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https://www.courtlistener.com/api/rest/v3/opinions/2265064/ | 54 Cal. App. 4th 669 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
YUN KO TANG, Defendant and Appellant.
Docket No. A071187.
Court of Appeals of California, First District, Division Two.
April 24, 1997.
*671 COUNSEL
Arthur Lang Wong, under appointment by the Court of Appeal, for Defendant and Appellant.
*672 Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Joan Killeen and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LAMBDEN, J.
Penal Code section 1203.03 empowers a sentencing court to temporarily commit a convicted felon to a diagnostic facility of the Department of Corrections for a report containing a "diagnosis and recommendation concerning the disposition of the defendant's case." (Pen. Code, § 1203.03, subd. (b).) (All further statutory references are to the Penal Code, unless otherwise indicated.) This case presents the question whether such a report, when prepared pursuant to a negotiated plea, binds the court to accept the recommended disposition under circumstances where defendant contends the recommendation is faulty in its premises. We conclude the court and the defendant may agree to be bound by such a recommendation so long as the court actually exercises its sentencing discretion.
I. BACKGROUND
On July 6, 1994, defendant was a 53-year-old cabdriver and sometime chef. He had no criminal record. During the course of the day, he and the victim, Gong Bo Kwong, quarreled repeatedly over a $20 bet Mr. Kwong had made with defendant's wife. Late in the evening Mr. Kwong walked up to defendant in a hotel lobby, pulled out a cleaver and "struck [defendant] on the left side of his head," inflicting a wound requiring two deep stitches and seven minor stitches. Mr. Kwong was escorted from the hotel.
Defendant pursued Kwong onto the street and stabbed him four times with a knife. A bystander reported seeing defendant come out of the hotel "with blood coming down his face. He proceeded to scream at [Kwong] produced a knife, continued to yell at the victim and stabbed him repeatedly. When [Kwong] fell to the ground, the defendant kicked him." Mr. Kwong died on the operating table.
Defendant was charged with voluntary manslaughter (§ 192, subd. (a)) and the information alleged a one-year sentence enhancement for personal use of a deadly weapon (§ 12022, subd. (b); see present § 12022, subd. (b)(1)). On January 10, 1995, defense counsel announced his client's intention to plead guilty to the lesser charge of involuntary manslaughter. Counsel for both parties stipulated that involuntary manslaughter (§ 192, subd. (b)) was a lesser included offense of voluntary manslaughter (§ 192, subd. (a)), and expressly waived any objection to so treating it.
*673 After reciting the usual consequences of the plea, defense counsel stated: "It's anticipated, Your Honor, there would be a 1203.03 evaluation and a two-year top in the event the court did decline to grant probation in this case." The prosecutor pronounced this "a fair statement of the negotiations." Defendant pleaded guilty and admitted the weapons-use allegation. Defendant was transferred to San Quentin for the agreed diagnostic evaluation pursuant to section 1203.03.
Section 1203.03 provides in part: "(a) In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period. [¶] (b) The Director of the Department of Corrections shall, within the 90 days, cause defendant to be observed and examined and shall forward to the court his diagnosis and recommendations concerning the disposition of defendant's case. Such diagnosis and recommendation shall be embodied in a written report...."
Defendant's case was first reviewed by senior staff psychologist M. Lyons, who concluded: "[a] comprehensive and in[-]depth psychological evaluation does not appear necessary" because there was no indication in the "background information" of "any psychiatric condition or psychological factors that might significantly contribute" to an overall assessment of defendant's suitability for probation. Defendant was then interviewed by correctional counselor Dave Miller, who added, gratuitously: "[W]hile it is regrettable that a man met his death in this incident, the `victim' in this case was actually the instigator.... Mr. Tang can be criticized for pursuing and stabbing someone who was no longer placing him in danger, but as a meat cleaver is not only sharp, but is a heavy implement, Mr. Tang was very likely disoriented as well as afraid and angry. Nevertheless, since Mr. Tang was no longer in danger he was not legally justified in pursuing and stabbing the deceased. His anger is understandable, but society cannot function when the law is taken into an individual's own hands. That's why there are police. That is also why I cannot recommend probation at this time. But I also do not feel that Mr. Tang should be sent to prison when he did not instigate this situation. I would, therefore, recommend that Mr. Tang be sentenced to a term in the San Francisco County Jail, followed by strictly supervised probation."
Counselor Miller, on March 30, issued an "Institutional Staff Recommendation Summary/1203.03 PC Report." In it he noted defendant had no *674 known criminal record, was reported to have "adapted well to his stay" at the prison, and had "not been a management problem to this point." In the interview defendant had described the arrest report as "correct as written," but also told Counselor Miller he had stabbed the victim in self-defense. "When I reminded him that the victim was running from the scene," Counselor Miller wrote, "Mr. Tang said he had been cut, and was bleeding badly and was still afraid, in spite of the fact that the victim was running." Counselor Miller ultimately recommended defendant "be sentenced to a term in the San Francisco County Jail, followed by strictly supervised probation." This recommendation was preceded by the contradictory remark, "I cannot recommend probation at this time."
About 10 days after Counselor Miller completed his report, Associate Warden G. Davis promulgated a two-page "Diagnostic Study and Recommendation by the California Department of Corrections Under Provisions of Penal Code Section 1203.03." This document included three recitals central to our review: (1) "Mr. Tang's criminal record is contained in the Counselor's evaluation and the Probation Officer's report"; (2) "Departmental staff have assessed Mr. Tang as an unsuitable candidate for probation"; and (3) "Staff therefore recommend that he be removed from society and placed in the California Department of Corrections."
Warden Davis based his recommendation on the conclusion defendant acted "out of anger, not in self[-]defense as he claims" and that the victim was fleeing. He acknowledged the victim "appeared" to be the instigator, but added, "this does not excuse Mr. Tang's action." He observed there was "no justification ... to support Mr. Tang's taking the law into his own hands," and added, "[T]his indicates to me Mr. Tang's criminal behavior presents a threat to society and efforts at resolving his behavior by local community programs are viewed as unwarranted." He concluded by recommending a prison sentence.
On May 10, 1995, the court reconvened proceedings and expressed its readiness to pronounce sentence. The prosecutor admitted he had expected the department to recommend probation, but argued the section 1203.03 recommendation was dispositive. Even if the recommendation was "in error," he said, the court was "bound" by it unless the associate warden "change[d] his recommendation." The court adopted this argument: "We did say that the court will sentence him based on the recommendation of a 1203.03. The recommendation by the Assistant [sic] Warden, Mr. Davis, is state prison. [¶] I'm prepared to sentence him to state prison for two years unless you [defense counsel] feel that it's appropriate for you to ask Mr. Davis to reconsider his recommendation." The court rejected defense counsel's contention the section 1203.03 report did not amount to a recommendation of imprisonment but instead reflected a "split decision."
*675 The court granted two continuances to permit the defense to attempt to obtain clarification from the associate warden, or to compel his attendance in court. Those efforts were unavailing. When a Department of Corrections attorney indicated Messrs. Davis and Miller would not voluntarily comply with subpoenas issued by the defense, the court declined to issue body attachments. Finally, defense counsel gave up but objected the court's adherence to the section 1203.03 recommendation was a denial of due process. The court sentenced defendant, "pursuant to negotiations," to two years in state prison.
Defendant filed a timely notice of appeal.
II. DISCUSSION
A. The Court's Examination of the Section 1203.03 Report
(1a) The negotiated plea in this case anticipated there would be a section 1203.03 evaluation and the court would impose a maximum two-year sentence if the court declined to grant probation. Both attorneys and the defendant confirmed the terms of the agreement prior to defendant's change of his plea to "guilty" and his admission of the weapons-use allegation. The court accepted the change of plea and made the referral as agreed. No issues are raised as to the procedure employed for the preservation of defendant's due process rights in connection with the change of plea.
In People v. Arbuckle (1978) 22 Cal. 3d 749 [150 Cal. Rptr. 778, 587 P.2d 220, 3 A.L.R. 4th 1171] (Arbuckle), the Supreme Court examined the proper role and due process implications of a plea agreement contingent upon a section 1203.03 report. In its holding, the court approved a plea disposition very similar to the one employed in the instant case, whereby the court agreed to follow the recommendation contained in a section 1203.03 report. The Supreme Court rejected Arbuckle's contention he was denied due process because he was not permitted to cross-examine the personnel who prepared the report or permitted to introduce expert testimony challenging the methodology used. The court reversed and remanded the judgment in Arbuckle because the sentence was imposed by a judge different from the one who accepted the change of plea, the holding for which the case has become best known.
Defendant attempts to distinguish Arbuckle by pointing out the section 1203.03 report in that case was "fair on its face" in contrast to the alleged factual errors and misconceptions in the report in this case. However, the logic employed by the Supreme Court in reaching the result in Arbuckle also *676 disposes of the issues raised in this appeal. The question presented here and not considered by Arbuckle is how a trial court should deal with undisputed ambiguities and contradictions contained in the report prepared in response to such a referral. We note this recommendation was based expressly upon an analysis of the facts of the case and without reference to the premises cited by the defense as erroneous and contradictory.
It is undisputed this defendant challenged the factual statements contained in the "report." The two-page "Diagnostic Study and Recommendation by the California Department of Corrections Under Provisions of Penal Code Section 1203.03" prepared by Associate Warden Davis contains three recitals which defendant contends are directly contradicted by the materials prepared by staff psychologist Lyons and correctional counselor Miller: (1) "Mr. Tang's criminal record is contained in the Counselor's evaluation and the Probation Officer's Report"; (2) "[d]epartmental staff have assessed Mr. Tang as an unsuitable candidate for probation"; and (3) "[s]taff therefore recommend that he be removed from society and placed in the California Department of Corrections." The defendant has always contended all three of these recitals were incorrect.
