, supra, 77 Cal. App. 3d 169, however, does not next result in a confinement order or the equivalent. The finding of present incompetence of a juvenile at most results in a referral for evaluation for possible initiation of civil commitment proceedings under applicable provisions of the Lanterman-Petris-Short Act...." (Id. at p. 43, citing Pen. Code, § 4011.6; see also § 6550.)[11] The Court of Appeal commented further: "In juvenile cases, any resultant commitment is independently based on the civil commitment standards and will cease or endure based on those standards, no matter what disposition is made in the section 602 proceedings. [¶] ... In effect, a juvenile is not committed as incompetent to proceed with section 602 proceedings, but on a wholly independent basis and after wholly independent procedures." (Id. at p. 44.)
Turning to the facts in this case, when counsel first expressed his doubt concerning the minor's competency to stand trial in June 1995, the juvenile court granted counsel's request to appoint an expert to examine the minor "under 1368 or its juvenile equivalent." Based on the expert's evaluation, the court in October 1995 found Patrick was unable to comprehend the personal implications of the criminal proceedings and was unable to cooperate with counsel in his own defense, and concluded that he was not competent to stand trial at that time. It referred Patrick to the community program director for placement evaluation. To this point, the juvenile court was in substantial compliance with the procedures suggested in James H.
At a November 1995 hearing, the court began by indicating it had read, reviewed and considered the recommendations in the community program *1357 director's evaluation report "pursuant to Section 1370." Defense counsel immediately objected. He described the James H. procedures at some length and urged the court to apply them in this case. When the court indicated its intent to commit Patrick to Napa State Hospital for a three-month evaluation, counsel argued that the juvenile scheme allowed for a seventy-two hour evaluation, but not a three-month evaluation. The juvenile court disagreed, and ordered Patrick to remain committed to Napa State Hospital for 90 days "pursuant to Section 1370 of the Penal Code... for the purpose of being treated in order to regain his trial competency."
As the juvenile court later explained, "I'm simply making the same order I would in any other case concerning an adult where he has been found not competent to stand trial." By so ordering, the juvenile court erred. Once the juvenile court "borrow[ed] from Penal Code section 1367 and use[d] as a yardstick the definition of incompetency set forth in that section" (James H., supra, 77 Cal. App.3d at p. 176), it should no longer have continued with the adult statutory scheme. Instead, once the court found that the minor could not cooperate with his counsel, it should have turned to section 705 and proceeded under either section 6550 or Penal Code section 4011.6, whichever was appropriate (In re Mary T., supra, 176 Cal. App.3d at p. 43 [Pen. Code, § 4011.6]; James H., supra, 77 Cal. App.3d at p. 177 [§ 6550]). Rather than issuing a 90-day commitment order, the appropriate step at that time would have been to refer Patrick to a facility for 72-hour treatment and evaluation.[12]
Three months later, in February 1996, Napa State Hospital reported that the minor was not yet competent to stand trial and recommended continued retention at that facility for further care and treatment. At a March hearing, defense counsel asked the court to reconsider its procedures, to follow James H. and, in terms of treatment for his client, asked the court to transfer Patrick's case to Los Angeles to allow that juvenile court to find an appropriate placement pursuant to LPS procedures. Although defense counsel was commended for the quality of his argument, the court in the short run maintained the status quo.
More evaluations and hearings followed. Although the prosecution eventually agreed with the defense concerning the procedural issues, the juvenile *1358 court in the meantime had become concerned about the status of the pending section 602 proceedings if the LPS procedures were followed.
Concerning the status of the pending section 602 proceedings, the two statutory schemes cited in section 705 seem to be in conflict. Under section 6551, the jurisdiction of the juvenile court is suspended during the time the minor is subject to the jurisdiction of the court in which the LPS petition is filed. (§ 6551; see fn. 5, ante.) Under Penal Code section 4011.6, however, the juvenile court may retain concurrent jurisdiction over the minor during the LPS proceedings. (Pen. Code, § 4011.6; see fn. 6, ante.)
In In re Robert B. (1995) 39 Cal. App. 4th 1816 [46 Cal. Rptr. 2d 691], Division One of this court dealt with some of the conflicts in those sections. It concluded that section 6551 and Penal Code section 4011.6 "should be considered complementary, rather than as providing alternative procedures. Together, the sections authorize the juvenile court to refer persons within its jurisdiction for 72-hour evaluation or treatment after which, in appropriate cases, the provisions of the LPS Act may be invoked, pursuant to which the minor may be detained in a mental health facility for a longer period of time." (In re Robert B., supra, 39 Cal. App.4th at pp. 1822-1823.) Reconciling the sections, the court held: "The juvenile court retains concurrent jurisdiction over the minor during the LPS proceedings, unless the person in charge of the facility determines that arraignment or trial would be detrimental to the well-being of the minor. In such a case the juvenile court's jurisdiction is suspended during such time as the minor is subject to the jurisdiction of the court overseeing the LPS proceedings." (Id. at p. 1823.)
In this case, the juvenile court was on notice that the mental health agencies were reluctant to proceed under LPS so long as the court retained a Penal Code section 1370 hold over Patrick. In its LPS evaluation, the county mental health department stated its opinion should be "considered hypothetical" since Patrick was currently committed under Penal Code section 1370. At the May 20, 1996, hearing, the county community program director told the court there would be a problem if it ordered Los Angeles authorities to file a conservatorship petition "in that Los Angeles County won't do that as long as the other hold is in effect." Defense counsel suggested the commitment order needed to be withdrawn. But the juvenile court remained apprehensive that Patrick could be released before Los Angeles agencies could act. Thus, in ordering that the Los Angeles Department of Health and Human Services file a section 5150 conservatorship petition within 10 days, the *1359 juvenile court also ordered that Patrick "continue to be held pursuant to Section 1370 PC as previously ordered."[13]
To the extent the juvenile court continued its order that Patrick remain committed pursuant to Penal Code section 1370, it erred. In an adult proceeding, a finding of present incompetence results in an immediate suspension of the criminal proceedings and the next issue is simply whether the defendant should be confined in a state hospital or other facility or be placed on an outpatient status. (Pen. Code, § 1370, subd. (a)(1), (2).) But a finding of incompetence in a juvenile proceeding should not result in a confinement order or its equivalent. (In re Mary T., supra, 176 Cal. App.3d at p. 43.) In effect, a juvenile is not committed as incompetent to proceed with section 602 proceedings, but on a wholly independent basis and after wholly independent procedures. (In re Mary T., supra, at p. 44.) At the time of the May 20, 1996, order, Patrick had already spent six months at the state hospital under the guise of Penal Code section 1370 "for the purpose of being treated in order to regain his trial competency," notwithstanding the fact that the mental health experts and the court thought it unlikely he would ever reach the required level of competency. Once Patrick was found incompetent, the juvenile court should have referred him for an early evaluation for possible initiation of LPS civil commitment proceedings. (See §§ 705, 6550; Pen. Code, § 4011.6.)
We conclude that the portion of the juvenile court's order of May 20, 1996, providing for Patrick's continued commitment pursuant to Penal Code section 1370, must be set aside. The juvenile court may retain its jurisdiction over the minor while he is subject to the LPS proceedings. If the minor is detained in a facility pursuant to LPS and if the person in charge of that facility determines that further section 602 proceedings would be detrimental to Patrick's well-being, the juvenile court should then suspend its jurisdiction for such time as the minor is subject to the jurisdiction of the court overseeing the LPS proceedings. (Pen. Code, § 4011.6; see In re Robert B., supra, 39 Cal. App.4th at p. 1823.)
IV. CONCLUSION
That portion of the juvenile court's May 20, 1996, order providing for continued commitment of the minor pursuant to Penal Code section 1370 is set aside. In all other respects, the order is affirmed. Unless otherwise ordered by the Napa County Juvenile Court, that court may retain *1360 jurisdiction over the minor concurrently with the court exercising jurisdiction over the minor pursuant to section 5150.
Anderson, P.J., and Poche, J., concurred.
NOTES
[1] Unless otherwise stated, section references are to the Welfare and Institutions Code.
[2] Defense counsel responded that "the juvenile equivalent" to Penal Code section 1368 was set forth in James H., supra, 77 Cal. App. 3d 169. He also cited In re Mary T. (1985) 176 Cal. App. 3d 38 [221 Cal. Rptr. 364]. These cases are discussed in part III, post.
[3] Under adult criminal procedures, if a defendant is found mentally incompetent, the court must order the community program director or a designee to evaluate the defendant before it makes an order directing that the defendant be confined in a state hospital or other treatment facility or be placed on outpatient status. (Pen. Code, § 1370, subd. (a)(2).)
[4] Section 705 provides: "Whenever the court, before or during the hearing on the petition, is of the opinion that the minor is mentally disordered or if the court is in doubt concerning the mental health of any such person, the court may proceed as provided in Section 6550 of this code or Section 4011.6 of the Penal Code." Each of the latter two cited sections provides for civil commitment under the Lanterman-Petris-Short Act (LPS). (§ 5000 et seq.)
[5] Section 6550 provides: "If the juvenile court, after finding that the minor is a person described by Section 300, 601, or 602, is in doubt concerning the state of mental health or the mental condition of the person, the court may continue the hearing and proceed pursuant to this article."
Section 6551 provides, in pertinent part: "If the court is in doubt as to whether the person is mentally disordered or mentally retarded, the court shall order the person to be taken to a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation. Thereupon, Article 1 (commencing with Section 5150) of Chapter 2 of Part 1 of Division 5 applies, except that the professional person in charge of the facility shall make a written report to the court concerning the results of the evaluation of the person's mental condition. If the professional person in charge of the facility finds the person is, as a result of mental disorder, in need of intensive treatment, the person may be certified for not more than 14 days of involuntary intensive treatment if the conditions set forth in subdivision (c) of Section 5250 and subdivision (b) of Section 5260 are complied with. Thereupon, Article 4 (commencing with Section 5250) of Chapter 2 of Part 1 of Division 5 shall apply to the person. The person may be detained pursuant to Article 4.5 (commencing with Section 5260), or Article 4.7 (commencing with Section 5270.10), or Article 6 (commencing with Section 5300) of Part 1 of Division 5 if that article applies. [¶] ... [¶] The jurisdiction of the juvenile court over the minor shall be suspended during such time as the minor is subject to the jurisdiction of the court in which the petition for postcertification treatment of an imminently dangerous person or the petition for commitment of a mentally retarded person is filed or under remand for 90 days for intensive treatment or commitment ordered by such court."
[6] Penal Code section 4011.6 provides, in pertinent part: "In any case in which it appears to the person in charge of a county jail, city jail, or juvenile detention facility, or to any judge of a court in the county in which the jail or juvenile detention facility is located, that a person in custody in that jail or juvenile detention facility may be mentally disordered, he or she may cause the prisoner to be taken to a facility for 72-hour treatment and evaluation pursuant to Section 5150 of the Welfare and Institutions Code and he or she shall inform the facility in writing, which shall be confidential, of the reasons that the person is being taken to the facility. The local mental health director or his or her designee may examine the prisoner prior to transfer to a facility for treatment and evaluation. Upon transfer to a facility, Article 1 (commencing with Section 5150), Article 4 (commencing with Section 5250), Article 4.5 (commencing with Section 5260), Article 5 (commencing with Section 5275), Article 6 (commencing with Section 5300), and Article 7 (commencing with Section 5325) of Chapter 2 and Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code shall apply to the prisoner. [¶] ... [¶] A defendant, either charged with or convicted of a criminal offense, or a minor alleged to be within the jurisdiction of the juvenile court, may be concurrently subject to the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). [¶] ... [¶] For purposes of this section, the term `juvenile detention facility' includes any state, county, or private home or institution in which wards or dependent children of the juvenile court or persons awaiting a hearing before the juvenile court are detained."
[7] By its terms, section 6550 first requires the court to find that the minor is a person described by section 300, 601 or 602 before it proceeds further. (See In re Vicki H. (1979) 99 Cal. App. 3d 484, 496, fn. 5 [160 Cal. Rptr. 294].) Penal Code section 4011.6 does not require that finding. (See In re Mary T., supra, 176 Cal. App.3d at p. 44.) The court, of course, made no section 602 finding in this case. The prosecution did not discuss whether the fact that the minor had previously been found to be a person described by section 300 in Los Angeles would suffice for purposes of section 6550. We need not decide that issue in this case.
[8] The court disagreed with the department's conclusion that the minor was not a danger to himself or others. "I truly believe, based on the crime charged, that this individual is a danger to others. There's no question about that in my mind."
[9] Defense counsel argued: "I don't think 1370 is an alternative. That's only in the adult court. In the case law that I provided the Court, really I think the only alternative is to either order the filing of the 6500 petition for dangerous developmentally disabled person or to go the route the court has gone so far in requesting a 5150 evaluation. [¶] The 602 petition was filed, and that's just there. The Court has found him incompetent, and I don't think that dismisses that, it just means that the Court now has to follow the scheme that's been laid out in the case authorities, and that is to have a conservatorship established, presumably by Los Angeles County. [¶] If at some point in the future he gains his competency LA can notify us of that and I imagine Napa County could go forward on the 602 petition. [¶] But I don't think 1370 and anything following it is an option for the Court, because it's not set out in the case law, which establishes the competency proceeding in juvenile cases."
[10] The record before us does not indicate how Los Angeles County authorities responded to this order.
[11] At this point in its opinion, the Court of Appeal noted that even where they are already wards of the court, "mentally ill minors cannot be committed without compliance with applicable provisions of the Lanterman-Petris-Short Act (§ 5000 et seq.) or other appropriate procedures affording adequate due process...." (In re Mary T., supra, 176 Cal. App.3d at p. 43, fn. 7, citing In re Michael E. (1975) 15 Cal. 3d 183 [123 Cal. Rptr. 103, 538 P.2d 231].)
[12] Although defense counsel made his position clear to the juvenile court, he did not test that position by seeking timely review of the November 21, 1995, order in this court. In James H., for example, the Court of Appeal granted a petition for writ of mandate to enforce the procedures formulated in that opinion. (James H., supra, 77 Cal. App.3d at pp. 177-178.)
[13] On November 21, 1995, the juvenile court had previously ordered that Patrick remain committed to Napa State Hospital "pursuant to Section 1370 of the Penal Code ... for the purpose of being treated in order to regain his trial competency." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264997/ | 6 F. Supp. 283 (1934)
U. S. COLLOID MILL CORPORATION
v.
MYERS et al.
District Court, S. D. New York.
February 16, 1934.
*284 Henry J. Lucke, of New York City, for plaintiff.
Albert P. Wollheim, of New York City, for defendant Myers.
Austin & Dix, of New York City (Howard W. Dix, of New York City, of counsel), for defendant Dix.
CAFFEY, District Judge.
For convenience I shall refer to the so-called inventions mentioned in the applications described in paragraph 8 of the bill of complaint as if they were inventions in fact, although I shall not determine in this case whether they are inventions or not. That question is not before me.
As I have previously indicated to counsel, this is a contract suit. The primary issues are to determine whether or not the inventions, or any of them, come within the contract of June 15, 1928, between the plaintiff and Mr. Myers, and whether in other respects there has been proof entitling the plaintiff to recover in so far as concerns one or more of the inventions. We are not concerned now with the long line of cases, the most recent of which, so far as I know, being United States v. Dubilier Condenser Corporation, 289 U.S. 178, 53 S. Ct. 554, 77 L. Ed. 1114, 85 A. L. R. 1488, having to do with rights as between employers and employees.
Here, I repeat, we have plainly an unvarnished contract suit. It is not, however, an ordinary contract suit. As was within the rights of the plaintiff, it brought a contract suit of an extraordinary type. The plaintiff asks for specific performance. That removes the case somewhat beyond the rules for the determination of an ordinary action at law for breach of contract, wherein recovery of damages is sought.
The suit being for specific performance, and being of a type which confessedly the plaintiff had a right to resort to, by resorting to it the plaintiff subjected itself to rules which are peculiar to, but thoroughly settled in, that class of actions. Those rules are well stated in Dalzell v. Dueber Watch Case Manufacturing Company, 149 U.S. 315, 13 S. Ct. 886, 37 L. Ed. 749, to which I shall refer later. In substance, the rules are, first, that in order for the plaintiff to recover in an action for specific performance, there must be clarity of meaning of the contract and of the right on which the plaintiff relies growing out of the contract; secondly, the proof on any issues of fact must be clear and satisfactory.
I realize that in a suit like the present, wherein because under the law certain of the documents are inaccessible to it, the plaintiff is at a certain disadvantage in establishing its contentions with respect to the facts. There are documents in the hands of counsel for an applicant for a patent which it is the duty of counsel, or in the files at the patent office which it is the duty of the patent office, to keep secret until the issuance of a patent or other final disposition of the application. That is matter of law. Moreover, the provision of law to this effect rests on a sound basis. But for the preservation of such secrecy, the right of the applicant might be impaired or even lost. Nevertheless, whatever may be the embarrassment of the plaintiff in making proof of facts, the plaintiff has elected to pursue the remedy here invoked. The plaintiff chose the way which is hard. Furthermore, irrespective of who made the election, the applicable rules of law must be obeyed by the court, as well as by litigants. The consequence is that the plaintiff, first, must establish a clear right to the thing for which it asks, and, secondly, by clear and *285 satisfactory evidence must show the facts, which may be essential to maintenance of the suit, to be what it contends them to be.
The questions as they affect the two defendants are somewhat different. I shall, therefore, take them up separately. I shall deal first with the case as between the plaintiff and the defendant Myers.
The proof establishes that application No. 304,335 covers the identical formula which was the principal subject-matter of the contract of June 15, 1928; and in mentioning the word contract, unless otherwise indicated, I shall have in mind that instrument. Indeed, it is conceded of record that this particular application embraces the invention dealt with in the contract.
As I have indicated heretofore, in conducting this trial, I am bound by the previous decision of Judge Mack.[1] The obligation is well expressed in the Commercial Union Case (C. C. A.) 10 F.(2d) 937, to which I have previously directed the attention of counsel. But for the very frank, and I think proper, statement by counsel for Mr. Myers, probably, by being forced to obey the law of the case, I should be precluded from passing on the question of whether or not the plaintiff is entitled to the invention covered by the contract. However, the defendant Myers agrees that I may take up the question of the relative rights of the parties in so far as the chemical features of the application are involved, regardless of the order of Judge Mack and dispose of it on the merits as I conceive them to be.
The contract, as I construe it, conferred on the plaintiff unambiguous rights to the invention of the dispersing agent referred to or described in the contract and disclosed to the plaintiff at the time the contract was signed. It follows that the plaintiff is entitled to recover that invention, in so far as concerns the chemical formula relating to the dispersing agent dealt with in that formula, unless there exist an obstacle or obstacles arising out of some other ground.
Two reasons have been urged as to why, even though all that I have said with respect to this invention be admitted, the plaintiff nevertheless is not entitled to recover.
First, it is insisted that, in advance of suit, Mr. Myers demanded an accounting by the plaintiff and the accounting was not furnished. Why the plaintiff did not furnish the accounting has not been suggested.
The contract obligates the plaintiff to keep correct accounts of transactions under the contract and to make quarterly statements to and settlements with Mr. Myers. However, on the evidence, it would have been purely academic for the plaintiff to have rendered a statement on the facts as they have been established at the trial; namely, that nothing ever happened to be accounted for. No use was made of the invention, much less was there a sale of any product growing out of the transaction. It would seem to me, therefore, that it would have been so wholly useless to render an accounting that failure to render it does not afford basis of sufficient substance to create a defense to this suit.
The second ground assigned on behalf of Mr. Myers, as a reason why there should not be a recovery, is that the application for the invention embraced not alone a dispersing agent, and the particular dispersing agent dealt with in the contract, but, in addition, embraced certain mechanisms or mechanical features. Is that good ground for denying relief to the plaintiff, in so far as concerns the chemical features? Or is it good ground for completely denying relief to the plaintiff, whatever form the relief might take? Is it enough to disentitle the plaintiff to enjoyment of the fruits of the application as an entirety?
The question is novel. To my mind it is also perplexing. In so far as I have had experience or have discovered, it raises an issue which has never been authoritatively determined by the courts. In New Jersey Zinc Co. v. Singmaster (D. C.) 4 F. Supp. 967, I had before me a somewhat similar question; but there the contract was differently worded. That case is now working its way up to the Court of Appeals. I cannot be sure what the appellate court will do about it. It seems to me, however, that, sitting as a court of equity, in order to solve the difficulty, I am under the obligation, as nearly as I can, to apply equitable principles.
The choice as to what should be included in the application was made by Mr. Myers. The choice as to what was to go into the application was not made by the plaintiff; nor, so far as the proof discloses, was the matter of what should be covered by the application considered, or at any rate very much considered, by the plaintiff. Apparently from the proof the controversies which existed at the time the application was filed had run off on to other phases of the subject.
If the plaintiff was entitled to the chemical features and Mr. Myers applied for a *286 patent which covered not alone the chemical features, but something else, and, for the sake of the argument, for the moment I shall assume anything else that he might make up his mind to put in, it would seem to me that nevertheless the course of action by Mr. Myers should not have the effect of depriving the plaintiff of any right whatsoever which it already had to the chemical features; that is to say, any right which it had in the invention covered by the contract. On the contrary, inclusion of phases of invention additional to those covered by the contract having been the act of applicant for the patent, the applicant must take the consequences.
The most nearly applicable principle, as it seems to me, which can be employed by a court of equity is the well-established doctrine as to commingling of goods, or, as it is sometimes referred to, confusion of goods. This doctrine is well stated in The Idaho, 93 U.S. 575, 23 L. Ed. 978.
It is argued on behalf of Mr. Myers that the court should scrutinize the application and make a separation of chemical from mechanical features.
In the first place, I see no duty on the part of the court to do this. The confusion results exclusively from the act of Mr. Myers. In the second place, having examined the documents, I find it is impossible equitably to separate into the two elements.
Again, when we get into the field of strict patent law itself, it seems to me there is some support there for the conclusion at which I have arrived on this point in the well-established rule that where a basic patent has been granted to one person and an improvement patent is later granted to another person, the holder of the improvement patent can make no real use of it without the consent of the owner of the basic patent. See the statement of the proposition in Temco v. Apco, 275 U.S. 319, 328, 48 S. Ct. 170, 72 L. Ed. 298.
In the application with which we are dealing there is a combination of something which belongs to the plaintiff with something which is mechanical. The application is not confined to and does not consist exclusively of a dispersing agent. When the specifications and claims are construed together, as they must be construed, it is manifest that the applicant had in mind employing a dispersing agent, in a certain way as described in the application, by means that he there sets forth. But taking the analogy I have referred to as between the owner of a basic patent and the owner of an improvement patent, it being the law, as I understand it, that the owner of the improvement patent, although he have complete title to it, cannot use it without the consent of the owner of the basic patent, it seems to me that, having in the application brought in something which he was free not to bring in, but nevertheless by his own act did bring in, Mr. Myers put himself in a position where there is no help for him. The mechanical features cannot be preserved to him, separate and apart from the rights of the plaintiff so far as concerns the dispersing agent feature. There is no effective way of assuring to the plaintiff the enjoyment of what indisputably is its property, in its own right, unless what has been inextricably commingled with it also go to the plaintiff. It may be that this disposition will interfere with something which otherwise, and but for its inclusion in the application, Mr. Myers may have been himself entitled to. That follows, however, solely from his own fault or mistake.
Only one thing, therefore, is left for the court to do. This is to treat the application as an entirety and to award it to the plaintiff.
What about the other dispersing agent application and the patent issued thereon? The application is No. 304,336 and the patent is No. 1,774,609.
Let us turn to the contract.
The first thing to be observed about the contract, which deals with a dispersing agent for reducing matter to a colloidal condition, is that Mr. Myers therein represents to the plaintiff that the formula covering the dispersing agent is the "only one" developed or owned by him. In other words, by the recital of the contract itself, it was made the basis of the agreement, as between Mr. Myers and the plaintiff, that the dispersing agent which was covered by a secret formula embraced everything Mr. Myers had invented with respect to the employment of a dispersing agent in reducing matter to a colloidal condition.
Here were two people who were contracting, with knowledge on the part of one as to what was the subject of the negotiations and complete ignorance on the part of the other as to exactly what was included. The plaintiff of necessity was put into position of buying a pig in a poke. The recital, therefore, was of the utmost consequence. So also now it is of the utmost consequence in the interpretation of the contract.
The contract with frequency refers to the formula which was represented in the opening recital to be the only invention with respect to dispersing agents for reducing matter to colloidal condition. The formula is likewise *287 frequently referred to as the invention. The contract specifically provides that, contemporaneously with its signing, a considerable sum shall be paid to the seller. It next provides that then, for the first time, "the formula and method or methods of practicing the invention" shall be disclosed to the purchaser. It also provides for the payment of an additional amount arising out of "royalties or sales price from manufacturers for the use of this formula" and thereafter for an equal division between the parties of "further royalties."
The contract goes even further in the phase of it which deals with the subject of compensation. It discriminates between the invention referred to in the opening paragraph as a formula, and new formulas having to do with the employment of chemicals as dispersing agents. The new formulas are to become the property of the purchaser. There is no arrangement for a cash payment or any unconditional payment for these. For them the seller is to get only a share of "any royalties received from manufacturers employing" them. The effect, therefore, is further to emphasize that when the contract was entered into Mr. Myers had made but a single invention relating to a dispersing agent for reducing matter to a colloidal condition.
For the sake of the argument, however, let it be assumed that at the time of the signing of the contract Mr. Myers had not conceived the invention embraced in patent 1,774,609. Is there any other provision in the contract under which the plaintiff is entitled to it?
The contract contains another, and wholly separate, clause defining the rights of the parties with respect to inventions. This has been discussed a great deal in argument. It obligated Mr. Myers at all times to work in the interests of the plaintiff. It also obligated him to make prompt and full disclosure of all formulas presently in his possession, thus going back to and being correlated to the expression used in the opening recital of the contract, and, in addition, future formulas or inventions or improvements thereon.
Assuming, therefore, that the invention covered by the patent was conceived by Mr. Myers after the contract was signed, the issue arises as to what kind of future inventions were covered by the contract which, by its terms, Mr. Myers obligated himself to transfer to the plaintiff.
In describing such future inventions the contract employs these words: "Any future formulas, inventions, or improvements upon, any formula or invention, whether patentable or otherwise, in, upon, or pertaining to dispersing agents, or in means for obtaining colloidal substances."
It is clearly established that the chemical invention described in the patent we are now discussing did relate to dispersing agents for use in obtaining colloidal substances. In consequence, if it was in fact conceived by Mr. Myers subsequent to the making of the contract, nevertheless, by express terms of the contract, it was included in what by the contract he obligated himself to transfer to the plaintiff.
It may be argued that the obligation with respect to an inventive conception, or to an invention conceived, subsequent to the making of the contract, only covered such things as he conceived, and which constituted invention or were of an inventive nature, prior to the termination of his association with the plant of the plaintiff on Long Island. I am inclined to think that this is true. Contracts whereby one man sells products of his mind to somebody else are to be rather strictly construed. Otherwise we should run into the difficulty of a man mortgaging his own mind, a thing which is to be avoided. Otherwise also we should run into the difficulty of hampering the development of inventions. The Supreme Court in the line of cases to which I have referred, coming right down to the Dubilier Condenser Case, has frequently issued warnings to the courts with care to protect the rights of any individual to the enjoyment of the fruits of his own mind.
Assuming now, first, that at the time of signing the contract Mr. Myers had not already proceeded with the subject-matter of the application and patent, or at least of the chemical features of it, to the extent of its having reached the point of invention; and, secondly, what is practically the same thing, that the conception of the invention on the part of Mr. Myers was something which, within the meaning of the phrase used in the contract, was "future," then let us inquire whether the proof establishes that the invention was conceived during the period that Mr. Myers was at the plant of the plaintiff and during which the contract certainly obligated him to do inventive work in the interests of the plaintiff pertaining to dispersing agents for obtaining colloidal substances.
The application is dated September 6, 1928. Its verification is dated September 5, 1928. Mr. Dix rendered bills, Exhibit 6, as of the dates of July 31 and August 31, 1928. These were for his then current services as patent counsel. On their face I am impressed that the phraseology is not wholly free from ambiguity with respect to whether the services *288 included the particular chemical feature mentioned in the application and the patent. On the other hand, there is nothing to the contrary in the bills. Indeed from their phraseology alone I think it probable that they must be interpreted as showing that the services of Mr. Dix were in part on this particular invention.
Let us now examine the proof. Let us see if it removes the doubt, if doubt there be, as to the date of invention.
The period of activity of Mr. Myers at the plaintiff's Long Island plant clearly ran to the end of August; almost certainly into September. From this fact alone, I think the inference is inescapable that if this invention was, in the sense of the contract, the result of "future" work of Mr. Myers, it was made while he was engaged at the plaintiff's plant.
There is another method of approach which, as it seems to me, has some bearing upon the interpretation both of the contract and of the acts of the parties as they affect the particular invention.
Mr. Myers is compelled to take one or the other of two positions in regard to the contract rights of the plaintiff in the invention, at least as to its chemical features. He is in a dilemma. He is forced to concede that the invention either antedated the contract or came into existence while he was in the employment of the plaintiff, the date of the application itself showing that the invention was complete before he quit the plaintiff's employment. In either event, the invention belongs to the plaintiff. This is so because at the making of the contract he said to the plaintiff, in substance, "I am disclosing to you everything I know on the subject of the employment of dispersing agents," and the contract conferred on the plaintiff ownership of inventions of Mr. Myers on the subject while in its employ. Accordingly, under the express terms of the contract, it seems plain to me that the plaintiff is entitled to the invention in so far as concerns the chemical features. At the moment I am not dealing with the mechanical features.
Again, let us examine the patent itself.
In order to construe a patent as issued, we must consider both the specifications and the claims; we must consider them together. There are numerous recitals in the specifications which impress me as meaning that the invention embraced a dispersing agent for the accomplishment of the purpose covered by the contract. The words in the contract are, "pertaining to dispersing agents." What the patent covers not only pertains to dispersing agents, but is a dispersing agent. There are numerous examples of this in the patent itself. A few only need to be cited.
Thus in the specifications, page 1, beginning at line 45, are these words: "Yet another object of this invention is the provision of the use of an improved colloidizing agent of a chemical nature used with any suitable mechanical means." So on page 1, beginning at line 49, are these words: "Yet another object of this invention is the combination of the improved colloidizing agent with improved mechanical means."
It is necessarily implied by the language used that one of the elements of the invention is employment of a chemical colloidizing agent. Numerous other illustrations could be given from the specifications.
Turn now to the claims. Four in specific terms include sulphite waste liquor; the fifth includes sulphite liquor. In other words, every claim calls for the employment of a chemical dispersing agent. And the claims call for use of the dispersing agent for the purpose of producing or assisting in the production of colloidal substances.
It seems to me, therefore, on the face of the document itself, so far established that the subject-matter of the patent, as affects the chemical features, is linked into the use of a dispersing agent for obtaining colloidal substances, that the invention comes squarely, 100 per cent., within the contract.
In addition, the same argument can be made as to this second invention which I have already stated with respect to the first invention, covered by application No. 304,335. I need not repeat it. Here it is plain that the applicant for the patent had in mind the use of certain mechanical means. He made clear in the specifications, as he made clear in the claims, however, that there was to be combination of chemical features and mechanical features. I may be wrong in applying one or the other of the two analogies I have invoked; but it seems to me that by the action of Mr. Myers in bringing into his own application something which, for the sake of the argument, we may concede for the moment the plaintiff would not be entitled to and combining that with something to which the plaintiff is entitled, and combining it in such a way that no court can separate them, the title to the whole passed to the plaintiff, precisely as the title to mingled goods passes to the true owner of a part where the wrongful mixer puts into and confuses with the mass something of his own.
*289 As I see it, therefore, the plaintiff is entitled to recover patent No. 1,774,609.
All of the other inventions are mechanical. So far as concerns the inventive nature of what is described in the applications covering the inventions, there is no novelty whatsoever that has any bearing on dispersing agents. On the contrary, they are exclusively mechanical. All stand on the same ground. I shall not take up all. I shall, however, specifically discuss the one which has occupied a considerable part of the time at this trial. This is described in application No. 301,804. Is the plaintiff entitled to that? I think not.
First, as affects this invention, the plaintiff has not established the element of futurity, invention after the contract was made. On the contrary, the proof is very persuasive that the device on which a patent was asked by application No. 301,804 had ripened into invention prior to the contract. It is not necessary, however, for me to go that far in order to determine the issue. All that is essential, and of the truth of that I am convinced, is that the plaintiff has failed to show that the invention was made by Mr. Myers before the contract was executed; namely, has not shown it was made on or subsequent to June 15, 1928. We might stop there and consider the issue disposed of; but there are other grounds which lead to the same conclusion in favor of Mr. Myers.
At the threshold we should look at the contract and get it clearly in mind before going to features of the proof other than the mere matter of date of invention.
When the instrument of June 15, 1928, is read in its entirety, it is perfectly manifest that it was designed to deal with dispersing agents. It does not mention, certainly in specific terms, any mechanical means. There was no mention of flexible rotors. Yet it is apparent from the testimony that flexible rotors were well known at the time the contract was made. The very absence from the contract of the expression "flexible rotors" goes far to persuade me that the parties did not have them in their minds when they entered into the contract.
At I have so often pointed out, the obligation of Mr. Myers was to disclose his existing formula and to make prompt disclosure of future formulas; and, by express language, those formulas and the associated word "inventions," which brings in the inventions, were to pertain to dispersing agents. Those are features of the contract which are not to be overlooked in our effort to ascertain its meaning.
True, the clause mentioning future inventions pertaining to dispersing agents contains another expression. This follows the words "dispersing agents." This expression is the only thing in the contract on which the plaintiff bases any claim to the mechanical inventions. The plaintiff predicates its entire case, so far as concerns mechanical inventions, on this expression. It, therefore, deserves very careful scrutiny.
Let us see if it really covers mechanical inventions.
The contract obligates Mr. Myers to disclose formulas or inventions "in, upon, or pertaining to dispersing agents, or in means for obtaining colloidal substances." It is argued by the plaintiff that the use of the word "means" brought into the contract mechanical inventions, if they be employed for obtaining, or in the process of obtaining, colloidal substances, just as fully and completely as there were brought into the contract, by the language throughout, inventions having to do with the employment of dispersing agents in obtaining colloidal substances.
As I read the contract, however, it is almost beyond the imagination that a lawyer drawing it, having in mind the necessity of precision in expressing a fair arrangement between two laymen, so that they should understand it, would ever have thought that, by the use of the word "means," mechanical inventions, in addition to or as distinguished from chemical inventions, would be included. The proof shows that the instrument was prepared by a member of the bar well known to the court. It may be properly assumed that his purpose was to state what the parties had agreed on and to state it in such way that neither party would have a misconception of the subject-matter it embraced. Without the use of an unambiguous term to make clear to the contracting parties that what they were dealing with included mechanical inventions as well as chemical inventions, I think, in the circumstances, it would be little less than absurd to hold that mechanical inventions were included. To construe the contract as embracing a sale of mechanical inventions, as intended to transfer title to existing mechanical inventions, would, as it seems to me, carry the word "means" so far beyond what would be its ordinary significance that I totally reject the notion that the contract can be interpreted to include mechanical inventions.
Still another thing is to be observed. The word "means" is preceded by the word "in." It is related back to what precedes. By the relation a reasonable interpretation is that *290 the purpose was to cover only what pertained to dispersing agents. There is, in consequence, a natural field of operation for the word "means" without attributing to it the significance of describing, or ascribing to the draftsman the purpose by its use to embrace, mechanical inventions. As I see it, the object of inserting the added phraseology was to make sure completely to cover all types of improvements in inventions pertaining to the employment of dispersing agents. That is as I read the contract and that I believe is its meaning.
I have heretofore referred to the Dalzell Case, 149 U.S. 315, 13 S. Ct. 886, 37 L. Ed. 749. As I pointed out to you, the Supreme Court there held that when a plaintiff elects to pursue the remedy of specific performance, not alone does he take over the burden of establishing his cause of action by clear and satisfactory evidence, but also lays down the rule that in the interpretation of the contract itself it must be clear to a man of common understanding that it was the purpose of the contract to include the particular thing which the plaintiff seeks to have the court award to him.
In the Dalzell Case, at page 326 of 149 U. S., 13 S. Ct. 886, 890, quoting from a prior decision (Colson v. Thompson, 2 Wheat. 336, 4 L. Ed. 253) of the Supreme Court, it was said:
"The contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them."
Can you conceive that, when the two parties read over the contract now under examination, it was not reasonably possible for either of them to understand that mechanical inventions were not included? Consider the length of the arguments to which counsel have resorted at this trial in trying to persuade the court that the use of the single word "means" necessarily brought mechanical inventions into the contract. We are to remember that we are concerned with laymen who sat down to sign a contract. They were not lawyers. Bearing that in mind, I certainly cannot say, within the requirement of the rule of law as laid down by the Supreme Court, that it was not reasonable for Mr. Myers to fail to understand that by the contract which he signed on June 15, 1928, he was obligating himself to turn over to the plaintiff every mechanical invention he had made or might make which related to the general subject. On the contrary, I do not think it would be reasonable to say that he did have the idea that, by the employment of the single word "means," he was assuming an obligation to turn over his mechanical inventions to the plaintiff.
The court proceeds in the Dalzell Case to say:
"If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy."
At best, under the language just quoted, there is no warrant for compelling an assignment of the mechanical inventions to the plaintiff.
There are several other features of the case at bar which confirm me in the conviction that the interpretation I have put on the contract is correct.
In very easily understood terms the contract specified what the plaintiff should pay Mr. Myers for the particular formula or invention dealt with by the contract, the formula which he obligated himself to disclose to the plaintiff upon the signing of the contract. It provided that for this there should be a contemporaneous cash payment and later payments of royalties. It also provided for the consideration, in the shape of royalties, to be paid for new formulas. And what kind of new formulas? Look at the language used. In the paragraph as to new inventions is there a suggestion of any payment for mechanical inventions? What does it say? It obligates Mr. Myers "to work in the further development of this or other chemicals as dispersing agents." It contains no reference to working on any mechanical device. It proceeds: "and any new formulas that he may develop are to become the property" of the plaintiff. That is his obligation. Then the clause takes up the obligation of the plaintiff with respect to the new inventions. What language is employed to express that obligation of the plaintiff? It is this: "any royalties received from manufacturers employing the new formulas" are to be divided between the parties 50-50.
One may scan the contract fully; but there will not be found a line or suggestion of an obligation assumed by the plaintiff to pay Mr. Myers a cent for mechanical inventions. Where an inventor sells, his purpose ordinarily is to get something out of the sale. Yet if I should interpret the word "means," in the way insisted on by the plaintiff, to embrace an obligation on the part of Mr. Myers to turn over to the plaintiff all his mechanical inventions, it would mean that he had entered into a contract to make a gift of them to the plaintiff. That would lead to an absurdity. *291 An interpretation which leads to an absurdity is to be rejected.
There are certain other corroborative features which, to my mind, point to the interpretation of the contract, in the way I have construed it, as being correct.
The evidence shows that in August, 1928, there was an experiment at plaintiff's plant of the invention Myers claimed to have made involving flexible rotors. This was participated in or was in the presence of the plaintiff and the defendant. Consider everything the witnesses said as to what happened. Out of the evidence there is not to be derived even a suggestion at the time of the notion on the part of the plaintiff that the mechanical invention was the property of the plaintiff.
When on the stand, Mr. Galvin, Sr., seemed to be under the impression that, by mere force of the relationship, an employer becomes the owner of everything invented by one of his employees. This conception goes far beyond what has been settled by the Supreme Court. There is some popular notion that, so far as concerns inventions, employees sell their brains to their employers; but that is not the law. On the contrary, the Supreme Court has thoroughly established that, while certain shop rights in inventions made by an employee while engaged in the work of his employment may accrue to the employer, no title thereto passes unless there be a plain and unambiguous contract obligation by the employee to turn it over to his employer. Only by such a contract can title to the employee's invention be obtained.
Again, let us pursue the contract between the parties. Mr. Dix presented bills to the plaintiff dated July 31 and August 31, 1928. These were in the hands of the plaintiff approximately on their dates. From them it is manifest that what Mr. Dix had done, as well as what he was doing and was engaged thereafter to do, included services as to mechanical inventions. He was at the plaintiff's plant when the mechanical invention covered by application No. 301,804 was tested. He was available then and at other times to explain to any who were interested. He was working on the whole problem and, so far as appears, no other lawyer participated in the effort to secure the patents. Yet there was no suggestion that anybody ever addressed to him a question as to whether or not the contract conferred on the plaintiff any right to mechanical inventions.
The facts as to the bills go further. When they were presented to the plaintiff, in substance, the plaintiff said, "The bills are none of my business. You cannot charge me. The work was done for Mr. Myers." That is the effect of what all the witnesses say with respect to what transpired between Mr. Dix and the plaintiff on exhibition of the bills.
What else happened?
The plaintiff sat still for three years and eight months without moving a finger. The plaintiff remained quiescent and let Mr. Myers incur liabilities to his lawyer for pursuing the applications in the patent office. For the entire three years and eight months the plaintiff made no claim that it had any rights in or to the mechanical inventions. In view of these circumstances, it would be so unjust to hand over the application or the issued patent to the plaintiff that the court should lean away from doing so, and should not do so, unless forced to.
A court of equity has some discretion as to whether to award specific performance. It has the right to take into account the conduct of the parties in determining the equities. I think that if the plaintiff ever had any basis for claiming title to the mechanical inventions, its conduct shut it off from the remedy of specific performance.
There remain for consideration the two applications Nos. 304,337 and 304,419.
The plaintiff has not seen these applications. I have examined them. It is clear that both are confined to mechanical inventions. For reasons already given, there can be no recovery by the plaintiff as to either invention.
In addition, there is no proof, and, of course, it is hardly conceivable that the plaintiff could make proof, that, within the sense of the contract, either application covered a future invention by the defendant Myers.
What I have said thus far disposes of the controversies on the merits as between the plaintiff and Mr. Myers. What about Mr. Dix?
What is the plain horse sense of this case as it affects Mr. Dix? It is undisputed that he was employed with the knowledge of the plaintiff. He filed the applications. He did the various things recited in his bills. This was at the inception. Since then he has pursued the matter for between five and six years. He took it up originally with the plaintiff. He did this before he had gone very far. The plaintiff replied, "I won't pay you anything. You must look to Mr. Myers."
It was on the basis of what the plaintiff itself stated that Mr. Dix has relied exclusively on Mr. Myers for compensation. On that *292 basis he accepted as security a transfer by Mr. Myers of a one-tenth interest in all the inventions.
It would be a gross injustice to any man, whether lawyer or layman, after a full disclosure by him of what he was doing, to allow him to suffer, and to leave him remediless, through taking away the subject-matter of his security without providing in some way that he be paid; without prescribing that he be paid as a condition to requiring him to transfer back that on which he relied as a security when he performed services; without attaching as a condition precedent to his execution of the transfer some effective means for his protection.
To the extent, therefore, that Mr. Dix shall be called on by a decree in this case to execute any documents, so as to clear the title of the plaintiff in the patent office to that which belongs to the plaintiff, in advance he must be paid, or arrangements be made to his satisfaction for payment of, fair compensation for the services which he has rendered and the fair amount of his disbursements in that connection. Unless the items be agreed on, there may be a reference to fix them.
This brings us to the final feature of the case. That is the form of the relief to the plaintiff in so far as concerns what I have described as the chemical inventions, with the incidents thereto as I have heretofore explained them.
On behalf of Mr. Myers it is urged that the contract does not obligate him to sign transfers of or to assign applications. If we deal with literal words only, that is true. The duty relating to the procurement of patents on the inventions imposed on Mr. Myers by the instrument was to take several definite steps appropriate to vest in the plaintiff evidence of ownership. That is all. Certain of the specified things to be done by him were executing application, testifying and furnishing information. The contract does not in express terms say, "When you have signed an application for an invention, you must thereupon also execute an assignment of the application." But it does say that the object is to vest in the plaintiff title to the inventions and to enable it to procure patents covering the inventions. I am inclined to think that the natural meaning of this, even though not stated in definite terms, is that Mr. Myers obligated himself to execute assignments of the applications. Whether that be so or not, however, it is plain beyond peradventure that the purpose was to assure the plaintiff enjoyment of ownership. With that in mind, in the absence of any contract obligation whatsoever, it is within the province of the court to require the defendant Myers to do all such things as may be essential to the exercise of ownership by the plaintiff.
This means that he should execute and deliver to the plaintiff such appropriate instruments as the plaintiff needs, so as completely to enjoy its ownership of the chemical inventions, with the incidents thereto, and so as completely to do the things in the further prosecution of applications for the patents thereon as it may desire to do in order to procure issuance of the patents. It means further that the documents placed in the hands of the plaintiff, duly executed by Mr. Myers, should be in such form as will enable the plaintiff to put on record in the patent office such evidence of its ownership as may be a warning to the world that the plaintiff is the owner of the inventions.
The decree, therefore, will provide:
First, Mr. Myers shall execute and deliver to the plaintiff assignments of applications Nos. 304,335 and 304,336 and patent No. 1,774,609, covering the chemical inventions, in suitable form for filing and recording in the patent office.
Second, upon the plaintiff paying to Mr. Dix, or to his satisfaction securing to him payment of, the reasonable value of his services and the reasonable amount of his disbursements in the prosecution of the applications for the chemical inventions, thereupon, in like way, he shall execute and deliver to the plaintiff suitable instruments assigning to the plaintiff the interest he may have in those inventions.
Third, unless there be agreement between the parties with respect to the amount which must be paid to Mr. Dix, or the payment of which to him must be secured to his satisfaction, there shall be a reference to ascertain the sum.
Fourth, the plaintiff has no right, as between itself and the defendants, in or to the mechanical inventions covered by applications Nos. 301,804, 304,337, and 304,419.
Fifth, an injunction, somewhat along the lines of the fourth subdivision of the prayer of the bill, sufficient to render the decree effective, shall issue.
Sixth, unless the parties otherwise agree, there shall be an accounting of any earnings on the chemical inventions which may have accrued to Mr. Myers.
Seventh, no costs shall be recovered.
Settle the decree on five days' notice.
NOTES
[1] No opinion filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264998/ | 329 Md. 263 (1993)
619 A.2d 105
WILLIAM LEE BEALES
v.
STATE OF MARYLAND.
No. 64, September Term, 1992.
Court of Appeals of Maryland.
February 5, 1993.
Martha G. Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief) Baltimore, for appellant.
Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for appellee.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
MURPHY, Chief Judge.
Maryland Rule 1-502 governing the impeachment of witnesses by evidence of a prior criminal conviction took effect January 1, 1992. It provides in pertinent part:
"(a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination, but only if the crime was an infamous crime or other crime relevant to the witness's credibility and the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.
"(b) Time Limit. Evidence of a conviction under this Rule is not admissible if a period of more than 15 years has elapsed since the date of the conviction."
The instant question is whether the trial court erred in admitting, as impeachment evidence, the theft conviction of a defense witness testifying at the appellant Beales's trial. More specifically, we must decide whether the conviction was admissible per se, or whether the rule required that the trial court first balance the conviction's probative value against its potential for unfair prejudice to the accused.
I
Beales was tried before a jury in the Circuit Court for Baltimore City on charges of battery and carrying a deadly weapon with intent to injure.[1] The State's principal witness, Sandra Herbert, testified that on the evening of September 3, 1990, while walking on the street with her companion, Tony Pevia, they were approached by Beales and two other men. She stated that Beales uttered a racial epithet, and thereafter stabbed her beneath the shoulder with a small knife. Herbert added that Beales then struggled with Pevia before running away. Officer Herman Janitzky testified that when he responded to the scene, he found Herbert bleeding from a half-inch puncture wound in the shoulder. Janitzky acknowledged that no knife was found either at the scene or in Beales's possession when he was arrested about ten minutes later.
Tina McGee, Beales's girlfriend, and Joseph Lambert, one of the two men accompanying him on the street, testified for the defense that they observed the altercation. They stated that Pevia initiated the struggle by attacking Beales, who passively shielded himself from the other man's punches while Herbert stood off to one side. Both defense witnesses stated that Beales did not have a knife during the incident.
Towards the end of the State's cross-examination of Lambert, the prosecutor asked him whether he had ever been convicted of a crime of dishonesty. Defense counsel's objection to the question was overruled, and the witness admitted that he had once been convicted of theft. At the ensuing bench conference, defense counsel said to the court:
"(A)s I understand the new rule [1-502] regarding the impeaching of a witness on prior convictions, my understanding is that the Court has to make some kind of determination, even crimes involving an element of dishonesty are not automatically impeachable anymore. The Court has to make a preliminary determination of whether the appropriate value of the evidence is outweighed by the prejudice or something, but there must be some preliminary determination regarding that conviction before Counsel can elicit those questions."
The prosecutor described defense counsel's view of Rule 1-502 as "hogwash," adding: "[T]he only thing that rule did was change that you could not do felony drugs anymore, that's the only thing. You can always attack bias."
The court's response and the subsequent testimony we set forth verbatim:
"THE COURT: "[T]his is a question of credibility. He's got a right to test his credibility and this is an appropriate question. Under the new rule, as amended, or under the prior rule, he asked the question properly. He has a right to put that information and the answer before the Jury. Overruled.
THE COURT: You may answer the question.
BY [the prosecutor]:
Q When was that, sir, when you were convicted of theft?
A I can't remember that. I don't know.
Q You don't remember?
A No. That's been, when I was about twenty years old and I'm thirty-four now.
Q Is that your only conviction of theft?
A Yes."
Beales was convicted of battery and sentenced to three years in prison. He appealed to the Court of Special Appeals, contending that the trial court erred when it refused to employ the balancing test required by Rule 1-502 before it admitted Lambert's theft conviction into evidence. We granted certiorari, prior to a determination by the intermediate appellate court, to consider the important issue raised in this case.
II
Before the advent of Rule 1-502, the law of impeachment by prior convictions was governed by Maryland Code (1973, 1989 Repl.Vol.) § 10-905(a) of the Courts and Judicial Proceedings Article, which provided in pertinent part: "Evidence is admissible to prove the interest of a witness ... or the fact of his conviction of an infamous crime." This Court's cases, notably our impeachment trilogy, explicate the statute. See Prout v. State, 311 Md. 348, 535 A.2d 445 (1988); Watson v. State, 311 Md. 370, 535 A.2d 455 (1988); and Wicks v. State, 311 Md. 376, 535 A.2d 459 (1988). Under the former law, a conviction of an infamous crime, i.e., one of the common-law felonies or one of the crimen falsi, was admissible per se for impeachment purposes. Prout, supra, 311 Md. at 360, 535 A.2d 445. The admissibility of convictions for other, lesser crimes bearing on a witness's credibility was left to the discretion of the trial court. Id. at 363, 535 A.2d 445. Convictions for non-infamous crimes which do not bear upon the witness's propensity to be truthful under oath were not admissible. Id.
As used in Rule 1-502, the concept of an infamous crime retains its traditional meaning. Crimes historically classified as crimen falsi include crimes in the nature of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on the witness's propensity to testify truthfully. Wicks, supra, 311 Md. at 382, 535 A.2d 459. As it is the embodiment of deceitfulness, theft is among the crimen falsi. See id. at 382-383, 535 A.2d 459; Horne v. State, 321 Md. 547, 556, 583 A.2d 726 (1991). Therefore, Lambert's prior conviction of theft qualifies as one of the crimen falsi embraced within the larger category of infamous crimes.
The dispositive issue before us thus turns on the extent to which the rule requires the trial court to weigh the probative value of a conviction in regard to a witness's credibility against the prejudicial effect of such evidence. The State argues that Rule 1-502(a) requires automatic admission of evidence of conviction when an infamous crime is used to impeach, and that the discretionary balancing test of probativeness and prejudice is reserved only for other crimes relevant to credibility. In this regard, the State relies upon that principle of statutory construction pursuant to which a qualifying clause ordinarily is confined to the immediately preceding words or phrase, especially absent a comma before the qualifying language. Sullivan v. Dixon, 280 Md. 444, 451, 373 A.2d 1245 (1977). By such a construction, the language requiring the court to perform a preliminary balancing test would apply only to the immediately preceding words, i.e., "or other crime relevant to the witness's credibility," but not to an infamous crime. The State also asserts more broadly that the rule should be interpreted in a manner consistent with prior law governing impeachment, where evidence of a conviction for an infamous crime was automatically admissible on a per se basis. See Horne, supra, 321 Md. at 556, 583 A.2d 726; Wicks, supra, 311 Md. at 383, 535 A.2d at 459; Prout, supra, 311 Md. at 360, 535 A.2d 445.
We share Beales's view, however, that the new rule now requires a preliminary determination of probativeness and potentially unfair prejudice for all convictions used to impeach credibility. Both its plain language and the legislative history underlying its adoption dispel any doubt as to the operation of Rule 1-502(a).
Our cases hold that the canons and principles of construing statutes apply equally to the interpretation of this Court's rules. State v. Romulus, 315 Md. 526, 533, 555 A.2d 494 (1989); accord In re Leslie M., 305 Md. 477, 481, 505 A.2d 504 (1986). It is well settled that in construing a statute or rule to ascertain and effectuate its goal, our first recourse is to the words of the rule, giving them their ordinary and natural import. NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764 (1988); Comptroller v. Fairchild Industries, 303 Md. 280, 284, 493 A.2d 341 (1985). Here, we understand the phrase in Rule 1-502(a) "but only if the crime was an infamous crime or other crime relevant to the witness's credibility" to function as a single, integral component of that rule. The language flows most naturally when read without a pause; and we also observe that there is no comma before the word "or" that might otherwise dictate one treatment for infamous crimes and a different treatment for other crimes. As such, the qualifying language that spells out the requisite balancing of probative value versus danger of unfair prejudice naturally modifies the entire component that precedes it. The balancing test applies equally to infamous crimes and to other crimes bearing on credibility.
Apart from the language itself, all available documentation of the rule's creation supports the same result. Rule 1-502 was originally proposed in another form to the Court by its Standing Committee on Rules of Practice and Procedure. The Committee had earlier developed a sequence of drafts in response to our suggestion in Wicks, supra, 311 Md. at 384, n. 5, 535 A.2d 459, that a formal rule in this area would be appropriate. While the draft proposals frequently changed shape as to both form and substance, the Committee's preference for a broadly-applied balancing test remained constant throughout. Its initial version subjected impeachment by infamous crimes and other crimes relevant to credibility to the probativeness-prejudice test in criminal cases. See the Minutes of the Rules Committee, meeting of April 22-23, 1988, at 30-31. The Committee later described the then-existing law of impeachment as "dangerously inflexible in its mandate" that convictions for all infamous crimes must be admitted per se into evidence. Minutes of the Rules Committee, meeting of September 7-8, 1990, at 5.
In its 113th Report, the Rules Committee proposed an impeachment rule in which the balancing test stood apart as a separate, limiting element of the rule that reached all convictions. See 17 Maryland Register 2722-2723 (November 16, 1990). This feature remained intact in the subsequent proposal made in the Committee's 117th Report. See Minutes of the Rules Committee, meeting of May 17-18, 1991, at 4-5; and 18 Maryland Register 1907 (August 23, 1991). Most decisively, the scope of Rule 1-502(a) was expressly considered at the public meeting conducted by the Court on October 24, 1991, immediately prior to final adoption of the current rule. Our review of that discussion, preserved on audio tape, leaves no doubt that the rule aims to impose a weighing of probative value against unfair prejudice for all convictions used to impeach.[2]
In sum, new Rule 1-502(a), by design, differs from earlier Maryland law in that it abandons every vestige of per se admissibility regarding evidence of prior convictions for the purposes of impeachment. A trial court must first test all such evidence that a witness has been convicted of an infamous crime or other crime bearing on credibility, balancing its probativeness against its potential for unfair prejudice to the witness or to the objecting party. The rule is thus more lenient to the objecting party than its federal counterpart, which permits automatic admission of impeaching convictions for crimes that involve dishonesty or false statement. See Fed.R.Evid. 609(a)(2). The establishment of the rule falls fully within the Court's power to "regulat[e] ... the admissibility of evidence in all cases, including criminal cases." See Maryland Code (1973, 1989 Repl.Vol.) § 1-201(a) of the Courts and Judicial Proceedings Article. To the extent that Rule 1-502(a) is inconsistent with the impeachment statute, § 10-905 of the Courts and Judicial Proceedings Article, the rule of this Court prevails. See Maryland Rule 1-201(c) (rules do not supersede common law or statutes unless inconsistent with them); Johnson v. Swann, 314 Md. 285, 289, 550 A.2d 703 (1988) (Maryland Rules generally apply despite a prior statute to the contrary and until a subsequent statute would repeal or modify them).
III
Turning to the facts in this case, we think that the trial court did not adequately conduct a balancing of Lambert's 14-year-old theft conviction in terms of the light it might shed on his truthfulness against its potentially unfair prejudice to Beales's defense. In so deciding, we are conscious of the strong presumption that judges properly perform their duties. Schowgurow v. State, 240 Md. 121, 126, 213 A.2d 475 (1965). We also recognize that trial judges are not obliged to spell out in words every thought and step of logic, and that the trial court did refer to "the new rule" and "the prior rule."
Nevertheless, when viewed as a whole, the trial court's elliptical remarks do not sufficiently demonstrate that it assessed the relative weights of probative value and prejudicial danger. First, the trial court focused largely on the proper form of the impeaching question, rather than on its possible impact. Second, the trial court insisted that the State had a "right" to inform the jury of Lambert's conviction, a word that suggests obligatory admissibility of the evidence, rather than discretionary admissibility based on the balancing test. Third, the trial court admitted the evidence knowing only that Lambert had been convicted of theft, but not knowing when he had been convicted; Lambert testified that his conviction was fourteen years old only at the very end of the exchange, after the trial court had ruled. The remoteness of a prior conviction is a critical factor to be weighed in the balance. Here it was not.
Even more tellingly, new Rule 1-502(b) places a cap of fifteen years on prior convictions used to impeach. Had Lambert's conviction been sixteen years old, it would have been barred altogether by the new rule. The court's failure to ascertain the vintage of the conviction before deciding the question indicates strongly that it adhered to the former law of impeachment permitting per se use of convictions of infamous crimes no matter how remote. We deduce that the trial court let in the evidence solely because Lambert had been convicted of theft, a crimen falsi and an infamous crime, as was proper under the old impeachment statute. The record thus demonstrates that the trial court was not yet familiar with, and did not appropriately apply, the new rule that had gone into effect only the week before.
IV
When an appellant in a criminal case establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless. Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976). At the trial, the prosecution and the defense presented dramatically different accounts of the incident leading to Beales's arrest. The relative validity of those accounts depended largely on the credibility of the witnesses. Lambert was a primary defense eye-witness, the observer closest to the scene of the altercation involving Herbert, Pevia, and Beales; he testified that he saw the event from start to finish. Lambert's credibility was tainted, to a degree we cannot specify without speculating, by evidence that he was a convicted thief. The State in its closing argument reminded the jury of that fact by saying: "Judge Mr. Lambert. He told you he was convicted of theft. Why is that important? Not because he did it, but because he's been [Beales's] friend for ten years and maybe he's not telling the truth." Reviewing the record before us, we cannot say beyond a reasonable doubt that evidence of Lambert's theft conviction did not sway the jury that found Beales guilty of battery.
JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR A NEW TRIAL. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.
NOTES
[1] The trial commenced on January 9, 1992, eight days after Rule 1-502 took effect.
[2] We transcribe here the pertinent parts of the October 24, 1991, audio tape:
McAuliffe, J.: "I move that we delete [other proposed language] so that it reads `but only if the crime was an infamous crime or other crime relevant to the witness's credibility,' the effect of which would be to preserve the existing law concerning what crimes are available for impeachment, except to add to it a weighing and balancing in every instance...."
Karwacki, J.: "I second that."
Chasanow, J.: "I'll accept it as an amendment."
* * * * * *
Chasanow, J.: "Everything gets weighed...."
Bell, J.: "That's right. That simplifies everything."
* * * * * *
Murphy, C.J.: "Is it clear that the weighing is going to go to both of these?"
Chasanow, J.: "There's only one component. The weighing goes to every crime; every crime that's admissible gets weighed."
* * * * * *
McAuliffe, J.: "There's no comma in there. The weighing is intended to apply to infamous and other crimes." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264999/ | 54 Cal. App. 4th 625 (1997)
STATE FARM FIRE AND CASUALTY COMPANY, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RODERICK TAYLOR et al., Real Parties in Interest.
Docket No. B106120.
Court of Appeals of California, Second District, Division Four.
April 22, 1997.
*630 COUNSEL
Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, Anthony E. Shafton, G. Arthur Meneses, Robie & Matthai, James R. Robie and Pamela E. Dunn for Petitioners.
No appearance for Respondent.
Kick & Bernheim, Daniel O'Leary and Bernie Bernheim for Real Parties in Interest.
Latham & Watkins and Barbara A. Caulfield as Amici Curiae.
OPINION
HASTINGS, J.
At issue in this case is "the preservation of public trust in the scrupulous administration of justice and the integrity of the bar." (In re Complex Asbestos Litigation (1991) 232 Cal. App. 3d 572, 586 [283 Cal. Rptr. 732].)
*631 The subject of this proceeding is an order of the trial court granting disclosure of information, some of which falls within the attorney-client and work product privileges, developed by the defense during litigation. We conclude that substantial evidence supports a finding of a prima facie case establishing the crime/fraud exception to the attorney-client privilege and that the same evidence establishes good cause for disclosure of work product and trade secret information. We therefore deny the petition for writ of mandate filed by State Farm Fire and Casualty Company (State Farm).
STATEMENT OF FACTS
On September 21, 1995, real parties in interest, Roderick and Krista Taylor, filed suit against State Farm, several insurance brokers and current and former State Farm agents (the Taylor Action). In their second amended complaint, real parties allege that in 1983, State Farm, through its agent Harry Gelpar, issued a homeowners insurance policy to them, which they believed contained earthquake coverage for their Sherman Oaks residence. The policy was annually renewed and remained in force through the filing of the action. In 1990, real parties asked their insurance brokers, Cass, Roden and E. Broox Randall & Sons, to prepare a schedule of insurance coverage for their properties. The schedule, dated November 1, 1990, stated that earthquake coverage existed for their Sherman Oaks residence. After their real property had been significantly damaged in the January 17, 1994, Northridge earthquake, real parties filed a claim with State Farm. State Farm denied the claim on the basis that the policy did not include earthquake coverage. Real parties allege that State Farm and its agents participated in fraudulent misrepresentation regarding the coverage afforded. In addition, it is alleged that State Farm did not comply with Insurance Code section 10081 et seq. which requires that the company notify insureds that they do not have earthquake coverage and offer to sell it to them.[1] Real parties seek damages against State Farm based upon breach of contract, negligent misrepresentation, negligence, negligence per se and common law and statutory bad faith theories.
*632 State Farm retained the law firm of Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (the Berger Firm) to defend it in the Taylor Action.
At the time the action was filed, Amy Girod Zuniga was employed by State Farm as a claims specialist in the "Suits Against the Company" unit, later renamed the "Litigation Unit." Her unit was utilized as the contact within the company through which State Farm's outside attorneys could communicate with the company regarding suits against the company. Her responsibilities included evaluating bad faith claims against State Farm, responding to discovery in those actions, monitoring the litigation, and advising the company and outside counsel which witnesses from State Farm would be appropriate for testimony at trial or in depositions. She was assigned these duties in connection with the Taylor Action. In this capacity she communicated with outside counsel and other State Farm employees, aided outside counsel in gathering the necessary documentation to respond to discovery, and personally verified over 20 sets of discovery responses.
Extensive discovery was undertaken. Real parties served a number of requests to produce documents on State Farm. Among the items sought were documents reflecting State Farm practices in handling applications for issuance of insurance, manuals and documents instructing how claims were to be handled, and documents which evidenced how State Farm complied with Insurance Code sections 10083 and 10086.1 notice requirements. Interrogatories were served requesting information on the same subjects. State Farm interposed numerous objections to these discovery requests but did provide some of the information requested.
Because Amy Zuniga had verified responses to various items of discovery, real parties took her deposition. The questions focused on her role at State Farm in gathering information to respond to the various items of discovery. During the deposition, which was taken before a discovery referee, State Farm interposed numerous objections to questions it believed infringed upon the attorney-client and work product privileges. The referee instructed counsel for real parties and the witness to avoid privileged subjects, although Ms. Zuniga was directed to answer questions eliciting factual information.
Real parties also noticed the deposition of the person at State Farm "most qualified on the subject of the reasons why [real parties'] claim for coverage for losses arising out of the January 17, 1994 earthquake was denied...." That person was requested to produce documents at the deposition, including the following: "13. The State Farm ... claims manual as it existed on the date the [real parties] made their claim for damages to the PROPERTY arising *633 out of the January 17, 1994 Northridge earthquake. [¶] 14. ALL DOCUMENTS evidencing, in whole or in part, State Farm's policies and procedures for handling residential damage claims relating to the January 17, 1994 Northridge earthquake, including but not limited to bulletins, memoranda, manuals, and portions of manuals." State Farm designated Karen Nicholson as the person to be deposed and objected to production of the documents requested. Her deposition was also conducted before the discovery referee, who ordered that the referenced documents be produced at the next session of Ms. Nicholson's deposition. They were not produced; instead, she testified that no such documents existed.
Ms. Nicholson identified Toni Hotzel as the State Farm claims specialist who had investigated and denied the claim of real parties. Ms. Hotzel's deposition was noticed and taken. During the second portion of her deposition she was evasive and failed to confirm whether she had signed and sent two letters, one of which notified real parties that their claim was denied. She also failed to authenticate a tape recording she made during her investigation of the claim.[2]
*634 On July 19, 1996, State Farm filed a motion for summary judgment. It presented evidence to establish that it had no involvement in the 1990 broker prepared schedule of insurance and argued that it was not responsible for any misrepresentations that real parties were covered for earthquake damage. Additionally, it presented evidence that it had satisfied its statutory duties to mail earthquake offers and notices to real parties. In support of the latter point it presented evidence that it used an automatic insertion machine to comply with all notices required by the Insurance Code. The evidence was presented through the declarations of Richard Churik, operator of the automatic insertion machine, and Charles G. Hook.
In opposition, real parties sought to file a third amended complaint. They alleged that State Farm's agent, Harry Gelpar, or his employee, forged real parties' signatures on the original of their application for insurance. In connection with this argument they presented the declaration of a handwriting expert who opined that the signature purporting to be that of Rod Taylor was not his signature. However, discovery was still ongoing and he requested further exemplars of handwriting in support of his opinion. The third amended complaint also alleged that State Farm had destroyed evidence relating to the initial issuance of the policy and of claims procedures and policies in connection with handling of earthquake claims and, more particularly, real parties' claim.
Real parties made similar assertions in opposition to the motion for summary judgment. They asserted that State Farm had not kept the original copy of their application for insurance and other connected papers. They also presented the declaration of Samantha Bird, a past employee of State Farm, who stated that in 1990 the company adopted a policy of destroying documents which might be discoverable in litigation against it: "The memorandum I wrote instructed my claims personnel to destroy documents so they could not be used against the Company in bad faith litigation.... [I]n writing this memorandum, and in directing my claims personnel to destroy *635 potential evidence against us, I was at all times following the instructions of my superiors at the Company."[3]
Real parties also contended that State Farm was manufacturing evidence. They provided the declaration of Linda Crisafulli, a business manager for real parties, who questioned the authenticity of the declarations page filed in connection with the motion for summary judgment to prove that earthquake coverage was not afforded to real parties. She pointed out that the declarations page identified the Small Business Administration as a mortgagee on the Sherman Oaks property, a curious listing because it was only after the earthquake that real parties had obtained a loan from the Small Business Administration.
The court took the motions under submission, and on August 28 it denied the motion to amend and granted State Farm's motion for summary judgment.
Real parties moved for reconsideration of both motions. In support of their request, they attached two declarations from Amy Zuniga, by then an ex-employee of State Farm. She identified her background with State Farm and the fact that she had worked on the Taylor Action while employed by State Farm. She declared that State Farm had not been fully compliant in responding to discovery requests in the Taylor Action; she disclosed in-house litigation strategy in connection with document disclosure and witness preparation; and she reiterated conversations with other State Farm employees and inside and outside counsel relating to discovery and litigation *636 strategy. One of these conversations was with Richard Churik, operator of the automatic insertion machine, during which he allegedly raised questions about the reliability of the machine.
State Farm's counsel immediately initiated a conference call to the trial court, asserted that the information contained within Ms. Zuniga's declarations was privileged and requested a protective order. The court refused to issue the order over the telephone but invited counsel to chambers the next morning to discuss the matter.
The next morning, October 3, the parties appeared and State Farm requested a protective order sealing Ms. Zuniga's declarations and prohibiting real parties' counsel from disseminating any information he had learned from Ms. Zuniga. It also sought to preclude counsel from making further inquiries of Ms. Zuniga on the same issues and requested an order sealing all documents filed in connection with the hearings. The court granted the requests pending further hearings. Over the next few days the parties filed documents in support of and in opposition to the requested protective orders. On October 8, all parties were again before the court.
Real parties took the position that State Farm was guilty of fraud in the original issuance of the policy and that it was perpetuating the fraud by the manner in which it was conducting its defense of the Taylor Action. They asserted that the crime/fraud exception precluded application of the attorney-client privilege. In support of this argument, real parties referenced the evasive deposition testimony of Toni Hotzel and the failure of Ms. Nicholson to produce claims manuals at her deposition, despite being ordered to do so by the referee. They referred to portions of Ms. Zuniga's declarations and argued that State Farm has a company policy of preparing witnesses to be evasive during depositions and that Ms. Nicholson did have documents in her possession responsive to the document request, proving that Ms. Nicholson lied at her deposition. Real parties also provided documentation from other State Farm litigation and their counsel argued that this case was not an isolated incident: "And you know, before I go any further, though, into what that is and what the evidence of State Farm's global conduct is in this regard not just in our case, but in Martin versus State Farm and Singh versus State Farm, in Campbell versus State Farm, in Utah and a lot of other cases this has to start coming out. The the judicial branch has to put a stop to it." Real parties also urged that much of the information within Ms. Zuniga's declarations was factual material not protected by any asserted privilege.
State Farm took the position that all of its conduct during discovery was appropriate and that most of what Ms. Zuniga declared merely demonstrated *637 a misunderstanding of what had occurred during discovery. It asserted that everything Ms. Zuniga knew was learned as an employee within the suits against company unit and should be protected.
The court noted that it had read every line of each of the Zuniga declarations, had analyzed the declarations, and was familiar with the underlying discovery issues raised by real parties, including the Hotzel deposition. The matter was submitted and later that same day the court vacated the temporary protective order and ordered all of the documents unsealed.
The next day, State Farm requested a temporary stay of the order pending appellate review. The request was denied. State Farm petitioned this court for a writ of mandate or prohibition. Because at least some of the information ordered released is privileged material, we issued a temporary stay, requested preliminary opposition, and ultimately issued an alternative writ. (Roberts v. Superior Court (1973) 9 Cal. 3d 330, 336 [107 Cal. Rptr. 309, 508 P.2d 309]; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal. App. 3d 1240, 1249 [245 Cal. Rptr. 682].) We now turn to the merits of the claims.
DISCUSSION
(1a) First, before we turn to a discussion of the various privileges, we note that this matter is before us solely on the issue of the protective order sought in the trial court. State Farm requested that the court issue an order "precluding Plaintiffs' counsel, their agents and employees: [¶] (1) from disseminating to any third parties any information protected by the attorney-client privilege, the attorney work product doctrine or trade secret laws that plaintiffs' counsel learned or otherwise obtained from Amy Zuniga; [¶] (2) from inquiring further of Amy Zuniga about any matters protected by the attorney-client privilege, the attorney work product doctrine, or trade secret laws; and [¶] (3) from filing any documents in this Court relating to protected information obtained from Amy Zuniga, except under seal."
Next, we must comment upon an argument made by State Farm to the trial court, and suggested in its argument before us: that because Ms. Zuniga worked exclusively within the suits against company unit, everything she learned about State Farm is privileged from disclosure. The argument was presented to the trial court as follows: "Amy Zuniga's entire responsibility while working in the Suits Against the Company ('SAC') unit was to interface between attorneys and the rest of State Farm Fire & Casualty Co. Her duties involved collecting information from attorneys to convey to higher-ups at State Farm, and collecting information from employees of *638 State Farm to convey to the attorneys. She had no duties other than to support the attorneys who were representing State Farm, and advise State Farm of what the attorneys were doing and recommending. [¶] In her role, there was nothing which Zuniga learned which was not directly part of an attorney-client communication.... [¶] Thus, everything which Ms. Zuniga learned during her career in SAC was attorney client communication (in that she procured the information at the request of an attorney for the purpose of conveying to the attorney) or attorney work product (as it was part of a discussion of the attorney's impressions, conclusions, opinions, or legal research, or theories.) Accordingly, the Protective Order should be granted, and the Declarations should be stricken in their entirety." (Italics added.)
While the evidence supports a conclusion that much, if not all, of the factual information Ms. Zuniga retains relating to her employment was learned while involved in litigation matters with State Farm, we cannot conclude that this precludes disclosure of relevant, nonprivileged, information she may have. State Farm cites to no authority establishing any such policy. An admonition within Weil and Brown, California Practice Guide: Civil Procedure Before Trial 1 (The Rutter Group 1996) paragraph 1:589, page 1-124, appears on point here: "In most actions against an organization, its former officers and employees are the best available source of information to opposing counsel. If willing to cooperate, they may provide information otherwise shielded from discovery under privacy or attorney-client privilege!"
THE ZUNIGA DECLARATIONS
The Attorney-client Privilege
"Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: [¶] (a) The holder of the privilege; [¶] (b) A person who is authorized to claim the privilege by the holder of the privilege; or [¶] (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure." (Evid. Code, § 954.)
"As used in this article, `client' means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing the legal service or advice from him in his professional capacity...." (Evid. Code, § 951.)
*639 (2) When a party asserts the attorney-client privilege it is incumbent upon that party to prove the preliminary fact that a privilege exists. (Mahoney v. Superior Court (1983) 142 Cal. App. 3d 937, 940 [191 Cal. Rptr. 425].) Once the foundational facts have been presented, i.e., that a communication has been made "in confidence in the course of the lawyer-client ... relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential," or that an exception exists. (Evid. Code, § 917; BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal. App.3d at p. 1262.)
(1b) We have no doubt that Ms. Zuniga was an "authorized representative" of State Farm within the meaning of Evidence Code section 951 for application of the privilege. (3) "It is no less the client's communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both." (City & County of S.F. v. Superior Court (1951) 37 Cal. 2d 227, 236 [231 P.2d 26, 25 A.L.R. 2d 1418]; see also People v. Lines (1975) 13 Cal. 3d 500 [119 Cal. Rptr. 225, 531 P.2d 793]; and In re Ochse (1951) 38 Cal. 2d 230, 232 [238 P.2d 561].) (1c) However, the attorney-client privilege only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication. (Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal. App. 4th 996, 1004-1005 [22 Cal. Rptr. 2d 862].)
Therefore, to the extent that Ms. Zuniga has knowledge about the practices and procedures of State Farm, or the existence of claims manuals and other documents which are normally utilized by State Farm in the operation of its business, the information is not privileged. (Holm v. Superior Court (1954) 42 Cal. 2d 500, 511 [267 P.2d 1025], disapproved on another point in Suezaki v. Superior Court (1962) 58 Cal. 2d 166, 176 [23 Cal. Rptr. 368, 373 P.2d 432, 95 A.L.R. 2d 1073]; S.F. Unified Sch. Dist. v. Superior Court (1961) 55 Cal. 2d 451, 457 [11 Cal. Rptr. 373, 359 P.2d 925, 82 A.L.R. 2d 1156].) Also, it would not be a violation of the attorney-client privilege for Ms. Zuniga to divulge that such documents exist but were not produced in connection with the Taylor Action, although to divulge a conversation to that effect or the fact that such information had been delivered to an attorney, would violate the privilege. (People v. Lee (1970) 3 Cal. App. 3d 514, 526 [83 Cal. Rptr. 715] ["... the fact that the client delivered ... evidence to his attorney may be privileged, the physical object [or information] itself does not become privileged merely by reason of its transmission to the attorney."].)
*640 Nor does the attorney-client privilege protect independent facts related to a communication; that a communication took place, and the time, date and participants in the communication. (Coy v. Superior Court (1962) 58 Cal. 2d 210, 219-220 [23 Cal. Rptr. 393, 373 P.2d 457, 9 A.L.R. 3d 678].) In addition, the fact that an attorney has retained one or more independent agents to aid the attorney in connection with the litigation does not automatically qualify information discovered by the agents for protection by the privilege. (People ex rel. Dept. of Public Works v. Donovan (1962) 57 Cal. 2d 346, 354-355 [19 Cal. Rptr. 473, 369 P.2d 1]; People ex rel. Dept. Pub. Wks. v. Cowan (1969) 1 Cal. App. 3d 1001, 1004 [81 Cal. Rptr. 713]; Grand Lake Drive In v. Superior Court (1960) 179 Cal. App. 2d 122, 125-126 [3 Cal. Rptr. 621].)
(4) With the foregoing legal principles in mind, we now review the specific items asserted to fall within the attorney-client privilege, along with the evidence presented by State Farm, to determine whether a prima facie case of privilege has been established. We will not take into consideration the actual privileged information in aid of our determination. (Evid. Code, § 915; Shannon v. Superior Court (1990) 217 Cal. App. 3d 986, 995 [266 Cal. Rptr. 242].) To the extent necessary, we will identify the subject matter covered in each of the challenged paragraphs, but without disclosing the privileged communication. (Coy v. Superior Court, supra, 58 Cal.2d at p. 219.)
State Farm asserts the attorney-client privilege to paragraphs 3 and 4 of the September 19 Zuniga declaration and to numerous paragraphs of her September 25 declaration, which we will identify in the following discussion.
In paragraph 3 and 4 of the September 19 declaration and paragraphs 14, 15, 18, and 23 of the September 25 declaration, Ms. Zuniga references conversations with various people within State Farm. State Farm objects to each paragraph to the extent that counsel may have been present during the conversation or that the conversations were at the direction of counsel to pass on legal advice. For example, with regard to paragraph 3 of the September 19 declaration, Amy Zuniga declares that she received instructions "not to provide certain relevant information at my depositions." (See post, p. 648.) State Farm argued: "it is impossible to determine who `instructed' Zuniga concerning her deposition testimony. It is likely that any such `instruction' was made by State Farm's counsel. As such, the communication is privileged." (Italics added.) The objections to the other paragraphs are of a similar nature.
As previously noted, it is the duty of the party asserting the privilege to present evidence which establishes the existence of a communication *641 that falls within the privilege. (Mahoney v. Superior Court, supra, 142 Cal. App.3d at p. 940.) In connection with the request for protective order, and in reply to the memorandum of authorities submitted by real parties, State Farm presented the declarations of Vanessa Gudelj and John Poptanich, each a supervisor of Amy Zuniga. G. Arthur Meneses, an attorney within the Berger Firm who had the primary responsibility for working with Ms. Zuniga, also provided two declarations. Mr. Meneses declared that he worked with Ms. Zuniga in preparation for her deposition, but that he did not advise her "to conceal relevant, non-privileged, discoverable information at her deposition or at any other time." Ms. Gudelj declared that she spoke with Ms. Zuniga prior to her deposition and gave her instructions on how to respond, but she does not state that she did so at the request of counsel. Mr. Poptanich also fails to establish that any conversations referenced in any of the subject paragraphs were at the direction of counsel. Therefore, State Farm has failed to demonstrate that any of these referenced communications fall within the attorney-client privilege.
Paragraph 5[4] refers to statements made to Ms. Zuniga by Richard Churik, the operator of the automatic insertion machine, "and others" at State Farm. State Farm fails to supply any information which would place the asserted communications within the scope of attorney-client privilege.
Paragraphs 6, 7, 9 and 10 refer to inspections Ms. Zuniga made of the automatic insertion machine system (the AIM system) with Richard Churik, underwriter Charles G. Hook, Attorney G. Arthur Meneses of the Berger Firm, and a consultant by the name of Don Winslow. No specific communications are referenced in paragraph 6, only factual information that meetings took place, the subject matter of the meetings, and who was present. Therefore, the information is not privileged. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 219-220.) Paragraphs 7, 9 and 10 recount observations by Ms. Zuniga and conversations in the presence of Mr. Meneses during the inspections referred to in paragraph 6. This presumptively brings the conversations within the attorney-client privilege. (City & County of S.F. v. Superior Court, supra, 37 Cal.2d at p. 236.) However, Ms. Zuniga's observations, independent of the conversations, would not be privileged.
Paragraph 11 reiterates a statement made by Ms. Zuniga to Mr. Meneses regarding her individual experience as a State Farm policyholder, to which he did not reply. It is apparent from the context that she was attempting to pass on information to him relevant to the Taylor Action. Therefore, this conversation would be privileged, but her independent knowledge learned as a policyholder of State Farm would not be. (Aerojet-General Corp. v. Transport Indemnity Insurance, supra, 18 Cal. App.4th at pp. 1004-1005.)
*642 Paragraph 12 references a conversation between Mr. Meneses and Ms. Zuniga regarding the discovery of documents in connection with the automatic insertion machine. The first two sentences of the paragraph are not privileged because they merely relate factual information. (Aerojet-General Corp. v. Transport Indemnity Insurance, supra, 18 Cal. App.4th at pp. 1004-1005.) A portion of the paragraph reiterates information obtained by Ms. Zuniga from the operator of the automatic insertion machine, Richard Churik. It appears from the context that Ms. Zuniga obtained this information in order to pass it on to Mr. Meneses; therefore the communication would be privileged. (City & County of S.F. v. Superior Court, supra, 37 Cal.2d at p. 236.)
The last phrase within paragraph 16 contains a comment from Mr. Meneses about a telephone conversation between Ms. Zuniga and State Farm employees John Bishop, Sandra Hobbs, Vanessa Gudelj and John Poptanich, which occurred in 1996. Mr. Meneses was not a party to the call. What was said between Mr. Meneses and Ms. Zuniga about the conversation is privileged. However, the remainder of the paragraph is not privileged because it merely sets out factually that a conversation occurred and among whom. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 219-220.)
Paragraph 17 reports the conversation referenced in paragraph 16. State Farm again relies upon the argument that the conversation may have occurred "at the request of counsel" or "Mr. Bishop was communicating to his subordinates legal advice of counsel...." No evidence is presented to support this speculation.
Paragraph 22 describes a conversation with David Tannenbaum, a company employee in the "Discovery Unit," about how Ms. Zuniga was to respond to discovery in earthquake cases. State Farm presents evidence that Mr. Tannenbaum is an in-house attorney who works on discovery matters in pending litigation cases. This establishes a presumption that the communication is privileged.
Paragraph 24 references memoranda Ms. Zuniga prepared in connection with the discovery requests. The first sentence, identifying the fact that she prepared memoranda, is not privileged. However, the second sentence is. (People v. Lee, supra, 3 Cal. App.3d at p. 526.)
The last sentence of paragraph 25 indicates that Ms. Zuniga spoke with Mr. Meneses, again with regard to specific discovery requests relating to the automatic insertion machine. All but the last sentence is factual material about what items were requested during discovery but not produced. That *643 portion is not privileged. We agree that the last sentence of the paragraph falls within the attorney-client privilege.
Paragraphs 31 and 32 set forth facts about the retention of "professional witness consultants" and how they are utilized by State Farm to prepare employees for testimony during depositions and trial. State Farm objects that "the conversations between counsel for State Farm's consultants and State Farm employees constitute confidential communications made in the course of the attorney-client relationship." Mr. Meneses declares: "To the extent Ms. Zuniga participated in witness preparation meetings, the only persons present were myself, a consultant (if retained) the witness, and a member or members of the suits against the company unit.... The consultants she mentions in paragraph 31 in the past have been retained by my firm in connection with litigation in which I was representing various clients on different cases. To the extent these consultants were retained, they were retained for my benefit to assist me in my representation of my client." At least some of this information discloses communications which appear to have arisen in a privileged setting.
Paragraph 33 references communications between Don Winslow and Charles Hook in preparation for Hook's deposition. There is no evidence presented which suggests that these communications took place with counsel present or at the request of counsel for State Farm, although Mr. Winslow has been described in the documentation as a consultant retained by counsel for State Farm. We will assume that this item is privileged.
In summary, we conclude that portions of paragraphs 7, 9, 10, 11, 12, 16, 24 and 25, and all of paragraphs 22 and 31-33, fall within the attorney-client privilege. The remainder do not so qualify.
The Crime/Fraud Exception
(5a) Evidence Code section 956 is the so-called crime/fraud exception: "There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud."
(6) "To invoke the Evidence Code section 956 exception to the attorney-client privilege, the proponent must make a prima facie showing that the services of the lawyer `were sought or obtained' to enable or to aid anyone to commit or plan to commit a crime or fraud. [Citation.]" (BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal. App.3d at p. 1262.) One application of this exception is illustrated by the facts in BP Alaska.
*644 Nahama & Weagant Company (NWEC) approached BP Alaska Exploration, Inc. (BPAE) with a proposal that they join a large scale oil exploration venture on land controlled by Tenneco Oil Company. In connection with the offer, NWEC delivered what it contended was confidential information about the project. Ultimately, BPAE declined to join with NWEC but did form an agreement with Tenneco directly. NWEC wrote to BPAE seeking an explanation of BPAE's exclusion of NWEC from the exploration agreement. Because of the threat of litigation, BPAE asked its in-house counsel and outside counsel to assist in an investigation to be able to respond to the letter from NWEC. During the investigation, outside counsel and in-house counsel each provided reports to BPAE which were utilized in forming a reply to NWEC. Ultimately, NWEC filed suit against BPAE and sought discovery from BPAE about its investigation of NWEC's claim, including the reports and communications between BPAE and its in-house and outside counsel. It was argued that these communications were utilized in framing the letter ultimately sent to NWEC which was alleged to contain misrepresentations. (199 Cal. App.3d at pp. 1247-1249.) The Court of Appeal concluded "that NWEC made a prima facie showing that BPAE sought its attorney's services to assist in the commission or planning of a fraud by making misrepresentations of fact aimed at discouraging NWEC from pursuing its claims." (Id. at p. 1269.)
(5b) Here, contrary to the facts in BP Alaska, there is no evidence in the record that State Farm retained the services of the Berger Firm in connection with the underlying subject matter of the Taylor Action, the claimed fraud in issuance of the policy. Instead, the record reflects that the Berger Firm was only retained to defend State Farm after it was sued by the Taylors. On its face, this falls within the traditional application of the attorney-client privilege in a litigation setting; the client has already committed an alleged crime or a civil fraud and retains the attorney to provide a defense to the action. The information exchanged between the attorney and the client is totally privileged, even if the client confesses the wrongdoing to the attorney.
Real parties argue that wrongful tactics utilized by State Farm in defending the litigation fall within the exception because they continue the original fraud, which forms the basis of the suit, and also constitute a fraud upon the court. They contend that the actions of State Farm violate a number of criminal statutes: Penal Code sections 118 (perjury); 127 (subornation of perjury); 132 (offering forged or altered documents); 134 (preparing false documentary evidence); and 135 (destroying or concealing documentary evidence).
We believe that extreme caution must be exercised when an accusation is made which will invade the attorney-client relationship in connection with *645 ongoing litigation. Such consideration was afforded in the cases of People v. Superior Court (Bauman & Rose) (1995) 37 Cal. App. 4th 1757 [44 Cal. Rptr. 2d 734] and Geilim v. Superior Court (1991) 234 Cal. App. 3d 166 [285 Cal. Rptr. 602]. Both cases arose after a search warrant was issued pursuant to the provisions of Penal Code section 1524, subdivision (c), and client files were seized from attorneys' offices on the basis of probable cause to establish insurance fraud. Both cases concluded that the showing of probable cause to issue a search warrant did not rise to the level of a prima facie showing to establish the crime/fraud exception. They each concluded that a further in camera hearing was appropriate to determine whether a prima facie showing existed to apply the exception. (People v. Superior Court (Bauman & Rose), supra, 37 Cal. App.4th at pp. 1768-1769.)
Penal Code section 1524 is one of the enumerated exceptions to Evidence Code section 915 authorizing the court to utilize an in camera hearing in order to rule on the claim of privilege. The other two enumerated exceptions are Evidence Code sections 1040 (official information and identity of informer) and 1060 (trade secret). From these enumerated exceptions to Evidence Code section 915, we conclude that the Legislature does not contemplate disclosure of privileged material in ruling on the crime/fraud exception. (United Farm Workers of America v. Agricultural Labor Relations Bd. (1995) 41 Cal. App. 4th 303, 316 [48 Cal. Rptr. 2d 696].) However, section 915 only applies to the privileges contained within division 8 of the Evidence Code. It does not apply to the qualified work product privilege which is established in the Code of Civil Procedure. (See post.)
(7) The standard of review upon a finding to support the crime/fraud exception is stated in BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal. App.3d at pages 1261-1262: "The appellate court may not weigh the evidence, resolve conflicts in the evidence, or resolve conflicts in the inferences that can be drawn from the evidence. If there is substantial evidence in favor of the finding, no matter how slight it may appear in comparison with the contradictory evidence, the finding must be affirmed. [Citation.]" (Italics added.) Thus, we focus upon whether there is sufficient evidence to support the implied finding of a prima facie case to apply the crime/fraud exception: whether the services of the Berger Firm were retained and utilized to enable State Farm to commit a crime or a fraud; and whether there exists "`a reasonable relationship between the [crime or] fraud and the attorney-client communication. [Citation.]'" (People v. Superior Court (Bauman & Rose), supra, 37 Cal. App.4th at p. 1769.) In that connection, it is the intent of the client upon which attention must be focused and not that of the lawyers. (Glade v. Superior Court (1978) 76 Cal. App. 3d 738, 746 [143 Cal. Rptr. 119].)
*646 (5c) In turning to a review of the evidence, it is important to keep in mind the context in which this dispute arose: that is, real parties offered the declarations of Ms. Zuniga in support of their request that the court reconsider its grant of summary judgment and denial of their motion to file a third amended complaint. We turn now to a review of the evidence offered.
In the motion for reconsideration, real parties proffered documents from an Arizona case titled Martin v. State Farm and from three cases involving State Farm Mutual Automobile Company, which they contended disclosed discovery abuses by State Farm. They urged that these other cases demonstrated a pattern of discovery abuse similar to that in In re Sealed Case (D.C. Cir.1985) 754 F.2d 395 [244 App.D.C. 11] where the crime/fraud exception was applied. In that case the court found that Synanon Church had "embarked on a massive and systematic program to destroy and alter subpoenaed evidence or evidence sought pursuant to civil discovery requests." (In re Sealed Case, supra, 754 F.2d at p. 397.) The court reviewed declarations of two former employees of Synanon: "The ... affidavits [of the employees], based on the personal observations and participation of the affiants, reveal in extraordinary detail a pervasive and systematic scheme to destroy or alter subpoenaed evidence. The affidavits further reveal Synanon's continuing efforts to conceal its wrongdoing before courts in which it was involved in litigation all with the knowledge and participation of Synanon's legal department. Synanon archivist, Steve Simon, for example, routinely perjured himself in litigation in which Synanon was involved, as did other Synanon officials. The affidavits also show that the computer tape inventory presented by Simon [in another matter] had been deliberately falsified." (Id. at p. 400.)
State Farm objected to receipt of the documents from Martin v. State Farm, on the basis of lack of authentication, and it argued that the other three cases involved State Farm Mutual Automobile Insurance Company, a separate insurance company from State Farm Fire and Casualty Company. It also pointed out that in one of the other cases, Singh v. State Farm, a contempt citation was vacated after the case settled. It urged that these four cases among "thousands upon thousands" of cases throughout the country do not support a conclusion that it is involved in a "scheme of spoliating evidence."
We agree with State Farm that this limited evidence does not suggest a broad scheme to defraud similar to that discussed in In re Sealed Case. We now turn to the evidence proffered in regard to this particular case.
The motion for summary judgment centered on two primary issues: (1) misrepresentations of earthquake coverage in connection with real *647 parties' insurance policy; and (2) whether State Farm complied with statutory mailing requirements of Insurance Code sections 10081 through 10089.2 and former section 10089.3. On the first issue, State Farm presented evidence that the policy issued did not have earthquake coverage, that none had been requested, and that any representation otherwise was attributed to agents for real parties. On the second issue, State Farm presented declarations of Richard Churik and Charles G. Hook as evidence in support of its assertion that State Farm had complied with the mailing provisions of the Insurance Code. Its proof relied upon use of the automatic insertion machine and State Farm's custom and practice.
Real parties presented evidence in opposition to the motion for summary judgment to establish that State Farm had been less than candid in responding to discovery. The proposed third amended complaint alleged that State Farm's agent had committed forgery in issuance of the insurance policy; that he covered up the forgery; and that after claim had been made to State Farm, and it was advised of the forgery, it failed to investigate the claim or take steps to reevaluate the claim. The proposed pleading also alleged intentional spoliation of evidence.
While we have not been provided with the actual motion for reconsideration, it is clear from what real parties attempted to prove in opposition to the summary judgment, the issues raised in connection with the proposed third amended complaint, and those portions of the declarations of Amy Zuniga which are not privileged, that real parties, at the least, are asserting that State Farm is perpetrating a fraud upon the court in connection with this litigation. The circumstances surrounding the privileged communications show that the communications were made in connection with discovery undertaken during this litigation. From this we conclude that there is a reasonable relationship between the communications and the alleged fraud. We now turn to a review of the evidence relating to the alleged fraud.
In opposition to the motion for summary judgment a number of items were presented to suggest that evidence provided by State Farm was not true or complete. The declaration of Samantha Bird established that in 1990 State Farm adopted a policy of destroying potentially relevant documents to avoid producing them in bad faith actions. The declaration of Linda Crisafulli suggested that the declarations page used by State Farm in connection with the motion for summary judgment may have been "manufactured." The declaration of a handwriting expert suggested that the original application may have been forged. Real parties also argued that existing documents had not been produced.
Turning now to the declarations of Ms. Zuniga, we set out verbatim paragraphs 3 through 5. "3...., I am aware that there were many other *648 State Farm claims arising out of the Northridge earthquake like the Taylors' involving unauthorized signatures by State Farm agents or agency employees on applications omitting earthquake coverage. At the time of the Taylor claim, the Company was well aware that this was a problem. As a matter of practice, the Company would pay these claims, if it believed that the forgery issue would be brought to light and proven by the insured. Because of the forgery issue in the Taylor case, if the case was not dismissed on summary judgment, it was my impression that the claim was going to be reconsidered. However, we were waiting to see if we could save money on the Taylor claim by having summary judgment granted, and as part of that plan I was instructed not to provide certain relevant information at my depositions. [¶] 4. Specifically, my supervisor in the SAC unit, Vanessa Gudelj, and her supervisor, John Poptanich, put pressure on me to withhold the existence of documents memorializing certain State Farm claims handling guidelines from plaintiffs' counsel Bernie Bernheim at my deposition, which they believed, if revealed, would defeat summary judgment and ultimately lead to payment of the Taylors' claim. They pressured me into not revealing the existence of claims handling documents which established guidelines under which claims like the Taylors were to be handled. These included a three ring binder called `CATHR Management Information and Memos Manual' used and maintained by Claim Superintendent Tinga Nicholson who was the Claim Superintendent that denied the Taylors' claim. It was responsive to the Taylors' discovery request and we simply chose not to produce it. Similarly, Ms. Nicholson had prepared a breakdown of earthquake claims in her unit ... by category of claim, and one of the categories was `unauthorized signatures.' This document showed the percentage of total earthquake claims which involved unauthorized signatures. This document, too, was never produced. [¶] 5. The Taylors' claim was denied by personnel working in the so-called `Special Handling Unit.' In addition to the claims handling documents mentioned above, we never produced to Mr. Bernheim a document memorializing a SHU meeting at which the subject of unauthorized signatures on applications omitting earthquake insurance was discussed."
Those portions of the September 25 declaration, which are not privileged, contain similar accusations by Ms. Zuniga. She identifies an "Administrative Services" manual for the AIM system which was responsive to real parties request for production but which was not produced. She identifies information which she claims contradicts statements made by Charles Hook in his declaration in support of the motion for summary judgment. She declares that she was involved in a conversation with "one of the Company's senior executives" in which he advised "that State Farm witnesses should not admit that forgeries happen, unless and until they are compelled to do so by Court order." In the same conversation he also advised that "we have to decide *649 how to tell our story should the Company be compelled to admit that it has knowledge of the `unauthorized signatures.' He said we should try to make this practice look like a `service.'" She states that she was aware of the existence of a number of documents "pertaining to the Company's practices and procedures regarding signatures and the taking of applications by agents which were never produced to plaintiffs in the Taylor case." She also declares that State Farm prepares witnesses "on how to give up as little information as possible at deposition."[5] But for trial, the witnesses "were trained to appear helpful and polite, and to drop the evasive tactics used to keep information from being disclosed at deposition."
We conclude the foregoing evidence is more than sufficient for application of the crime/fraud exception to the privileged materials contained in the Zuniga declarations.
State Farm suggests that if we conclude a prima facie showing was made that we should remand the matter to the trial court so it can present evidence to rebut the showing made. We see no reason to do so. State Farm marshaled and presented evidence to contradict the statements made by Ms. Zuniga and the arguments of real parties and the trial court allowed a full hearing on the issues.
The Work Product Privilege
(8a) State Farm and its counsel assert the work product privilege applies to several paragraphs of each of Ms. Zuniga's declarations.
Code of Civil Procedure section 2018 states: "(a) It is the policy of the state to: (1) preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases; and (2) to prevent attorneys from taking undue advantage of their adversary's industry and efforts. [¶] (b) Subject to subdivision (c), the work product of any attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice. [¶] (c) Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances."
(9) Code of Civil Procedure section 2018, subdivision (b) is known as the qualified work product privilege, while subdivision (c) is the absolute *650 work product privilege. Discovery is allowed of material which falls within the qualified privilege where denial of discovery will unfairly prejudice the party seeking it or result in an injustice. However, disclosure of material which qualifies under the absolute work product cannot be compelled, not even to the client. (Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal. App. 3d 264, 279 [218 Cal. Rptr. 205].) To qualify as absolute work product, the attorney's impressions, conclusions, opinions, legal research or theories must be contained within a writing.
(8b) Neither of Ms. Zuniga's declarations discloses, or attempts to disclose, any writings which qualify for treatment within the absolute work product privilege.[6] Therefore, we review the claim of work product to determine whether or not an injustice may occur or whether denial of the disclosure of the information will unfairly prejudice real parties.[7]
In California, the crime/fraud exception only applies to attorney-client privileged materials; it does not apply to the work product privilege. (BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal. App.3d at p. 1251; see also Geilim v. Superior Court, supra, 234 Cal. App.3d at p. 175.) However, the same analysis we utilized for the crime/fraud exception leads to the inevitable conclusion that refusal to allow disclosure of the information contained in the Zuniga declarations would not only unfairly prejudice real parties, it would also result in an injustice.
Trade Secret Information
The only information asserted to fall within the concept of trade secret is contained in paragraph 28 of Zuniga's September 25 declaration. It gives the name of a computer program within State Farm for locating documents.
Evidence Code section 1060 provides: "If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice." (Italics added.)
Evidence Code section 1061, subdivision (b)(1), sets out the appropriate procedure to utilize in litigation where a party claims the trade secret privilege. "The owner of the trade secret shall file a motion for a protective *651 order.... The motion shall include an affidavit based upon personal knowledge listing the affiant's qualifications to give an opinion concerning the trade secret at issue, identifying, without revealing, the alleged trade secret and articles which disclose the secret, and presenting evidence that the secret qualifies as a trade secret under either subdivision (d) of Section 3426.1 of the Civil Code or paragraph (9) of subdivision (a) of Section 499c of the Penal Code. [¶] ... [¶] (3) The movant shall, by a preponderance of the evidence, show that the issuance of a protective order is proper." The section also provides broad discretion to the trial court to allow a litigant access to the trade secret information where it is relevant, but otherwise protect it from dissemination. (Evid. Code, § 1061, subd. (b)(4)(C)(i).)
Civil Code section 3426.1, subdivision (d) and Penal Code section 499c, subdivision (a), paragraph (9) are identical in their wording: "`Trade secret' means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: [¶] (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."
For purposes of this proceeding, we have no problem assuming that the software program is a trade secret. However, disclosure of this information is also subject to a fraud or injustice exception. (Evid. Code, § 1060.) The facts presented certainly justify disclosure of the information. Further, the information which is disclosed in the Zuniga declaration is so minimal we see no danger that it can be used by another to obtain economic value in competition with State Farm.
Conclusion
We conclude that substantial evidence exists to support the implied findings of the trial court for application of the crime/fraud exception to the attorney-client privilege, and that to preclude disclosure of information in the Zuniga declarations would work a fraud or injustice. The trial court properly ordered the declarations unsealed. We caution that our conclusion is limited to the existence of evidence sufficient to support disclosure of the information; nothing more.
THE PROTECTIVE ORDERS SOUGHT
(10) Because we have concluded that the court did not err in unsealing the Zuniga declarations, no protective order is appropriate to preclude their dissemination.
*652 State Farm has requested that counsel for real parties be restrained from disseminating information of a privileged nature which he learned or otherwise obtained from Ms. Zuniga. Other than the information contained in the declarations, we have no evidence that counsel has any other information, or, if he does, that he plans to disseminate it. In fact, after he initially spoke with Ms. Zuniga, counsel for real parties contacted State Farm's counsel and advised of his contact and provided the opportunity for State Farm to seek the protective order. Therefore, we have no foundation upon which to issue the order requested.
State Farm suggests that contact between counsel for real parties and Ms. Zuniga was somehow improper and requests a protective order which precludes counsel from inquiring further of Amy Zuniga about any matters protected by the attorney-client, work product, or trade secret privileges. The only evidence of any contact between real parties' counsel and Ms. Zuniga prior to her termination from State Farm was when he took the first portion of her deposition, during which she was represented by counsel. Otherwise the record reflects that the contact came after Ms. Zuniga's termination.
Counsel representing a client opposing a corporate defendant has a right to meet ex parte with ex-employees of the corporation, even if they were managerial employees. (Continental Ins. Co. v. Superior Court (1995) 32 Cal. App. 4th 94, 119-121 [37 Cal. Rptr. 2d 843]; Bobele v. Superior Court (1988) 199 Cal. App. 3d 708, 714-715 [245 Cal. Rptr. 144].) While counsel may not inquire about privileged communications, inquiry may be made with regard to relevant facts. (Bobele v. Superior Court, supra, 199 Cal. App.3d at pp. 714-715.) While we agree that some of the information contained in the Zuniga declarations falls within the attorney-client and work product privileges, there is also factual information which is not privileged. The record does not reflect whether counsel inquired into the privileged areas or whether the information was volunteered by Ms. Zuniga. Also, as we have discussed, the evidence supports a conclusion that the crime/fraud exception applies and that good cause exists to disclose the work product and trade secret information contained within the Zuniga declarations. Counsel would have been remiss in representing his clients had he not followed up on the contact with Ms. Zuniga. Based on the record presented, we conclude Mr. Bernheim is guilty of no wrongdoing and we find no need to issue a protective order against him.
If State Farm is concerned about disclosure of other potentially privileged information by Ms. Zuniga, it has a right to seek a protective order (Bobele v. Superior Court, supra, 199 Cal. App.3d at p. 715), and we have been *653 advised that a separate action is pending requesting injunctive relief against Ms. Zuniga.[8]
DISPOSITION
The petition is denied. The alternative writ is discharged and the matter is remanded to the trial court. Our order sealing all documents in connection with this writ proceeding will continue until this opinion becomes final, at which time the order is vacated. Costs are awarded to real parties.
Vogel (C.S.), P.J., and Aranda, J.,[*] concurred.
A petition for a rehearing was denied May 14, 1997, and petitioner's application for review by the Supreme Court was denied July 9, 1997. Kennard, J., and Werdegar, J., were of the opinion that the application should be granted.
NOTES
[1] The pertinent portions of the Insurance Code, as applicable on the dates in question, provide as follows: "No policy of residential property insurance may be issued or delivered or, with respect to policies in effect on the effective date of this chapter, initially renewed in this state by any insurer unless the named insured is offered coverage for loss or damage caused by the peril of earthquake as provided in this chapter." (§ 10081.) "(a) The offer of coverage required by Section 10081 may be made prior to, concurrent with, or within 60 days following the issuance or renewal of a residential property insurance policy." (§ 10083.) "If the insurer establishes proof of mailing or delivery of the required offer and the offer of earthquake coverage is not accepted by the named insured within 30 days from the date of mailing or delivery of the offer, there shall be a conclusive presumption that the named insured elected not to accept the coverage." (§ 10085.) "If an offer of earthquake coverage is accepted, the coverage shall be continued at the applicable rates and conditions, provided the policy of residential property insurance is not terminated by the named insured or insurer." (§ 10086.) "Where the offer of earthquake coverage has not been accepted, the insurer shall notify the named insured that the policy does not provide that coverage." (§ 10086.1.)
[2] The following are excerpts from Ms. Hotzel's deposition testimony: "MR. BERNHEIM [counsel for real parties]: Q. Did you send this here dated March 21, 1994, to Jeffrey Roden? [¶] A. I don't know if I did or not. [¶] Q. Is that your signature at the bottom of the letter? [¶] A. I don't know. It might or might not be. [¶] Q. Does it resemble your signature? [¶] A. Oh, goodness. Umm I write my name a lot of different ways. I don't know if it can resemble it or not. [¶] Q. Can you read what it says in cursive handwriting under the typed words `Toni Hotzel'? Or above the typed words `Toni Hotzel'? [¶] A. I'm not sure. [¶] ... [¶] Q. Can you read what that says? [¶] A. Hmm. I don't know. Could be many things. I don't know. [¶] ... [¶] Looks more like `hotel' in the last word. I don't know."
Mr. Bernheim then produced a letter dated May 22, 1994, and inquired of the witness: "Q. Ms. Hotzel, have you now had an opportunity to review the document, the May 22nd letter? [¶] A. Yes, I have reviewed the document. [¶] Q. Does your signature appear anywhere on that letter? [¶] A. I don't know if it does or does not. [¶] Q. Okay. I direct your attention to the cursive handwriting under the word `sincerely.' Is that your signature where it says `Toni Hotzel' ...? [¶] A. I don't know if it is or is not. [¶] Q. You do not recognize that as your signature? [¶] A. Half of the letters are gone, even. No, I don't recognize if it's my signature or not. [¶] Q. Have your ever seen the original of this May 22nd letter from Toni Hotzel to Roderick and Krista Taylor? [¶] A. I have seen the original where? [¶] Q. Have you ever seen it? [¶] A. I don't know. [¶] Q. Did you draft this letter? [¶] A. I don't know if I drafted it or not. [¶] Q. Did you send this letter? [¶] A. Umm [¶] Q. To the Taylors. [¶] A. I don't know if I did or did not."
Later, the tape recording was played and the following transpired: "(Mr. Bernheim starts tape.) [¶] FIRST VOICE: This is Toni Hotzel talking to Jeff Roden by phone. It is May 9th, approximately 1:05 in the afternoon. We are talking about our insured[s] ... Roderick and Krista Taylor. [¶] [Thereafter the transcript reports the content of the tape which ended with the following exchange.] [¶] FIRST VOICE: It's now about 1:14. Can I have your name again, please? [¶] SECOND VOICE: Sure. It's Jeffrey Roden, R-o-d-e-n. [¶] FIRST VOICE: And this is Toni Hotzel. Thank you very much. [¶] BY MR. BERNHEIM: Q. Miss Hotzel, did you hear the female voice on the tape recording that just identified herself as Toni Hotzel? [¶] A. Can I have the question again, please? [¶] THE COURT: Did you hear the voice on the tape? [¶] THE WITNESS: I heard two voices, I believe. [¶] THE COURT: Did you hear the one that appeared to be that sounded like it was female? [¶] THE WITNESS: I heard one that could sound like it would be female, yes. [¶] THE COURT: Mr. Bernheim. [¶] BY MR. BERNHEIM: Q. Did you hear that one that could sound like it was female identify herself as Toni Hotzel? [¶] A. Can I have the question again, please? [¶] THE COURT: Did you hear the female voice on the tape identify herself as Toni Hotzel? [¶] THE WITNESS: Yes, I did. [¶] BY MR. BERNHEIM: Q. Was that you? [¶] A. I don't know. [¶] Q. Did you recognize your own voice? [¶] A. (No audible response). [¶] Q. On this tape? [¶] ... [¶] A. Oh, I don't know if it's my voice or not. I don't know how I sound to other people. I don't know."
[3] Attached to the declaration were two documents. First was the minutes of a staff meeting of April 5, 1990, which stated in part: "We were instructed to destroy old memo's [sic], claim school notes, old procedures, old P & S manuals, etc. The reasoning behind this is that we do not keep discoverable information that could be asked for in `bad faith' suits. It was emphasized that we purge information that is older than 6 months. Seldom do we refer to this old information anyway." The second item was a memorandum dated April 6, 1990, which states as follows: "Yesterday in the staff meeting, we talked about the need to purge our desks of all old memo's [sic], notes and procedural guides. With the increase of bad faith suits being filed against State Farm, it is important that you get rid of all your old stuff I know you have lurking around in your drawers and filing cabinets. [¶] Please get rid of any old memo's [sic], claim school notes, old seminar or claim conference notes, and any old procedure guides you may have. They are trying to avoid having to come up with old records when the `request for production of documents' comes in and they request `all training manuals, memo's [sic], procedural guides, etc., that are in the possession of your claim reps and management'. Apparently they had a request like this in Texas and each person had to surrender all their old junk. I guess corporate is not even going to keep old CPG guides, old claim manuals, etc. We will only have what is currently in effect. That way if they subpoena our claim manual for U claims for 1987, for example, we will say we don't have it. This should be easier than trying to produce it or having to defend it. [¶] So, look through all your old stuff and dump it. You won't ever miss it." (Italics added.)
[4] The remaining paragraphs are all contained within the September 25 declaration.
[5] This claim appears to be corroborated by passages from the deposition of Toni Hotzel; see footnote 2, ante.
[6] At oral argument counsel for State Farm conceded that we are reviewing material which falls within the qualified privilege.
[7] Because of our ultimate determination on the issue of good cause to disclose the information, we have not analyzed the declarations to determine specifically which material does fall within the qualified work product privilege.
[8] We also conclude that Mr. Bernheim is not guilty of contempt by reason of the fact he filed sealed copies of the Zuniga declarations in this other pending action. Therefore, we deny the request to issue an order to show cause by State Farm.
[*] Judge of the Municipal Court for the South Bay Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265012/ | 54 Cal. App. 4th 1361 (1997)
TIMBERLINE, INC., Plaintiff and Respondent,
v.
GUL JAISINGHANI, Defendant and Appellant.
Docket No. B103550.
Court of Appeals of California, Second District, Division Seven.
May 12, 1997.
*1363 COUNSEL
Grossblatt & Booth and Hillary Arrow Booth for Defendant and Appellant.
Braufman and Braufman and James R. Braufman for Plaintiff and Respondent.
OPINION
JOHNSON, J.
In this appeal we are asked to decide whether a corporation which has been suspended for failure to pay franchise taxes may avail itself of the statutory mechanisms for renewing a judgment entered while the corporation was in good standing. We hold it may not. We therefore reverse the trial court's order denying the judgment debtor's motion to vacate the order renewing the judgment.
FACTS AND PROCEEDINGS BELOW
Prior to 1980 plaintiff and respondent, Timberline, Inc., was a woodworking business. In 1980 it sold all its assets to defendant and appellant, Gul Jaisinghani. Thereafter, the corporation ceased doing business.
Defendant apparently did not pay the agreed sales price. On August 21, 1986, the corporation received a judgment against him for $65,463.71. At the time of trial and judgment the corporation was in good standing with the Secretary of State and the Franchise Tax Board.
However, on June 1, 1989, the corporation was suspended by the Secretary of State of California pursuant to Revenue and Taxation Code section 23302 for failure to pay franchise taxes.
*1364 Defendant has not paid any part of the judgment and it remains unsatisfied.
On December 19, 1995, the corporation filed an application to renew the judgment under Code of Civil Procedure section 683.110.[1] The clerk of the court renewed the judgment on that date in the principal amount, plus accrued interest of $62,209.82.
When defendant received notice the judgment had been renewed he filed a motion in the trial court to vacate the renewal of judgment.[2] The basis for his motion was that the corporation was suspended, and as such is not entitled to enjoy the benefits of the state court's powers.
The trial court denied the motion to vacate. Defendant filed a timely appeal from the court's order.
DISCUSSION
I. Standard of Review.
(1) "`Interpretation and applicability of a statute [such as Revenue and Taxation Code section [23301]] ... is ... a question of law.' (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 242, p. 247.) Because the facts are undisputed and `[t]he issues presented ... are solely questions of law ... "this court is free to draw its own conclusions of law ..."' according to `"applicable principles of law...."' (Jongepier v. Lopez (1983) 142 Cal. App. 3d 535, 538 [191 Cal. Rptr. 131]; accord, California Ins. Guarantee Assn. v. Liemsakul (1987) 193 Cal. App. 3d 433, 438 [238 Cal. Rptr. 346]." (Gardiner Solder Co. v. SupAlloy Corp., Inc. (1991) 232 Cal. App. 3d 1537, 1541 [284 Cal. Rptr. 206].)
(2) "`The fundamental rule of statutory construction is ... [to] ascertain the intent of the Legislature so as to effectuate the purpose of the law. *1365 [Citations.]' (Select Base Materials v. Board of Equal. (1959) 51 Cal. 2d 640, 645 [335 P.2d 672].) `"A court should interpret legislation reasonably ... to give effect to the apparent purpose of the statute." [Citations.]' (Moore v. Powell (1977) 70 Cal. App. 3d 583, 588 [138 Cal. Rptr. 914].)" (Gardiner Solder Co. v. SupAlloy Corp., Inc., supra, 232 Cal. App. 3d 1537, 1541-1542 [284 Cal. Rptr. 206] [corporation which was suspended when contract was executed was not precluded from receiving restitution of goods delivered under voidable contract, because it later obtained certificate of revivor by paying delinquent franchise taxes, interest and penalties].)
We review the court's order permitting the suspended corporation to renew its judgment with these principles in mind.
II. A Suspended Corporation Which Has Not Revived Its Powers by Payment of Delinquent Franchise Taxes May Not Take Advantage of California's Legal Processes for Renewing a Judgment.
Section 23301 of the Revenue and Taxation Code authorizes the suspension or forfeiture of corporate powers of a corporation which has failed to pay its franchise taxes. This section provides: "Except for the purposes of filing an application for exempt status or amending the articles of incorporation as necessary either to perfect that application or to set forth a new name, the corporate powers, rights and privileges of a domestic taxpayer may be suspended, and the exercise of the corporate powers, rights and privileges of a foreign taxpayer in this state may be forfeited, if...." (1) the corporation fails to pay franchise taxes on time; (2) fails to file a required annual information statement; or (3) fails to file a franchise tax return, even when no tax is due. (Rev. & Tax. Code, § 23301.5.)
When a corporation fails to pay its taxes the Franchise Tax Board informs the Secretary of State of the delinquency, who in turn notifies the corporation of its suspended status. (Rev. & Tax. Code, § 23302.)[3]
(3) Thus, except for filing an application for tax-exempt status or amending the articles of incorporation to change the corporate name, a suspended corporation is disqualified from exercising any right, power or privilege. (Rev. & Tax. Code, § 23301.)
This means a suspended corporation may not prosecute or defend an action in a California court. (Ransome-Crummey Co. v. Superior Court *1366 (1922) 188 Cal. 393, 396-397 [205 P. 446]; Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1957) 155 Cal. App. 2d 46, 50-51 [317 P.2d 649].) Nor may a suspended corporation appeal from an adverse judgment (Boyle v. Lakeview Creamery Co. (1937) 9 Cal. 2d 16, 20-21 [68 P.2d 968]; Gar-Lo, Inc. v. Prudential Sav. & Loan Assn. (1974) 41 Cal. App. 3d 242, 245 [116 Cal. Rptr. 389]), or seek a writ of mandate (Brown v. Superior Court (1966) 242 Cal. App. 2d 519, 635 [51 Cal. Rptr. 633]). However, if the corporation's status only comes to light during litigation, the normal practice is for the trial court to permit a short continuance to enable the suspended corporation to effect reinstatement (by paying back taxes, interest and penalties) to defend itself in court. (See, e.g., Schwartz v. Magyar House, Inc. (1959) 168 Cal. App. 2d 182, 190 [335 P.2d 487].)
"In a number of situations the revival of corporate powers by the payment of delinquent taxes has been held to validate otherwise invalid prior action. (Traub Co. v. Coffee Break Service, Inc. [(1967)] 66 Cal. 2d 368, 370 [57 Cal. Rptr. 846, 425 P.2d 790]; Diverco Constructors, Inc. v. Wilstein [(1970)] 4 Cal. App. 3d 6, 12 [85 Cal. Rptr. 851]; A.E. Cook Co. v. K S Racing Enterprises, Inc. [(1969)] 274 Cal. App. 2d 499, 500 [79 Cal. Rptr. 123]; Duncan v. Sunset Agricultural Minerals [(1969)] 273 Cal. App. 2d 489, 493 [78 Cal. Rptr. 339].) In all of the above cited cases it was held that the purpose of section 23301 of the Revenue and Taxation Code is to put pressure on the delinquent corporation to pay its taxes, and that purpose is satisfied by a rule which views a corporation's tax delinquencies, after correction, as mere irregularities. This reasoning is in accord with our language in Boyle v. Lakeview Creamery Co., 9 Cal. 2d 16, declaring the legislative policy of Revenue and Taxation Code provisions imposing sanctions for failure to pay taxes to be `clearly to prohibit the delinquent corporation from enjoying the ordinary privileges of a going concern, in order that some pressure will be brought to bear to force the payment of taxes.' (At p. 19.) There is little purpose in imposing additional penalties after the taxes have been paid." (Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (1972) 8 Cal. 3d 369, 371 [105 Cal. Rptr. 29, 503 P.2d 285], italics added [corporation which was suspended after judgment for nonpayment of franchise taxes was entitled to pursue its appeal after it paid the delinquent tax, interest and penalties and received its certificate of revivor].)
(4a) The plain language of Revenue and Taxation Code section 23301 "expressly deprives the corporation of all `corporate powers, rights and privileges'...." (Boyle v. Lakeview Creamery Co., supra, 9 Cal. 2d 16, 20.) Thus, it appears from the statutory language and the decisional authority interpreting those provisions, the corporation's action in requesting the court to renew the judgment was an unauthorized act by a suspended corporation *1367 which was attempting to exercise the rights, powers and privileges of a going concern. (See 9 Witkin, Summary of Cal. Law (9th ed. 1987) Corporations, § 225 et seq., p. 716 et seq.; Friedman, Cal. Practice Guide: Corporations 2 (The Rutter Group 1997) ¶ 6:562 et seq., p. 6-111 et seq.) Consequently, it was error for the trial court to deny defendant's motion to vacate the renewal of judgment.
The corporation seeks to avoid this result. It argues renewing a judgment does not really invoke the powers of a California court. It points out renewal of a judgment is made virtually automatic by statute.[4] The corporation argues renewal of a judgment does not require any action by a state court because the court clerk processes the application, making it nothing more than a "ministerial act."
This argument misses the mark. Renewal of a judgment requires judicial intervention for its validity, regardless how minimal the activity. For example, renewal of a judgment involves at least as much judicial intervention in the average case as does the filing of a lien to secure a judgment. The decision in A.E. Cook Co. v. K S Racing Enterprises, Inc. (1969) 274 Cal. App. 2d 499 [79 Cal. Rptr. 123] is instructive. That case involved the validity of the corporate plaintiff's attachment of the defendant's bank account to secure a judgment. The defendant moved to discharge the attachment, claiming the corporation was suspended for nonpayment of taxes at the time it filed its lien. However, prior to the defendant's motion to discharge the lien, the corporate plaintiff revived its corporate powers by paying all delinquent taxes.
The trial court denied the defendant's motion to dissolve the attachment and the appellate court affirmed. It noted the earlier Supreme Court decisions holding that the effect of a corporation's reviving itself by payment of delinquent taxes is to retroactively legitimize the corporation's prior acts. The court then reasoned if revivor can validate prior actions taken to prosecute or defend an action then revivor should also operate to validate "provisional remedies ancillary to such actions. If a corporation may shore up its entire cause of action by reviving its corporate powers and thereby validate its complaint, it seems appropriate to permit it to do the same thing on behalf of a provisional remedy wholly dependent on the main cause of action, provided, of course, that in the meantime substantive defenses have not accrued nor third party rights intervened. [Citation.]" (274 Cal. App.2d at pp. 500-501.)
*1368 By parity of reasoning, the ancillary remedy of renewing an unsatisfied judgment is an invalid act if attempted by a suspended corporation which has not taken the necessary action to revive itself.
We agree with the corporation the original judgment was valid. We also agree the corporation was not pursuing a new action or seeking a new judgment, but was instead attempting to extend the life of the earlier valid judgment. Nevertheless, to do so required invocation of the benefits of California laws and the assistance of the California judicial system. These rights and privileges are reserved to those corporations which pay their franchise taxes in a timely fashion and remain in good standing with the California Secretary of State and taxing authorities. As a suspended corporation, it is deprived of these benefits and was therefore not entitled to renew its judgment.
(5) (See fn. 5.), (4b) This may seem to be a harsh penalty for a corporation which has not conducted business since selling its assets to the defendant, and which has not realized any amount from the sale of those assets.[5] However, this penalty could have easily been avoided. If the corporation was not in fact conducting any business after the sale of its assets in 1980, then someone should have taken steps to formally dissolve the corporation. After the Franchise Tax Board approves a corporation's final tax return the corporation is no longer liable for any taxes (provided it does not continue in business after notifying the Secretary of State of its intent to dissolve). (Corp. Code, § 1905; see also Friedman, Cal. Practice Guide: Corporations, supra, ¶ 8:585.1, p. 8-105.) On the other hand, a dissolved corporation maintains considerable corporate powers to conduct whatever business is required to wind up its affairs including prosecuting actions and enforcing *1369 judgments. (See, e.g., Corp. Code, § 2010[6]; Pensaquitos, Inc. v. Superior Court, supra, 53 Cal. 3d 1180, 1185 [dissolved corporation continues to exist for an indefinite period as a legal entity for the purpose of winding up its affairs].)
Thus, in this case the corporation could have avoided all liability for franchise taxes and in addition could have renewed or enforced its judgment had it taken the necessary steps to formally dissolve.
Alternatively, the corporation could have avoided this result by reviving itself prior to filing its application to renew the judgment, or at any time before its 10-year life expired. The corporation was obviously aware the 10-year limitations period was about to elapse and it would soon have to file an application to renew the judgment. It thus had more than sufficient time to take the necessary curative action yet did nothing.[7] Under these circumstances it was not entitled to enjoy the privilege of renewing its judgment while suspended for nonpayment of California franchise taxes.
DISPOSITION
The order is reversed. The trial court is directed to vacate its order denying the motion to vacate and enter a new order granting defendant's motion to vacate renewal of the judgment. Defendant is awarded his costs of appeal.
Lillie, P.J., and Woods, J., concurred.
NOTES
[1] Code of Civil Procedure section 683.110 provides in part: "(a) The period of enforceability of a money judgment or a judgment for possession or sale of property may be extended by renewal of the judgment as provided in this article...."
[2] Code of Civil Procedure section 683.170 provides the grounds for vacation of a renewed judgment. This section provides: "(a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.
"(b) Not later than 30 days after service of the notice of renewal pursuant to Section 683.160, the judgment debtor may apply by noticed motion under this section for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail.
"(c) Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount." (Italics added.)
[3] Revenue and Taxation Code section 23302 provides in pertinent part: "(c) The Franchise Tax Board shall transmit the names of taxpayers to the Secretary of State as to which the suspension or forfeiture provisions of Section 23301 ... are or become applicable, and the suspension or forfeiture therein provided for shall thereupon become effective. The certificate of the Secretary of State shall be prima facie evidence of the suspension or forfeiture."
[4] Code of Civil Procedure section 683.150, subdivision (a) provides: "Upon the filing of the application, the court clerk shall enter the renewal of the judgment in the court records." (Italics added.)
[5] The corporation invokes the "unclean hands" doctrine and argues defendant should be precluded from benefiting from his wrongful breach of the sales contract. While we may disapprove of his action, we are not free to interject equitable doctrines into what is otherwise a comprehensive statutory scheme specifying the requirements and powers of California corporations.
"`"Rules of equity cannot be intruded in matters that are plain and fully covered by positive statute [citation]. Neither a fiction nor a maxim may nullify a statute [citation]. Nor will a court of equity ever lend its aid to accomplish by indirection what the law or its clearly defined policy forbids to be done directly [citation]." [Citation.]' [Citation.]" (Gardiner Solder Co. v. SupAlloy Corp., Inc., supra, 232 Cal. App. 3d 1537, 1543 [court rejected application of unclean hands doctrine to previously suspended corporation and found doctrine inapplicable in any event because by "payment of the tax, interest and penalties, Gardiner washed its hands"]; cf. Pensaquitos, Inc. v. Superior Court (1991) 53 Cal. 3d 1180, 1192 [283 Cal. Rptr. 135, 812 P.2d 154] [common law theories are also preempted by comprehensive provisions of Corporations Code].)
[6] Corporations Code section 2010 provides in part: "(a) A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations, dispose of and convey its property and collect and divide its assets, but not for the purpose of continuing business except so far as necessary for the winding up thereof...."
[7] Code of Civil Procedure section 683.130 specifies one may renew a judgment at any time prior to the 10-year period of enforceability:
"(a) In the case of a lump-sum money judgment or a judgment for possession or sale of property, the application for renewal of the judgment may be filed at any time before the expiration of the 10-year period of enforceability provided by Section 683.020...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265018/ | 54 Cal. App. 4th 351 (1997)
EDUARDO SCHNEIDER, Plaintiff and Respondent,
v.
MEDICAL BOARD OF CALIFORNIA, Defendant and Appellant.
Docket No. C022700.
Court of Appeals of California, Third District.
April 17, 1997.
*352 COUNSEL
Daniel E. Lungren, Attorney General, Nancy Ann Stoner and Cindy M. Lopez, Deputy Attorneys General, for Defendant and Appellant.
Russell Iungerich for Plaintiff and Respondent.
*353 OPINION
MORRISON, J.
After prevailing in an administrative proceeding to revoke plaintiff Eduardo Schneider's medical license, defendant Medical Board of California (defendant board) was awarded costs and attorney fees pursuant to Business and Professions Code section 125.3 (section 125.3). The trial court disallowed the award of attorney fees, and the sole issue on appeal is whether section 125.3 allows the recovery of reasonable attorney fees. We find that section 125.3 allows defendant to recover reasonable attorney fees and reverse.
BACKGROUND
Defendant board filed an accusation against plaintiff Schneider, a medical doctor, and after an administrative proceeding before Administrative Law Judge Dash, plaintiff was found to have engaged in sexual misconduct with a patient and unprofessional conduct. Defendant board adopted the decision of the administrative law judge in revoking plaintiff's medical license and ordering plaintiff to pay defendant the costs of investigation ($10,056.46) and attorney fees ($4,005). Plaintiff filed a petition for a writ of administrative mandamus in the superior court. The court denied the petition but concluded that section 125.3 does not authorize the recovery of attorney fees. Defendant appealed on the issue of disallowing the recovery of attorney fees as costs under section 125.3.
DISCUSSION
(1) The interpretation of a statute is a question of law and we are not bound by evidence presented below on that question or by the lower court's interpretation. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 699 [170 Cal. Rptr. 817, 621 P.2d 856].)
(2a) The primary "objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.]" (Burden v. Snowden (1992) 2 Cal. 4th 556, 562 [7 Cal. Rptr. 2d 531, 828 P.2d 672].) "First, a court should examine the actual language of the statute. [Citations.] ... [¶] In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations]." (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal. App. 4th 1233, 1238 [8 Cal. Rptr. 2d 298].) "The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]" (Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal. 3d 1379, 1387 [241 Cal. Rptr. 67, 743 P.2d 1323].) *354 "If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. [Citations.] ... [¶] But if the meaning of the words is not clear, courts must take the second step and refer to the legislative history." (Halbert's Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal. App. 4th 1233, 1239.)
Defendant board is a part of the Department of Consumer Affairs (the department). (Bus. & Prof. Code, § 101, subd. (b).) The department ensures that "those private businesses and professions deemed to engage in activities which have potential impact upon the public health, safety, and welfare are adequately regulated...." (Bus. & Prof. Code, § 101.6.) The functions of the boards within the department include setting standards, preparing and conducting examinations, conducting investigations, issuing citations, and holding revocation hearings. (Bus. & Prof. Code, § 108.)
(3a) Section 125.3 sets forth the payment by licentiate for the investigation and enforcement costs of the boards. It provides in relevant part, "(a) ... in any order issued in resolution of a disciplinary proceeding before any board within the department[,] ... the board may request the administrative law judge to direct a licentiate found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case. [¶] ... [¶] (c) ... The costs shall include the amount of investigative and enforcement costs up to the date of the hearing, including, but not limited to, charges imposed by the Attorney General. [¶] (d) The administrative law judge shall make a proposed finding of the amount of reasonable costs of investigation and prosecution of the case when requested pursuant to subdivision (a)." (Bus. & Prof. Code, § 125.3, italics added.)
Preliminarily, we note that there is inconsistent language within the statute. While section 125.3, subdivisions (a) and (c) speak of "costs of investigation and enforcement," subdivision (d), which allows the administrative law judge to make a finding of the amount of these costs, refers to "costs of investigation and prosecution." These two terms may be similar, but they are not the same. (4) Enforcement is a more general term, referring to "[t]he act of putting something such as a law into effect." (Black's Law Dict. (6th ed. 1990) p. 528, col. 2.) Prosecution means "[t]he continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused." (Id. at p. 1221, col. 2.) To harmonize these two words, we conclude that enforcement, as used in this statute, encompasses the act of prosecution.
(3b) The statute permits defendant board to recover costs, which explicitly includes "charges imposed by the Attorney General." The issue is *355 whether these charges may include attorney fees. In ascertaining the meaning of the phrase "charges imposed by the Attorney General," section 125.3 cannot be analyzed in isolation. Business and Professions Code section 2020 (section 2020) specifies that "The Attorney General shall act as legal counsel for the [defendant] board for any judicial and administrative proceedings and his or her services shall be a charge against it." Government Code section 11044 states that "For state agencies, departments, or programs which are charged for the costs of legal services rendered by the Attorney General, the Attorney General shall charge an amount sufficient to recover the costs incurred in providing the legal services." Thus, the "charges imposed by the Attorney General" in section 125.3 include the costs of legal services.
Plaintiff contends that when the Legislature intends to authorize recovery for attorney fees, it has expressly so provided, and since section 125.3 does not expressly provide for an award of attorney fees, they are not recoverable. Furthermore, plaintiff asserts that the term "costs" usually does not include attorney fees. We agree with plaintiff that as a general rule, attorney fees are not recoverable as costs unless expressly authorized by contract, statute, or law. (See Code Civ. Proc., § 1033.5, subd. (a)(10).) In this case, the recovery of attorney fees is authorized by section 125.3, albeit using terms other than "attorney fees." Statutes which specifically direct the Attorney General to provide legal services and bill the governmental bodies that use such legal services employ language very similar to section 2020 and section 125.3, namely designating payments to the Attorney General as "charge[s]," not "attorney fees." (See, e.g., Bus. & Prof. Code, § 3027 [Board of Optometry]; Pub. Resources Code, § 3102 [Division of Oil, Gas, and Geothermal Resources in the Department of Conservation].) Plaintiff cites to the cost-recovery statutes governing the Board of Accountancy (Bus. & Prof. Code, § 5107)[1] and the Respiratory Care Board (Bus. & Prof. Code, § 3753.7)[2] to support the proposition that the Legislature would have expressly provided for the recovery of attorney fees if it so intended. The explicit reference to attorney fees in these statutes, while such term is not used in section 125.3, does not compel the conclusion that attorney fees are not included in the costs recoverable under section 125.3. The board is required to use the Attorney General as its legal counsel (§ 2020), so the use of the term "charges imposed by the Attorney General" adequately covers the recovery of the costs of the Attorney General's legal services.
*356 The trial judge, in denying the request for attorney fees, placed a significant emphasis on the phrase "up to the date of hearing." He reasoned that because attorney fees usually continue to be incurred after the date of hearing, the charges recoverable under section 125.3 could not include attorney fees. The record does not indicate significant legal costs were incurred after the hearing. The purpose of this limitation may simply be to ensure that the administrative hearing proceeds efficiently and conclusively. By limiting costs up to the date of hearing, the administrative law judge, who makes the finding of the amount of costs, can easily determine the amount at the end of the hearing, without the need for additional hearings and protracted arguments over the issue of costs. The time restriction results in limiting attorney fees, but not eliminating them.
(2b) "A statute must be construed in the context of the entire statutory scheme of which it is a part, in order to achieve harmony among the parts." (People v. Lewis (1993) 21 Cal. App. 4th 243, 254 [25 Cal. Rptr. 2d 827].) (3c) Government Code section 11044 defines charges by the Attorney General as "the costs incurred in providing the legal services"; section 2020 requires the Attorney General to act as counsel for defendant board and authorizes the Attorney General to charge defendant for the legal services provided; and section 125.3 allows defendant to recover costs of investigation and enforcement, including any Attorney General charges, from plaintiff. Thus, the $4,005, which were the costs of the Attorney General's services up to the date of hearing, were recoverable from plaintiff.
Given the various statutes relating to the subject of legal services provided by the Attorney General, the words of section 125.3 are clear and unambiguous and we need not review the legislative history.
DISPOSITION
The judgment denying attorney fees is reversed. Defendant board shall recover costs on appeal.
Sparks, Acting P.J., and Nicholson, J., concurred.
On May 19, 1997, the opinion was modified to read as printed above. Respondent's petition for review by the Supreme Court was denied July 9, 1997.
NOTES
[1] Business and Professions Code section 5107 provides, in pertinent part, "(a) The executive officer of the board may request the administrative law judge ... to direct any holder of a permit or certificate found guilty of unprofessional conduct... to pay to the board all reasonable costs of investigation and prosecution of the case, including, but not limited to, attorneys' fees."
[2] Business and Professions Code section 3753.7 states, "For purposes of this chapter, costs of prosecution shall include attorney general or other prosecuting attorney fees, expert witness fees, and other administrative, filing, and service fees." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363444/ | 130 Ariz. 41 (1981)
633 P.2d 450
ORACLE SCHOOL DISTRICT NO. 2, a body politic; and Members of the Board of Trustees, Hershel Brisby, Elizabeth Prichard, James Caffall, Anne Blomquist, and Tom Fredrick; and Jack Harmon, Superintendent, Plaintiffs/Appellants,
v.
MAMMOTH HIGH SCHOOL DISTRICT NO. 88, and Mammoth School District No. 8, a body politic and Members of the Board of Education, Robert Hockett, John Dicus, H. (PAT) Harris, Virgil Mercer, and William Wood; and Joel Tudor, Superintendent; and Sherry Ferguson, Pinal County School Superintendent, Defendants/Appellees.
No. 2 CA-CIV 3816.
Court of Appeals of Arizona, Division 2.
June 29, 1981.
Rehearing Denied July 22, 1981.
Review Denied September 15, 1981.
*42 Rubin Salter, Jr., Tucson, for plaintiffs/appellants.
DeConcini, McDonald, Brammer Yetwin & Lacy, P.C. by John R. McDonald and Richard L. Barnes, Tucson, for defendants/appellees.
OPINION
BIRDSALL, Judge.
This is an appeal from an order granting appellees' motion to dismiss appellants' complaint. Counts One and Two of the complaint were dismissed for failure to state a claim for relief. A third count was dismissed for failure to join an indispensable party and the dismissal of that count is not an issue on appeal since appellants conceded its merit in the trial court.
We will assume the truth of all facts which are stated in the complaint. A motion to dismiss for failure to state a claim for relief should not be granted unless it appears that a plaintiff will not be entitled to relief under any state of facts susceptible of proof under the pleading. See Guerrero v. Copper Queen Hospital, 112 Ariz. 104, 537 P.2d 1329 (1975).
According to the complaint the then acting school board for appellants and appellees agreed that if appellants would acquiesce in a school redistricting whereby certain extremely valuable taxable properties would be transferred from appellants' district into appellees', appellees would not thereafter charge tuition for high school students residing in appellants' district who attended appellees' high school.
The complaint further alleges that the redistricting was effected and from 1953 to 1975 the tuition was not charged. Since 1975, in accordance with a subsequent agreement, no tuition was charged but appellants forwarded to appellees the amount of state aid received for those high school *43 students attending appellees' high school. In 1980, appellees requested, for the first time, tuition payments for the subject students.
The complaint further alleges that appellants justifiably relied to their detriment and that appellees' intended appellants would rely and knew that they would so rely. Further, that appellees are estopped from denying the existence or validity of the agreement and have waived the same. The complaint alleges laches precluding appellees from asserting the non-existence or invalidity of the contract.
Count Two of the complaint alleges that the 1975 agreement created a novation separate and apart from the 1953 contract and that an implied in fact contract was created based on the parties' prior course of dealing.
The complaint sought an injunction and declaratory judgment that the agreements were binding and valid.
We believe one finding is dispositive of this appeal. The appellee school board had no power to enter into the alleged agreement which gave up the right to receive tuition for those high school students attending from without the district.
Article 11, Section 1 of the Arizona Constitution required the legislature to "enact such laws as shall provide for the establishment and maintenance of ... common schools, high schools ... and a university". Title 15, A.R.S., contains the legislative enactments carrying out this duty. School districts are a legislative creation having only such power as is granted to them by the legislature. See School District No. 69 v. Altherr, 10 Ariz. App. 333, 458 P.2d 537 (1969). A board or commission which is a creation of a statute created for a special purpose has only limited powers and it can exercise no powers which are not expressly or impliedly granted. See Olmsted & Gillelen v. Hesla, 24 Ariz. 546, 211 P. 589 (1922). Not only is the authority to enter into an agreement such as we have here not contained within any express or implied power granted by the legislature, the statutes impliedly prohibit such an agreement. Arizona Code Annotated § 54-908 (1939), the statute applicable at the time the parties entered into the agreement, provided in part:
"Non-resident pupils of school age, otherwise qualified, residing in the county in which there is a high school, but in a district having no high school, nor a school wherein high school subjects are taught, shall be admitted to such high school on the same conditions as residents, upon paying a reasonable fee for each pupil to be fixed by the board in charge of the high school, not to exceed, however, such amount as would equal the average cost per pupil of the high schools of the county after deducting the amount received from the state and county, such payment to be made monthly. Said tuition shall be a legal charge against the school district in which said non-resident pupil resides, and levied and collected in the same manner as other school taxes, and shall be paid by said district out of the funds of such district upon presentation to the clerk of such district of a statement."
This requirement for the collection of tuition and that it be paid in the form of money is mandatory.[1]Cf. Board of Trustees of Mary E. Dill School Dist. No. 51 v. Board of Education of Sahuarita High School Dist. No. 30, 19 Ariz. App. 323, 506 P.2d 1108 (1973) (held that a school district without a high school is required to pay tuition for a resident student attending high school in another district and has no right to approve the student's choice of school).
Appellee school district had no power to enter into an agreement waiving tuition or permitting it to be paid in any manner other than the payment of monies. The agreement was unenforceable at the *44 time of its making, is not enforceable now, and the trial court properly dismissed the complaint.
We do not agree with appellants' argument that the implied in fact contract alleged in Count Two of their complaint may be enforced regardless of whether the express contract is valid. The school board would have no more power to bind the district by their actions than they would to enter into an express contract with the same objective and purpose. The appellee school district has a statutory obligation to admit the high school pupils from the appellant school district. A.R.S. § 15-449(A)(2). As noted above, Arizona Code Annotated § 54-908 (1939) contained a provision similar to A.R.S. § 15-449(A)(2).
We also find no merit in appellants' argument that appellees are estopped to deny the existence or validity of the agreement. Generally a school district cannot be bound by estoppel when acting in its governmental capacity. Appellants have not shown that any exception to the general rule exists here. See Mish v. Tempe School Dist. No. 3, 125 Ariz. 258, 609 P.2d 73 (App. 1980). Even if appellees admit the agreement, it remains unenforceable since appellee had no power to make it. Likewise, we do not believe that the illegal agreement may be upheld through the doctrine of ratification. An agreement which is invalid by virtue of a lack of authority cannot be given legal effect in that manner. In order to be ratified, the contract must initially be one which is in the scope of the powers of the public body. See Hermance v. Public School Dist. No. 2, 20 Ariz. 314, 180 P. 442 (1919). Appellants do not argue laches on appeal and we consider that issue abandoned.
Having addressed all arguments made by appellants, we find it unnecessary to decide any other issues presented.
Affirmed.
HATHAWAY, C.J., and HOWARD, J., concur.
NOTES
[1] The requirement that tuition be collected was continued in A.R.S. § 15-547 (1955) and is now contained in A.R.S. § 15-449. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363445/ | 131 Ga. App. 277 (1974)
205 S.E.2d 868
DEVELOPMENT CORPORATION OF GEORGIA et al.
v.
BERNDT.
48678.
Court of Appeals of Georgia.
Argued October 2, 1973.
Decided February 26, 1974.
Rehearing Denied March 14, 1974.
Arnall, Golden & Gregory, William R. Harp, Allen I. Hirsch, for appellants.
Herbert T. Jenkins, Jr., Fred W. Minter, for appellee.
BELL, Chief Judge.
Plaintiff brought suit alleging that she had performed services for the defendant corporation since 1964 and that the value of the services amounted to $100,000. Defendants' motion for a directed verdict was denied. The jury returned a verdict for plaintiff for $8,000. Defendants' motion for judgment notwithstanding the verdict was also overruled. Held:
One ground asserted on the motion for directed verdict was the failure of plaintiff to prove the reasonable value of services rendered to and accepted by the defendants, an element essential to recovery on a quantum meruit basis. Code § 3-107. This ground has *278 merit as plaintiff failed to carry her burden. Plaintiff testified that she had worked for these defendants under an express contract as a real estate salesman and that she had been paid her commissions earned under the terms of the contract. However, she testified that she had not been paid all the commissions due her; and "according to my figures they owe me $8,000.00"; that she included this figure in the total amount claimed in her suit, $100,000; that the balance of her work consisted of "trying to straighten out problems" for people she had sold lots to and trying to keep peace and harmony in the community; that based on her computation she had worked 21,480 hours for the defendants over a seven year period for which she had not been paid; and "I think [the value of the services] it's worth a hundred thousand dollars." All of this testimony presents no evidence by which the jury with any degree of certainty could determine the reasonable value of plaintiff's services as a whole. Please note that the cited testimony is all that is even remotely dealing with proof of value of services. Plaintiff offered nothing as to how either the $8,000 or $100,000 figure was computed. See Woodruff v. Trost, 73 Ga. App. 608 (37 SE2d 425). The question of damages cannot be left to speculation, conjecture and guesswork. Studebaker Corporation v. Nail, 82 Ga. App. 779 (62 SE2d 198); Bennett v. Assoc. Food Stores, Inc., 118 Ga. App. 711, 716 (165 SE2d 581).
It was error to deny the motions for directed verdict and for judgment notwithstanding the verdict. The judgment is reversed with direction to enter a judgment for defendants.
Judgment reversed with direction. Hall, P. J., Eberhardt, P. J., Quillian, Clark and Stolz, JJ., concur. Pannell, Deen and Evans, JJ., dissent.
*279 DEEN, Judge., dissenting.
This appeal is from a motion for new trial or judgment notwithstanding the verdict in the alternative. I agree with the majority opinion that the plaintiff failed to show facts from which the jury could arrive at a verdict in the sum of $8,000 on a quantum meruit basis, for the reason that her testimony as to $8,000 allegedly due her as real estate commissions shows that some undetermined part of this amount is barred by the statute of limitation. However, the evidence, if believed by the jury, does show some compensable work by the plaintiff either for real estate commissions or efforts in behalf of the corporation accepted by it concerning its disagreements with other land purchasers. I therefore concur in the reversal but would grant a new trial and not a judgment notwithstanding the verdict. McClelland v. Carmichael Tile Co., 94 Ga. App. 645 (96 SE2d 202).
I am authorized to state that Judge Pannell concurs in this dissent.
EVANS, Judge, dissenting.
The majority opinion reverses the trial judge, holding that defendant's motion for directed verdict and motion for judgment notwithstanding the verdict should have been granted.
But the majority overlooks the failure of defendant to make a proper motion for directed verdict. His motion was seemingly based upon plaintiff's claim being barred by the statute of limitation, but it is impossible to determine as to whether he sought a directed verdict as to the entire claim or only part of it. A motion for directed verdict must state the specific grounds therefor. Code Ann. § 81A-150 (a). And said grounds must be set forth with specificity. Turk v. Jackson Electric Membership Corp., 117 Ga. App. 631 (1)(161 SE2d 430). A motion, like an objection to evidence, must be overruled if it is too broad, and levels its attack against the whole when only a part is subject thereto. Employers Liability &c. Corp. v. Sheftall, 97 Ga. App. 398, 402, 403 (103 SE2d 143).
And of course a motion for judgment notwithstanding the verdict must be premised upon a *280 valid motion for directed verdict. See: Code Ann. § 81A-150 (b); Durden v. Henderson, 212 Ga. 807 (1) (96 SE2d 362).
The complaint in this case was filed on June 29, 1972, and as no written contract was proven, all services rendered prior to June 29, 1968, were barred by the statute of limitation.
Plaintiff testified that her services as real estate salesman terminated prior to 1968, but that her services as public relations representative for defendant lasted until date of filing suit (Tr., p. 29) and thus four years of such services were not barred.
I find the plaintiff's version of her claim most remarkable, and perhaps a strain on the credulity of average jurors. She testified that she had worked for seven years for defendant on an average of 60 hours each week, and had not been compensated. This means she worked six 10-hour days in each week, having only the Sabbath on which to recuperate from her labors, and at the end of the first year, her employer did not pay her. Most employees would have been very much discouraged at this turn of events, but she, with great patience, continued through a second year with the same negative results as to compensation. She worked on through a third, fourth, fifth and sixth year, with the same results, but rebelled at the end of the seventh year and insisted that her employer compensate her, and high time, it appears to me. Three years of this service was barred by the statute of limitation, as she did not have a written contract. The jury decided she was entitled to $8,000, and in my opinion this was strictly a question for the jury. They were not bound by her opinion as to the value of her services. Where opinion evidence is adduced as to the value of services or property, the jury may deal with such testimony as they see fit, and may render a verdict for a higher amount or lower amount than has been given in evidence by any witness. Baker v. Richmond City Mill Works, 105 Ga. 225 (1) (31 SE 426); Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3 (102 SE2d 492); Smaha v. State Highway Dept., 114 Ga. App. 60 (1) (150 SE2d 327).
There was ample evidence in the record from which the jury could have arrived at the verdict of $8,000.
*281 But the majority opinion holds that the trial court erred in not directing a verdict for defendant in toto and in not granting its motion for judgment notwithstanding the verdict. In this, they overlook the failure of defendant to make a proper motion for directed verdict, as has been pointed out here. And then, despite the fact that plaintiff testified as to what her services consisted of, and then testified that based on her computation she had worked 21,480 hours for the defendants over a seven-year period for which she had not been paid and "I think (the value of the services) it's worth a hundred thousand dollars," the majority opinion asserts this did not amount to competent evidence by which the jury with any degree of certainty could determine the reasonable value of plaintiff's services. Why not? Four years of these services were not barred by the statute of limitation, thus 4/7ths of the total number of hours could be easily computed by the jury, and 4/7ths of the total amount of $100,000 could likewise be computed, showing the value plaintiff placed on her services, and even showing the amount per hour. The following authorities leave it beyond peradventure that this was competent testimony:
"Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reason therefor." Code § 38-1708. "Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion." Code § 38-1709.
Evidence of value is not to be excluded merely because it depends on hearsay. Powers v. Powers, 213 Ga. 461, 462(2) (99 SE2d 818).
A witness may swear to his belief or opinion as to the value of services, especially where he gives facts on which his testimony is based. W. & A. Railroad v. Townsend, 36 Ga. App. 70 (2) (135 SE 439).
The court did not err in refusing to rule out evidence that $250 per month would be a reasonable charge for a person to wait on the widow. Rogers v. Woods, 66 Ga. App. 195, 196 (2) (17 SE2d 283).
Witnesses may give their opinion as to value of *282 services, but jury not bound by opinions of witnesses. Daniell v. McRee, 31 Ga. App. 210 (1) (120 SE 448).
Plaintiff may testify as to annual value of his personal services prior to injury. Central of Ga. R. Co. v. Hartley, 25 Ga. App. 110, 112 (103 SE 259); City Electric R. Co. v. Smith, 121 Ga. 663, 664 (49 SE 724); Eagle & Phoenix Mfg. Co. v. Browne, 58 Ga. 239 (1).
The majority cites Woodruff v. Trost, 73 Ga. App. 608 (37 SE2d 425); Studebaker Corp. v. Nail, 82 Ga. App. 779 (62 SE2d 198) and Bennet v. Associated Food Stores, Inc., 118 Ga. App. 711 (165 SE2d 581) to support its contention that her evidence was not competent to support a verdict. But these authorities do not support the premise of the majority opinion. Studebaker is as to suit on warranty of an automobile, and has no relationship to personal services. Bennett is as to damage to two trucks and three trailers, and has no relationship to personal services. The only one of the three cases cited by the majority opinion here that relates to personal services is Woodruff, wherein there was no evidence to show that the actual work done was worth a particular amount; and no evidence to show how many days plaintiff worked or the amount of work performed. Contrary to these facts, in the case now under consideration the plaintiff testified as to the number of hours she worked, and gave her opinion as to the worth of the actual work done. She testified that she worked 21,480 hours (7 years), and that the total value was $100,000. Only 4 years of this time was within the statute of limitation, and by simple computation 4/7ths of the total hours and 4/7ths of the total amount claimed are clearly and competently shown by her testimony.
For all of the foregoing reasons, I respectfully dissent and would vote to affirm the trial court and uphold the verdict and judgment for the plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363450/ | 131 Ga. App. 48 (1974)
205 S.E.2d 79
BAKER
v.
THE STATE.
48869.
Court of Appeals of Georgia.
Argued January 16, 1974.
Decided January 30, 1974.
Rehearing Denied February 21, 1974.
*49 Emily Carssow, for appellant.
Dewey Hayes, District Attorney, Arthur K. Bolton, Attorney General, William F. Bartee, Jr., David L. G. King, Jr., Assistant Attorneys General, for appellee.
DEEN, Judge.
1. Theft by conversion exists where the defendant, after receiving funds from another under an agreement to make a specified application of them, knowingly converts the money to his own use in violation of the agreement. Code Ann. § 26-1808. The agreement between the defendant and the respective prosecutors here was that Baker "shall furnish all labor and materials needed for construction" of a described house for a designated price to be paid in three equal instalments. The evidence in each case was that the first instalment was paid in advance, the second instalment was to be paid after the house was "dried in" and that this initial phase of the work was diligently accomplished; that after the second instalment was paid there was little or no work done, the defendant was hard to find, the allowed contract time expired and large bills were run up for materials as a result of which liens were filed against the owners.