The prosecutor acknowledged the inconsistencies in the report. Even if the recommendation was "in error," the prosecutor said, the court was "bound" by it unless the associate warden "change[d] his recommendation." The court apparently adopted this argument and stated: "[w]e did say that the court will sentence him based on the recommendation of a 1203.03. The recommendation by the Assistant [sic] Warden, Mr. Davis, is state prison. [¶] I'm prepared to sentence him to state prison for two years unless you [defense counsel] feel that it's appropriate for you to ask Mr. Davis to reconsider his recommendation."
The court granted two continuances to permit the defense to obtain clarification from the associate warden who signed the report or, alternatively, to compel his attendance in court. However, the court was justified by the decision in Arbuckle in refusing to issue body attachments for the attendance of personnel who prepared the report after efforts to obtain their voluntary compliance with subpoenas were unavailing. The Arbuckle court held: "[t]he defendant could have challenged factual statements contained in the report by presenting his own evidence; but fundamental fairness does not require that he be allowed to challenge such statements by cross-examining the personnel who prepared the report, nor does it require that he be permitted to challenge the professional methods they employed. The report was fair on its face; a full hearing on collateral issues emanating in an ever-widening circle from the central issue the proper sentence to be *677 imposed is therefore not warranted." (Arbuckle, supra, 22 Cal. 3d 749, 755.)
It is undisputed the section 1203.03 report in this case contained flaws. It contained gratuitous statements not strictly within the mandate of the statute, such as Miller's disapproval of vigilantism. It contains factual errors as exemplified by the reference to a "criminal record" in its recitals. It contains contradictory recommendations for probation by both Lyons and Miller in conjunction with statements that neither could recommend probation.
However, it is not necessary for us to determine whether or not the report was "fair on its face," within whatever meaning was intended by the Supreme Court in Arbuckle, and it is not necessary for us to examine de novo the flaws contained in the report. It is evident from the record the court must have been aware of the inconsistencies in the report, which were discussed at multiple hearings scheduled to give the defense an opportunity to present evidence challenging its factual basis. The associate warden's ultimate recommendation does not refer to the questionable material contained in the body of the report; his conclusion is based on the facts of the case. The court had the opportunity to examine the report and permitted defendant time to bring any further relevant evidence to the hearing, short of compelling the attendance of the associate warden.
Under the circumstances, we conclude the sentencing court exercised its sentencing discretion in light of all appropriate factors, including not only the recommendation but also the underlying report as well as other information properly before the court. The trial court was permitted to structure a change of plea agreement around the expectation of a section 1203.03 recommendation which might affect the range of sentencing options. The agreement was honored. The trial court correctly refused to invoke the power of the court to permit the defense to cross-examine the personnel who prepared the report. We will not speculate to conclude the trial court failed to consider the recommendation in light of all appropriate factors, including factual inconsistencies, apparent in the record.
(2) While courts' sentencing discretion is constitutionally mandated and therefore jealously guarded, a trial court's failure to exercise such discretion must be demonstrated in the same manner as any other error. "We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error it will not be presumed. [Citation.]" (People v. Garcia (1987) 195 Cal. App. 3d 191, 198 [240 Cal. Rptr. 703]; see also People v. Blackwood (1983) 138 Cal. App. 3d 939, 949 [188 Cal. Rptr. 359].) (1b) This record demonstrates the trial court *678 was aware of the alleged errors in the report and of the recommendation, as well as cognizant of other information available at the extended sentencing hearing. This permits us to conclude the trial court actually exercised its sentencing discretion.
B. Nondelegable Sentencing Discretion
The mere presence of erroneous sentencing information in the record does not require reversal; such information becomes constitutionally significant only if the sentencing court relies upon it. (In re Beal (1975) 46 Cal. App. 3d 94, 100, 102 [120 Cal. Rptr. 11]; In re Dexter (1979) 25 Cal. 3d 921, 930, fn. 2 [160 Cal. Rptr. 118, 603 P.2d 35]; People v. Bustamante (1992) 7 Cal. App. 4th 722, 726 [9 Cal. Rptr. 2d 244].) This record does not establish the associate warden relied upon inaccurate information in the preparation of the recommendation relied upon, in turn, by the court. This is true despite mistakes of fact, such as reference to a nonexistent "criminal record," and also despite contradictory statements by both the staff psychologist and the counselor.
As noted by the Supreme Court in Arbuckle, supra, 22 Cal. 3d 749, 754-755, "[r]eliability of the information considered by the court is the key issue in determining fundamental fairness." In upholding the propriety of reliance upon such reports, the Arbuckle court noted the "inherent reliability" of a report made pursuant to a court order by an expert. The court also acknowledged the other factual information and criteria considered by the sentencing court included the probation officer's report and the legal presumption against probation set forth in section 1203, subdivision (e). The report does not stand in isolation and should be considered in conjunction with whatever information is available to the court, including information which may have been presented by the defense, uncontroverted information contained in the report, and even hearsay comments by an informant found to be sufficiently reliable. (People v. Peterson (1973) 9 Cal. 3d 717, 726 [108 Cal. Rptr. 835, 511 P.2d 1187], cited in Arbuckle, supra, at p. 755.)
The trial court in this case had more information to consider than merely the recommendation of the associate warden. The facts surrounding the death of the victim were undisputed and supported the presumptive ineligibility of defendant for probation under section 1203, subdivision (e): "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to.... [¶] ... Any person who used ... a deadly weapon upon a human being...." (§ 1203, subd. (e)(2).)
However, this record neither expressly indicates the court examined the underlying facts upon which the recommendation was based nor states the *679 court was relying upon the presumptive ineligibility provided by section 1203, subdivision (e). Rather, the court simply stated it would follow the terms of the agreement and impose the agreed upper limit of two years in prison. This adherence to the recommendation of the Department of Corrections is argued by defendant to constitute a prejudicial failure to exercise the court's nondelegable sentencing discretion. However, the record implies the court examined the factors relevant to probation and rejected them in favor of a prison sentence.
The court was "bound" to adhere to the agreement which resulted in defendant's change of plea. Defendant stipulated he would be sentenced to a maximum of 24 months in state prison in the event the court was unable to grant probation based on the expected section 1203.03 recommendation. Defendant cites no authority, nor have we found any, which would have required this trial court to alter the negotiated disposition by imposing probation or allowed the court to sentence defendant to more than 24 months in prison. Presumably, defendant would have been satisfied with a section 1203.03 recommendation for probation and foregone this appeal, but probation was not the recommendation. However, defendant cannot, by a collateral attack upon the underlying report, force the court to exercise its sentencing discretion in a particular fashion.
(3) "`[T]he severity of the sentence and the placing of defendant on probation rest in the sound discretion of the trial court.... [T]he law contemplates an exercise of that discretion by the sentencing judge and in the absence of such exercise there has been no lawfully imposed sentence.'" (People v. Hernandez (1984) 160 Cal. App. 3d 725, 749 [206 Cal. Rptr. 843]; People v. Surplice (1962) 203 Cal. App. 2d 784, 791 [21 Cal. Rptr. 826]; see § 1203, subd. (b)(3) [at the sentencing hearing, "the court shall hear and determine ... the suitability of probation in the particular case.... [T]he court shall consider any report of the probation officer.... If the court determines that there are circumstances in mitigation ... or that the ends of justice would be served by granting probation to the person, it may place the person on probation" (italics added)]; In re Pedro Q. (1989) 209 Cal. App. 3d 1368, 1372 [257 Cal. Rptr. 821] ["... courts may not delegate the exercise of their discretion to probation officers"]; In re Gonzales (1974) 43 Cal. App. 3d 616, 620 [118 Cal. Rptr. 69] [order conditioning grant of probation on Adult Authority's revocation of parole was "an unlawful abdication of judicial discretion," because power to continue, revoke, or modify probation "is a judicial power manifested through the judge's personal examination of the case before him[,]" which "cannot be delegated to a nonjudicial agency"]; People v. Tenorio (1970) 3 Cal. 3d 89, 95 [89 Cal. Rptr. 249, 473 P.2d 993] ["When an individual judge exercises sentencing discretion, he *680 exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him, and which is subject to review for abuse."]; see also People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 [53 Cal. Rptr. 2d 789, 917 P.2d 628]; In re Armondo A. (1992) 3 Cal. App. 4th 1185, 1189-1190 [5 Cal. Rptr. 2d 101] [matter remanded for exercise of independent discretion where denial of informal juvenile probation rested on deferential review of probation officer's conclusions].)
(1c) Of course, had the court denied probation in material reliance on faulty information, it could have committed reversible error. (3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, §§ 1653, 1655, pp. 1966-1968.) It would have been a denial of due process for the court itself to have misread an underlying report so as to rely upon an erroneously exaggerated criminal history. (Townsend v. Burke (1948) 334 U.S. 736, 741 [68 S. Ct. 1252, 1255, 92 L. Ed. 1690].) A fair reading of the record indicates the trial court did not rely on faulty information contained in the report. Rather, when the court stated it was "bound" by the recommendation we conclude it meant it was bound by the underlying plea agreement and, having examined all information available to it, exercised its discretion in favor of the upper limit to be imposed within the parameters of the plea agreement.
(4) "While no bargain or agreement can divest the court of the sentencing discretion it inherently possesses (People v. Arbuckle [, supra,] 22 Cal. 3d 749, 756 ...), a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. (People v. Green (1982) 142 Cal. App. 3d 207, 215 [192 Cal. Rptr. 146].) `A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.' (People v. Shepeard (1985) 169 Cal. App. 3d 580, 586 [215 Cal. Rptr. 401], disapproved on other grounds in People v. Martin (1986) 42 Cal. 3d 437, 451, fn. 13 [229 Cal. Rptr. 131, 722 P.2d 905].) Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. (People v. Green, supra, 142 Cal. App.3d at p. 215.) Once the court has accepted the terms of the negotiated plea, `[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.' [Citation.]" (People v. Ames (1989) 213 Cal. App. 3d 1214, 1217 [261 Cal. Rptr. 911].)