The gravamen of the offense clearly is fraudulent conversion, not failure to comply with a contractual obligation. Smith v. State, 229 Ga. 727, 729 (194 SE2d 82). This is a species of larceny after trust. It is the larcenous intent, not merely the failure to pay, which must be proved. Under the somewhat similar former statute (Code of 1933, § 26-2812) it was held that the state proved its case on proof by testimony admitted by the defendant to be true that he had received $15,988.90 for the construction of a residence, had disbursed toward this construction only $11,601.16 of this amount, had not *50 accounted for the balance, and had incurred debts for labor and materials which were unpaid and resulted in liens against the property of the owner. "When these facts appeared, the burden of proof shifted to the defendant to account for the funds which he had received from the prosecutor, by showing that the entire sum was used for the payment of labor and material." Moore v. State, 104 Ga. App. 93, 94 (121 SE2d 75). It is of course true that under former Code § 26-2812, in order to make out the offense it was necessary to show that the money or some part of it had been used for some "other purpose than to pay for labor or service performed on or materials furnished by his order for this specific improvement." Under the present statute the meaning of the term "to convert to one's own use" may depend on the terms of the contract; for example, whether it stipulates that the money is first to be applied to labor and materials. Is the defendant entitled to urge the value of his own labor in the erection of the building, or must he first apply all sums received to the payment of the labor and materials of others? It is obvious, in either event, that mere proof that it cost a designated sum over and above the contract price to complete the building after its quasi abandonment by the defendants is irrelevant to the conversion charge, the question being whether the defendant took funds paid him for the construction and knowingly put them to other uses. Thus, the Denham indictment alleged that the defendant had converted $5,700. Mrs. Denham testified that she had arrived at this figure because "he agreed to build us a house for $23,000, and when we finished the house [paying another contractor] and paid up all of his debts that he left on the house it cost us $5,700 [over the contract figure]." Such testimony may establish a breach of contract but not a fraudulent conversion. In the same way, if all payments to the defendant had been accounted for by him as having gone into the construction, the fact that liens for unpaid materials remained would not be sufficient evidence of conversion. There was, however, evidence going to both counts of a large volume of unpaid bills and materialmen's liens and of payments subsequently made to the defendant, some of them apparently for the explicit *51 purpose of paying off certain bills which, however, continued to remain unpaid. In view of the fact that the case is to be retried we make no specific finding on the evidence other than to point out that the proof of conversion vel non lies in the explanation or failure to explain proved discrepancies between amounts received and disbursements going toward the completion of the contract.
2. Checks were offered in evidence by the defendant to show disbursements made by the defendant in carrying out the building contracts involved. The checks were objected to on the ground that notations appeared to have been added on to them and the objections sustained. The defendant then called Dorothy Baker for the purpose of proving the purpose of the expenditures. Appellant's counsel contends that this "would have established the expenditure of more than $40,000 paid out by appellant in furtherance of building houses for the Holmses and the Denhams." The objection to calling the witness was phrased: "At this time I would like to see her name on the list of witnesses. There are some that I can't read. I object to anybody else being called that I haven't been furnished a list of. I object to anybody else being called without having been furnished a list. I do not see her name on the list. I will state further it's not on the list that she started with." The ruling of the court seems to indicate that the rule as to sequestration had been invoked, and that the refusal to allow the witness to testify was based on this ground. While there are many cases dealing with the court's discretionary power where sequestration has not properly been observed, the rule appears to be as stated in McCartney v. McCartney, 217 Ga. 200 (7), 201 (121 SE2d 785): "A party's right to have the testimony of any witness, when material to the assertion of his rights, is unabridged, except by the exceptions under Code § 38-1603, and this right is unaffected by the rule of sequestration of witnesses under Code § 38-1703. May v. State, 90 Ga. 793 (17 SE 108); Thomas v. State, 7 Ga. App. 615 (67 SE 707); Cunningham v. State, 97 Ga. 214 (22 SE 954); McWhorter v. State, 118 Ga. 55 (44 SE 873); Phillips v. State, 121 Ga. 358 (3) (49 SE 290). Thus, the disobedience of an order of *52 sequestration is a mere irregularity, subjecting the offender to punishment for contempt and may affect his credit as a witness, but it does not render the witness incompetent." If this witness could have in fact established regular disbursements by the defendant in the amount claimed by counsel in her brief it is obvious that such evidence would be vital to him, and that, in any event, it was pertinent and relevant to the case. The overall question is intent to defraud, rather than failure to comply with the contract, and in view of this in conjunction with the lack of any other evidence as to disbursements by the defendant, we feel that a new trial should be granted.
3. Since the trial of this case, it has been held in Wade v. State, 231 Ga. 131 (200 SE2d 271), that where the defendant is convicted and sentenced on more than one count of a multi-count indictment the sentences are to run concurrently unless otherwise specified by the jury.
Judgment reversed. Hall, P. J., and Stolz, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363451/ | 205 S.E.2d 617 (1974)
22 N.C. App. 40
Juanita HOWELL, by her guardian ad litem, Thomas L. Howell, and Thomas L. Howell, Individually,
v.
John HALIBURTON, d/b/a Bebber's Grocery, et al.
No. 7422SC175.
Court of Appeals of North Carolina.
June 5, 1974.
*618 Chambers, Stein, Ferguson & Lanning by Fred A. Hicks, Charlotte, for plaintiffs-appellees.
Mraz, Aycock, Casstevens & Davis by Frank B. Aycock, III, Charlotte, for defendant-appellant.
PARKER, Judge.
Whether good cause exists to set aside an entry of default pursuant to Rule 55(d) is a matter addressed to the sound discretion of the trial court, Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S. E.2d 794, and its ruling will not be disturbed unless a clear abuse of discretion is shown, Hubbard v. Lumley, 17 N.C.App. 649, 195 S.E.2d 330. On the facts of this case, no abuse of discretion has been shown.
The affidavits presented by defendant Bottling Co. in support of its motion indicated that plaintiffs' summons and complaint were served upon Donald L. McCollum, appellant's assistant secretary-treasurer, on 28 August 1972. That same day McCollum, in accordance with the claim reporting procedure of appellant's products liability insurer, Appalachian Insurance Company, reported plaintiffs' claim to Appalachian by a long distance phone call and mailed the summons and complaint to Appalachian. After 28 August 1972, neither McCollum nor any other officer or employee of defendant Bottling Co. had anything further to do with the matter until receipt of a letter, dated 3 May 1973, from plaintiffs' counsel advising of the 16 November 1972 entry of default. After 28 August 1972, Appalachian took no affirmative action to answer or otherwise defend in the case until, after being advised on 7 May 1973 of the entry of default, it contacted local counsel on 28 or 29 June 1973 to attend to the matter.
These facts, which were substantially reflected in the trial court's findings of fact, do not compel a conclusion that appellant demonstrated good cause to have the entry of default set aside. Defendant Bottling Co., after transmitting plaintiffs' complaint and summons to Appalachian on *619 the day of service, paid no further attention to the lawsuit until more than eight months later. Such continued inattention distinguishes the instant case from the situations presented in Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735, and in Hubbard v. Lumley, supra. When the trial court exercises its discretion in considering a motion to set aside an entry of default, it is entirely proper for the court to give consideration to the fact that default judgments are not favored in the law. At the same time, however, it is also true that rules which require responsive pleadings within a limited time serve important social goals, and a party should not be permitted to flout them with impunity.
No abuse of the trial court's discretion being here shown, the order appealed from is
Affirmed.
VAUGHN and CARSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363454/ | 131 Ga. App. 269 (1974)
205 S.E.2d 444
JESTER
v.
THE STATE.
49049.
Court of Appeals of Georgia.
Submitted February 4, 1974.
Decided March 13, 1974.
Byrd, Groover & Buford, Floyd M. Buford, Alfred D. Fears, for appellant.
Edward E. McGarity, District Attorney, for appellee.
QUILLIAN, Judge.
The defendant was convicted of operating an automobile upon the public highway while under the influence of intoxicating liquors. He filed a motion for a new trial which was overruled and an appeal was filed. Held:
1. The defendant contends that the court's instruction to the jury in regard to reasonable doubt was error because it did not contain a provision as to the credibility of witnesses. The charge excepted to stated: "It means a doubt which grows out of the case on trial for the want, lack, insufficiency, or conflict in the testimony, or such a doubt as a conscientious juror may have after an honest sincere effort to arrive at the truth of the case." Immediately following the charge on reasonable doubt the trial judge instructed the jury as to the credibility of witnesses. The enumeration of error is without merit. Bonner v. State, 152 Ga. 214 (109 SE 291).
2. The defendant's second enumeration of error argues that the trial judge erred in failing to instruct the jury as to what weight and credit should have been given the defendant's sworn testimony. It should be noted that this appeal involves the law in regard to this issue prior to Ga. L. 1973, p. 292.
In support of his position the defendant cites Pickler v. State, 220 Ga. 224 (138 SE2d 171), in which a new trial was granted because the trial judge instructed the jury as to the defendant's right to make an unsworn statement *270 when in fact he had testified under oath. The basis of that decision was that the charge was not adapted to the record and not because of any failure to instruct the jury as to what weight was to be given the defendant's testimony.
It has been clearly held that it was error for the trial judge to instruct the jury that the defendant had the right to be sworn as a witness when he had made an unsworn statement. Lynch v. State, 108 Ga. App. 650 (134 SE2d 526). It has also been held that it was error for the trial judge to instruct the defendant in the jury's presence as to his right to testify or make an unsworn statement. Wynn v. State, 230 Ga. 202 (196 SE2d 401). However, we know of no authority for holding it is error for the trial judge to fail to instruct the jury as to what weight is to be given the defendant's testimony, because it should be given the same weight and credit as any other witness. In view of this it would seem the better practice would be not to single out the defendant for special attention as to the weight and credibility of his sworn testimony.
In the event the trial judge had charged as to the credibility of the accused a suggested charge was stated in Hudson v. State, 108 Ga. App. 192 (132 SE2d 508, 100 ALR2d 1395). However, nothing stated in the Hudson case was authority for the position that the court should have given such an instruction.
Judgment affirmed. Bell, C.J., and Clark, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363456/ | 131 Ga. App. 159 (1974)
205 S.E.2d 522
In re PICKETT.
49106.
Court of Appeals of Georgia.
Argued February 5, 1974.
Decided March 5, 1974.
Gary R. Brenner, John L. Cromartie, Jr., Bettye H. Kehrer, for appellant.
J. Johnson Hall, Hugh Lawson, contra.
BELL, Chief Judge.
The appellant, a married man, seeks to legitimate his son born during his marriage but mothered by a woman not his wife. The natural mother consented. The trial court refused to enter an order legitimating on grounds that to permit a married man to legitimatize a child conceived during wedlock by a woman not his wife would be contrary to public policy and to the laws favoring monogamy. The court concluded that it was the intent of the legislature that legitimation proceedings under Code § 74-103 were only available to unmarried fathers. Held:
*160 Under the common law of England illegitimate children could not be rendered legitimate by any subsequent act of their parents. They were unfortunate members of society branded forever by the lusts of their mothers and fathers. The only possible method of legitimization was by the affirmative act of Parliament and so it remains to this day in all common law jurisdictions, i.e., legitimization is possible only by legislative grant. Unfortunately, while the General Assembly of Georgia has acted to erase most of the legal blight,[1] no governmental entity can eliminate the social stigma attached to the status by inordinate human malice. Our statute, Code § 74-103, states flatly that "A father of an illegitimate child may render the same legitimate by petitioning the superior court ... and praying the legitimation of such child." Being in derogation of the common law, the statute must be strictly construed. The statute's clear language shows the legislative intent to be that the father alone has the right to legitimate a child and this whether the father is married or single. The father's wife has no legal status to object even though the child was conceived by another woman during the wife's marriage to the father. The statute does not concern itself with the effect of legitimization on domestic tranquility nor does it deny legitimization to children born through adulterous relationships. The statute does not say or imply that legitimization is under any circumstances repugnant to monogamy. Whatever ultimate results legitimization under the facts in this case may bring to other legal relationships, those possibilities cannot abrogate the *161 manifested legislative intent that the father has the statutory right to render his son legitimate. Under the statute as it presently reads the father's right to legitimate is absolute subject only to the qualification that the natural mother may object and if she shows valid reasons why the petition should not be granted, the judge may deny it.
The trial judge erred and his judgment is reversed with directions to enter the order legitimizing the child.
Judgment reversed with direction. Quillian and Clark, JJ., concur.
NOTES
[1] The statute does not have the effect of rendering legitimate a bastard child according to the full significance of that term, but only to legitimate so as to enable the child to inherit from his father, to enjoy his name and like amenities. The authorized right to inherit does not extend to his father's wife who is not his mother nor to his half brothers and sisters. Hicks v. Smith, 94 Ga. 809 (22 SE 153). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363440/ | 232 Ga. 37 (1974)
205 S.E.2d 194
CAMP et al.
v.
DELTA AIR LINES, INC. et al. BLACKMON
v.
DELTA AIR LINES, INC. et al.
28597, 28598.
Supreme Court of Georgia.
Argued February 11, 1974.
Decided April 4, 1974.
Arthur K. Bolton, Attorney General, Richard L. Chambers, H. Perry Michael, Assistant Attorneys General, for appellants.
Gambrell, Russell, Killorin, Wade & Forbes, Theodore M. Forbes, Jr., E. Smythe Gambrell, Guy Parker, Charles M. Lokey, for appellees.
INGRAM, Justice.
The single question presented by these two appeals is whether Delta Air Lines, Inc., is subject to ad valorem taxation for space rented in the terminal of Hartsfield Atlanta International Airport under an agreement between Delta and the City of Atlanta.
The facts leading up to the present litigation are substantially as follows: In May of 1961, Delta entered into an agreement with the City of Atlanta for occupancy of space in the newly-constructed terminal building at the airport. From then until 1969 Delta was not taxed and did not return taxes for this property. In August of 1969, however, the tax assessors (Joint City of Atlanta-Fulton County Board of Tax Assessors) advised Delta that *38 there would be added a new item to Delta's list of taxable property, which being "leasehold interests ... exclusive space in Atlanta Airport Terminal." The property was assessed at $3,100,000. Delta then protested to the tax assessors both the taxability of the property and its assessed value, but this protest was ineffectual because in June of 1970, payment of $198,714.40 by Delta was demanded for taxes claimed due and owing on the alleged "leasehold interest." It was at this point that Delta brought suit against the tax assessors and the Revenue Commissioner of Georgia seeking to enjoin the assessment and collection of taxes with respect to the rented airport terminal property. Both Delta and the defendants filed motions for summary judgment on the issue whether Delta had a taxable interest in the airport property. It is from the grant of Delta's motion for summary judgment and the denial of the defendants' motion that the defendants have now appealed to this court. The appeal in Case No. 28597 is that filed by the City of Atlanta-Fulton County Tax Assessors, and the appeal in Case No. 28598 is that of the State Revenue Commissioner. Both appeals assert identical errors on the judgments of the trial court and consequently will be treated together in this opinion.
The appellants state the issue presented for decision is whether "the lease between Delta Air Lines, Inc., and the City of Atlanta ... merely granted to Delta Air Lines, Inc., a usufruct which was not subject to ad valorem taxation, ... [or whether] the lease granted an estate for years which was a property right in Delta Air Lines, Inc. which was subject to ad valorem taxation."
What is a usufruct? Code § 61-101 provides that: "When the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenant accepts the grant, the relation of landlord and tenant exists between them. In such case no estate passes out of the landlord, and the tenant has only a usufruct, which he may not convey except by the landlord's consent and which is not subject to levy and sale; and all renting or leasing of such real estate for a period of time less than five years shall be held to convey only the right to possess *39 and enjoy such real estate, and to pass no estate out of the landlord, and to give only the usufruct, unless the contrary shall be agreed upon by the parties to the contract and so stated therein." A different relationship exists under an estate for years. The Code states that, "An estate for years is one which is limited in its duration to a period fixed or which may be made fixed and certain. If it is in lands, it passes as realty. It may be for any number of years, provided the limitation is within the rule against perpetuities." Code § 85-801. See also Code § 85-803.
An estate for years is a taxable estate. Delta Air Lines v. Coleman, 219 Ga. 12 (131 SE2d 768). On the other hand, a mere usufruct, sometimes referred to as a license to use, is not a taxable estate. Whitehead v. Kennedy, 206 Ga. 760 (58 SE2d 832). Briefly stated, the reason a usufruct is not considered to be a taxable estate is because the fee estate in the property remains with the lessor and is undisturbed by the agreement for the lessee to use the property. A leading case dealing with whether a particular agreement creates a usufruct or an estate for years is Warehouses, Inc. v. Wetherbee, 203 Ga. 483 (46 SE2d 894). As in the construction of all agreements, the cardinal rule to be used by the court is that the terms of the instrument itself must be scrutinized to ascertain what interest the parties intended to be conveyed or demised by it. See, also, Hutcheson v. Hodnett, 115 Ga. 990 (42 S.E. 422) (1902).
We note that, under the provisions of Code § 61-101, where the term of the lease is less than five years a rebuttable presumption arises that only a usufruct is created by the instrument. A concomitant presumption, recognized by this court in Warehouses, Inc. v. Wetherbee, supra, is that where the term of the lease is for more than five years, there is a presumption that an estate for years is created by the agreement of the parties. In each instance, the agreement involved must be carefully searched for the intention of the parties. The present lease, being for a term of thirty years, presumptively creates an estate for years. The question to be resolved is whether the terms of the present lease agreement overcome this presumption and establish that *40 the parties intended only a usufruct. The key inquiry turns upon whether various restrictions in the agreement, limiting Delta's use of the premises, sufficiently negate the presumption that this is an estate for years.
Appellants argue the presumption that an estate for years was created by this agreement is not negatived either by express language or by necessary implication from provisions in the agreement since the restrictions contained therein are reasonable for space leased in the airport terminal to an airline. Appellants rely upon Warehouses, Inc. (p. 490) and similar holdings to urge that: "A contract which ordinarily would be construed to create an estate for years is not reduced to a mere usufruct because certain limitations are put upon its use. The interest so passing may be encumbered or somewhat limited, without necessarily changing the character of the estate." Delta relies principally upon the airport lease cases of Southern Airways Co. v. DeKalb County, 216 Ga. 358 (116 SE2d 602); and Henson v. Airways Service, 220 Ga. 44 (136 SE2d 747). Delta argues that its "rights are so `narrowed by the terms of the contract itself' as to the uses it may make of the premises, as to the assignability of its interest, as to subleasing, as to its rights to make improvements, as to subjection of Delta to rules and regulations made by the landlord city, and otherwise that the Rental Agreement `convey(s) a usufruct only.'"
We have examined the specific provisions of the present agreement and conclude from doing so that the restrictions imposed upon Delta by the City of Atlanta, though reasonable and appropriate under the circumstances, nevertheless are incompatible with an estate for years as defined by Georgia law. We believe the agreement itself clearly reveals that Delta has only a circumscribed and limited "use of the premises and facilities" characteristic of a usufruct. The principles of decision applied by this court in Southern Airways Co. v. DeKalb County, supra, are applicable here and determine our judgment to affirm the trial court. Under the present agreement, the city obligates itself to perform a number of duties which generally are not characteristic of *41 grantors of estates for years. For example, the city agrees to perform various service and maintenance duties for the property; to provide heating, fire and extended coverage insurance, sewage and plumbing maintenance and water. Delta's subletting and assignment rights are restricted in a manner inconsistent with an estate for years which normally can be alienated without the grantor's consent. Delta is required by the agreement to secure the city's approval before making improvements to the rented space and it may not erect signs or other advertising without city approval. In addition, Delta is bound to obey all reasonable rules and regulations respecting "the use of the premises and facilities leased" as may be adopted by the city.
These provisions are illustrative of the reason we believe Delta does not have "an estate for years, carry(ing) with it the right to use in as absolute a manner as a greater estate." See Code § 85-803; State of Ga. v. Davison, 198 Ga. 27 (31 SE2d 225); and Evans Theatre Corp. v. DeGive Investment Co., 79 Ga. App. 62 (52 SE2d 655). The quantity and quality of the lessee's rights under the present lease point to a conclusion that it creates only a usufruct. See Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 (49 SE2d 779).
We agree with the trial court that Delta has only a usufruct under the present agreement. The judgment in both cases will be affirmed.
Judgments affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265021/ | 54 Cal. App. 4th 53 (1997)
LOS ANGELES LINCOLN PLACE INVESTORS, LTD., et al., Plaintiffs and Appellants,
v.
CITY OF LOS ANGELES et al., Defendants and Appellants.
Docket No. B101751.
Court of Appeals of California, Second District, Division Five.
April 7, 1997.
*56 COUNSEL
James K. Hahn, City Attorney, Claudia McGee Henry and Anthony Saul Alperin, Assistant City Attorneys, and Jeri L. Burge, Deputy City Attorney, for Defendants and Appellants.
Irell & Manella, Allan J. Abshez and Elizabeth A. Camacho for Plaintiffs and Appellants.
[Opinion certified for partial publication.[*]]
OPINION
TURNER, P.J.
I. INTRODUCTION
The City of Los Angeles (city) appeals from a judgment declaring Los Angeles Municipal Code former section 91.0303(a)5.[1] unconstitutional as applied to plaintiffs, Los Angeles Lincoln Place Investors, Ltd. (Lincoln) *57 and Elkgrove Investors, Ltd. (Elk). The trial court found that the ordinance was preempted by Government Code section 7060 et seq. (commonly known as the Ellis Act) and ordered the city to issue a demolition permit to plaintiffs pursuant to Code of Civil Procedure section 1085. Plaintiffs cross-appeal from that portion of the judgment which concludes the ordinance is unconstitutional as applied to them. Plaintiffs seek a clarification declaring the ordinance invalid as to any owner seeking to withdraw accommodations within the meaning of the Ellis Act. In the published portion of this opinion, we address the issue of whether the Ellis Act prohibited the city from imposing the disputed conditions on the issuance of a demolition permit. We affirm.
II. BACKGROUND
The mandate petition, which was filed on October 19, 1995, sought: a declaration that former section 91.0303(a)5, was invalid; an injunction prohibiting the city from enforcing former section 91.0303(a)5; and a writ of mandate compelling the city to issue a demolition permit to plaintiffs for a two-story, seventeen-unit apartment building, a laundry room and two detached garages, on lot 7 of tract 15124, commonly known as 960 Elkland Place. The petition alleged Lincoln was the beneficial owner of the property while Elk held the legal title. Plaintiffs sought to exercise their rights to demolish the building pursuant to Government Code section 7060 et seq., commonly known as the Ellis Act. Acting through their demolition contractor, Sovereign Contractor, Inc., plaintiffs attempted to obtain a permit to demolish the building beginning in August 1995. Sovereign filed and sought to process a standard demolition permit application with the city's department of building and safety (department). Former section 91.0303(a) provides the department shall issue a demolition permit once it has determined the plans are in conformity with relevant city codes and ordinances. Plaintiffs complied or offered to comply with the codes and ordinances. The department refused to further process the permit based on former section 91.0303(a)5. That provision of law provides that a demolition permit shall be withheld until any plans to construct a condominium, stock cooperative or community apartment project are approved by the city. Also, former section 91.0303(a)5.B provided a demolition permit could be withheld if the owner waived "the right to construct on the subject lot, a condominium, stock cooperative or community apartment project for a period of ten years from the date of the demolition...." The city answered the petition and asserted a number of affirmative defenses including plaintiffs' alleged failure to exhaust administrative remedies.
Plaintiffs filed a motion for judgment on the pleadings on the claims for declaratory relief and writ of mandate on December 20, 1995. They asserted *58 former section 91.0303(a)5 was unlawful and invalid because it conflicted with the Ellis Act. The city opposed the motion on the following grounds: Plaintiffs failed to exhaust their administrative remedies in that they could have but did not seek a "slight modification" and obtained a waiver or alternation of the requirements pursuant to section 98.0403.1(a)(10); the Ellis Act did not preempt enforcement of section former 91.0303(a)5 because pursuant to Government Code section 7060.7, subdivision (1) the act did not intend to "[i]nterfere with local government authority over land use, including regulation of the conversion of existing housing to condominiums or other subdivided interests"; former section 91.0303(a)5 did not impose substantive barriers to a landowner's right to go out of business but only constituted a procedural requirement; former section 91.0303(a)5 related to the future uses of the property on which the demolition was sought as a factor in maintaining the consistency of the city's general plan as mandated by Government Code section 66474.61; and the Ellis Act was inapplicable to this case pursuant to Government Code section 7060.7, subdivision (3) because plaintiffs were only seeking to withdraw 17 of 795 residential units which was fewer than all accommodations from the housing market.
After taking the matter under submission, the trial court granted the writ of mandate and declared that former section 91.0303(a)5 was invalid as applied to plaintiffs' demolition permit applications in that it conflicted with the Ellis Act. The trial court concluded the ordinance improperly sought to restrain plaintiffs from obtaining demolition permits by requiring future land use approvals and by imposing penalties for the lack of such approval. The trial court further determined that plaintiffs had exhausted their administrative remedies. The trial court ordered the city to issue the demolition permits. The trial court entered judgment on April 4, 1996. The city filed a timely appeal. Plaintiffs filed a timely cross-appeal from that portion of the judgment declaring the ordinance unconstitutional as applied to them seeking clarification that the ordinance was invalid on its face.
III. DISCUSSION
A. The Standard of Review
The city argues the trial judge erred in declaring former section 91.0303(a)5 unconstitutional and issuing a writ of mandate compelling the city to issue the demolition permits pursuant to Code of Civil Procedure section 1085. (1) The Supreme Court has held: "Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and the petitioner has a clear and beneficial right *59 to performance. [Citations.]" (Payne v. Superior Court (1976) 17 Cal. 3d 908, 925 [132 Cal. Rptr. 405, 553 P.2d 565].) (2) When there is review of an administrative decision pursuant to Code of Civil Procedure section 1085, courts apply the following standard of review: "`"[J]udicial review is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law."' [Citations.]" (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal. 3d 28, 34-35, fn. 2 [112 Cal. Rptr. 805, 520 P.2d 29]; accord, California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal. 3d 200, 212 [157 Cal. Rptr. 840, 599 P.2d 31].) (3) Because the present case involves the interpretation of a statute, we engage in de novo review of the trial court's determination to issue the writ of mandate. (Burden v. Snowden (1992) 2 Cal. 4th 556, 562 [7 Cal. Rptr. 2d 531, 828 P.2d 672]; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 699 [170 Cal. Rptr. 817, 621 P.2d 856]; e.g., Riveros v. City of Los Angeles (1996) 41 Cal. App. 4th 1342, 1349-1350 [49 Cal. Rptr. 2d 238]; Jefferson v. Compton Unified School Dist. (1993) 14 Cal. App. 4th 32, 37-38 [17 Cal. Rptr. 2d 474].)
B. The Preemption of the Ordinance
(4a) The city does not argue that plaintiffs were not qualified to receive the demolition permit. Rather, the city contends the trial court erroneously concluded it was required to issue the demolition permit because former section 91.0303(a)5. was preempted by the Ellis Act. (5) Article XI, section 7 of the California Constitution provides: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Where a local ordinance or regulation conflicts with general laws, the municipal law is void. (Morehart v. County of Santa Barbara (1994) 7 Cal. 4th 725, 747 [29 Cal. Rptr. 2d 804, 872 P.2d 143]; accord, Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal. 4th 893, 897 [16 Cal. Rptr. 2d 215, 844 P.2d 534]; Cohen v. Board of Supervisors (1985) 40 Cal. 3d 277, 290 [219 Cal. Rptr. 467, 707 P.2d 840].) A conflict exists where the local legislation "`duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations].'" (People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal. 3d 476, 484 [204 Cal. Rptr. 897, 683 P.2d 1150].) The Supreme Court has held: "Local legislation is `duplicative' of general law when it is coextensive therewith. [Citation.] [¶] Similarly, local legislation is `contradictory' to general law when it is inimical thereto. [Citation.] [¶] Finally, local legislation enters an *60 area that is `fully occupied' by general law when the Legislature has expressly manifested its intent to `fully occupy' the area [citation], or when it has impliedly done so in light of one of the following indicia of intent: `(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the' locality [citations]." (Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal.4th at pp. 897-898; see, e.g., IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal. 4th 81, 85-102 [2 Cal. Rptr. 2d 513, 820 P.2d 1023] [no preemption of long-standing local authority to regulate hazardous waste storage]; Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal. 3d 408, 426 [261 Cal. Rptr. 384, 777 P.2d 157] [Tanner Act (Health & Saf. Code, §§ 39650-39674) does not prohibit local air pollution districts from interim regulation of nonvehicular emissions until action by the State Air Resources Board]; Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 290-302 [San Francisco's ordinances regulating escort services not preempted by statewide laws regulating sexual conduct]; Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal. 3d 878, 881-888 [218 Cal. Rptr. 303, 705 P.2d 876] [no preemption of right of local school districts to impose school impact fees to finance specified temporary facilities]; People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at pp. 484-488 [no preemption of local regulations concerning pesticide use]; Lancaster v. Municipal Court (1972) 6 Cal. 3d 805, 808-810 [100 Cal. Rptr. 609, 494 P.2d 681] [local massage ordinance preempted by statewide regulation of criminal sexual activity]; In re Hubbard (1964) 62 Cal. 2d 119, 122-128 [41 Cal. Rptr. 393, 396 P.2d 809], disapproved on another point in Bishop v. City of San Jose (1969) 1 Cal. 3d 56, 63, fn. 6 [81 Cal. Rptr. 465, 460 P.2d 137] [statewide laws concerning "`"games of chance"'" did not preempt City of Long Beach prohibition against panguingui].)
(4b) Here, the city claims the Ellis Act did not preempt former section 91.0303(a)5. as applied to plaintiffs. In 1985, the Legislature enacted the Ellis Act in response to the Supreme Court's decision of Nash v. City of Santa Monica (1984) 37 Cal. 3d 97, 102-109 [207 Cal. Rptr. 285, 688 P.2d 894]. In Nash, the Supreme Court upheld a constitutional challenge to a local rent control ordinance brought by a landlord who sought to evict his tenants *61 and demolish the building instead of waiting until they vacated it. Government Code section 7060.7[2] specifically states: "It is the intent of the Legislature in enacting this chapter to supersede any holding or portion of any holding in Nash v. City of Santa Monica, 37 Cal. 3d 97 [207 Cal. Rptr. 285, 688 P.2d 894] to the extent that the holding, or portion of the holding, conflicts with this chapter, so as to permit landlords to go out of business...."
Government Code section 7060 provides in part: "(a) No public entity, as defined in Section 811.2, shall, by statute, ordinance, or regulation, or by administrative action implementing any statute, ordinance or regulation, compel the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease." Our colleagues in Division Seven of this appellate district stated in City of Santa Monica v. Yarmark (1988) 203 Cal. App. 3d 153, 165 [249 Cal. Rptr. 732]: "The legislative history of the Act consistently demonstrates the purpose of the Act is to allow landlords who comply with its terms to go out of the residential rental business by evicting their tenants and withdrawing all units from the market, even if the landlords could make a fair return, the property is habitable, and the landlords lack approval for future use of the land. In addition to the statement of legislative intent contained in the Act (Gov. Code, § 7060.7), the various legislative committee reports concerning the Act indicate the Act was intended to overrule the Nash decision so as to permit landlords the unfettered right to remove all residential rental units from the market, consistent of course, with guidelines as set forth in the Act and adopted by local governments in accordance thereto. (See Sen. Com. on Judiciary (1985-1986) Analysis of Sen. Bill No. 505, Local Controls Residential Real Property, p. 2 [`The purpose of this bill is to overturn Nash and to provide landlords the unfettered right to remove rental units from the *62 marketplace']; Sen. Rules Com. Analysis of Sen. Bill No. 505 (Sept. 12, 1985) p. 3 [`This bill would preempt any local ordinance that prohibits landlords from removing a rental unit from the marketplace']; Assem. Com. on Judiciary Hg. Rep. on Sen. Bill 505 (Aug. 20, 1985) p. 3 [`This bill would preempt any local ordinance that prohibits landlords from removing a rental unit from the marketplace']; Assem. Off. of Research, Conf. Com. Rep. on Sen. Bill No. 505 (Sept. 10, 1985) p. 4 [`This bill would preempt any local ordinance that prohibits landlords from removing a rental unit from the marketplace'].)" Thus, the Ellis Act was clearly meant to preempt any local ordinance that prohibited a landlord from removing its rental units from the marketplace. (Gov. Code, § 7060.7; Javidzad v. City of Santa Monica (1988) 204 Cal. App. 3d 524, 530 [251 Cal. Rptr. 350]; City of Santa Monica v. Yarmark, supra, 203 Cal. App.3d at p. 165; accord, Channing Properties v. City of Berkeley (1992) 11 Cal. App. 4th 88, 94 [14 Cal. Rptr. 2d 32].)
Former section 91.0303(a)5 provides in part: "The Department shall have the authority to withhold a demolition or relocation permit for a residential building composed of two or more residential rental units, under the following circumstances: [¶] A. When the applicant states that the purpose for demolition or relocation is to construct a condominium, stock cooperative or community apartment project, permits shall be withheld until all necessary tentative tract or preliminary parcel maps for such new subdivision have been approved by the City. [¶] B. When the applicant states that the demolition or relocation is not for the purpose of constructing a condominium, stock cooperative or community apartment project, permits shall be withheld until the Department receives a sworn affidavit from the real property owner, which has been recorded by the County Recorder, stating that said owner waives the right to construct on the subject lot, a condominium, stock cooperative or community apartment project for a period of ten years from the date of the demolition or relocation, and that such waiver will bind any purchaser, encumbrancer, assignee, devisee and transferee of said property during said ten-year period. [¶] C. This Exception 5 shall not apply if the building is to be demolished and is: [¶] (i) Constructed of unreinforced masonry construction and was built pursuant to a building permit issued prior to October 1, 1933, or [¶] (ii) To be demolished pursuant to a demolition order issued by the Department under authority set forth in Division 89 of Article 1 of Chapter IX of the Los Angeles Municipal Code. [¶] D. This Exception 5 shall not apply if the applicant demonstrates to the satisfaction of the Department that the site will be developed with housing for low-to-moderate income households, which housing is be developed, constructed or acquired with federal, state or local government financial assistance. [¶] E. This Exception 5 shall not apply to two-family dwellings or *63 to apartment houses and apartment hotels containing three dwelling units, provided that at least one dwelling unit in each such building is occupied by a record owner of the property."
The city claims its ordinance is not preempted because it does not provide a substantive barrier to a landlord's right to go out of the rental business but only imposes a procedural requirement that must be met before the application to demolish is granted. According to the city, the ordinance is permissible because: (1) restricting the right to obtain a demolition permit for a dwelling does not necessarily limit the rights of the owner under the Ellis Act; (2) the ordinance only looks toward future use of the property which is permitted by Government Code section 7060.7, subdivision (1); (3) the ordinance is connected to the granting or denial of subdivisions as permitted by Government Code section 7060.1, subdivision (b); and (4) the Ellis Act was not intended to protect plaintiffs who are seeking to demolish only one 17-unit lot of a 795-unit complex.
Most of the issues raised by the city in this case were considered and rejected by Division Three of this appellate district in the decision of Javidzad v. City of Santa Monica, supra, 204 Cal. App.3d at pages 529-531. In Javidzad, our colleagues of Division Three invalidated a Santa Monica rent control ordinance which conditioned the issuance of a demolition permit on: the landowner securing a removal permit; the permit required as a prerequisite a showing the landowner could not make a fair return on the rental units; in the alternative, the landowner could demonstrate the property was uninhabitable; and finally as an additional alternative, the landowner could promise to develop new units subject to rent control. Our Division Three colleagues concluded the ordinance conflicted with the Ellis Act because it conditioned the landowner's right to go out of business on compliance with requirements which were not found in Government Code section 7060 et seq. (204 Cal. App.3d at p. 530.) The court rejected the City of Santa Monica's claim the ordinance was consistent with the Ellis Act because it was merely a land use regulation which authorized the permanent demolition, conversion, or alteration of the units. (Ibid.) Javidzad explained the contention was unpersuasive because the ordinance did not purport to regulate the subsequent use of the property following its withdrawal from the rental market. (Ibid.) Instead, the ordinance directly conflicted with the Ellis Act because the ordinance prescribed standards governing the approval of a removal permit in the first instance which infringed on the landowner's right to go out of the rental housing business. (Ibid.) Javidzad also rejected as "an absurdity" the claim that the Ellis Act was intended to do nothing more than protect the landowner's right to go out of business by ejecting *64 tenants and did not intend to encompass ordinances which deny a removal permit which have the effect of precluding redevelopment of the property. (Id. at pp. 530-531.) Our colleagues concluded, "Denying ... a removal permit to a landlord who has gone out of the rental housing business imposes a prohibitive price on the exercise of the right under the Act." (Id. at p. 531.)
In this case, the city's ordinance, as applied, restricted plaintiffs' right to demolish their building by refusing to issue a permit unless they agreed to sign a covenant to restrict the use of the land not only for themselves but for "any purchaser, encumbrancer, assignee, devisee and transferee" for a period of 10 years after the date of demolition. (Former § 91.0303(a)5.B.) Also, the city's ordinance exempted the restriction on issuing the demolition permit if the plaintiff intended to use the property to develop low income housing. (Former § 91.0303(a)5.D.) Thus, the ordinance in this case, like the one in Javidzad, violated the provisions of Government Code section 7060 et seq. because it impermissibly infringed on the owner's right to simply go out of the rental business in the first instance by refusing to issue a demolition permit based on conditions which are not a part of the Ellis Act. (Gov. Code, §§ 7060, subd. (a), 7060.7.) The practical effect of the ordinance is that the plaintiffs will be compelled to remain in the rental business at that location. Rather than simply allowing them to go out of the rental business the city is attempting to impose "a prohibitive price on the exercise of the right" under the Ellis Act. (Javidzad v. City of Santa Monica, supra, 204 Cal. App.3d at p. 531.)
We also are not persuaded by the city's argument its ordinance is simply a means to regulate the future use of the property so that it complies with the city's general plan which is permitted by Government Code sections 7060.7, subdivision (1) and 7060.1, subdivision (b). Government Code section 7060.7, subdivision (1) provides the Ellis Act is not meant to "[i]nterfere with local governmental authority over land use, including regulation of the conversion of existing housing to condominiums or other subdivided interests." Government Code section 7060.1, subdivision (b) provides that, except as provided in section 7060.2, the Ellis Act is not meant to diminish or enhance "any power which currently exists or which may hereafter exist in any public entity to grant or deny any entitlement to the use of real property, including, but not limited to, planning, zoning, and subdivision map approvals." As noted above, because the ordinance conditions the issuance of the demolition permit in the first instance on conditions which are not contained in the Ellis Act, we are required to reject the city's arguments in this regard. Moreover, we cannot construe this ordinance as simply a means by which the city is exercising its power to determine whether a future use of the *65 property will conflict with its general plan because the ordinance also impermissibly prevents the plaintiffs from exercising their right to simply go out of the rental business. The Court of Appeal has held: "What [a landlord] proposes to do with his [or her] property once he [or she] has gone out of the business of offering residential rental units has no bearing ... in determining [the landlord's] right to decide to go out of that business and to invoke the protection extended [the landlord] for this purpose by the Ellis Act. [Citations.] The City retains an amplitude of powers, which are expressly recognized in the Ellis Act ..., that may be relevant insofar as the City may see fit `to regulate the subsequent use of the property following its removal from the rental market.' [Citation.]" (Bullock v. City and County of San Francisco (1990) 221 Cal. App. 3d 1072, 1102 [271 Cal. Rptr. 44], original italics.)
(6) We also reject the city's theory that plaintiffs are not entitled to the protection of the Ellis Act because they are not seeking to remove all 795 units of the complex based upon Government Code section 7060.7, subdivision (3). Section 7060.7, subdivision (3) states the Ellis Act does not: "Permit an owner to withdraw from rent or lease less than all of the accommodations, as defined by paragraph (1) or (2) of subdivision (b) of Section 7060." According to the city, in order for the Ellis Act to protect plaintiffs they would have to seek to demolish all 795 units of the complex. We decline to interpret the statutes to require the plaintiffs to demolish the entire 795-unit complex in order to exercise their right to go out of business with respect to the 17-unit structure under the Ellis Act.
First, Government Code section 7060, subdivision (b) defines accommodations as: "(1) The residential rental units in any detached physical structure containing four or more residential rental units. [¶] (2) With respect to a detached physical structure containing three or fewer residential rental units, the residential rental units in that structure and in any other structure located on the same parcel of land, including any detached physical structure specified in paragraph (1)." Thus, a 17-unit structure on lot 7 of tract 15124 is an accommodation within the meaning section 7060, subdivision (b)(1) which entitles plaintiffs to exercise their rights under the Ellis Act. Second, in interpreting statutes a court is required to "select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." (People v. Jenkins (1995) 10 Cal. 4th 234, 246 [40 Cal. Rptr. 2d 903, 893 P.2d 1224]; People v. King (1993) 5 Cal. 4th 59, 69 [19 Cal. Rptr. 2d 233, 851 P.2d 27].) Adopting the city's interpretation that in order for plaintiffs to obtain the *66 benefits of the Ellis Act, they would have to demolish all 795 units would be an absurd consequence which the Legislature could not have intended. As noted above, the purpose of the statute was to preempt local regulations which prohibited landlords from removing rental units from the marketplace. (Gov. Code, § 7060.7; Javidzad v. City of Santa Monica, supra, 204 Cal. App.3d at p. 530; City of Santa Monica v. Yarmark, supra, 203 Cal. App.3d at p. 165.) The Ellis Act was not meant to require a landlord to completely exit the rental business in order to exercise the right to remove the rental units from the market. The city, despite the opportunity to do so, has been unable to cite to any evidence of such an unusual and unlikely intention on the part of the Legislature.
C., D.[*]
.... .... .... .... .... .... .... .
IV. DISPOSITION
The judgment is affirmed. Plaintiffs, Los Angeles Lincoln Place Investors, Ltd., and Elkgrove Investors, Ltd., shall recover their costs incurred on appeal from defendant, City of Los Angeles.
Armstrong, J., and Godoy Perez, J., concurred.
A petition for a rehearing was denied April 22, 1997, and the petition of defendants and appellants for review by the Supreme Court was denied July 9, 1997.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III(C) and (D).
[1] All further statutory references are to the Los Angeles Municipal Code unless otherwise indicated.
[2] Government Code section 7060.7 provides in its entirety: "It is the intent of the Legislature in enacting this chapter to supersede any holding or portion of any holding in Nash v. City of Santa Monica, 37 Cal. 3d 97 to the extent that the holding, or portion of the holding, conflicts with this chapter, so as to permit landlords to go out of business. However this act is not otherwise intended to do any of the following: [¶] (1) Interfere with local governmental authority over land use, including regulation of the conversion of existing housing to condominiums or other subdivided interests. [¶] (2) Override procedural protections designed to prevent abuse of the right to evict tenants. [¶] (3) Permit an owner to withdraw from rent or lease less than all of the accommodations, as defined by paragraph (1) or (2) of subdivision (b) of Section 7060. [¶] (4) Grant to any public entity any power which it does not possess independent of this chapter to control or establish a system of control on the price at which accommodations may be offered for rent or lease, or to diminish any such power which that public entity may possess, except as specifically provided in this chapter. [¶] (5) Alter in any way either Section 65863.7 relating to the withdrawal of accommodations which comprise a mobilehome park from rent or lease or subdivision (f) of Section 798.56 of the Civil Code relating to a change of use of a mobilehome park."
[*] See footnote, ante, page 53. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265024/ | 6 F. Supp. 376 (1934)
In re BATTANI et al.
ECKHOUT
v.
GUARDIAN NAT. BANK OF COMMERCE OF DETROIT et al.
Nos. 15,070, 13,762, 9,863, 14,629, 14,056.
District Court, E. D. Michigan, S. D.
February 20, 1934.
*377 McLeod, Fixel, Abbott & Fixel, Frederick B. Darden, and William W. Brashear, all of Detroit, Mich., for petitioners.
Frank E. Wood and Harry Kasfir, both of Cincinnati, Ohio, and William C. Allee, of Detroit, Mich., for B. C. Schram, receiver of Guardian Nat. Bank of Commerce.
KNIGHT, District Judge.
The Union Guardian Trust Company, as receiver of Andrew Battani and Julius Battani, doing business as Battani Brothers, bankrupt, on February 11, 1933, filed a petition with the referee in bankruptcy for an order compelling the Guardian National Bank of Commerce, Detroit, to surrender the moneys in the bankrupts' estate deposited with the Guardian National Bank of Commerce, Detroit. Such petition also asked the consolidation of all proceedings commenced by various receivers and trustees for the recovery of moneys similarly deposited in various banks. An order was thereafter made consolidating all the proceedings in the cases mentioned. The various proceedings are of a like nature and relate to the same questions. Subsequent to the bringing of the action, Schram, as conservator, was joined as a defendant. He was appointed receiver subsequent to the taking of the proofs herein but prior to final submission. On April 12, 1933, issue was joined upon the petition by the service of an answer denying the material allegations of such petition. On February 27, 1933, an order was made by the District Court of the Eastern District of Michigan canceling the designation of the Guardian National Bank of Commerce of Detroit as a depository for bankruptcy funds and directing the last-mentioned bank to surrender all such funds held by it to the Union Guardian Trust Company. On May 18, 1933, the referee made an order requiring the respondents immediately to surrender and pay to Union Guardian Trust Company $335.16 on account of the bankruptcy funds deposited with it in the case of Battani and one, bankrupts. At the time of the filing of the petition, such deposit amounted to $558.50. This amount was later reduced to $335.16 *378 by the payment of dividends by the receiver. Such dividends were accepted without waiver of petitioners' right to recover the balance of the deposit. The referee further ordered that on failure of the respondent receiver to pay the aforesaid balance within ten days from the date of the service of such order the United States marshal be authorized to seize assets of said Guardian National Bank of Commerce of Detroit in sufficient amount to pay to the Union Guardian Trust Company the said sum of $335.16.
Certain findings of fact and conclusions of law made by the referee are the basis for such order. The questions for review broadly are: (1) Whether the referee was disqualified to act in this proceeding by reason of an interest in the outcome thereof? (2) Whether funds deposited by a receiver or trustee in bankruptcy in a depository designated pursuant to the Bankruptcy Act are in custodia legis, in effect held in trust, and are to be paid in full by respondent receiver? (3) Whether the bond of the depository was valid, and, if not, did these deposits by operation of law become deposits in custodia legis?
1. Was the referee disqualified to act because he was interested in an increase in his fees by reason of an increase in the amount payable from the depository. Upon reason and authority, the basis for this contention is without foundation. Such a reason for disqualification would to a large extent prevent referees functioning in office. In every proceeding involving accumulations to an estate they would be disqualified. The statute prohibiting referees from acting in cases in which they are directly or indirectly interested (section 39 of the Bankruptcy Act [11 USCA § 67]) was not intended to apply to cases like the instant one. The rule is well stated in Black on Bankruptcy, § 39: "The statutory restriction as to referees acting in cases in which they are interested does not apply to the interest of a referee by way of commission on sums paid to creditors as dividends. This is a necessary interpretation of the law." Other pertinent authorities are Remington on Bankruptcy, § 595 (3d Ed.); In re Abbey Press (C. C. A.) 134 F. 51; Bray v. Cobb (D. C.) 91 F. 102; Anchor Grain Co. v. Smith (C. C. A.) 297 F. 204; In re Gardner (D. C.) 103 F. 922; Meyers v. Shields (C. C.) 61 F. 713, 726; and Tumey v. State of Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 50 A. L. R. 1243, cited by respondents, are not comparable cases. In each case a direct financial benefit would have resulted to the official from his act. Tumey v. State of Ohio also is a criminal case. Here referees' fees may or may not be increased. There are other points distinguishing the cases mentioned. I find that the referee was not disqualified to act.
2. Are the funds deposited by the receivers or trustees in bankruptcy in the several cases in a depository designated pursuant to the Bankruptcy Act held in custodia legis and as such entitled to preference in payment?
It is my opinion that the deposits of the receivers and trustees in these bankruptcy estates are general deposits and are not held in custodia legis.
There is no question that a receiver or trustee in bankruptcy is an officer of the court, that a bankrupt's title to property passes to the receiver or trustee as of the date of the filing of the petition, and that the receiver or trustee is vested with all the rights "of a creditor holding a lien by legal and equitable proceedings."
Respondent bank was designated a depository pursuant to section 61 of the Bankruptcy Act (11 USCA § 101), and the deposits made in the bankrupt's estate were subject to withdrawal only on checks countersigned by the Judge or the Referee. General Order 29 (11 USCA § 53). Rule 18 of the Eastern District of Michigan also specifies certain particulars to be observed by the depository with reference to keeping of accounts, reports, and withdrawals. It is undisputed that the deposits in question were kept in commercial checking accounts upon which interest was paid the estates under agreement with the court. The account was handled as were all other general accounts of the bank, save the checks were required to be countersigned as heretofore stated, and periodical reports to the court required. John Bridge, Receiver, v. First National Bank-Detroit (D. C.) 5 F. Supp. 442, involved the question as to whether funds deposited by an equity receiver constituted general or special deposits. It seems to me the reasons therein given and the authorities cited are applicable here, and that deposits made by the receivers or trustees in bankruptcy herein are general and not special deposits. It is uniformly the holding of the courts that to constitute a special deposit an express agreement must be shown, and such agreement must clearly be implied from the conditions surrounding the deposit. No express agreement is shown nor does the evidence sustain the claim that there was an implied agreement that this would be a special deposit. Proof of a claim as preferred must be *379 clear and convincing. The idea of a special deposit is one held for a particular purpose in identical or equivalent form as when deposited, subject to return at any time and not commingled by the depository with the other funds. Neither the fact that the deposit was made by one as receiver or trustee, nor the fact that the depository knew the fiduciary character of the depositor is sufficient to impress the deposit as a trust fund. In Gardner v. Chicago Title & Trust Co., 261 U.S. 453, 43 S. Ct. 424, 67 L. Ed. 741, 29 A. L. R. 622, Justice Holmes, delivering the opinion, said: "We assume that when money is deposited in a designated bank under section 61 of the Bankruptcy Law, * * * it is deposited as other money is, and becomes the property of the bank, leaving the bank a debtor for the amount." While this statement may be considered dictum, nevertheless it is entitled to great weight and is in harmony with a great majority of the decisions on the point involved here. In re Bologh (D. C.) 185 F. 825; Minard et al. v. Watts (C. C.) 186 F. 245; In re Potell (D. C.) 53 F. (2d) 877. In Florida Bank & Trust Co. v. Union Indemnity Co. (C. C. A.) 55 F.(2d) 640, 641, 83 A. L. R. 1102, referring to deposits made by receivers and trustees in bankruptcy, the court said: "The deposits now in question created debts owing by the depository bank to the representatives of the several bankrupt estates. * * *" National Bank of the Republic v. Millard, 10 Wall. (77 U. S.) 152, 19 L. Ed. 897; Keyes v. Paducah & I. R. Co. (C. C. A.) 61 F.(2d) 611, 86 A. L. R. 203; Northern Sugar Corp. v. Thompson (C. C. A.) 13 F.(2d) 829; American Surety Co. v. Akron Savings Bank, 212 U.S. 557, 29 S. Ct. 686, 53 L. Ed. 651; Michie on Banks & Banking, vol. 5, § 328, c. 9.
The court's attention is called to the recent decision In the Matter of The Standard Company of Raleigh, Inc., In Bankruptcy No. 2182, decided by District Judge Meekins, United States District Judge for the Eastern District of North Carolina, January 22, 1934.[1] The record in that case indicates facts comparable with those at bar as regards the type of deposits. With the conclusion that the funds there were held in custodia legis, this court cannot agree.
The respondent bank closed February 11, 1933, pursuant to a bank holiday declared by the Governor of the state of Michigan. It continued closed upon renewal of such holiday until a national banking holiday was proclaimed by the President on March 5, 1933. Respondent conservator was appointed on March 11, 1933, and continued to act as such until May 11, 1933, at which time respondent bank was declared insolvent and the conservator appointed a receiver. On February 27, 1933, an order was made by the District Court of the United States for the Eastern District of Michigan directing the Guardian National Bank of Commerce, as depository of bankruptcy funds for said District Court, to deliver over all bankruptcy funds in its possession. The referee has found that the respondent bank was solvent on February 11, 1933, when its doors were closed. This finding cannot be sustained, nor is any order against the receiver enforceable. The determination of the Comptroller of Currency on the appointment of the receiver on May 11, 1933, that the bank was insolvent, cannot be attacked in this proceeding. Section 192, tit. 12, USCA; Liberty Nat. Bank of S. C. v. McIntosh (C. C. A.) 16 F.(2d) 906; United States Nat. Bank of La Grande v. Pole (D. C.) 2 F. Supp. 153; Crawford v. Gamble (C. C. A.) 57 F.(2d) 15. The rights of the parties are fixed as of the time of the closing of the bank rather than as of the time of the appointment of the receiver. Steele, County Treasurer, v. Randall, Receiver (C. C. A.) 19 F.(2d) 40. The receiver is simply the representative of the Comptroller, and the assets of the bank are not in his possession, but that of the Comptroller. Hulse v. Argetsinger (C. C. A.) 18 F.(2d) 944; Lehman, Sheriff, v. Spurway (C. C. A.) 58 F. (2d) 227. The order of the District Court could not change the character of the deposit when made. The District Court had the right to change the designated depository. It had the right to order and direct the Comptroller to pay over the estates' deposits ratably with other depositors. Section 194, 12 USCA. However, the court did not have the right to make an order directing the payment forthwith of any deposits to the credit of any of these bankrupt estates. The orderly and proper administration of the banking laws as regards insolvent banks requires that debts should be paid on a ratable basis and when and as the funds of the bank justify distribution. The statute requires that the distribution be so made that each creditor and depositor receive the share to which he is legally entitled. Necessarily a determination in respect to distribution must be made by the Comptroller of the Treasury. Such determination, however, is subject to the order *380 of the proper court in case of untoward delay or proposed illegal distribution. So, with regard to any ratable proportion to which these bankruptcy estates are entitled, the distribution should be made by the Comptroller as hereinbefore indicated. The finding that a summary order issue directing the payment of all deposits made in these several estates cannot be sustained.
3. Was the depository bond valid, and, if not, what was the effect of the failure to give the required bond? Section 61 of the Bankruptcy Act (11 USCA § 101) requires that a bond be given by a depository for bankrupt's estates. The order designating the respondent bank a depository required it to furnish a bond in the amount of $1,250,000, with sufficient surety. The proposed depository did submit a bond with the Guardian Detroit Union Group, Inc., as surety. This bond was given and approved by the District Judge prior to the making of the deposits in question. The Guardian Detroit Union Group, Inc., was a holding company owning substantially all of the stock of respondent depository, together with the stock of other banks. This corporation was organized under the Domestic Corporation Law of the state of Michigan, known as Act No. 84 of the Public Acts of Michigan of 1921. The Insurance Code of the state of Michigan, Act No. 256, Public Acts of 1917, as amended, provides for the organization of corporations "to guarantee the fidelity of persons in positions of trust, private or public, and to act as surety on official bonds," Compiled Laws of 1929, § 12389, c. 1, pt. 3, subd. 1, § 2, and also provides that no corporate body shall be incorporated for the purpose of transacting any form of insurance or surety bonding business, without complying with the provisions of the insurance law, Compiled Laws of 1929, § 12287, c. 1, pt. 2, § 1. It is not claimed that the holding company had authority to act as a surety under the provisions of the Insurance Code. It is not claimed that it is authorized under any law to engage in the business of acting as a surety. It is claimed that such authority is implied in so far as it relates to this suretyship in question; that acting as such surety for its own subsidiary was legal, because it was done as an incident to and in furtherance of its own business. It is also claimed that under the provisions of Act No. 327, § 10, par. i, Public Acts 1931 of Michigan, the holding corporation was authorized to act as such surety.
Questions relative to the effect of the failure to give a depository bond have been frequently decided by the courts. Various states of facts are shown. Variety is illustrated in these cases: In Hancock County et al. v. Hancock National Bank of Sparta et al. (C. C. A.) 67 F.(2d) 421, in which no bond was given, and in which it was held that, since the officer was not required to make the deposit in the particular depository, the bank acquired title and was not a trustee ex maleficio; in the case of In re Potell (D. C.) 53 F.(2d) 877, in which deposits made in an undesignated depository were held to be trust deposits; in Re Weiss (D. C.) 2 F. Supp. 767, 17 A. B. R. (N. S.) 647, in which no bond was given by the depository and the court held the funds on deposit in custodia legis (in that case the officer of the bank represented that the depository bond had been given); in Board of Commissioners of Crawford County v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100; and in numerous other cases in which it has been held that where deposits were prohibited by law to be made, when made they became funds in trust for the depository. In the instant case the receivers and trustees were required by law to deposit all bankrupt estate funds in a designated depository. Section 47a (3) of the Bankruptcy Act (11 USCA § 75 (a) (3). While it does not appear that there were depositories other than the respondent bank, it seems to me the effect is the same as though respondent bank were the sole depository and that the deposits in these bankrupt estates became trust funds by operation of law in case the depository bond was invalid.
It is my opinion that the bond in question was a valid bond. The authority to act as surety is not within the specific charter powers of the holding corporation. Its corporate powers are such only as are conferred by statute. Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U.S. 290, 6 S. Ct. 1094, 30 L. Ed. 83. There is no express statute giving the holding company the authority to act as a surety unless it is found in Act No. 327, § 10, par. i, Public Acts 1931 of Michigan. Nevertheless a corporation has power to do certain acts which are incidental to the general authority of the corporation and which are done in furtherance of such general business. The question regarding the rights of corporations in this respect have been the subject of adjudication many times by the courts. It is apparent that the facts must be much diversified. However, there are numerous cases in which the courts have held that the corporation is authorized to act as a surety or guarantor although the statutes under which organized did not so specifically authorize. In Timm v. Grand Rapids Brewing *381 Co., 160 Mich. 371, 125 N.W. 357, 27 L. R. A. (N. S.) 186; Munoz v. Brassel (Tex. Civ. App.) 108 S.W. 417; McBroom v. Cheboygan Brewing & Malting Co., 162 Mich. 323, 127 N.W. 361. In numerous cases it has been held that a corporation might guarantee an indebtedness of its subsidiary. Lumbermen's Trust Co. v. Title Ins. & Investment Co. of Tacoma (C. C. A.) 248 F. 212; In re New York Car Wheel Works (D. C.) 141 F. 430; General Investment Co. v. Bethlehem Steel Corp. (D. C.) 248 F. 303. The rule for guidance clearly is stated in Green Bay, etc., R. Co. v. Union Steam-Boat Co., 107 U.S. 100, 2 S. Ct. 221, 223, 27 L. Ed. 413, in which the court said: "But whatever, under the charter and other general laws, reasonably construed, may fairly be regarded as incidental to the objects for which the corporation is created, is not to be taken as prohibited." Henderson Tire & Rubber Co. v. Gregory (C. C. A.) 16 F.(2d) 589, 49 A. L. R. 1503; Hummel v. Warren Steel Casting Co. (C. C. A.) 5 F.(2d) 451; In re John B. Rose Co. (C. C. A.) 275 F. 416; the opinion of the Attorney General of the state of Michigan under date of January 27, 1931, in which he held that "a holding company organized to own the stock of other corporations, including stock of banks and trust companies, * * * may become a surety on bonds securing the deposits of the public funds in the subsidiaries." Among the authorities cited in such opinion is State Bank of Fairfax v. Pacific Elevator Co., 159 Minn. 94, 198 N.W. 304, 305, in which an action was brought against a corporation practically owning through interlocking directorates and stock holdings the company executing the notes in question. The guarantor was held liable. The court there said: "While a corporation cannot become a surety on obligations in which it has no interest, it may guarantee the obligations of its subsidiary companies."
The Guardian Detroit Union Group, Inc., was interested in the deposits made in bankruptcy estates in the Guardian National Bank of Commerce of Detroit and the analogy between this condition and that of parties in these and other cases in this respect seems clear. Increased deposits in the subsidiary bank were beneficial to the holding company. The subsidiaries' business in its entirety was carried on for the benefit of the other company. See, also, 7 Rawle C. L. 603, and cases cited. Act No. 327, Public Acts of 1931, which is an amendment to the Corporation Law under which the Guardian Detroit Union Group, Inc., was incorporated, was enacted to extend the powers of corporations such as this holding company. It provides that such a company may guarantee "evidence of indebtedness created by, any other corporation or corporations." Section 10, subd. i. Having in mind the statutes hereinbefore mentioned which provide for the incorporation of surety companies, it seems to me that the act of 1931 was directed particularly to holding companies. The exceptions in the act, including the authority to become a surety "upon any bond or other undertaking securing the deposit of public moneys" (section 10, subd. i), supports the view that the act intended that a company such as the Detroit Union Group, Inc., should have power to guarantee other bonds or undertakings. The funds in question were not public moneys.
The views hereinbefore expressed obviate the necessity of the discussion of any other questions raised upon this proceeding to review the findings of the referee.
Concluding, I find: (1) That the referee herein was not disqualified to act in these proceedings; (2) that the deposits with referees and trustees in bankruptcy herein in the Union Guardian Trust Company as made are not in custodia legis and are not entitled to preference in payment over other general depositors in the Guardian National Bank of Commerce of Detroit; (3) that the depository bond herein given by the Guardian Detroit Union Group, Inc., was a valid depository bond.
NOTES
[1] No opinion filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265032/ | 6 F. Supp. 215 (1933)
AMERICAN BRAKE SHOE & FOUNDRY CO.
v.
INTERBOROUGH RAPID TRANSIT CO.
No. 7.
District Court, S. D. New York.
August 2, 1933, September 30, 1933.
MANTON, Circuit Judge.
There are pending before this court (a) an application to confirm the report of the special master recommending that the application to remove William Roberts and substitute Nathan L. Amster as receiver of the Manhattan Railway Company be denied and (b) the petition of the Manhattan Railway *216 Company for the appointment of Nathan L. Amster as coreceiver.
While these applications were pending and undecided, an affidavit of personal bias and prejudice of the presiding judge was filed by the Manhattan Railway Company. That affidavit and the circumstances of its presentation will first be considered.
This alleged affidavit of personal bias and prejudice, sworn to July 20, 1933, by Secretary-Treasurer Mullin of the Manhattan Railway Company, was left with me on July 20, 1933, in the afternoon by Mr. Franklin's representative, who then stated that Mr. Franklin wished me to read it before he formally filed it. After reading it, I requested Mr. Franklin to call at my chambers, which he did on July 21, 1933, in the afternoon. After a conversation, which I do not deem necessary to repeat in this memorandum, and which is grossly misstated in Mr. Franklin's affidavit of July 27, 1933, Mr. Franklin asked leave to withdraw the affidavit, stating that it was filed under a misapprehension. I told him that I could only permit this to be done if he filed a formal application for its withdrawal. Upon his promise that he would do so, I permitted him to take the affidavit with him when he left my chambers on that day. He complied with this requirement later that day. The withdrawal notice thus served upon me will be filed with the affidavits and other papers in the clerk's office.
After 4 o'clock on July 27, 1933, I received a copy of the same affidavit of prejudice sworn to the 20th of July, 1933, and "a supplemental affidavit of prejudice" by Charles Franklin sworn to the 27th of July, 1933. They are herewith filed in the office of the clerk of the District Court for the Southern District of New York.
Section 21 of the Judicial Code (28 US CA § 25) requires an affidavit of personal bias and prejudice to be filed "not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time." It has not been filed within the time required, and good cause for failure so to do is not shown.
Amster became the president of the Manhattan Railway Company in November, 1932, and immediately thereafter Mr. Franklin became its attorney. Amster first attempted to become a coreceiver of the Manhattan Railway Company when, on September 6, 1932, it filed its petition to intervene in the suit of American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Company. At that time William Roberts, its president, was appointed and later qualified as receiver. It was then thought unnecessary to appoint a second receiver. The court, however, reserved the question of appointing a coreceiver until reason therefor should appear. Amster's application was denied.
Amster caused the institution of the Johnson suit in which he attacked the jurisdiction of this court, for the same purpose. Mr. Franklin, his attorney, stated this at one of the hearings.
When the Circuit Court of Appeals for the Second Circuit rendered its decision in the case of Johnson v. Manhattan Railway Company, 61 F.(2d) 934, on December 7, 1932, Amster began a new proceeding asking for the removal of Mr. Roberts and his own appointment as receiver. Issues were raised which were necessary to send to a special master, who filed his report recommending the denial of the application to remove Mr. Roberts. After an adverse decision in the Supreme Court in Johnson v. Manhattan Railway Company, 289 U.S. 479, 53 S. Ct. 721, 77 L. Ed. 1331 (May 29, 1933), he made the application to be appointed coreceiver.
Mr. Franklin filed an application in the proceeding asking for an allowance of $75,000 for services in the case of Johnson v. Manhattan Railway Company in which he attacked the jurisdiction of this court. He based his application in part upon the claim that he had settled the jurisdictional question in favor of Judge Manton's jurisdiction. He stated in the affidavit: "The decision of the United States Supreme Court in the Johnson Case has definitely removed all doubt regarding the jurisdictional objection of both the Interborough and Manhattan Receiverships, and has thereby freed from question or embarrassment the receivership estate in which are involved securities and properties valued in excess of Five Hundred Million ($500,000,000.) Dollars. * * * so that by said decision the finality of the Senior Circuit Judges right to act in the American Brake Shoe case has now been firmly established."
And further: "I therefore respectfully submit that I have performed a substantial service in having the power of Judge Manton vindicated, which has enured to the benefit of the receivership estate, and to all parties concerned therein."
Now, after applying for the appointment of Amster as coreceiver, it is stated he was told Amster would be appointed, but still he files this affidavit of personal bias and prejudice in an effort to obtain the appointment *217 of Amster as coreceiver. All of this indicates bad faith. As a plain showing of bad faith and the purpose of filing this affidavit of prejudice and personal bias, Franklin's statements in open court at hearings are interesting.
At a hearing in open court on June 28, 1933, Mr. Franklin said:
"Mr. Franklin: If your Honor please, may I take up a matter which it seems to me would be appropriate? I do not feel that I want to be too persistent. At the same time, the position of being the sole objector to a proceeding of this kind is neither easy nor is it pleasant, particularly as I am representing the directors and stockholders of the Manhattan Railway Company. I would like, therefore, if your Honor will grant leave to renew the application that I made at the inception of this receivership. Your Honor has stated in the past, I think it was on the day that the receivership was extended to the Manhattan Railway Company, I made an application to your Honor, then representing the Manhattan Railway Stockholders' Protective Committee, representing approximately ten millions of securities of that company, for the appointment of Mr. N. L. Amster as the receiver, or as a co-receiver of the Manhattan Railway Company. Your Honor after considering the matter a moment stated to me and to counsel present that if ever the time came when it seemed necessary or advisable to make such an appointment, that I could renew the motion. * * * I think it is the proper thing to do, and I feel that I would like, if possible, to contribute to harmonizing or to a reign of harmony in this case. I do not want to be the sole objector. At the same time, I have no alternative, and I respectfully ask leave to renew my motion at this time."
And again:
"Since November 11th, I think it was, Mr. Amster has been president of this company, and the directors have unanimously done everything that they could humanly do to make your Honor understand that they expected to be represented.
"I do not want to be, if I can help it, a lone objector, particularly in this situation.
"Nothing has been said about the long opinion that your Honor read. I thought it was very good and very clear and a proper supplement to what the Supreme Court has said, but I feel we should try to remove all discord and create a reign of harmony here, and I do not see how that can be done unless our application is granted; then the directors or rather the owners of this company, will feel that they are being properly cared for, and these important matters should not be allowed to go on without representation in the receivership. * * *
"Mr. Amster personally owns in excess of thirty thousand shares, and his interests represent an additional one hundred thousand shares. At the meeting I think the vote was 269,000 shares out of a total of a little under six hundred thousand shares. * * *
"Under the circumstances I feel that certainly the Manhattan Railway Company and its president, Mr. N. L. Amster, should be given official recognition."
On July 13, 1933, he said in open court: "* * * now that these receiverships have been placed on a jurisdictional basis above question, now that your Honor's position was completely vindicated by the decision of the Supreme Court it seemed to us that a constructive effort should be made to overcome the deep-rooted feeling on the part of the stockholders of the Manhattan Railway Company that these receiverships are being conducted in the interest of the Interborough Rapid Transit Company and to the detriment of the interests of the Manhattan Railway Company. If the Court please, those fears would be dispelled by the appointment of the Manhattan Railway Company's president as receiver or as co-receiver of these properties. We ask for no other change, of counsel or otherwise. Our second reason was that, since counsel for all of the interested parties had expressed their wish that your Honor should continue in the proceedings, with unstinted praise, I made it plain, as general counsel for the Manhattan Railway Company, and also as the petitioner's counsel in the so-called Johnson suit, that we wish to assist in bringing about a complete reign of harmony, and therefore I ask the Court to exercise its discretion in favor of our application which, as your Honor and counsel present know, we have sought from the inception of these receivership proceedings, and particularly so since the ousting of the management headed by Mr. Roberts."
And again he said:
"Now, the other day, when I mentioned this matter, Mr. Roberts said, `If your Honor appoints Mr. Amster, I want to tell you I am going to resign' or words to that effect. Even Mr. Hughes said his firm would decline to serve if Mr. Amster were appointed. Now, if the Court please, there is no reason or rhyme in any statement like that. These people have a right to resign if they want to and *218 I do not think it is fair to try to preface my application by making that statement; besides, those are pure threats and intimidation of the Federal Court, absolutely wrong to say anything like that while my application is pending.
"I know, and know that your Honor, with all your experience knows, that that is wholly improper, both what Mr. Hughes asserts and what Mr. Roberts asserts."
At these late dates there was no thought of personal bias or prejudice.
This is plainly an affidavit to disqualify the judge before whom proceedings are pending unless he appoints Amster a receiver. Apparently, if he would make the appointment, prejudice and bias do not exist. The affidavit of personal bias and prejudice was filed while the application for Amster's appointment was awaiting decision in order to influence that decision. This, obviously, is wholly improper. The merits of the application require its denial. Of course, the court, if it felt justified, would grant the application uninfluenced by this threat.
For the purpose of the record, the facts and circumstances surrounding the presentation of the affidavits are set forth, but as a matter of law, when such an affidavit is filed, the recused judge is restricted to a determination of its timeliness and legal sufficiency. Section 21 of the Judicial Code (28 USCA § 25); Berger v. United States, 255 U.S. 22, 41 S. Ct. 230, 65 L. Ed. 481. The statement of facts alleged, no matter how false, scandalous, or libelous, the affidavit or certificate, must be accepted as true by the recused judge. However, its legal sufficiency is open to the recused judge to determine. The Supreme Court, recognizing the possibility of abuse, has determined it to be not too great a price to pay in order that the wholesome and well-founded public conviction of the impartiality of the federal courts may have the additional safeguards which section 21 affords. Berger v. United States, supra. But the exercise of such power must conform strictly to the requirements of the statute granting it. The affidavit must be timely and must be legally sufficient.
This affidavit was not timely. Mullin, the affiant, also swore, on September 2, 1932, to the petition of Manhattan Railway Company seeking to become a party and requesting receivership. The Manhattan Railway Company, which presents the affidavit, made the several applications seeking to have Amster appointed receiver. Franklin, who has certified the affidavit, appeared at the hearings as stated above representing Manhattan Railway Company, and brought before the court the formal applications for Amster's appointment as receiver. It is apparent from these proceedings and statements that the affidavit is now too late to comply with section 21 of the Judicial Code (28 USCA § 25). Ex parte American Steel Bbl. Co., 230 U.S. 35, 33 S. Ct. 1007, 57 L. Ed. 1379; Lipscomb v. United States, 33 F.(2d) 33 (C. C. A. 8); Bishop v. United States, 16 F.(2d) 410 (C. C. A. 8); De Ran v. Killits, 8 F.(2d) 840 (C. C. A. 6); Chafin v. United States, 5 F. (2d) 592 (C. C. A. 4).
Moreover, the affidavit is legally insufficient. The facts alleged fail to support the charge of personal bias and prejudice. They are wholly irrelevant to such a charge or refer to the judicial consideration and determination of questions before the recused judge rather than to an attitude or acts of personal bias or prejudice. A clear statement of the law as to this is found in Johnson v. United States (D. C.) 35 F.(2d) 355, 357, where it is said: "However false, there can be no denial, but the charge of personal bias or prejudice must be accepted as true. To avoid abuses, the law requires that the affidavit be of legal sufficiency. That is, that the charge be of personal bias or prejudice, that the facts and reasons for the charge be set out and give fair support to the accusation, and that upon its face the affidavit presents evidence of good faith. To that end mere rumors, gossip, general statements that affiant by some person is informed and believes that at some time, some place, some occasion, the judge expressed sentiments manifesting bias or prejudice, are not enough, but informant, and time, place, occasion of, and the judge's expressions, and that the bias or prejudice is personal, all must be set out in the affidavit. This alone will enable the affidavit to bear on its face that evidence of good faith which is necessary before it can be held to be legally sufficient. See Berger v. U. S., supra. Otherwise, the penalties of perjury and disbarment are no restraint on the litigant and counsel; for otherwise it is not even a possibility of either being invoked, much less carried to successful conclusion, however false be affidavit and certificate."
The practice to be followed is to permit the filing of the affidavit, which will be done, to consider its timeliness and legal sufficiency, and then to order it stricken from the record if insufficient or to certify withdrawal to the Senior Circuit Judge if sufficient in law. *219 Berger v. United States, supra; Bommarito v. United States, 61 F.(2d) 355 (C. C. A. 8); Morse v. Lewis, 54 F.(2d) 1027 (C. C. A. 4). The affidavit is legally insufficient. See Morse v. Lewis, supra; Craven v. United States, 22 F.(2d) 605 (C. C. A. 1); Henry v. Speer (C. C. A.) 201 F. 869 (C. C. A. 5); Benedict v. Seiberling (D. C.) 17 F.(2d) 831; United States v. Fricke (D. C.) 261 F. 541.
Both affidavits and the withdrawal notice are herewith filed and the affidavits stricken from the record.
During the receivership there developed considerable conflict between two groups of stockholders which might be said to be represented by Mr. Amster and Mr. Roberts. At the last annual meeting in November, 1932, the Roberts group lost control and the Amster group elected its board of directors. It immediately resulted in a proceeding to remove Roberts made on an application sworn to December 7, 1932, charging Roberts with mismanagement and domination by the Interborough Rapid Transit interests, and it specifically asked for the substitution of Amster as receiver.
The master, after a lengthy hearing and due consideration of the testimony, has found that the charges made against Mr. Roberts are insufficient to require his removal. It is clear that they were instituted with the view of securing Amster's appointment as receiver in place of Roberts, and an examination of the record justifies the result reached by the master, and his report is confirmed and the petition to remove Roberts is denied.
The present application that Amster be appointed coreceiver of the Manhattan Railway Company property is opposed by the trustees of the first and second mortgages on the railroad property amounting to about $45,000,000, by separate committees representing bondholders under the mortgages, and by all other groups of shareholders except the Amster group of stockholders. In the face of this substantial and determined opposition to Mr. Amster's appointment, I cannot feel that it would produce the "harmony" so urgently sought by Mr. Franklin in his plea for his appointment. Nor is the circumstance of his recent accession to the position of president of the company a complete reason for his appointment as receiver. Roberts' long tenure of office and his experience had material weight on the occasion of his appointment, but such reasons do not apply equally to Mr. Amster who has recently become president. A receiver is a representative of the court, not of the corporation. The intimate knowledge of the affairs of the corporation by one of its officers, otherwise possessing the confidence of the court by reason of his own character and reputation, strongly recommends such officer for the position of receiver, but the court will not change its representative merely because of the change of corporate control. Mr. Amster's conduct throughout this litigation has not inspired such confidence as would warrant his becoming a representative of the court.
In denying his application, the court does not suggest that a coreceiver should not be appointed. When the Manhattan Railway Company intervened and Mr. Roberts was appointed on September 6, 1932, the question of the appointment of a coreceiver was reserved until the need therefor should arise. The present circumstances make a coreceiver desirable. The Manhattan Railway Company is a nonoperating company, wholly dependent on the enforcement of its lease to obtain profit from the operation of its properties. Application No. 5 of Manhattan Railway Company's receiver presents many problems of business and law arising from the lease arrangement. These problems make desirable the services of a coreceiver. In making the selection of such a coreceiver, the court will willingly hear other suggestions from the shareholders of the so-called Amster group. If none is presented within a reasonable time, a coreceiver will be appointed.
Orders will be entered accordingly.
Addendum.
By failing to refer to one phase of the matter discussed in the foregoing memorandum, the implication should not arise that it has been lost sight of. It seems reasonably clear that the submission of a belated affidavit of prejudice to a judicial officer before whom litigated matters are pending undecided involves contempt of court, as an improper effort to influence the decision of the particular judicial officer. It is not a matter in any sense personal with me. I consider it only as a grossly improper gesture directed toward an officer of the court. In this spirit, I shall confer with some of my associates before deciding whether a citation for contempt for all persons implicated in the misconduct described shall issue.