C. Binding Effect of the Plea Agreement
(1d) Respondent also contends defendant gave up the right to challenge the reliability of the section 1203.03 recommendation, and the court's *681 ultimate reliance upon it, by the terms of his agreement to change his plea. "Appellant agreed to abide by the recommendation of the Department of Corrections," argues respondent; "[h]e cannot now complain because he disagreed with that recommendation." (Defendant concedes on appeal he "agreed ... he would follow the recommendation in the 1203.03 report for purposes of sentencing," but contends he did not agree to be bound by a flawed report. The question, answered above, is how the court utilizes such a recommendation in the exercise of its sentencing discretion.
The record reflects consideration of the section 1203.03 report and the ultimate recommendation of the associate warden. Moreover, it is clear the court was aware of the presumptive ineligibility of defendant for probation as provided by section 1203.03, subdivision (e). Under these circumstances, it is not reasonable to conclude the court improperly deferred its sentencing discretion to the Department of Corrections. On the contrary, it appears the court independently agreed with the section 1203.03 recommendation and sentenced accordingly. There is nothing in the sentence selected by the court, which was not within the parameters of the agreement, which would allow defendant to complain the agreement was violated in such a fashion so as to require setting aside the plea. As noted in Arbuckle, "... no special procedural right is created by such an agreement, except that the defendant could have withdrawn his guilty plea should the judge have proposed to sentence him to prison contrary to the ... recommendation. [Citation.]" (Arbuckle, supra, 22 Cal. 3d 749, 756.)
D. Authority to Depart From the Recommendation
(5a) We also reject respondent's contention that defendant's exclusive remedy was to move to set aside his guilty plea. This remedy applies when the sentencing court "withdraw[s] its approval" of the agreed punishment "in the light of further consideration of the matter." (§ 1192.5.) There is no evidence of any request for withdrawal of approval of the agreement in this case. Of the three cases cited by respondent, one involved a deliberate upward deviation from an agreed sentence, and is therefore distinguishable (People v. Murray (1995) 32 Cal. App. 4th 1539 [39 Cal. Rptr. 2d 7]). The other two had nothing to do with plea agreements or to changes of pleas based on stated terms, but rather found errors to be waived by the defendants' failures to object. (People v. Saunders (1993) 5 Cal. 4th 580, 589-592 [20 Cal. Rptr. 2d 638, 853 P.2d 1093]; People v. Scott (1994) 9 Cal. 4th 331, 351-353, 356 [36 Cal. Rptr. 2d 627, 885 P.2d 1040].) Defendant in the instant case repeatedly objected to the court's utilization of the section 1203.03 report and no waivers occurred. Respondent finally contends the trial court lacked authority to depart from the section 1203.03 recommendation "without the consent of the people," and that any attempt to do so would entitle *682 the prosecution to set aside the plea. (See People v. Ames, supra, 213 Cal. App. 3d 1214, 1217 [once it has accepted the bargain, court lacks jurisdiction to alter terms in defendant's favor "`unless, of course, the parties agree'"]; People v. Armendariz (1993) 16 Cal. App. 4th 906, 910 [20 Cal. Rptr. 2d 311].)
As set forth above, the plea agreement in this case could likewise not be understood to divest the court of discretion to depart downward from the two-year maximum in the event of a different section 1203.03 recommendation. Just as defendant cannot be heard to complain of a sentence which honors the terms of the agreement, a downward departure from the maximum sentence agreed to be imposed, based on sound exercise of discretion, could afford no ground for complaint by the prosecution.
(6) The People, as well as a defendant, are entitled to enforce the terms of a plea bargain. (People v. Collins (1978) 21 Cal. 3d 208, 214 [145 Cal. Rptr. 686, 577 P.2d 1026].) "The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant's vulnerability to a term of punishment." (Id. at p. 215.) (5b) However, this court did not depart from the recommendation contained in the section 1203.03 report and the ultimate result was expressly agreed to by the parties: the imposition of a two-year prison term.
E. Prejudicial Effect
(1e) The Supreme Court has declared the harmless error test "inapplicable to a situation involving failure to fulfill the terms of a plea bargain." (People v. Mancheno (1982) 32 Cal. 3d 855, 865 [187 Cal. Rptr. 441, 654 P.2d 211].) Because we find the trial court honored the terms of the plea agreement and actually exercised its sentencing discretion within the contemplation of that agreement, it is unnecessary for us to consider the prejudice argued by defendant to have resulted from the court's concurrence with the section 1203.03 recommendation. Even though the underlayment of the report discloses two persons who interviewed defendant and recommended supervised probation, these recommendations for probation were contradicted by other statements and speak for themselves in the context of other information available to the sentencing court. Whether or not these contradictory recommendations might have become the ultimate conclusion of the report could not be explored by cross-examination of the involved Department of Corrections personnel or by submission of collateral expert testimony, under the express holding of Arbuckle. Thus, defendant indirectly argues he has been prejudiced by the trial court's adherence to the restrictions imposed by the Supreme Court upon examination of matters collateral *683 to the trial court's exercise of sentencing discretion. We reject this argument and conclude the trial court had, and before exercising its discretion, considered the entire 1203.03 report and recommendation.
CONCLUSION
A sentencing court may properly accept a change of plea based upon an agreement anticipating a sentence contingent upon the recommendation resulting from a section 1203.03 referral. However, the section 1203.03 recommendation does not play a fundamentally different role than it would in a case of any other sentence undertaken by the court; it is simply one factor among others, both factual and legal, to be considered by the judge in pronouncing sentence. No agreement or bargain can divest the court of its inherent sentencing discretion, although a variance from a change of plea agreement may require the plea to be set aside. The sentencing court cannot be required to follow the section 1203.03 recommendation and must exercise its discretion in light of all appropriate factors, including the recommendation and its underlying premises, in order to discharge properly the sentencing function. Where the trial court has before it sufficient information upon which to exercise sentencing discretion and does so in a manner consistent with the underlying plea agreement, the judgment of the court will be presumed to be correct unless error is affirmatively demonstrated by evidence at a fair hearing restricted to the ambit of inquiry permitted by Arbuckle, and without the necessity of the fullest possible hearing on collateral issues "emanating in an ever-widening circle from the central issue the proper sentence to be imposed...." (Arbuckle, supra, 22 Cal. 3d 749, 755.)
The judgment is affirmed.
Haerle, Acting P.J., and Ruvolo, J., consurred.
A petition for a rehearing was denied May 20, 1997, and appellant's petition for review by the Supreme Court was denied July 23, 1997. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265066/ | 261 N.J. Super. 683 (1993)
619 A.2d 689
GENNARO D'ANGELO, PLAINTIFF-APPELLANT,
v.
MILLER YACHT SALES AND T/A MARINE TRADING INTERNATIONAL, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Submitted December 16, 1992.
Decided February 5, 1993.
*684 Before Judges KING, BRODY and THOMAS.
Roeber & Stonehill, attorneys for appellant (Roberta L. Stonehill, on the brief).
Enright, Lenney & McGrath, attorneys for respondent (Thomas E. Lenney, of counsel and on the brief).
The opinion of the court was delivered by BRODY, J.A.D.
*685 Plaintiff appeals from a summary judgment dismissing this action by a consumer buyer for direct economic loss attributable to alleged breaches of express and implied warranties. The trial judge ruled that the action is barred by the four-year limitations period of the Uniform Commercial Code (Code). N.J.S.A. 12A:2-725. The complaint was filed more than four years after accrual of a Code claim, but within six years after accrual of a tort claim for economic loss. Plaintiff's various claims arise from alleged defects in a yacht that he purchased from defendant for $160,000. He contends that because he purchased the yacht as a consumer, and not as a merchant, his claims are not based on the Code, but on strict liability in tort, and therefore are subject to the general six-year limitations period. N.J.S.A. 2A:14-1. We affirm with respect to the claims based on defendant's alleged breach of contract, and reverse with respect to two claims based on fraud.
The record contains no evidence of facts. We must therefore judge the character of plaintiff's claims solely from the seven counts in his complaint. None of the counts expressly refers to the Code or to strict liability in tort.
The first count recites that defendant breached an agreement to sell plaintiff "a new 1983 marine trader, 44 Sun Deck Troller Yacht," because the yacht defendant delivered was not new, but a repaired used yacht. Plaintiff alleges that the yacht "was in fact crushed and substantially rebuilt and repaired prior to delivery...." In effect, the claim is that defendant breached an express warranty that the yacht was new. N.J.S.A. 12A:2-313(1)(a). Plaintiff alleges in the second count that he could not use the yacht for its ordinary purpose because it was damaged when sold. In effect, the claim is that defendant breached an implied warranty of fitness. N.J.S.A. 12A:2-314(2)(c). The third count specifically alleges that defendant breached an "express warranty" because the yacht was not new. The fourth count specifically alleges that defendant *686 breached an implied "warranty of fitness." The fifth count specifically alleges that defendant breached an implied "warranty of merchantability," a more comprehensive Code warranty that includes the implied warranty of fitness. N.J.S.A. 12A:2-314.
The sixth and seventh counts of the complaint are not referable to the Code. Plaintiff alleges in the sixth count that defendant "willfully and with malice" misrepresented the yacht as new. He seeks compensatory and punitive damages for alleged "material omissions." The claim is based on the common-law tort of fraud. In the seventh count plaintiff seeks treble damages and attorney's fees under the Consumer Fraud Act. N.J.S.A. 56:8-1 to -60. The trial judge dismissed these claims erroneously because they are subject to the general six-year limitations period. The Code preserves non-Code claims for fraud. N.J.S.A. 12A:1-103. Cf. Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J. Super. 200, 208-12, 543 A.2d 1020 (App.Div. 1988), aff'd o.b., 118 N.J. 249, 571 A.2d 294 (1990).
Plaintiff argues that Chapter 2 of the Code, the Sales Chapter, applies only to sales between merchants and therefore he is not subject to the Code's four-year limitations period. He is plainly wrong. N.J.S.A. 12A:2-103(1)(a) defines buyer to mean "a person who buys or contracts to buy goods." A buyer may be a merchant or a consumer. Sprague & Henwood v. Johnson, 606 F. Supp. 1564, 1565 (W.D.Va. 1985). The Code not only implicitly recognizes consumers as buyers but contains provisions that expressly afford consumers more protection than merchants. For instance, a provision in a sales contract that excludes modification or rescission except by a signed writing is valid against a merchant. However, such a provision when contained in a form supplied by a merchant is not valid against a consumer unless the consumer has signed the form. N.J.S.A. 12A:2-209(2).
*687 Our Supreme Court has used N.J.S.A. 12A:2-302, the "unconscionable contract or clause" provision of the Code, to give special protection to consumer buyers in actions brought under the Code. For instance, the Court used the provision to invalidate attempts by sellers to limit warranties in consumer contracts. See Gladden v. Cadillac Motor Car Div., 83 N.J. 320, 331-34, 416 A.2d 394 (1980).
Plaintiff relies on two New Jersey Supreme Court cases to support his claim that a consumer sales contract is not governed by the Code. In Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), a pre-Code case, the Court permitted a consumer to recover damages from a manufacturer for defective carpeting after the seller had gone out of business. At the time, a consumer could not recover against a manufacturer on a breach of contract theory because there was no privity of contract under the Uniform Sale of Goods Law between the consumer and the manufacturer. In the absence of a contract theory of recovery, the Court permitted the consumer to proceed on a tort theory of strict liability. The case is distinguishable because here there is no lack of privity that arguably could prevent application of the Code.
The other case is Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985). There the Court held that a merchant buyer must proceed against a merchant seller under the Code and not on a theory of strict liability in tort that would have enabled the buyer to avoid the Code's four-year time bar. The Court also held that lack of privity of contract would not have barred the merchant buyer from also proceeding under the Code against a remote supplier.
Although the Code clearly applies to this transaction, an unresolved question is whether the Code preempts an alternative tort claim based on strict liability. Spring Motors expressly left open the question of whether a consumer buyer must look exclusively to the Code to recover for direct economic loss. "In the present case, which involves an action between commercial *688 parties, we need not reconsider the Santor rule that an ultimate consumer may recover in strict liability for direct economic loss." Id. at 575, 489 A.2d 660. The Court acknowledged that limiting a consumer buyer to relief under the Code, as held in the leading case of Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (1965), has emerged as the majority view. Spring Motors, supra, at 572-73, 489 A.2d 660.
As we noted, the holding in Santor was limited to a consumer's claims against a manufacturer for economic loss that were barred substantively under the Uniform Sale of Goods Law because of lack of privity. By affording that consumer a tort theory of recovery, the Court prevented him from being left with no remedy against a responsible person. Here lack of privity is not a substantive bar because the consumer's claims are against his direct seller. Also, it seems unlikely after Spring Motors that the Code will bar for lack of privity consumer claims for economic loss against a remote supplier or manufacturer. We also note that the Spring Motors Court expressed deference to the Legislature, describing the Code as "a carefully-conceived system of rights and remedies to govern commercial transactions." Spring Motors, supra, at 577, 489 A.2d 660.
We now give similar deference to the legislative system of rights and remedies as it applies to commercial sales to consumers and hold that the Uniform Commercial Code provides a consumer buyer the exclusive remedy for direct economic loss resulting from conduct that constitutes the breach of express or implied warranties. Such claims must be brought within the four-year limitations period of the Code. An express provision of the Code, N.J.S.A. 12A:1-103, saves from preemption common-law fraud and Consumer Fraud Act claims arising from a sales transaction. Such claims may be brought within six years of accrual.
*689 The judgment is affirmed with respect to the dismissal of the first five counts of the complaint, and reversed with respect to the dismissal of counts six and seven. The matter is remanded for further proceedings under counts six and seven. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265078/ | 6 F. Supp. 957 (1934)
In re BECKMAN.
No. 19590.
District Court, W. D. New York.
May 24, 1934.
Kavinoky & Simon, of Buffalo, N. Y., for bankrupt.
Lewis & Carroll, of Buffalo, N. Y., for objecting creditor.
KNIGHT, District Judge.
Objections to the discharge of the bankrupt were filed by one of his creditors. The grounds set forth were that the bankrupt failed to keep books of account or records from which his financial condition and business transactions might be ascertained; that at a time subsequent to the first twelve months immediately preceding the filing of the petition, he transferred, and removed and permitted to be transferred and removed and concealed certain of his property, with intent to hinder, delay, and defraud his creditors; and that he failed to explain satisfactorily his losses of assets and the deficiency of assets to meet his liabilities. The matter was referred to the referee as special master who found that all three objections were sustained by the evidence presented and recommended that the bankrupt be denied a discharge.
A motion having been made for confirmation of the report of the special master, bankrupt objects to such confirmation. The objection is made that the special master erred in ruling under section 14 of the Bankruptcy Act (11 USCA § 32) that reasonable grounds had been shown for believing that the bankrupt had committed acts which would prevent his discharge and that the burden was thereupon transferred to the bankrupt to show that he had not committed such acts. To set forth the testimony adduced would unduly extend this opinion. It is sufficient to say that the record discloses ample grounds for believing that the bankrupt had committed the acts or omissions set forth in the objections. It is not necessary for the objecting creditor to do more than show reasonable grounds for believing that the bankrupt has committed acts barring his discharge to throw upon the bankrupt the duty of proving the contrary. In re Holzman (C. C. A.) 69 F.(2d) 828.
Bankrupt asserts that no actual intent to defraud his creditors has been proved under the second objection. He drew only $10 to $15 weekly from the business, while paying his wife $50 per week or a total of $2,600 for the year. He also provided a sister *958 with merchandise for her store and money to the extent of $2,000. Other relatives were the beneficiaries of gifts amounting to $1,500. Altogether about $6,000 was taken out of the business for the benefit of relatives. Bankrupt states that his intent was to assist his relatives who were in poor financial circumstances. The record clearly shows that a part of these gifts were made subsequent to the time when he became insolvent.
The following language from In re Julius Bros. (C. C. A.) 217 F. 3, 7, L. R. A. 1915C, 89, points the decision in this case:
"There are two classes of transfers under the act: (1) Those which have been entered into with actual fraudulent intent. (2) Those where, from the terms of the agreement or the nature of the transaction itself, the fraudulent intent is presumed to exist as an inference of law.
"In the one class the fraudulent intent is always a question of fact, and in the other it is a question of law. Thus if one who is insolvent makes a voluntary transfer of his property, receiving no valuable consideration therefor, the law will infer the intent, even though he may have made the transfer with an honest motive. In such cases no evidence of intention can be received to change that presumption. Such a conveyance necessarily operates to hinder, delay, or defraud the creditors, and the grantor will in such a case be presumed to intend the natural and necessary consequences of his acts." See, also, In re Finder (C. C. A.) 61 F.(2d) 960; In re Richter (C. C. A.) 57 F.(2d) 159; Bailey v. Ross (C. C. A.) 53 F.(2d) 783; and In re Hirsch (D. C.) 4 F. Supp. 708. In the present case there was a voluntary transfer of property with no benefit or return consideration to the bankrupt's estate. The only conclusion to be drawn therefrom is that the bankrupt intended to hinder, delay, and defraud his creditors.
As to the third objection, the bankrupt asserts that he has made a satisfactory explanation. To explain away a large portion of his loss he has stated that he sold goods at less than the wholesale cost over a period of a year because it was necessary to meet competition and that $5,000 was lost in this manner. The only basis for arriving at this amount was that the bankrupt concluded he had lost about 20 to 25 per cent. on the $28,000 worth of goods which he turned over during the year. In view of the fact that at best this can be regarded only as an estimate by the bankrupt, founded upon nothing which in any way verifies or affirms it, the explanation cannot be regarded as satisfactory. In re Shapiro & Ornish (D. C.) 37 F.(2d) 403, and Brenner v. Gaunce (C. C. A.) 28 F.(2d) 606, are cases involving somewhat similar situations.
The report of the special master is confirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265000/ | 6 F. Supp. 115 (1934)
CENTRAL IRON & STEEL CO.
v.
UNITED STATES.
No. J-184.
Court of Claims.
March 5, 1934.
Ralph J. Baker, of Harrisburg, Pa. (Hause, Evans & Baker, of Harrisburg, Pa., on the brief), for plaintiff.
George H. Foster and James A. Cosgrove, both of Washington, D. C., and Frank J. Wideman, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
LITTLETON, Judge.
This case again comes before the court on defendant's motion for a new trial, in which it is contended that the conclusion of law and judgment in favor of plaintiff, pursuant to the findings of fact and opinion of the court heretofore rendered on June 19, 1933 (4 F. Supp. 113), should be set aside, vacated, and the petition dismissed for the reasons that, first, the court is without jurisdiction because the Commissioner of Internal Revenue granted special assessment under section 210 of the Revenue Act of 1917 (40 Stat. 307); and, second, if the court has jurisdiction in a case of this character, the income and profits tax liability must be determined without regard to special assessment and on the basis of a determination of the statutory invested capital and net income; that such a determination, after allowing the interest deduction claimed of $306,168.01, would show an additional tax to be due in excess of that shown on the return, instead of an overpayment.