Memorandum.
In order that this memorandum may be easily understood, though its length is limited, brief reference should be made to the opinion of the United States Supreme Court in *220 the two cases of Johnson v. Manhattan Railway Co. and Boehm v. Manhattan Railway Co. (both cases having been heard together) 289 U.S. 479, 53 S. Ct. 721, 77 L. Ed. 1331, rendered by Mr. Justice Van Devanter and concurred in by his associates of the court. In these cases, the same litigant to whom reference will be made later questioned the long-established practice of self-designation to hold a District Court by the Senior Circuit Judges of the different circuits of the United States.
The attack made upon my jurisdiction and powers as Senior Circuit Judge had been so energetic and characterized by such newspaper publicity that I decided in favor of a continuance of the exercise of the functions which I believed to be vested in the Senior Circuit Judge by statute and in the performance of my judicial duties, as I understood and conceived them, instead of retiring from the very onerous proceeding and thankless responsibilities, which added a heavy burden indeed, in addition to my administrative work as senior judge of the circuit and my judicial work in the consideration of causes and the preparation of opinions in matters coming before the Circuit Court of Appeals.
As is now fully established, the Supreme Court sustained my construction of the amended Judiciary Act completely, even to the extent of declaring invalid certain rules of the United States District Court, the effect of which was deemed to conflict with certain of the powers conferred upon the Senior Circuit Judge by statute.
At the conclusion of Justice Van Devanter's opinion, in which my jurisdiction and construction of the law was completely sustained, certain observations were made in which it was suggested, in substance, that continuance by me to judicially supervise the duties of the receivers of the Interborough and Manhattan Companies would embarrass the receivership and that such embarrassment might be relieved by my retiring from the supervision and direction of the proceedings. There were then pending before me a number of important issues, all of which I felt it was my duty to dispose of before passing along to the shoulders of another the burden which had weighed so heavily upon my own.
This decision I expressed in my memorandum (D. C.) 4 F. Supp. 68, 74, dated June 28, 1933, in which the following language was used:
"Every judge worthy of judicial office ought to be keenly sensitive to and deeply concerned at any intimation of any action on his part approaching impropriety in the discharge of what always ought to be regarded as a sacred duty. In the present case, I was acting in the performance of my judicial duty according to my conscience and in the belief which I still entertain that I was authorized and called upon by the Act of Congress to do exactly what I did if in my judgment the public interest so required.
"In the light of these profound convictions and with great respect, I cannot for the present bring myself voluntarily to withdraw from this case, whatever may be my ultimate decision. Applications involving vital property rights and interests have been partially argued and are to be further argued which require my study and decision."
Anticipating, however, the carrying out of my plan to retire from the proceedings, which I had in mind in July last, I conferred with a Circuit Judge, one of my associates, explaining to him my intention to retire and my desire to designate him to continue the supervision and direction of the proceedings in these receiverships. The judge expressed, naturally, extreme reluctance to undertake the additional work involved, but agreed as a matter of public interest and judicial service to take over the burden when the issues then pending before me had been determined. One of these issues was an application for the removal of the Receiver Roberts of the Manhattan Railway Company and the appointment of Nathan L. Amster in his stead. Another motion made later was for the appointment of Mr. Amster as coreceiver.
While these and other applications were pending before me, the affidavit of personal bias or prejudice was filed by the same parties who had but recently failed in the United States Supreme Court in the question raised concerning my jurisdiction.
Though my personal preference was, and the inclination of any judge whose fairness was challenged naturally would be, to retire from the proceedings, I felt it my duty to remain, however unpleasant and distasteful, and not to retire simply on the filing of an affidavit held by me to be untimely and insufficient.
Thus in the case of Benedict v. Seiberling (D. C.) 17 F.(2d) 831, 841, District Judge Killits, holding that an affidavit was insufficient, said that it would be improper to withdraw voluntarily because "to allow a disinclination to further sit in this case to work our voluntary retirement would be to permit the authors of this attack * * * to gain *221 unlawfully that which they are not justly entitled to have."
More recently a motion for leave to file a petition for writs of prohibition and/or mandamus has been filed in the United States Supreme Court by the same litigant. That application is so lacking in merit that I do not deem it necessary to await the determination of the motion.
At the present time, entirely apart from the proceedings mentioned above which disclosed no reason which would permit withdrawal from the case, reasons appear which I deem sufficient to justify the assignment of another judge. The Circuit Court of Appeals in which I preside convenes the first Monday of October. Added to my duties as presiding judge of that court, it is my duty alone as Senior Circuit Judge, a duty from which other Circuit Judges are free, to perform the not inconsiderable administrative work of the Second judicial circuit. The task of supervising these receiverships, added to these other duties, is too onerous to continue another year. For this reason I have decided to withdraw.
While it is within my authority to assign another Circuit Judge in my stead, still I prefer that the assignment be made by the Chief Justice of the United States.
Accordingly, I have advised the assignment of a Circuit Judge to hold a District Court and to hear and determine all issues which may be brought before him in this proceeding, and I have consented that such assignment be made. If reason is necessary to explain the selection of a Circuit Judge rather than a District Judge, it is sufficiently set forth in my opinion of June 28, 1933. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265039/ | 54 Cal. App. 4th 1102 (1997)
DANIEL POWERS et al., Plaintiffs and Respondents,
v.
DICKSON, CARLSON & CAMPILLO et al., Defendants and Appellants.
Docket No. B092041.
Court of Appeals of California, Second District, Division Five.
May 5, 1997.
*1105 COUNSEL
Archbald & Spray, Kenneth L. Moes and Karen Burgett for Defendants and Appellants.
Valensi, Rose & Magaram, M. Laurie Murphy and Kenneth L. Heisz for Plaintiffs and Respondents.
OPINION
GRIGNON, J.
Defendants and appellants Dickson, Carlson & Campillo; Maguire, Toghia & Orbach; and Nicholas J. Toghia appeal from the denial *1106 of their petition to compel arbitration in this legal malpractice action brought by plaintiffs and respondents Daniel and Fala Powers.[1] We conclude that the arbitration provisions of the initial retainer agreement and its amendment are enforceable and applicable to legal malpractice actions. We reverse and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
In 1992, the Powers purchased a $2 million luxury home in the Pacific Palisades. They were represented in the negotiations by Attorney Roy Glickman of the law firm of Narvid, Glickman, Scott & Frangie (collectively Glickman). The Powers signed a written purchase agreement with the seller/developer of the property. This written purchase agreement contained an arbitration provision. After moving into the home, the Powers became aware of construction defects. They retained Attorney Glickman to represent them in connection with the resolution of these construction defect disputes with the seller/developer. In November 1992, Attorney Glickman demanded arbitration on behalf of the Powers and the matter proceeded to arbitration.
In March 1993, the Powers became dissatisfied with both the pace of the arbitration and Attorney Glickman. They contacted Nicholas J. Toghia with the law firm of Maguire, Toghia & Orbach (MTO). The Powers retained Attorney Toghia to represent them in the construction defects arbitration on an hourly fee basis. The Powers met with Attorney Toghia at his office on March 3, 1993, and signed a four-page "Attorney Retainer and Fee Agreement." The agreement contained 12 numbered paragraphs: scope of agreement; duties of attorney and client; attorney's billing and case management; costs and expenses; attorney's statements; attorney's lien; professional liability coverage; termination or withdrawal; termination or conclusion; binding arbitration; authority of client; and client's deposit. Numbered paragraph 10, concerning arbitration, provided in full as follows:
"10. BINDING ARBITRATION. [¶] The parties hereto agree that any dispute relating to ATTORNEY'S fees under this CONTRACT shall be submitted to binding arbitration before the Los Angeles County Bar Association pursuant to California Business and Professions Code Section 6200, et seq., or, should that organization decline to arbitrate the dispute, before the State Bar of California pursuant to California Business and Professions Code Section 6200, et seq.
"Any other dispute (other than ATTORNEY'S fees) between the parties hereto arising out of or relating to this CONTRACT or ATTORNEY'S professional services rendered to or for CLIENT, shall be resolved by binding *1107 arbitration before the American Arbitration Association in Los Angeles, California, in accordance with the Commercial Rules of the American Arbitration Association prevailing at the time of the arbitration."
In July 1993, Attorney Toghia moved from MTO to the law firm of Dickson, Carlson & Campillo (DCC). In August 1993, the Powers became concerned about their financial arrangements with Attorney Toghia, which were becoming expensive. On September 9, 1993, the Powers and Attorney Toghia modified their financial arrangements by entering into a "First Amendment to Attorney Retainer and Fee Agreement," which changed their fee arrangement from hourly to flat fee. This amendment was four pages long and included an introduction, a paragraph detailing the background and description of the pending arbitration case, and seven numbered paragraphs: conditions; scope of services; clients' duties; fees; no representations; arbitration; and affirmation of the original attorney retainer and fee agreement. Numbered paragraph 6, concerning arbitration, provided in full as follows:
"6. ARBITRATION. If any dispute arises out of, or related to, a claimed breach of this agreement, the professional services rendered by Toghia, or Clients' failure to pay fees for professional services and other expenses specified, or any other disagreement of any nature, type or description regardless of the facts or the legal theories which may be involved, such dispute shall be resolved by arbitration before the American Arbitration Association by a single arbitrator in accordance with the Commercial Rules of the American Arbitration [Association] in effect [at] the time the proceeding is initiated. The hearings shall be held in the Los Angeles offices of the American Arbitration Association and each side shall bear his/their own costs and attorney fees."
The arbitration of the construction defects dispute was ultimately suspended, because neither the Powers nor the seller/developer had initialed, as required, the written purchase agreement's general arbitration provision.
On January 3, 1995, the Powers sued Attorney Glickman, Attorney Toghia and their respective law firms for legal malpractice. The Powers alleged Attorney Glickman had been negligent in negotiating and drafting the purchase agreement. The Powers further alleged that Attorneys Glickman and Toghia had both been negligent in prosecuting the Powers' construction defects claim in an arbitration proceeding, when the arbitration provision in the purchase agreement was inapplicable. Finally, the Powers alleged that Attorney Toghia had caused them to incur great unnecessary expense in prosecuting the arbitration proceeding.
On February 7, 1995, Attorney Toghia and his law firms petitioned the trial court to compel arbitration of the Powers' legal malpractice action *1108 against them. On February 21, 1995, Glickman answered the complaint. On March 1, 1995, the Powers opposed Attorney Toghia's motion to compel arbitration. The Powers' opposition contended that the arbitration provisions in the two retainer agreements were not enforceable because the Powers had not been advised by Attorney Toghia that they were giving up their right to a jury trial in any legal malpractice action which they might subsequently bring against Attorney Toghia. They also argued that attorney-client arbitration agreements were subject to strict scrutiny for conflict of interest, and the arbitration provisions were required to be in 10-point bold red type. The Powers further contended that even if the arbitration provisions were enforceable, they should not be enforced pursuant to Code of Civil Procedure section 1281.2, which gives the trial court discretion to refuse to enforce an arbitration agreement where the action involves third parties who are not subject to the arbitration agreement.
The trial court denied the petition to compel arbitration relying on Lawrence v. Walzer & Gabrielson (1989) 207 Cal. App. 3d 1501 [256 Cal. Rptr. 6] and two opinions of the State Bar, Nos. 1989-116 and 1977-47 (Cal. Compendium on Prof. Responsibility, pt. IIA, State Bar Formal Opn. Nos. 1989-116 and 1977-47). The trial court determined that an agreement between an attorney and a client to arbitrate legal malpractice claims must be strictly scrutinized. The trial court found: "As to the March 3, 1993 agreement, the Court found specifically that the arbitration clause in it was not in bold or otherwise large or distinct print, it was at the end of the document, the Powers were not encouraged to seek the advice of independent counsel, and Toghia did not specifically inform them that by signing it they were waiving important rights, to wit, the right to a jury trial on a malpractice claim against him and his law firm. Accordingly, there was no informed consent to arbitrate the Powers' malpractice claim brought herein against Toghia and [MTO]. [¶] As to the September 9, 1993 fee agreement, the Court found specifically that the Plaintiffs were not informed or advised by their lawyer, Toghia, that they were waiving their right to a trial on any malpractice committed by Toghia, that the arbitration clause came at the end of the agreement, that the arbitration clause was not set out in bold or otherwise large or distinct type, and that the Plaintiffs were not encouraged to seek the advice of independent counsel. Accordingly, the Court found that the Powers did not give their informed consent to arbitrate their malpractice claim against Toghia and [DCC], under the September 9, 1993 agreement."
DISCUSSION
(1a) As a general rule, a written agreement to arbitrate a future controversy is valid and enforceable and requires no special waivers or provisions. *1109 Exceptions to the general rule may apply if the arbitration provision is included within an adhesion contract or the scope of the arbitration provision is ambiguous. An attorney may ethically, and without conflict of interest, include in an initial retainer agreement with a client a provision requiring the arbitration of both fee disputes and legal malpractice claims.
Arbitration Agreements
"A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract." (Code Civ. Proc., § 1281.) (2) "[A]rbitration has become an accepted and favored method of resolving disputes [citations], praised by the courts as an expeditious and economical method of relieving overburdened civil calendars [citation]." (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal. 3d 699, 706-707 [131 Cal. Rptr. 882, 552 P.2d 1178].) "Consequently, courts will `"indulge every intendment to give effect to such proceedings."'" (Moncharsh v. Heily & Blase (1992) 3 Cal. 4th 1, 9 [10 Cal. Rptr. 2d 183, 832 P.2d 899].)
(1b) An arbitration provision need not contain an express waiver of the right to a jury trial to be enforceable. "[T]o predicate the legality of a consensual arbitration agreement upon the parties' express waiver of jury trial would be as artificial as it would be disastrous. [¶] When parties agree to submit their disputes to arbitration they select a forum that is alternative to, and independent of, the judicial a forum in which, as they well know, disputes are not resolved by juries. Hence there are literally thousands of commercial and labor contracts that provide for arbitration but do not contain express waivers of jury trial.... [T]o destroy their viability upon an extreme hypothesis that they fail expressly to negative jury trials would be to frustrate the parties' interests and destroy the sanctity of their mutual promises." (Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d at pp. 713-714.) Failure of a party to read the entire agreement is not a reason for its revocation. (Federico v. Frick (1970) 3 Cal. App. 3d 872, 875 [84 Cal. Rptr. 74].)
The Powers contend that the arbitration provisions are unenforceable because they did not carefully read the agreements, did not understand the significance of the arbitration provisions, and did not knowingly waive their right to a jury trial in a legal malpractice action. As a general rule, such arguments may not be used to invalidate a written arbitration provision. We consider next whether other considerations justify a different result.
*1110 Adhesion Contracts
(3) An arbitration provision in an adhesion contract is legally enforceable unless the provision (1) does not fall within the reasonable expectations of the weaker party, or (2) is unduly oppressive or unconscionable. (Dryer v. Los Angeles Rams (1985) 40 Cal. 3d 406, 415-416, fn. 9 [220 Cal. Rptr. 807, 709 P.2d 826]; Graham v. Scissor-Tail, Inc. (1981) 28 Cal. 3d 807, 819-820 [171 Cal. Rptr. 604, 623 P.2d 165]; Stirlen v. Supercuts, Inc. (1997) 51 Cal. App. 4th 1519, 1530-1533 [60 Cal. Rptr. 2d 138].) Where an arbitration provision is included in a contract of adhesion, "[t]he law ought not to decree a forfeiture of such a valuable right where the [weaker party] has not been made aware of the existence of an arbitration provision or its implications. Absent notification and at least some explanation, the [weaker party] cannot be said to have exercised a `real choice' in selecting arbitration over litigation." (Wheeler v. St. Joseph Hospital (1976) 63 Cal. App. 3d 345, 361 [133 Cal. Rptr. 775, 84 A.L.R. 3d 343].) "[C]ourts will not enforce provisions in adhesion contracts which limit the duties or liability of the stronger party unless such provisions are `conspicuous, plain and clear' [citation] and will not operate to defeat the reasonable expectations of the parties [citation]." (Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d at p. 710.)
(4) "A contract of adhesion has been defined as `a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.'" (Izzi v. Mesquite Country Club (1986) 186 Cal. App. 3d 1309, 1317 [231 Cal. Rptr. 315].) "In many cases of adhesion contracts, the weaker party lacks not only the opportunity to bargain but also any realistic opportunity to look elsewhere for a more favorable contract; he must either adhere to the standardized agreement or forego the needed service.... [¶] ... [I]n all prior contract of adhesion cases, the courts have concerned themselves with weighted contractual provisions which served to limit the obligations or liability of the stronger party." (Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d at p. 711.) Thus, for example, a hospital admissions form constitutes an adhesion contract because a patient being admitted to a hospital is in no position to debate his or her terms of admission. (Wheeler v. St. Joseph Hospital, supra, 63 Cal. App.3d at p. 357.)
(1c) Neither the March 3, 1993, agreement nor the September 9, 1993, amendment is an adhesion contract. The Powers did not enter into a standardized contract with Attorney Toghia on a take it or leave it basis. The retainer agreement and the amendment were negotiated and individualized agreements. The Powers possessed the freedom to employ the attorney of their choice and bargain for the terms of their choice. The Powers' decision to change legal counsel and their successful renegotiation of the terms of their fee arrangement with Attorney Toghia demonstrate that they possessed substantial bargaining strength.
*1111 Ambiguity
(5) Our Supreme Court long ago established "[t]he interpretation of a written instrument, even though it involves what might properly be called questions of fact [citation], is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. (See Civ. Code, §§ 1635-1661; Code Civ. Proc., §§ 1856-1866.) ... It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence." (Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861, 865 [44 Cal. Rptr. 767, 402 P.2d 839].) The question must be decided de novo by this court, unless the interpretation depends upon extrinsic evidence. (Home Federal Savings & Loan Assn. v. Ramos (1991) 229 Cal. App. 3d 1609, 1613 [284 Cal. Rptr. 1]; Broffman v. Newman (1989) 213 Cal. App. 3d 252, 257 [261 Cal. Rptr. 532].) "[I]t is only when the foundational extrinsic evidence is in conflict that the appellate court gives weight to anything other than its de novo interpretation of the parties' agreement." (Medical Operations Management, Inc. v. National Health Laboratories, Inc. (1986) 176 Cal. App. 3d 886, 891 [222 Cal. Rptr. 455].)
(6) "When the interpretation turns on a credibility determination, interpretation becomes a question of fact. [Citation.] When the contract is unambiguous, an appellate court is not bound by the trial court's interpretation of the contract. [Citations.] However, when the meaning of a contract is uncertain, and contradictory evidence is introduced to aid in the interpretation, the question of meaning is one of fact properly assigned to the [finder of fact] and its findings should not be disturbed by the appellate tribunal. [Citation.] [¶] Under the parol evidence rule, extrinsic evidence is not admissible to contradict express terms in a written contract or to explain what the agreement was. [Citation.] The agreement is the writing itself. [Citation.] Parol evidence may be admitted to explain the meaning of a writing when the meaning urged is one to which the written contract term is reasonably susceptible or when the contract is ambiguous. [Citations.] Parol evidence cannot, however, be admitted to show intention independent of an unambiguous written instrument." (Sunniland Fruit, Inc. v. Verni (1991) 233 Cal. App. 3d 892, 898 [284 Cal. Rptr. 824].)
(7) "We interpret the intent and scope of the agreement by focusing on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made." (Lloyd's Underwriters v. Craig & Rush, Inc. (1994) 26 Cal. App. 4th 1194, 1197-1198 [32 Cal. Rptr. 2d 144]; Civ. Code, § 1644.) "A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties." (Civ. Code, § 1643; Beverly Hills Oil Co. v. Beverly Hills Unified Sch. Dist. (1968) 264 Cal. App. 2d 603, 609 [70 Cal. Rptr. 640].) "The court must avoid an interpretation which will make a contract extraordinary, harsh, unjust, or *1112 inequitable." (Strong v. Theis (1986) 187 Cal. App. 3d 913, 920 [232 Cal. Rptr. 272].)
"In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." (Civ. Code, § 1654.) Where the language in a contract is ambiguous, the contract should be interpreted most strongly against the party who prepared it. (Burr & Ladd, Inc. v. Marlett (1964) 230 Cal. App. 2d 468, 474 [41 Cal. Rptr. 130]; Kanner v. National Phoenix Industries, Inc. (1962) 203 Cal. App. 2d 757, 760-761 [21 Cal. Rptr. 857].) However, "this canon applies only as a tie breaker, when other canons fail to dispel uncertainty." (Pacific Gas & Electric Co. v. Superior Court (1993) 15 Cal. App. 4th 576, 596 [19 Cal. Rptr. 2d 295].)
Lawrence v. Walzer & Gabrielson, supra, 207 Cal. App. 3d 1501, specifically addressed an arbitration provision in an attorney retainer agreement. In Lawrence, the retainer agreement and the arbitration provision dealt almost exclusively with financial matters. (Id. at p. 1506.) The client opposed arbitration on the basis of her declaration that she had not understood she was waiving her right to a jury trial in a legal malpractice action and would not have signed the retainer agreement if she had known she was agreeing to submit future legal malpractice claims to arbitration. The trial court found the client's declaration to be credible and denied the attorney's petition to compel arbitration. Relying on extrinsic evidence and rules of construction, the appellate court found the arbitration provision to be ambiguous to the extent of its applicability to legal malpractice claims, as opposed to fee disputes. (Ibid.) In affirming the trial court's order denying the petition to compel arbitration, the appellate court construed the ambiguous arbitration provision of the retainer agreement as applying only to fee disputes and not to legal malpractice claims. It thus "avoid[ed] construing the retainer provisions as a document which misleadingly appear[ed] to the client to deal almost exclusively with financial matters, while extracting from her a significant yet inconspicuous relinquishment of the client's rights regarding future claims of malpractice." (Id. at pp. 1506-1507, fn. omitted.)
(1d) The Powers contend that the arbitration provisions in these agreements are ambiguous because the agreements do not specifically state that malpractice claims must be arbitrated. They argue that the ambiguity must be construed against the attorney. We are not persuaded by this contention. Both arbitration provisions require that any dispute arising out of or related to professional services be resolved by arbitration. The ordinary meaning of "disputes arising out of or related to professional services" encompasses professional malpractice claims. Unlike the arbitration provision in *1113 Lawrence, both the March 3, 1993, and the September 9, 1993, arbitration provisions unambiguously apply to legal malpractice claims as well as fee disputes. In the initial retainer agreement, the arbitration provisions relating to fee disputes are distinct and different from the arbitration provisions relating to disputes concerning other matters.
Neither provision could reasonably have been understood by the Powers to concern exclusively financial matters, nor is the "other disputes" language mere surplusage to arbitration of fee disputes. The March 3, 1993, arbitration provision contained a second paragraph devoted entirely to arbitration of disputes other than disputes over attorney's fees. In fact, unlike the first paragraph concerning fee disputes which provided that disputes were to be submitted to the Los Angeles County Bar Association, the second paragraph provided that other disputes were to be arbitrated before the American Arbitration Association. The September 9, 1993, amendment's language also clearly covered disputes arising out of professional services. The language in both arbitration provisions is broad enough to unambiguously include malpractice claims against defendants.[2] Moreover, such a construction of the language is both reasonable and equitable.
State Bar Opinions
A formal advisory opinion of the Standing Committee on Professional Responsibility and Conduct of the State Bar discusses the ethical propriety of provisions requiring the arbitration of legal malpractice disputes between attorneys and clients. "[T]he Committee reaffirms the principle that there is nothing ethically improper with including an arbitration provision in the initial attorney-client retainer agreement by which the attorney-client relationship is first established. The extent to which the client is aware of the provision and freely consents to it goes to the legal enforceability of the agreement, not its ethical propriety. However, where an arbitration provision is negotiated between an attorney and an existing client, ethical considerations aside from any legal considerations require that the attorney fully disclose the terms and consequences of the provision and that the client knowingly consent to it. It is the Committee's opinion that compliance with the provisions set forth in California Code of Civil Procedure section 1295 ... would satisfy the ethical concerns present when an arbitration provision is negotiated with an existing client. [¶] ... [¶] This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, *1114 the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar." (Cal. Compendium on Prof. Responsibility, pt. IIA, State Bar Formal Opn. No. 1989-116, supra, p. 4, italics in original, fn. omitted.)[3]
The formal opinion of the State Bar expressly concluded that a provision requiring arbitration of legal malpractice claims did not limit the attorney's liability to the client for legal malpractice, but merely selected a forum for deciding those claims. (Cal. Compendium on Prof. Responsibility, pt. IIA, State Bar Formal Opn. No. 1989-116, supra, p. 2.) The formal opinion further concluded that conflict of interest rules were not applicable to the inclusion in the initial retainer agreement of a provision requiring arbitration of legal malpractice. (Ibid.; cf. Hawk v. State Bar (1988) 45 Cal. 3d 589, 598 [247 Cal. Rptr. 599, 754 P.2d 1096] [attorney's acquisition of an interest adverse to client's is subject to strict scrutiny].)[4] The formal opinion did suggest, however, that in order to avoid the possibility that an arbitration provision might be found unenforceable, an attorney would be advised to comply with the provisions of Code of Civil Procedure section 1295. (Cal. Compendium on Prof. Responsibility, pt. IIA, State Bar Formal Opn. No. 1989-116, supra, p. 4, fn. 5.)
Code of Civil Procedure section 1295 requires that contracts for medical services containing malpractice arbitration provisions state in at least 10-point bold red type that by signing the agreement the patient (1) agrees to have any medical malpractice issue decided by a neutral arbitrator and (2) specifically waives the right to a jury or court trial. "Section 1295 was enacted in an extraordinary session of the Legislature called by the Governor to alleviate the escalating cost of medical malpractice insurance premiums (and resulting problems of health care availability) due to the surge of medical malpractice actions and high jury awards." (Rosenfield v. Superior Court (1983) 143 Cal. App. 3d 198, 203 [191 Cal. Rptr. 611].)
Here, the initial retainer agreement contained a provision unambiguously requiring the arbitration of legal malpractice claims. There is nothing ethically improper about such a provision. It did not attempt to limit Attorney Toghia's liability to the Powers for legal malpractice. It violated no conflict of interest rules and was not adverse to the Powers. Arbitration provisions are beneficial to both parties. As to the amendment, we note *1115 that the amendment did nothing more than confirm the existing arbitration agreement.
American Arbitration Association (AAA)
Both the initial retainer agreement and the amendment provide for the arbitration of legal malpractice claims before the AAA. The Powers note that Attorney Toghia has represented clients before the AAA and has been on the AAA panel of arbitrators for 20 years. The Powers were given this information after signing the initial retainer agreement, but before signing the amendment. They contend it would be unfair to require them to arbitrate their legal malpractice claim against Attorney Toghia before the AAA under these circumstances. It is unnecessary for us to decide this issue at this time. On remand, the trial court may require the arbitration to take place in a different arbitration forum if the interests of fairness require.
Enforceability
The arbitration provisions in this case are enforceable as to legal malpractice claims. The provisions unambiguously apply to the arbitration of legal malpractice claims. They do not violate any ethical proscriptions. No conflict of interest rules are applicable and, thus, strict scrutiny is not required. The failure of the Powers to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions. The arbitration provisions were not included in a contract of adhesion. The provisions were not required to be in compliance with Code of Civil Procedure section 1295. Attorney Toghia was not required to encourage the Powers to seek the advice of independent counsel. It was not necessary that the Powers expressly waive their right to a jury trial.
Inconsistent Results
(8) The Powers contend that since their complaint alleges the same malpractice claims against Attorneys Glickman and Toghia, arbitration should not be compelled because there is a likelihood of inconsistent results if their claims against Attorney Toghia are tried separately from their claims against Attorney Glickman. The trial court made no findings on this issue. Code of Civil Procedure section 1281.2, subdivision (c) expressly provides that if an agreement to arbitrate is otherwise enforceable, the trial court shall order arbitration unless the party opposing arbitration is also a party to a pending court action with a third party "arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact." In such instances, the trial court *1116 may: (1) refuse to enforce the arbitration agreement and order intervention or joinder of all the parties in a single action or special proceeding; (2) order intervention or joinder as to all or only certain issues; (3) order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) stay arbitration pending the outcome of the court action or special proceeding. Upon remand, the trial court is to determine whether there is a likelihood of inconsistent results if the claims against Attorney Toghia are tried separately from the claims against Attorney Glickman. If the trial court finds such a likelihood, it shall exercise its discretion as to the appropriate remedy under Code of Civil Procedure section 1281.2, subdivision (c).
DISPOSITION
The order denying the petition to compel arbitration is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Appellants Dickson, Carlson & Campillo; Maguire, Toghia & Orbach; and Nicholas J. Toghia are awarded their costs on appeal.
Turner, P.J., and Godoy Perez, J., concurred.
On May 23, 1997, the opinion was modified to read as printed above.
NOTES
[1] An order denying a petition to compel arbitration is an appealable order. (Code Civ. Proc., § 1294, subd. (a).)
[2] Since the arbitration provisions are unambiguous, we need not resort to extrinsic evidence of the parties' intent or other rules of construction to construe the provisions. Accordingly, we are not concerned with the declarations of Daniel Powers and Attorney Toghia submitted in opposition to and support of the petition to compel.
[3] State Bar Formal Opinion No. 1977-47, supra, was disapproved by State Bar Formal Opinion No. 1989-116 to the extent the earlier opinion was inconsistent. Accordingly, we do not discuss it.
[4] Conflict of interest rules may be applicable to arbitration provisions in retainer agreements sought to be used by the attorney against the client in connection with separate financial transactions. (Mayhew v. Benninghoff (1997) 53 Cal. App. 4th 1365 [62 Cal. Rptr. 2d 27].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265042/ | 54 Cal. App. 4th 705 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
DAT TAN NGUYEN, Defendant and Appellant.
Docket No. H014026.
Court of Appeals of California, Sixth District.
April 25, 1997.
*708 COUNSEL
Manuel J. Baglanis, under appointment by the Court of Appeal, for Defendant and Appellant.
*709 Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and David D. Salmon, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
MIHARA, J.
Defendant was convicted of petty theft with a prior (Pen. Code, § 666), and allegations that he had suffered two prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b) to (i) were found true. He was committed to state prison for an indeterminate term of 25 years to life. On appeal, he asserts that (1) CALJIC No. 2.90 is inadequate because it does not define "abiding conviction," (2) the trial court prejudicially erred in giving CALJIC No. 17.42, (3) the trial court abused its discretion by refusing to reduce the conviction to a misdemeanor, (4) he must be sentenced under Penal Code section 666 rather than Penal Code section 667, subdivisions (b) to (i), (5) his prior convictions did not qualify for treatment under Penal Code section 667, subdivisions (b) to (i) because these convictions were suffered prior to the enactment of that statute, (6) Penal Code section 667, subdivisions (b) to (i) was not in effect at the time of his offense because this statute was not proper urgency legislation, (7) the evidence was insufficient to prove that one of his prior convictions was for a serious felony, (8) the restriction in Penal Code section 667, subdivisions (b) to (i) on conduct credits violates equal protection, (9) a remand is required because the trial court mistakenly believed that it had no discretion to strike one or both of the prior conviction allegations and (10) his punishment is cruel or unusual. We remand for the limited purpose of giving the trial court the opportunity to exercise its discretion under Penal Code section 1385. We do not reach defendant's cruel or unusual punishment argument due to the remand. However, we reject the remainder of defendant's contentions.
FACTS
At 6:15 p.m. on October 27, 1994, undercover security officers at a Safeway store in Sunnyvale saw defendant shoplift a large quantity of film and toiletries. Defendant was with another man. The two men conversed, and the other man went away with a cart. Defendant took eight packages of razor blades from the store shelf and placed them in his basket. The other man returned with a large quantity of film in his cart covered by some magazines. Film and toiletries are frequently stolen items because they are small and expensive. Defendant removed the items from his basket and the *710 film from the other man's cart and placed these objects inside his shirt. In all, defendant concealed 12 packages of film, 8 packages of razors and a package of "Vicks Nyquil" in his shirt. These items had a total value of $182.79. The two men left the cart and the basket and proceeded to the store exit. They did not pay for the items. Two store security officers followed defendant and his compatriot out of the store. Defendant's compatriot saw the security officers and said something to defendant. Defendant "started running." One of the security officers chased and caught defendant. The other security officer detained defendant's compatriot, who had not run. Defendant admitted taking the items and stated that he had done so to "pay for a room" and food. Defendant's compatriot looked "a bit malnourished," but defendant was clean and "looks like he eats well." The only money defendant had in his possession was 16 cents. He also had a pager.
Defendant was charged by information with a single count of petty theft with a prior conviction (Pen. Code,[1] § 666).[2] It was further alleged that he had suffered prior serious felony convictions for voluntary manslaughter (§ 192, subd. (a)) in 1988 and burglary of an inhabited dwelling (§§ 459, 460, subd. (a)) in 1994. Defendant testified on his own behalf at his jury trial. He asserted that he had recently met his compatriot, Hoang Tran, in a card room "when we were playing card[s]."[3] As defendant had no "place to stay," Tran let defendant stay in a room where several other men were smoking narcotics. Defendant did not like the smell in the room, so he asked Tran to take him somewhere else. Tran took him to the Safeway store in Sunnyvale. Tran told defendant to "do whatever I tell you to do, then we can get some money to rent the room and to buy some food to eat." Defendant claimed that he was hungry and tired and "my clothes were very dirty," so he did whatever Tran told him so that he could get some food. Tran would not let him take any food from the Safeway store. Defendant claimed that he had expressed his reluctance to steal to Tran, but Tran had told him "don't worry." Tran told defendant to tell the security officers that he did not know Tran, and defendant complied. Defendant admitted that he had suffered prior convictions for voluntary manslaughter, petty theft and first degree burglary. However, he claimed that the prior petty theft and burglary were "the same situation" as this offense; "I was trapped into it by friends."
The trial court instructed the jury that "[i]n your deliberations do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict." The jury was also instructed on the definition of reasonable doubt with the standard revised version of CALJIC *711 No. 2.90. Jury deliberations lasted less than an hour. The jury returned a verdict of guilt on the petty theft count, and it brought back true findings on both of the prior conviction allegations. The court committed defendant to state prison for an indeterminate term of 25 years to life. Defendant filed a timely notice of appeal.
DISCUSSION
A.-C.[*]
.... .... .... .... .... .... .... .
D. Defendant Is Not Entitled to Be Punished Under Section 666 Instead of Section 667
Defendant claims that he must be punished under section 666 instead of section 667, subdivisions (b) to (i). He presents four separate arguments in support of this assertion. We reject them.
1. Violation of Section 666 Is a Felony
(1) Defendant claims that a person who violates section 666 does not "commit a felony" but only commits "a misdemeanor with enhanced punishment" and therefore does not come within the meaning of section 667, subdivisions (b) to (i). We disagree.
"A felony is a crime which is punishable with death or by imprisonment in the state prison." (§ 17, subd. (a), italics added.) "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes" only when a punishment other than state prison is imposed or the offense is designated or charged as a misdemeanor or determined or declared to be a misdemeanor. (§ 17, subd. (b).) Defendant relies heavily on the fact that section 666 is a "sentence-enhancing statute" rather than a "substantive offense statute." (People v. Coronado (1995) 12 Cal. 4th 145, 152, fn. 5 [48 Cal. Rptr. 2d 77, 906 P.2d 1232].) We find this fact irrelevant as to this issue. Section 17 makes clear that it is the potential punishment for an offense which determines whether the offense is a felony or a misdemeanor. As section 666 is the statute which specifies the punishment for defendant's offense, it is the statute to which we must look in order to determine whether defendant's crime is a felony or a misdemeanor. In this case, it is easy to see that defendant's offense is a felony under section 17, subdivision (a) because *712 section 666 provides that defendant's offense is "punishable ... by imprisonment in the state prison" and none of the circumstances set forth in section 17, subdivision (b) apply here. We reject defendant's claim that his offense was not a felony.
2. The `Special Over General' Rule Is Inapplicable
(2) Defendant argues that section 666 is a "special statute" which controls over section 667, subdivisions (b) to (i), a "general statute." As the Attorney General points out, a similar argument was rejected by the California Supreme Court in People v. Coronado, supra, 12 Cal. 4th 145, 153. Coronado had received a state prison term for driving under the influence because he had three prior convictions for driving under the influence. The state prison term was authorized by Vehicle Code section 23175, which, like section 666, is a sentence-enhancing statute and not a substantive offense statute. (Coronado, at p. 152, fn. 5.) A one-year prison prior enhancement (§ 667.5, subd. (b)) was attached to Coronado's state prison term as a consequence of the fact that one of his three prior driving under the influence convictions had been a felony and had resulted in a state prison term. (Coronado, at p. 149.) Coronado claimed on appeal that section 667.5, subdivision (b) was inapplicable because Vehicle Code section 23175 was a "special statute" which controlled over the more "general statute" section 667.5, subdivision (b). (Coronado, at p. 153.) The California Supreme Court soundly rejected this assertion. Its reasoning is pertinent here.
"The `special over the general' rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancement statutes.... The rule does not apply, however, unless `each element of the "general" statute corresponds to an element on the face of the "specific" [sic] statute' or `it appears from the entire context that a violation of the "special" statute will necessarily or commonly result in a violation of the "general" statute.' ... [¶] Do the elements of section 667.5(b) correspond to the elements of Vehicle Code section 23175? Clearly not. Among other things, punishment may be imposed under section 667.5(b) only where the defendant has been previously convicted of a felony and has served a prison term therefor. In contrast, felony punishment is permissible under Vehicle Code section 23175 even where the defendant has never been convicted of a felony and has never served a term in state prison. In addition, Vehicle Code section 23175 limits its application to prior convictions involving certain specified drunk driving offenses, while section 667.5(b) applies generally to any felony conviction that resulted in a prison term. [¶] Would a conviction resulting in the application of the felony punishment provisions of Vehicle Code section 23175 `necessarily or commonly' result *713 in the application of the enhancement provisions of section 667.5(b)? Again, the answer is no. Even though both statutes provide for punishment where prior convictions are involved, misdemeanor convictions may often serve to trigger felony punishment under Vehicle Code section 23175 but, by definition, could never trigger application of section 667.5(b).... Moreover, even though a felony drunk driving conviction ... may also elevate a current offense to a felony under Vehicle Code section 23175, it is not necessarily or commonly the case that the qualifying felony conviction will have resulted in a state prison term. For example, a trial court may, in granting probation, suspend execution of a sentence for a first or second felony conviction under Vehicle Code section 23153.... Accordingly, a conviction resulting in the application of Vehicle Code section 23175's felony punishment provisions would not necessarily or commonly result in the imposition of a section 667.5(b) enhancement. The `special over general' rule has no application here." (People v. Coronado, supra, 12 Cal.4th at pp. 153-155, citations and fn. omitted.)
As in Coronado, the elements necessary for application of section 667, subdivisions (b) to (i) do not correspond to the elements necessary for application of section 666. Section 667, subdivisions (b) to (i) are applicable to defendants who have suffered any prior serious or violent felony convictions. It does not limit its application to theft-related crimes. In contrast, section 666 is applicable even to defendants who have no prior felony convictions, let alone serious or violent felony convictions, but its scope is limited to defendants who have suffered prior theft-related convictions. A violation of section 666 also will not "necessarily or commonly result in a violation of" section 667, subdivisions (b) to (i). (People v. Coronado, supra, 12 Cal.4th at p. 154.) A recidivist petty thief, the target of section 666, will never violate section 667, subdivisions (b) to (i) because petty theft is not a serious or violent felony even when it is a felony. Defendant's argument cannot survive the application of the California Supreme Court's reasoning in Coronado. The "special over general" rule is not applicable here.
3. Equal Protection
Defendant claims that he must be sentenced under section 666 rather than section 667, subdivisions (b) to (i) since subjecting persons with two prior serious felony convictions, at least one of which is a conviction for a theft-related offense, to punishment under section 667, subdivisions (b) to (i) for a petty theft offense violates equal protection because persons with two prior serious felony convictions which do not include any convictions for theft-related offenses are subject only to misdemeanor punishment for a petty theft offense. We conclude that a compelling justification supports this distinction.
*714 (3a) The challenged classification arises from the combined application of two penal statutes. Section 667, subdivisions (b) to (i) applies only to an offender whose current offense is a felony. (§ 667, subds. (c), (e).) Petty theft may be treated as a felony only if it is committed by a person who has suffered a prior conviction for a theft-related offense and has served a period of confinement therefor. (§§ 484, 486, 488, 490, 666.) Hence, a petty thief who has two prior serious felony convictions, including or in addition to a prior theft-related conviction which resulted in confinement, is subject to punishment under section 667, subdivisions (b) to (i) and may receive a term of twenty-five years to life, but a petty thief who has two prior serious felony convictions but no prior theft-related convictions is subject only to misdemeanor punishment. This is the classification that defendant attacks. He argues that the distinction between these two groups of offenders does not justify the difference in the punishment which follows from their commission of the same current petty theft offense.
(4) "`"The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment."'" (In re Eric J. (1979) 25 Cal. 3d 522, 531 [159 Cal. Rptr. 317, 601 P.2d 549].) It is often stated that "[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. at p. 530.) The use of the term "similarly situated" in this context refers only to the fact that "`[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' ..." (In re Roger S. (1977) 19 Cal. 3d 921, 934 [141 Cal. Rptr. 298, 569 P.2d 1286], citation omitted.) There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The "similarly situated" prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.
(5) This "prerequisite" showing is met here. The Legislature expressly stated the purpose of section 667, subdivisions (b) to (i) in the statute. "It is the intent of the Legislature ... to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously *715 convicted of serious and/or violent felony offenses." (§ 667, subd. (b).) Clearly, the Legislature intended to enhance the punishment of individuals who had a history of serious felony offenses and had not been deterred from continuing to commit felony offenses. While it is clear that section 667, subdivisions (b) to (i) are aimed at offenders who have committed a current felony, it would be, as we have explained above, circular to assert that this distinction establishes that the two groups of petty thieves herein in question are not "similarly situated." Each member of both of the groups has two prior serious felony convictions and a current petty theft conviction. While the classification of the current offense as a felony or misdemeanor differs based on distinctions in the criminal background of the two groups, it is this distinction which is challenged as not justified by the purpose of section 667, subdivisions (b) to (i). In our view, these two groups are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.
The next step in analyzing an equal protection challenge is a determination of the appropriate standard of review. In this case, the California Supreme Court has dictated that the appropriate standard of review for a distinction of this kind is strict scrutiny. This standard was established by a unanimous California Supreme Court in People v. Olivas (1976) 17 Cal. 3d 236 [131 Cal. Rptr. 55, 551 P.2d 375]. It is well accepted that strict scrutiny review is applied only where the classification is "suspect" or affects a "fundamental interest." (Olivas, at p. 243.) The defendant in Olivas did not claim that the challenged classification itself was "suspect," but only that it involved a fundamental interest. (Olivas, at p. 244.) The California Supreme Court analyzed the issue solely from a "fundamental interest" standpoint. "[W]e must initially define just what `interest' is involved in the present case. Once that determination is made we must next decide whether that `interest' is `fundamental' for purposes of equal protection analysis. We must finally apply the appropriate standard of review to the legislative classification to see if it passes constitutional muster." (Olivas, at p. 244.)
Olivas struck down a classification which subjected misdemeanor offenders between the ages of 18 and 21 to significantly "extended incarceration" beyond that applicable to misdemeanor offenders over the age of 21 who had committed the same offense. The challenged classification arose from the fact that individuals in the younger group of offenders could be committed to the California Youth Authority where they could be incarcerated for several years, but individuals in the older group of offenders could not be incarcerated for more than six months in jail. (People v. Olivas, supra, 17 Cal.3d at pp. 241-242.) The California Supreme Court held that the appropriate standard of review was strict scrutiny because the challenged classification affected a fundamental interest the right to liberty.
*716 First, the court explored the nature of the interest affected by the classification. It held that the classification in question affected the defendant's "personal liberty interest" because incarceration in an institution was a "deprivation of liberty." (People v. Olivas, supra, 17 Cal.3d at p. 245.) Second, it considered whether an individual's "personal liberty interest" was "fundamental" under the California Constitution and the United States Constitution. (Olivas, at p. 246.) Distinguishing a number of cases from other state and federal courts that had held that personal liberty was not the kind of "fundamental interest" that would justify strict scrutiny equal protection review (Olivas, at pp. 247-248), the California Supreme Court took the position that personal liberty was indeed fundamental. The court supported this determination by noting, among other things, that society's concern about procedures that may result in the deprivation of a person's liberty was the main foundation for the concept of due process itself. (Olivas, at p. 249.) The court specifically noted that the California Constitution "manifests an even stronger concern for unwarranted deprivations of personal liberty by the state than can be found in the due process clause of the Fourteenth Amendment, itself a strong protection against unwarranted deprivations of liberty." (Olivas, at p. 250.) In finding that the classification in question affected a fundamental interest and therefore merited strict scrutiny review, the court expressly discredited the notion that an initial deprivation of liberty was fundamental but a "continuing" deprivation was not fundamental. "We believe that those charters are no less vigilant in protecting against continuing deprivations of liberty than are their due process clauses in protecting against the initial deprivation of that liberty. We conclude that personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions." (Olivas, at p. 251.)
Having selected the appropriate standard of review, the court proceeded to apply the strict scrutiny standard to the challenged classification. "[O]nce it is determined that the classification scheme affects a fundamental interest or right the burden shifts; thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose. [Citations.] Having determined that personal liberty is an interest which is entitled to the same protection as other fundamental interests, we confront the central issue before us: can the challenged sentencing scheme withstand application of the strict scrutiny standard?" (People v. Olivas, supra, 17 Cal.3d at p. 251.) The court concluded that the challenged sentencing scheme "has not been justified by a showing that it is necessary to achieve a compelling state interest" (Olivas, at p. 257) and struck it down. (Olivas, at pp. 251-252.) However, it did not do so lightly. "[I]t is not our function to *717 substitute our own judgment for the preference already expressed by the Legislature simply because we have struck a different balance on the basis of the evidence before us. But our determination in the present case is not based on a choice between two equally proper alternatives; it is compelled by the mandates of equal protection and preservation of a fundamental interest." (Olivas, at pp. 254-255.)
The classification challenged by defendant, like the classification challenged in Olivas, affects a fundamental interest. The challenged distinction subjects some petty thieves to life sentences and others to no more than six months in jail. Like the two groups of offenders in Olivas, these two groups of offenders have committed the same offense. While it may be tempting to try to distinguish Olivas on the ground that it involved an age-based classification, the California Supreme Court explicitly stated that its decision that strict scrutiny applied was not based on the classification itself being suspect but solely on the fact that the classification affected a fundamental interest. That same interest is affected by the classification in question here. One group of offenders faces a significantly extended period of incarceration, a life sentence, while the other group faces no more than six months in jail. As in Olivas, the personal liberty interest of the individual offender facing an extended period of incarceration is significantly affected by this classification. We can find no substantial basis for distinguishing the interest at issue in Olivas from the interest at issue here.[6]
(3b) Nevertheless, we believe that the classification challenged by defendant is necessitated by a compelling state interest. While the members of both groups of offenders have two prior serious felony convictions, only the members of defendant's group, who are subject to the harsher punishment, have previously been convicted of a theft-related offense and served a term of confinement for that offense. This group of individuals with a history of committing theft-related offenses can be further divided into two subgroups. One subgroup consists of individuals who not only have two prior serious *718 felony convictions but also have an additional prior conviction for a serious or nonserious theft-related offense. The other subgroup consists of individuals who have two prior serious felony convictions including at least one prior theft-related serious felony conviction. Defendant actually belongs to both of these subgroups. His current petty theft offense was charged as a section 666 offense based on his prior petty theft conviction. In addition, one of his two prior serious felony convictions was for the theft-related offense of burglary.
Individuals who commit petty theft and have a history of committing theft-related offenses are significantly distinct from those individuals who have no such history. As to each subgroup, there is a compelling justification for treating the individual members of the subgroup more harshly than individuals who have never before committed a theft-related offense. The justification for treating members of the first subgroup more harshly than individuals who have committed two prior serious felony offenses but have never before committed a theft-related offense is apparent. An individual who is a member of this subgroup has suffered three prior convictions including two serious felony convictions and a prior theft-related conviction which was serious enough to result in service of a period of confinement. In contrast, an individual who is a member of the group to which we must compare these thrice convicted subgroup members has only suffered two prior convictions and has never before been convicted of a theft-related offense. The commission of theft by a thrice convicted individual with not only a history of serious felony misconduct but also of committing theft and being confined therefor poses a much more serious danger to the community than the commission of theft by an twice convicted individual with a history of serious felony misconduct who has never before committed theft. As he or she has suffered more prior convictions, the thrice convicted individual has had more opportunities to reform his or her conduct. Notwithstanding these additional opportunities to conform his or her conduct to society's rules, the thrice convicted individual has chosen a life of crime. The previous confinement of this individual for his or her prior theft-related offense also failed to prevent this individual from again committing a theft-related offense. As the thrice convicted individual has shown himself or herself to be resistant to confinement and committed to a life of crime, this individual poses a substantially greater danger to the community than the twice convicted individual who has never before committed a theft-related offense. The state has a compelling interest in eliminating this danger to society which necessitates harsher punishment for such individuals.
The justification for treating members of the second subgroup more harshly than individuals who have never before committed a theft-related *719 offense is not as apparent, but it is equally compelling. The fact that an individual who is a member of this subgroup has a history of serious criminal misconduct and previously committed a serious or violent theft-related offense which was found serious enough to justify a period of confinement supports a finding that this individual's commission of a new theft offense poses a much greater threat to society than the commission of a new theft offense by an individual who has a history of serious criminal misconduct but has never committed a theft-related offense. A criminal history which reflects that an individual's prior theft-related offense was a violent or serious offense demonstrates that there is a connection between this individual's commission of theft crimes and his or her serious or violent criminal conduct. In contrast, an individual who has suffered prior serious or violent felony convictions but has never previously engaged in such conduct in association with a theft-related crime has not yet demonstrated any connection between his or her thievery and his or her serious criminal conduct.
The commission of a new theft offense by an individual with a history which connects theft-related crimes with serious or violent criminal conduct is a much more serious event and poses a much greater threat to society than the commission of a petty theft offense by an individual whose criminal history does not disclose such a connection. In the absence of this connection, an individual's commission of petty theft does not reflect a continuation of his or her pattern of serious misconduct. The state has a strong and compelling interest in protecting its citizens from the harm associated with serious or violent criminal conduct. An individual who has previously been convicted of and incarcerated for committing a serious theft-related offense and has not been deterred from committing a new theft crime can only be deterred from this course of serious misconduct by harsh punishment. As the state has a compelling interest which necessitates the challenged distinction, the classification does not violate equal protection.
4. Section 667, Subdivisions (b) to (i) Is Not Ambiguous
Defendant contends that it is at least "ambiguous" whether Penal Code section 667, subdivisions (b) to (i) apply to petty theft offenses, so this ambiguity should be resolved in defendant's favor. Section 667, subdivisions (b) to (i) unambiguously apply to an individual convicted of a felony who has one or more prior serious or violent felony convictions. An individual who commits a petty theft offense which is a felony because of his or her prior theft-related conviction and who also has one or more prior serious or violent felony convictions is clearly within the scope of section 667, subdivisions (b) to (i). We can find no ambiguity whatsoever to which to apply defendant's assertions. Thus, we reject them.
*720 E.-J.[*]
.... .... .... .... .... .... .... .
CONCLUSION
The judgment is vacated and this matter is remanded to the trial court for the limited purpose of allowing the trial court to decide whether it would have exercised its discretion to dismiss one or both of the prior conviction allegations if it had understood that it had such discretion. If the trial court decides that it would not have dismissed either of the allegations, it shall reinstate the judgment. If the court decides that it would have dismissed one or both of the allegations, it shall do so and then resentence defendant accordingly. "If, on remand, the trial court ... decides to exercise its discretion to strike [one or both of] the prior felony conviction allegations in furtherance of justice ..., the court must set forth the reasons for that decision in strict compliance with section 1385(a). Any such decision will be reviewable for abuse of discretion according to the procedures generally applicable to such decisions." (People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 532 [53 Cal. Rptr. 2d 789, 917 P.2d 628].)
Cottle, P.J., concurred.
BAMATTRE-MANOUKIAN, J., Concurring.
I concur in the majority opinion. I am not convinced, however, that People v. Olivas (1976) 17 Cal. 3d 236 [131 Cal. Rptr. 55, 551 P.2d 375] requires application of the strict scrutiny standard here solely on the basis that a criminal defendant is facing incarceration. (People v. Silva (1994) 27 Cal. App. 4th 1160, 1167 [33 Cal. Rptr. 2d 181].) I understand Olivas to establish only that persons convicted of the same crime and otherwise similarly situated should not be punished differently absent a compelling state interest. Equal protection does not require equal treatment of convicts with different criminal histories. (People v. Spears (1995) 40 Cal. App. 4th 1683, 1687-1688 [48 Cal. Rptr. 2d 634]; People v. Cooper (1996) 43 Cal. App. 4th 815, 827-383 [51 Cal. Rptr. 2d 106].) Strict scrutiny is not implicated simply because the Legislature has provided for the potential incarceration of future lawbreakers by defining a crime and distinguishing degrees of culpability. (People v. Mitchell (1994) 30 Cal. App. 4th 783, 795-796 [36 Cal. Rptr. 2d 150]; People v. Bell (1996) 45 Cal. App. 4th 1030, 1049 [53 Cal. Rptr. 2d 156]; People v. Davis (1979) 92 Cal. App. 3d 250, 258 [154 Cal. Rptr. 817].) In view of these recent cases which question how broadly Olivas applies, I would respectfully invite the California Supreme Court to provide guidance on this issue.
*721 Even if I assume that the higher standard of strict scrutiny applies here, I would agree with the majority that the state interest in distinguishing between these two groups is compelling. More severe treatment is appropriate for criminals who repeat theft-type crimes after prior conviction and punishment. I also believe it is rational for the Legislature to have made this distinction.
A petition for a rehearing was denied May 20, 1997, and appellant's petition for review by the Supreme Court was denied August 20, 1997. Mosk, J., was of the opinion that the petition should be granted.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts A. through C. and E. through J.
[1] Subsequent statutory references are to the Penal Code unless otherwise specified.
[2] Defendant's prior petty theft conviction was for an offense committed in 1993.
[3] Later in his testimony defendant denied that he had played cards.
[*] See footnote, ante, page 705.
[6] Our obligation to follow the decisions of the California Supreme Court leaves us with no power to apply a different standard of review. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) Olivas has never been criticized or overruled by the California Supreme Court. However, the Courts of Appeal have repeatedly criticized and distinguished Olivas on a variety of grounds. The primary attack on Olivas has been that it is simply inconceivable that the California Supreme Court intended to subject to strict scrutiny review all criminal classifications which treat two groups of similarly situated offenders differently with respect to the length of the period of incarceration. (See People v. Bell (1996) 45 Cal. App. 4th 1030, 1047 [53 Cal. Rptr. 2d 156]; People v. Silva (1994) 27 Cal. App. 4th 1160, 1167 [33 Cal. Rptr. 2d 181]; People v. Davis (1979) 92 Cal. App. 3d 250, 258 [154 Cal. Rptr. 817].) While in some appellate cases Olivas can be distinguished because the two groups of offenders have committed different offenses and therefore are not similarly situated, this is not so here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265047/ | 54 Cal. App. 4th 177 (1997)
JOHN HIGGINS et al., Plaintiffs and Appellants,
v.
THE STATE OF CALIFORNIA, Defendant and Respondent.
Docket No. G014942.
Court of Appeals of California, Fourth District, Division Three.
March 24, 1997.
*180 COUNSEL
Girardi & Keese, James B. Kropff and Brian C. Gonzales for Plaintiffs and Appellants.
William C. McMillan, Anthony J. Ruffolo, Carol Quan, Christopher Hiddleson and Rene Judkiewicz for Defendant and Respondent.
OPINION
SONENSHINE, Acting P.J.
John Higgins and Stacy Higgins appeal from a judgment in favor of the State of California (the state) in an auto accident/personal injury action. The court granted the state's motion for summary judgment based on design immunity. (Gov. Code, § 830.6.) (All statutory references are to the Government Code.) The Higgins contend the state failed to establish all the elements of a complete defense.
*181 FACTUAL AND PROCEDURAL BACKGROUND
On the morning of November 22, 1990, John and Stacy Higgins's vehicle, traveling southbound at 65 miles per hour in the carpool lane of the I-405 freeway, collided with a vehicle attempting to merge. The Higginses' car, impacted at the right front bumper and fender, ricocheted across the center median strip and into the northbound lanes of the freeway, where it was struck again before coming to rest on the east shoulder. John and Stacy (collectively Higgins) sustained injuries in the accident.
In September 1991, Higgins filed a complaint for damages, naming the owners and drivers of the other two vehicles and various governmental entities, including the state's Department of Transportation (Caltrans). Higgins alleged the state's liability for creating a dangerous condition of public property because (1) there was no median barrier separating the northbound and southbound traffic; (2) the road shoulders were too narrow: and (3) the 55 miles per hour speed limit was unreasonably low for the area.[1]
In its answer generally denying the allegations of the complaint, the state asserted the affirmative defense of statutory design immunity from liability for damages, alleging, "Any and all acts or omissions ... which allegedly created the condition of property ... were in accordance with reasonably approved plans, specifications and designs of construction of, or improvement to, public property."
In June 1993, the state moved for summary judgment based on design immunity. Its separate statement of undisputed material facts recited, "Interstate Route 405 at the accident location is a north-south freeway with four twelve-foot wide lanes on either side. There are two carpool lanes at the location, in either direction. On the southbound side, the two lanes transition into one, with an additional area for merging traffic. [¶] ... The north and southbound lanes of travel are divided by a median area composed of paved and unpaved sections. [¶] ... The median area is more than 46 feet wide. [¶] ... There is no median barrier at the location where the subject accident occurred. [¶] ... The original design plans for the [subject] section of the *182 405 freeway ..., dated January 1969, were approved in advance of construction by State highway engineers with the discretionary authority to so approve. [¶] ... The design plans for the modifications ..., dated July 1990, including the carpool lanes, were approved in advance of construction by State highway engineers with the discretionary authority to so approve. [¶] ... The original design plans and the subsequent design plans for the subject freeway construction could reasonably have been approved. [¶] ... No changes in physical conditions had occurred in the actual operation of the subject accident location as of November 22, 1990, since the design modifications were completed in July 1990. [¶] ... The speed limit for the subject location, as posted, was 55 m.p.h. on November 22, 1990." The declaration of Richard N. Smith provided evidentiary support for these facts.
Smith attested to his civil engineering degree and certification as a traffic engineer, his considerable professional contributions in the field of highway safety, and more than 30 years' experience with Caltrans, including a 14-year stint from 1974 to 1988 as its chief of safety research. He stated, "I authored a report in 1977 on the status of median barriers, as used in California, within medians of 46-feet or wider. Based on the recommendations I made in that report, State of California policy was changed so as to limit median barrier placement, based on traffic volume and median-width characteristics alone, to medians less than 46-feet wide. Such a standard had existed prior to 1971, when the 46-foot standard was increased to 50-feet. Based on my study of accident experience after that change, the standard was changed back to the 45-foot level in 1978, where it has remained ever since."
Smith visited and inspected the accident site and studied the traffic collision report and freeway design plans. He noted the location was designed and built in the late 1960's. The plans for the project were approved by the district engineer, engineer of design, deputy district engineer and assistant state highway engineer. In addition, "[t]he project was confirmed in 1969 as having been built according to plan by the Resident Engineer." Design plans for construction modification were approved in February 1988 by the deputy director of transportation and the chief of the office of engineers. In July 1990, the modification project was confirmed by the resident engineer as having been built according to plan. Smith averred the subject median area, as designed and built, was "in conformance with design standard for medians." Because it was more than 46 feet wide, "it did not have, nor should it have had, a median barrier." Finally, in Smith's expert opinion, both the original design plans and the plans for the modifications, including the installation of carpool lanes, "could reasonably have been approved."
*183 Opposing the state's motion, Higgins conceded the design plans for the modification construction were duly approved by proper authorities. However, Higgins maintained neither the original nor the modification plans could have been reasonably approved because of "1) ... an unreasonably short taper of the carpool lanes to merge into one lane; 2) the high incidence of cross median accidents in the immediate vicinity ...; 3) CALTRANS' own requirement of a median barrier during [the construction project]; and 4) the unreasonableness of not having a median barrier where the area is just over the width warrant and a high volume of traffic travels at high speeds." Higgins further contended there had been changes in physical conditions after the design modifications were approved, in that a temporary median barrier in place during the construction phase was removed when the work was completed.
Higgins submitted the declaration of Harry J. Krueper, Jr., a civil and traffic engineer and accident reconstruction litigation expert. Krueper attested to his familiarity with "accepted practices utilized by engineers in designing, constructing, modifying, upgrading and maintaining most types of public [property]." He opined "no reasonable employee of the State of California could have adopted the Project Plans for construction... as approved in March 1989, ... and no reasonable legislative body or other body could have approved [those] [p]lans." He based his opinion on the volume of traffic in 1990, "about 225 percent of the 1980 volume," constituting "a definite change of condition from the original design of the freeway." Noting the median was about 48 feet wide, Krueper admitted California's standards, calculated according to "volume/width criteria," require barriers only when the median is 45 feet or less in width. But, he added, the 50-foot width advocated by a national highway safety organization was safer.
Krueper attested to another hazardous condition two carpool lanes merging into one, with a "far too short" four hundred fifty-foot tapering transition. He said, "By state standards, transitions on high-speed roadways should be sufficiently long so any weaving or merging can be done with reasonable ease." Reciting "a long-standing formula ... used on both a national and a statewide [although not specifically California] basis," Krueper calculated the taper length should have been at least 660 feet for cars traveling at the posted speed of 55 miles per hour, but more realistically, 780 feet for cars predictably speeding. He added that under today's standards, although not specifically in California, "the normal transition is up to 1,500 feet in length, with a 1,000-foot minimum."
Moreover, Krueper stated, between June 1987 and November 1990, there were four cross-median accidents in the subject area, including the Higgins *184 incident. Two of those accidents, one involving a fatality, occurred before the project plans were approved. In Krueper's opinion, the Higgins accident was easy to foresee, and "[i]t [was] unreasonable [for the state] to have approved the construction plans." Krueper believed with the "volumes of traffic and the higher speeds," Caltrans was "playing `Russian roulette'" when it constructed the median without a "positive barrier" section.
In its reply, the state submitted Smith's supplemental declaration stating, in relevant part, "Neither the design plans approved in the late 1960s nor the plans approved in 1988 ... called for the placement of a median barrier. Therefore, the absence of a median barrier at the subject accident site is in conformity with the design plans, and it was reasonable to approve the design plans which did not include a median barrier."
After hearing the motion, the court granted summary judgment, finding as a matter of law the state had established a complete defense under section 830.6.
DISCUSSION
I
A public entity may be liable for negligently creating an injury-producing dangerous condition (§ 835, subd. (a)), or for failing to remedy such a condition despite having had notice and sufficient time. (§ 835, subd. (b).) But the state is not liable "for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor." (§ 830.6)
(1a) Section 830.6 design immunity is asserted as an affirmative defense in actions arising out of an alleged dangerous condition of public property. It is ordinarily raised on a motion for summary judgment or nonsuit; the court decides whether there is sufficient evidence to support it. (Uyeno v. State of California (1991) 234 Cal. App. 3d 1371, 1376 [286 Cal. Rptr. 328].) It is error to submit the issue to a jury. (Ibid.)
*185 (2) In determining the sufficiency of the state's proof, the court "must bear in mind the rationale underlying the theory of design immunity. `Basically, this defense is predicated upon the concept of separation of powers that is, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies, to avoid the danger of "impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested." ... Additionally, judicial economy underlies design immunity forbidding a jury from reweighing the same factors considered by the governmental entity which approve[d] the design....'" (Ramirez v. City of Redondo Beach (1987) 192 Cal. App. 3d 515, 524-525 [237 Cal. Rptr. 505], citations omitted.)
(1b) If there is any substantial evidence supporting the reasonableness of the approved design, design immunity applies. This is true even though the plaintiffs present evidence of a design defect: "That a paid expert witness for plaintiff, in hindsight, found ... the design was defective, does not mean, ipso factor, that the design was unreasonably approved." (Ramirez v. City of Redondo Beach, supra, 192 Cal. App.3d at p. 525.) "[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity." (Ibid.)
We review for substantial evidence to determine "whether the [state] has met its burden of establishing as a matter of law all the elements of ... design immunity.' [Citations.]" (Uyeno v. State of California, supra, 234 Cal. App.3d at p. 1376.)
II
(3a) To prevail, the state had to show "(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design." (Muffett v. Royster (1983) 147 Cal. App. 3d 289, 306 [195 Cal. Rptr. 73].) (4a) Higgins contests the first and third elements.
Causal Relationship Between the Plan and the Accident
(3b) Causal relationship is proved by evidence the injury-producing feature was actually a part of the plan approved by the governmental entity: Design immunity is intended to immunize only those design choices which have been made. A case in point is Cameron v. State of California (1972) 7 Cal. 3d 318, 326 [102 Cal. Rptr. 305, 497 P.2d 777], where superelevation around a curve constituted the dangerous condition causing plaintiffs to lose *186 control of their car. The plans showed many aspects of the roadway, but there was no evidence "the superelevation which was actually constructed on the curve ... was the result of or conformed to a design approved by the public entity vested with discretionary authority." (Id. at p. 326.) The state thus failed to prove the causation element that a discretionary decision was actually made regarding the dangerous condition which caused plaintiffs' accident. (Ibid.)
(4b) Higgins relies on Cameron, and other like cases which we need not discuss, in arguing the dangerous condition absence of a median barrier was not a design choice made by the approving body in 1988. The record is otherwise.
The state presented substantial evidence the design plans did, in fact, consider the matter. Smith attested that under state standards, barriers are not required in medians wider than 45 feet. Higgins's expert admitted the median was 48 feet wide. Smith stated, "As the median was more than 46-feet wide, it did not have, nor should it have had, a median barrier. The subject location was in conformance with design standards for medians." (Italics added.) And he added, in his supplemental declaration, "Neither the design plans approved in the late 1960s nor the plans approved in 1988 ... called for the placement of a median barrier. Therefore, the absence of a median barrier at the subject accident site is in conformity with the design plans, and it was reasonable to approve the design plans which did not include a median barrier."
Smith's declaration, together with the two sets of design plans one showing the original construction in the late 1960's, the other the 1988 improvement project constitutes substantial evidence the absence of a median barrier "was the result of or conformed to a design approved by the public entity vested with discretionary authority." (Cameron v. State of California, supra, 7 Cal.3d at p. 326.) No more was needed to establish a causative relationship between the plan and the accident.
Reasonableness of the Design
Higgins argues the state did not establish reasonableness of the design because it failed to counter Krueper's opinion the merging distance of the two carpool lanes into a single lane was "far too short." But a conflict in opinions about defect will not create a triable issue of fact. (Muffett v. Royster, supra, 147 Cal. App.3d at p. 307.) The state had only to present substantial evidence of the reasonableness of the approved design. (Ramirez v. City of Redondo Beach, supra, 192 Cal. App.3d at p. 525.)
*187 It submitted the plans for freeway modification. Those plans called for re-striping to provide for two carpool lanes, transitioning into one, with an additional area to accommodate merging traffic. Higgins presented no evidence the plans departed from state standards in regard to the length of the merging lane. And Smith attested the plans were approved by at least four highway engineers on the way up through the chain of command. The fact of approval by competent professionals can, in and of itself, establish the reasonableness element. (See, e.g., Ramirez v. City of Redondo Beach, supra, 192 Cal. App.3d at p. 526.) Smith further stated the project conformed with the plan. He thus laid a foundation for his opinion the design could reasonably have been approved. This constitutes substantial evidence on the element of reasonableness of the design.
Citing Levin v. State of California (1983) 146 Cal. App. 3d 410 [194 Cal. Rptr. 223], Higgins protests Smith's opinion about reasonableness is insufficient. But in Levin, the evidence showed the design plan did not conform to state guardrail standards or take into account an additional dangerous condition, excessive steepness of a slope. The court, noting the "silence of the state's experts" on those key issues, stated, "[T]he mere fact that an expert witness testifies that in his [or her] opinion, a design is reasonable, does not make it so." (Levin v. State of California, supra, 146 Cal. App.3d at p. 418.) Levin is patently inapt.
III
(5a) Higgins contends there are triable issues of fact as to whether the "changed conditions" exception to design immunity applies. (6) The exception, found in section 830.6, is explained in Compton v. City of Santee (1993) 12 Cal. App. 4th 591, 598 [15 Cal. Rptr. 2d 660]: "Design immunity under section 830.6 is not perpetual but may be lost as a result of changed circumstances which subsequently render the improvement dangerous, if the public entity has received actual or constructive notice thereof. [Citation.] If the approved design becomes dangerous by reason of any change in conditions, and that fact is known to the public entity, the immunity will continue for only a reasonable period of time to allow the entity to obtain funds to carry out the remedial work of bringing the property back into conformity with a reasonable design or plan. [Citation.] Thus, there are at least two predicates to loss of design immunity: changed conditions and notice. [Citation.]"
(5b) Higgins asserts the cross-median accident history at the site, the increased volume of traffic and the presence of a median barrier during construction constitute evidence of changed circumstances defeating design immunity. We disagree.
*188 As for the accident history, the state concedes there were two cross-median accidents in 1987, one in 1989, and Higgins's accident in 1990. (Obviously, the latter cannot be included as proof of constructive notice.) Krueper attested, "By the state's own standards, such a high incidence of cross-median accidents within a one-mile stretch of roadway within a three and one-half year period should have warranted an investigation concerning the placement of a median barrier." But Smith testified the accident rate was below the .50 ratio which, under state standards, would trigger an investigation. And despite Higgins's characterization of Smith's testimony as "convenient," it constitutes substantial evidence. We neither assess its credibility nor weigh it against Krueper's declaration or deposition testimony. Moreover, Higgins failed to show the accident rate was "statistically aberrant, i.e. unusual or excessive in some respect." (Compton v. City of Santee, supra, 12 Cal. App. 4th 591, 599.) Thus, the data are meaningless.
Higgins next asserts increased traffic constitutes a changed circumstance mandating the placement of a median barrier and defeating design immunity. Krueper declared the traffic volume in the vicinity was two and one-half times greater in 1990 than it was in 1980. So what? Abstract numbers prove nothing. Smith declared the state standard for placement of median barriers was calculated with reference to traffic volume and width of the median, and the subject freeway plans, original and subsequent, conformed to the standard. Higgins's evidence did not controvert the state's evidence.
Moreover, even if the traffic increase constituted a changed condition, Higgins failed to show the state received actual or constructive notice the condition rendered the freeway, as designed, dangerous. (See Compton v. City of Santee, supra, 12 Cal. App.4th at p. 598 ["there are at least two predicates to loss of design immunity: changed conditions and notice"].) This failing is what distinguishes Higgins's case from Baldwin v. State of California (1972) 6 Cal. 3d 424 [99 Cal. Rptr. 145, 491 P.2d 1121], where the alleged dangerous condition was lack of a left turn lane, and the state knew, for instance: There were thirteen accidents in a six-month period, seven of which were caused by attempts to make left turns; the intersection accounted for 14 percent of all traffic fatalities in the city; the injury-fatality rate was double the rate for the rest of the city; three area businesses had written to the state, describing serious accidents and requesting corrective action; and there had been a large increase in traffic since the roadway's construction in 1942. (Id. at pp. 428-429.)
Finally, the state's placement of a median barrier while construction was going on proves nothing about changed circumstances which would require placement of a permanent barrier. Smith explained, "The `K' rail is a *189 temporary device used during the construction phase of a project, and ... once the construction is completed, [the] `K' rail is always removed, unless ... incorporated into a pre-approved median barrier installation."
In summary, the state presented substantial evidence showing it was entitled to the complete defense of design immunity under section 830.6. The court would have erred had it not granted the motion for summary judgment.
The judgment is affirmed. The state shall recover its costs on appeal.
Crosby, J., and Rylaarsdam, J., concurred.
NOTES
[1] The complaint alleged, in pertinent part, "[D]efendants ... negligently constructed, maintained, repaired, designed, controlled, engineered, planned and otherwise failed to keep the Roadway and adjacent property in a safe condition, and permitted a dangerous condition to exist. Such improper actions include, but are not limited to, the establishment of an unreasonably low speed zone in an area of heavy traffic which caused a general disregard of all posted speed zone signs by motorists, narrow lanes and shoulders, ... failure to include a median or other divider separating northbound and southbound lanes of traffic, and failure to regulate traffic on the Roadway in general, all despite defendants' actual knowledge of the dangerous nature and condition of the Roadway and of the high incidence of traffic accidents which had occurred on the Roadway." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363968/ | 338 S.E.2d 918 (1986)
PINEHURST, INC. and Pinehurst Receivables Associates, Inc.
v.
O'LEARY BROTHERS REALTY, INC. Timothy W. O'Leary. and Dennis O'Leary.
No. 8420SC1234.
Court of Appeals of North Carolina.
February 4, 1986.
*919 Petree, Stockton, Robinson, Vaughn, Glaze & Maready by J. Robert Elster, G. Gray Wilson and Jeffrey C. Howard, Winston-Salem, for plaintiffs-appellees.
Barringer, Allen & Pinnix by Noel L. Allen and Miriam J. Baer, Raleigh and Thigpen & Evans by John B. Evans, Pinehurst, for defendants-appellants.
BECTON, Judge.
Each of the parties is engaged in selling or developing real estate in Moore County, particularly in the Pinehurst resort area. In December 1976 Timothy and Dennis O'Leary, the individual defendants who jointly own O'Leary Brothers Realty, Inc., bought a forty-acre tract of land which adjoins a tract of residential lots that plaintiff Pinehurst, Inc. (Pinehurst) was then selling.
The forty-acre tract was secured by the O'Learys' note and deed of trust, and that note and deed of trust, along with the other assets of O'Leary Brothers Realty, Inc., were later conveyed to Pinehurst. The residential lots, known as Unit 8A, and the O'Learys' forty-acre tract were served by the same sewage pumping station.
Before undertaking to sell the Unit 8A lots in interstate commerce, as required by the Interstate Land Sales Full Disclosure Act, 15 U.S.C. Sees. 1701-20 (1982), Pinehurst certified to the United States Department of Housing and Urban Development (HUD) that the sewage services were adequate. By February 1983, the pumping station was serving twenty-seven residences, eight of which were situated in Unit 8A, fourteen on adjacent land owned by Pinehurst, and five on the O'Learys' adjoining tract. During the preceding two years the O'Learys and Pinehurst had been negotiating about upgrading the sewer system and about Pinehurst's alleged obligation under the agreement made by Pinehurst's predecessor to provide memberships in Pinehurst Country Club to purchasers from the O'Learys. In February 1983, however, the negotiations reached an impasse, and the O'Learys stopped paying on their promissory note. Defendant Pinehurst Receivables Associates, Inc., a holding company that manages Pinehurst's lot sales contracts, declared the note to be in default and, on 15 April 1983, instituted foreclosure proceedings which were approved first by the Clerk of Superior Court and then by the Superior Court judge. No stay was sought in that proceeding, and an *920 appeal from the order of sale was not perfected.
Meanwhile, the O'Learys acquired the names and addresses of the approximately 180 persons that had bought lots in Unit 8A from Pinehurst and on 15 March 1983 mailed to each of them the following letter:
Dear Pinehurst Property Owner:
We are informed that an improper sewage situation may exist where you own your lot in Unit 8A in Pinehurst, which could be in violation of the terms of your purchase contract with Pinehurst, Inc. or the conditions of the HUD registration covering the unit.
Under circumstances similar to this, Pinehurst, Inc. has been required to refund the full purchase price, plus interest, taxes, and country club initiation fees. We would like to offer you our services to act as your agent to pursue this matter if you are interested in disposing of your lot. We charge a commission of ten percent (10%) of the original purchase price of the lot onlybut no charge on the return of any other payments that may have been incurred by you.
Obviously, we cannot guarantee you that our agency would result in the return to you of any money you may have previously paid to Pinehurst, Inc. or any of its successors. Nothing herein contained should be construed by you as a promise from us of any financial return to you; we merely offer our services to you, should you so desire.