Neither of these questions was presented when the case was first tried and submitted for decision on the basis of the issues (1) whether the claims for refund were sufficient, and (2) whether plaintiff was entitled to a deduction from gross income of interest paid by receivers in 1917. The overpayment claimed by plaintiff was not otherwise questioned, except to the extent of $14,351.58, with interest, based on plaintiff's claim for an excess profits credit of 9 per cent. instead of 7 per cent., as allowed by the Commissioner. This item, set forth in the petition as plaintiff's first cause of action, was resisted by the defendant on the ground that the court was without jurisdiction to consider it in view of the decision in Williamsport Wire Rope Co. v. United States, 277 U.S. 551, 48 S. Ct. 587, 72 L. Ed. 985, inasmuch as the Commissioner had granted special assessment and computed the profits tax under the provisions of section 210 of the Revenue Act of 1917 (40 Stat. 307). Plaintiff abandoned its claim on this item when the case was submitted, and it was not considered or allowed by the court.
The findings of fact heretofore made by the court disclose the facts with reference to the Commissioner's allowance of special assessment *116 and the computation of the profits tax under section 210. However, for the purpose of the questions now presented, finding 29 is amended by making a part thereof by reference the Commissioner's letter of December 27, 1922, and the computations thereto attached, Plaintiff's Exhibit 7, and the Commissioner's letter of March 12, 1925, and the computation thereto attached, Plaintiff's Exhibit 6. These letters set forth the Commissioner's determinations before the allowance of special assessment and the computation of the profits tax under section 210 of the Revenue Act of 1917. The consolidated invested capital of $3,049,401.56, set forth in schedule 6 of the letter of December 27, 1922, was increased by subsequent adjustments to $3,148,880.46. In addition to the aforementioned letters, the Commissioner's letter of April 9, 1926, together with the computations thereto attached, Plaintiff's Exhibit D, is also made a part of finding 29 by reference. This letter sets forth the Commissioner's final determination of the tax liability for 1917 after computation of the profits tax under section 210.
The question presented by the motion for a new trial relates to the jurisdiction of the court and may be raised at any time. Upon careful consideration thereof we are of opinion that the court is without jurisdiction in any case where the Commissioner has allowed special assessment and determined the tax under the special assessment section of the statute when the result of the court's decision, if in favor of the plaintiff on the question presented, would alter or abrogate the Commissioner's determination under the special assessment provision, or necessitate further consideration by the Commissioner for the purpose of determining whether the profits tax rate theretofore fixed under the relief provisions should be increased or decreased, or whether the decision of the court on the question concerning the correct income had removed the abnormality upon the basis of which special assessment had been allowed. While the last-mentioned feature would not be presented in a case like the one at bar, involving 1917, where the only ground for special assessment is the inability satisfactorily to determine invested capital, the principle is the same whether the case arises under the act of 1917 or 1918, for the reason that net income is one of the principal factors in determining the constructive invested capital and amount of the profits tax.
In Heiner v. Diamond Alkali Co., 288 U.S. 502, 53 S. Ct. 413, 415, 77 L. Ed. 921, the Commissioner of Internal Revenue allowed special assessment and determined the tax under section 328 of the Revenue Act of 1918 (40 Stat. 1093). The taxpayer thereafter brought suit in the District Court, contending that the Commissioner had allowed insufficient amortization and that the net income determined by him should be decreased and the resulting overpayment computed by using the profits tax rate determined by the Commissioner under section 328. The District Court held, 39 F.(2d) 645, that plaintiff was entitled to an increase in the deduction for amortization and computed the overpayment accordingly. On appeal to the Circuit Court of Appeals, the deduction allowed by the District Court was further increased, 60 F.(2d) 505. In the Supreme Court the government contended that the decisions of the District Court and the Circuit Court of Appeals amounted to an abrogation of the Commissioner's administrative discretionary findings in the making of a new finding as to the right of special assessment and a fresh computation of the tax upon the revised net income. The court held that the position taken by the government was correct and that the case of Williamsport Wire Rope Co. v. United States, supra, precluded revision, correction, or abrogation of the Commissioner's discretionary findings for the reason that "it is beyond the power of a court to usurp the Commissioner's function of finding that special assessment should be accorded, and equally so to substitute its discretion for his as to the factors to be used in computing the tax." The court further held that the special assessment section "grants the taxpayer the benefit of discretionary action by the Commissioner, and precludes judicial revision or alteration of the computation of the tax." When the taxpayer upon application obtains a determination of his tax under the special assessment provisions, he surrenders the right further to contest in court the correctness of the Commissioner's determination with respect to any of the factors necessary to his discretionary findings and the computation of the tax. The system provided by law for a judicial review of the Commissioner's actions in tax cases contemplates that the court shall render final judgment, and, since the court is without jurisdiction to substitute its decision for that of the Commissioner as to the factors to be used in computing the tax, it cannot proceed with a case as though special assessment had not been applied, and the court is likewise without jurisdiction to decide the question presented and remand the case to the Commissioner for further exercise of his discretionary powers to determine whether or not *117 the change in net income results in a greater or less profits tax.
The motion for a new trial is allowed, and the conclusion of law and judgment heretofore entered are vacated and set aside, and a conclusion of law and judgment dismissing the petition are this day entered. It is so ordered.
BOOTH, Chief Justice, and WHALEY, WILLIAMS, and GREEN, Judges, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265017/ | 6 F. Supp. 1009 (1934)
THE PORT HUNTER.
No. 562.
District Court, D. Massachusetts.
May 10, 1934.
*1010 Daniel A. Shea, of Boston, Mass., for libelant.
George A. Saxon, of Providence, R. I., for defendant.
BREWSTER, District Judge.
This libel is brought in "a cause of possession, civil and Maritime" to recover the steamship Port Hunter, now lying submerged upon Hedge Fence Shoal, Vineyard Sound. The Port Hunter is claimed by the Maritime Construction & Salvage Corporation.
Statement of Facts.
1. At some time in 1918, the steamship Port Hunter was in a collision off Vineyard Haven and drifted onto Hedge Fence Shoal and sank in about 75 feet of water so that the hull was completely submerged, the bow being about 40 feet down. Two masts appeared above the water. Under stress of weather one of the masts was later swept away but the other still remains to mark the whereabouts of the sunken vessel.
2. The wreck was abandoned to underwriters which through its duly authorized agents on July 12, 1920, sold and transferred the wreck and its appurtenances to William T. A. Fitzgerald, as trustee for the libelant, the libelant paying in cash the full purchase price. Subsequently the trustee conveyed his interest to the libelant.
3. From 1920 to the present day, the Port Hunter has been allowed to remain where she sank. During the salvaging of some of her cargo, buoys were set about the Shoal by government officials. On June 12, 1933, the libelant employed a diver to anchor a buoy over the boat. For some reason or other this only stayed in place for a short time. Except as above stated, neither the government officials nor the owner have taken any steps to mark the vessel. The fact that the boat was on a shoal against which navigators were duly warned by long established buoys and that the vessel's mast at all times appeared above the water no doubt led the owner and authorities to regard further marking as unnecessary.
4. Since the purchase, the trustee and the libelant negotiated with cargo owners with reference to salvaging the cargo; had employed divers to go down into the holds; and had employed a resident of Vineyard Haven to keep watch of the wreck to see that no one molested it or the cargo.
5. There was evidence adequate to establish the fact that the libelant at no time intended to abandon the vessel. In fact, as late as September, 1933, he was in conference with one T. J. Smith, of Providence (claimant's alleged predecessor in title), about salvaging the hull and its contents. No agreement was reached, as the assurances requested by libelant that Smith would carry out his part of the contract were not forthcoming.
6. On October 1, 1933, Smith proceeded to the vicinity of the wreck with witnesses, and, after placing a buoy, consisting of a barrel and weight, over the sunken vessel, he put in the barrel a copy of a formal document, signed by him, wherein he recited his intention to seize and take possession "as a result of the abandonment by the one time owner" of the Port Hunter. He also recited that the boat was sunk in latitude 41 30 N. and longitude 71 30 W. in about 55 feet of water; that it had been submerged for over 12 to 15 years; that there were not, and for many years had not been, any markers or buoys indicating ownership over the boat or on nearby waters; and that he was placing his marker over the vessel as indicating his ownership. This statement was supported by affidavits, not under oath, of his witnesses who participated in the anchoring of markers over the ship.
7. The claimant is a Rhode Island corporation, of which said Smith is treasurer, and it was alleged that Smith had transferred all his interest in the Port Hunter to this corporation. I do not understand that there is any dispute respecting the transfer of whatever rights Smith had in the vessel from Smith to the corporation.
8. As soon as the claimant was seen removing machinery from the hull, notice was sent to the libelant by the party whom he had employed to keep a watch upon the wreck and, as a result, these proceedings were instituted.
Conclusions of Law.
At the outset it may be said that the good faith of Smith and his corporation, the claimant here, is open to serious question. No one knew better than Smith that the libelant claimed to be the owner and that he had no intention of abandoning the wreck. I know of no principle of admiralty law which enables one to "stake out" a claim to a derelict by floating over it barrels and depositing in one of the barrels the very elaborate document to which I have referred in the sixth paragraph of my findings of fact. In any event, I am satisfied that property *1011 rights cannot be acquired in any such manner. Whitwell et al. v. Wells et al., 24 Pick. (Mass.) 25; Duryea v. Elkhorn Coal & Coke Corp., 123 Me. 482, 124 A. 206; Merrill v. Fisher, 204 Mass. 600, 91 N.E. 132, 134 Am. St. Rep. 706, 17 Ann. Cas. 937.
In Whitwell v. Wells, supra, the court said at page 30 of 24 Pick. (Mass.):
"The salvors had a claim paramount to all others. They had the control, so far as was necessary, to enforce this claim. But their interest in the goods did not amount to ownership. By finding vessels or other chattels upon the ocean, the finders do not become the owners. The property remains as before, subject only to the right of salvage. This right is merely a lien, a right to retain the goods till the salvage be paid. This must stand essentially on the ground of other liens; and would give no right to pledge or sell the property. Martini v. Coles, 1 Maule & Selw. 140; Shipley v. Kymer, 1 Maule & Selw. 484; Corlett v. Gordon et al., 3 Campb. 472. The salvors, therefore, had no authority to make a sale or consignment to the plaintiffs. And if they had done either, the act would have been unauthorized and inoperative."
While this case was decided many years ago in the state court, I believe it presents an accurate statement of the law. When a derelict is discovered on the high seas and it is salved, the salvors have a right of possession in the nature of a lien until they have been reimbursed by the owner. I have found no authority for the proposition that the salvor acquired absolute title, good against the owner.
The River and Harbor Act of March 3, 1899, §§ 15, 19, 20 (33 U.S. C. §§ 409, 414, 415 [33 USCA §§ 409, 414, 415]), did not confer upon the claimant or Smith any rights to seize the Port Hunter in the manner described. The purpose of this statute was to impose a positive duty upon the owner of a sunken vessel to mark and remove it promptly if in navigable waters and obstructing or endangering navigation and to relieve the United States of all liability after a specified period, in the event that it removed, sold, or otherwise disposed of the sunken craft.
While for the purposes of the statute there may be an abandonment after a lapse of time, it is not such an abandonment as will operate to terminate the rights of the owner. Abandonment is said to be a voluntary act which must be proved by a clear and unmistakable affirmative act to indicate a purpose to repudiate ownership. Duryea v. Elkhorn Coal & Coke Corp., supra. I have found as a fact that no such positive intention existed in this case.
I conclude, therefore, that the libelant is entitled to recover possession, and the claimant has no right nor interest in the Port Hunter which this court can recognize. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726154/ | 970 So. 2d 847 (2007)
STEVENSON
v.
STATE.
No. 5D07-1657.
District Court of Appeal of Florida, Fifth District.
December 26, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265059/ | 6 F.Supp. 32 (1934)
UNITED STATES
v.
LIETO et al.
No. 7926.
District Court, N. D. Texas, Dallas Division.
February 16, 1934.
La Vergne F. Guinn, of Dallas, Tex., and Louis Titus and Quinn Shaugnessy, both of Washington, D. C., for the United States.
Wm. Madden Hill, Olin M. Street, and T. L. Wheeler, all of Dallas, Tex., for defendant Bob Lieto.
Howard Dailey, Joe M. Hill, Lee Perkinson, Parker V. Lucas, and Matthaei & Hill, all of Dallas, Tex., for other defendants.
ATWELL, District Judge.
There are three of these informations. They are numbered, respectively, 7926, 7927, and 7928.
They are based on the National Industrial Recovery Act, 48 Stat. 195, the first section of which provides that: "A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce * * * is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof. * * *" 15 USCA § 701.
Section 2 of the act (15 USCA § 702) empowers administrative agencies to effectuate the policy of the title, to wit, national industrial recovery. To that end the President is authorized to establish such agencies and to accept and utilize such voluntary and uncompensated services, to appoint, without regard to the provisions of the civil service laws, such officers and employees, and to utilize such federal officers and employees, and with the consent of the state, such state and local officers and employees, as he may find necessary; to prescribe their authorities, duties, responsibilities, and tenure, and, without regard to the Classification Act of 1923 (5 US CA § 661 et seq.), as amended, to fix the compensation of any officers and employees so appointed. The President may delegate any *33 of his functions and powers under this title. Then follow provisions for the fixing of codes under which industrial associations and groups must function. Such codes may be voluntarily entered into or may be formulated by the President.
When a code of fair competition has been approved or prescribed by the President under this title, any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall be a misdemeanor, and, upon conviction thereof, an offender shall be fined not more than $500 for each offense, but each day such violation continues shall be deemed a separate offense.
A code for the petroleum industry that was approved on August 13, 1933, was somewhat modified on September 13, 1933. It is divided into seven articles. Article 5 has a number of subdivisions which deal with marketing, etc.
Under these provisions, these prosecutions were instituted, by information, which contains four counts. The first count charges that during the week of November 18, 1933, in the city of Dallas, the defendant operated a service station as a merchant and vendor, selling to the public, at retail, petroleum products, to wit, motor fuels, motor lubricants, and motor gasoline; that during that period one Charles Burkley was an employee of the defendant at that station; that the defendant, on the 11th of the said month of the same year, unlawfully, willfully, and knowingly induced and procured the said employee to work for the week ending the 18th more than forty-eight hours, and that such employment and work of the said employee "did then and there affect interstate commerce," which the defendant then and there well knew, and which was in violation of the National Industrial Recovery Act, and of article 2 of section 3 of the Code of Fair Competition for the Petroleum Industry; that said Code was approved by the President of the United States on August 19, 1933, under and by virtue of an Act of Congress of June 16, 1933, known as the National Industrial Recovery Act; that the employment and work of the said employee did not come within any of the exemptions or exceptions of said act, or of said Code of Fair Competition, nor within any of the exemptions or exceptions of the supplements and modifications of said Fair Competition Code.
The second count charged that the same defendant, within the same venue, and during a week ending November 25th, operating a service station as a merchant and vendor, selling to the public the same products, and that the same employee, under the same inducement and procurement, worked at said service station for a period of more than forty-eight hours during the week ending November 25th; that the work of the said employee affected interstate commerce, and this count contained the same allegations mentioned above as having been contained in the first count.
The third count fixes the same venue and relates to the same week ending November 18th and to the same business and to the same employee, and charges that the defendant induced and procured the said employee to accept a weekly wage of less than $14.50, which "employment, work and wages of the said Charles R. Burkley did then and there affect interstate commerce," that the defendant knew this, and that such acts were in violation of the same act of Congress above mentioned and of the same code above mentioned, and also negatives the exceptions.
To the same effect is the fourth count, save and except that that count relates to the wages for the week ending November 25th.
The first two counts relate to hours of service and the last two counts to the wages alleged to have been paid.
The defendant filed an appropriate motion asking for a bill of particulars, "as to how and under what circumstances the defendant had then and there affected interstate commerce," as set out in the information. Responding to this application for more information, the following was furnished, to wit:
1. The acts of the defendants were in violation of paragraph (b) of section 3 of the Act of Congress of June 16, 1933 (15 USCA § 703 (b), known as the National Industrial Recovery Act, and also in violation of paragraph (f) of section 3 of said act (15 USCA § 703 (f), and also in violation of clause 3 of paragraph (a) of section 7 of said act (15 USCA § 707 (a) (3), reading as follows: "That employers shall comply with the maximum hours of labor, minimum rates of pay, and other conditions of employment, approved or prescribed by the President."
These portions of the act were violated by the defendants' failure to comply with the maximum hours of labor and the minimum rates of pay prescribed by the President in the Code of Fair Competition for the Petroleum Industry, approved by the President August 19, 1933.
2. Defendants' acts in failing to comply *34 with the maximum hours of labor prescribed by the President as aforesaid affected interstate commerce, for the reason that causing employees to work longer hours than those prescribed necessarily prevents other unemployed men from regaining employment. The natural consequence of defendants' act in working men overtime is to cause competitors also to work their employees beyond the maximum hours prescribed by the President, thus still further increasing unemployment, and unemployment, by removing the purchasing power of the unemployed, is a direct burden upon interstate commerce, as is set forth in the preamble of the National Industrial Recovery Act. (Section 1 [15 USCA § 701].) The natural consequences of defendant's acts in paying less than the prescribed wages is to cause defendants' competitors to reduce wages to the level set by defendants, thereby reducing the purchasing power of wage-earners and thus affecting interstate commerce, as set forth in the preamble of the National Industrial Recovery Act.
3. That defendants, by working men longer hours than those prescribed by said Code and paying lower wages than those prescribed as aforesaid, are enabled to and have sold petroleum products at lower prices than would have been possible had they complied with the prescribed hours and wages. This compelled competitors, in order to avoid losing their business, to meet the lower prices, and, in order to sell at such lower prices, said competitors were compelled to reduce wages and increase hours, and to reduce the price which they were paying for petroleum products. Increasing hours and reducing wages affects interstate commerce, as set out herein in paragraph 2. Reducing the price of petroleum products at the refinery compels other refineries to likewise reduce prices, resulting in subnormal prices, which in turn compels the closing of refineries not able or not willing to meet such competition, thus taking the products of such closed refineries out of interstate commerce and thereby disrupting the normal flow of petroleum products in such interstate commerce.
The defendant attacks the information as thus particularized, in the respect indicated, and claims that there is no offense charged. He also moves to quash on the ground that there is no offense alleged, and specifically challenges the act of the Congress, and the code which followed, because the latter is a patent attempt by the executive department of the government to legislate. He also claims that both are in violation of the Fifth Amendment and of the Tenth Amendment and of the Ninth Amendment, and are in excess of the power granted to the Congress in section 8 of article 1 of the Constitution; also, that the entire proceeding is vague, indefinite, and uncertain, and that article 2 of section 3 of the Petroleum Code is wholly unauthorized.
The argument for both sides has resulted in a rearray of the lights that have been fixed from time to time by our highest court with reference to the boundaries of national constitutional power over interstate commerce, over individual contracts and as relating to emergencies.