If this is of a sincere interest to you, please complete the enclosed agreement and return it to us.
Thank you very much for your consideration of this matter, and we look forward to your positive response. Sincerely,
O'LEARY BROTHERS REALTY, INC.
In response to the invitation made in the letter, approximately thirty Unit 8A lot owners engaged O'Leary Brothers Realty, Inc. to negotiate their supposed claims against the plaintiffs. The North Carolina State Bar, learning of this development, instituted proceedings against the O'Learys for unauthorized practice of law, but the proceedings were stopped several months later when the O'Learys agreed to stop handling the claims.
On 23 May 1983 this action for libel, tortious interference with contract, barratry, and unfair and deceptive trade practices was instituted against the defendants. All four claims were based on defendants' encouraging persons that had contracted with plaintiffs to rescind the contracts and demand a refund of the payments made. By their answer, defendants admitted sending the letter but alleged in defense that the statements in the letter were true. Defendants also asserted counterclaims alleging: (1) plaintiffs breached the terms of the December 1976 land purchase agreement; (2) the foreclosure proceeding was improperly initiated after defendants had tendered full payment; and (3) the action against them constituted an unfair trade practice. In addition to actual and treble damages, defendants requested that the foreclosure proceedings be stayed. One day before filing their answer and counterclaims, defendants sued plaintiffs in federal court for allegedly violating federal antitrust laws. Consequently, defendants moved that the state court stay this action until the federal action was resolved. The motion was denied, as were some other pretrial motions later referred to, but the court did enjoin the foreclosure sale upon the defendants giving bond therefor.
Following a trial without a jury, Judge Rousseau entered judgment for the plaintiffs on the unfair trade practices claim, but dismissed their other claims. Before ending the evidence, defendants took a voluntary dismissal without prejudice on their counterclaims. The judgment was based on findings of fact that included the following:
27. At the time defendants sent the letter of March 15, 1983, they had no specific knowledge concerning the assertions contained in the letter.
28. The sewage system in Unit 8A was fully in place and operational at the time of the March 15, 1983 letter. No *921 public health hazard ever existed, nor was there any threat of contamination of surface waters in the area. After publication of the letter of March 15, 1983, and after institution of the present action, the North Carolina Department of Natural Resources did determine that the pump in Unit 8A, although adequate to handle the existing sewage needs, required a duplex rather than the single pump (of same specifications and size) in place, and was therefore in technical violation of the original permit issued in 1976. Prior to that time, Pinehurst Inc. had already ordered replacement equipment for the pump, and upon installation of this replacement equipment pursuant to a new permit the matter was resolved, without enforcement action, penalty or levy of fine by the state. The problems with the lift station had been minor problems. The cost of bringing the lift station into compliance with the permit was approximately $1,200....
29. At the time the March 15, 1983 letter was issued by defendants the lift station which existed of [sic] defendants' property contained the same or similar type of pump which was in existence in Unit 8A of plaintiff's property, to the knowledge of all parties.
30. Prior to the letter of March 15, 1983 defendants Timothy O'Leary and Dennis O'Leary had been in negotiations with plaintiff for a period of over two years with regard to the construction of a joint sewer project to carry waste from their respective properties to the county waste water system, which joint project, had it come to fruition, would have replaced or done away with the heretofore described lift stations on each of their properties. The negotiations continued until February 1983, at which time plaintiffs declined to negotiate further on any of several pending issues between the parties until the individual defendant Timothy O'Leary cured a default on the note then owing by him to plaintiffs.
31. Prior to the issuance of the March 15, 1983 letter defendants did not contact any state or federal agencies or plaintiffs to correct any deficiencies which might have existed in the pump and lift station of Unit 8A, but rather wrote directly to the lot owners in Unit 8A as heretofore described.
....
33. Plaintiff sustained actual damages of $1.00 or more in counsel fees expended in an effort to stop and restrain further publication of the letter of March 15, 1983 or further activities by defendants with regard to the letter. Plaintiffs also sustained disruption of their normal business activities, loss of administrative time, and injury to their business reputations, but did not offer evidence of specific monetary damages with regard to those items.
Based on these and other findings, the court concluded that although the letter contained no false statements, it was nevertheless unfair, deceptive, and maliciously published for an improper purpose in violation of N.C.Gen.Stat. § 75-1.1 (1985) and gave recovery to plaintiffs as follows:
1. Plaintiffs shall have and recover of defendants, jointly and severally, the sum of $1.00 in actual damages and the sum of $18,000 in punitive damages. Since the award of actual damages and punitive damages exceeds an award of treble the actual damages, the actual damages will not be trebled even though the court has found a violation of G.S. 75-1.1.
2. Plaintiffs shall have and recover of defendants, jointly and severally, the sum of $15,000 pursuant to G.S. 75-16.1 for attorneys' fees, in that defendants willfully engaged in unfair methods of competition and unfair and deceptive trade practices, and refused without warrant to pay plaintiffs' claims or to remedy the conduct which was the basis of this suit.
I
Defendants' first four assignments of error, concerning the denial of their pretrial motions (a) for summary *922 judgment on the barratry claim, (b) to stay this action pending the resolution of a similar case in the federal court, (c) to extend the time for and implement discovery in certain respects, and (d) to allow defendants to amend their counterclaim and bring in additional parties, need not detain us. The first question is moot because the barratry claim was later dismissed and is not before us. All the other motions were addressed to the sound discretion of the trial judge and no abuse is indicated. The federal lawsuit that defendants wanted to try first was begun by them two months after this case was filed; defendants' motion to extend the discovery period was made after the time for completing discovery had passed and after the trial of this case had been continued once at their request; and defendants' motions to amend their counterclaim and add additional parties were not made until just twelve days before the trial was scheduled to begin.
II
By three more assignments of error defendants contend that certain of the court's findings of factthat defendant Dennis O'Leary participated in the sending of the 15 March 1983 letter, that defendants "had no specific knowledge" of the matters asserted in that letter, and that the defects in the sewage system were minor and technicalare unsupported by evidence. These contentions have no merit, and we overrule them.
Although Timothy O'Leary drafted the letter and attended to its reproduction and distribution, Dennis O'Leary, an officer and half owner of the corporation, testified that he saw the letter before it was sent, "concurred with the information in it," and discussed it with Timothy, and that the purpose of the letter was to obtain listings from property owners in Unit 8A. This evidence is support enough for the court's determination that Dennis O'Leary participated in sending the letter and was jointly and severally liable therefor.
The finding that defendants had no "specific" knowledge concerning the assertions made in the letter is supported by the letter itself, which indicates that they merely had received information from others suggesting that Pinehurst might be in violation of the sales contract and the HUD requirements. The finding is also supported by Dennis O'Leary's testimony that he had not reviewed the HUD requirements, did not know whether anyone else had, had not seen the purchase contracts, and did not know which provisions Pinehurst allegedly had violated. However, as discussed later, even if this finding were unsupported, it would not affect the court's conclusion that defendants acted unfairly and deceptively in violation of G.S.Sec. 75-1.1.
Further, the court's characterization of the sewage facility defects as "minor" and "technical" was supported by the testimony of an employee of the Division of Environmental Resources of the North Carolina Department of Natural Resources and Community Development to the effect that the pump station was easily and quickly brought into compliance with regulations, that no enforcement or disciplinary action was required, and that no adverse impact resulted from the failure to comply earlier.
III
The defendants' next contention, that the court erred in concluding as a matter of law that the letter was libelous per se, is correct, though of no benefit to them. Falsity is an essential element of libel, and the court, having concluded that the statements in the letter could be interpreted as true, could not find them to be libelous per se. Indeed, we doubt that the court intended to say that they were, as it dismissed the libel claim. In all events, this error is immaterial because the unfair or deceptive trade practice claim discussed below does not depend upon the letter being false.
IV
The next question defendants raise is whether the court's conclusion that they engaged in unfair methods of competition *923 and in unfair or deceptive acts or practices in violation of G.S.Sec. 75-1.1 was erroneous. An unfair or deceptive trade practice was not defined by the General Assembly, probably because it is difficult to define safely and satisfactorily. Bernard v. Central Carolina Truck Sales, 68 N.C.App. 228, 314 S.E.2d 582, disc. rev. denied, 311 N.C. 751, 321 S.E.2d 126 (1984). But courts have the capacity and authority to recognize an unfair or deceptive trade practice when they see one. See, e.g., Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc. rev. denied, 294 N.C. 441, 241 S.E.2d 843 (1978). And we believe the court ruled correctly in deeming that defendants' conduct in this case constituted an unfair method of competing in business and an unfair or deceptive trade practice. In our opinion, the conclusionsthat defendants acted unfairly and for an improper purpose; that the statements in the letter were deceptive and maliciously made; and that the wrongful conduct affected commerceall followed from the facts found and were entirely justified.
Defendants' arguments that, because the statements in the letter were true, they could not have deceived anyone and that, in any event, they had no effect on the market place are rejected. Proof of actual deception is not necessary; it is enough that the statements had the capacity to deceive. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981); Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980). A statement can have the capacity to deceive without being false, and that the letter in question had the capacity to deceive is obvious. Although there were no grounds for making claims against the plaintiffs, about thirty recipients of the letter accepted defendants' offer to negotiate their claims against plaintiffs, and several other recipients telephoned Pinehurst in alarm about the matter.
As to the unfairness of defendants' actions, we note that unfair competition is that which a court of equity would consider unfair. Aycock, North Carolina Law on Antitrust and Consumer Protection, 60 N.C.L.Rev. 207, 217 (1982) (citing Charcoal Steak House of Charlotte, Inc. v. Staley, 263 N.C. 199, 139 S.E.2d 185 (1964)). Recently, our Supreme Court said:
The concept of "unfairness" is broader than and includes the concept of "deception."... A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers....
* * * * * *
An act or practice is deceptive under Section 5 if it has the capacity or tendency to deceive.... Proof of actual deception is unnecessary.... Though words and sentences may be framed so that they are literally true, they may still be deceptive.... In determining whether a representation is deceptive, its effect on the average consumer is considered.
Johnson. 300 N.C. at 263, 265-66, 266 S.E.2d at 621, 622 (citations omitted). Thus, what is unfair in one case might not be in another, and each case rests upon its own circumstances. The circumstances that prompted the trial court in this case to conclude that defendants' acts were unfair included the following:
3. The conduct of the individual defendants and the corporate defendants in sending the letter of March 15, 1983 to the lot owners in Unit 8A, and the other conduct in connection with the letter, was unfair for the reasons, among others, that at the time plaintiffs and defendants were working together on a joint sewer system to solve their joint problems; the problem which existed with the pump and the lift station in Unit 8A was a minor problem; defendants did not then report the problem to state or federal officials, or to plaintiffs, but rather wrote to the 180 lot owners in Unit 8A; and defendants' motive in sending the letter was not for a proper purpose but rather an attempt to obtain an unfair business advantage over a competitor and prospective business associate.
*924 That defendants' conduct may not have been actionable at common law, as they argue, is beside the point. While the common law provides some guidance in unfair competition cases, the Unfair Trade Practice Act was enacted in part because common law remedies had often proved ineffective. Marshall.
As to the impact of defendants' conduct on the market place, defendants argue that because only nominal damages resulted therefrom, the court's conclusion is not supported by the facts. We disagree. Impact on the market place is not to be equated with the damages legally recoverable. Impact on the market place speaks more to the effect unethical practices have on business activity than to value of the damage done. See generally Comment, The Trouble with Trebles: What Violates G.S. Sec. 75-1.1? 5 Campbell L.Rev. 119 (1982). Although the proven monetary value of the damages was low, defendants' letter affected at least 180 real estate buyers, thirty to the extent of asserting a claim against Pinehurst and many others enough to telephone plaintiffs in alarm about their purchase and investment. Acts that diminish public confidence in a business transaction and enterprise may have an impact on the market place, as business stability depends on public confidence. Defendants' acts obviously caused a significant segment of the public to lose confidence in their contracts with plaintiffs and in plaintiffs as reliable real estate developers. That the diminished confidence in plaintiffs' business reliability may have been of short duration, due to plaintiffs' alacrity in alleviating the minor problems that existed, does not erase the baleful impact that defendants' actions had.
V
Defendants next contend that the court erred in awarding punitive damages, and they stress that this is an unfair or deceptive trade practice case brought under Chapter 75, which mandates the trebling of actual damages, N.C.Gen.Stat.Sec. 75-16 (1985), but does not mention punitive damages. Plaintiffs' response is that nothing in Chapter 75 or pertinent case law prohibits the awarding of punitive damages in appropriate cases; that the defendants' wilful and malicious violation of the chapter justifies punishment; and that trebling the $1.00 actual damage verdict would not serve that purpose.
North Carolina General Statute Sec. 75-16 establishes a private cause of action for any person injured by another's violation of G.S.Sec. 75-1.1. And damages assessed pursuant to G.S.Sec. 75-1.1 are trebled automatically. Marshall v. Miller, 302 N.C. 539, 547, 276 S.E.2d 397, 402 (1981). In holding that bad faith is not an element of an unfair or deceptive trade practice, the Marshall Court discussed at length the broad legislative purpose in enacting Chapter 75. It rejected both the comparison between Chapter 75 and the portion of Federal Trade Commission Act codified at 15 U.S.C. Sec. 45(a)(1), which confers no private cause of action on injured parties, and the conclusion in United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1049 (E.D.N.C.1980), affd, 649 F.2d 985 (4th Cir. 1981), that G.S.Sec. 75-1.1 is completely punitive in nature. We quote from Marshall:
But it is also remedial for other reasons, among them the fact that it encourages private enforcement and the fact that it provides a remedy for aggrieved parties. It is, in effect, a hybrid....
As it is a hybrid statute, providing a remedy for an entirely statutory cause of action, analogies to other rules of common law governing the imposition of punitive damages should not control. More significantly, whereas common law actions grounded in tort or contract allow both actual and multiple damages, G.S. 75-16 provides in effect that any actual damages assessed shall be trebled by the trial court if a violation of G.S. 75-1.1 is found. Many of our sister states provide that the awarding of exemplary or treble damages shall be proper only upon a finding of intentional wrongdoing....
*925 Absent statutory language making trebling discretionary with the trial judge, we must conclude that the Legislature intended trebling of any damages assessed to be automatic once a violation is shown.
302 N.C. at 546-47, 276 S.E.2d at 402 (citations omitted) (emphasis in original).
The Marshall Court suggests that the legislature's intent in enacting Chapter 75 was to supplement and broaden traditional common law actions and to provide a more easily recoverable remedy. See Note, Unfair Trade Practices and Unfair Methods of Competition in North Carolina: Are Both Treble and Punitive Damages Available for Violations of Section 75-1.1? 62 N.C.L.Rev. 1139, 1147 (1984).
Because an award of treble damages under Chapter 75 is bottomed upon "private enforcement" and "punitive measure" considerations, we believe an additional award of punitive damages would necessarily be duplicative, to the extent that the treble damage award consists of a punitive element. Id. And we have not taken lightly plaintiff's appealing argument that an additional punitive remedy is needed for intentional egregious conduct. The argument, considering the facts of this case, may impel legislative action to cover situations in which compensatory damages, even when trebled, results in a token award. In this case, our job is not to legislate, but to interpret Chapter 75 as it is written. Although we might say it differently, the following observation noted in 62 N.C.L.Rev. at 1147-48 (footnotes omitted) summarizes our response to plaintiff's argument:
First, the legislature contemplated intentional conduct in connection with a violation of section 75-1.1. Under North Carolina General Statutes section 75-16.1, a plaintiff injured by a violation of section 75-1.1 may recover attorneys' fees upon a showing that the defendant acted "willfully." Section 75-16.1 also was intended to encourage private enforcement. Although the award of attorneys' fees is not a punitive provision, it does enable the plaintiff to recover an increased award for intentional wrongdoing. Had the legislature intended punitive damages to be available in connection with violations of section 75-1.1, they would have provided such a remedy for intentional wrongdoing.
Second, in cases involving intentional wrongdoing in which treble damages are minimal, the plaintiff may pursue a common-law cause of action and seek punitive damages. Since a plaintiff may pursue the common-law and the statutory causes of action in the same suit, if punitive damages are warranted and are awarded by the jury, he may elect such a remedy in lieu of the statutory treble damages.
One final ground for the mutual exclusivity of punitive and treble damages exists. Punitive damages should not be used to supplement a statutory scheme in which treble damages have been provided explicitly and no provision has been made for additional damages....
Because section 75-1.1 is in "derogation of the common law" causes of action for unfair or deceptive trade practices and section 75-16 imposes a penalty, strict construction is in order. Absent explicit legislative inclusion, punitive damages should be excluded from the statutory scheme.
VI
Defendants' contention that attorneys' fees are not authorized and were improperly awarded is rejected. The time devoted to the case and the value of the attorneys' services are not contested. North Carolina General Statute Section 75-16.1 (1985) provides in part as follows:
In any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, at his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such attorney fee to be taxed as part of the court costs and payable by the losing party, *926 upon a finding by the presiding judge that:
(1) The party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.
Defendants argue that there is no evidence either of actual damage or of an unwarranted refusal to pay the claim. We disagree. Even though plaintiffs offered no proof as to the monetary value of their damages, the evidence shows and the court found that defendants' wrongful conduct caused a disruption of their business, loss of administrative time, and injury to their business reputation and that they had "sustained actual damages of $1.00 or more." And, albeit not labeled a finding, the court ruled that defendants "refused without warrant to pay plaintiffs' claim or to remedy the conduct which was the basis for the suit." This ruling, which we regard as a finding, is amply supported by the evidence, as the basis for the suit was the unfair and deceptive letter which defendants never retracted and still contend was an acceptable business practice.
VII
In entering judgment, the court also dissolved the foreclosure injunction, required defendants to pay interest on the mortgage debt for the ten months that the sale was stayed, and left defendants' security bond in effect until the foreclosure is completed. These rulings are the basis for defendants' ninth assignment of error, which we consider last for the sake of convenience, since it only peripherally relates to the trial. Although Rule 65, N.C. Rules of Civil Procedure authorizes the judge to award damages upon the dissolution of an injunction or restraining order, defendants contend the award is improper because the counterclaim under which the restraining order was obtained was voluntarily dismissed without prejudice, and it thus has not been judicially established that the injunction was improperly obtained. While usually it is error to award damages for obtaining a temporary injunction without first determining that the injunction was improperly issued, The M. Blatt Co. v. Southwell, 259 N.C. 468, 130 S.E.2d 859 (1963), no such determination was necessary here. The injunction was granted in this case, as the record shows and the court found, because there was probable cause to believe that defendants might be able to establish their right to the injunction upon trying the issues raised by their counterclaim. Yet, after the case was tried almost to a conclusion, defendants voluntarily dismissed their counterclaim. Though done "without prejudice," this dismissal can only be construed as an acknowledgement by the defendants that they could not establish their entitlement to the restraining order, and for the purposes of this case is equivalent to a determination that the injunction was wrongfully obtained in the first place. Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C. App. 73, 311 S.E.2d 1 (1984). Because the only purpose for obtaining the injunction was to have their rights fully adjudicated upon the trial of this case, defendants may not prevent the issue from being tried and then be heard to maintain that the judgment is erroneous because that issue has not been determined.
The award of punitive damages is vacated. The decision of the trial court is in all other respects affirmed.
Vacated in part and affirmed in part.
PHILLIPS, J., concurs in part and dissents in part.
EAGLES, J., concurs.
PHILLIPS, Judge, concurring in part and dissenting in part.
I concur with everything said in the majority opinion except the ruling setting aside the award of punitive damages. That defendants' conduct violated the state's public policy enunciated in Chapter 75 has been established; it has also been established that the violation was committed in a manner that would warrant the award of *927 punitive damages if the offense violated a common law rule instead of statutory policy. The Legislature clearly intended to encourage victims of unfair or deceptive practices to help enforce the statutory policy by suing violators of it; and that malicious violators of the Act be punished by the civil courts. And it also intended, it seems to me, that where trebling the damages will not promote these statutory purposes that punitive damages suitable to the wrongful and unethical character of the offense be assessed in accord with existing law. Under the aggravated circumstances of this case, which are not unique since deceitful and unfair conduct is not confined to transactions involving large sums, limiting plaintiffs' recovery and the sanctions against defendants to $3.00 makes a mockery of our Fair Trade Practices Act, as it permits a malicious violation of statutory policy to go unpunished and denies fair compensation to victims who have aided the State in enforcing its policy. And in my opinion the law requires no such holding. The common law doctrine of punitive damages has not been repealed; it is available for use by our courts in appropriate cases; this is an appropriate case for its use; and referring the question back to the General Assembly is in effect a failure to function as the General Assembly manifestly expects us to, since their task is to set policy, not decide details which arise in the trial of cases, and ours is to enforce and implement the policy adopted. I would affirm the award of punitive damages by the trial judge. I would also hold that punitive damages may be awarded where a violation of G.S. 75-1.1 is malicious, wilful and for an improper purpose and where trebling the actual damages suffered would neither punish the wrongdoer nor encourage victims to enforce the statutory policy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363963/ | 338 S.E.2d 207 (1985)
Joan E. BRAMMER
v.
Ronald TAYLOR, Geraldine Short, and Gulf National Bank.
No. 16577.
Supreme Court of Appeals of West Virginia.
December 12, 1985.
*208 C. Elton Byron, Jr., W.A. Thornhill, III, Beckley, for appellant.
Ashworth & Kirkpatrick, Robert J. Ashworth, H.L. Kirkpatrick, Beckley, for appellee.
McHUGH, Justice.
This case is before this Court upon appeal from a final order of the Circuit Court of Raleigh County, West Virginia [hereinafter, "the trial court"]. In that order the trial court set aside an earlier final order in favor of defendants/appellants.
This case involves a lost legacy under an invalidly attested codicil. "An old proverb warns us to take heed lest we `walk into a well from looking at the stars.' To show why [this case, although factually unique, is not as legally complicated as the parties and the trial court have viewed it, we] must bring these deliberations down to earth by a [rather] long recital of facts." Terminiello v. City of Chicago, 337 U.S. 1, 14, 69 S. Ct. 894, 900, 93 L. Ed. 1131, 1139 (1949)
(Jackson, J., dissenting).
I. Facts
Joan Brammer [hereinafter, "plaintiff"] accompanied her business associate, Howard E. Gillespie [hereinafter, "the decedent"], to the Gulf National Bank [hereinafter, "defendant bank"] at or near the Town of Sophia, Raleigh County, West Virginia, where the decedent was to conduct a banking transaction, specifically, the renewal of a promissory note. The decedent was a very substantial depositor at the bank. About two weeks prior to this, the decedent had informed Ronald Taylor [hereinafter, "defendant Taylor"], the bank's chief executive officer, that he (the decedent) would, at some unspecified time in the near future, be coming to the bank *209 to renew the note and, possibly, to amend his will. Defendant Taylor, who is not an attorney, immediately thereafter called the attorney who had prepared the decedent's will. There was testimony, to which no objection was made, that the attorney instructed defendant Taylor to tell the decedent, whenever he decided to amend his will, that it was dangerous to attempt to amend the will and that it would be better for an attorney to revoke the existing, short will of the decedent by preparing a new one.
On the day that the decedent renewed the note, he appeared at the bank at closing time. The only persons present at the bank were: the decedent, plaintiff, defendant Taylor, and Geraldine Short, an assistant vice-president of defendant bank (hereinafter, "defendant Short"). After renewing the note, and while sitting in or near defendant Taylor's office, the decedent suddenly asked defendant Short to take some dictation. In an area outside defendant Taylor's office, defendant Short typed a purported codicil to the decedent's will, in which he bequeathed $70,000.00 to plaintiff. After the decedent retrieved the purported codicil from defendant Short, who had typed it verbatim per his dictation, the decedent signed the purported codicil. Defendant Taylor was named therein as executor. Defendant Taylor then relayed to the decedent the message from the attorney that he ought to have a lawyer prepare the codicil. The decedent replied, however, that he did not have time to get a lawyer to prepare the codicil. The decedent then asked defendant Taylor to have the codicil witnessed and immediately left the bank with plaintiff. During all of this transaction, plaintiff remained completely silent, even though the evidence was undisputed that she was present when defendant Taylor cautioned the decedent that he should contact a lawyer to prepare the codicil. This transaction occurred on a Friday, June 5.
Three days later, on Monday, June 8, defendant bank, by defendant Taylor, had two other bank employees subscribe the codicil as purported attesting witnesses. Defendant Short notarized the witnesses' signatures as if they had signed on June 5. The decedent was not present at the bank when the witnesses subscribed the purported codicil.
The decedent died on June 13. When the probate court (in North Carolina where the decedent resided at the time of his death) learned of the true facts of the execution of the will, by way of affidavits of the subscribing witnesses, the purported codicil was denied probate.[1]
*210 Thereafter, plaintiff brought this tort action against defendant bank, defendant Taylor, and, by amended complaint, also against defendant Short, to recover the value of the lost legacy. Defendant Short was dismissed before trial as a defendant on the grounds that she was a mere scribe and, as a notary, did not back-date the attestation with malicious, impure or corrupt motives. The estate of the decedent or his personal representative was not made a party as a defendant.
II. Trial Court Proceedings
There were two theories of recovery: (1) the unauthorized practice of law by defendants and (2) negligence of defendants in handling the execution of the purported codicil. Denying defendant bank's and defendant Taylor's motions for directed verdict, the trial court submitted the case to the jury on both theories of recovery. The predominant emphasis at trial was, however, on the theory of the alleged unauthorized practice of law.
During colloquy with counsel on the directed verdict motions, the trial court stated to counsel that he would not allow the question of plaintiff's own contributory negligence to go to the jury, but he believed that plaintiff's case as intended beneficiary "must rise and fall on what her testator did" and "the jury must consider his actions and not hers." The jury was instructed to consider and determine the amount of any negligence of the decedent, as well as that of defendants. The trial court, over defendant bank's objection, refused to instruct the jury that the negligence of plaintiff was to be considered and determined.
In its special verdict, the jury found the decedent guilty of 70% of the fault and defendants guilty of 30% of the fault. The trial court subsequently entered a judgment order for defendants.
Thereafter, in what may fairly be described as a continuation of unnecessary confusion, plaintiff moved for a new trial or, alternatively, under W.Va.R.Civ.P. 60(b)(1), to set aside the judgment due to mistake. The ground principally relied upon was that plaintiff herself had not been found guilty of any negligence by the jury and, therefore, under the comparative negligence rule announced in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), was the prevailing party vis-a-vis the defendants, who had been found guilty of 30% of the fault, which was more than plaintiff's own share of the fault (zero).
The trial court agreed and granted plaintiff's Rule 60(b)(1) motion to set aside the judgment and for entry of judgment for plaintiff on the reasoning that the jury's verdict was, under Bradley, actually for plaintiff. The trial court, in its opinion letter accompanying its final order stated that it had not submitted the case to the jury with the decedent's negligence being imputed to plaintiff.
III. Assignments of Error
On this appeal, defendants/appellants assign as error:
(1) the trial court's setting aside the original judgment for defendants based upon its subsequent interpretation of the jury verdict in light of Bradley; and
(2) the trial court's ruling that plaintiff's comparative negligence was not a defense. We hold that this assignment of error has merit. Accordingly, we reverse the final order of the trial court and remand for a new trial.
Appellants rely upon wrongful death cases to support imputation of the decedent's comparative negligence to the *211 intended beneficiary.[2] Appellants also assert that the lawyers argued to the jury on the basis of imputed contributory negligence and contend that the jury was instructed on that basis. To allow the trial court to disregard a theory included in the instructions to the jury would, they urge, violate the principle of not giving misleading or confusing instructions.[3]
Plaintiff/appellee cross-assigns as error:
(1) the trial court's exclusion of evidence of prior wills of the decedent and of plaintiff having been executed (signed and attested) at the bank;[4]
(2) the trial court's refusal to give certain instructions;[5]
(3) the trial court's refusal to submit the case to the jury on a negligence per se basis for the alleged unauthorized practice of law;[6] and
(4) the trial court's dismissal before trial of the notary public, defendant Short, who typed the purported codicil. This cross-assignment of error has some merit. As discussed below, merely typing another person's will or attempted will is clearly not practicing law. Like defendant Taylor, however, defendant Short may have assumed a duty to supervise the execution of the codicil or to contact a lawyer about the same. The jury is to consider and determine her negligence, if any, on remand. Defendant bank, as her employer, would be responsible, under respondeat superior, for any negligence on her part found by the jury.
*212 The issue of the trial court's dismissal of defendant Short is not before us. She was not represented by counsel for defendant bank, either at trial or on this appeal, but was represented by her own counsel who did not participate in this appeal.
IV. The practice of law
The first issue in this case on remand would be whether defendants were engaged in the unauthorized practice of law. It must be determined whether, under the unauthorized practice of law theory of recovery, there was a breach of a duty owed by defendants to the decedent and to plaintiff not to engage in the unauthorized practice of law, the breach of which duty proximately contributed to the legacy being invalidated by improper attestation of the attempted codicil.
This Court has promulgated a definition of the practice of law, pursuant to our "power to promulgate rules ... for all of the courts of the State relating to ... practice...," W.Va. Const. art. VIII, § 3, and pursuant to the express provision of W.Va.Code, 51-1-4a(a) [1945] to promulgate rules defining the practice of law. This definition,[7] emphasizing the need for protection of the public from legal advice and representation from and by persons who are "unqualified and undisciplined," is to be read in pari materia with W.Va.Code, 30-2-4 [1931] and W.Va.Code, 30-2-5 [1972], which impose misdemeanor criminal penalties for the unauthorized practice of law by a natural person or by a corporation or association.
Drafting a will for another person, advising another person how to draft a will or supervising its execution are activities which constitute the practice of law. See generally annot., 22 A.L.R. 3d 1112 (1968), especially § 3 thereof. Certainly such activities come within our definition of the practice of law, as they constitute the giving of advice to another person on a matter involving the application of legal principles to facts, purposes or desires, and they involve the preparation of legal instruments for another person.
On the other hand, merely typing a legal instrument drafted by another person or merely reducing the words of another person to writing does not constitute the preparation of a legal instrument and, thus, does not constitute the practice of law. Mickel v. Murphy, 147 Cal. App. 2d 718, 305 P.2d 993 (1957), overruled on other grounds, Biakanja v. Irving, 49 Cal.2d *213 647, 320 P.2d 16 (1958). Mickel involved an action by an intended beneficiary under a defectively executed will against a notary public to recover the value of property which would have passed under the will to the plaintiff but for the alleged unlawful practice of law by the defendant notary. The facts in Mickel are similar to those here.
There is no allegation that defendant represented that he was an attorney or qualified to draw the will. There is no allegation that the defendant suggested or directed the disposition of the property of Henry Mickel or that Henry Mickel relied upon defendant to see that the will was witnessed as required by law....
147 Cal.App.2d at 720, 305 P.2d at 995. On these facts the court concluded: "In the instant case it is not alleged that defendant acted other than as a [scribe] in the preparation of the will and no facts are alleged showing that it was defendant's duty under the circumstances to advise the decedent that the will required `attestation thereto of two witnesses.'" 147 Cal.App.2d at 721, 305 P.2d at 995.
In the case now before us, there was an allegation that the decedent reasonably relied upon defendants to supervise the execution of the codicil, based upon prior wills of the decedent and of plaintiff having been signed and attested at defendant bank. If defendants had acted not only as typists and attesting witnesses but had actually engaged in the unauthorized practice of law by supervising the execution of these prior wills, the jury might reasonably infer that defendants had engaged in the unauthorized practice of law by supervising the execution of the codicil in question in this case. If defendants had engaged in the unauthorized practice of law in this case, in violation of W.Va.Code, 30-2-4 [1931] and W.Va.Code, 30-2-5 [1972], they would be prima facie negligent in their supervision of the execution of the codicil, see n. 6, supra, and if such negligence proximately contributed to the invalidity of the codicil, defendants would be liable to plaintiff for the value of the legacy lost by invalidation of the codicil, unless plaintiff is barred from recovering from defendants by her own comparative negligence, if any. See Kronzer v. First National Bank, 305 Minn. 415, 421, 235 N.W.2d 187, 191 (1975).
V. Common law duty of care
The second theory of recovery in this case was that of a breach of a common law duty of care. Even if defendants had not engaged in the unauthorized practice of law by supervising the execution of the codicil, they may still have assumed the obligation "to see that the will was witnessed as required by law," Mickel, supra, 147 Cal.App.2d at 720, 305 P.2d at 995, that is, by expressly or impliedly agreeing to consult an attorney at law for advice on how the codicil should be attested. The jury upon retrial, upon sufficient evidence, would have to decide whether defendants assumed such an obligation or, conversely, merely agreed to act as attesting witnesses. "One who engages in affirmative conduct [such as agreeing to consult an attorney for advice on how a codicil should be attested], and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another [if such advice is not timely obtained], is under a duty to exercise reasonable care to prevent the threatened harm [by obtaining timely advice]." Syl. pt. 2, Robertson v. LeMaster, ___ W.Va. ___, 301 S.E.2d 563 (1983).
VI. Plaintiff's comparative negligence
While concentrating on the question of whether defendants were practicing law, the trial court totally ignored the conduct of one of the parties, specifically, the conduct of plaintiff.
Defendant bank offered an instruction which stated, in essence, that the jury was to consider and determine the extent of plaintiff's negligence, as well as that of the decedent and defendants. The trial court refused to give this instruction as offered and modified it to exclude the reference to plaintiff's negligence. The instruction as offered correctly stated the law, was supported by sufficient evidence *214 and was not repetitious of any other instruction. It should, therefore, have been given. "An instruction is proper if it is a correct statement of the law and if there is sufficient evidence offered at trial to support it." Jenrett v. Smith, ___ W.Va. ___, ___, 315 S.E.2d 583, 592-93 (1983). "`Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so.'" McAllister v. Weirton Hospital Co., ___ W.Va. ___, ___, 312 S.E.2d 738, 744 (1983) (citations omitted).
This Court held in syllabus point 3 of Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979): "A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident." (emphasis added)[8] Clearly, under this principle, the question of the negligence of plaintiff in this particular case should have been submitted to the jury. The uncontroverted evidence is that plaintiff was present when defendant Taylor cautioned the decedent to get a lawyer to prepare the codicil. Furthermore, despite hearing this admonishment, plaintiff apparently did not contact a lawyer about the codicil. Thus, in this unusual case, the jury could reasonably *215 find that plaintiff's inaction of not contacting a lawyer and not urging the decedent to contact a lawyer for advice on the preparation and execution of the codicil proximately contributed to the defect in the attestation of the codicil. Under these circumstances, we hold that the jury should have determined whether and to what extent plaintiff, an intended beneficiary under an invalidly executed codicil, was negligent where she was present at the time the codicil was presented to defendants (non-lawyers) for "witnessing" and was aware that legal advice should be obtained. "[T]he foreseeability of risk is a primary consideration in establishing the element of duty in tort cases." Robertson v. LeMaster, ___ W.Va. ___, ___, 301 S.E.2d 563, 568 (1983). "The risk reasonably to be perceived defines the duty to be obeyed[.]" Palsgraf v. Long Island R.R., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928) (Cardozo, C.J.).
VII. Conclusion
For the foregoing reasons we reverse the final order of the trial court, set aside the verdict of the jury and remand this case for a new trial consistent with the principles set forth in this opinion.
Reversed and remanded; new trial.
NOTES
[1] The applicable North Carolina statute on execution and attestation of a will is N.C.Gen.Stat. § 31-3.3 [1953], which provides as follows:
(a) An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section.
(b) The testator must, with intent to sign the will, do so by signing the will himself or by having someone else in the testator's presence and at his direction sign the testator's name thereon.
(c) The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
(d) The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other. (emphasis added)
Notice that the testator need not sign the will in the presence of the attesting witnesses but may acknowledge to them his previously affixed signature. W.Va.Code, 41-1-3 [1931] provides in similar language as follows:
No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other, but no form of attestation shall be necessary. (emphasis added)
Both the North Carolina and West Virginia statutes require the attesting witnesses to "sign" or to "subscribe" the will in the presence of the testator. Nonetheless, the witnesses' acknowledgement of their signatures (or, in North Carolina, the acknowledgement of each witness of his signature separately) in the presence of the testator (and, in West Virginia, in the presence of each other) is tantamount to and will be deemed a "signing" or "subscribing" in the presence of those persons. Wade v. Wade, 119 W. Va. 596, 195 S.E. 339 (1938). Thus, in the case now before us, the attempted codicil became defectively attested when the testator died before he had acknowledged his signature to each of the purported attesting witnesses and each of them had acknowledged their respective signatures to him, as required by the North Carolina statute.
[2] This reliance is misplaced. A wrongful death case is not analogous to a case involving an intended beneficiary's claim of alleged negligence in the preparation or supervision of the execution of a will. In a wrongful death case the imputation of the comparative negligence of the decedent to a distributee is provided by the wrongful death statute itself, W.Va. Code, 55-7-5 [1931], since the action does not lie thereunder unless the decedent could have maintained an action for the injuries. Thus, for the purpose of imputing negligence, the decedent's personal representative's action for the benefit of a distributee is derivative and rises and falls with what the decedent's right to recovery would have been. On the other hand, an intended beneficiary under a defectively executed will does not have a derivative action against the person(s) supervising the execution but, instead, an independent action in his or her own right for the value of the legacy lost by him or her as the very person for whom it was intended. The decedent's estate would have a separate action for recovery of attorney's or other fees paid by the decedent for preparation of the will. See, e.g., Heyer v. Flaig, 70 Cal. 2d 223, 74 Cal. Rptr. 225, 449 P.2d 161 (1969). See generally annot., 45 A.L.R. 3d 1181 (1972); annot., 65 A.L.R. 2d 1363 (1959); 7 Am.Jur.2d Attorneys at Law § 236 (1980).
For a discussion of the very limited number of agency-type relationships in which the negligence of another person is by legal fiction imputed to a plaintiff see generally Prosser And Keeton On The Law Of Torts § 74 (W. Keeton 5th ed. 1984); annot., 53 A.L.R. 3d 664 (1973); 58 Am.Jur.2d Negligence §§ 462-64 (1971). A testator is not an agent subject to the control of an intended beneficiary under the will or attempted will, for the purpose of imputing to the intended beneficiary the negligence of the testator in executing or preparing the will. Cf. 2 S. Williston, A Treatise on the Law of Contracts § 352 (W. Jaeger 3d ed. 1959) (the promisee in a contract is not the agent of the third-party beneficiary unless the agency is established as a matter of fact; thus, a testator, as promisee of a contract to have a will or codicil prepared or its execution supervised, is not presumed to be the agent of the intended beneficiary under the will or codicil, who would be the third-party beneficiary of such a contract).
[3] It is not necessary to discuss this assignment of error. Imputing the decedent's negligence to plaintiff would not be proper for the reasons stated above at n. 2.
[4] On remand plaintiff/appellee should be given the opportunity to show that these other wills were prepared, or their execution supervised, by defendants. On the other hand, merely acting as attesting witnesses would be insufficient to impose a common law duty on defendants to supervise the execution of a will or codicil.
[5] Plaintiff/appellee waived this cross-assignment of error by not arguing the same in her brief. See State v. Flint, ___ W.Va. ___, ___, 301 S.E.2d 765, 768 n. 1 (1983); syl. pt. 6, Addair v. Bryant, ___ W.Va. ___, ___, 284 S.E.2d 374 (1981).
[6] This cross-assignment of error is without merit. In West Virginia, the well settled rule is that the violation of a statute is only prima facie evidence of negligence, not negligence per se. Vandergrift v. Johnson, 157 W.Va. 958, 961, 206 S.E.2d 515, 517 (1974). See W.Va. Code, 55-7-9 [1931].
[7] Adopted in 1947 and last amended in 1961, our "Definition of the Practice of Law" is as follows (after a preamble reciting the importance of licensing and regulation of persons performing legal services):
In general, one is deemed to be practicing law whenever he or it furnishes to another advice or service under circumstances which imply the possession of [or] use of legal knowledge and skill.
More specifically but without purporting to formulate a precise and completely comprehensive definition of the practice of law or to prescribe limits to the scope of that activity, one is deemed to be practicing law whenever (1) one undertakes, with or without compensation and whether or not in connection with another activity, to advise another in any matter involving the application of legal principles to facts, purposes or desires; (2) one undertakes, with or without compensation and whether or not in connection with another activity, to prepare for another legal instruments of any character; or (3) one undertakes, with or without compensation and whether or not in connection with another activity, to represent the interest of another before any judicial tribunal or officer, or to represent the interest of another before any executive or administrative tribunal, agency or officer otherwise than in the presentation of facts, figures or factual conclusions as distinguished from legal conclusions in respect to such facts and figures. (emphasis added)
Vol. 1A, W.Va.Code, at 267-68 (1982 Repl.Vol.).
This Court has repeatedly emphasized that it has the exclusive regulatory power over the practice of law in this State. "The constitutional separation of powers, W.Va. Const. art. V, § 1, prohibits the legislature from regulating admission to practice and discipline of lawyers in contravention of rules of this Court. W.Va. Const. art. VIII, § 1." Syl., State ex rel. Quelch v. Daugherty, ___ W.Va. ___, 306 S.E.2d 233 (1983). See also syl. pt. 1, Daily Gazette Co. v. Committee on Legal Ethics, ___ W.Va. ___, 326 S.E.2d 705 (1984); State ex rel. Haught v. Donnahoe, ___ W.Va. ___, ___, 321 S.E.2d 677, 683 n. 12 (1984) (collecting cases); W.Va.Code, 51-1-4a(e) [1945] (recognizing our inherent rule-making power).
[8] Bradley requires a determination of the negligence or fault of the parties involved in the "accident," not merely of those parties involved in the action. Sitzes v. Anchor Motor Freight, Inc., ___ W.Va. ___, ___, 289 S.E.2d 679, 687 (1982); syl. pt. 3, Bowman v. Barnes, ___ W.Va. ___, 282 S.E.2d 613 (1981). Accordingly, the negligence or fault of the decedent in the case now before us is to be determined, regardless of whether his estate or personal representative is made a party to the action.
The principles of comparative negligence are applicable to tort cases involving only a pecuniary loss, as well as to tort cases involving personal injuries or property damage. Darnell Photographs, Inc. v. Great American Insurance Co., 33 Colo. App. 256, 519 P.2d 1225 (1974), cert. denied (1974). In that case the comparative negligence statute applied on its face to "negligence resulting in death or in injury to person or property[.]" The court refused to construe narrowly the phrase "injury to ... property" by limiting application of the statute to a physical injury to tangible property. Instead, the court held that "injury to ... property" includes any damage resulting from invasion of one's property rights by actionable negligence. Thus, comparative negligence principles were held to be applicable to an action against an insurance company for negligent failure to increase coverage under an insurance policy, which failure resulted in pecuniary loss by the plaintiff.
The use of the word "accident" in syllabus point 3 of Bradley, supra, did not limit the principles of comparative negligence to personal injury or property damage cases. That syllabus point twice used the phrase "negligence or fault." See Koppers Co. v. Dailey, ___ W.Va. ___, ___, 280 S.E.2d 248, 251 & n. 8 (1981). "Fault" in this context is broader than "negligence" and "connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches." Black's Law Dictionary 548 (5th ed. 1979) (emphasis added). In construing the comparative negligence statute in its jurisdiction which applied to "culpable conduct," the court in Lippes v. Atlantic Bank, 69 A.D.2d 127, 419 N.Y.S.2d 505 (1979), expressly rejected the argument that comparative negligence principles apply only to personal injury or property damage cases. In so ruling the court made these astute observations:
We find no distinction in logic ... which limits application of the [comparative negligence] rules merely to `accident' cases to the exclusion of all other causes pursued under a theory of tort liability. To exclude apportionment of damages in a tort action arising from commercial relationships and to insist that contributory negligence remain[s] a bar to any recovery in such cases [comma deleted] would perpetuate the injustice [that the comparative negligence doctrine] addresses and [would] deny the ameliorative effect established by [such doctrine]....
... If the legal principles enunciated by [New York's leading case equivalent to our Bradley ] are to remain viable, it ... `should be subject to the dynamics of appropriate growth and refinement' [citation omitted], permitting of a flexible and purposeful application to redress civil wrongs in all manner of tort causes....
Further, the use of the term `culpable conduct'... rather than [solely] `negligent conduct', presents further support to the view that the ... intent was to release the concept of damage apportionment from the parochial confines of accident cases and to broaden its application flexibly `to reach any breach of legal duty or fault....' Accordingly, one commentator suggests that our `comparative negligence' law be renamed generically as the `comparative fault' law.
69 A.D.2d at 136-38, 419 N.Y.S.2d at 510-11. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363990/ | 221 Ga. 692 (1966)
146 S.E.2d 728
STOREY
v.
AUSTIN.
23234.
Supreme Court of Georgia.
Argued December 14, 1965.
Decided January 6, 1966.
Rehearing Denied January 18, 1966.
Jones, Bird & Howell, F. M. Bird, Eugene T. Branch, Trammell Vickery, for appellant.
Noah J. Stone, Stone & Stone, Thomas O. Davis, Davis Stringer, for appellee.
GRICE, Justice.
We evaluate a petition seeking specific performance of an option to renew a lease, and for ancillary relief.
Frederick G. Storey filed such a petition against D. E. Austin, Jr., in the Superior Court of DeKalb County, making allegations which, insofar as material here, are substantially those that follow.
In 1955 Austin leased to Storey certain described property for a ten-year term beginning July 1, 1955, and ending June 30, 1965, the instrument giving the lessee the option to renew the lease for two like periods. The lessee entered into possession and erected a drive-in theatre. He installed theatre and concession equipment at a cost of approximately $225,000 and has maintained such improvements up to the filing of this suit.
Pursuant to the lease agreement, the lessee exercised the option to renew for ten years beginning July 1, 1965, and ending June 30, 1975. But the lessor refuses to renew.
*693 Prior to June 1, 1965, the lessee's agent notified William C. Forkner of Forkner Realty Company that the lessee desired to renew the lease for an additional ten years, as permitted by the instrument. Forkner Realty Company is named as agent for the lessor in the lease agreement, and William F. Forkner for many years prior to June 1, 1965, discharged that company's agency responsibilities under the lease agreement.
Upon being informed of the lessee's desire to renew, as permitted by the lease agreement, Forkner informed the lessee's agent that he would prepare the renewal lease and forward it for execution.
Prior to June 1, 1965, Forkner, by telephone, informed the lessor of the lessee's notice of election to renew the lease, and asked the lessor if he wished to renew for a term beyond the original option period. The lessor stated that he did not. Forkner then told him that he would prepare the renewal lease and forward it for execution. Pursuant to the lessee's notice of election and his own conversation with the lessor, Forkner prepared a renewal lease for an additional ten-year term. Prior to June 30, 1965, the lessee executed such renewal lease and on June 28, 1965, Forkner forwarded it to the lessor. By letter dated June 29, 1965, the lessor notified the lessee that he would not execute the lease since he did not receive written notice of the lessees election to renew, as the lease required, and that he would consider him a tenant at will for the same rental figure he had been paying.
Thereafter, the lessee forwarded to Forkner the July rental of $450, as required by the renewal and the original leases. After deducting its commission, Forkner's firm forwarded the balance of that payment to the lessor. But by letter of July 8, 1965, the lessor returned the check to that firm, and stated that it was no longer his agent. By letter dated July 13, 1965, the lessee forwarded to the lessor a check in the amount of $450 for July rent and insisted that the lease had been renewed. That check has been retained by the lessor. Prior to August 1, 1965, the lessee transmitted to the lessor a check for the August rent, but the lessor returned it.
At the end of the term of the original lease, it had not been *694 canceled, and the lessee was not in default in the performance of any covenant.
Also, the lessee has performed and complied with all the terms, covenants and obligations of the renewal lease, and is ready, willing and able to pay the rent required therein and to comply with all of its covenants, conditions and obligations. While it appears useless to tender further rent, the lessee hereby offers, during the pendency of this action, to pay into court any rental or other sums required.
The foregoing, it is alleged, shows clearly that the lessee exercised the option to renew the lease; that the lessor, prior to June 1, 1965, was aware of such exercise of the option; and that written notice thereof, if required by the original lease, was waived by the lessor.
Dispossessory proceedings have been instituted by the lessor against the lessee to recover the leased premises, and the lessee has filed counter affidavit and bond therein.
The drive-in theatre involved here, in its almost ten years of operation, has established good will and going-concern value at its present location, in addition to the value created by the improvements referred to above. If written notice a of exercise of the option to renew was required by the lease agreement the deviation therefrom was slight, the notice was timely, and the lessor was not damaged because of the form of such notice. His effort to enforce a forfeiture of the covenant to renew under such facts and circumstances would result in unconscionable hardship and oppression to the lessee from which equity may grant relief.
In addition to process, rule nisi and general relief, the lessee's petition prayed that the renewal of the lease for the additional term of ten years, beginning July 1, 1965, and ending June 30, 1975, be specifically enforced and that until a hearing in this case the dispossessory proceedings be enjoined.
Attached to the petition is a copy of the original lease agreement. Paragraph 14 provides, insofar as material here, substantially as follows: if at the end of the original term of the lease (June 30, 1965), it has not been canceled and the lessee is not in default in the performance of any of its covenants or agreements, he shall have the option to renew for an additional *695 term of ten years beginning July 1, 1965, and ending June 30, 1975, at the same rental as provided for in the original lease; and such option may be exercised by the lessee giving to the lessor notice in writing not later than June 1, 1965, of the lessee's intention to exercise the option.
The trial court sustained the lessor's general demurrer to the foregoing petition, and the lessee enumerated that ruling as error.
1. Of considerable prominence in this controversy is an issue over the proper interpretation of the provision "... The aforesaid option to renew may be exercised by Lessee by giving to Lessor notice in writing not later than June 1, 1965 of Lessee's intention to exercise said option." (Emphasis ours.) The lessor contends that this language requires written notice and that only such will suffice. The lessee maintains that it is permissive, not mandatory, and may be otherwise complied with, as was done here. But, under our view of the situation, it is not necessary to decide this issue. Another matter controls.
Even if the notice was required to be in writing, this requirement was waived by the lessor.
Before the time for exercise of the option had run out, the following events took place: the lessee's agent advised Forkner as to the lessee's election to exercise the option "as permitted in Paragraph 14 of the lease agreement," a portion of which is quoted above; Forkner told such agent that he would prepare the renewal lease and forward it for execution; Forkner then telephoned the lessor of the lessee's notice of election to renew and asked the lessor if he wished to renew for a term beyond the ten-year period; the lessor stated to Forkner that he did not; Forkner then advised the lessor that he would prepare the renewal lease and forward the same for execution.
Thereafter, the lessee executed the renewal lease which had been prepared by Forkner "pursuant to the foregoing notice of [the lessee] and conversation with [the lessor]." Then, on June 28, Forkner forwarded to the lessor the executed renewal lease. By letter of June 29 when by the terms of the original lease agreement it was too late for the lessee to give written notice of his election the lessor refused to sign the renewal lease, relying upon the lessee's failure to give him written notice.
*696 From these events we conclude that the lessor waived any such condition to his obligation to renew. During the time before June 1, 1965, the lessee could have protected himself by giving written notice. But he had no reason not to rely upon the oral notice which the lessor actually had received through Forkner and to which he had responded by expressing his wishes as to the term. It was too late, when time had run out, for the lessor to raise, for the first time, the objection that the notice should have been in writing. See Simpson, Handbook of the Law of Contracts, § 170, pp. 349-352 (2d Ed., 1965); 17 Am. Jur. 2d 838-840, Contracts, §§ 392, 393; 17A CJS 688-701, Contracts, §§ 491-493. Whether or not Forkner was authorized to bind the lessor in any phase of this renewal situation is immaterial under these circumstances.
2. The remaining issue relates to the sufficiency of the allegations for specific performance. The lessor urges that the petition does not authorize this relief since specific performance is not a remedy which either party can demand as a matter of absolute right and that the petition does not allege facts to show that the contract is fair, just, and not against good conscience.
As we view this petition it does allege some facts. These parties for almost ten years had occupied the relationship of lessor and lessee. A continuance of that same relationship was sought to be enforced. The option to renew was a part of the consideration for the original lease. The monthly rental in the event of renewal had been agreed upon by them and incorporated in the option provision of the original lease agreement. That the amount so set is fair is shown by the lessor's letter, attached to the petition, notifying the lessee that he would not execute the renewal lease and would consider the lessee a tenant at will "at the rent you are now paying." Also, there are allegations as to large expenditures by the lessee for improvements and as to the lack of any damage or prejudice to the lessor from the form of the notice. Thus, fairness, justness, and good conscience are alleged to result from enforcement of the option to renew; and forfeiture and hardship are alleged to result from lack of such enforcement. Here, equity will extend its hand.
*697 Since we deem the petition sufficient against general demurrer, the judgment complained of is
Reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743862/ | 436 So. 2d 1090 (1983)
Thelma W. WECHSLER, Appellant,
v.
Irving A. WECHSLER, Appellee.
No. 82-2642.
District Court of Appeal of Florida, Third District.
September 6, 1983.
*1091 Baskin & Sears and Paula S. Gold and Frederick N. Frank, Pittsburgh, for appellant.
Eleanor Levingston Schockett and Jennifer Armstrong West, Miami, for appellee.
Before HENDRY, NESBITT and FERGUSON, JJ.
PER CURIAM.
After the wife's attorney discovered he had not been served with an order denying his client's exceptions to a general master's report, as required by Florida Rule of Civil Procedure 1.080(h), he filed a motion for relief of the order pursuant to Florida Rule of Civil Procedure 1.540(b) asserting that as a result of the foregoing, the wife was denied her right to appellate review of the order. Because the husband's response thereto conceded the truth of the allegation, the trial court should have concluded upon the pleadings that the wife was entitled to be relieved from the undiscovered effects of the order. Rogers v. First National Bank v. Winter Park, 232 So. 2d 377 (Fla. 1970); Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980).
Accordingly, we reverse and vacate the trial court order and remand this cause to the trial court for entry of an order which will provide the appellant with an avenue for a direct appeal. See Gibson, supra, at 351.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363498/ | 131 Ga. App. 86 (1974)
205 S.E.2d 31
MADDOX
v.
THE STATE.
48745.
Court of Appeals of Georgia.
Submitted November 6, 1973.
Decided March 1, 1974.
Joe R. Edwards, Robert L. Ridley, for appellant.
Ben J. Miller, District Attorney, for appellee.
CLARK, Judge.
Defendant was convicted of theft by taking in that he "did take one white face grade hereford steer between 600-700 lbs. weight, of the value of $200, the property of Charles Harp and J. B. Harp, with the intention of depriving said owners of said steer." The steer was killed by a .22 magnum caliber shot.
Defendant appeals on general grounds. He further contends his character was improperly put in issue. An additional error is averred on the basis that the transcript fails to show a jury verdict on the punishment phase of a sentence by the court.
Defendant in his unsworn statement denied any involvement, stating that he and a friend went coon hunting, became lost in the woods and upon finding a house requested a ride to town from the occupant, Clyde McDaniel.
State's witness Hogan, whose pickup truck was found in the pasture backed up to the dead steer and who *87 himself was found intoxicated on the nearby road, testified that defendant and another, both wearing handguns, had requested permission to use his barn to dress a steer and after doing so had suggested that Hogan come with them to pick up another steer that they had killed. Hogan's truck was used because it was airconditioned and Hogan drove under defendant's direction. Hogan in his own words was "pretty well lit," having drunk between a pint and a quart of vodka that day. Hogan thought they were going to a farm in Henry County defendant had previously mentioned as belonging to his aunt. Defendant and his companion left Hogan on the road while they went inside the filed to get the dead steer. As the steer was heavier than anticipated, defendant returned for the truck leaving Hogan waiting on the road bank.
The owner of the dead steer stated, after discovering the steer dead but still warm, he had gone to the house to notify his son of the incident. He then returned to the pasture and finding the gate open blocked the gateway with his truck. He saw lights in the field, but waited until his son and the police arrived before entering the field.
There was no one at the truck or in the field when the deputies went out to check the truck. The dead steer was on the ground and Hogan's pickup truck was there with a barrel containing a cow's head and entrails.
McDaniel testified that when defendant appeared at his residence approximately one mile from locale of the dead cow Maddox was wearing a holstered pistol. Defendant stated to him he had become lost while fishing and requested a ride to town.
Hogan's wife delivered to the deputies defendant's shirt covered with bloodstains which were analyzed as those of a cow or deer and which contained a military pay voucher in defendant's name. She also stated she had bandaged a cut on defendant's hand. She corroborated Hogan's testimony to the point where the three left in Hogan's truck. A deputy corroborated the fact of defendant's hand having a cut at the time of the arrest.
Defendant's wife turned over a .22 regular caliber cylinder which is interchangeable with a .22 magnum caliber cylinder. The deputies had seen the cylinder in *88 defendant's trailer while executing a search warrant. The .22 magnum caliber cylinder and the pistol were not found. During the search the deputy also testified that he found what in his opinion was home processed meat in defendant's freezer.
1. Defendant was found guilty of theft by taking which is defined by Code Ann. § 26-1802 (a) as "A person commits theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of said property, regardless of the manner in which the property is taken or appropriated."
Hogan's testimony along with the other evidence which we have summarized supported the verdict. "After a verdict approved by the trial court, the evidence must be construed by this court in its light most favorable to the prevailing party with every presumption and inference being in favor of upholding that verdict. [Cits.]" Green v. State, 123 Ga. App. 286, 287 (180 SE2d 564).
2. Defendant contends Hogan was an accomplice and that the evidence lacks sufficient circumstances corroborative of Hogan's testimony as required under Code § 38-121. It should be noted that Hogan is not a codefendant, not having been indicted or tried with defendant. The applicable principles are stated in Hargrove v. State, 125 Ga. 270 (1) (54 SE 164) to be that "Neither the joinder of a witness in an indictment with the defendant, nor a plea of guilty entered by the witness, necessarily makes him an accomplice with the defendant so as to require corroboration of the witness' testimony on the latter's trial. It is for the jury, from a consideration of the testimony of the witness, wherein he admits his presence at the scene of the crime at the time of its commission by his codefendant, but denies any participation therein by him, and the plea of guilty entered by the witness, as well as any other relevant circumstance, to determine whether the witness was an accomplice of the defendant on trial." See also Venable v. State, 56 Ga. App. 366 (192 SE 646); Kent v. State, 105 Ga. App. 565 (125 SE2d 96).
Defendant contends that Childers v. State, 52 Ga. 106, supports his view and is determinative under the *89 facts in the case. However, in Childers defendant was "avowedly guilty" and was an accomplice as a matter of law. The facts sub judice do not support a finding that Hogan is an accomplice as a matter of law. Furthermore, Hogan did not admit guilt and in fact denies any knowledge of defendant's intent and actions. See Harris v. State, 96 Ga. App. 395, 398 (100 SE2d 120). Hogan testified that he thought they were going to the farm of defendant's aunt and that they told him to get out of the truck and wait (supposedly due to his intoxication) while they retrieved the steer. Therefore Hogan's status is a question for determination by the jury and the Childers case is not adjudicative.
"In Chapman v. State, 109 Ga. 157, 165 (34 SE 369), the Supreme Court said: `The question as to whether or not there is sufficient corroboration of the testimony of an accomplice to produce conviction of a defendant's guilt, is peculiarly one for the jury.' In Rawlins v. State, 124 Ga. 31, 49 (52 SE 1), the court held: `What shall be the extent of this corroboration is a question to be determined by the jury. It may be strong, or it may be slight; but in each case it must be of such character as to satisfy the minds of the jury as to the connection of the accused with the criminal enterprise.'" Evans v. State, 91 Ga. App. 819, 821 (87 SE2d 228).
3. Defendant alleges that his character was put in issue when on cross examination of Hogan, the following colloquy transpired: "Q. What happened to the gun? Did he come back and get the gun? A. Well, I don't know whether it was him or not. Somebody broke in my house the following Monday and stole all my guns and his happened to be sitting there, a colored TV, and saddles." (T. 82). Defendant made no objection to Hogan's answer.
"In the first place, the evidence to which the motion relates was given by the witnesses in direct response to questions propounded by counsel for the accused during his cross examination of them; and it is a settled rule of practice in this state that, where counsel elicits testimony unfavorable to his client, he will not be heard to object to it, no matter how prejudicial it may be, if it is a direct and pertinent response to the question propounded. [Cits.]" Thomas v. State, 213 Ga. 237, 239 (98 SE2d 548).
*90 The answer was responsive in that Hogan stated what happened to the gun and in answer to the second part of the question said that he did not know if defendant had taken the gun or not. Hogan did not specifically accuse defendant of the burglary. It was not Hogan but defendant, himself, in his unsworn statement who stated: "I sure wasn't going to Hogan's house, because Hogan had it in for me because he claimed that I was the one that broke in his house and stole my own shot gun and stole his guns out of it." (T. 122). Therefore this enumeration is without merit.
4. Defendant enumerates as error the failure of the transcript to show either the jury verdict or the sentence by the judge. "Verdicts acquire their legality from return and publication. [Cits.]" Martin v. State, 73 Ga. App. 573, 578 (37 SE2d 411).
The judge's order in denying the motion for new trial states: "As to special grounds 7 and 8, while the transcript does fail to recite the punishment fixed by the jury or the publication thereof, the indictment itself has the punishment written thereon by the foreman of the jury, and this Court knows, as a matter of fact, that said verdict and punishment was published in open Court by the District Attorney of the Griffin Judicial Circuit upon said verdict and punishment being returned by the trial jury, all in the presence of the Court. While it would have been proper for these matters to have been reported in the transcript, this Court knows of no reason why the failure of the transcript to reflect this matter would have any bearing whatsoever upon the validity of the conviction and, consequently, finds special grounds 7 and 8 to be without merit." (R. 3).
The failure to report the verdict and sentence was obviously due to inadvertence of the court reporter. The trial judge has stated what transpired in his order which is supported by the indictment bearing the foreman's signature and the punishment verdict on page 11 of the record. We analogize these circumstances to those set forth in Code Ann. § 6-805 (g) where it is stated that when the transcript is not available and a transcript is prepared from recollection, "in case of the inability of the parties to agree as to the correctness of such transcript, *91 the decision of the trial judge thereon shall be final and not subject to review..." This enumeration is without merit.
Judgment affirmed. Hall, P. J., concurs. Evans, J., concurs specially.
EVANS, Judge., concurring specially.
Under the new law, in felony cases in the event of conviction, the jury must return two verdicts. The first verdict is as to whether the defendant is guilty or not guilty. If the verdict is "guilty" then the jury must return and decide on the sentence. Code Ann. § 27-2534 (Ga. L. 1971, p. 902). The language of the statute is that "the jury shall retire to determine the punishment to be imposed. The jury shall fix a sentence within the limits prescribed by law." If the jury cannot agree within a reasonable time, the judge may fix the sentence.
Error is enumerated because the transcript does not show there was a jury verdict as to the punishment phase of the case. The record shows only one verdict, which is as follows, to wit: "We the jury find the defendant, Robert Eugene Maddox, guilty and fix a sentence of two years. This 7 day of December, 1971. Grady B. Stone, Foreman."
There is no contention that the judge imposed the sentence, because the jury failed to agree.
There is a plenitude of cases in Georgia holding that a verdict is not required to be in writing and signed. Southern Express Co. v. Maddox, 3 Ga. App. 223, 224 (59 SE 821); Roberts v. State, 14 Ga. 18 (1); Harris v. Barden, 24 Ga. 72; Patterson v. Murphy, 63 Ga. 281; Avera v. Tool, McGarrah & Tondee, 74 Ga. 398 (3); Sullivan v. State, 29 Ga. App. 377, 378 (115 SE 290). But not a one of these cases holds, and I can find none that holds, that a verdict of a jury need not be in writing. The above authorities simply hold that though the verdict is in writing, and unsigned, or perhaps unsigned and undated, these *92 deficiencies may be added later, or overlooked. But none holds that the deficiency of not writing out the verdict may be overlooked or corrected.
The question here is whether the above verdict can be construed to represent two separate findings by the jury, to wit: guilty in the first instance, and a later finding that the sentence shall be two years.
"Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Code § 110-105.
It is more than a little difficult to construe the above verdict to be two separate findings, but in view of the last cited code section, and the explanation by the trial judge, I somewhat reluctantly concur in the judgment in this case.
But it would be a better practice hereafter to have the jury write two separate verdicts, to be signed by the foreman, in each case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363499/ | 131 Ga. App. 33 (1974)
205 S.E.2d 94
REA EXPRESS, INC.
v.
GINN et al.
48820.
Court of Appeals of Georgia.
Argued January 10, 1974.
Decided February 4, 1974.
Rehearing Denied February 20, 1974.
Webb, Parker, Young & Ferguson, Robert G. Young, for appellant.
Coggin, Haddon, Stuckey & Thompson, Fletcher Thompson, for appellees.
EBERHARDT, Presiding Judge.
Plaintiff REA Express, Inc. brought a trover action against D. K. Ginn and William Blount d/b/a G & B Discount Sales to recover possession of "two electronic check detector mockups" claiming title by reason of having paid the shipper for loss of the goods on a claim made against it. Defendants answered, inter alia, that they were purchasers in good faith of the goods which had been sold to them at public sale by Delta Airlines to enforce a carrier's lien, and that pursuant to Uniform Commercial Code, § 109A-7-308 (4) they took the goods free of any claim of the plaintiff express company. The trial court, sitting without a jury, so found, and plaintiff appeals. Held:
1. Plaintiff contends that the testimony of Mr. Ray Anderson, who conducted the sale on Delta's behalf, to the effect that the goods were sold to satisfy Delta's carrier's lien, should have been ruled out, and that the court erred in finding that the goods were sold to enforce a carrier's lien, because Mr. Anderson did not know and could not testify that all the requirements of Uniform Commercial Code, § 109A-7-308 relative to notification of claimants, etc., had been met.
This contention is without merit as to a good-faith purchaser at such a sale. UCC § 7-308(4) provides that "A purchaser in good faith of goods sold to enforce a carrier's lien takes the goods free of any rights of persons against whom the lien was valid, despite noncompliance by the carrier with the requirements of this section." (Emphasis supplied.) This section is intended to give the carrier an enforcement procedure of its lien coextensive with that of the warehouseman in this type case (Comment, UCC § 7-308, 1962 Official Text), and the provisions of subsection 4 above are intended to confirm the title of good-faith purchasers at foreclosure sales and to secure more bidding and better prices. Comment 2, UCC § 7-210, 1962 Official Text. The evidence is undisputed that defendants here were purchasers in good faith as defined by UCC § 1-201 (19), and no error appears.
2. Remaining enumerations of error, even if *34 meritorious, would not require reversal in view of the above disposition.
Judgment affirmed. Pannell, J., concurs. Evans J., concurs specially.
EVANS, Judge., concurring specially.
Plaintiff filed an action in trover and the judge, sitting without the intervention of a jury, rendered a judgment in the lower court for defendant, and plaintiff appeals. The majority opinion in effect holds that because the undisputed evidence shows the property in question was sold under a carrier's lien and purchased by defendant, this precludes all other inquiry into title to the property.
Enumeration of error number two complains because the trial court refused to allow proof that defendants were in possession of the property, albeit this was admitted by them in their pleadings. The other enumerations of error are of similar import, that is, no advantage could be gained by plaintiff if the premise of the majority opinion is correct to the effect that the sale under carrier's lien, under Code Ann. § 109A-7-308 (4) of the Uniform Commercial Code passed absolute title to the purchaser.
I concur in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363502/ | 232 Ga. 99 (1974)
205 S.E.2d 188
SMITH
v.
THE STATE.
28764.
Supreme Court of Georgia.
Submitted March 25, 1974.
Decided April 16, 1974.
*101 W. J. Stanley, for appellant.
Lewis R. Slaton, District Attorney, Richard E. Hicks, Morris H. Rosenberg, Thomas W. Hayes, Arthur K. Bolton, Attorney General, Robert S. Stubbs, Executive Assistant Attorney General, Richard L. Chambers, William F. Bartee, Jr., Assistant Attorneys General, for appellee.
NICHOLS, Presiding Justice.
1. Two enumerations of error complain of the failure of the trial court to instruct the jury that the burden was on the defendant to prove by a preponderance of the evidence the truth of the defenses (insanity and justification) and that the failure to so charge resulted in the jury being instructed that the defendant must prove such defenses beyond a reasonable doubt since the only charge as to burden of proof dealt with the burden of the state to prove the defendant's guilt beyond a reasonable doubt. This contention is without merit. The trial court properly instructed the jury that the burden was on the state to prove the defendant's guilt beyond a reasonable doubt, and that unless the jury found from the evidence that the state had proved the defendant's guilt beyond a reasonable doubt it would be the duty of the jury to acquit. The jury was so instructed on at least six occasions during the course of this charge. The jury was also instructed, as to insanity and justification, if they believed from the evidence [not the state's or the defendant's but from the evidence presented] that either situation existed the defendant should be acquitted. Accordingly, at no point in the course of the court's instruction was the burden of proof shifted from the state to the defendant by the charge.
Both the state and the defendant rely upon the recent decision in Grace v. State, 231 Ga. 113 (200 SE2d 248). While the majority opinion in that case would *102 authorize a charge on the "preponderance of the evidence" to support such defenses, yet it does not require such a charge. Under the dissents in that case such a charge as contended for by the defendant would have been error.
2. The defendant contends that after charging generally that a killing is justified in defense of the defendant or a third person the trial court limited such instruction in this case to defense of the defendant only and thus eliminated any justification for the homicide in defense of the woman living with the defendant or the three children who were asleep in the apartment.
The defendant, who testified under oath, related the events leading up to the time when the deceased left the apartment, which testimony was in material part the same as that adduced by the state.
After the victim left the apartment the defendant followed him and the encounter took place which left the victim dead as a result of the shotgun blast.
Code Ann. § 26-902 (a) provides: "A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other's imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person, or the commission of a forcible felony." (Emphasis supplied.)
Prior to the time the victim left the apartment a knife had been taken from him at gun point. With the removal of his weapon the imminent danger had passed. As the defendant testified, he followed the victim from the apartment because he was afraid the victim or his friends would later return to the apartment. Then when he caught up with the victim he shot because the victim "drawed back with his right, I couldn't tell what it was, but there was a reflection, I could see something in his hand and that is when he came down with it."
At the time of the shooting the only imminent danger, if such danger existed, was to the defendant and *103 not to any third person. The court's instruction was not error. Compare Morton v. State, 190 Ga. 792, 802 (10 SE2d 836) and citations.
3. The evidence authorized the verdict and the trial court did not err in overruling the defendant's motion for new trial for any reason enumerated.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363504/ | 131 Ga. App. 46 (1974)
205 S.E.2d 124
GARVIN
v.
LOVETT.
48841.
Court of Appeals of Georgia.
Argued January 15, 1974.
Decided February 5, 1974.
Rehearing Denied February 21, 1974.
*48 Richard A. Rice, for appellant.
Powell, Goldstein, Frazer & Murphy, Eugene G. Partain, Robert Travis, John A. Sherrill, for appellee.
DEEN, Judge.
1. (a) The right of action of a husband for the tortious homicide of the wife under Code § 105-1306 accrues at the time of the death of the wife from the injuries inflicted by the defendant. "The right which the statute gives... can not exist until [s]he is actually dead." Western & A. R. Co. v. Bass, 104 Ga. 390 (30 SE 874). "The *47 gist of the action is not the injury suffered by the deceased, but the injuries suffered by the beneficiaries." Thompson v. Watson, 186 Ga. 396, 404 (197 SE 774). It follows that the plaintiff, who married the decedent after she suffered fatal injuries at the hands of the defendant and prior to her death, was entitled to maintain an action for the full value of her life.
(b) This comports with the general law relating to wrongful death. Since the right of action is determined by law, nothing not so stated in the statute should be a condition precedent to the right of action. Glasgow v. City of St. Joseph, 353 Mo. 740 (184 SW2d 412). The existence of beneficiaries can be determined only as of the time of death. 25A CJS 648, Death, § 33 (2). This text also states (p. 657) that "it is immaterial that one claiming as a wife or widow was not married to deceased until after the injury from which the death resulted." See also 22 AmJur2d 642, Death, § 49; Radley v. Leray Paper Co., 108 N. E. 86.
2. It is not true that this decision would under any circumstances permit a double recovery. Code Ann. § 105-1309 provides that the administrator or executor of the decedent may sue for the full value of the decedent's life, for the benefit of the next of kin, only where there is no other person entitled to sue. Nor is the decision to be controlled by such cases as Georgia N. R. Co. v. Sharp, 19 Ga. App. 503 (91 SE 1045); Wrightsville &c. R. Co. v. Vaughan, 9 Ga. App. 371 (71 SE 691) and like instances. Where the plaintiff marries, he takes the spouse in her condition at the time of the marriage, and is entitled to no action for loss of services or diminution of earnings due to a pre-existing condition. Nor is the situation the same as where the injured party, prior to demise, executes a release (Southern Bell Tel. & Co. v. Cassin, 111 Ga. 575 (36 SE 881); Morton v. Ga. R. & Elec. Co., 145 Ga. 516 (1) (89 SE 488)), or receives a settlement; in such a case the entire cause of action is wiped out and nothing remains to which the spouse's death action can attach.
The trial court erred in granting the defendant's motion for summary judgment.
Judgment reversed. Hall, P. J., and Stolz, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363507/ | 131 Ga. App. 380 (1974)
205 S.E.2d 916
SMITH
v.
GEORGIA POWER COMPANY.
48707.
Court of Appeals of Georgia.
Argued October 9, 1973.
Decided March 12, 1974.
Rehearing Denied March 26, 1974.
Bagby, Fudger & Foster, Arthur W. Fudger, for appellant.
Lane & Sanders, Thomas C. Sanders, for appellee.
PANNELL, Judge.
Appellee instituted condemnation proceedings to acquire an easement in two tracts of land. Tract 1 on the west side of the road was owned by appellant, and tract 2 on the east side of the road was owned jointly by appellant and his sister, Mrs. Mary Michaels. Following *381 a hearing a special master entered an award to both defendants, the sum of $3,000 including consequential damages as to tract 1, and $3,150 including consequential damages as to tract 2. A timely appeal to a jury in the superior court was filed by the appellant, Smith, only. Neither Mrs. Michaels nor appellee filed an appeal. The superior court ordered the special master's awarded sums disbursed, $3,000 to appellant Smith and $3,150 to appellant and his sister, Mrs. Michaels. At the commencement of the hearing before the jury in the superior court when the court called the docket, appellant's counsel replied, "Ready for the Condemnees." Thereafter, in his opening remarks to the jury, appellant's counsel stated that he represented both appellant and Mrs. Michaels and identified her to the jury as being seated at the counsel table with her brother. In his charge to the jury, the trial judge made repeated references to the "condemnees," without exception. The trial judge concluded his charge to the jury with the following: "I will have prepared a form for you to use to arrive at these two amounts. This form will be sent to you, `we the jury find in favor of the condemnees the sum of____(blank) dollars as just and adequate compensation for the property taken and damaged.' Where I have used the word blank you would fill in the amount that you find as that just and adequate compensation. `We find the sum of____(blank) dollars consequential damages.' There again you would fill in the amount that the twelve of you agree upon. When you have reached a verdict as to these two amounts, it should be signed by your foreman, notify your bailiff who will in turn notify the court and you will be allowed to publish it in open court. You may now retire to the jury room to my left." The jury returned to the jury room and the following occurred: "Counsel for appellant: Your Honor, I've prepared a little form of the verdict. You got the east side and it should be west side and we need to separate it into two tracts because of the ownership, I believe. Counsel for appellee: Art and I agreed over the weekend to do that. The court: You just forgot to tell me. Counsel for appellee: Yes sir, I guess so. The court: Well, I assume that there was no problem *382 about apportioning it or I would have done that earlier. You indicated that there... Counsel for appellant: ... There won't be any as far as we're concerned. Counsel for appellee: No ..." Immediately thereafter, counsel for appellee stated he had some objections to the charge, which he stated, at the conclusion of which counsel for appellant stated: "I have no objections, Your Honor." The jury returned a verdict finding in favor of the "condemnees" $3,212, as compensation for the property taken, and the sum of $800 consequential damages, a total of $4,012. This amount being $2,138 less than was awarded by the special master, the trial judge entered a judgment in that amount against appellant and his sister, Mrs. Michaels. Appellant and his sister then filed a motion to "modify the judgment" and a "motion for a new trial," the motions being filed by the attorney of record. The "motion to modify the judgment" moved: "the Court to modify the verdict of the jury returned on the 10th day of April, 1973 and the judgment of this Court entered on the 16th day of April, 1973 to show that the condemnor is not entitled to recover a judgment against either named condemnees on the following grounds: 1. That the verdict is contrary to law. 2. That condemnee Mary Lorene Smith Michaels did not appeal the award of the Special Master entered on the 7th day of December, 1970 and the Order of this Court entered on the 9th day of December, 1970 and condemnor is not entitled to recover any amount from her. 3. That the verdict and subsequent judgment does not distinguish between the amounts apportioned to either named condemnee and said amounts cannot be apportioned. 4. That condemnor did not appeal the award of the Special Master and is bound by the said Special Master's award. 5. That the condemnor's petition along with the award of the Special Master distinguishes between the two separate tracts of land designated as Tract No. 1 and Tract No. 2; whereas, the verdict and judgment of this Court does not do so. Wherefore, the named condemnees pray that this motion to modify the judgment be sustained and that said judgment be modified to show that the condemnor is not entitled to recover any amount from either said named condemnee."