The seriousness of the question cannot be denied. Oral argument shows that the defendant was conducting a little filling station in Dallas, selling gasoline to be burned in Texas, and made out of oil found and refined in Texas. There is no intimation that his business was other than intrastate, unless the information furnished in the bill of particulars places it within the interstate category.
It seems to me that the recent Minnesota moratorium decision by the Supreme Court has no direct bearing upon the National Recovery Act. Home Building & Loan Ass'n v. Blaisdell, 290 U. S. 398, 54 S. Ct. 231, 78 L. Ed. 413. Emergencies that may be involved or recognized by a state may be sustained under the general police power inherent in such states. But Congress has no general police power. It must bring its enactments within one of the specifications or implications granted by the national Constitution, otherwise there is a lack of constitutionality.
The national emergency doctrine goes no further than that an emergency may call into activity a power which already exists. It may not speak into life that which is dead or never was.
The meatful expressions relating to this particular matter, so far as the national power is concerned, are bordered by the Lever Act (40 Stat. 276), a war-time measure, for the conservation of coal; the District of Columbia Rent Act (41 Stat. 298), regulating the rent that the landlord could charge; the Northern Securities Case, 193 U. S. 197, 24 S. Ct. 436, 48 L. Ed. 679, and the Adamson Railway Wage Act (39 Stat. 721). Of course, we have the stockyards case (Cotting v. Godard, 183 U. S. 79, 22 S. Ct. 30, 46 L. Ed. 92) and the taxing of trading contracts.
An analysis of all of those cases precludes any thought save and except the exercise by the national government of a constitutional *35 power either for the waging of a war or for the protection of interstate commerce. Both of those powers are directly given in the Constitution.
It has been asserted in argument by distinguished counsel who appear for the prosecution that there is the emergency of unemployment, which has been declared to exist by the Congress, and which declaration of emergency is binding upon the judicial department of the government; that "employers must be required to put more money into business"; that "the normal flow of interstate commerce must be restored"; that, "unless there is an emergency any attempt to regulate any occurrence must be related to a direct effect upon interstate commerce, but that when an emergency does exist the effect which may be regulated may be an indirect one."
The rate cases which are known as the Shreveport (Houston, E. & W. T. R. Co. v. U. S., 234 U. S. 342, 34 S. Ct. 833, 58 L. Ed. 1341) and the Wisconsin (Railroad Commission of State of Wisconsin v. Chicago, B. & Q. R. Co., 257 U. S. 563, 42 S. Ct. 232, 66 L. Ed. 371, 22 A. L. R. 1086) cases, as well as Wilson v. New, 243 U. S. 332, 37 S. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024, were unmistakably based, without any debate, where no difference of opinion may exist, upon interstate commerce. Railroads passing from state to state are engaged in that. Streams of live stock passing from the ranges to the markets are en route through many states.
But in the present situation that we are considering there is conceded to be an unemployment emergency. Now the national government has a right to do anything it can, and it is the business of that government to do anything it can to relieve that emergency, provided that which it does is within its power to do. Local business, business confined exclusively to a state, business which does not impinge upon or affect, or disturb interstate commerce, is wholly beyond the fingers of the national government. Such business is amenable to the local government. The fundamental laws of the land preserve and recognize both sorts. The very charter of the national government proclaimed the continuity of the power in the people and of the power in the states. The power that rests and remains with the citizen and with the state is as sovereign and unamenable to attacks from the national government as is the power of the national government sovereign and immune from any act of the state. Each must retain this separateness and this distinctness and this independence in order to preserve the autonomy of the American system. The system is itself of infinite value. Experiments in the governmental field in other countries, as exhibited in history, drove the fathers to the thought, and keep us true to it, that a government such as is ours must have a dual system. That is a national and a state system. Our country is too large, sections are too remote, interests are too diversified, liberties are too numerous and valuable, and the activities of the people are too multiplied to permit a congestion of all power in the national seat.
As was very wisely said in James Everard's Breweries v. Day et al., 265 U. S. 545, 44 S. Ct. 628, 631, 68 L. Ed. 1174, of the "implied powers," that attach to express powers:
"The Constitution confers upon Congress the power to make all laws necessary and proper for carrying into execution all powers that are vested in it. Article 1, § 8, cl. 18. In the exercise of such non-enumerated or `implied' powers it has long been settled that Congress is not limited to such measures as are indispensibly necessary to give effect to its express powers, but in the exercise of its discretion as to the means of carrying them into execution, may adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution. * * *
"It is likewise well settled that where the means adopted by Congress are not prohibited and are calculated to effect the object intrusted to it, this Court may not inquire into the degree of their necessity; as this would be to pass the line which circumscribes the judicial department and to tread upon legislative ground."
This expression of the limitless territory of implication, which may not be gainsaid, calls for thoughtful circumspection in discovering the exact power that is given in the Constitution. And also in the search for such acts as really relate to those powers or things over which the Congress has expressed an implied jurisdiction.
It has been thoughtfully suggested that the newspaper which we read in the morning is the physical product of far-away jurisdictions; that the food which is eaten on the table of the citizen comes from many climes; that the clothes that give the body its respectability and health, and which preserve it from the rigors of the climate and elements, is not always local in conception. To grant *36 the proposition that one who sells an apple in a stand on a street in the city of Dallas for a less amount than the price fixed by a code which relates to sale of fruit, because that apple may have been raised in Oregon or in New Mexico, or because the hand that delivers it to the purchaser and receives a nickel therefor is the hand of an humble employee who gets less than a nationally fixed wage, is thereby liable to arrest and prosecution for a violation of a Federal Code under this act, it seems to me, would be stretching the power of the national government beyond apology. What may be said, then, of a criminal law which punishes a Texan for selling that which came out of Texas earth, has never been elsewhere, and is being consumed in Texas? The voice of the nation's highest court, speaking through such cases as Coronado Coal Co. v. United Mine Workers, 268 U. S. 295, 45 S. Ct. 551, 69 L. Ed. 963; Standard Oil Co. v. U. S., 283 U. S. 163, 51 S. Ct. 421, 75 L. Ed. 926; U. S. v. Ferger, 250 U. S. 199, 39 S. Ct. 445, 63 L. Ed. 936; Board of Trade v. Olsen, 262 U. S. 1, 43 S. Ct. 470, 67 L. Ed. 839; U. S. v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; Adkins v. Children's Hospital, 261 U. S. 525, 43 S. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238; Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280; Fairmont Creamery Co. v. Minnesota, 274 U. S. 1, 47 S. Ct. 506, 71 L. Ed. 893, 52 A. L. R. 163; Ribnik v. McBride, 277 U. S. 350, 48 S. Ct. 545, 72 L. Ed. 913, 56 A. L. R. 1327; Williams v. Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 60 A. L. R. 596; New State Ice Co. v. Liebmann, 285 U. S. 262, 52 S. Ct. 371, 76 L. Ed. 747; Sterling v. Constantin, 287 U. S. 378, 53 S. Ct. 190, 77 L. Ed. 375; Michigan Comn. v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Frost Trucking Co. v. R. R. Comn., 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457; Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264, even now cautions and points the way.
The mental giant in the fineness of logic may trace a connection between a puff of the breath as an augmenter of the passing wind, or between the light of the burning coal and the primal rays of the sun, but that sort of a fineness in scientific reasoning may not be carried into the practical execution of the criminal law for the purpose of showing a connection between some one who sells an apple or a suit of clothes or a newspaper or a gallon of gasoline so as to therefrom argue a direct effect upon interstate commerce. See H. Chassaniol v. City of Greenwood, 291 U. S. ___, 54 S. Ct. 541, 78 L. Ed. ___, which upholds a state tax on a buyer of cotton destined to out of state points.
The national government may preserve itself from destruction. That same right exists in the citizen to preserve himself from destruction. The right of national self-defense is no greater than the right of individual self-defense. But the right of the government to preserve itself from all sorts of attacks, either within or without, must not masquerade in times of peace in some other costume. The power of the national government to carry on the many activities for the relief of the unemployed that are now being carried on in the distribution of moneys and possessions and properties is not in question here. Nor could it be questioned here successfully.
The only controversy that is here is between the humble citizen who asserts his right to carry on his little business in a purely local commodity and in a purely local fashion, without being arrested and punished for a mythical, indirect effect upon interstate commerce. If this were a suit at equity such as have been presented in different jurisdictions, there might be more liberality for the position of the sovereignty. But the fundamentals of individual liberty are safeguarded by certain presumptions, by certain reasonable doubts, by certain requisites as to certainty of allegation and certainty of proof that even a national court, upon the request of the national government, cannot, with ease, ignore or destroy.
My opinion is, without multiplying thoughts and reasons, that the regulations and the law sought to be applied under this information and bill of particulars are wholly without authority, and are in violation of the well recognized and established guaranties of the citizen. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265061/ | 422 Pa. Superior Ct. 143 (1992)
619 A.2d 285
HERSHEY FOODS CORPORATION, Appellant,
v.
GENERAL ELECTRIC SERVICE CO.
Superior Court of Pennsylvania.
Argued April 7, 1992.
Filed November 19, 1992.
Reargument Denied January 29, 1993.
*144 C. Kent Price, Harrisburg, for appellant.
Dennis J. Bonetti, Harrisburg, for appellee.
Before OLSZEWSKI, BECK and HOFFMAN, JJ.
*145 BECK, Judge:
The issue is whether appellant Hershey Foods Corporation ("Hershey") is entitled to indemnification from appellee General Electric Service Company ("GESCO") under the terms of an electrical services contract.
Hershey brought this action seeking indemnification for the amount of damages it incurred as the result of an accident in its plant which caused the death of a GESCO employee. The trial court granted GESCO's motion for summary judgment, holding that Hershey was not entitled to indemnification under the facts of this case. The trial court also denied Hershey's cross-motion for summary judgment, and Hershey filed this timely appeal. For the reasons set forth below, we affirm.