*383 The "motion for new trial" sought the grant of a new trial "on the grounds that the verdict is contrary to law and that said Mary Lorene Smith Michaels did not appeal the award of the Special Master entered on the 7th day of December, 1970 and the Order of this Court entered on the 9th day of December, 1970, and the verdict of the jury and judgment of this court cannot be entered against her." Both motions were overruled by the trial judge in the following language: "Condemnees' motion for new trial and motion to modify the judgment having come before the court as scheduled and the court having heard argument from counsel for all parties involved and the court having further considered the record of the trial of said matter, and having further considered the conduct of and appearances at the trial by the parties hereto and their counsel, It is Hereby Ordered and Adjudged that the condemnees' motion for new trial and motion to modify the judgment be and hereby are denied and overruled." A notice of appeal from the overruling of these motions was filed by Robert J. Smith, Jr., alone, as one of the condemnees below. His enumerations of error are as follows: "1. The court erred in entering a judgment in favor of appellee when appellee had not timely appealed the award of the Special Master. 2. The court erred in failing to charge the jury that they should return a verdict separating the two distinct tracts of land which had been condemned. 3. The court erred in entering a judgment jointly against appellant and Mary Lorene Smith Michaels. 4. The court erred in refusing to modify its judgment or grant a new trial." Held:
1. Appellant enumerates that the court erred in entering the judgment in favor of appellee when appellee had not timely appealed the award of the special master. Appellant contends that since condemnor appellee had not entered an appeal to a jury on the question of value or damages for the taking, the jury could only increase the award but could not reduce it, citing Commonwealth Dept. of Highways v. Berryman (Ky.) 363 S. W. 2d 525, sustaining such a contention under the Kentucky statutes relating to condemnation. The Georgia statute has been construed to the contrary to the effect that "[a]n appeal by either party entitled both parties to a de novo *384 determination of the issue." Liberson v. City of Atlanta, 98 Ga. App. 255, 256 (105 SE2d 376). See also Ga. L. 1894, p. 98; 1967, pp. 143, 147 (Code Ann. § 36-601); Ga. L. 1957, pp. 387, 396 (Code Ann. § 36-614a); Ga. L. 1957, pp. 387, 388 (Code Ann. § 36-602a).
2. Appellant complains that a joint money judgment against appellant and Mrs. Michaels was not authorized because she did not enter an appeal from the award of the special master to a jury in the superior court. Assuming, without deciding that Mrs. Michaels was not a party to such appeal and that the verdict could not legally affect her rights to keep the amount she took down on the order of the court, that is a matter about which she makes no complaint in this court as she entered no appeal to this court from the overruling of her motion to modify the judgment (ground 2) and her motion for new trial, both of which raised this very question pertaining to the error of rendering a judgment against her under these circumstances. Therefore, any error as to Mrs. Michaels is not a matter presented to this court for review and is not a matter about which appellants may complain but about which she alone can make complaint. See Lamar v. Lamar, 118 Ga. 684 (1) (45 SE 498).
Should we assume that because Mrs. Michaels did not appeal to the jury in the first instance she became no longer a party to the condemnation case and would, therefore, be precluded from objecting to the judgment against her and from entering an appeal from the denial of her motions objecting thereto (entered and filed in the condemnation case of which she had been a party) then, and in that event, this court would likewise be powerless to reverse the trial judge on her behalf and grant relief to her, even though the judgment as to her be erroneous. Under these circumstances her remedy would be an affidavit of illegality in the event the judgment is sought to be enforced upon her by execution; or by motion to vacate and set aside the judgment as against her.
3. The appellant Smith has not pointed out or presented to this court any reason as to why, or how, or in what manner, Mrs. Michaels being a party to the judgment is injurious or harmful to him, or even an error *385 as to him.
Appellant, of course, contends that the rendering of a verdict in a single sum for both pieces of property rather than a separate sum as to each, and the entering of the judgment necessarily following the verdict in this regard, makes it impossible to apportion the amount which is to be reimbursed the condemnor as between the respective pieces of property. We might add it even makes it impossible to determine whether the damage allowed as to tract 1 owned solely by appellant Smith, or tract 2 owned in common by appellant and Mrs. Michaels was reduced or raised, or both reduced, or only one reduced, and if so, which one. This is what creates the appellant Smith's dilemma. That his sister is a party to the judgment has nothing to do with this problem. Eliminating her from the judgment would not solve this problem as it would still remain and is the basic problem about which appellant Smith complains. The existence of this problem is a situation about which this court would readily grant a remedy by ordering a new trial; except that to do so would violate a long-established rule of this court and the Supreme Court of this state, which should be applied equally to all appellants. This is the rule that the appellate courts will grant no relief to a party because of an error invited or induced by conduct or contention of the party, or his counsel, as this gives such party no cause for complaint. See Steed v. State, 123 Ga. 569 (2) (51 SE 627); Caesar v. State, 127 Ga. 710 (57 SE 66); Howard v. State, 115 Ga. 244 (41 SE 654); Realty Co. v. Ellis, 4 Ga. App. 402 (1) (61 SE 832). The maxim "consensus tollit errorem" applies in civil as well as criminal cases. Threlkeld v. State, 128 Ga. 660 (58 SE 49).
In Caesar v. State, 127 Ga. 710, supra, it was held: "In the trial of one charged with the offense of murder, the failure of the judge to charge upon the law of voluntary manslaughter will be no reason for reversing the judgment, when the counsel for the accused, in response to a statement by the judge addressed to him, that he did not think it necessary to charge the law of voluntary manslaughter, replied to the judge in such a manner as to indicate that he concurred in this view. A party can not complain of an error which his own conduct *386 induced."
It is obvious that the acquiescence of appellant's counsel in the charge of the court as to the form and contents of the jury verdict, together with other actions during the trial of the case, but particularly the former, is what has created the dilemma of the appellant. We must refuse, therefore, to grant any relief to him because of the error of which he himself or his counsel is the author. It is also obvious from what we have said above that the appellant cannot complain of the charge as given. The judgment of the trial judge is affirmed.
Judgment affirmed. Hall, P. J., and Clark, J., concur. Bell, C. J., Deen and Quillian, JJ., concur specially. Evans and Stolz, JJ., dissent. Eberhardt, P. J., disqualified.
QUILLIAN, Judge., concurring specially.
Every error in the charge and in the verdict and judgment were all induced by all counsel and acquiesced in by them. Errors of that type do not authorize an appellate court to grant a new trial.
As to the sister-joint owner of one of the tracts taken, she is, as Judge Stolz suggests, totally unaffected by any judgment for she was not a party to the trial. Therefore, the judgment as to her is unenforceable and void. But since all the errors appealed from were self-induced and acquiesced in by counsel, the parties have no standing to complain and are bound by the judgment.
I am authorized to state that Chief Judge Bell and Judge Deen concur with that which is written herein.
STOLZ, Judge, dissenting.
I must respectfully dissent from Divisions 2 and 3 of the majority opinion. Mrs. Michaels could not have appealed from the judgment below because she was not a party at the trial of the case.
*387 The condemnation was against two separate tracts of land. The ownership or interest in ownership of each tract was different. Condemnee Mary Lorene Smith Michaels, as owner of an undivided interest in tract 2, had the right of electing between accepting her portion of the special master's award, or appealing to a jury. She evidently chose the former, as no appeal to a jury was filed in her behalf. The condemnor did not appeal. Thus, as between Mary Lorene Smith Michaels and Georgia Power Co., the issues in the condemnation case came to an end when the statutory time passed without an appeal having been filed on her behalf. Thus, the rights of both condemnor and condemnee Mrs. Michaels were adjudicated as a matter of fact and law as to the compensation she was entitled to receive for her interest in tract 2. Nothing that occurred subsequently as to the result of the appeal filed by condemnee Robert J. Smith as to his separate interest in the property, could affect what had been judicially concluded between Georgia Power Co., as condemnor, and Mary Lorene Smith Michaels, as condemnee.
This result is not strange or unusual. It simply recognizes that parties with different interests in a condemnation case may have different opinions as to the advisability of an appeal. The statutes clearly recognize this.
"Where separate and distinct parcels of property are condemned in the same proceeding, the owner or owners of any separate and distinct property may file a separate appeal to a jury in the superior court, as herein provided for." Code Ann. § 36-615a (Ga. L. 1957, pp. 387, 396).
A review of the record in this case reveals a procedural nightmare. It does not take great imagination to determine the position the condemnees would be taking had the jury increased the special master's award. Be that as it may, the transcript reveals with unerring certainty that the case was tried and submitted to the jury on an erroneous theory that Mrs. Michaels was a party. The judgment of the court against her when she was not a party, is patently erroneous and should not stand. I would reverse and remand the case to the trial court for a new trial. The jury would then determine the *388 amount of compensation to which Mr. Smith would be entitled as owner of tract 1 and for his undivided interest in tract 2.
I am authorized to state that Judge Evans concurs in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363508/ | 131 Ga. App. 307 (1974)
205 S.E.2d 445
McROY
v.
THE STATE.
48908.
Court of Appeals of Georgia.
Submitted January 11, 1974.
Decided March 14, 1974.
*310 William Holley, Wayne Williams, for appellant.
George W. Darden, District Attorney, P. Samuel Huff, for appellee.
EVANS, Judge.
The defendant was indicted and convicted of theft by taking. He was sentenced to serve a term of 10 years. Motion for new trial, as amended, was denied. Defendant appeals. Held:
1. Any person against whom an indictment is found not affecting his life may demand a trial at the term when the indictment is found, or at the next succeeding term thereafter. Said demand shall be placed upon the minutes of the court. If defendant shall not be tried when the demand is made or at the next succeeding regular term thereafter, provided at both terms juries are impaneled *308 and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged. Code § 27-1901; Dickerson v. State, 108 Ga. App. 548 (134 SE2d 51); Dublin v. State, 126 Ga. 580 (55 SE 487); Newman v. State, 121 Ga. App. 692 (175 SE2d 144). While defendant contends he made a demand for trial, the minutes do not support him in this contention. The record is controlling, and this complaint is not meritorious.
2. The trial judge charged the jury as follows: "... it is the duty of the grand jury to indict or present the guilty party so they may be brought to trial," (emphasis supplied) and defendant urges that this was an intimation on the part of the court that he was guilty. This was error. Whether it was harmless error, or error requiring a new trial, it is not necessary to decide as the case is being reversed and a new trial given on other grounds. This error is not likely to be repeated when tried again.
3. The defendant was charged with theft by taking. His sole defense was that he had a right to purchase these goods, believing them to be damaged, and believing the sellers were authorized by the owner of the goods to sell same for the owner in this defense. Code Ann. § 26-1810 provides that an affirmative defense to a prosecution is afforded if defendant "acted under an honest claim of right to the property or service involved or under a right to acquire or dispose of it as he did." Nowhere in the charge of the court is this defense covered or even mentioned. It has been held many times that where the sole defense in a criminal case is not charged, even without a request, such failure constitutes reversible error. See Reed v. State, 15 Ga. App. 435 (1) (83 SE 674); Thompson v. State, 16 Ga. App. 832 (4) (84 SE 591); Henderson v. State, 95 Ga. App. 830 (99 SE2d 270).
4. Defendant contends a charge of receiving stolen goods is a lesser and included charge of theft by taking. But it is an equal charge, and the punishment is the same. See Code Ann. Ch. 26-18, § 26-1802, 26-1806. There was no error in refusing to charge on theft by receiving stolen goods.
5. Since it was not in the realm of possibility that the jury could have found the defendant guilty of taking *309 property of a value less than $100, the court did not err in failing to give this charge. This ground is not meritorious.
6. The court erred in failing to instruct the jury as to the form of their verdict that they might further recommend that defendant be punished as for a misdemeanor. Theft by taking (Code Ann. § 26-1802, 26-1812; Ga. L. 1968, pp. 1249, 1290, 1295; 1972, pp. 841, 842) is a reducible felony; and the court erred in failing to charge that the jury might recommend that defendant be punished for a misdemeanor, although the court was not required to follow this recommendation. See Code Ann. § 26-3101 (New Criminal Code; Ga. L. 1968, pp. 1249, 1334). Compare Ezzard v. State, 229 Ga. 465, 467 (192 SE2d 374); Echols v. State, 109 Ga. 508 (1) (34 SE 1038). See Braxley v. State, 17 Ga. App. 196, 198 (86 SE 425); Johnson v. State, 100 Ga. 78 (25 SE 940); Grizzle v. State, 78 Ga. App. 802 (1) (52 SE2d 561).
7. The court did not err in charging the jury in regard to the guilt or innocence of persons who did not directly commit the offense. Failure to charge the substance of Code Ann. § 26-802 was helpful to the defendant, and leaves him without standing to complain of such failure. If charged, the jury could have considered other aspects on which defendant could have been convicted. The court correctly charged on conspiracy, as the evidence authorized it.
8. The court should have fully explained the bifurcated trial authorized by Code Ann. § 27-2534 (Ga. L. 1970, pp. 949, 950; 1971, p. 902; 1973, pp. 159, 161), and that if the jury returned a verdict of not guilty the trial would end; but if a verdict of guilty was returned, the trial would proceed to the question of punishment. The omission of this explanation was erroneous, and as another trial will be held, the trial court should explain the bifurcated trial proceedings to the jury in its entirety.
9. For reasons stated above a new trial will be necessary.
Judgment reversed. Pannell, J., concurs. Eberhardt, P. J., concurs in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363519/ | 205 S.E.2d 752 (1974)
22 N.C. App. 156
STATE of North Carolina
v.
Frankie Eugene RUSSELL and James L. Tatum.
No. 7419SC263.
Court of Appeals of North Carolina.
June 19, 1974.
Certiorari Denied and Appeal Dismissed September 3, 1974.
*754 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.
J. Stephen Gray, Salisbury, for defendant Russell.
Richard F. Thurston, Salisbury, for defendant Tatum.
Certiorari Denied and Appeal Dismissed by Supreme Court September 3, 1974.
BROCK, Chief Judge.
Defendants contend the trial court committed error in concluding as a matter of law that the in-court identification of the defendants was proper.
Defendants first argue that the trial court committed error in failing to make specific findings of fact following a voir dire. While defendants admit there was an extensive voir dire conducted in regard to witness Turner's identification, defendants contend the trial court made no findings of fact to support its conclusion of law that the identification procedure was based upon observation of the defendants at the scene of the robbery, and not identification made at the North Kannapolis Police Station.
The witness Turner and Basinger testified that they had observed defendants at the scene of the robbery for a period of time which would allow them to unequivocally state that the identification of the defendants during the trial was based upon observations made at the scene, and not upon observation of the defendants at the police station on the date of the robbery, nor upon random selection of photographs of defendants prior to the preliminary hearing. No conflicting evidence was offered.
In the absence of conflicting evidence at the voir dire, it is not required of the trial judge to make findings of fact and enter them in the record, although it is a better practice. The failure of making such findings will not be deemed prejudicial error. State v. Gurkins, 19 N.C.App. 226, 198 S. E.2d 448.
Defendants contend the trial court committed error in allowing into evidence articles seized from defendants' car after it was stopped by Deputy Sloop. They also contend that a voir dire should have been held before admitting evidence seized in a search of defendant's car.
The evidence seized from defendants' vehicle consisted of a sawed-off .22 caliber rifle, an AM-FM radio belonging to witness Turner, and a blue cap worn by witness Turner prior to the robbery. The description of the vehicle employed at the robbery scene matched that of defendants' vehicle in detail. When Deputy Sloop, who was on the lookout for such a vehicle, observed and stopped the vehicle, there was sufficient probable cause to suspect that this vehicle was the one used in the robbery.
After the vehicle was stopped, Deputy Sloop observed the sawed-off .22 rifle in the lap of one of the occupants of the back seat. The defendants and the other male were then requested to sit in the deputy's vehicle until the North Kannapolis police arrived. In attempting to cut off the engine in the then-abandoned car, Officer Sloop found witness Turner's cap on a seat of the car. The hat contained a large amount of currency. The ignition switch and wiring in defendants' car had been removed from its proper place and was lying on the dash. The officers were unable to stop the engine. The vehicle was driven by an officer to the North Kannapolis Police Station, and as Officer Smith was assisting in efforts to stop the engine, he observed Turner's radio sitting on the back seat of the defendants' car.
It is not clear from the record that defendants were placed under arrest by Deputy Sloop when he requested them to sit in his vehicle until the North Kannapolis *755 officers arrived. Conceding, however, that an arrest was made by Deputy Sloop without a warrant, G.S. § 15-41 states that a peace officer may without warrant arrest a person when he has reasonable ground to believe the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody. From the evidence then before the Court, it was clear that the Deputy had reasonable grounds to believe that defendants had committed the felony of armed robbery. The evidence showing reasonable grounds to arrest was already before the court. Therefore, a voir dire to determine the validity of the arrest was not necessary. A warrantless search of the vehicle under these same circumstances would have been justified. However, it seems that no search was conducted; the evidence seized was in clear view of the officers. Therefore, a voir dire to determine the validity of the search was not necessary. The trial judge was correct in denying the motion to suppress the evidence, and in denying defendant's request for a voir dire.
Defendants contend the trial court erred in failing to dismiss at the close of State's evidence and at the close of all the evidence.
Motion to nonsuit requires the court to consider the evidence presented in the light most favorable to the State and take it as true, giving the State every reasonable intendment and inference to be drawn therefrom. We find there was sufficient evidence presented to require submission of the case to the jury. This assignment of error is overruled.
We have reviewed the trial judge's instructions to the jury and, in our opinion, the jury was instructed upon the applicable principles of law. We find no prejudicial error in the charge.
No error.
CAMPBELL and BRITT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363541/ | 131 Ga. App. 26 (1974)
205 S.E.2d 43
STATE FARM MUTUAL INSURANCE COMPANY
v.
POTTS et al.
48733.
Court of Appeals of Georgia.
Submitted November 8, 1973.
Decided February 5, 1974.
Rehearing Denied February 20, 1974.
*29 Fortson, Bentley & Griffin, Herbert T. Hutto, Savell, Williams, Cox & Angel, Edward L. Savell, Elmer L. Nash, for appellant.
Erwin, Epting, Gibson & Chilivis, Nickolas P. Chilivis, Davis & Davidson, Jack S. Davidson, Robinson, Buice, Harben & Strickland, Sam S. Harben, Jr., for appellees.
PANNELL, Judge.
This action originated when complaint was filed against Mrs. Mary Alice Gaddis and her son, Stanley Russell Gaddis, by Mrs. C. K. Potts and her three brothers, Charles, Vance and Jack Kesler, seeking damages for the wrongful death of their mother occasioned when a vehicle operated by her was struck by a car negligently operated by Stanley Russell Gaddis. As a result of various third-party complaints and other pleadings, State Automobile Mutual Insurance Company, uninsured motorist carrier, and State Farm Mutual Insurance Company, insurer of Mrs. Gaddis, became parties to the litigation. The issue of damages only was submitted to the jury, with all other issues to be decided by the court without a jury, all by agreement of the parties. The jury found for the plaintiffs in the amount of $10,000 for which sum the trial judge subsequently found the appellant to be liable and also ordered the payment of $3,000 attorney fees by appellant. Held:
1. Appellant enumerates that the trial judge erred in adjudging that appellant was liable under an automobile insurance policy issued to Mrs. Gaddis with an exclusionary indorsement specifically excluding coverage if her car was operated by her son.
Mrs. Gaddis was insured under appellant's standard automobile liability policy, which was to expire September 30, 1970. The policy defined the term "insured" to include "(3) If residents of the same *27 household, the relatives of the first person named in the declaration ..." The parties agree the term would include the minor son and that there is nothing in appellant's policy that requires the named insured to add an occasional operator, members of the family when they attain the age of 15 years, or when they start driving the family automobile. Despite the lack of necessity, on August 29, 1970, Mrs. Gaddis, recently widowed, went to State Farm Agent William Stoddard, with whom she had done business for years, and advised him that her son Stanley had obtained his learner's permit and that she wanted to add him as a driver. Mr. Stoddard advised her that Stanley would have to be added as an occasional operator and undertook to effectuate the addition of the son to the policy which was to be renewed October 1, 1970. On September 16, appellant billed Mrs. Gaddis for an additional $102.40 premium payable on October 15th to cover the addition of Stanley Gaddis as an occasional driver. On September 21st, Mrs. Gaddis advised Mr. Stoddard that she was no longer letting her son drive the car and she didn't want to pay the higher premiums. Mr. Stoddard advised Mrs. Gaddis, who was unskilled in business, that the only way she could accomplish a reduction in the premiums would be by the execution of a driver exclusion indorsement. This she did, and it became effective the same date. No reduction in the original premium to compensate for the reduction in risk was offered or made by appellant. The additional premium of $102.40 was canceled. On December 27th, while driving his mother's car, Stanley Gaddis was involved in the collision which forms the basis of this litigation. Appellant denied liability by virtue of the exclusionary indorsement and, upon demand, refused to defend.
Appellant argues that the modification was supported by a consideration to Mrs. Gaddis, i.e., cancellation of the additional premium of $102.40. Contra, appellees contend that there was no consideration for the driver exclusion agreement and indorsement and they are null and void. "A consideration is necessary for the valid modification of the coverage provisions of an insurance policy, whether the effect of *28 the modification is to extend or limit the risks against which the insurance affords protection." Dunn v. Utica Mutual Ins. Co., 108 Ga. App. 368, 369 (133 SE2d 60). Cited with approval in Adair v. American Liberty Ins. Co., 116 Ga. App. 805 (159 SE2d 174) and Georgia Mutual Ins. Co. v. Ragan, 122 Ga. App. 56 (176 SE2d 230). Mrs. Gaddis had sought the advice of State Farm Agent Stoddard and was advised that her son would have to be added to the policy as an occasional driver, even though this was not required and was not correct for her car already was insured. Therefore, it can hardly be said that she signed the "driver exclusion indorsement" "to induce the State Farm Insurance Company to insure the automobile..." Nor can it be said that her signing of the document was "in consideration of the premium at which the policy is written..." Mrs. Gaddis received no reduction in her premium for the reduction of her coverage. She, in reliance on her insurance agent, truly "paid more and got less!" We find that there was a lack of consideration and that the driver exclusion indorsement was, therefore, null and void.
2. Appellant next enumerates as error that the trial judge erred in awarding attorney fees. The parties to this litigation stipulated that if appellant was held liable under the policy that the issue of penalties and attorney fees would be submitted to the court for determination upon evidence submitted to the court. They also stipulated that all questions other than damages be submitted to the trial judge without a jury. The trial court made no finding as to attorney fees under Code § 56-1206, but did find "that a reasonable attorneys fees in this case for defendant Stanley Russell Gaddis and Mrs. Mary Alice Gaddis and bringing in State Farm Mutual Ins. Co. as a third-party defendant and all related legal matters is $3,000." These attorney fees as to amount were authorized by the evidence, and the rulings abovementioned made such an award proper.
3. Other enumerated errors are either disposed of by this opinion or are considered without merit.
Judgment affirmed. Eberhardt, P. J., and Stolz, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363545/ | 131 Ga. App. 96 (1974)
205 S.E.2d 110
LAWRIMORE
v.
SUN FINANCE COMPANY.
48517.
Court of Appeals of Georgia.
Argued September 5, 1973.
Decided February 12, 1974.
Rehearing Denied March 4, 1974.
Alfred C. Kammer, II, Lee Payne, for appellant.
Arnall, Golden & Gregory, H. Fred Gober, for appellee.
Hansell, Post, Brandon & Dorsey, Allen Post, W. Rhett Tanner, amicus curiae.
PANNELL, Judge.
This is an appeal by a borrower from the overruling of her motion to set side a judgment rendered against her, by default, in favor of a licensee under the Georgia Industrial Loan Act, made on grounds the loan instrument attached to the pleading was void, and the pleading, therefore, showed on its face that no cause of action existed. The grounds stated were (a) The contract to provide for "interest from maturity at the rate of 8% per annum," and (b) The contract provided for charges in excess of those permitted by the Act in providing that "failure to pay any installment or other sums when due hereunder shall, at the option of the holder hereof and without notice, render all instalments due and payable at once." The amount of the note was $2,064, payable in 24 instalments of $86.00 each. The instrument showed the cash advance to be $1,382.80 and added thereto were fees of $106.56, recording fee $1.00, and insurance $288.96 and 2 years interest of $284.68, each $86.00 instalment consisting of principal, etc., and interest which was unaccrued or unearned until the respective instalments became due each month. Held:
1. It was held in Lewis v. Termplan, Inc., 124 Ga. App. 507, 508 (184 SE2d 473) in a similar case under the Georgia Industrial Loan Act, "That the maximum interest for a 24-month note had already been calculated and included and could not, under Code Ann. § 25-315 (a) [Section 15 (a), Georgia Industrial Loan Act, Ga. L. 1955, pp. 431, 440] be discounted in advance, for which reason when the plaintiff opted to accelerate and claim *97 unearned interest on the otherwise unmatured instalments of November 5, 1970, through June 5, 1971, this amount was usurious and the instrument authorizing its collection is void under Code Ann. § 25-9903 [emphasis supplied] [Section 20, Georgia Industrial Loan Act, Ga. L. 1955, pp. 431, 444]." It is true that the record in the present case does not show on its face that the judgment obtained includes any usury; however, the note contains a provision authorizing its collection and this alone is sufficient to void the obligation. Section 16 of the Georgia Industrial Loan Act (Ga. L. 1955, pp. 431, 442; Code Ann. § 25-316) provides: "No licensee shall charge, contract for, or receive any other or further amount in connection with any loans authorized by this Act," than those therein provided. The last sentence of Section 20 of the Georgia Industrial Loan Act (Ga. L. 1955, pp. 431, 444) provides "Any loan contract made in violation of this Act shall be null and void." The statement in Lewis v. Termplan, supra, that "This plaintiff sought and obtained a judgment which, judged alone by the terms of the instrument, was valid," was not a holding that the judgment based on the instrument was valid but merely a statement that the judgment based on the instrument, considered without respect to the laws governing such instruments was valid.
2. The contract or note here involved contained the following provision: "Any provisions of this instrument prohibited by the laws of this State shall be ineffective to the extent such prohibition without invalidating any other remaining provisions of this instrument." To give this provision of the contract effect would nullify the provision of the statute above quoted and applied, and Section 16 of the Georgia Industrial Loan Act, supra, makes provision for just such an attempt when it provides that "No licensee shall divide into separate parts any contract for the purpose or with the effect of obtaining charges in excess of those authorized by this Act."
3. Having held that the contract is void for the reasons given, it is unnecessary to determine whether it may be void for other reasons.
4. The trial court erred in overruling appellant's *98 motion to set aside the judgment rendered.
Judgment reversed. Bell, C. J., Hall, P. J., Deen, Quillian, Evans and Stolz, JJ., concur. Eberhardt, P. J., and Clark, J., dissent.
EBERHARDT, Presiding Judge., dissenting.
For the following reasons I cannot agree with the conclusion reached in either division of the majority opinion, and must dissent.
1. The items included in this note are only those clearly authorized by the statute, arrived at by the method outlined in Robbins v. Welfare Finance Corp., 95 Ga. App. 90 (96 SE2d 892), which we have followed in McDonald v. G. A. C. Finance Corp., 115 Ga. App.361 (2) (154 SE2d 825); Clark v. Liberty Loan Corp. of Dalton, 116 Ga. App. 213 (156 SE2d 535), and citations; Gentry v. Consolidated Credit Corp. of Floyd County, 124 Ga. App. 597 (184 SE2d 692), and others. Interest is properly calculated upon the "face of the note" at 8 percent per annum during the contract period, and no excess interest is included. Code Ann. § 25-315. As to what constitutes the "principal amount" of a loan, see McDonald v. G. A. C. Finance Corp., 115 Ga. App. 361, 364, supra.
2. A provision in the note for payment of interest from maturity at 8 percent per annum does not render the obligation usurious under the Industrial Loan Act, for the lender's right to collect interest "is not limited to any time short of the date of payment." Hartsfield Co. v. Demos, 174 Ga. 43 (162 SE 138). It has long been the law that the rate of interest specified in the contract is to be applied after as well as before maturity. Code § 57-110; Silvey v. McCool, 86 Ga. 1 (4) (12 SE 175); Crockett v. *99 Mitchell, 88 Ga. 166 (3) (14 SE 118). And "where a contract specifies a rate of interest which is not beyond the percent. which the parties may legally contract for, if a judgment is rendered on such contract, it bears interest at the contract rate, and not at the rate which all contracts carry if no rate be stipulated therein." Cauthen v. Central Georgia Bank, 69 Ga. 733; Daniel v. Gibson, 72 Ga. 367; Neal v. Brockhan, 87 Ga. 130, 134 (13 SE 283); Central Bank & Trust Corp. v. State of Georgia, 139 Ga. 54, 60 (76 SE 587). It would be a strange doctrine indeed to say that while an obligation bears interest prior to maturity it can bear none afterward. This would make it possible for a debtor to obtain a reduced rate of interest on his obligation by simply ignoring the payments as they become due, thereby extending the time without adding to the total of his interest payment, while one who meets his obligations promptly would receive no such advantage. Both law and equity have ever looked with favor upon one who is diligent and faithful in keeping his obligations rather than upon him who is slothful and laggard in doing so. Even where a note specifies that a stated sum is to be paid on a certain date "without interest" the holder is entitled to interest after maturity. Jenkins v. Morgan, 100 Ga. App. 561 (1) (112 SE2d 23).
3. Provisions of the Industrial Loan Act provide for the collection of attorney fees and court costs. Code Ann. § 25-316.
4. The petition in this action sought the recovery of an unpaid balance of $850.06 and attorney fees of $127.50. "Unpaid balance" means unpaid balance on the principal. Lanier v. Consolidated Loan & Finance Co., 47 Ga. App. 148 (3) (170 SE 99); Bell v. Atlanta Cooperage Co., 121 Ga. App. 207 (173 SE2d 427). The judgment was entered for "Principal $850.06, and attorney fee $127.50." It does not provide for interest after maturity, or for future interest on the judgment, though it lawfully might have done so. Hartsfield Co. v. Demos, 44 Ga. App. 802 (163 SE 219).
5. The acceleration clause in the instrument is not proscribed by the statute and does not render the obligation void. While the Industrial Loan Act makes no reference, eo nomine, to acceleration clauses in *100 instruments to be executed by the debtor as evidence of or in security of the debt, there is a clear recognition of them found in Code Ann. § 25-316 where provision is made for attorney fees "incurred in the collection of any contract in default," and for actual and reasonable expenses of repossessing and storing any collateral pledged as security "for any contract in default." (Emphasis supplied.) Nowhere in the Act is there a prohibition of the clause. The provision in § 25-315 (a) that the obligation may be repayable "in one single payment or repayable in monthly or other periodic instalments" and the recognition that contracts do go into default clearly shows a legislative intent that the acceleration clause, as a generally. if not universally, accepted practice in the lending market, be permitted in these contracts.
A contrary conclusion would result in exposing the debtor to a suit for each maturing instalment which is unpaid, the expense of defending, if he desires a defense, and the accumulation of court costs in each action. Code § 20-1401. It is inconceivable that the General Assembly intended to impose so burdensome a result on a debtor. Nor do we believe that there was an intent to require a lender to proceed in a multiplicity of actions where the debtor simply fails to meet his obligations as they mature, for "both law and equity abhor a multiplicity of suits." Johnson v. Klassett, 9 Ga. App. 733 (72 SE 174). And what of the security? Must the lender stand by and await a maturing of the whole of the obligation while the debtor, ignoring the instalments as they fall due, continues the use and depreciation of it? It is wholly unreasonable to conclude that the General Assembly intended, by failing to mention the acceleration clause, outlawed it! We will not so construe the Act.
"Parties laboring under no disabilities may make contracts on their own terms ... [not] illegal or contrary to public policy." Yon v. City of Atlanta, 201 Ga. 800, 804 (41 SE2d 516). "Where contracts are not contrary to law, the courts are bound to enforce them as made." Cauthen v. Central Georgia Bank, 69 Ga. 733 (3). Public policy is to be found in the constitution and statutes and "A contract can not be said to be contrary to public policy *101 unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of the law." Camp v. Aetna Ins. Co., 170 Ga. 46, 50 (152 SE 41, 68 ALR 1166).
Neither the Industrial Loan Act nor any other statute of this state, so far as we have found, prohibits an acceleration clause in a note or contract. Indeed, it is consonant and compatible with our declared public policy in Code § 20-1401, and it was held in McRae v. Federal Land Bank of Columbia, 36 Ga. App. 51 (1) (135 SE 112) that "It is competent for parties to a promissory note to provide that in case default is made in the payment of any instalment of principal, or interest when due,...the whole amount, both principal and interest, shall at once become due and payable, or to provide that in such event the whole amount, both principal and interest, may, at the option of the holder of the note, become at once due and payable."
A contract is not to be held void as contravening public policy unless the matter is clear and free from doubt. Equitable Loan & Security Co. v. Waring, 117 Ga. 599 (1) (44 SE 320). How can it be concluded here that the acceleration clause is proscribed when the particular statute does not so assert and when it is fully in keeping with all other law of this State? "The construction must square with common sense and sound reasoning." Blalock v. State, 166 Ga. 465, 470 (143 SE 426).
"An intention contrary to the law should not be read into a contract by placing such a construction upon a provision therein, when the provision is just as susceptible of a construction that will show a lawful intention." Southern Loan Co. v. McDaniel, 50 Ga. App. 285, 286 (2) (177 SE 834), and citations; Mason v. Service Loan & Finance Co., 128 Ga. App. 828 (2) (198 SE2d 391); Roberts v. Allied Finance Co., 129 Ga. App. 10, 13 (198 SE2d 416). If there are words in the contract which are susceptible of two meanings, one of which renders the contract legal and the other would render it illegal, that which renders it legal must be adopted. Hartsfield Co. v. *102 Shoaf, 183 Ga. 378, 381 (191 SE 693), and citations. These cases dealt with industrial loan contracts, and the principle applies here. And see generally Code § 20-704 (4), providing that in construing contracts the courts should adopt that which will uphold rather than that which will strike them down.
We are not authorized to construe this contract to be one which the lender intended to use for the collection of unauthorized interest or to presume that it would do so, for all men are presumed to act and intend to act within the law and its requirements, until the contrary appears and it does not appear here. Wheeler v. Wheeler, 82 Ga. App. 831 (1a) (62 SE2d 579). Nor are we authorized to assume or to presume that the loan was made or intended to be made in violation of the provisions of the Act. On the contrary, we must presume the loan to have been intended to be valid in all respects and that use of the acceleration clause would not be so used as to bring it in violation of the Act. Indeed, nothing in this record indicates the contrary.
The majority, contrary to these rules of construction, proceeds to foresee, in spite of its absence in the record, that the acceleration clause could and might have been, if the lender had so elected, used in violation of the Act. This is wholly unjustified.
The acceleration clause in an industrial loan note has been recognized heretofore in Hartsfield Co. v. Demos, 174 Ga. 43, supra, where, "by reason of an accelerating clause in the contract, the loan matured and suit was brought and judgment obtained," as here. The court dealt with an industrial loan made under the Act of 1920 (Ga. L. 1920, P. 215) which, like that of 1955, as amended (Code Ann. § 25-301, et seq.) carried very strict limitations upon the making of these loans, but did not prohibit an acceleration clause.
An acceleration clause was dealt with in Lewis v. Termplan, Inc., Bolton, 124 Ga. App. 507, 509 (184 SE2d 473), where the court asserted that "there may be a valid exercise of acceleration provisions where only the principal balance [and earned but unpaid interest] is sought, but to attempt to accelerate the payment of that part of the instalments including unearned interest... *103 obviously gives a higher interest return on the use of the money than is authorized under the statute, and therefore nullifies the entire transaction." The holding in that case was that "the election to exercise such a provision as a means of collecting unearned interest plus other interest thereon constitutes usury and renders the instrument void."
In Roberts v. Allied Finance Co., 129 Ga. App. 10 (198 SE2d 416) we dealt with the acceleration clause again, and held that where the exercise of the clause foreshortening the contract period gives effect to an interest rate greater than that allowed by law, the contract is void. But we added: "We do not hold that there can be no acceleration of the debt we simply hold that the acceleration, combined with a claim of unearned interest, renders the obligation usurious and void under the provisions of the Industrial Loan Act."
We regard the holding of the majority opinion to be in conflict with these cases, which stand unreversed and not overruled.
6. Defendant interposed no defense to the suit in the court below, and judgment was entered reciting that "the plaintiff appearing to be entitled to recover of the defendants, judgment is rendered against them in the following sums: Principal $850.06, attorney fee $127.50."
"Where the judgment was for the principal only, a contention that the makers of the note had not been credited with unearned interest is without merit." McDonald v. G. A. C. Finance Corp., 115 Ga. App. 361 (4) (154 SE2d 825).
If evidence was introduced before the court on the hearing of appellant's motion to set the judgment aside no transcript thereof has been brought up on this appeal, and the burden is on the party alleging error to show it affirmatively by the record. Where there is nothing in the record to show the claimed error, we must assume that the judgment was fully supported and correctly entered. Shepherd v. Shepherd, 225 Ga. 455 (3) (169 SE2d 314); Allen v. Smith, 223 Ga. 265, 266 (154 SE2d 605).
This is true where, as here, the defendant failed to interpose a defense to the action and allowed the matter to go into default, thereby waiving all proof by the *104 plaintiff and entitling it to judgment "as if every item and paragraph of the petition were supported by proper evidence without the intervention of a jury." Code Ann. § 81A-155. This applies as to the amount of the unpaid principal of the obligation, and of the giving of the notice to bind the defendants for the payment of the attorney fees.
7. Nothing in this record or the pleadings shows a nonamendable defect appearing "upon the face of the record or pleadings." It cannot be said that the complaint "affirmatively shows that no claim in fact existed." Code Ann. § 81A-160 (d). The motion to set aside the judgment was properly denied.
The rule of the majority is rigid and monolithic, disregarding the normal, usual and long-established business practices of people engaged in a lawful business. There is great danger that it will strike down thousands of transactions involving millions of dollars and may inflict a mortal blow upon a useful segment of the economy. This results from the fact that "It has become fashionable to talk of the era of the consumer, and it appears that an increasing number of people, otherwise thought to be of good judgment, have become overcome by some sort of notion that every one but a consumer must act responsibly." Kock, Commercial Law, 25 Mercer L.R. 49, 53. And the fashion is to look under every rock, comb with a fine tooth comb, place every transaction under an electronic microscope, and find some basis, however minuscule, however lacking in harm, however strained in construction, for declaring void a loan made in good faith by a lawful lender to a borrower, who has utterly failed to repay or keep his obligation, because of a supposed or imagined conflict between the loan instrument and the provisions of the Act.
The judgment should be affirmed.
I am authorized to state that Judge Clark joins in this dissent.
ON MOTION FOR REHEARING.
PANNELL, Judge.
Appellee contends that the following controlling cases were overlooked by the court in rendering its *105 decision, to wit: McCrary v. Woodard, 122 Ga. 793 (50 SE 941), and Lyle v. Mandeville Mills, 68 Ga. App. 88 (22 SE2d 186). Neither of these cases was decided under a Small Loan Act, which prohibited the "contracting for" usury as a result of which the contract would be void. The usurious interest was merely written off or only interest to date of judgment was allowed. While these cases dealt with acceleration clauses, they did not deal with acceleration clauses which were prohibited by the Act under which the loan was made. These cases are, therefore, neither applicable nor controlling.
Garrett v. G. A. C. Finance Corp., 129 Ga. App. 96 (198 SE2d 717) did not decide or have involved therein the question presented and decided in the present case.
Motion for rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363561/ | 131 Ga. App. 370 (1974)
205 S.E.2d 921
QUEEN
v.
THE STATE.
48771.
Court of Appeals of Georgia.
Submitted November 7, 1973.
Decided March 1, 1974.
Rehearing Denied March 25, 1974.
Hudson & Montgomery, David R. Montgomery, for appellant.
Nat Hancock, District Attorney, for appellee.
CLARK, Judge.
This appeal is from the denial of a new trial motion as amended for a felony conviction for the offense of theft by taking.
The stolen item was a John Deere riding lawn mower found in defendant's possession shortly after the theft. The trial transcript includes a confession after appropriate Miranda warnings followed by a voluntary surrender of a serial plate which was retrieved from the place where it had been buried at defendant's residence. Defendant's unsworn statement indicated the act was the result of taking diet pills for a weight problem. He also stated: "I had no intention of stealing the mower. I guess I did. I didn't have any intention. I didn't have no use for it. It wasn't something that would be valuable enough to steal." (T. 16).
The enumerations of error include the general grounds and the following specific assignments: (1) The trial court erred in its charge on circumstantial evidence by using the words "to preponderate"; (2) The trial court erred in denying defendant's motion for mistrial when a state's witness on direct examination placed the defendant's character in issue; (3) In the sentencing phase the court erred in admitting evidence over objection of a prior conviction since defendant had not been informed of the state's intention in this respect until immediately before commencement of trial.
1. "After a verdict, approved by the trial court, the evidence must be construed by this court in its light most favorable to the prevailing party with every presumption and inference being in favor of upholding that verdict. [Cits.]" Green v. State, 123 Ga. App. 286, 287 (3) (180 SE2d 564). The law is well established to the effect that one *371 found in possession of recently stolen property has the burden of explaining that possession. Code Ann. § 26-1806. "[T]he question of whether the explanation of the possession offered by the defendant in his statement alone, that he found the property, is a satisfactory explanation, is a question for the jury." Chubbs v. State, 204 Ga. 762 (1) (51 SE2d 851). Therefore this court is bound by the jury's determination that defendant's explanation was not adequate and his admission plus possession of the stolen property support the verdict.
Defendant's enumerations of error on general grounds are without merit.
2. In appellant's initial brief attacking the use of the phrase "to preponderate" in the charge on circumstantial evidence appellant relied upon the ruling by this court in Wells v. State, 126 Ga. App. 130 (190 SE2d 106). There we ruled that "the charge as given could tend to mislead the jury into convicting the defendant on the basis of a preponderance of the evidence."
Thereafter our Supreme Court passed upon this same type charge in Pless v. State, 231 Ga. 228 (200 SE2d 897), affirming an armed robbery conviction including a life imprisonment sentence in which the same phrase, "to preponderate," was held not to be harmful error. The opinion pointed out that "This [Supreme] court in a number of cases has held that although it is the better practice in a criminal case not to charge the law on the preponderance of the evidence, to do so does not require a reversal of the judgment of the trial court. Williams v. State, 125 Ga. 302 (3) (54 SE 108); McLeod v. State, 128 Ga. 17 (5) (57 SE 83); Holmes v. State, 131 Ga. 806 (2) (63 SE 347); Howell v. State, 160 Ga. 899 (5a) (129 SE 436)." The court then concluded that "In view of the direct evidence authorizing the verdict of the jury, and the repeated instructions to the jury on the state's duty to prove the guilt of the appellant beyond a reasonable doubt, we are convinced that the use of the words `to preponderate' in the charge on circumstantial evidence did not confuse the jury, and was harmless error beyond a reasonable doubt."
Although appellant undertook by supplemental brief to convince this court that the instant case should be differentiated from the Pless ruling, the similarity *372 between the instant case and Pless requires us to follow the ruling of the Supreme Court. "The decisions of the Supreme Court shall bind the Court of Appeals as precedents." Code Ann. § 2-3708. Sub judice, the court charged that Queen's guilt must be proved beyond a reasonable doubt three times before and five times after mentioning the phrase "to preponderate." (T. 17, 18, 19, 20, 21). We also have in the instant case the defendant's confession, his admission of the theft during his unsworn statement, and his burial of the serial plate. All of this evidence is in addition to recent possession of the stolen item.
3. Defendant contends his character was erroneously placed in issue by the reply made by a state trooper in his response to the district attorney's question: "Tell the Court and jury exactly what you did, what you saw, what you know, and if you made any investigation what that investigation was." His reply was: "I was going to work. I was going to go to Athens from my home in Walton County and just after I went by the Bogart junction which is the intersection of 78 and 29 over at the Hess station in Clarke County this old truck driven by Jimmy Queen was pulling out of the driveway and proceeding to Athens. I went on down the road and I decided I wanted to talk to Jimmy about some other business that we had in regard to car stealing." (T. 7, 8).
Defendant's motion for a mistrial was overruled, but the judge properly decided the objectionable matter required inquiry as to its impact upon the jurors. This was done in the following matter upon the jury being returned to the courtroom: "Ladies and Gentlemen of the jury, the court will ask you to disregard and completely erase from your minds a statement that was made by this witness who was not permitted to conclude his statement and was stopped in the middle. I want to ask you if you can erase it from your minds. He testified that he had met this boy and was going to stop him about some stolen cars. Can you erase it from your minds completely? If you can, nod your heads. (Jurors nod heads affirmatively.) So indicated by all of you, and don't consider it at all in your verdict." (T. 9).
Brown v. State, 118 Ga. App. 617, 620 (165 SE2d 185), *373 distinguishes the instant situation from the case where the prosecutor directly elicits the improper evidence. There our court said, "The matter of granting a mistrial is largely within the discretion of the trial court, but that discretion will be controlled when it is apparent that a mistrial was essential to preservation of the right of fair trial. Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in ruling the testimony out. Worthy v. State, 184 Ga. 402 (3) (191 SE 457); Stanford v. State, 201 Ga. 173, 186 (38 SE2d 823); Fitzgerald v. State, 82 Ga. App. 521, 525 (61 SE2d 666). This is true even if the illegal testimony has the effect of placing the defendant's character in issue (Carrigan v. State, 206 Ga. 707 (3) (58 SE2d 407); Eden v. State, 43 Ga. App. 414 (159 SE 134); Osteen v. State, 83 Ga. App. 378, 381 (63 SE2d 692)), especially when the testimony is volunteered by the witness and not directly elicited by the solicitor. Britten v. State, 221 Ga. 97, 102 (143 SE2d 176); Waldrop v. State, 221 Ga. 319, 322 (144 SE2d 372); Bedgood v. State, 100 Ga. App. 736, 741 (112 SE2d 430)." For similar situations where the Georgia Supreme Court affirmed denial of mistrial motions and the issuance of cautionary instructions, see Burns v. State, 191 Ga. 60, 74 (11 SE2d 350); Britten v. State, 221 Ga. 97, 102 (143 SE2d 176).
There is therefore no merit to the second enumeration of error.
4. Defendant contends error in the manner in which the state complied with the requirement of Code Ann. § 27-2534 whereby the state is required to make known to the defendant evidence that it plans to use during the sentencing phase in "aggravation." There was a three day hiatus between the plea of not guilty and the commencement of the trial. The requisite notice of the existence of a previous indictment and conviction that had occurred in 1969 was not given until the day the trial began. Defense counsel objected to the introduction of the certified copy on the ground that the notification was not timely. The objection was overruled. The document introduced was an indictment in two counts, one being for larceny of an automobile and the other for receiving *374 stolen goods. The indictment further showed the defendant was found not guilty as to the larceny charge but was found guilty on the receipt of stolen goods offense with the sentence being set at three years with the recommendation of misdemeanor punishment.
When the legislature created in 1970 our bifurcated procedure separating the sentencing phase from the trial portion dealing with guilt or innocence, the statute which is now codified as § 27-2534 provided for the admissibility of additional evidence "in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible." No time was specified as long as it was prior to trial.
Whenever the courts undertake to interpret the meaning of a statute we are required to "look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." Code § 102-102(9). In following this directive we recognize that the intention of the legislature obviously was to give the convicted defendant enough time to rebut or explain any conviction record. Even though we recognize that an accused would have knowledge of his personal history he should nevertheless be given sufficient opportunity to subpoena witnesses and reasonable time in which to obtain evidence that might be available by subpoena. Obviously the giving of notice on the same day as the commencement of trial is not sufficient for this purpose and does not meet the requirement of fair play and sound justice. In consideration of the old law, the evil and the remedy it was clearly the intention of the legislature in creating the bifurcated procedure to give a reasonable period of time in which the convicted person might develop extenuating evidence to meet the previous record.
Accordingly, this case is remanded for retrial limited to the sole issue of punishment. Lingo v. State, 226 Ga. 496 (1) (175 SE2d 657); Johnson v. State, 126 Ga. App. 757, *375 760 (191 SE2d 614).
Judgment affirmed in part; reversed in part. Hall, P. J., concurs. Evans, J., concurs specially.
EVANS, Judge., concurring specially.
I concur in the judgment in this case, which affirms as to conviction, and reverses as to the sentence. But I wish to point out that the defendant's character was put in issue by a state's witness, who testified he wanted to see defendant about some business he had with defendant as to car stealing. The trial judge naturally did not wish to have a mistrial, so he repeated the answer given by state's witness, calling it "stolen cars," inquired of the jurors if they could erase this remark from their minds, and each juror nodded his head affirmatively. But could they erase such pointed and damaging evidence from their minds? Unless each juror possessed the power of self-hypnosis, which is a talent bestowed begrudgingly and rarely on humans, they could not do so! Could you or I so shape and bend our minds as to eliminate, completely erase and shut out of our minds this testimony? All of us know we could not. And yet the Supreme Court of Georgia, as is pointed out by the majority opinion, has held that such a question by the court and such responses by the jurors cures the error! Far from it! If anything, the question increased the damage. While I am bound by those decisions cited by the majority, I feel that a new trial should be granted because of this error. Contrary to the majority opinion's assertion that the evidence was not responsive to the question, I respectfully show that the district attorney asked such an all-inclusive question, to wit: "Tell the court and jury exactly what you did, what you saw, what you know, and if you made any investigation, what that investigation *376 was," that it would have been almost impossible for any answer to be unresponsive under the breadth of the question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363759/ | 255 Ga. 356 (1986)
338 S.E.2d 860
ADAMS
v.
THE STATE.
42671.
Supreme Court of Georgia.
Decided January 17, 1986.
Reconsideration Denied February 18, 1986.
*360 Oliver & Oliver, Robert F. Oliver, Timothy P. Healy, for appellant.
Michael H. Crawford, District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, Staff Assistant Attorney General, for appellee.
HILL, Chief Justice.
Charles Adams was indicted for the murder of Chipper Brewer and for aggravated assaults upon Betty Mashburn, Marie Bennett and David Davenport. He was tried by a jury and found guilty on all counts. He brings this appeal.[1]
Adams' convictions arise out of an incident that occurred on the afternoon of May 3, 1984. Brewer was driving a pickup truck and was accompanied by the other three victims, one of whom, Betty Mashburn, was his common law wife. At about 4 p. m., Brewer stopped at a stop sign at the intersection of Fairview Church Road and Highway 76 in Union County. The defendant, driving his pickup truck and with his daughter in the passenger seat, pulled up behind Brewer's truck. These facts are undisputed.
The defendant, citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and relying on his testimony and that of his daughter, urges that the evidence was not sufficient for a rational trier of fact to have found beyond a reasonable doubt that he was guilty of murder.
We would agree, except that the defendant's reliance on his and his daughter's testimony is wholly misplaced. "Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable *357 doubt." Jackson v. Virginia, supra, 443 U. S. at 319. On appeal of a criminal conviction, the evidence is to be viewed "in the light most favorable to the prosecution" (i.e., in the light most favorable to the jury's determination that the defendant is guilty), not in the light most favorable to the defendant.[2]
The evidence, viewed in the light most favorable to the jury's determination, is as follows: When the defendant pulled up behind the victim's truck, he started revving his engine. The deceased responded by revving his engine. The defendant got out of his truck, walked to the driver's side of the deceased's truck, told the deceased he had no right to park in the road, cursed him, and invited him to get out and settle the matter. Davenport and the deceased got out of the truck and the defendant knocked the deceased to the ground.[3]
When Davenport and the deceased started to get back into the truck, the defendant knocked the deceased to the ground again. As the deceased was getting into his truck, the defendant got his pistol from his truck and fired several shots into the deceased's pickup truck, breaking its windows.[4] The defendant then walked to the driver's side of the deceased's truck and fired the shot which caused the deceased's death. A passing motorist corroborated parts of the surviving victim's testimony.
1. Having reviewed the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S., supra. This enumeration of error therefore provides no ground for reversal.
2. In his second and third enumerations of error, the defendant complains of instructions given to the jury on impeachment of witnesses. As to the first of these, viewing the instructions and charge as a whole, we find no error. Ward v. State, 239 Ga. 205, 207 (236 SE2d 365) (1977).
The trial court also charged the jury: "Now in considering whether witnesses have been discredited, you want to consider whether or not they have been impeached. A witness may be impeached *358 in a number of ways, for instance a witness may be impeached by disproving his testimony by the testimony of other witnesses. Another way to impeach a witness is to introduce evidence of prior inconsistent or contradictory statements made by him as to matters relevant to the case. Once a witness has been successfully impeached his testimony shall not be believed unless it is sustained by other competent evidence. You the jury are always the final judge as to whether a witness has or has not been successfully impeached; that matter is always for you to decide." (Emphasis supplied.) The defendant attacks the emphasized language as invading the province of the jury, and for being vague and ambiguous in not specifying what is meant by "other competent evidence."
The charge is not in accord with the law. OCGA § 24-9-85 (a) provides: "When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury. The credit to be given a witness's testimony where impeached for general bad character or for contradictory statements out of court shall be for the jury to determine." OCGA § 24-9-85 (b) provides: "If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence." See Fugitt v. State, 251 Ga. 451 (1) (307 SE2d 471) (1983); see also Alexander v. State, 247 Ga. 780 (4) (279 SE2d 691) (1981). The pattern jury charges undertake to clarify this matter. Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases, pp. 38, 39 (1984).
It may be that the trial judge's charge was taken from Pike v. Greyhound Bus Lines, 140 Ga. App. 863, 864 (232 SE2d 143) (1977), which is an oversimplification of a charge approved in Davis v. Newton, 217 Ga. 75 (3) (121 SE2d 153) (1961). In any event, the jury found that the defendant and his daughter were successfully contradicted as to material matters, as opposed to other matters, OCGA § 24-9-85 (a), supra, the jury was repeatedly instructed that it was the exclusive judge of the credibility of witnesses and, viewing the charge as a whole in light of the facts of this case, we find no reversible error.
3. In his fourth and seventh enumerations of error, the defendant objects to the "malice shall be implied" language of the statutory definition of murder as burden shifting. OCGA § 16-5-1 (b). In fact, the trial court recharged the jury at the state's request, correcting the language to "malice may be inferred" so as to avoid any conflict with Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979). There is no error in the substituted language, "malice may be inferred." House v. State, 252 Ga. 409, 412 (314 SE2d 195) (1984); see also Walden v. State, 251 Ga. 505 (1) (307 SE2d 474) (1983). Thus, these enumerations do not require a new trial.
4. The defendant's complaint that the trial court committed reversible *359 error in initially charging "let's do everything we can to reach a verdict because as you know we've spent two long days on this case and it's important to this county, to the defendant, to the family of the deceased as well as all the people that've been involved in this thing, that this matter be finalized," may also be answered by looking at the charge as a whole. This plea did not amount to an instruction to the jury to consider the expense of a trial in their deliberations as in Driver v. State, 155 Ga. App. 726, 728 (272 SE2d 580) (1980), relied upon by the defendant. Nor did the charge as a whole apply unnecessary pressure for a unanimous verdict as the above quoted clause was preceded in the same sentence by: "I would encourage you when you go to the jury room not to immediately take a positive, unflinching, unmoving, unmovable stand but approach your deliberations with caution, being interested in what your fellow jurors have to say, be openminded as to receiving their thoughts about this case and . . . [already quoted]."
Although the instruction does not caution the jurors not to surrender honest convictions in order to be congenial, see Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases, p. 20 (1984), the jury was charged as to the state's burden of proof beyond a reasonable doubt and as to the necessity for a unanimous verdict. Moreover, the instruction challenged here was not addressed to a split jury, and therefore was not coercive and not reversible error.
5. The defendant's final enumeration of error is that the trial court erred in overruling his motion for new trial for the reason that the jury returned a general verdict of guilty of murder, and failed to specify whether he was found guilty of malice murder or felony murder. There was no objection to the form of the verdict.
This problem was first identified in Reed v. State, 238 Ga. 457 (7) (233 SE2d 369) (1977). Since that time, it has been a recurring problem. See cases collected in Walker v. State, 254 Ga. 149, 161 (327 SE2d 475) (1985) (Hill, C. J., concurring). In Dillard v. State, 251 Ga. 858, fn. 1 (310 SE2d 518) (1984), Justice Weltner pointed out that when a jury is charged on malice murder and on felony murder, the judge should instruct the jury to make its verdict clear by finding the defendant "guilty of murder with malice aforethought" or "guilty of felony murder" (or "not guilty").
A majority of this court has held however that where a defendant is charged with murder of one person and aggravated assault upon another person, the aggravated assault does not merge into the felony murder; i.e., the verdicts of guilty of felony murder as to one person and aggravated assault as to another person will be upheld. Satterfield v. State, 248 Ga. 538 (3) (285 SE2d 3) (1981). We therefore find no reversible error here.
Judgment affirmed. All the Justices concur.
NOTES
[1] The crimes were committed on May 3, 1984, and the defendant was convicted on October 10, 1984. He filed a motion for new trial on November 6, and the transcript of evidence was completed on December 15, 1984. The motion was amended May 14, 1985, and denied on August 1, 1985. The notice of appeal was filed on August 23, 1985, the record was docketed here on September 4, 1985, and after briefs were filed the case was submitted on October 18, 1985, without oral argument.
[2] Although Ridley v. State, 236 Ga. 147 (223 SE2d 131) (1976), was effectively overruled by Jackson v. Virginia, supra, the statement therein that ". . . the defendant's testimony and that of his witnesses can be disregarded by the appellate court if the fact finders' verdict shows that such testimony was not believed." (236 Ga. at 149) is still a correct statement of law.
[3] The defendant's testimony that he thought Davenport stabbed him in the back at this point, and his daughter's testimony that she saw a shiny object in Davenport's hand, may be disregarded.
[4] The defendant's testimony that he fired into the ground was rejected by the jury, as was his testimony that he did not intend to shoot anyone. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363697/ | 205 S.E.2d 130 (1974)
Franklin D. SPAULDING
v.
STATE WORKMEN'S COMPENSATION COMMISSIONER and Eastern Associated Coal Company.
No. 13417.
Supreme Court of Appeals of West Virginia.
May 21, 1974.
W. O. Bivens, Jr., Michael H. Lilly, Bluefield, for appellant.
H. G. Shaffer, Jr., Madison, for appellees.
CAPLAN, Chief Justice:
The claimant, Franklin D. Spaulding, was injured on September 10, 1971, while in the employ of Eastern Associated Coal Corporation. As described on the Employer's Report of Injury the claimant received a neck injury when a "Piece of chisel chipped off hitting injured in neck." Although the claim which claimant subsequently filed was determined to be compensable, inasmuch as there was no lost time in excess of three days, there was no payment of compensation on a temporary total disability basis.
Upon further consideration of the claim, the commissioner, by order dated May 4, *131 1972, granted the claimant a 1% permanent partial disability award. As a result of a protest of this award by the claimant, a hearing was held and doctors' reports were received for consideration by the commissioner. Thereafter on October 12, 1972, the commissioner, by order, affirmed the award of May 4, 1972. That order contained the following direction by the commissioner: "Either party has thirty days from receipt of this order within which to appeal therefrom. In the event an appeal is taken, appeal forms must be filed with the State Compensation Commissioner within thirty days from receipt of this notice."
Being dissatisfied with the commissioner's ruling and desiring to file an appeal, the claimant's counsel forwarded a letter, dated October 24, 1972, to the appeal board wherein he said: "Please be advised that the claimant in the above matter would like to appeal the one percent award made in this case." Counsel who wrote the above quoted letter was retained by the claimant on October 24, 1972. Some time subsequent to that date the claimant received the appeal forms from the appeal board and submitted them to his counsel. On December 12, 1972, said forms were submitted to the appeal board.
On the basis of Baker v. State Compensation Commissioner, 143 W.Va. 536, 103 S.E.2d 391, the appeal board held that the notice of appeal, not having been submitted on the forms prescribed by it, was not filed within the statutory thirty-day period and that the board was therefore without jurisdiction to consider it. Contending that the notice of appeal filed by the claimant through his counsel was adequate to confer jurisdiction on the appeal board the claimant prosecuted this appeal.
The sole question for resolution on this appeal is whether the Workmen's Compensation Appeal Board was divested of jurisdiction in an appeal from an order of the Workmen's Compensation Commissioner for the reason that the notice of appeal was conveyed by letter rather than by the form prescribed by said board under its rule making power.
The Workmen's Compensation Appeal Board has been granted rule making power by Code, 1931, 23-5-2, as amended, which, in pertinent part, provides:
The board shall, from time to time, compile and promulgate such rules of practice and procedure as to it shall appear proper for the prompt and efficient discharge of its business and such rules shall be submitted to the supreme court of appeals for approval, and if approved by such court shall have the same force and effect as the approved rules of procedure of circuit courts.
Pursuant thereto the board promulgated Rules of Practice and Procedure which were approved by this Court on May 5, 1966. Rule 1 thereof, designated Notice of Appeal, reads: "The notice of appeal to be filed with the Commissioner shall be in form or effect as follows, and shall be in quintuplet:". This notice is exactly what it purports to be, a notice by the claimant of his desire to appeal from an adverse order of the commissioner. Such notice does not contain any factual or argumentative matter relative to the merits of the claim. That is the function of a brief to be subsequently filed.
The claimant, being the aggrieved party in this case, is given a statutory right to appeal. Code, 1931, 23-5-3, as amended, where pertinent, provides: "Any employer, employee, claimant, or dependent, who shall feel aggrieved at any final action of the commissioner * * * shall have the right to appeal to the board * * *. The aggrieved party shall file a written notice of appeal with the compensation commissioner, directed to such board, within thirty days after receipt of notice of the action complained of * * *."
As aforesaid, the claimant, through his counsel, served written notice on the appeal board that he desired to appeal the *132 1% award. As above noted, the appeal board held that the appeal was not filed within the 30 day statutory period because it was not on the forms prescribed by it pursuant to its rule making power.
In the instant case it is undisputed that the notice of appeal, though not in the precise form prescribed by the appeal board, was submitted in behalf of the claimant within the statutory thirty-day period. The notice of appeal, if adequate, was therefore timely filed, the issue being the adequacy of the notice. Clearly, the appeal board has jurisdiction of this claim at the appeal stage. However, the board's ruling was based on a prior decision of this Court in Baker v. State Compensation Commissioner, supra, wherein it was held in point 2 of the syllabus: "The Workmen's Compensation Appeal Board is without jurisdiction to consider a purported appeal from an adverse ruling of the State Compensation Commissioner not filed with the State Compensation Commissioner in compliance with the provisions of 23-5-1b of the West Virginia Code, as amended, and the Rules of the Workmen's Compensation Appeal Board, as approved by this Court." Code, 1931, 23-5-1b, referred to in the above quoted syllabus point, refers to a thirty-day appeal period in a case in which the commissioner refused to reopen a claim.
The Baker case forms a proper basis for the appeal board's ruling. This appeal was granted by this Court, however, to reconsider the decision reflected by the above quoted syllabus point. A proper decision in this case requires, in addition to a reading of the pertinent statute and rules and regulations of the appeal board, an examination and thoughtful consideration of the purpose and spirit of workmen's compensation laws.
Reflecting the view of this Court that workmen's compensation laws were enacted for purposes beneficent to employees covered thereby and were therefore to be liberally construed to accomplish that purpose was a decision handed down a relatively short time after such laws were enacted by our legislature. In Poccardi v. Ott, 82 W.Va. 497, 96 S.E. 790 (1918), the Court, referring to compensation laws, succinctly remarked:
The statute itself relaxes the commonlaw and statutory rules of evidence, and abolishes the technical and formal rules of procedure other than those expressly retained, and requires each claim to be investigated in such manner as may best be calculated to ascertain the substantial rights of the parties and justly and liberally effectuate the spirit and purpose of its provisions. Its object is beneficent and bountiful; its provisions broad and generous. The intention and design of its enactment is to establish a mode for the prompt redress of grievances and secure restitution commensurate with the loss of the services of those upon whom depend for support and maintenance the persons named in the statute as its beneficiaries. Strict rules are not to obtain to the detriment of a claimant in violation of these wholesome purposes. The rejection of this claim seems to us not to accord fully with that spirit and object.
Another early case demonstrating this Court's policy of liberal interpretation of compensation laws is Culurides v. Ott, 78 W.Va. 696, 90 S.E. 270 (1916). Significantly, that case involved a compensation form which was not executed in precise accordance with the direction of the commission rules. Therein, this Court said, "In these circumstances, to refuse to allow the claim of the dependents ignores the liberality which the statute requires to effectuate its purpose." See also Sowder v. State Workmen's Compensation Commissioner, W.Va., 189 S.E.2d 674 (1972); Bragg v. State Workmen's Compensation Commissioner, 152 W.Va. 706, 166 S.E.2d 162 (1969); Morris v. State Compensation Commissioner, 135 W.Va. 425, 64 S.E.2d 496 (1951); Machala v. State Compensation Commissioner, 109 W.Va. 413, 155 S.E. 169 (1930); and Mercer v. Ott, 78 W. Va. 629, 89 S.E. 952 (1916).
*133 The legislature has expressly recognized the nontechnical nature of compensation laws and the beneficent purpose thereof by its enactment of Code, 1931, 23-1-15 which provides:
The commissioner shall not be bound by the usual common-law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in such manner as in his judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.
This section having been a part of the compensation law when the appeal board was created, it has been held that its provisions govern proceedings before that board as well as those before the commissioner. Vento v. State Compensation Commissioner, 130 W.Va. 577, 44 S.E.2d 626 (1947).
Applying the principles expressed in the decisions herein cited and the language of the above quoted statute to the instant case, we are of the firm opinion that the ruling of the appeal board was not justified and must be reversed. Wherein a statute provides that a notice of appeal must be submitted "within thirty days after receipt of notice of the action complained of", such provision, in relation to the time limit, is jurisdictional and the appeal board is without jurisdiction to consider any appeal filed after that specified time.
In the case at bar a notice of appeal was filed within the statutory thirty-day period although not on the form prescribed by the appeal board. Considering the purpose and spirit of compensation laws, as reflected above, it would not be in the interest of justice to permit such a formalistic rule to divest the appeal board of jurisdiction. We perceive no reason to consider the failure to file a particular form a jurisdictional matter. Inasmuch as we cannot distinguish Baker v. State Compensation Commissioner, supra, from the instant case and we discern no reason to continue its approval, the Baker case is overruled wherein it holds that the Workmen's Compensation Appeal Board is without jurisdiction to consider an appeal from an adverse ruling of the commissioner because the notice of appeal was submitted by letter rather than on a form prescribed by the board under its rule making power.
That the appeal board can by its rules and regulations require a notice of appeal to be given within thirty days is undisputed; nor can it be disputed that such board can require the submission of the appeal on its forms. We hold here that a reasonable notice in writing must be served within the statutory thirty-day period and if such reasonable written notice is so filed, whether it be on the form prescribed by the board or by letter, the appeal board shall have jurisdiction to consider the appeal. This decision in no manner deprives the appeal board of its authority to control appeal procedures and it may by formulation of proper rules require timely processing of the appeal.
In view of the foregoing the holding of the appeal board is reversed and the case is remanded with directions that it consider this appeal.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363688/ | 232 Ga. 27 (1974)
205 S.E.2d 197
LEGGETT et al.
v.
MACON BAPTIST ASSOCIATION, INC.
28495.
Supreme Court of Georgia.
Argued January 14, 1974.
Decided April 4, 1974.
Arthur K. Bolton, Attorney General, Richard L. Chambers, H. Perry Michael, Assistant Attorneys General, Sell, Comer & Popper, E. S. Sell, Jr., for appellants.
Mincey & Kenmore, David L. Mincey, Sylvia G. Haywood, David L. Mincey, Jr., for appellee.
INGRAM, Justice.
The controlling issue to be decided in this case is whether the real property owned and used by the Macon Baptist Association, Inc., is a "place of religious worship," as that term is used in the Georgia Constitution and implementing statute, so as to exempt the Association from the payment of ad valorem taxes. The trial court determined, on motion for summary judgment, that the Association is exempt, and the taxing authorities have now brought that judgment here for review.
I.
Article VII, Sec. I, Par. IV of the 1945 Constitution of Georgia (Code Ann. § 2-5404) authorizes the General Assembly to exempt from taxation "Places of religious worship or burial, and all property owned by religious groups used only for residential purposes and from which no income is derived ... all intangible personal property owned or irrevocably held in trust for the exclusive benefit of religious ... institutions, no part of the net profit from the operation of which can inure to the benefit of any private person." (Emphasis supplied.) The *28 implementing statute found in Code Ann. § 92-201 uses the same language to exempt property of a religious institution from ad valorem taxation although neither specifically defines "places of religious worship," the provision under which the tax exemption is claimed in the present case. These broad provisions have been interpreted generally to mean, however, that, "if the property is used primarily for either profit or purposes other than the operation of the institution, it is not exempt from taxes." Church of God v. City of Dalton, 216 Ga. 659, 662 (119 SE2d 11). We, therefore, draw from the Dalton decision the general rule that, in applying the exemption authorized by basic Georgia law to the facts in the individual case, we must look to the use of the property, not merely its ownership, and we must also look to the primary use of the property to determine whether it is exempt from taxation. In addition, we are mindful, in applying these principles, that all tax exemptions are to be strictly construed since taxation is the rule and exemption is the exception. Brandywine Townhouses, Inc. v. Joint City-County Bd. of Tax Assessors, 231 Ga. 585 (203 SE2d 222).
It is from this background that we proceed to the specific issue presented. Is the primary use of this property shown to be as a place of religious worship? The facts are not disputed and the trial court's clear and well-stated findings show the following:
"The Macon Baptist Association is served by an ordained Missionary Baptist Minister who is called to his position as Association Missionary like other Baptist Pastors. He is furnished a pastorium like any other Baptist Pastor. No commercial activities of any kind are carried on by the Association, and none are conducted in its building. The Macon Baptist Association is supported by its 47 associated Baptist Churches with their 34,000 members, by voluntary contributions, and its facilities are available to all of its associated churches for group meetings, for committee and departmental work of the association, and to any interested group for religious and worship purposes. Other than the administrative work of the association, there is a pastor's conference held once and occasionally twice a quarter on a Monday afternoon, *29 which is a religious service primarily for the fellowship and inspiration of the pastors of the associated churches, although laymen also attend, and the format includes prayer, the singing of hymns, the giving of testimonies, and the sermon. No business is transacted at the services. No religious service is conducted on Sunday mornings, but on Sunday afternoons various groups meet in the building and engage in worship, though this does not occur on every Sunday afternoon. Also, there are held in the buildings seminars promoting the work of the churches; meeting of heads of Women's Missionary Unions, Royal Ambassadors and Brotherhoods; conferences concerning day care nurseries, kindergartens, and senior citizen's clubs; and seminars for the American Baptist Theological Seminary for Negro ministers and laymen.
"The basic function of the Associational Missionary is coordination, training and promotion. He exercises these functions for the Association just as a pastor executes and carries out similar responsibilities as a minister in a local church. He also does personal counselling with individuals and has worship meetings with representatives of the Association.
"The Association has three employees. These include the Associational Missionary, his Secretary, and a week-day minister's consultant. In the performance of his administrative duties, the Associational Missionary visits churches, meets with various committees, counsels with pastors and other individuals with regard to church work, visits hospitals, especially with the ministers and their families and other people who may be within the leadership of the Associational structure, gets out communications and promotes all the missionary work of the Association. Records of the work performed are kept on file in the building.
"The building was formerly a 6-room residence purchased in 1969 and occupied by the Association in 1970. A partition was knocked out between two rooms and new lighting was installed, to form the chapel. This chapel occupies about 25 percent of the space in the building and is furnished with metal chairs, arranged in aisle form, hymn books, a Bible, a podium and a piano. *30 In addition to the chapel, there is a kitchen, restrooms, closets, a study for the Associational Missionary, an office for his secretary, and an office for the week-day minister's consultant. The exterior has the outside appearance of a residence, with a carport and a parking area. It does not have a cross on it. Prior to moving into this building, the Association worked out from the Ingleside Baptist Church. The sign outside the building says, `Macon Baptist Association office.' Sunday-School and Church services, in the common every-day language of Protestants attending religious services, are not held in this building."
II.
We have said we have no authoritative definition of the words "places of religious worship" under the law of Georgia. The phrase itself appeared in the Georgia Constitution of 1877, but the debates of the constitutional convention thereon shed no light upon the framers' intended meaning of these words, and the subsequent inclusion of the same provision in later Constitutions similarly added no illumination to their meaning. Prior decisions of the two appellate courts of our state are helpful but also do not provide a specific definition of "places of religious worship." In Amorous v. State, 1 Ga. App. 313, 316 (57 S.E. 999), the Court of Appeals said (with reference to a criminal statute making it a misdemeanor to carry a weapon to a place of public worship) that a place of public worship was not necessarily a church, but included "the gathering of individuals for public worship, at whatever place they may be." The case of Trustees of First M. E. Church v. City of Atlanta, 76 Ga. 181, 195, which was later overruled on its holding that churches were exempt from paving assessment, spoke of the purpose of the exemption as being the prevention of "impositions ... too onerous to be borne by worshiping congregations." (Emphasis supplied.) Wardens of St. Mark's Church v. Mayor of Brunswick, 78 Ga. 541 (3 S.E. 561), equated "religious worship" with "public worship." At best, these cases express a "feeling" that the words "religious worship" import a concept of a congregation assembling in a place open to the public to honor the Deity through reverence and homage. The word *31 "worship" alone is defined by Webster as an "act of paying divine honors to a deity; religious reverence and homage." In Black's Law Dictionary, it is defined in terms of "religious service" and "religious exercises." These definitions express, we believe, the generally accepted public notion of thinking of worship in terms of congregational worship services intended to express adoration and homage for the Deity. For the Christian Church Universal, this would include saying prayers, singing hymns, reading scriptures, and the giving of testimonies and sermons in a congregational setting. It would also include the traditional sacraments and rites of baptism, marriage, communion and funeral services.
The Macon Baptist Association capably argues that the activities carried on in this building constitute an essential part of their worship because service through good works is among the highest forms of love, homage and reverence to God. This argument is cogent and is undoubtedly correct. But its truth does not mean this particular property is used primarily as a "place of religious worship" under the findings of the trial court. While some religious exercises and services are held on the property, it is nonetheless a fact that the primary use of the property is for coordination, training and promotional work in furtherance of the administrative duties of the Association. This is conceded in the brief of the Association and was so found by the trial court. This use, though a vital aspect of the exercise of Baptist and other Christian faiths, clearly does not include congregational worship services and administration of traditional sacraments. It is this difference which requires the Association to be taxed in contradistinction to the Baptist churches themselves that are served by the Association.
Decisions of other jurisdictions do not authorize a different result in this case. There are language differences in our law and the law of other jurisdictions. Nevertheless, the decision we reach here is consistent with the view held generally in a number of other jurisdictions that exemptions from taxation of places of religious worship, unless stated otherwise, are intended primarily to apply to buildings where congregations come *32 together in a public forum for religious services. See, e.g., In re Walker, 200 Ill. 566 (66 N.E. 144); Masonic Building Assn. v. Town of Stamford, 119 Conn. 53 (174 A 301); Town of Woodstock v. The Retreat, 125 Conn. 52, 3 A2d 232 (1938); Evangelical Baptist &c. Society v. City of Boston, 204 Mass. 28 (90 N.E. 572); People v. Collison, 6 N.Y.S. 711; City of Philadelphia v. Overbrook Park Congregation, 171 Pa. Super.581 (91 A2d 310); Laymen's Week-End Retreat League v. Butler, 83 Pa. Super. 1; Whelon v. United States, 191 FSupp. 945 (Cust. Ct. 1961).
We conclude that the property of the Macon Baptist Association, Inc., here involved is not being used primarily as a place of religious worship within the meaning of the Georgia Constitution and statute authorizing the exemption of the property from ad valorem taxation. In summary, this conclusion is based primarily upon the finding that the property is not open as a public place of worship where a congregation gathers to practice the rites and ceremonies of its doctrinal theology, and to receive the sacraments of the church.
III.
The appellee also argues in this case that if taxation of the Association's building is required this will work a favoritism by the state toward those religious groups whose theologies do not require the kind of activity carried on by the Association as an essential part of the Baptist faith. The appellee asserts that this would violate the constitutional requirement that the state must remain neutral in its attitude toward religion under the First Amendment to the United States Constitution. See Engel v. Vitale, 370 U.S. 421 (82 SC 1261, 8 LE2d 601, 86 ALR2d 1285); Abington School District v. Schempp, 374 U.S. 203 (83 SC 1560, 10 LE2d 844); and Sherbert v. Verner, 374 U.S. 398 (83 SC 1790, 10 LE2d 965).
Religious groups do not enjoy a general immunity from the imposition of property taxes under the First Amendment to the United States Constitution. See Watchtower &c. Soc. v. Los Angeles County, 30 Cal. 2d 426 (182 P2d 178), cert. den. 332 U.S. 811. Cf. Walz v. Tax Comm. of New York, 397 U.S. 664 (90 SC 1409, 25 LE2d 697). Appellee's argument is essentially one which focuses on whether the denial of a religious tax *33 exemption to it would be discriminatory. It is sufficient to note in answer to this contention that there is no evidence in the record before us that the taxing authorities are discriminating against the appellee Association as opposed to other members of the class of religious associations similarly situated and subject to ad valorem taxation. The missionary work and the administration and coordination of those activities essential to appellee's religious beliefs and practices are not uncommon to other religious groups. The property of other religious groups, when used primarily for purposes similar to the use made by the appellee of its property here involved, would also be subject to ad valorem taxation. Thus, we cannot agree that the tax sought to be imposed on appellee in this case is discriminatory or otherwise violative of the First Amendment to the Constitution of the United States.
The trial court erred in granting summary judgment in favor of the appellee and in denying summary judgment in favor of the appellants.
Judgment reversed; remanded with direction. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363738/ | 177 Ga. App. 3 (1985)
338 S.E.2d 469
GABLER
v.
THE STATE.
70869.
Court of Appeals of Georgia.
Decided November 12, 1985.
Rehearing Denied November 20, 1985.
Herbert Shafer, for appellant.
Johnnie L. Caldwell, Jr., District Attorney, Paschal A. English, J. David Fowler, Christopher C. Edwards, Assistant District Attorneys, for appellee.
POPE, Judge.
Defendant Ronald E. Gabler was tried by a jury and convicted of the offense of aggravated assault. He appeals from the trial court's denial of his motion for new trial.
1. Although the evidence was in some dispute, the jury was authorized to find the following facts: Gabler and his wife, Mary, had separated in mid-November 1983. In the early afternoon of January 3, 1984, Gabler saw his estranged wife and followed her car to the neighborhood of the victim, Thomas R. Duff. Gabler drove past Duff's house and parked his car, returning with a camera. Mary and Duff were friends, and she was at his home as a guest for lunch. Since they were expecting another friend to join them, Mary had parked her car in the garage to leave room for another car in the driveway before entering the house. Gabler approached Duff's house through a neighbor's yard, looked in the garage and took a picture of Mary's car. Duff had walked from the house onto a sundeck to prepare lunch when he saw Gabler in the neighbor's backyard. Duff had never before seen Gabler and thought it suspicious that he was in the neighbor's yard when the neighbor was at work. Seeing Gabler leave the premises, Duff left in his car to find out what Gabler had been doing next door. A short distance away, as Duff pulled his car to the curb but left the *4 motor running, Gabler approached him. Duff exited the car asking Gabler what he had been doing around his neighbor's yard. Gabler replied, "Nothing," then began striking Duff's face with his fists and biting Duff's thumb. During the course of the altercation, Gabler knocked Duff to the ground, continued the blows to Duff's face and grabbed and squeezed Duff's throat. Gabler stood up and began to stomp and kick Duff in the forehead and temple area. He then dragged Duff back to the car and drove him back to his house where he dragged him up the stairs and inside the house, dumping him on the floor and taking his picture. Duff testified that he did not know his assailant's identity until the next day.
Officer Romeo of the Peachtree City Police Department answered a call and, upon investigation, found Duff with blood all over his face and head and appearing to be dead. Based upon his examination of Duff, Lieutenant Hughey of the Peachtree City Fire and Rescue Department, an advanced emergency medical technician, called in the Life Flight medical helicopter which transported Duff from Peachtree City to Georgia Baptist Hospital in Atlanta. Once there, Dr. Richardson, a neurosurgeon, examined Duff, ordered various tests, and placed him in the neuro-intensive care unit. Suturing by a plastic surgeon was required to close Duff's facial lacerations. Duff was monitored in the intensive care unit for a day, then moved to a hospital room until his discharge from Georgia Baptist Hospital on January 7, 1983.
Although Gabler does not raise on appeal the sufficiency of the evidence to support his conviction, we have reviewed the evidence in the light most favorable to the jury's determination. We conclude that any rational trier of fact could have found Gabler guilty of committing the offense of aggravated assault beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979); Harper v. State, 152 Ga. App. 689 (2) (263 SE2d 547) (1979). See also Thomas v. State, 237 Ga. 690 (I) (229 SE2d 458) (1976).
2. Trial counsel was replaced by a different attorney on appeal who amended the motion for new trial to include allegations that Gabler was provided ineffective assistance of counsel at trial. In his sole enumeration of error, Gabler asserts that the performance of his retained trial counsel deprived him of state and federal constitutional rights to effective assistance of counsel and a fair trial. We note at the outset that this enumeration contains the first and only mention of any violation of Gabler's rights under the Georgia Constitution. Appellate counsel has provided no citation to the particular portion of the state constitution claimed to be infringed; nor is a separate argument made based upon the Georgia Constitution. Thus, we make no separate examination of this claim. See Davenport v. State, 172 Ga. App. 848 (2) (325 SE2d 173) (1984).
At the hearing on the amended motion for new trial, the trial *5 court heard arguments and received evidence designed to support Gabler's claim that trial counsel provided him ineffective assistance in essentially two particulars: failing to investigate Duff's injuries by interviewing his physicians and gathering his medical reports, and failing to object to certain testimony at trial which Gabler now urges prejudicially impugned his character. We add that trial counsel appeared as a witness called by Gabler and gave lengthy testimony at the hearing on the amended motion for new trial. In denying Gabler's amended motion for new trial, the trial court found inter alia, that Gabler's trial counsel, a member of the Bar for over 30 years, had tried many criminal jury trials. Trial counsel represented Gabler at his trial in January 1985 and at his divorce trial some two months later and approximately one week before the hearing on the amended motion for new trial. The court found that trial counsel made tactical decisions concerning the character evidence later complained of and that Gabler insisted (rejecting trial counsel's advice) that a certain witness be called. Based upon the evidence at the hearing and the trial court's observations at trial, the trial court concluded that Gabler was afforded competent representation by an attorney of his own choice. We agree with the trial court's order and affirm the denial of Gabler's amended motion for new trial.
We are guided in our analysis of the issue raised by Gabler's enumeration of error by two decisions of the United States Supreme Court as well as by recent Georgia appellate opinions applying them. In United States v. Cronic, 466 U. S. ___ (104 SC 2039, 80 LE2d 657) (1984), "the court reiterated the maxim that the right to counsel is the right to effective assistance of counsel. Furthermore, the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. The court noted that because of the presumption that a lawyer is competent, the burden rests on the accused to demonstrate a constitutional violation." (Punctuation omitted.) Davenport v. State, supra at 851. Although the court in United States v. Cronic, supra, listed certain contexts in which prejudice is presumed, none are presented by the case before us now. Neither is a conflict of interest raised or shown herein. We therefore "follow the Supreme Court's two-prong test set forth in Strickland v. Washington, [466] U. S. ___ (104 SC 2052, 80 LE2d 674) (1984), in determining whether there has been actual ineffective assistance of counsel, thereby requiring the reversal of defendant's conviction. The defendant must show both that counsel's performance was deficient and that this deficiency prejudiced the defense. Strickland v. Washington, supra, [466] U. S. at ___ (104 SC at 2064); Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). In Strickland the Supreme Court approved Georgia's `reasonably effective assistance' standard enunciated in Pitts v. Glass, *6 231 Ga. 638 (203 SE2d 515) (1974). Strickland v. Washington, supra, [466] U. S. at ___ (104 SC at 2064); Smith v. Francis, supra, 253 Ga. at 783. Thus, counsel's performance will not be found to be deficient if it falls within the range of `reasonably effective assistance.' To perform within this range, counsel must make all significant decisions in the exercise of reasonable professional judgment. The reasonableness of counsel's performance is then considered in light of the totality of the circumstances, viewed from counsel's perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. Smith v. Francis, supra, 253 Ga. at 783. The defendant must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct. Regarding the second prong of the test, the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's unprofessional errors. Strickland v. Washington, supra, [466] U. S. at ___ (104 SC at 2068); Smith v. Francis, supra, 253 Ga. at 783." (Indention omitted.) Brogdon v. State, 255 Ga. 64, 67-8 (335 SE2d 383) (1985). See also Kornegay v. State, 174 Ga. App. 279 (329 SE2d 601) (1985).
With regard to the first prong, Gabler has failed to show that trial counsel failed to provide "reasonably effective assistance" or that he made errors so serious that he was not functioning as the "counsel" guaranteed Gabler by the Sixth Amendment. Strickland v. Washington, supra. Trial counsel's decision to forego investigation of Duff's medical records and the interview of his physicians falls into the category of trial strategy. Prior to trial he had interviewed Gabler as to Duff's injuries, read the police reports, and read the transcript of a prior hearing in the criminal action as well as one in the Gablers' then-pending divorce action. No medical reports of Duff's nor evidence from Duff's physicians was introduced by the State. Trial counsel's decision regarding Duff's injuries was made in an effort to minimize the effect of other testimony on this subject and was based upon his judgment that Gabler could be harmed by repeated mention of Duff's injuries and the treatment he received for them. Instead, trial counsel advanced the defense of mutual combat.
Even though we find no deficiency in trial counsel's performance in this regard, we will examine this allegation under the second prong; i.e., has Gabler shown a reasonable probability that the outcome of the proceedings would have been different had trial counsel introduced the medical evidence now urged by appellate counsel? After reviewing that evidence, we find no such reasonable probability that Gabler would have been acquitted based upon its introduction. First of all, the medical records included on appeal contain repeated references to such potentially damaging terms as possible cerebral concussion, *7 head injury, continuous EKG monitor, extensive contusions, and plastic surgery. Moreover, the admission of physician testimony to show that Duff suffered no life-threatening injuries would not have negated the State's case against Gabler nor called for a directed verdict of acquittal. The indictment upon which he was tried charged Gabler with unlawfully making "an assault upon the person of Thomas R. Duff, with his fists, the same being a deadly weapon." OCGA § 16-5-21 (a) (2) provides: "A person commits the offense of aggravated assault when he assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." There is obviously no necessity for showing that the injuries inflicted were life-threatening or for a showing that the infliction of such injuries actually did result in serious bodily injury.
The State was required to and did show that Gabler's fists were deadly weapons or were used against Duff in such a manner as were likely to result in serious bodily injury. Fists, per se, are not deadly weapons but may be found to be so by a jury depending upon the manner and means of their use. See Guevara v. State, 151 Ga. App. 444 (2) (260 SE2d 491) (1979); Quarles v. State, 130 Ga. App. 756 (2) (204 SE2d 467) (1974). See also Thomas v. State, 172 Ga. App. 70, 73 (1) (321 SE2d 808) (1984); Banks v. State, 169 Ga. App. 571 (1) (314 SE2d 235) (1984). The jury was provided and the record contains a photograph taken of Duff while he was hospitalized. Duff testified that during the beating he told Gabler repeatedly that he was killing him and that he could not breathe. It is undisputed that Gabler inflicted the injuries upon Duff and that hospitalization was required. Dr. Richardson, the neurosurgeon, made the decision to monitor Duff's condition in the neuro-intensive care unit. Further, Duff was kept as a patient in the hospital for three additional days after being moved from intensive care. Even if the medical testimony and Duff's records now urged by appellate counsel had been introduced at trial, the jury would still have been provided with ample evidence to authorize Gabler's conviction of aggravated assault.
Appellate counsel next argues that trial counsel was ineffective because he did not object to certain testimony which he claims attacked Gabler's character. Our review of the transcript reveals one instance in the direct testimony of Mary Gabler in which her somewhat unresponsive answer placed Gabler's character in issue by stating that Gabler had previously beaten her. However, trial counsel's failure to object to this line of questioning does not warrant a finding that he was ineffective counsel for Gabler. At trial Gabler relied upon several witnesses to establish his good character. In fact, Gabler testified at length repeatedly placing his character in issue and, over trial counsel's advice and the advice of the witness himself, Gabler insisted *8 upon calling the Gablers' minister as a character witness. The minister was then cross-examined to show that he had counseled with Mary Gabler because Gabler had abused her and that he had referred her to an organization for battered women. As in Davenport v. State, supra at 852, "[a] thorough review of the record in this case reveals that any indicia of prejudice to the defendant is totally lacking." We thus find no merit in Gabler's claim of ineffectiveness of trial counsel as raised on appeal.
Judgment affirmed. Deen, P. J., and Beasley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363733/ | 177 Ga. App. 13 (1985)
338 S.E.2d 694
BRANTLEY
v.
THE STATE.
70257.
Court of Appeals of Georgia.
Decided November 20, 1985.
Samuel A. Hilbun, for appellant.
Beverly B. Hayes, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.
POPE, Judge.
Defendant Michael DeWayne Brantley was convicted of aggravated sodomy and was sentenced to serve 20 years in prison. In this appeal defendant enumerates four errors.
1. Defendant's first two enumerations of error concern alleged prejudicial comments made by the prosecuting attorney during the State's opening statement. The record discloses that during the opening statement, the prosecutor stated that he intended to put the victim, a three-year-old boy, on the stand. Acknowledging that the trial judge would first have to qualify the three-year-old as a witness, the prosecutor told the jury that the victim "may not know the correct terminology, but when you ask him as I will do in this courtroom . . . `show me where your pee pee is,' [h]e'll point right there. And I will ask him . . . `where did DeWayne [the defendant] put his pee pee?' And he's going to point right there." Counsel for defendant objected on the ground that the prosecutor was going beyond the scope of the opening statement in that the prosecutor was "telling in detail what . . . he expects and it's not supposed to be in detail. It's supposed to *14 be in general terms." The objection was overruled. The prosecutor then stated that the victim's grandmother and his father would tell the jury that they both heard the victim state that the defendant hurt him by putting his "pee-pee" in his "doo-doo." No objection was made to this comment nor to the prosecutor's comment concerning confirming testimony by the victim's physician. On appeal defendant first alleges error in that these comments amounted to the prosecutor becoming a witness on behalf of the State and, in that capacity, giving unsworn hearsay testimony which was misleading and prejudicial. Defendant also alleges that the trial court erred in not interposing curative measures to remove the alleged prejudicial effect.
While opening statements by the prosecutor are limited to what the State expects to prove, Watson v. State, 137 Ga. App. 530 (1) (224 SE2d 446) (1976), he may state what he expects in good faith a witness will testify if the witness is going to testify. Hall v. State, 138 Ga. App. 20 (1) (225 SE2d 705) (1976). Any objection in this regard must be raised in the trial court before it can be heard on appeal. Cochran v. State, 213 Ga. 706 (2) (100 SE2d 919) (1957). Defendant did not object to the prosecutor's statements concerning the testimony of the grandmother, father, and family physician. Therefore, any alleged error as to this portion of the State's opening statement was waived. Harvard v. State, 162 Ga. App. 218 (2) (290 SE2d 202) (1982). Although defendant did object to the prosecutor's statements concerning the victim's testimony, the error enumerated on appeal is not the same as the objection urged at trial. It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. See 134 Baker St., Inc. v. State, 172 Ga. App. 738 (5) (324 SE2d 575) (1984); Craig v. State, 130 Ga. App. 689 (3) (204 SE2d 307) (1974). Defendant's first two enumerations of error present no ground for reversal.
2. Over objections by the defendant, the victim's grandmother and father were allowed to testify about statements the victim made to them several hours after the alleged incident occurred. Defendant argues that their testimony constituted hearsay. The State, on the other hand, contends that the testimony fell within the res gestae exception to the hearsay rule.
OCGA § 24-3-3 defines res gestae testimony as "[d]eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought. . . ." Of this exception, Chief Justice Bleckley said, "What the law altogether distrusts is not after-speech but afterthought. . . ." Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 775 (12 S.E. 18) (1890). In cases when a statement is narrative rather than exclamatory, "the circumstances must be closely scrutinized, because narrative is generally the result of afterthought." *15 Southern R. Co. v. Brown, 126 Ga. 1, 4 (54 S.E. 911) (1906). "If the declarations appear to spring out of the transaction if they elucidate it if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous." Mitchum v. State, 11 Ga. 615, 627 (1852). However, "[n]o precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed." Turner v. State, 212 Ga. 199, 200 (91 SE2d 501) (1956). "`The admissibility of such declarations does not depend upon any arbitrary time or general rule for all cases, but is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the requirements of being free from "all suspicion of device or afterthought." (Cit.)' [Cit.] It is also a well established rule of law that if the admissibility of evidence is doubtful, the rules of evidence require that the evidence be admitted and its weight and effect left to the jury. [Cit.]" Wallace v. State, 151 Ga. App. 171, 173 (259 SE2d 172) (1979). A trial court's determination that the declaration offered as part of the res gestae "is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous." Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982); see Richardson v. State, 172 Ga. App. 12 (2) (322 SE2d 66) (1984).
In the case at bar, the evidence shows that defendant was alone with the victim only between 1:45 p. m. and 3:00 p. m. About 3:00 p. m., defendant, his family, and the victim got in a van and went on various errands. The Brantleys returned the victim home about 6:00 p. m. that evening. When his grandmother picked him up, the victim began screaming. When asked twice what was wrong, he told her that "Wayne [the defendant] put his pee pee in my doo doo." The father testified that the victim repeated the same statement when he came in the room. Applying the standard in Andrews, we are unable to say that under these circumstances, the admission of testimony here was clearly erroneous. See, e.g., Busby v. State, 174 Ga. App. 536 (1) (330 SE2d 765) (1985); Sparks v. State, 172 Ga. App. 891 (1) (324 SE2d 824) (1984); Samples v. State, 169 Ga. App. 605 (4) (314 SE2d 448) (1984). Compare Sanborn v. State, 159 Ga. App. 608 (1) (284 SE2d 110) (1981), and cit.
3. Defendant's remaining enumeration of error alleges that the trial court erred by not allowing defense counsel to impeach the credibility of the hearsay declarant, the three-year-old victim. At trial the court examined the victim to determine whether he was competent to testify. The trial court ruled the victim was incompetent because the child did not understand enough about the situation or an oath to *16 testify. During the presentation of the defense, counsel for defendant asked Iris Brantley, mother of defendant, what kind of child was the victim. The State objected on the ground that the question was improper because defense counsel was trying to impeach the statements of the victim who did not testify. This objection was overruled but later objections to questions elicited about the victim's reputation for truthfulness were sustained. The trial court stated that the defendant could not delve into the truthfulness of a three-year-old child who did not testify.
Although there appears to be no precedent in Georgia which has addressed the right of a party (in this case, defendant) to impeach a hearsay declarant whose statements have been admitted into evidence as part of the res gestae, Georgia courts have allowed impeachment of dying declarations. See Johnson v. State, 169 Ga. 814, 825 (152 S.E. 76) (1930); Redd v. State, 99 Ga. 210 (1) (25 S.E. 268) (1896). Evidence of the bad character of the deceased as well as prior inconsistent statements are admissible to attempt to impeach the dying declarant. Redd, supra; Battle v. State, 74 Ga. 101 (2) (1885). The solemnity of the scene and hour gives the declarations of a dying man a sanctity of truth, more impressive and potential than the formalities of an oath. Hill v. State, 41 Ga. 484, 503 (1871). A res gestae statement, however, derives its credibility not from the declarant's veracity, but from its relation to the transaction out of which it springs. Mitchum v. State, supra at 624. Yet any hearsay statement that qualifies as an exception to the hearsay rule is introduced for its truth. This makes the credibility of the hearsay declarant important. The credibility of the declarant cannot be attacked by a party by cross-examination since the statement is hearsay. See OCGA § 24-3-1 (a). Impeachment, therefore, is the only method by which a party can attack the credibility of the hearsay declarant and, thus, the accuracy of the statement. To insure that all relevant evidence is brought before the trier of fact, we hold that a party must be provided with the opportunity to impeach the credibility of a res gestae declarant. Although this court is embarking on new ground in Georgia, our holding is consistent with the Federal Rules of Evidence.
Federal Rule of Evidence 806 allows the impeachment of any hearsay declarant. It provides that "[w]hen a hearsay statement .. . has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness." See also United States v. Bovain, 708 F2d 606 (12) (11th Cir. 1983); United States v. Wuagneux, 683 F2d 1343 (24) (11th Cir. 1982). According to the notes of the Advisory Committee on Proposed Rules, the rationale behind rule 806 is that "[t]he declarant of a hearsay statement which is admitted in evidence is in effect a witness. His *17 credibility should in fairness be subject to impeachment and support as though he had in fact testified." The Federal Rule thus allows introduction of relevant evidence which would be admissible for impeachment purposes if the declarant was in court.
In light of the foregoing, the trial court erroneously denied defendant the opportunity to impeach the res gestae statements of the victim. Nevertheless, we do not view such error as requiring reversal under the facts in this case. The hearsay declarant, a child who was just past his third birthday at the time of the incident and just four at the time of trial, had been declared judicially to be incompetent to testify because of a lack of understanding of the difference between truth and fabrication. The jury eventually became aware that the child would not testify. To attack the declarations the child had allegedly made, defendant attempted to impeach his statements by showing through defendant's mother that the child's general reputation in the community was that he lied.
A three-year-old child would not normally be exposed to a very wide-scoped community so as to establish within it a reputation for truthfulness or untruthfulness. The evidence here does not show that the child had any measure of dealings with members of the community at large which would subject him to the formation of public opinion about his veracity. Most of his time prior to the offense was spent in the company of his family or the neighbor family of which defendant and the witness were members. Thus, the likelihood of a reputation as to this characteristic is small, and even if he had a community reputation on this score, at his near-infant age it could not be very substantially based.
Moreover, although the witness was not permitted to testify whether or not she knew the child's reputation in the community (assuming he had one), and presumably would not have been permitted to state what that reputation was if she knew it, defendant had the advantage of much more devastating evidence. Generally, the witness' opinion of a person's character is not permitted. See Taylor v. State, 176 Ga. App. 567 (3) (336 SE2d 832) (1985). The witness we are focusing on here is defendant's mother, who was the child's neighbor and knew him from infancy; it was at her home he had spent much time for several months, while her daughter-in-law (defendant's wife) tended him. She testified without objection that he was "kind of an odd child," "a spoiled type child," that he was a typical small child (she had experience with them) in that at times "he wouldn't tell the truth, just like any other small child," and that sometimes he was punished for not telling the truth. Thus, the jury heard much more direct evidence on the matter of this child's veracity than what his reputation for it would be from within the confines of the child's small community. It would not have benefited defendant to any significant *18 degree for the witness to have testified that the child had a reputation in the community and that the reputation is that he does not always tell the truth. The latter is precisely what she said, based on personal experience. It was recently stated in State v. Braddy, 254 Ga. 366, 367 (330 SE2d 338) (1985): "Conduct reveals character as accurately as reputation does."
Finally, this is not a case where the child's declaration was the sole evidence of the crime; the observation of blood in his stool and the positive medical testimony were strong corroboration. Therefore, we regard the error as harmless under the circumstances and, as such, it does not require a reversal of the conviction. "`It is not every erroneous exclusion of evidence that will suffice to reverse a judgment, and a case will not be reversed for error in the rejection of evidence unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. It is for the reviewing court to determine whether prejudice has resulted; and if such exclusion did not prejudice the complaining party, and could not have affected the result, the error is harmless. [Cit.]' [Cit.]" Dill v. State, 222 Ga. 793, 794 (152 SE2d 741) (1966).
Judgment affirmed. Deen, P. J., and Beasley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1866032/ | 150 B.R. 156 (1992)
In re SUNDOWN ASSOCIATES, Alleged Debtor.
Bankruptcy No. 92-13058-T.
United States Bankruptcy Court, E.D. Virginia, Alexandria Division.
August 18, 1992.
*157 Michael H. Ditton, Dunnells, Duvall & Porter, Washington, D.C., for debtor.
Jason P. Green, Silverstein and Mullins, Washington, D.C., for Almist, Inc.
H. Mark Goetzman, Eskovitz, Lazarus, Pitrelli & Cregger, Vienna, VA, for Continental Federal Sav. Bank.
Jonathan W. Lipshie, Colton and Boykin, Washington, D.C., for Resolution Trust Corp. as Receiver for Perpetual Sav. Bank, F.S.B.
MEMORANDUM OPINION
DOUGLAS O. TICE, Jr., Bankruptcy Judge.
This is an involuntary chapter 11 case filed by Almist, Inc., against Sundown Associates. Counsel for Sundown filed a motion to dismiss the petition. Hearing on the dismissal motion was held on August 12, 1992.
This memorandum opinion supplements the court's bench ruling granting the motion to dismiss, but with leave for Almist to amend the petition.
Facts
The debtor is the owner of an apartment complex in Fairfax County, Virginia. Almist holds a nonrecourse note secured by a second deed of trust against the realty. A first deed of trust is held by Continental Federal Savings Bank. Continental Federal, whose note is in default, had scheduled a foreclosure sale of the realty on June 19, 1992.
Almist filed an involuntary petition against Sundown under chapter 11 of the Bankruptcy Code in this district on June 18, 1992. By allegations of special circumstances and fraud attached to the petition Almist claims that it holds two notes which are secured by a nonrecourse deed of trust on all of Sundown's property. Almist alleges that the balance owed on the notes is approximately $387,000.00 and that its claim exceeds the value of its security by more than $5,000.00.
*158 MOTION TO DISMISS.
Sundown moves to dismiss the case on the following grounds:
1. Under Sundown's promissory note, the noteholder Almist has waived any claim against Sundown other than from the proceeds of sale of the property. Since Almist's claim under the note and deed of trust is without recourse as to the debtor, Almist does not qualify as the holder of an unsecured claim against Sundown who may file an involuntary petition under 11 U.S.C. § 303(b).
2. Sundown has more than 12 creditors. Therefore, 11 U.S.C. § 303(b)(1) precludes filing of an involuntary petition by a single claim holder but rather requires filing by three or more claimants.
Discussion And Conclusions
The issues here arise under the following provisions of Code § 303:
(b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title
(1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute, . . . if such claims aggregate at least $5,000 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims;
(2) if there are fewer than 12 such holders, . . . by one or more of such holders that hold in the aggregate at least $5,000 of such claims;
11 U.S.C. § 303(b)(1), (2).
Code § 101(5) defines a claim as follows: (5) "claim" means
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured;
11 U.S.C. § 101(5).
Code § 102, which provides rules of construction for use under the bankruptcy code, contains the following:
(2) "claim against the debtor" includes claim against property of the debtor;
11 U.S.C. § 102(2).
The motion to dismiss should not be granted unless it appears to a certainty that Almist would be entitled to no relief under any circumstances. Rogers v. Jefferson Pilot Life Insurance Co., 883 F.2d 324, 325 (4th Cir.1989).
NONRECOURSE CLAIM.
This case presents somewhat of an anomaly. Depending upon the total number of creditors, an involuntary bankruptcy petition under § 303 must be filed by one or more creditors of the alleged debtor who have unsecured claims of at least $5,000.00. The petitioner in this case appears to have an undersecured claim under a note secured by a deed of trust against the alleged debtor's realty. However, by terms of the note, petitioner relinquished its right to any claim other than from the proceeds of sale of the property. Is this creditor thereby precluded from being an involuntary petitioner under § 303?
Sundown's argument at hearing was that both the nonrecourse and the secured nature of Almist's claim prevent Almist from filing the involuntary bankruptcy petition. Almist responded that (1) the holder of an unsecured nonrecourse claim may file an involuntary petition, and (2) it is willing to waive that portion of its secured claim necessary to meet the $5,000.00 monetary requirement of § 303(b). For both propositions, Almist relies upon Carteret Savings Bank, F.A. v. Nastasi-White, Inc. (Matter of East-West Associates), 106 B.R. 767 (S.D.N.Y.1989).
In East-West, an involuntary petition had been filed by the holder of a nonrecourse mechanics lien who had waived *159 $5,000.00 of its security for the purpose of meeting the monetary requirement of § 303(b). The district court rejected the alleged debtor's argument that the holder of a nonrecourse mechanics lien claim was not the holder of a claim against the debtor for purposes of § 303(b).
Also persuasive of this result, though in a different context, is the recent decision of the Supreme Court on the so called "chapter 20" issue, Johnson v. Home State Bank, ___ U.S. ___, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). In Johnson, the Court considered whether the holder of a mortgage lien whose personal claim against the chapter 13 debtor had been discharged in a prior chapter 7 case held a "claim" against the debtor for purposes of § 101(5). In holding that the mortgagee held a claim against the debtor in spite of the debtor's lack of personal liability, the court made clear that Congress intended in § 101(5) "to adopt the broadest available definition of `claim'." At ___, 111 S.Ct. at 2154. The court also observed:
A fair reading of § 102(2) is that a creditor who, like the Bank in this case, has a claim enforceable only against the debtor's property nonetheless has a "claim against the debtor" for purposes of the Code.
At ___, 111 S.Ct. at 2155.
I conclude from these authorities that the nonrecourse nature of Almist's claim, in itself, is not a basis to grant the motion to dismiss the petition provided Almist waives a requisite portion of its secured claim. Almist will be given leave, if it chooses to amend the petition, to waive a portion of its secured claim so as to meet the unsecured claimant requirement.[1]
MULTIPLE CREDITORS.
Sundown's alternative argument in support of dismissal is that it has more than 12 creditors, and therefore the petition must be filed by three or more claim holders. 11 U.S.C. § 303(b)(1). In support of this position, Sundown asserts that all of its apartment tenants are unsecured creditors by virtue of their security deposits held by Sundown.
The issue here becomes whether the tenants' claims to recover their security deposits upon lease termination represent contingent liability of Sundown; if so then the tenants cannot be considered as claim holders under § 303(b).
A contingent claim is defined:
[T]he debt is one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor and if such triggering event or occurrence was one reasonably contemplated by the debtor and creditor at the time the event giving rise to the claim occurred.
In re Pennypacker, 115 B.R. 504, 507 (Bankr.E.D.Pa.1990) (citations omitted).
Although the landlord Sundown's liability to repay the tenants' security deposits may be conditional upon the termination of leases, this does not make the liability contingent. The amounts are in fact fixed by the lease contracts even though the amount due each tenant may be subject to a readily ascertainable adjustment. In this respect Sundown's liability to its tenants is liquidated. Pennypacker, 115 B.R. at 506-07.
Since the court finds that Sundown has more than the requisite 12 creditors, an involuntary petition will require a petition brought by at least three holders of non-contingent, unsecured claims.
The court will grant the motion to dismiss but with leave for Almist to amend the petition in compliance with the views expressed in this opinion.
A separate order has been entered.
NOTES
[1] The court's conclusion presupposes that Almist in fact has a partially secured claim of at least $5,000.00. As stated previously, Almist alleged in the petition that its claim is undersecured as to Sundown's realty under 11 U.S.C. § 506(a) by more than $5,000.00. Ordinarily this allegation would be a sufficient basis to deny Sundown's dismissal motion on this point. L. King, 2 Collier On Bankruptcy (15th Ed.), ¶ 303.08[5]. However, given the facts of this case a specific waiver of a secured portion of the claim seems called for. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363949/ | 176 Ga. App. 853 (1985)
338 S.E.2d 32
STORY
v.
MONTEITH.
70255.
Court of Appeals of Georgia.
Decided October 28, 1985.
Rehearing Denied November 15, 1985.
Warren D. Evans, Thomas R. Burnside, Jr., for appellant.
John B. Long, Regnald Maxwell, Jr., for appellee.
McMURRAY, Presiding Judge.
Plaintiff Monteith brought suit against defendant Story in the Superior Court of McDuffie County. It was alleged that plaintiff and defendant entered into a contract for the construction of a log home; that defendant (the builder) breached the contract; and that plaintiff was damaged as a result of the breach. It was alleged further that defendant failed to exercise a reasonable degree of care and skill in constructing the house and that plaintiff was damaged as a result of defendant's negligence. Finally, plaintiff alleged that defendant acted in bad faith, was stubbornly litigious and caused plaintiff unnecessary trouble and expense. Defendant denied the material allegations of the complaint.
Following the trial of the case, the jury returned the following verdict: "We the jury find in favor of the Plaintiff in the sum of $130,000. We the jury also find in favor of the plaintiff (for lawyer fees) in the sum of up to $10,000." Thereupon, judgment was entered in favor of plaintiff and against defendant for $130,000.00 "together with the further sum of up to $10,000 as attorneys fees, with future interest . . . and costs .. ." Defendant moved for a new trial. The trial court denied the motion, entering an order which reads, in pertinent part, as follows:
"In considering the defendant's motion for a new trial as amended, this Court finds that said specific grounds are without merit. In considering the general grounds for a new trial this Court has determined that it should not exercise any discretion that it may have to write off a portion of the damages or give defendant a new trial . . . [I]n ruling on this motion for new trial, this Court has reviewed the transcript concerning the issue of whether or not the verdict returned by the jury was excessive as to the amount of damages or as to the amount of attorney's fees. While this verdict seems excessive to the Court, there was evidence to support the same. The jury had the benefit of evidence presented in an extremely competent and capable manner by both sides. . . If this Court had the power to remit a portion of the damages, this Court might, in view of all the evidence, exercise discretion and require that the total damages . . . be reduced by 30 or 40%. However, this Court does not deem that it has such power, nor that it can impose its judgment upon the collective wisdom of twelve jurors . . . In light of the fact that the evidence, inclusive of interest, does support this verdict, this Court is *854 not going to impose any individual views that it may have over that of the jury." (Emphasis supplied.) Held:
1. "When an order overruling a motion for a new trial recites that in the opinion of the judge the verdict is against the weight of the evidence, that he would not have agreed to it if he had been on the jury, but that he does not feel at liberty to set the same aside, for the reason that it seems to him that setting the verdict aside when there was evidence to support it and no suggestion of bias or prejudice on the part of the jury `would be an usurpation by the court of the powers of the jury,' it is manifest that the judge has not exercised the discretion vested in him by law . . ." Thompson v. Warren, 118 Ga. 644 (3) (45 S.E. 912).
In his order, the trial judge opined that the verdict was excessive. Yet the judge stated he would not exercise his discretion to set aside the verdict because he did not want to impose his opinion upon the jury. In short, the judge did not approve the verdict; he merely yielded upon being confronted with the collective judgment of the jurors. In so doing, the judge failed to exercise the discretion which the law vests in him.
"When the evidence is conflicting, applications for new trials upon the ground that the verdict is contrary to the evidence, or contrary to the weight of the evidence, or decidedly and strongly against the weight of the evidence, are addressed to the sound legal discretion of the trial judge. The law imposes upon the trial judge the duty of exercising his discretion in all such cases. See Rogers v. State, 101 Ga. 561; Central of Georgia Ry. Co. v. Harden, 113 Ga. 453. When it appears from the record that the trial judge in overruling the motion for a new trial has not exercised this discretion, the judgment overruling the motion will be reversed." Thompson v. Warren, 118 Ga. 645, supra. See Livingston v. Taylor, 132 Ga. 1, 9 (7) (63 S.E. 694); Scribner v. Adams, 36 Ga. App. 754 (138 S.E. 264).
As the trial judge failed to exercise his discretion in overruling the motion for new trial, the judgment must be reversed. Thompson v. Warren, 118 Ga. 644, supra; Scribner v. Adams, 36 Ga. App. 754, supra. The mere fact that there may have been some evidence to support the verdict is of no consequence: "From the tenor of his order his honor seems to have been of the impression that if there was evidence to support the verdict, he was not authorized to set it aside. This view is erroneous . . . If a verdict is palpably against the truth of the case as gleaned from the evidence, the exercise of a sound discretion would not only authorize but require its vacation, notwithstanding there may be some evidence to support it . . ." Livingston v. Taylor, 132 Ga. 1, 10, supra.
2. Since it is unlikely that the remaining enumerated errors will occur upon retrial, it is unnecessary to consider them at this time.
*855 Judgment reversed. Banke, C. J., and Benham, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363962/ | 176 Ga. App. 838 (1985)
338 S.E.2d 288
BRUNSWICK MANUFACTURING COMPANY, INC. et al.
v.
SIZEMORE et al. (two cases).
70606, 70607.
Court of Appeals of Georgia.
Decided November 14, 1985.
Ivan H. Nathan, Neal G. Gale, for appellants.
John T. McKnight, Jr., for appellees.
CARLEY, Judge.
The appellants in the instant companion cases were all named as defendants in an original multi-count complaint filed by appellees on December 29, 1982. A set of interrogatories was served on appellants in conjunction with appellees' complaint. On January 31, 1983, appellees served an additional set of interrogatories on appellant Kaper-Jac, Inc. Appellants filed timely answers to the complaint. By April 5, 1983, however, appellees had not yet been served with any response to their interrogatories, and they filed a motion seeking to compel that response or, in the alternative, to strike appellants' answers. On April 6, 1983, appellant Kaper-Jac, Inc. served its response to the interrogatories of January 31. Also on April 6, 1983, responses were served on behalf of all appellants as to the original set of interrogatories which had accompanied the complaint.
A hearing was then held on appellees' motion to compel or to strike. This hearing was apparently not reported but, on May 5, 1983, the trial court entered an order stating that appellants had "until May 16th, 1983, to answer said interrogatories fully and completely in the spirit of discovery contemplated by the [C]ivil [P]ractice [A]ct of the State of Georgia. . . ." On May 16, 1983, a document denominated as appellants' "amended response" to appellees' counsel. See OCGA § 9-11-5 (b). As to numerous interrogatories, appellant's "amended response" did contain additional factual information. In several instances, however, appellants' "amended response" not only did not contain additional information but consisted of merely the assertion of an objection to the underlying interrogatory. The record shows that the majority of such objections in the "amended response" were asserted as to interrogatories for which factual answers had already been supplied in appellants' original response of April 6. Shortly after service of appellants' "amended response," appellees filed a renewed motion to strike appellants' answers.
On June 29, 1983, appellants filed a motion for partial summary judgment. Appellants' motion sought summary judgment as to all issues, with the exception of contractual liability and compensatory contractual damages. Over a year later, on July 29, 1984, the trial court conducted a hearing on the various motions pending in the case, including appellants' motion for partial summary judgment and appellees' *839 motion to strike appellants' answers. After the hearing, the trial court ruled that, of the numerous counts alleged in the complaint, appellees' only viable claim was in contract. Appellees were ordered "to recast the complaint sounding said complaint as a breach of contract and deleting all [other] allegations. . . ." However, the trial court also granted appellees' motion to strike appellants' answers. Appellees thus having been limited to only the assertion of a contract claim, and appellants' liability having been established by the striking of their answers, the trial court's final order was that the case would be submitted to the jury only as to the issue of damages. As ordered, appellees filed a recast complaint sounding solely in contract, and after a jury trial was held as to damages, a verdict was returned awarding appellees compensatory damages, attorney fees, and costs. Judgment was entered on the verdict, and appellants' post-judgment motions were denied. The two instant appeals, Case Numbers 70606 and 70607, were separately filed on the part of appellants and those two appeals are consolidated for disposition in this single opinion.
1. Appellants enumerate as error the trial court's striking of their answers, the effect of which was to render them in default as to appellees' contract claim.
When appellees filed their original motion in April of 1983, appellants had served no response whatsoever to the interrogatories. Under such circumstances, the trial court, in the exercise of its discretion, would have been authorized to grant appellees' motion to strike, even though appellants did serve responses after the motion for sanctions had been filed. See OCGA § 9-11-37 (d); Danger v. Strother, 171 Ga. App. 607, 609 (2) (320 SE2d 613) (1984). However, the trial court chose not to do so, electing instead to order that appellants make a further response by May 16, 1983. Accordingly, resolution of the instant case depends upon whether appellants "fail[ed] to obey [that] order to provide or permit discovery," so as to authorize the trial court to strike their answers pursuant to OCGA § 9-11-37 (b) (2) (C). In resolving this issue, we must be guided by the following principle: "It is not a mere technical failure to comply with an order that will justify such extreme sanctions. `(T)he drastic sanctions of dismissal and default cannot be invoked under [OCGA § 9-11-37] except in the most flagrant cases where the failure is wilful, in bad faith or in conscious disregard of an order.' [Cit.] `(A) showing of wilfulness (is) a predicate to imposition of the harsher sanctions. [Cits.]' [Cit.]" Thornton v. Burson, 151 Ga. App. 456, 458-459 (260 SE2d 388) (1979).
Having already served an initial response and having timely served an "amended response," appellants had, by the May 16, 1983 deadline, served some form of response to appellees' interrogatories. *840 Compare Swindell v. Swindell, 233 Ga. 854 (213 SE2d 697) (1975); Porter v. Eastern Airlines, 165 Ga. App. 152, 153 (1) (300 SE2d 525) (1983); Tompkins v. McMickle, 172 Ga. App. 62 (321 SE2d 797) (1984). "All decisions of the Supreme Court and this court approving imposition of the drastic sanction of dismissal or default involve a total failure to respond to an order compelling discovery. . . ." (Emphasis in original.) Thornton v. Burson, supra at 461. As noted, the "amended response" did contain additional factual information which supplemented the original response as to numerous of the interrogatories. However, in several instances it asserted only objections to certain interrogatories, even though the time had already passed within which such objections could be raised as a viable response to a request for discovery. See Drew v. Hagy, 134 Ga. App. 852 (216 SE2d 676) (1975). Thus, the specific issue becomes whether there was a sufficient showing that, despite the timely supplemental response as to some interrogatories, appellants' attempt to raise untimely objections to several others was such a "wilful" total failure on their part to comply with the trial court's order of May 5, 1983, that the imposition of the harsh sanction of striking their answers was authorized.
In Thornton v. Burson, supra at 461, we held that if, after being ordered to make further discovery, one fails "to respond either in timely fashion or in exact accordance with the order, a subsequent order granting judgment by default would be justified." (Emphasis in original.) However, it is also clear that a mere hindsight determination of the inadequacy of an otherwise timely response to an order compelling discovery will not necessarily demonstrate the wilfulness necessary to authorize the imposition of the harsher sanctions of OCGA § 9-11-37 (b) (2). Our holding in Thornton v. Burson, supra, as to the requirement of "exact" compliance was itself predicated upon the existence of an order setting "forth with specificity the details [of the further discovery compelled] to [be] furnish[ed]." (Emphasis supplied.) Thornton v. Burson, supra at 461.
From the perspective of hindsight, insofar as the instant "amended response" did contain untimely objections, it cannot be said to evince "exact" compliance with the technical rules of discovery. However, when wilful non-compliance is considered from the perspective of foresight, nothing in the May 5, 1983 order itself specified that objections were not even to be considered as potential responses to the interrogatories. What does appear from the transcript of the July 29, 1984 hearing is that the trial court apparently did not take into account the fact that an original response had already been served to the interrogatories prior to appellants' "amended response." The latter response should be considered as a supplement to rather than a total replacement of the former. If the original response to any interrogatory could already be deemed by appellants to be a "full and *841 complete" response thereto, the spirit of the May 5 order would not necessarily be violated by their filing of an amended response which only raised an untimely objection to that interrogatory. The act of raising such an objection after a factual response had already been given could be ignored as merely superfluous. However, the trial court made no effort to determine whether, considering both the original and amended responses, appellants were in wilful and conscious disregard of its order and not merely ignorant of the fact that their objections could no longer be considered.
Moreover, it appears that the issue of whether appellants had already technically waived the right to raise objections was never specifically addressed at any time prior to May 5, 1983. At the hearing on July 29, 1984, the attorney representing appellants expressed what had been his understanding as to the mandate of the order compelling discovery. According to counsel's recollection of what had transpired at the unreported hearing which resulted in that order, the trial court had made certain statements in the course of that hearing which had been construed to mean that appellants were also being authorized to include for purposes of their "amended response" any such objections to the interrogatories as had not previously been raised in their original response. Such a good faith, but technically erroneous, interpretation of the legal effect of the May 5, 1983 order would certainly be consistent with the subsequent serving of an "amended response" which included both supplementary factual responses in some instances and also objections even to interrogatories which had already been factually answered in the original response of April 6, 1983. Pursuant to such an "understanding," objections in the "amended response" would constitute both a tacit reaffirmance of the original response, as well as a good faith but ultimately belated attempt to preserve the right to urge to the court that the interrogatory did not seek discoverable material. In response to this "understanding" expressed by appellants' counsel, the trial court did not specifically dispute the possibility that it may have inadvertently fostered such an erroneous construction of its May 5, 1983 order. The trial court merely stated that it did not remember what it may have said during the earlier hearing.
Absent any showing that the trial court did previously specify, either in its May 5, 1983 order or at the hearing which resulted in that order, that the raising of objections would not be acceptable response to its order, we are constrained to hold that the record before us indicates only that the timely "amended response" was served pursuant to appellants' ignorance of the technical inadequacy evidenced by their inclusion of the several untimely objections. OCGA § 9-11-37 (b) (2) is not designed to punish parties when their otherwise timely but partially inadequate response to discovery orders is the result of *842 their counsel's erroneous misunderstanding of the full mandate thereof. Thornton v. Burson, supra. It is designed to punish a wilful failure or conscious disregard of an order. Swindell v. Swindell, supra. "[W]e believe . . . that appellant[s'] response to the [May 5, 1983] order to compel inadequate though it may be should not have been treated as a total failure to respond under [OCGA § 9-11-37] so as to authorize the imposition of the ultimate sanction. The court, in ordering further discovery after finding insufficient the [April 6, 1983] answers, could have set forth with specificity the details appellant[s] [were] to furnish. . . . We further observe that in ruling on appellee[s'] motion for sanctions, the trial court would have been justified in imposing one or more of the other sanctions available under [OCGA § 9-11-37]. It is only the striking of the defensive pleadings and the granting of default judgment that we find to be overly harsh" under the circumstances. Thornton v. Burson, supra at 461.
Appellees assert that there are various other reasons why the trial court could have ordered appellants' answers stricken. However, the record clearly reveals that the only basis for striking the answers urged by appellees and considered by the trial court was the fact that untimely objections were contained in appellants' "amended response" of May 16, 1983. A review of the transcript of the July 29, 1983 hearing indicates that the trial court was acting solely pursuant to its understanding that, under the law, it had no discretion to accept the untimely objections as a proper response to interrogatories. See Drew v. Hagy, supra. However, the true issue was not whether the trial court had discretion to accept appellants' "amended response" but whether, considering that response as well as the original one, appellants had demonstrated a wilful failure to comply with the order of May 5, 1983. Pleadings may not be stricken "without first holding an evidentiary hearing on the issue of wilfulness." Harwood v. Great American Mgt. &c., 164 Ga. App. 703 (298 SE2d 263) (1982). Although a hearing was conducted in the instant case, the transcript of that hearing discloses that the issue of appellants' wilfulness, as opposed to the technical inadequacy of their amended response, was never addressed. Cf. Harwood v. Great American Mgt. &c., supra.
Accordingly, pretermitting whether there were other reasons upon which the trial court could have determined to strike appellants' answers, the one upon which it did was erroneous. Compare Swindell v. Swindell, supra. "[W]here it is apparent that the court rests its judgment on reasons which were erroneous or upon an erroneous legal theory, it commits reversible error. [Cits.]" Smith v. Helms, 140 Ga. App. 267, 269 (3) (231 SE2d 778) (1976). "Under the procedural scenario sub judice, we hold that the trial court erred in striking appellant[s'] answer[s] and in granting judgment by default. [When] the *843 trial court deemed appellant[s'] supplemental answer [to the interrogatories] to be deficient, the proper judicial action would have been the entry of an order [specifying that the right to object had been waived and] compelling additional supplemental answers." Thornton v. Burson, supra at 461.
2. Remaining enumerations of error have been considered. They appear to fall into one of two categories. Many have been rendered entirely moot by virtue of Division 1 of this opinion, which necessitates that a trial be conducted as to liability, as well as to damages. Others appear to concern matters which are unlikely to recur when such a trial is held. Accordingly, no remaining enumerations need be addressed.
Judgments reversed. Birdsong, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363966/ | 176 Ga. App. 787 (1985)
338 S.E.2d 39
BROWN
v.
PIERCE et al.
71010.
Court of Appeals of Georgia.
Decided November 7, 1985.
*788 James H. Archer, Jr., Edna M. Caldwell, for appellant.
Stephen L. Cotter, for appellees.
SOGNIER, Judge.
This is a dog bite case. A German Shepherd dog, owned by Stephen and Debra Pierce, attacked and mauled six-year-old Jason Carter Brown while Brown was playing in his own yard. Summary judgment was granted to the Pierces in the personal injury suit brought by Brown, by next friend Pamela Youngblood, Brown's mother. This appeal ensued.
Appellees moved for summary judgment on the basis of their affidavits denying they had any knowledge prior to the subject incident that their dog had ever bitten another human being. Appellant failed to present any evidence controverting appellees' statements. The version of OCGA § 51-2-7 in effect at the time of these events provided that "[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act shall be liable in damages to the person so injured." "Concerning this statutory provision, this court has repeatedly held that `(p)roof that the owner of a dog either knew or should have known of the dog's propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner. [Cit.] . . . (T)he owner of a dog may not be found liable for an unforeseen and unforeseeable act of the dog simply because the dog was not under the owner's direct control at the time the act took place.' [Cit.]" Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984). (We note that under the amended version of OCGA § 51-2-7, effective July 1, 1985, rulings cited herein may become inapplicable.) Appellant's argument that the presence of appellees' dog on premises owned by appellant's mother and stepfather while in violation of the county leash law negates any burden on appellant to show scienter in order to allege a valid cause of action has been decided adversely to appellant in Connell v. Bland, 122 Ga. App. 507, 510-512 (177 SE2d 833) (1970). The language appellant relies on in Caldwell v. Gregory, 120 Ga. App. 536, 541 (171 SE2d 571) (1969) is obiter dicta and inapplicable to dog cases. Connell, supra at 512.
Judgment affirmed. Birdsong, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363967/ | 338 S.E.2d 815 (1986)
Harry Franklin MANES
v.
Hilda HARRISON-MANES.
No. 8530DC574.
Court of Appeals of North Carolina.
February 4, 1986.
*816 Smith, Bonfoey & Queen by Frank G. Queen, Waynesville, and Richlyn D. Holt, Maggie Valley, for defendant-appellant.
Brown & Brown by Gavin A. Brown, Waynesville, for plaintiff-appellee.
MARTIN, Judge.
The sole issue raised by this appeal is whether the trial court erred in concluding that the property acquired in exchange for plaintiff's separate property remained separate property. We agree with the trial court that the annuity and bank account remained separate property of the plaintiff. However, for the reasons hereinafter stated, we must vacate that portion of the judgment relating to the real property and remand this case for further proceedings.
Under the Equitable Distribution Act, separate property includes all real and personal property acquired by a spouse by bequest, devise, descent, or gift during marriage and this separate property remains separate property when exchanged for other property "regardless of whether the title is in the name of the husband or wife or both unless a contrary intention is expressly stated in the conveyance." G.S. 50-20(b)(2). In addition, property acquired by gift from the other spouse is considered separate only if stated in the conveyance. Id.
In McLeod v. McLeod, 74 N.C.App. 144, 156, 327 S.E.2d 910, 918, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985), another panel of this Court construed G.S. 50-20(b)(2) and held that "[w]hen property titled by the entireties is acquired in exchange for separate property the conveyance itself indicates the `contrary intention' to preserving separate property required by the statute." Furthermore, when separate property is used as consideration to acquire entireties property a gift of separate property to the marital estate is presumed which is rebuttable by clear, cogent, and convincing evidence. Id.
The trial court, in the present case, concluded that the real property held by the parties as tenants by the entirety remained the separate property of plaintiff because no contrary intention had been expressly stated in the conveyances. In so doing, the court failed to consider the presumption created by McLeod. Thus, we must vacate that portion of the judgment adjudging plaintiff to be the sole owner of the real property and remand this case to the trial court for further proceedings. Upon remand, the real property will be considered marital property, subject to equitable distribution, unless plaintiff can rebut the presumption of gift by clear, cogent, and convincing evidence.
The presumption of gift created by the holding in McLeod was limited in its application to real property acquired by both spouses, as tenants by the entirety, in exchange for the separate property of one of them. We decline to extend that presumption to jointly held personal property which is acquired in exchange for the separate property of one spouse, as to do so would seem to defeat the legislative intent of G.S. 50-20(b)(2).
Therefore, as to the annuity and First Union Bank account, we find no error in the trial court's conclusion that the property remained the separate property of plaintiff. Although the plaintiff added defendant's *817 name to the bank account and annuity, the record discloses no evidence of any intention that the funds would not remain plaintiff's separate property. The deposit of funds into a joint account, standing alone, is not sufficient evidence to show a gift or an intent to convert the funds from separate property to marital property. See Brown v. Brown, 72 N.C.App. 332, 324 S.E.2d 287 (1985), Loeb v. Loeb, 72 N.C. App. 205, 324 S.E.2d 33 (1985).
Affirmed in part, vacated in part, and remanded.
HEDRICK, C.J., and EAGLES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363969/ | 338 S.E.2d 185 (1985)
STATE of West Virginia
v.
Paulmer Lee ADKISON, Jr.
No. 16242.
Supreme Court of Appeals of West Virginia.
December 12, 1985.
*186 Susan H. Hewman, Ikner & Hewman, Marlinton, for appellant.
Charlie Brown, Atty. Gen., J. Bradley Russell, Asst. Atty. Gen., Charleston, for appellee.
PER CURIAM:
The defendant, Paulmer Lee Adkison, Jr., was convicted by a jury of second degree murder in the Circuit Court of Pocahontas County in 1983. His primary contention on appeal is that the trial court erred in permitting the State to introduce an incriminating statement that was allegedly induced by promises of leniency by law enforcement officials. He asserts that gruesome photographs having no probative value were erroneously admitted into evidence. He also argues that the trial court committed reversible error by not excluding testimony about the condition of the victim's body because its marginal relevance was outweighed by its prejudice. Finding the defendant's assignments of error to be without merit, we affirm.
The defendant in contending that his statement was involuntary and should have been suppressed relies on the general principle expressed in the Syllabus of State v. Parsons, 108 W.Va. 705, 15 S.E. 745 (1930):
"When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary."
In Parsons, the defendant confessed after being advised that he might be able to get into reform school. The defendant also cites State v. Persinger, ___ W.Va. ___, 286 S.E.2d 261 (1982), where we reviewed the law in this area in some detail and held that the defendant's confession was rendered inadmissible by the interrogating officer's explicit promise that if the defendant would cooperate, he would give a good recommendation to the probation authorities.
We begin by observing that the scope of our review over purely factual determinations, whether made in a civil proceeding or in the context of a suppression hearing in a criminal case, is narrow. Syllabus Points 2 and 3 of State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978), reflect, albeit from a *187 broader legal perspective, the limited extent of appellate scrutiny:
"2. It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review.
"3. A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence."
See also State v. Mitter, ___ W.Va. ___, ___, 289 S.E.2d 457, 462 (1982).
The trial court judge in denying the defendant's motion to suppress his written statement concluded that the State had met its burden of showing by a preponderance of the evidence that the statement was voluntarily and intelligently made. He expressly found that none of the officers had made any promises to the defendant and that the defendant had acknowledged the officers told him they could not make him any promises.
The defendant testified at the suppression hearing that he was induced to give the confession because one of the interrogating officers, Trooper Fred Dickinson, told him that if he cooperated he would probably get a lighter sentence and that he, Trooper Dickinson, would go to "bat" for him by speaking to the prosecuting attorney.
The defendant both on direct and during cross-examination, however, conceded that Trooper Dickinson told him he could not promise him anything. Significantly, the defendant also stated that because of his prior experience with the criminal law, and plea bargaining in particular, he knew that regardless of the trooper's actions, the final sentencing decision would be up to the trial court judge.
Trooper Dickinson denied making any promises to the defendant with regard to contacting the prosecutor. This was supported by the two other officers, although it was admitted by at least one of the officers that a statement was made that if the defendant cooperated things would go easier with him.
The trial court's findings that no promises were made to the defendant and that the defendant understood that the interrogating police officers lacked the authority to make any promises as to sentencing, clearly distinguishes this case from Persinger and our most recent case, State v. Burgess, ___ W.Va. ___, 329 S.E.2d 856 (1985). In Burgess, the police officers, among other things, told the defendant they might talk to the judge later and try to help the defendant. A short time later, the defendant agreed to give a statement and signed a waiver of his Miranda rights.
We have examined the four color photographs objected to by the defendant and agree with the trial court that they are not gruesome under the standards announced in State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979), and elaborated on in State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980). In Syllabus Point 6 of State v. Buck, ___ W.Va. ___, 294 S.E.2d 281 (1982), we held:
"In order for photographs to come within our gruesome photograph rule established in State v. Rowe, [163 W.Va. 593,] 259 S.E.2d 26 (1979), there must be an initial finding that they are gruesome."
The photographs involved here are small Polaroid-type snapshots depicting what the authorities found as they unearthed the victim's body. The first of the photographs objected to, taken shortly after they had begun to dig, shows a small portion of the victim's blue trousers. The second photograph reveals the victim's boots and pants up to about the knees. The third one portrays a plastic hip socket, while the fourth shows a portion of the victim's skull. None of the photographs depict blood and gore. See State v. Haddox, ___ W.Va. ___, 276 S.E.2d 788 (1981).
The defendant's final assignment of error is that two of the State's witnesses were permitted to testify that the victim's body separated while being moved to the burial site and was buried in two pieces by *188 the defendant and his codefendant. The defendant contends that the probative value of this evidence was outweighed by its alleged prejudicial effect.
The evidence indicates that the victim was brutally beaten to death with a tire tool. The question was who did itthe defendant or his codefendant. Each testified against the other. The codefendant described the circumstances surrounding the burial of the body and mentioned the fact that the body had been buried in two pieces. This fact was corroborated by one of the troopers who helped exhume the body and was in contradiction to the defendant's story that the body was buried in one piece.
The trial judge in permitting this evidence directed the State not to dwell on the condition of the victim's body and the State complied with this admonition. Under the circumstances of this case, we do not find this to be reversible error.
For the reasons stated above, we affirm the judgment of the Circuit Court of Pocahontas County.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363974/ | 338 S.E.2d 388 (1985)
M. Elaine WILKINS
v.
Charles Edward WILKINS.
No. 16609.
Supreme Court of Appeals of West Virginia.
December 18, 1985.
*389 Andrew N. Frye, Jr., Petersburg, for appellant.
Howard E. Krauskopf, Moorefield, for appellee.
PER CURIAM:
This is an appeal from a series of orders, from the Circuit Court of Hardy County, in a partition suit. The lower court found that certain property could not be equitably partitioned in kind and ordered a sale. Following the sale, at which the appellee (defendant in the partition suit) purchased the property, the court entered an order confirming the sale.
The appellant's assignments of error are rather diffuse, but may be fairly summarized as follows: She contends that the court erred (1) in not making particular findings of fact and conclusions of law; (2) in finding that the property could not be equitably partitioned in kind; (3) in ordering that the property be sold; (4) in refusing to allot all or a portion of the property to the appellant; (5) in refusing to partition the property unequally; (6) in refusing to appoint commissioners to appraise the property; (7) and in denying a stay of the sale pending appeal. We find no merit in any of the appellant's contentions and, therefore, affirm.
I
In 1981 the appellant, M. Elaine Wilkins, instituted a civil action against her former *390 husband,[1] Charles Edward Wilkins, seeking partition in kind of three contiguous tracts of land in Hardy County.
The court appointed three commissioners whose task was to determine whether the real estate was susceptible to partition in kind. After personally viewing the property, the commissioners reported their findings that the location of a ravine in the center of the property and the shape of the three aggregate tracts did not permit an equitable partition.
Upon appellant's objections to the report, a hearing was held. One of the commissioners (Stanley See) testified that after visiting the property, the commissioners were unable to determine any method of fairly dividing the property. Both parties presented expert witnesses who gave conflicting testimony on the practicability and possibility of dividing the property into tracts of equal value.
At the close of the hearing, the trial court overruled the objections to the commissioners' report. Both parties moved, pursuant to Code, 37-4-3 [1957], for an allotment of the entire tract.
Argument on the two allotment motions was subsequently heard at which time the court suggested that the best resolution might be an auction where only the parties were eligible to bid. As an alternative, the appellant said that if the court were to order partition in unequal shares, she was willing to accept the smaller share. However, the court rejected this alternative, believing that it had no authority to order an unequal partition, absent the consent of the parties. The appellee indicated his unwillingness to accept such a partition.
At the close of the hearing on the allotment motions, the parties reached an agreement whereby the appellant would purchase the appellee's interest for $1,000 an acre, payable within 30 days. The parties also agreed that each would pay one-half of certain indebtedness then encumbering the property. This agreement is reflected in an order entered September 17, 1982.
Several months passed and the appellant failed to comply with the agreement. The court, on the motion of the appellee, ordered that the property be sold as a single tract at public auction. At the same time, the court denied appellant's motion for a stay of execution and a renewed motion for allotment. In its order, the court found that the appellant had done nothing to accomplish compliance with the agreement to purchase the appellee's interest. The attorneys of record were appointed as special commissioners to conduct the sale.
There were several bidders at the sale and the appellee made the high bid of $50,500. The record does not reflect whether the appellant participated in the bidding process. The court confirmed the sale, over the objection of the appellant that the property should have been offered for sale in three separate tracts. The court made a finding, based on testimony at earlier hearings, that the value of property as a whole was greater than the aggregate of values of the separate tracts were the property to be divided. The appellant was allowed ten days in which to offer an upset bid, such bid to be accompanied by a ten percent deposit.
After ten days elapsed, the appellant, by letter, offered to buy the property at a price higher than $50,500. The precise amount of the bid is not found in the record. The court rejected this bid on the grounds that the appellant had not complied with the requirements of the previous order and that the court had been informed that the appellant was unable to borrow sufficient funds that would enable her to make good on her bid.
The appeal followed the filing of the report of the special sale commissioner showing the distribution of the proceeds from the sale of the property.
II
"In a partition suit, before there can be a sale, `there must be an affirmative showing *391 of the propriety of the sale.' Smith v. Greene, 76 W.Va. 276, [279], 85 S.E. 537, 538 [1915]." Starcher v. United Fuel Gas Co., 113 W.Va. 397, 400, 168 S.E. 383, 384 (1983).
The prerequisites for a partition sale are set forth in Syl. pt. 3, Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978):
By virtue of W.Va.Code, 37-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale.
The first question to be determined is whether the property can be conveniently partitioned in kind. Ordinarily, commissioners are appointed to inspect the property and report their findings to the court on the convenience of partition. See Syl. pt. 5, Stewart v. Tennant, 52 W.Va. 559, 44 S.E. 223 (1903); syl. pt. 2, Loudin v. Cunningham, 82 W.Va. 453, 96 S.E. 59 (1918).
"Inconvenience of partition as one of the circumstances authorizing such sale, does not contemplate physical impossibility of division, but the requirement is not satisfied by anything short of a real and substantial obstacle of some kind to division in kind, such as would make it injurious to the owners...." Syl. pt. 4, in part, Croston v. Male, 56 W.Va. 205, 49 S.E. 136, 107 Am. St. Rep. 918 (1904). We have also said: "The word `conveniently' as used in the statute [37-4-3] does not have its usual significance, but means rather practicably and justly." (emphasis in original). Garlow v. Murphy, 111 W.Va. 611, 163 S.E. 436 (1932).
Promotion of the interests of one or more of the parties is another fact which must be established prior to ordering a sale. In syl. pt. 6 of Croston v. Male, supra, we recognized the following test for making this determination:
"Whether the aggregate value of the several parcels into which the whole premises must be divided will, when distributed among the different parties and held in severalty, be materially less than the value of the same property if it be owned by one person, is a fair test by which to determine whether the interests of the parties will be promoted by a sale."
The same test may be used to determine prejudice, since prejudice is the inverse of promotion. See 59 Am.Jur.2d, Partition § 118.
III
The court below adopted the report of the commissioners, thus finding that the property was not susceptible to a convenient partition in kind. This finding is supported by the evidence and is not clearly erroneous. Therefore, there was no error in sustaining the commissioners' findings. Rule 52(a) W.Va.R.C.P. See syl. pt. 1, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972); syl. pt. 3, Serge v. Matney, 165 W.Va. 801, 273 S.E.2d 818 (1980).
It appears from the record that, at the time the sale was ordered, the court did not make findings of fact with respect to the promotion of appellee's interests or the lack of prejudice to appellant's interest. Although such failure constitutes a violation of Rule 52(a) W.Va.R.C.P., it is not necessary in this case to remand for compliance with the rule.
A case will be disposed of without remanding it to the trial court to find the facts specially and state separately its conclusions of law in accordance with Rule 52(a) of the Rules of Civil Procedure, when there is sufficient information in the record with regard to the facts which control the proper disposition of the case.
Syl. pt. 3, Prete v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441 (1976).
It was established through the testimony of the expert witnesses that the value of the property would be diminished as *392 a consequence of a partition in kind. The evidence supported a finding that there would be considerable costs associated with surveying the property and building an access road, and that it was necessary to locate such a road so that it would cross one parcel in order to reach the other. At the confirmation hearing, the court stated that the evidence showed that a division of the land would result in a reduction of value. It was also undisputed that there were several judgment liens encumbering the property.
We think it is clear that the appellee, who was the party seeking the sale, established that his interests would be promoted by the sale. The proceeds from the sale could be used to satisfy the parties' debts and thus unencumber the property. The record shows that the proceeds were used for this purpose. The evidence further establishes that through a sale of the property, the appellee would realize his share of the value of the property, whereas if the property were partitioned his resultant share would be diminished.
Lack of prejudice to the appellant's interests was established by the evidence regarding the diminution of the value of the property if partitioned. Prejudice is not measured solely in monetary terms. See Vincent v. Gustke, 336 S.E.2d 33 (W.Va.1985); Harris v. Crowder, W.Va. 322 S.E.2d 854 (1984); Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977); Hale v. Thacker, 122 W.Va. 648, 650, 12 S.E.2d 524 (1940). The case now before us is not one, however, where, as a result of a judicial sale, a wife would be ousted from the marital abode, Vincent, supra, or where a partition suit might frustrate a divorce decree's provision of exclusive possession by one party of the marital residence. Murredu, supra. The appellant did not reside on the property she sought to partition.
All the prerequisites for a partition sale were established. Therefore, the court did not err in ordering the property to be sold.
As an alternative to a sale, the appellant contends that the court should have either allotted the entire property to her, pursuant to Code, 37-4-3 [1957],[2] or partitioned the property into two unequal shares, awarding her the share of lesser value.
Both parties made motions for allotment of the entire property. The court found no equitable basis for allotment, since both parties were equally entitled to it. The parties agreed that the appellant would pay $1,000 per acre for the appellee's half-interest. However, she paid no money to the appellee and consequently the court ordered the sale.[3]
The appellant has cited no authority, and we have found none, to support the contention that the court erred in refusing to consider a partition into unequal shares. The appellant argues that Code, 37-4-3 provides for allotment of part of the real estate and sale of the residue. However, the record indicates that the appellant requested a partition in kind that would result in a 45% to 55% split. Thus, the provision of Code, 37-4-3 for allotment of part and sale of the residue was never invoked.
Finally, the appellant contends that the court erred in refusing to grant a stay of execution of the order decreeing a sale, pending an appeal of the court's denial of a partition in kind. Soon after the trial judge ordered that the property be sold but before *393 the property was actually put up for bids, the appellant filed a "Notice of Intent to Appeal." However, the record shows that the appellant did not appeal that order.[4] It is unnecessary to address the issue of whether there was any impropriety in denying the stay. The benefit of such a stay disappeared long ago when the property was sold. Moreover, because our decision in this case upholds the sale, denial of the stay did not prejudice the appellant.
For the foregoing reasons, the orders appealed from are affirmed.
Affirmed.
NOTES
[1] It is not apparent from the record when the parties were divorced.
[2] Code, 37-4-3 provides in pertinent part: "When partition cannot be conveniently made, the entire subject may be allotted to any party or parties who will accept it, and pay therefor to the other party or parties such sum of money as his or their interest therein may entitle him or them to ..."
[3] The appellant's contention that the court erred in refusing to appoint commissioners for the purpose of ascertaining the value of the property is without merit. We recognize that Code, 37-4-3 does provide for the appointment of commissioners to appraise property that is allotted, however, this need only be done where the parties "cannot agree upon the value of the subject." Here, the parties agreed upon the value. Therefore, it was unnecessary to appoint commissioners.
[4] The order of sale was an appealable order. See Summers v. Satterfield, 120 W.Va. 1, 196 S.E. 159 (1938); Garlow v. Murphy, 111 W.Va. 611, 163 S.E. 436 (1932); Code, 58-5-1(g) [1925]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312904/ | REBECCA R. PALLMEYER, United States District Judge
Attorneys Michael R. Needle and Merle Royce represented a group of plaintiffs in a RICO action filed in this court and settled in 2013. See Amari et al. v. Burgess et al. , No. 07 CV 1425 (N.D. Ill.). Both Needle and Royce are entitled to a share of attorneys' fees earned in that case. Before those funds were paid out, Royce brought this interpleader action against Needle's law firm, Michael R. Needle, P.C. ("MRNPC"), and the sixteen Amari plaintiffs, seeking an adjudication concerning the distribution of the settlement funds, now on deposit in the court's registry. While the interpleader action was pending, Needle gave a security interest in his firm's share of settlement funds to Mayer Brown LLP ("Mayer Brown.") Thereafter, Needle retained Cozen O'Connor ("Cozen") to represent MRNPC in the interpleader action. Cozen has since withdrawn, but now claims its own interest in MRNPC's share of the Amari fees.
Significantly, MRNPC's share of the fees is insufficient to satisfy both Mayer Brown's and Cozen's interests. The question before this court, therefore, is which of their claims takes priority. In an order dated February 4, 2019, the court determined that it has jurisdiction to adjudicate the dispute between Mayer Brown and Cozen, but that neither side had adequately briefed it. (February 2019 Order [1075], 1, 5-6.) The court therefore directed the parties to file supplemental briefs addressing the following questions: (1) What state law applies to this dispute? (2) Does the applicable law require that value be given to the debtor in return for a security interest? (3) At what point does each lien attach? (4) Which is superior, an Article 9 security interest or a valid attorney's lien? (Id. at 14.) Having reviewed the parties' supplemental briefs, the court concludes that Mayer Brown's security interest is superior to Cozen's lien. Mayer Brown's motion to enforce its prior perfected lien [963] is therefore granted, and Cozen's motion for immediate payment of funds from the court's registry [961] is denied.
BACKGROUND
The court assumes familiarity with the procedural and factual background in this *973case, which is summarized in the February 2019 Order. To further clarify the issues, the court adds the following details.
On August 20, 2015, Judge Milton Shadur (to whom this case was originally assigned) ruled on the share of the Amari settlement proceeds recoverable as attorneys' fees. (August 2015 Order [130].) Needle's position was that the attorneys-Needle and Royce-should collectively recover sixty percent of the settlement proceeds; but Judge Shadur sided with Royce on this issue, concluding that the attorneys were collectively entitled to one third of the settlement payout. (See id. at 1-2, 11; February 2019 Order 2.) After reassignment, on March 12, 2018, this court allocated the one-third attorneys' share between Royce and MRNPC. (March 2018 Order [874].) Specifically, the court awarded sixty percent of the one-third share to MRNPC and forty percent to Royce, over Needle's objection that he is entitled to more than sixty percent. (See id. at 3.) Needle has appealed both rulings. (February 2019 Order 2.)
John Cardullo and Sons ("Cardullo") was one of sixteen plaintiffs in the Amari litigation. (July 30, 2018 Affidavit of Michael Needle [971] ("Needle Aff.") ¶ 3.)1 Cardullo and fifteen other Amari plaintiffs were represented by Needle in that litigation. (Needle Aff. ¶ 3.) Needle no longer represents the other fifteen plaintiffs; his work for them ended after Amari concluded. (Id. ) Needle does still represent Cardullo for certain purposes (see MRNPC Second Amended Answer, Affirmative Defenses, and Counterclaims (Revised and Undredacted) ("MRNPC Second Am. Ans.") [382] ¶ 10), but does not and cannot represent Cardullo in the present interpleader action,2 presumably because Needle and Cardullo's interests are now in conflict: Cardullo would benefit from maximizing the plaintiffs' share of the Amari settlement, while Needle would benefit from reducing it. (See Needle Aff. ¶ 5 (recognizing that Needle and Cardullo have different interests in "division of the settlement between plaintiffs and lawyers").)3
In the summer of 2015, Needle sought representation for Cardullo and contacted Mayer Brown. (Needle Aff. ¶ 6.) Needle has not explained why he attempted to find counsel for Cardullo, nor why Cardullo was unable to do so on its own. Needle does assert, however, that after Amari *974settled, he "came to suspect that the plaintiffs' Management Committee and [Royce] were attempting to divert large amounts of the settlement fund to themselves to the detriment of MRNPC, Cardullo, and other Amari plaintiffs." (Id. ¶ 4.) Needle hoped that this interpleader action "would uncover what had occurred." (Id. ¶ 5.) Needle asserts his belief that "Cardullo's and MRNPC's interests were aligned because both were victims of the same scheme." (Id. ) Needle suggests that these factors motivated him to retain Mayer Brown for Cardullo. (See id. ¶¶ 4-6.)
"After discussions with Mr. Needle and Cardullo's principal, Pat Cardullo," Mayer Brown agreed to appear as local counsel for Cardullo. (Affidavit of Howard J. Roin in Support of Mayer Brown Motion to Enforce its Prior Perfected Lien [963-4] ("Roin Aff.") ¶ 4.) Cardullo made Mayer Brown its principal counsel in September 2016, after Cardullo "was served with a purported distribution schedule under which it would have received only a miniscule amount of the settlement." (Id. ¶ 5.)4 "Cardullo also authorized Mayer Brown to consult with Mr. Needle concerning the facts and background of the case." (Id. ) Cardullo, however, "quickly fell far behind in paying Mayer Brown's bills." (Id. ¶ 6.) At that time, Needle "still believe[d] that Cardullo's and MRNPC's interests largely were aligned," and thought that "it would benefit both Cardullo and MRNPC for Mayer Brown to continue to represent Cardullo." (Needle Aff. ¶ 9.)
In light of the interests that Mayer Brown purportedly shared with MRNPC,5 "MRNPC agreed to give Mayer Brown a lien on MRNPC's share of the underlying settlement fund with respect to Mayer Brown's bills." (Id. ) In agreeing to this proposal, Mayer Brown "stressed" to both Cardullo and MRNPC that Mayer Brown represents Cardullo, not MRNPC. (Roin Aff. ¶ 8.) Mayer Brown and Needle memorialized their agreement concerning the security interest in a letter dated July 27, 2017. (See Mayer Brown Motion to Enforce its Prior Perfected Lien [963] ("Mayer Brown Mot."), 2 ¶ 6.) By August 15, 2017, Mayer Brown's unpaid bills for representing Cardullo exceeded $ 700,000. (Id. at 3 ¶ 7.)
In contrast with its zeal in obtaining counsel for Cardullo, MRNPC has for lengthy periods proceeded in this case without independent counsel. Between August 2015 and October 2015, attorneys filed appearances for MRNPC but then quit in quick succession: MRNPC's original attorney withdrew from the case in August 2015; MRNPC obtained a new attorney in September 2015; and the new attorney moved to withdraw less than a month later. (See Appearance [14]; Motion *975to Withdraw [124]; Order Granting Motion to Withdraw [148]; Appearance [167]; Motion to Withdraw [192]; Order Granting Motion to Withdraw [203].) Additionally, in October 2015, Judge Shadur denied Needle's motion to appear pro hac vice to represent MRNPC. (See Order [191]; October 23, 2015 Hearing Tr. [200], 20.) Judge Shadur reasoned that because Needle operates MRNPC as its sole member and president, there is no real distinction between Needle and MRNPC; Needle was going to be a key witness in the case; and allowing Needle to serve as both an attorney and a witness would be inappropriate. (See October 23, 2015 Hearing Tr. 4-5, 12-20 (discussing lawyer-witness rule); see also September 19, 2016 Order [403] ("September 2016 Order"), 2 (discussing same).)
Dismayed by this ruling, Needle delayed for months in obtaining counsel for MRNPC, delaying the resolution of this case as well. (See September 2016 Order 2, stating that Needle's failure to obtain counsel "effectively shut[ ] down the ability of the lawsuit to proceed in a realistic manner".) On May 6, 2016, presumably to keep the litigation from coming to a standstill, Judge Shadur granted Needle leave to appear pro hac vice . (Order [279].) But because Needle engaged in "obstructionist," "inappropriate[ ]" conduct, Judge Shadur revoked his pro hac vice status on September 15, 2016. (September 2016 Order 2-3, 6.) Judge Shadur ordered Needle and MRNPC "to obtain responsible new counsel to represent" MRNPC by October 17, 2016. (Id. at 6.) He also struck, without prejudice, MRNPC's second amended answer, affirmative defenses, and counterclaims, and all earlier versions thereof. (See id. ) Needle did not meet the deadline. (See Order [424].) Judge Shadur relented in part, reinstating Needle's pro hac vice status for the limited purpose of "addressing the questions of law posed" by MRNPC's answer, affirmative defenses, and counterclaims. (Id. ) But he prohibited Needle from taking discovery "before the pleadings issues ha[d] been resolved." (Id. ) On January 13, 2017, Judge Shadur revoked Needle's pro hac vice status yet again. (Order [481].)
As of February 2017, Needle had not yet obtained counsel for MRNPC. (See, e.g. , Royce Motion for Dismissal of Counterclaim and for Order of Default and for Default Judgment [517] ("Royce Default Mot.") ¶¶ 1, 48.) On February 14, 2017, Royce filed a motion seeking an order of default and default judgment against MRNPC. (See generally Id. ) Royce contended, among other things, that he was entitled to an order of default because MRNPC had failed to obtain counsel for nearly eleven months. (See, e.g. , id. ¶ 65.) Royce also sought a default judgment awarding him fifty percent of the one-third attorneys' share of the Amari settlement fund. (See, e.g. , id. ¶¶ 73-74, 101.) Royce asserted that he had maintained contemporaneous time records in Amari that support his claim to fifty percent of the share. (See, e.g. , id. ¶ 75.) Royce contended that Needle did not maintain contemporaneous time records, and that for this and other reasons, MRNPC is not entitled to the larger share it seeks. (See, e.g. , id. ¶¶ 75, 94.)
In August 2017, MRNPC, still facing the threatened default, finally obtained Cozen as its counsel.6 Cozen, Needle, and MRNPC "entered into a written retention agreement" on August 29, 2017. (See Cozen Response in Opposition to Mayer *976Brown's Motion to Enforce its Prior Perfected Lien and Reply in Further Support of its Motion for Payment of Funds from the Court's Registry [1046] ("Cozen Opp."), 5.) Cozen's compensation, as set forth in the agreement, was contingent on MRNPC's recovery and was to be paid from the fee award to MRNPC. According to Cozen, at the time it entered into the retention agreement, neither Needle nor Mayer Brown had notified Cozen of Mayer Brown's security interest in those same funds. (See id. ) Three Cozen attorneys entered their appearances on August 30 and 31, 2017. (Appearances [756, 757, 758].)
Mayer Brown reports that it first learned of Cozen's intention to represent MRNPC on September 1, 2017. (Mayer Brown Mot. 4 ¶ 14.) That same day, attorney Howard Roin of Mayer Brown wrote in an e-mail to Cozen, "we should talk about [Needle's] prior letter to my firm committing that Needle PC would pay my firm's fees and granting my firm a lien for that purpose." (September 1, 2017 Mayer Brown E-mail, 10:03 a.m. [963-3].) Mayer Brown also attached a copy of the July 27, 2017 letter to the e-mail message. (See id. )7 Cozen responded, in relevant part, "I will leave it to [Needle] to speak with you regarding your prior discussions pertaining to your firm's fee since they are unrelated to our firm's representation of [Needle] in connection with his fee dispute with Royce." (September 1, 2017 Cozen E-mail [963-3].) Mayer Brown countered, "The fees are directly related because we both seek to be paid from the same source, so I would like to be sure we and Mike Needle have an understanding at the outset." (September 1, 2017 Mayer Brown E-mail, 11:18 a.m. [963-3].) Needle was copied on all three e-mails. (See September 1, 2017 E-mails.)
Despite this warning ("we both seek to be paid from the same source"), Cozen asserts that "[n]othing in [this] correspondence expressed that Mayer Brown sought to be paid before Cozen received its fee." (Cozen Opp. 5-6.) Cozen also contends that in other correspondence on September 1, 2017, "Needle advised [it] that Mayer Brown did not have a valid lien, and was not seeking to be paid before Cozen received payment." (Id. at 6 (citing Elliott R. Feldman Declaration in Support of Cozen Petition to Adjudicate and Enforce Attorney's Lien [910-1] ¶ 8).) If that correspondence is in the record, the court has not been able to locate it.
On September 14, 2017, Mayer Brown filed a UCC financing statement with Pennsylvania's Secretary of the Commonwealth.8 (Mayer Brown Mot. 8 ¶ 34.) Cozen states that on October 10, 2017, Needle "advised [attorneys at Cozen] that Mayer Brown was unwilling to compromise its position concerning its purported priority lien on MRNPC's share of the funds." (Cozen Opp. 8.)9 "As a result, Cozen notified MRNPC" that it intended to withdraw from representation after thirty days. (Id. ) Before Cozen moved to withdraw, however, it filed a sur-reply in opposition to Royce's default motion [770]. As a result, the court declined to enter a default order against MRNPC. On October 27, 2017 and November 8, 2017, "Cozen served Needle, MRNPC, Royce and his attorney with a *977Notice of Attorney's Lien" under the Illinois Attorneys Lien Act. (Cozen Opp. 7; see Cozen Statutory Lien Notices [881-3].) Cozen moved to withdraw on November 13, 2017 [795], and the court granted the motion on November 21, 2017 [806].
After Cozen withdrew, Needle retained another attorney, Frank Fusco, to represent MRNPC. At this court's direction, on December 14, 2017, Fusco, on behalf of MRNPC, and counsel for Royce filed simultaneous five-page briefs on the appropriate division of the one-third share of the Amari settlement fund between Royce and MRNPC [833, 834]. As explained above, this court determined that MRNPC should receive sixty percent of the share and Royce should receive forty. (See March 2018 Order 3.)
As of September 2017, the Amari settlement fund was being held in Royce's escrow account at a Northern Trust bank in Chicago, Illinois. (See Cozen Supplemental Brief in Opposition to Mayer Brown's Motion to Enforce its Prior Perfected Lien and in Further Support of its Motion for Payment of Funds from the Court's Registry [1083] ("Cozen Supp. Br."), 5; see also Royce December 2017 Motion for Leave to Transfer Escrow to Court's Registry [849].) On or around January 3, 2018, Royce transferred the funds into the court's registry. (See January 3, 2018 Order [858].)
DISCUSSION
Mayer Brown now asks this court to find that its interest in MRNPC's share of attorneys' fees has priority over Cozen's interest. Specifically, Mayer Brown argues that its security interest "attached" to MRNPC's share of fees, and that Mayer Brown "perfected" that interest by filing a financing statement on September 14, 2017, trumping any interest held by Cozen. Cozen disputes that Mayer Brown holds a security interest of any kind. Moreover, Cozen contends that even if Mayer Brown holds a perfected security interest, Cozen's own interest (which Cozen believes to be either a statutory attorney's lien, a charging lien, or an interest based in the common fund doctrine) is superior. These disputes create three distinct questions for the court to decide: (1) whether Mayer Brown has a valid and enforceable security interest, (2) whether Mayer Brown perfected that interest, and (3) whether, in any event, Mayer Brown's interest is trumped by one held by Cozen. The court addresses these questions in turn.
Because the court is sitting in diversity, it applies Illinois choice-of-law rules to determine which state's law must be applied to each of these issues. See Heiman v. Bimbo Foods Bakeries Distrib. Co. , 902 F.3d 715, 718 (7th Cir. 2018). In Illinois, "a choice-of-law determination is required only when a difference in law will make a difference in the outcome." Townsend v. Sears, Roebuck & Co. , 227 Ill. 2d 147, 155, 879 N.E.2d 893, 898, 316 Ill. Dec. 505, 510 (2007) ; see also West Side Salvage, Inc. v. RSUI Indem. Co. , 878 F.3d 219, 223 (7th Cir. 2017) (citing same). With these principles in mind, the court turns to the issues at hand.
I. Attachment
"Attach" is the term used in Article 9 of the Uniform Commercial Code (the "UCC") to "describe the point at which property becomes subject to a security interest." 33 Ill. Law and Prac. Secured Transactions § 74. It "relates to the creation and enforceability of a security interest between the parties to a transaction," and is a prerequisite to "perfection." Id. Cozen disputes that Mayer Brown's security interest attached to MRNPC's share of the Amari settlement.
*978A. Choice of Law
Although the parties disagree on which state's law applies to this issue-Cozen argues that Illinois law applies, whereas Mayer Brown believes Pennsylvania law governs-both agree that the rules set out in Article 9 of the UCC, adopted in both Illinois and Pennsylvania, control the substantive law on this point. (See Cozen Supplemental Brief [1083] at 3; Mayer Brown Supplemental Brief [1084] at 4.) See also 810 ILL. COMP. STAT. 5/9-101 et seq. ; 13 PA. CONS. STAT. § 9101 et seq . Each state's courts have interpreted Article 9 in differing ways that may be material to the outcome of the attachment issue. Indeed, the parties' dispute suggests they themselves acknowledge that varying interpretations of the UCC may be material to the outcome.
There is, unfortunately, no provision of the UCC that governs choice of law in these circumstances. Article 9 itself includes a choice-of-law provision, but it expressly governs only disputes based on perfection or priority. Specifically, Part 3 of Article 9, titled "Perfection and Priority," sets out rules for determining which law ought to govern "perfection, the effect of perfection or nonperfection, and the priority of a security interest in collateral." 810 ILL. COMP. STAT. 5/9-301. This statute therefore does not govern the immediate issue: whether an enforceable security interest exists at all. See Peb Report: Article 9 Perfection Choice of Law Analysis Where Revised Article 9 Is Not in Effect in All States by July 1, 2001 [hereinafter "Peb Report"], 56 BUS. LAW. 1725, 1731 (2001) (drawing a distinction between Section 9-301, which provides choice of law rules for perfection and priority, and a now-defunct Section 1-105, which provided the choice of law rule for attachment). Rules relating to attachment appear in a different section of the UCC; that section, Part 2, "Effectiveness of Security Agreement; Attachment of Security Interest; Rights of Parties to Security Agreement," does not contain its own choice-of-law provision. See generally 810 ILL. COMP. STAT. 5/9-203.
A prior version of the UCC, adopted in Illinois in 2001, stated that UCC issues not covered by another choice-of-law provision or prior agreement of the parties were to be governed by Illinois law "where appropriate." See 810 ILL. COMP. STAT. 5/1-105 (repealed December 31, 2008). This section, while in force, functioned as the choice-of-law rule for attachment issues. See Peb Report , supra , at 1731 n.20. For reasons that the court has not been able to ascertain, however, this section was removed from the UCC in 2008, and was not replaced in form or in substance.
As neither party has identified a valid choice-of-law rule that applies to these circumstances,10 and the court is not itself aware of any, the court will instead rely on general choice-of-law principles observed in Illinois. See Clark v. TAP Pharm. Prod., Inc. , 343 Ill. App. 3d 538, 547, 798 N.E.2d 123, 278 Ill. Dec. 276 (5th Dist. 2003). Illinois courts endeavor to apply the law of the forum that "has the most significant relationship with the occurrence and with the parties." Id. (citing Ingersoll v. Klein , 46 Ill.2d 42, 47, 262 N.E.2d 593 (1970) ). To determine which forum this is, Illinois courts consider "(1) the place where the injury occurred, (2) the place where the conduct occurred, (3) the parties' domicile, nationality, place of incorporation, *979and place of business, and (4) the place where the parties' relationship is centered." Id. (citing Ingersoll , 46 Ill.2d at 47-48, 262 N.E.2d at 595-96.)
Here, there is no "injury" that the court believes can be assigned to a particular jurisdiction. Nor do the parties' places of business answer the question: Mayer Brown is headquartered in Illinois, whereas MRNPC is headquartered in Pennsylvania. The relevant conduct, however, seems to have taken place substantially in the Northern District of Illinois. This is, after all, where Amari was litigated and settled, creating the fund that Mayer Brown seeks to draw on. It is also where Mayer Brown litigated the case for which it now seeks fees. The court concludes that Mayer Brown and MRNPC's relationship, to the extent it was "centered" anywhere, was in the Northern District of Illinois and will therefore apply Illinois substantive law and precedent to the attachment issue.
B. Analysis
Under Article 9, a security interest "attaches" to collateral "when it becomes enforceable against the debtor with respect to the collateral, unless an agreement expressly postpones the time of attachment." ILL. COMP. STAT. 5/9-203(a). With certain exceptions that are inapplicable here, "a security interest is enforceable against the debtor and third parties with respect to the collateral only if (1) value has been given; (2) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and (3) one of [four additional conditions] is met ...." 810 ILL. COMP. STAT. 5/9-203(b).
The parties' dispute regarding the enforceability of Mayer Brown's security interest concerns only the "value has been given" requirement. Cozen recognizes that Illinois law governs the issue of enforceability because " Section 5/9-203 does not make the type of collateral ... determinative of the applicable state law" and the court is sitting in diversity in Illinois. (Cozen Supp. Br. 3-4.) According to Cozen, Illinois appellate courts interpret the "value has been given" language "to require that the creditor must give value to the debtor ." (Id. at 6 (emphasis added) (citing, among other cases, Metro. Life Ins. Co. v. Am. Nat'l Bank & Trust Co. , 288 Ill. App. 3d 760, 766, 682 N.E.2d 72, 76, 224 Ill. Dec. 511, 515 (1st Dist. 1997) ).)11 Cozen emphasizes that Mayer Brown represents only Cardullo in this lawsuit and argues that Mayer Brown did not provide value to MRNPC-the debtor. (See Cozen Supp. Br. 7.) Cozen concludes that as a result, Mayer Brown's security interest is unenforceable.
Mayer Brown responds that Cozen has the law wrong, and that "neither Illinois nor Pennsylvania law requires that value must be given to the debtor ." (Mayer Supp. Br. 5.) The words "to the debtor" are not present in the relevant UCC provision, Mayer Brown emphasizes, and the case law does not support the proposition that a security interest is unenforceable unless the secured party has given value to the debtor. To the extent the court in Metropolitan Life suggests there is such a requirement, it "incorrectly paraphrase[s]" the UCC provision and relies on a case that does the same. (Mayer Brown Reply 5 n.5.) And, Mayer Brown observes, the language is dictum ; the Metropolitan Life case does not discuss whether a security interest is enforceable where the creditor gives value to someone other than the debtor.12 Finally, Cozen has not cited any *980case directly holding that a security interest is unenforceable in that circumstance. (See Mayer Brown Reply 5.)
By contrast, the Seventh Circuit has rejected the argument that "the value given in fulfillment of Section 9-203 must be extended to the debtor, rather than to a third party." In re Reliable Mfg. Corp. , 703 F.2d 996, 1000 (7th Cir. 1983) ; see Mayer Brown Reply 5-6; Mayer Brown Supp. Br. 5. In In re Reliable , the court explained, among other things, that under the relevant sections of the UCC, " 'value' may consist in 'any consideration sufficient to support a simple contract.' " Id. (quoting ILL. REV. STAT. ch. 26, § 1-201(44)(d) ).13 In Illinois, the court continued, a "benefit to a third party is clearly sufficient to support a simple contract." Id. (citing, inter alia, Lauer v. Blustein , 1 Ill. App. 3d 519, 521, 274 N.E.2d 868, 870-71 (1st Dist. 1971) ). The court also stated that for purposes of Section 9-203, "[i]t is enough ... that there be detriment to the secured party even if there is no benefit to the owner of the assets subject to the security interest." Id. (citing In re Terminal Moving & Storage Co. , 631 F.2d 547, 550-51 (8th Cir. 1980) (en banc)) ("There is no requirement under the U.C.C. that the entity whose assets are pledged must receive consideration.").
Cozen argues that this court should not follow In re Reliable ; the Illinois Supreme Court has not interpreted Section 9-203's value requirement and therefore, Cozen contends, decisions of Illinois appellate courts control. (See Cozen Supp. Br. 7 n.2.) But as just explained, Cozen has not cited any Illinois appellate decisions that support its position, and the court has found none. In re Reliable , on the other hand, is directly on point. The court, therefore, concludes that value extended to someone other than the debtor can fulfill the "value has been given" requirement set forth in 810 ILL. COMP. STAT. 5/9-203(b). See In re Reliable , 703 F.2d at 1000. So, too, can a "detriment to the secured party." Id.
Mayer Brown argues that it provided "substantial value" in exchange for the security interest by providing legal services to Cardullo. (Mayer Brown Supp. Br. 5.) For example, Mayer Brown contends that it "increased Cardullo's share of the settlement fund from approximately $ 62,000 to $ 850,000." (Id. at 6; see also Proposed Distribution Schedule as of November 2017 [805-1] (allocating approximately $ 62,000 to Cardullo); Amended Judgment Order [960] (awarding $ 850,000 to Cardullo).) Cozen does not appear to dispute this, nor, more generally, the proposition that Mayer Brown provided value to Cardullo. (See generally Cozen Opp. 10-12; Cozen Supp. Br. 6-7.) The court concludes that by providing legal services to Cardullo, Mayer Brown supplied "consideration sufficient to support a simple contract," and therefore gave "value" under the meaning of the UCC.14
*981In re Reliable , 703 F.2d at 1000 ; 810 ILL. COMP. STAT. 5/1-204(4).15 Accordingly, Mayer Brown has satisfied Article 9's "value has been given" requirement, and its security interest is enforceable. 810 ILL. COMP. STAT. 5/9-203(b).
Mayer Brown asserts that its security interest attached on July 27, 2017, when Mayer Brown and MRNPC finalized their letter agreement. (See Mayer Supp. Br. 7-8.) Notwithstanding its dispute that attachment occurred at all, Cozen concedes the point as to timing. (See Cozen Supp. Br. 7.)
II. Perfection and Priority of Mayer Brown's Security Interest
"Perfection of a security interest entitles a creditor to take priority in the collection and liquidation of collateral pledged by a debtor to such creditor as against other creditors who are either unsecured or who perfect their security interests in such collateral at a later point in time." In re B & M Hospitality LLC , 584 B.R. 88, 95 (Bankr. E.D. Pa. 2018) ; see also Sign Builders, Inc. v. SVI Themed Constr. Solutions, Inc. , 2015 IL App. (1st) 142212, ¶ 16, 30 N.E.3d 475, 479, 391 Ill. Dec. 205, 209 ("In general ... a competing claim to ... assets by a secured creditor will take priority over a lien creditor, provided the secured creditor has perfected its lien." (citing 810 ILL. COMP. STAT. 5/9-317(a) )); 810 ILL. COMP. STAT. 5/9-317(a)(1), (a)(2)(A) (providing that a security interest is subordinate to the rights of "[a] person entitled to priority under Section 9-322" and "a person that becomes a lien creditor before ... the security interest ... is perfected"); 13 PA. CONS. STAT. § 9317(a)(1), (a)(2)(i) (same) ; 810 ILL. COMP. STAT. 5/9-322(a)(1) ("Conflicting perfected security interests ... rank according to priority in time of filing or perfection."); 13 PA. CONS. STAT. § 9322(a)(1) (same).
A. Choice of Law
Article 9 of the UCC contains several rules that dictate which state law governs the perfection and priority of a security interest, depending on the circumstances. See, e.g. , 810 ILL. COMP. STAT. 5/9-301 ; 13 PA. CONS. STAT. § 9301. Under the "[g]eneral rule," the debtor's location determines the choice of law. (See Mayer Brown Supp. Br. 4.) Specifically, Article 9 provides that "Except as otherwise provided in this Section, while a debtor is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in collateral." 810 ILL. COMP. STAT. 5/9-301(1) ; 13 PA. CONS. STAT. § 9301(a) (same). Moreover, Article 9 defines "collateral" as "property subject to a security interest" including "(A) proceeds to which a security interest attaches; (B) accounts, chattel paper, payment intangibles, and promissory notes that have been sold; and (C) goods that are the subject of a consignment."
*982810 ILL COMP. STAT. 5/9-102(a)(12) ; 13 PA. CONS. STAT. § 9102(a) (same).16 Mayer Brown argues that its security interest in MRNPC's share of the settlement fund is an interest in "proceeds," and therefore constitutes collateral. (Mayer Brown Supp. Br. 4 & n.3 (citing 810 ILL COMP. STAT. 5/9-102(a)(12)(A) ; 13 PA. CONS. STAT. § 9102(a).) Because the debtor, MRNPC, is located in Pennsylvania, Mayer Brown continues, Pennsylvania law governs the perfection and priority of the security interest. (See Mayer Brown Mot. 7 ¶ 28; Mayer Brown Supp. Br. 4 & n.3.)
Cozen argues that Mayer Brown's security interest is in a "deposit account," which is distinct from other "collateral" for purposes of Article 9. (See Cozen Supp. Br. 5.) The distinction is critical because under Article 9, the location of the deposit account-rather than the location of the debtor-determines the state law applicable to perfection and priority issues. See 810 ILL. COMP. STAT. 5/9-304(a) ("The local law of a bank's jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in a deposit account maintained with that bank."); 13 PA. CONS. STAT. § 9304(a) (same). According to Cozen, the settlement fund was in Royce's escrow account at an Illinois bank in September 2017, when Mayer Brown "attempted to perfect its alleged security interest." (Cozen Supp. Br. 5.) Cozen maintains, therefore, that Illinois law governs issues of perfection and priority.
In its February 2019 Order, the court noted that UCC provisions regarding "deposit accounts" might be applicable to the parties' dispute. (See February 2019 Order 6.) The court requested supplemental briefing on this and other issues. Cozen and Mayer Brown have provided very little analysis regarding deposit accounts in their supplemental briefing. Cozen's argument that Mayer Brown has a security interest in a deposit account is limited to the facts recounted in the preceding paragraph. Mayer Brown, for its part, contends only that the UCC defines collateral to include "proceeds to which a security interest attaches," and argues that its "collateral is in MRNPC's share of the settlement fund, not the court registry itself." (Mayer Brown Supp. Br. 4 n.3.)
The court concludes that Mayer Brown's security interest is in collateral, not a "deposit account." Under Article 9, a "deposit account" means "a demand, time, savings, passbook, nonnegotiable certificates of deposit, uncertificated certificates of deposit, nontransferrable certificates of deposit, or similar account maintained with *983a bank. The term does not include investment property or accounts evidenced by an instrument." 810 ILL. COMP. STAT. 5/9-102(a)(29) ; see also 13 PA. CONS. STAT. § 9102(a) (similar). In the case law the court has located, courts have determined that escrow accounts are not "deposit accounts" under the meaning of Article 9. See In re O.P.M. Leasing Servs., Inc. , 46 B.R. 661, 670 n.5 (Bankr. S.D.N.Y. 1985) (rejecting argument that an escrow account is a "deposit account"); In re Miller , No. 16-12687-B-7, 2018 WL 878841, at *5 (Bankr. E.D. Cal. Feb. 12, 2018) ("The Placer Title escrow is not a demand, time, savings, passbook, or similar account. In particular, under California law, escrow holders are not demand depositories."); Bochetto & Lentz, P.C. v. WFIC, LLC , No. 2828 EDA 2014, 2015 WL 7199005, at *6 (Pa. Super. Ct. July 30, 2015) (nonprecedential) ("An escrow account ... is not a deposit account ...."). The court also notes that although the fund is now in the court's registry, the court has, in effect, assumed Royce's role as escrow agent for the fund. (See Escrow Definition , MERRIAM-WEBSTER.COM , https://www.merriam-webster.com/dictionary/ escrow?src=search-dict-hed (last visited May 20, 2018) (defining "escrow" as "a deed, bond, money, or a piece of property held in trust by a third party to be turned over to the grantee only upon fulfillment of a condition).) Thus, the court's registry is not a "deposit account," either.
Because Mayer Brown's security interest is in "collateral" rather than a "deposit account," the court will apply Pennsylvania law to perfection and priority issues. (See Cozen Supp. Br. 12 n.4 ("The Court should apply Pennsylvania law in determining whether Mayer Brown has a perfected and priority lien on MRNPC's Share if it decides that the rules relevant to a deposit account are not applicable.")); cf. Auto-Owners Ins. Co. v. Websolv Computing, Inc. , 580 F.3d 543, 547 (7th Cir. 2009) ("[I]t is the exceptional circumstance that a federal court, or any court for that matter, will not honor a choice of law stipulation." (internal quotation marks omitted)).
B. Analysis
The priority of a security interest depends in part on when the secured party perfected it. See 13 PA. CONS. STAT. § 9-317(a). Under Pennsylvania law, a secured party must perfect its security interest by "fil[ing] a financing statement with the Office of the Secretary of the Commonwealth." In re B & M , 584 B.R. at 95-96 (citing 13 PA. CONS. STAT. § 9310(a) ; 13 PA. CONS. STAT. § 9501(a)(2) ).17 A financing statement is considered sufficient if it "(1) provides the name of the debtor; (2) provides the name of the secured party or a representative of the secured party; and (3) indicates the collateral covered by the financing statement." 13 PA. CONS. STAT. § 9502(a)(1)-(3). There is no dispute that Mayer Brown perfected its security interest on September 14, 2017 "by filing a UCC Financing Statement with the Secretary of the Commonwealth of Pennsylvania ...." (Mayer Brown Mot. 3 ¶ 8; see also Mayer Brown Supp. Br. 8; Cozen Supp. Br. 11.)18 With that date in mind, the court *984turns to the parties' dispute regarding the priority of Mayer Brown's security interest.
Cozen purports to hold its own enforceable interest in MRNPC's settlement fund under three different theories: Cozen claims a statutory attorney's lien, a common law charging lien, and an interest based in the "common fund" doctrine. Cozen does not contend, however, that its statutory attorney's lien would have priority over a prior perfected security interest. See Cozen Supp. Br. 11; see also 13 PA. CONS. STAT. § 9-317(a)(2)(i) (a security interest is subordinate to the rights of "a person that becomes a lien creditor before ... the security interest ... is perfected"); Almi, Inc. v. Dick Corp. , 31 Pa. Commw. 26, 42, 375 A.2d 1343, 1351 (Pa. Commw. Ct. 1977) ("The order of the priority of state and federal statutory liens is to be determined in accordance with the principle of law that the first choate lien in time is the first lien in right."); In re B & M , 584 B.R. at 95 (creditor with perfected security interest "take[s] priority" over unsecured creditors or those "who perfect their security interests ... at a later point in time"). The court has concluded that Mayer Brown does have an enforceable, prior perfected security interest, and therefore turns to Cozen's remaining arguments: (1) that it holds an enforceable charging lien, and (2) that the common fund doctrine applies.
1. Charging Lien
"An attorney's lien, also known as a charging lien, is defined, in pertinent part, as '[t]he right of an attorney to have expenses and compensation due for services in a suit secured to the attorney in a judgment, decree or award for a client.' " Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C. , 179 A.3d 1093, 1099 n.6 (Pa. 2018) (quoting BLACK'S LAW DICTIONARY 6th Ed. (1990) at 233). For a charging lien to "be recognized and applied, it must appear (1) that there is a fund in court or otherwise applicable for distribution on equitable principles, (2) that the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid, (3) that it was agreed that counsel look to the fund rather than the client for his compensation, (4) that the lien claimed is limited to costs, fees or other disbursements incurred in the litigation by which the fund was raised and (5) that there are equitable considerations which necessitate the recognition and application of the charging lien." Recht v. Urban Redevelopment Auth. of City of Clairton , 402 Pa. 599, 608, 168 A.2d 134, 138-39 (1961) ; see also Meyer , 179 A.3d at 1099 n.6 (setting forth the Recht factors); Johnson v. Stein , 254 Pa. Super. 41, 43-44, 385 A.2d 514, 515-16 (Pa. Super. Ct. 1978) (same).
The charging lien doctrine "operate[s] on equitable principles." In re Howard , 465 F. App'x. 152, 156 (3d Cir. 2012) (unpublished). It "does not depend upon possession, but upon the favor of the court in protecting attorneys, as its own officers, by taking care ... that a party should not run away with the fruits of the cause without satisfying the legal demands of the attorney by whose industry those fruits were obtained." Appeal of Harris , 323 Pa. 124, 130-31, 186 A. 92, 95 (1936) ; see also *985Kelly v. Vennare , No. 2069 WDA 2014, 2016 WL 1062819, at *4 (Pa. Super. Ct. Mar. 16, 2016) (non-precedential) (quoting same); Novinger v. E.I. DuPont de Nemours & Co. , 809 F.2d 212, 218 (3d. Cir. 1987) ("The equitable charging lien gives an attorney the right to be paid out of a fund in court which resulted from his skill and labor, thereby extending only to services rendered in the particular case.").
Cozen argues that it "has an enforceable charging lien" even if "Mayer Brown's secured interest is first-in-time" because, by its August 29, 2017 retention agreement with Needle and MRNPC, "Cozen was expected to recover its fee from MRNPC's Share." (Cozen Supp. Br. 12, 13.) In other words, Cozen contends that an enforceable charging lien is superior to a prior perfected security interest. Cozen also maintains that its "services primarily aid[ed] in producing MRNPC's Share." (Id. at 13.) Mayer Brown, on the other hand, contends that Cozen cannot satisfy "at least" three of the Recht factors: the second, third, and fifth. (Mayer Brown Supp. Br. 10-11.)
As explained in Recht , to have an enforceable charging lien, Cozen's services must have operated "substantially or primarily[ ] to create the fund upon which [it] now claims the right to a charging lien." Recht , 402 Pa. at 609, 168 A.2d at 139 ; see also, e.g. , Appeal of Harris , 323 Pa. at 138, 186 A. at 99 (attorney was entitled to a charging lien where his efforts "produced, to a substantial extent, the fund for distribution"); In re Indep. Pier Co. , 210 B.R. 261, 264 (E.D. Pa. 1997) (an attorney's services "must have substantially, primarily, largely, to a substantial extent, if not exclusively or entirely, procured or generated the fund itself"). An attorney's services do not operate "substantially or primarily" to create a fund merely because they "were valuable." Recht , 402 Pa. at 609, 168 A.2d at 139. In Recht , for example, the court determined that although an attorney had obtained a favorable result in one proceeding, his efforts did not "substantially or primarily" create the fund at issue-which a different attorney had later obtained in a "separate and distinct" (though related) appellate proceeding. See id. Similarly, in In re Independent Pier , the court concluded that where several attorneys had "set in motion a chain of events" and "performed work that was of value" before another attorney took over and settled the case, their "contribution to the creation of the [settlement] fund was indirect and entirely too attenuated to be the primary or substantial procuring cause." 210 B.R. at 263-64 (internal quotation marks omitted). In short, cases concerning charging liens "do not talk in terms of attorneys' having assisted, or provided valuable services, or contributed in some measure, but rather, they concentrate on the extent to which the attorney's skill and services actually produced the fund." Id. at 264.
Mayer Brown argues that Cozen was not substantially or primarily responsible for producing the fund. It first points out that MRNPC and Royce created the settlement fund in the underlying Amari litigation "years before Cozen got involved." (Mayer Brown Supp. Br. 11.) According to Mayer Brown, "[t]his fact distinguishes Cozen's lien claim from all of the cases in which Pennsylvania courts have enforced a charging lien." (Id. at 11 & n.6 (citing Almi , 31 Pa. Commw. at 39-40, 375 A.2d at 1350, and Appeal of Harris , 323 Pa. at 135, 139, 186 A. at 97, 99 ).) This argument has some merit, but it ignores that additional work was required to create the fund that is at issue here: MRNPC's share of the settlement fund.
Mayer Brown next contends that Cozen did not substantially or primarily produce MRNPC's share, either. Mayer Brown's arguments in this regard have more traction.
*986First, of course, Cozen contributed nothing to the decision that the Amari attorneys would receive one-third of the settlement fund; Judge Shadur made that determination "long before Cozen was involved" in this litigation. (Mayer Brown Supp. Br. 12.) In any case, Judge Shadur's ruling was adverse to MRNPC's position that the attorneys should recover a much larger share of the settlement proceeds. Cozen was retained to litigate the dispute concerning the fee division between MRNPC and Royce, but Mayer Brown argues that Cozen "had little if anything to do with" the resolution of that dispute, either. (Id. ) Mayer Brown notes that on November 2, 2017, the court "ordered MRNPC and Royce to file 5-page briefs concerning the division of the attorney's fees," and ultimately "referred to" those briefs "as a basis for its decision" to split the fees 60/40 between MRNPC and Royce, respectively. (Id. ) Cozen moved to withdraw from the case on November 13, 2017, and it was MRNPC's new counsel (Fusco) who filed the court-ordered brief on December 14, 2017. Mayer Brown argues that this timeline, together with Cozen's billing records, show that Cozen "played no role in that brief." (Id. at 12 & n.7.)
Cozen emphasizes that it discussed the fee division issue in the sur-reply opposing Royce's default motion. (See Cozen Opp. 7.) In moving for default, Royce had argued that the court should split the fees 50/50. Cozen responded that because MRNPC "contributed substantially more hours than Royce" to the Amari case, MRNPC should receive a larger share of the fees. (Id. ) Cozen contends that to prepare this argument, it spent "many hours" analyzing documents and conferring with Needle "to gain an understanding of" his time-recording system. (Id. )
The court recognizes that Cozen worked diligently for MRNPC, and that the representation was a challenging one. Needle's reconstructed time records appear to be the only materials that Cozen attorneys had at their disposal to determine exactly what Needle did to earn his fee in Amari . Cozen made a meaningful effort to analyze the records and present them to the court. In addition, as Cozen emphasizes, it staved off a default judgment against MRNPC by stepping into the case. (See Cozen Supp. Br. 13.) And the court stated earlier that Cozen's services were "substantially related to [its] determination of the share of [the] funds ultimately awarded to MRNPC." (February 2019 Order 8; Cozen Supp. Br. 13 (quoting same)). Having now reviewed Pennsylvania law and the parties' supplemental briefs, however, the court concludes that Cozen's work did not in fact "substantially or primarily" produce MRNPC's share of the fund. Recht , 402 Pa. at 608, 168 A.2d at 139.
First, although Cozen likely saved MRNPC from default, Cozen's efforts in this regard are fairly characterized, in the language of the Recht court, as "valuable" work in a separate stage of the proceedings or efforts that "set in motion a chain of events" that ultimately produced the 60/40 fee division. Recht , 402 Pa. at 609, 168 A.2d at 139 ; In re Indep. Pier , 210 B.R. at 264. Cozen's work to prevent the default was too "indirect" and "attenuated" to be the "substantial procuring cause" of the fund. In re Indep. Pier , 210 B.R. at 264. Second, in determining that the attorneys' portion of the fund should be split 60/40 between MRNPC and Royce, the court could not credit Needle's reconstructed time records because it concluded they were largely unreliable. (See March 2018 Order 3.) The court recognizes that Cozen engaged in substantial effort on behalf *987of MRNPC,19 but it is not clear that the work it performed contributed in any way to Fusco's fee-division brief. Third, as Mayer Brown points out, Royce proposed a 50/50 fee split in his default motion. Cozen, therefore, could have contributed, at most, the additional ten percent of the fees to which MRNPC is now entitled. That amounts to approximately $ 70,000-far less than MRNPC's total share: $ 674,928.75. (See Mayer Brown Supp. Br. 13.) It is also "far less than the $ 126,663.66 that Cozen claims it is entitled to be paid." (Id. at 13 n.10.) Pennsylvania law sets a high bar for proving that attorneys' legal services "substantially or primarily" contributed to a fund, and Cozen's legal services, though valuable, do not meet it. Because Cozen cannot satisfy the second Recht factor, it does not have a right to a charging lien. See, e.g. , Recht , 402 Pa. at 608, 168 A.2d at 138-39 (all factors must be present); Shenango Sys. Solutions, Inc. v. Micros-Sys., Inc. , 2005 PA Super 370 ¶¶ 10-11, 887 A.2d 772, 775 (Pa. Super. Ct. 2005) (where attorney could not establish first Recht factor, declining to adjudicate the others).
2. Common Fund Doctrine
Cozen next argues that it "is entitled to be paid from MRNPC's share before Mayer Brown" under Pennsylvania's common fund doctrine. (Cozen Supp. Br. 14.) That doctrine, "also known as the equitable fund doctrine, is an exception to the 'American' rule that, in the absence of statute or contract, each party to adversary litigation is required to pay his own counsel fees." Jones v. Muir , 511 Pa. 535, 541, 515 A.2d 855, 858 (1986). This doctrine recognizes that "[w]here the services protect a common fund for administration or distribution under the direction of the court, or where such fund has been raised for like purpose, it is liable for costs and expenses, including counsel fees incurred." Id. (quoting Hempstead v. Meadville Theological Sch. , 286 Pa. 493, 495-96, 134 A. 103, 103 (1926) ); see also Couy v. Nardei Enters. , 402 Pa. Super. 468, 470, 587 A.2d 345, 346 (Pa. Super. Ct. 1991). The doctrine "rests on the perception that persons who obtained the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense." Couy , 402 Pa. Super. at 471, 587 A.2d at 347 ; see also In re Howard , 465 F. App'x at 156 (the "common fund doctrine operate[s] on equitable principles").
"The 'common fund' exception has traditionally been narrowly applied, and most often invoked where the attorney's efforts have protected or preserved an estate or fund from waste, dissipation or fraudulent claims." Jones , 511 Pa. at 542, 515 A.2d at 859. "The doctrine has also been applied where the services created a fund or augmented it by new assets." Id. "Compensation for the services is then recovered from the fund itself, thereby spreading the costs amongst the beneficiaries." Id. The burden of proof is on "[t]he applicant for counsel fees." Id.
The Pennsylvania Supreme Court has recognized that in the U.S. Supreme Court's common-fund decisions, "the classes of beneficiaries [have been] small in number and easily identifiable"; the "benefits [have been] trace[able] with some accuracy"; and "there [has been] reason for confidence that the costs could indeed be shifted with some exactitude to those *988benefitting." Jones , 511 Pa. at 546, 515 A.2d at 861 (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y , 421 U.S. 240, 264 n.39, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) ); see also In re Second Pennsylvania Real Estate Corp. , 192 B.R. 663, 666 (Bankr. W.D. Pa. 1995) (stating that the common fund doctrine is generally considered applicable when these factors are present).20 Cozen contends these factors are present here. (Cozen Supp. Br. 14.) Specifically, the class of beneficiaries (MRNPC, Cozen, and Mayer Brown) are "sufficiently identifiable"; "the benefits can be accurately traced to" Cozen's efforts; and "the fee can be 'shifted' with exactitude to those benefitting ...." (Id. at 14-15.) Cozen further argues that "Mayer Brown benefitted from Cozen's services, but now dubiously seeks to preclude Cozen from being paid." (Id. at 15.)
As already discussed, Cozen has not demonstrated that its legal services "created" the fund. Jones , 511 Pa. at 544-45, 515 A.2d at 859-60 (finding that an award of attorney's fees "was not justified under the common fund doctrine" because "the fund was created by" a legislative act, and appellee failed to "demonstrate that her counsel's efforts preserved the assets of the fund"); compare In re Second Pennsylvania , 192 B.R. at 667-68 (application of common fund doctrine was appropriate where trial testimony showed that attorney's extensive work was "directly responsible for the creation of" the fund). But the common fund doctrine-unlike the charging lien doctrine-permits recovery of fees by an attorney who merely "protected or preserved" a fund. Jones , 511 Pa. at 542, 515 A.2d at 859. Cozen can meet that test: Cozen's attorneys invested substantial time and effort in representing MRNPC and successfully defended it against Royce's default motion. Royce had proposed a 50/50 fee split, meaning that if the court had granted the motion, it likely would have divided the fund evenly between Royce and MRNPC. Cozen's work allowed MRNPC to continue pressing its claim that it was entitled to more than fifty percent of the fund.
The factors generally present in the Pennsylvania common fund decisions are also present here. Mayer Brown does not dispute that the class of beneficiaries is small. And although Mayer Brown contends that "it is impossible to accurately trace Cozen's contribution" (see Mayer Brown Supp. Br. 11 n.6), the court disagrees for the reasons just discussed. Finally, in light of the court's determination that Cozen protected or preserved at least the additional ten percent of the fund (which amounts to approximately $ 70,000 (see Mayer Brown Supp. Br. 13)), "the fee can be shifted with some exactitude to those benefitting." In re Second Pennsylvania , 192 B.R. at 666 (internal quotation marks omitted).
The court concludes that Cozen has a right to recover fees from MRNPC's share under the common fund doctrine. The analysis, however, does not end here. Rather, the court must determine whether Cozen's right is superior to Mayer Brown's secured interest. Cozen does not expressly *989argue that its right was first in time (see Cozen Supp. Br. 14-15), and such an argument does not appear to be viable in any event. Indeed, although MRNPC and Needle retained Cozen on August 29, 2017, the question whether Cozen's legal work created or preserved the fund could not be answered until Cozen completed the work. Mayer Brown perfected its security interest before that occurred. The question before the court, then, is whether Mayer Brown's prior perfected interest is superior to Cozen's right to recover fees under the common fund doctrine.
The court has found very little case law that addresses this question. (Cozen and Mayer Brown, moreover, have provided virtually no guidance.) In In re Second Pennsylvania , which Cozen cites, the court determined that a law firm could recover fees under the common fund doctrine ahead of a mortgagee whose secured interest was first in time. See 192 B.R. at 665-66, 670. For numerous reasons, the court concluded that the mortgagee would be unjustly enriched "at the expense of" the attorney seeking fees, rather than the mortgagor, if it were allowed to recover first. See id. at 670. Here, the notion that Mayer Brown would be unjustly enriched at Cozen's expense if allowed to recover first is less obvious; before Cozen became involved in the interpleader action, Mayer Brown sought the security interest to ensure it would be compensated for years of legal work in the same action, as well as for future legal work that Mayer Brown completed. In addition, as the court noted in its February 2019 order, the weight of authority holds that prior perfected security interests are superior to later attorneys' liens. (See February 2019 Order 11-12 (collecting cases applying, inter alia , Kentucky, Arkansas, Minnesota, Missouri, Virginia, Florida, and Washington law).) This rule should apply equally to a claim for fees under the common fund doctrine which, in Pennsylvania, is rooted in equitable principles similar to those on which charging liens are based. See, e.g. , Appeal of Harris , 323 Pa. at 130-31, 186 A. at 95 ; Couy , 402 Pa. Super. at 471, 587 A.2d at 347 ; In re Howard , 465 F. App'x at 156. The court applies the rule here and concludes that although Cozen is entitled to recover fees under the common fund doctrine, it can do so only after Mayer Brown has enforced its security interest.
This result is somewhat troubling in these circumstances: Mayer Brown is representing Cardullo, but is being paid by MRNPC, which is Cardullo's adversary vis-à-vis the distribution of the overall settlement fund. Not all of the equities militate in favor of Cozen, however. Cozen's client, Needle, reportedly hid his relationship with Mayer Brown from his own lawyers, but there is documentary evidence that Mayer Brown notified Cozen of its security interest in MRNPC's share on September 1, 2017, just three days after Cozen filed its appearance on behalf of MRNPC. Cozen contends that Mayer Brown did not make clear that it would seek "to be paid before Cozen received its fee" (Cozen Opp. 5-6), but it is not clear what else Mayer Brown could have meant: in its September 1, 2017 e-mail, Mayer Brown warned that it and Cozen "both seek to be paid from the same source ...." (Mayer Brown September 1, 2017 E-mail, 11:18 a.m.) Even assuming Cozen was initially unaware that Mayer Brown would seek to be paid first, the court would expect that Cozen would promptly seek and obtain clarity. Doing so, the court estimates, should have been accomplished in just a few days. Instead, Cozen spent "many hours" working on MRNPC's case and "pursued resolution with Mayer Brown" until October 10, 2017. (Cozen Opp. 7-8.) On that date, Cozen argues, it first discovered that "Mayer Brown was *990unwilling to compromise," and therefore began the process of withdrawing from the case. (Id. at 8.)
Cozen's commitment to its client may be admirable, but its failure to take appropriate, timely measures to protect itself from the foreseeable impact of Mayer Brown's security interest has consequences. Additionally, Cozen's argument that the equities weigh in its favor because Mayer Brown has an alternative source of payment-Cardullo-is unpersuasive. (See, e.g. , Cozen Supp. Br. 15-16.) Namely, Cozen cites no authority for the proposition that Mayer Brown's ability to seek fees from another source is outcome-determinative on the priority of a perfected security interest, of which Mayer Brown promptly notified Cozen.
III. Illinois Rules of Professional Conduct
Cozen finally argues that MRNPC's agreement to give Mayer Brown a security interest in its share of the fund violates Illinois Rule of Professional Conduct 5.4(a). (Cozen Opp. 12.) Rule 5.4(a) provides that, with exceptions not applicable here, "[a] lawyer or law firm shall not share legal fees with a nonlawyer." ILL. S. CT. RULES OF PROF. CONDUCT Rule 5.4(a) ; see also O'Hara v. Ahlgren, Blumenfeld & Kempster , 127 Ill. 2d 333, 343, 537 N.E.2d 730, 735, 130 Ill. Dec. 401, 406 (1989) (quoting then-effective version of Rule 5.4(a) ); In re Marriage of Steinberg , 302 Ill. App. 3d 845, 857, 706 N.E.2d 895, 903, 236 Ill. Dec. 21, 29 (1st Dist. 1998) ("Under Illinois law, agreements to split fees between a lawyer and a nonlawyer are usually against public policy."). Courts "will not enforce a private agreement which is contrary to public policy." O'Hara , 127 Ill. 2d at 341, 537 N.E.2d at 734, 130 Ill. Dec. at 405. MRNPC's share of the fund represents its attorneys' fees from the Amari litigation. Cozen argues that granting Mayer Brown a security interest in the fees "is equivalent to MRNPC giving Cardullo," a non-lawyer, "money to pay Mayer Brown." (Cozen Opp. 12.) Cozen acknowledges that MRNPC plans to provide money directly to Mayer Brown (rather than to Cardullo) but argues that this technicality does not remove the agreement between MRNPC and Mayer Brown from Rule 5.4(a)'s purview. (See id. )
The court disagrees. The comments to Rule 5.4(a) and relevant case law confirm that the rule-and the policy principles underlying it-do not apply to the agreement between Mayer Brown and MRNPC. Comment One to Rule 5.4(a), for example, explains that the rule is in place "to protect the lawyer's professional independence of judgment." ILL. S. CT. RULES OF PROF. CONDUCT Rule 5.4(a), cmt. 1. Comment Two to Rule 5.4(a) cross-references Rule 1.8(f), which provides that a lawyer can accept compensation from a third party "as long as there is no interference with the lawyer's independence of judgment or with the client-lawyer relationship"; "the client gives informed consent"; and the lawyer protects the client's information as otherwise required by the rules. ILL. S. CT. RULES OF PROF. CONDUCT Rule 1.8(f) ; ILL. S. CT. RULES OF PROF. CONDUCT Rule 5.4(a), cmt. 2. Relatedly, in O'Hara , the Illinois Supreme Court provided examples of the "harms" that fee-sharing arrangements between attorneys and non-attorneys can cause. See 127 Ill. 2d at 342-43, 537 N.E.2d at 734-35, 130 Ill. Dec. at 405-06 (stating that potential harms include (1) the possibility that laypersons will solicit clients and control their cases; (2) increased potential for the "unauthorized practice of law"; and (3) the risk that attorneys will "be tempted to devote less time and attention to the cases of the clients whose fees they must share").
The motivation for MRNPC's agreement to grant a security interest to Mayer *991Brown remains a mystery; Mayer Brown is effectively being paid by a party whose interests are at least potentially adverse to those of Mayer Brown's own client. But that agreement does not implicate Rule 5.4 concerns. MRNPC earned the relevant fees in the Amari litigation, which "was over before MRNPC" granted the security interest to Mayer Brown. (Mayer Brown Reply 8.) The agreement, therefore, cannot possibly have impacted MRNPC's "professional independence of judgment" in Amari . ILL. S. CT. RULES OF PROF. CONDUCT Rule 5.4(a), cmt. 1. Mayer Brown, for its part, has not agreed to share fees with a non-attorney. So there is no risk, for example, that Mayer Brown will be "tempted" to spend less time on Cardullo's case. O'Hara , 127 Ill. 2d at 343, 537 N.E.2d at 735, 130 Ill. Dec. at 406. Indeed, MRNPC granted the security interest to Mayer Brown so that it could continue representing Cardullo, and Cardullo consented to the agreement. (See Needle Aff. ¶¶ 9-11; Roin Aff. ¶¶ 4-11.) Finally, although MRNPC is paying Mayer Brown to represent Cardullo, there is no evidence before the court suggesting that MRNPC is "direct[ing]" Mayer Brown's "professional judgment in rendering legal services to" Cardullo. ILL. S. CT. RULES OF PROF. CONDUCT Rule 5.4(a), cmt. 2.
Because the policy concerns underlying Rule 5.4(a) do not apply to the agreement between MRNPC and Mayer Brown, the court concludes that the agreement does not violate Rule 5.4(a). See Chandra v. Chandra , 2016 IL App. (1st) 143858 ¶ 27, 53 N.E.3d 186, 197, 403 Ill. Dec. 132, 143 (concerns outlined in O'Hara and In re Marriage of Steinberg "are completely inapplicable to the instant cause" because "the division of monies contemplated and executed between the parties here in no way involved the 'sharing' of [the attorney's] fee"); In re Marriage of Steinberg , 302 Ill. App. 3d at 857, 706 N.E.2d at 903, 236 Ill. Dec. at 29 (assessing whether "the policy underlying Rule 5.4" was applicable to the agreement); cf. O'Hara , 127 Ill. 2d at 342, 537 N.E.2d at 734, 130 Ill. Dec. at 405 ("The type of harm any particular fee-sharing arrangement may produce is dependent to some extent on the purpose of the contract and the other terms in the agreement.").
CONCLUSION
The court remains puzzled by Attorney Needle's decision to grant a security interest in his fees to the law firm representing Cardullo. But the court concludes that the security interest is enforceable and takes priority over a subsequent lien, as well as over an interest in the fees under Pennsylvania's common fund doctrine. The court therefore grants Mayer Brown's Motion to Enforce its Prior Perfected Lien [963] and denies Cozen's Motion for Payment of Funds from the Court's Registry [961]. Because there was no previous ruling on this motion, the court continues to believe Mayer Brown's pending appeal as to this issue was premature. This order is, however, now final and appealable.
According to Cardullo's Counterclaims and Crossclaims in the present action, Needle represented Cardullo in a Pennsylvania state court action before Cardullo joined the Amari litigation as a plaintiff. (See Cardullo Counterclaims and Crossclaims [709] ¶¶ 19-23.) In the state court action, Cardullo sued International Profit Association ("IPA"), the same entity that the Amari plaintiffs sued. (Id. ¶¶ 1, 21.) The court dismissed Cardullo's case without prejudice in 2006 due to an Illinois forum selection clause. (Id. ¶ 22.) Cardullo contends that "[i]n 2007, after learning of Cardullo's suit against IPA, including its large damages claim," the Amari plaintiffs "solicited Cardullo to join" the Amari litigation. (Id. ¶ 24.) Cardullo joined the Amari litigation on or around October 6, 2008. (See id. ¶ 26.) Needle became co-plaintiffs' counsel in the Amari litigation at that time. (See id. ; Complaint [1] ¶ 17.) Royce joined the litigation as co-plaintiffs' counsel in November 2009. (See Cardullo Counterclaims and Crossclaims ¶ 27; Complaint ¶ 8.)
Royce, on the other hand, resigned as counsel for Cardullo effective August 4, 2014. According to Needle, Royce continued to owe Cardullo a fiduciary duty stemming from Royce's service as escrow agent under the settlement agreement. (Complaint ¶ 10; MRNPC Second Am. Ans. ¶ 155.)
Cardullo was, for a time, represented by other counsel in this case, but those attorneys withdrew in August 2015, citing "irreconcilable differences and a conflict of interest." (Motion to Withdraw [133] ¶ 3; Order Granting Motion to Withdraw [148].)
Mayer Brown first entered an appearance on Cardullo's behalf on February 25, 2016 [221]. At that time, Cardullo was already represented by Robert Gamburg, an attorney from a different, Pennsylvania-based law firm. (See October 6, 2015 Motion for Leave to Appear Pro Hac Vice [172]; October 21, 2015 Order Granting Motion for Leave to Appear Pro Hac Vice [189].) Neither Mayer Brown nor Cozen discusses (or even mentions) how Gamburg came to represent Cardullo and no party has explained what Gamburg's role has been in the case. The fact that Cardullo had other counsel in October 2015 adds to the court's uncertainty about the reasons for Needle's efforts in soliciting Mayer Brown to represent him. On July 5, 2017, yet another attorney, from yet another law firm, entered an appearance on behalf of Cardullo: George N. Vurdelja. (See Appearance [676].) Mayer Brown refers to Vurdelja as its co-counsel. (See Roin Aff. ¶ 9.)
Needle has not explained why he believed neither he nor MRNPC's other attorneys could achieve the "benefit" that he says Mayer Brown provided to MRNPC by representing Cardullo.
Again, the court does not understand Needle's delay in doing so, in the face of the threatened default of MRNPC and Needle's contrasting diligence in retaining counsel for Cardullo.
The copy of the e-mail message produced to the court does not contain the attachment. (See id. ) But Mayer Brown wrote in the e-mail, "Although I understand Mike [Needle] has already provided you with the July 2017 letter, I attach it here as well." (See id. )
As discussed infra , Mayer Brown argues that it thereby "perfected" its interest in MRNPC's share of attorneys' fees.
Cozen actually states that this event occurred on October 10, 2011 (see id. ), but the court assumes that was an inadvertent error.
Cozen erroneously asserts that simply because the court is sitting in diversity, Illinois substantive law governs Mayer Brown's security interest. Mayer Brown recognizes that an Illinois choice-of-law rule must be applied, but cites only the choice-of-law rule for perfection and priority which, as discussed above, is not applicable here.
Cozen does not address how Pennsylvania courts have construed the language.
The court notes that the same is true of the other cases Cozen cites in its supplemental brief. See Voutiritsas v. Intercounty Title Co. of Illinois , 279 Ill. App. 3d 170, 180, 664 N.E.2d 170, 177, 215 Ill. Dec. 773, 780 (1st Dist. 1996) ; Andrews v. Mid-Am. Bank & Trust Co. of Fairview Heights , 152 Ill. App. 3d 139, 143, 503 N.E.2d 1120, 1123, 105 Ill. Dec. 114, 117 (5th Dist. 1987).
Ill. Rev. Stat. ch. 26, § 1-201(44)(d) is now 810 Ill. Comp. Stat. 5/1-204(4).
Mayer Brown's alternative argument that it has provided value to MRNPC as well is unconvincing. Mayer Brown admits it represented only Cardullo's interests in this lawsuit. (See Cozen Opp. 10; Cozen Supp. Br. 7; Mayer Brown Reply 9; Needle Aff. ¶ 11 ("I understood, and Mr. Roin made clear to Cardullo and me, that even though MRNPC was helping to pay Mayer Brown's bills, Mayer Brown would represent Cardullo's interests, not MRNPC's.").) MRNPC was not a plaintiff in Amari , so it does not have any claim to the plaintiffs' portion of the settlement fund. Indeed, what is more obvious than any alignment of interests is the conflict of interest between MRNPC and Cardullo: MRNPC seeks to maximize the attorneys' share of the settlement fund, while Cardullo benefits from a division that maximizes the plaintiffs' share. Mayer Brown does not explain in its briefing how it could, without violating its ethical obligation to Cardullo, provide assistance to MNRPC's challenge to Judge Shadur's thirty-percent ruling. Separately, Mayer Brown has not satisfied the court that any of the work it performed for Cardullo could support MRNPC's appeal of this court's decision to award MRNPC only sixty percent of the attorneys' thirty-percent share. Thus, if Illinois courts interpret Section 9-203 to require that value be given to the debtor, the court is unprepared to conclude that Mayer Brown can satisfy that requirement.
Put another way, Mayer Brown suffered a detriment by providing, in exchange for the security interest, legal services that it was not otherwise obligated to provide. See In re Reliable , 703 F.2d at 1000.
One exception to the general choice of law rule provides, "While collateral is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a possessory security interest in that collateral." 810 Ill. Comp. Stat. 5/9-301(2) (emphasis added); 13 Pa. Cons. Stat. § 9301(b) (same) ; see also 810 Ill. Comp. Stat. 5/9-301, cmt. 5(a) (noting distinction between nonpossessory and possessory security interests); 13 Pa. Cons. Stat. § 9301, cmt. 5(a) (same). This exception does not apply here. A secured party's interest is "possessory" when that party is "in possession of the collateral." See 810 Ill. Comp. Stat. 5/9-101, cmt. (4)(d) (describing a "possessory security interest" as the security interest of a party "who is in possession of the collateral"); 13 Pa. Cons. Stat. § 9101, cmt. 4(d) (same); see also 810 Ill. Comp. Stat. 5/9-313(a) (stating that "a secured party may perfect a security interest in tangible negotiable documents, goods, instruments, money, or tangible chattel paper by taking possession of the collateral"); 13 Pa. Cons. Stat. § 9313(a) (same). Because the collateral is being held in the court's registry, neither Mayer Brown nor Cozen is "in possession of" it. Cozen does not dispute this issue. (See Mayer Brown Reply 4 n.3 (arguing that the choice of law exception for a possessory security interest does not apply); see generally Cozen Supp. Br. (failing to address the argument).)
There are exceptions to these requirements that are inapplicable to this case. See 13 Pa. Cons. Stat. § 9310(b) ; 13 Pa. Cons. Stat. § 9501(a)(1).
Cozen does, on the other hand, argue that if Mayer Brown's security interest is in a "deposit account," Mayer Brown did not perfect it. (See Cozen Supp. Br. 10-11.) Indeed, "a security interest in a deposit account may be perfected only by control under Section 9-314," 810 Ill. Comp. Stat. 5/9-312(b)(1), 13 Pa. Cons. Stat. § 9312(b)(1), and the parties do not dispute that Mayer Brown failed to "perfect[ ] by control." (See, e.g. , Cozen Supp. Br. 10-11; Mayer Brown Mot. 8 ¶¶ 33-34; Mayer Brown Supp. Br. 2, 8.) If rules regarding deposit accounts were applicable, Cozen argues, its statutory attorney's lien would be superior to Mayer Brown's unperfected security interest. (See Cozen Supp. Br. 11.) Having concluded that Mayer Brown's security interest is not in a "deposit account," the court declines to address this argument.
In an earlier brief, Cozen asserted that it spent substantial time reviewing the case record and engaging in settlement discussions with Royce's counsel. (Cozen Petition to Adjudicate and Enforce Attorney's Lien and for an Award of Attorneys' Fees and Costs [881], 7.) Cozen also mentioned that MRNPC authorized it to draft other pleadings, but that after Cozen completed the drafts, MRNPC "did not authorize Cozen to file them." (Id. at 8 n.5.)
In Pennsylvania, the common fund concept is also codified at 42 Pa. Cons. Stat. § 2503(8). See In re Second Pennsylvania , 192 B.R. at 666. That statute provides, "The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter: (8) Any participant who is awarded counsel fees out of a fund within the jurisdiction of the court pursuant to any general rule relating to an award of counsel fees from a fund within the jurisdiction of the court." 42 Pa. Cons. Stat. § 2503(8). Cozen does not explain how, if at all, the statutory application differs from the common law application. The court declines to venture into this territory. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/788609/ | 391 F.3d 1007
UNITED STATES of America, Plaintiff — Appellee,v.Marilyn MANIBUSAN, Defendant — Appellant.
No. 03-10468.
United States Court of Appeals, Ninth Circuit.
December 2, 2004.
Office of the U.S. Attorney, Hagatna, GU, for Plaintiff-Appellee.
Sandra D. Lynch, Agana, GU, for Defendant-Appellant.
Before: BRUNETTI, GRABER, and BYBEE, Circuit Judges.
ORDER
1
In light of the Supreme Court's grant of certiorari in United States v. Booker, 375 F.3d 508 (7th Cir.2004), cert. granted, ___ U.S. ___, 125 S. Ct. 11, 159 L. Ed. 2d 838 (2004), and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, ___ U.S. ___, 125 S. Ct. 12, 159 L. Ed. 2d 838 (2004), we withdraw submission as to the sentencing issues only, pending the Supreme Court's decision in those cases. In a memorandum disposition filed this date, the convictions are affirmed. | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1058255/ | 166 S.W.3d 707 (2005)
WILLIAMS HOLDING COMPANY, d/b/a Raleigh Hills Apartments
v.
Sharon T. WILLIS, et al.
Supreme Court of Tennessee, at Jackson.
April 6, 2005 Session.
July 1, 2005.
*708 James W. Cook, Memphis, Tennessee, for the Appellant, Williams Holding Company d/b/a Raleigh Hills Apartments.
Bruce D. Brooke, Memphis, Tennessee, for the Appellee, Joe Leavy.
OPINION
E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, Jr., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
We granted this appeal to determine whether a defendant who was found 100% at fault in a negligence action submitted to arbitration was liable for the full amount of the plaintiff's damages where the plaintiff had already received half of the amount of damages in a settlement with another defendant. The Court of Appeals concluded that the arbitrator had exceeded his scope of authority by requiring the defendant to pay the full amount of damages and modified the judgment. After reviewing the record and applicable authority, we conclude that the trial court correctly determined that the arbitrator did not exceed his authority and that the defendant was not entitled to a credit based on the amount of damages received by the plaintiff in a settlement. Accordingly, the Court of Appeals' judgment is reversed, and the trial court's judgment is reinstated.
Background
In March of 1995, the plaintiff, Williams Holding Company, filed a complaint in the Circuit Court for Shelby County, Tennessee, alleging negligence against the defendants, Sharon Willis, Antorio Brown, and Joe Leavy, which resulted in damage to the plaintiff's improved real property. The evidence is summarized below.[1]
The negligence complaint alleged that on August 11, 1992, Sharon Willis left her twelve-year-old son, Antorio Brown, and his twelve-year-old friend, Joe Leavy, in her apartment at 4205 Ann Arbor in Memphis, Tennessee, which was leased from the plaintiff, Williams Holding Company. According to the complaint, Leavy accidentally turned on the stove while using the microwave, which caused a pan of grease on the stove to catch fire. The fire spread throughout the apartment and into adjoining apartments owned by the plaintiff, Williams Holding Company.
Defendants Sharon Willis and Antorio Brown filed an answer denying that they *709 were negligent. Likewise, defendant Leavy filed an answer denying that he was negligent.
The parties agreed to submit the litigation to arbitration, and the trial court ordered arbitration on May 28, 1997. Before the arbitration hearing was held, the plaintiff, Williams Holding Company, reached a settlement with defendants Sharon Willis and Antorio Brown. Under the settlement, Willis and Brown agreed to pay 50% of the damages caused by the fire, i.e., $36,707.32, plus court costs. A consent order was entered by the trial judge dismissing defendants Willis and Brown from the arbitration.
During the arbitration hearing held on December 1, 1998, the plaintiff, Williams Holding Company, and the remaining defendant, Joe Leavy, stipulated that the plaintiff's damages caused by the fire totaled $73,414.64, and that defendants Willis and Brown had paid one-half of the plaintiff's damages in their settlement agreement. The arbitrator stated that because the full amount of the plaintiff's damages had been stipulated, "the issue to determine is the degree of negligence, if any, of the defendant, Joe Leavy."
The plaintiff introduced into evidence the fire marshal's investigative field report during the arbitration hearing. The report stated that the "fire started when the eye beneath a skillet of grease was accidentally left on." The report further stated that Brown told investigators that he and Leavy had been using the microwave when Leavy "bumped into the control knobs of the stove and accidentally turn[ed] the eye on beneath a skillet with grease in it." Finally, the report said that Leavy "accidentally bumped into the stove's control knobs" and then "attempted to turn the eye off but evidently did not."
The plaintiff also introduced the testimony of Leonard Richmond, the manager of the apartment complex. Richmond testified that defendant Sharon Willis had made numerous complaints about her apartment and had requested several repairs. Richmond further testified, however, that Willis had never complained of problems with the stove.
Defendant Leavy testified at the arbitration hearing that he had accidentally turned on the stove and then tried to turn it off. Leavy also testified that Brown told him there had been trouble with the control knob and that Brown said he would check on it. Leavy testified that he and Brown left the apartment to go skateboarding near the apartment complex. On cross-examination, however, Leavy admitted he had told fire marshal investigators that he and Brown had left the apartment to go swimming.
The arbitrator found that "the most credible version of what occurred on the date of this fire [was] the one contained in the report of [the fire marshal]." Further, the arbitrator found that
The facts as stated in the [fire marshal's] report reflect that the defendant, Joe Leavy, bumped into the stove at which time the eye was turned on, and he attempted to turn it off, but evidently, he did not.... It is therefore, the opinion of the arbiter that the defendant, Joe Leavy, was negligent and was responsible for the fire in question and resulting damages.
The arbitrator also concluded that "the defendant, Joe Leavy, is responsible for 100 percent of the damages as stipulated, to-wit, $73,414.64."
Following the arbitrator's decision on March 4, 1999, defendant Leavy filed a motion to vacate, modify or correct the arbitration award with the trial court. The motion requested the trial court to grant a credit or set-off for the amount the *710 plaintiff received under the plaintiff's settlement with defendants Willis and Brown. In denying the motion on March 29, 1999, the trial court reasoned:
[A] defendant ... is not entitled to receive credit for some settlement which the plaintiff has made with a third party, either before or during the pendency of the lawsuit. The defendant must pay his pro rata share of his legal responsibility for whatever the damages may be.... [D]efendant Leavy was found by the arbitrator to be 100% responsible for the damage to the building. Therefore, there is no reason for him to receive any credit for any other sums which the plaintiff has been able to obtain.
Defendant Leavy's notice of appeal was filed on April 27, 1999. On August 17, 2004, the Court of Appeals reversed the trial court, concluding that the arbitrator had exceeded his authority by requiring defendant Leavy to pay the plaintiff's damages in full where it was stipulated that defendants Willis and Brown had paid one-half of the plaintiff's damages, i.e., $36,707.32. The intermediate appellate court then modified the arbitration award to require Leavy to pay only $36,707.32, instead of the full amount of the property damage suffered by the plaintiff, i.e., $73,414.64.[2]
We granted this appeal.
Analysis
The plaintiff, Williams Holding Company, argues that the Court of Appeals erred in concluding that the defendant, Joe Leavy, who was found 100% at fault, was entitled to a credit for the amount the plaintiff received in a settlement with defendants Willis and Brown. Defendant Leavy responds that the Court of Appeals properly concluded that the arbitrator exceeded his authority by requiring him to pay the full amount of the plaintiff's damages.
Standard of Review
We begin our review with the well-established principle that "courts should play only a limited role in reviewing the decisions of arbitrators." Arnold v. Morgan Keegan & Co., 914 S.W.2d 445, 448 (Tenn.1996). The statutory provisions of the Uniform Arbitration Act "limit severely the trial court's authority to retry the issues decided by arbitration." Id. at 448 (emphasis added); see also Tenn.Code Ann. § 29-5-301 et seq. (2000). Likewise, when reviewing a trial court's decision in an arbitration case, an appellate court "should review findings of fact under a `clearly erroneous' standard" and should review questions of law "with the utmost caution, and in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." Arnold, 914 S.W.2d at 449-50.
*711 Scope of Arbitrator's Authority
The Uniform Arbitration Act states that a trial court "shall confirm an [arbitration] award, unless ... grounds are urged for vacating or modifying or correcting the award." Tenn.Code Ann. § 29-5-312 (2000).[3] One such ground for vacating an award, which is urged by the defendant in this case, states that an arbitration award shall be vacated by the trial court where "[t]he arbitrators exceeded their authority." Tenn.Code Ann. § 29-5-313(a)(3).
As this Court has said, "the scope of the arbitrator's authority is determined by the terms of the agreement between the parties which includes the agreement of the parties to arbitrate the dispute." D & E Constr. Co. v. Robert J. Denley Co., 38 S.W.3d 513, 518 (Tenn.2001) (quoting Int'l Talent Group, Inc. v. Copyright Mgmt., Inc., 769 S.W.2d 217, 218 (Tenn.Ct.App.1989)); see also Arnold, 914 S.W.2d at 450 (stating that the scope of arbitrator's authority is granted by the arbitration agreement). Arbitrators exceed their authority when they decide an issue that is not within the scope of the agreement to arbitrate. D & E Constr. Co., 38 S.W.3d at 518.
In the present case, the record does not contain a specific arbitration agreement between the plaintiff and any of the defendants. Instead, the trial court stated in a consent order that "the parties have agreed to arbitrate this matter."[4]
At the beginning of the arbitration hearing, plaintiff Williams Holding Company and defendant Leavy stipulated that the plaintiff's full damages totaled $73,414.64 and that the plaintiff already had settled its claim against defendants Willis and Brown for $36,707.32. During the arbitration hearing, the plaintiff sought the entire amount of damages on the basis that defendant Leavy was 100% at fault. Defendant Leavy, on the other hand, argued that he was not at fault. After the hearing, the arbitrator found that defendant Leavy "was negligent" and was "responsible for 100 percent of the damages."
After reviewing the record, we conclude that the arbitrator did not exceed his scope of authority. The issue of awarding the full amount of the plaintiff's damages, i.e., $73,414.64, was before the arbitrator. The issue of determining the percentage of defendant Leavy's fault in causing the damages was likewise before the arbitrator. Although the parties had stipulated that the plaintiff received one-half of the damages in a settlement with defendants Willis and Brown, nothing limited the arbitrator's authority to find that defendant Leavy was not at fault or was only 50% at fault in causing the plaintiff's damages, or that he was not liable at all or liable for only $36,707.32. Accordingly, we hold that the arbitrator did not exceed his scope of authority by finding that defendant Leavy was 100% at fault and thus liable for the full amount of the plaintiff's damages.
In reaching this conclusion, we disagree with defendant Leavy's position, and the Court of Appeals' conclusion, that the arbitrator exceeded his scope of authority or that the trial court "clearly erred" by refusing to grant defendant Leavy a credit based on the amount the plaintiff received in the settlement with defendants Willis and Brown.
*712 Our conclusion is based on the fact that there is no authority in Tennessee that supports defendant Leavy's argument that a non-settling defendant who is found 100% at fault is entitled to a credit or set-off for the amounts paid to the plaintiff by other settling defendants. To the contrary, under principles of comparative fault, a non-settling defendant is not entitled to a credit for amounts paid by a settling defendant because the non-settling defendant is required to pay damages based on his or her percentage of fault. Varner v. Perryman, 969 S.W.2d 410, 413 (Tenn.Ct.App.1997); see also McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn.1992) (emphasizing that the goal of comparative fault is to link one's liability to one's degree of fault).
Although defendant Leavy places great emphasis on the need to avoid granting a windfall to the plaintiff, the mere possibility that plaintiffs may, by settling with some defendants, receive more than their actual damages does not change the fact that non-settling defendants are obligated to pay damages based on the percentage of their fault. As the United States Supreme Court has explained:
we must recognize that settlements frequently result in the plaintiff's getting more than he would have been entitled to at trial. Because settlement amounts are based on rough estimates of liability, anticipated savings in litigation costs, and a host of other factors, they will rarely match exactly the amounts a trier of fact would have set. It seems to us that a plaintiff's good fortune in striking a favorable bargain with one defendant gives other defendants no claim to pay less than their proportionate share of the total loss. In fact, one of the virtues of the proportionate share rule is that ... it does not make a litigating defendant's liability dependent on the amount of a settlement negotiated by others without regard to its interests.
McDermott, Inc. v. AmClyde, 511 U.S. 202, 219-20, 114 S. Ct. 1461, 128 L. Ed. 2d 148 (1994) (emphasis added).
In addition, there is no authority in Tennessee that supports defendant Leavy's claim that a credit is appropriate under a theory of contribution. A statutory "right of contribution exists only in favor of a tort-feasor who has paid more than the proportionate share of the shared liability between two (2) or more tort-feasors for the same injury...." Tenn.Code Ann. § 29-11-102(b) (2000) (emphasis added). In such cases, "the tort-feasor's total recovery is limited to the amount paid by the tort-feasor in excess of this proportionate share." Id.
Here, the arbitrator found defendant Leavy to be 100% at fault in causing the plaintiff's damages. As a result, requiring Leavy to pay 100% of the plaintiff's total damages does not result in him paying more than his proportionate share. Instead, his liability is linked to his percentage of fault under the principles of comparative fault. McIntyre, 833 S.W.2d at 58.
Conclusion
After reviewing the record and applicable authority, we conclude that the arbitrator did not exceed his authority in determining that defendant Leavy was 100% at fault and liable for the full amount of the plaintiff's damages. We further conclude that defendant Leavy was not entitled to a credit based on the amount received by the plaintiff in a settlement with other defendants. Accordingly, the Court of Appeals' judgment is reversed and the trial court's judgment is reinstated. Costs of appeal *713 are taxed to the defendant, Joe Leavy, for which execution shall issue if necessary.
NOTES
[1] The record on appeal contains the plaintiff's complaint, the defendants' answers, and the pleadings filed in the trial court. Although the record does not contain a verbatim transcript of the arbitration proceeding, the plaintiff and defendant Leavy submitted statements of the evidence as to the events that transpired during arbitration.
[2] We are concerned about the delay in resolving this 1992 dispute. The negligence complaint for property damage was filed in March of 1995. The trial court ordered arbitration more than two years later on May 28, 1997. The arbitration hearing occurred eighteen months later on December 1, 1998, and the arbitration decision was filed three months later on March 4, 1999. After the trial court affirmed the award, notice of appeal was filed in April of 1999. For reasons that are not evident in the appellate record, over four years passed before the arbitrator approved the statement of the record, and the trial court authenticated the statement of the evidence for the record on appeal on September 9, 2003. Less than one year later, on August 17, 2004, the Court of Appeals' opinion was issued. In all, thirteen years have passed since the incident occurred in 1992, and ten years have passed since the negligence complaint was filed. All courts have a responsibility to manage their dockets efficiently and when arbitration is ordered, to assure and supervise its timeliness.
[3] See Tenn.Code Ann. § 29-5-313 (2000) (grounds for vacating arbitration award); Tenn.Code Ann. § 29-5-314 (2000) (grounds for modifying or correcting arbitration award).
[4] At the time the order was entered, the plaintiff had not reached a settlement with defendants Willis and Brown. | 01-03-2023 | 10-09-2013 |
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