In 1977, the parties entered into a contract, pursuant to which GESCO would perform certain electrical work in a plant owned by Hershey. The contract included Section 5.20 entitled "Indemnification," which provides:
5.20.1 [GESCO] shall indemnify and hold harmless [Hershey] and their agents and employees from and against all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss or[sic] use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of [GESCO], . . . anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. 5.20.2 In any and all claims against [Hershey] or any of their agents or employees by any employee of [GESCO],. . . anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this Paragraph 5.20 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or *146 for [GESCO] . . . under workmen's compensation acts, disability benefit acts or other employee benefit acts. 5.20.3 The obligations of [GESCO] under this Paragraph 5.20 shall not extend to the liability of [Hershey], his agents or employees arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by [Hershey], his agents or employees provided such giving or failure to give is the primary cause of the injury or damage.
The "Work" to be performed by GESCO under the contract was defined as "electrical work throughout the plant as required by the engineering departments." Standard Form of Agreement No. 160, Section 1. Hershey drafted the contract, including the indemnification provision.
On April 6, 1978, an employee of GESCO, Robert W. Roland, Sr., was fatally injured while at work in Hershey's plant. Roland was employed by GESCO as a journeyman electrician, and was assigned to install electrical wiring conduits along the ceilings of the mezzanine level of Hershey's Building No. 40, in accordance with the contract between the parties. The work location was approximately 28 feet away from Elevator No. 37. Roland's work did not require that he use the elevator.
Elevator No. 37 is a pallet freight elevator that is automatically activated when a load is placed on a conveyor directly in front of the elevator car, interrupting a photoelectric beam, and causing the conveyor to move the load horizontally into the elevator car. The elevator then moves vertically, depositing its load at a pre-programmed floor above or below the mezzanine level. The evidence in the record established that there were no signs on or around the pallet elevator system explaining its use and automatic activation. Although the elevator was equipped with emergency devices which could deactivate the system and stop the car's movement, these devices were not labelled in any way. GESCO's employees were not instructed in the use of the pallet elevator system, as it was not expected that they would need to use it.
*147 Roland worked with Arthur Poorman on the day of the accident. When lunch hour began, Roland indicated that he was going to take a nap and Poorman went to the cafeteria in the basement of the plant. When Poorman returned to the mezzanine level, he saw Roland walking toward the pallet elevator. Roland sat on the pallet conveyor to eat a candy bar. Poorman then heard the noise of the pallet conveyor motor, and turned to observe Roland being carried backwards by the pallet conveyor into the elevator car. As the elevator automatically began moving upward, Roland was struck in the back of the head by a cross bar located at the top of the elevator shaft and died.
Roland's estate filed suit against Hershey claiming that Hershey's negligence caused his death. One of the theories of recovery was Hershey's alleged failure to warn of the danger of the pallet elevator. The jury returned a verdict against Hershey in the amount of $561,018.95, and apportioned 90% of the negligence to Hershey and 10% to Roland. The parties eventually reached a structured settlement, and Hershey brought this lawsuit against GESCO seeking indemnification under the terms of the 1977 contract. GESCO's motion for summary judgment was granted, and Hershey's action for indemnification was dismissed as a matter of law.
We first note our scope of review in this appeal from summary judgment. A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court's conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035. We will overturn a trial court's entry of summary judgment only if there has been an abuse of discretion or an error of law. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988). Because the relevant facts were not in dispute, the case was ripe for summary judgment.
We are presented with the following questions of contract interpretation: (1) Did GESCO agree to indemnify Hershey even where Hershey was partly negligent; (2) Did GESCO waive its immunity to suit by an employee under the Workmen's *148 Compensation Act; (3) Did Roland's injury and death arise out of the "performance of the Work"; and (4) Is GESCO's obligation to indemnify Hershey superseded by the jury's finding that Hershey failed to warn of the dangers of the pallet elevator.
We find that GESCO did unambiguously contract to indemnify Hershey even where Hershey was partly negligent, and that GESCO did clearly waive its immunity to suit by an employee under the Workmen's Compensation Act. However, the contract between the parties is ambiguous with regard to whether Roland's death arose out of the performance of the electrical work. We must therefore construe the contract against the drafter, Hershey, and affirm the trial court's decision to dismiss Hershey's indemnification claim. Because of our decision on this issue, we do not reach the parties' final argument regarding the contract's "failure to instruct" exclusion.[1]
The Pennsylvania courts have long held "that a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms." Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). "No inference from words of general import can establish such indemnification." Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991). In the underlying tort action, a jury found Hershey, the indemnitee, to be 90% negligent. In order for a duty of indemnification to exist under these circumstances, the parties must have expressly contracted for it. We agree with the trial *149 court's holding that Hershey and GESCO did intend to contract for such indemnification.
The contract explicitly requires GESCO to indemnify Hershey against a loss caused "in whole or in part by any negligent act or omission of . . . anyone directly or indirectly employed by [GESCO] . . ., regardless of whether or not it is caused in part by a party indemnified hereunder." Section 5.20.1. In this case, the jury found both Hershey and GESCO's employee the decedent to have been negligent in causing the accident. The contract of the parties unambiguously provides for indemnification even where the indemnitee was negligent. See Woodburn v. Consolidation Coal Co., 404 Pa.Super. 359, 590 A.2d 1273 (1991) (where there is express agreement, indemnitor is contractually bound to indemnify indemnitee who was less than 100% negligent); Deskiewicz v. Zenith Radio Corp., 385 Pa.Super. 374, 561 A.2d 33 (1989) (same contract language found to provide indemnification to indemnitee who was partly negligent); DiPietro v. City of Philadelphia, 344 Pa.Super. 191, 496 A.2d 407 (1985) (it is not contrary to public policy for a party to contract for indemnification of its own torts, but contract language must be clear and unequivocal).
GESCO argues that it cannot properly be sued by Hershey in this indemnification action because Hershey is essentially "joining" GESCO as a third party defendant in the underlying tort claim by the estate of GESCO's employee. Appellee's Brief at 8-9. GESCO asserts that it is immune from such a claim under Section 303 of the Workmen's Compensation Act,[2] which provides in pertinent part:
In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third *150 party, but the employer . . . shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contribution, or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.
77 Pa.S.A. § 481(b).
As set forth in the Workmen's Compensation Act, GESCO may not be held liable to indemnify Hershey unless the parties expressly contracted for such indemnification. See, e.g., Remas v. Duquesne Light Co., 371 Pa.Super. 183, 537 A.2d 881 (1988) (indemnification clause in contract did not include express waiver of Section 303 immunity and no indemnification by third party defendant was required); Gerard v. Penn Valley Const. Inc., 343 Pa.Super. 425, 495 A.2d 210 (1985) (general language regarding insurance policy to be obtained by contractor is not express waiver of Section 303 immunity).
As discussed above, the contract expressly provided that GESCO must indemnify Hershey under certain circumstances. The parties also agreed that "the indemnification obligation. . . shall not be limited in any way by any limitation on the amount and type of damages, compensation or benefits payable by or for [GESCO] under workmen's compensation acts, disability benefit acts or other employee benefit acts." The contract's indemnification clause clearly constitutes a waiver of the statutory immunity otherwise provided by Section 303(b), and therefore, Hershey would be entitled to indemnification by GESCO if all other conditions set forth in the contract were met by the facts of this case. Szymanski-Gallagher v. Chestnut Realty Co., 409 Pa.Super. 323, 597 A.2d 1225 (1991) (express waiver of 303(b) immunity unnecessary; clear indemnification obligation sufficient to hold employer liable to indemnify third party for injuries to employee); Hall v. Goodman Co., 310 Pa.Super. 465, 456 A.2d 1029, 1036 (1983) (where there is an express agreement by employer to indemnify third party, employer may be joined in action by employee despite Section 303(b)).
*151 The question now becomes whether the parties intended for the indemnification obligation to apply under the facts in this case. Section 5.20.1 of the contract provides that GESCO shall indemnify Hershey "against all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from the performance of the Work . . ." The "Work" is defined in the contract as the performance of "electrical work throughout the plant . . ." Section 1, Standard Form of Agreement.
It is clear from the record that Roland was not in the process of performing electrical work when the accident occurred. Cf. Deskiewicz, supra (employee was injured while actually performing work described in contract); Woodburn, supra (same). Instead, he was on his lunch break and was sitting on the pallet conveyor while eating a candy bar. Hershey argues that Roland's lunch break was merely a "minor deviation for personal comfort or leisure" from the course of employment, and that we should therefore hold that the accident arose "out of the performance of the Work." See, e.g., Lang v. Workmen's Compensation Appeal Bd., 108 Pa. Cmwlth 381, 529 A.2d 1161 (1987) (where there was no abandonment of the employer's business, activity was within course of employment); D'Agata Nat'l Inc. v. Workmen's Compensation Appeal Bd., 84 Pa.Cmwlth. 527, 479 A.2d 98 (1984) (coffee break is within course of employment); Workmen's Compensation Appeal Bd. v. Borough of Plum, 20 Pa.Cmwlth. 35, 340 A.2d 637 (1975) (employee's break for lunch or to relieve himself was within course of employment).
These cases involved claims for benefits under the Workmen's Compensation Act. The Act provides broad coverage for "injury to an employee . . . arising in the course of his employment." 77 Pa.S.A. § 411(1). In contrast, the contract uses the language, "arising out of or resulting from the performance of the work." The factual situations which have been included within the Act's definition of "course of employment" are broad and diverse. See, e.g., Kovalchick Salvage Co. v. Workmen's Compensation Appeal Bd., 102 Pa.Cmwlth 562, 519 A.2d 543 (1986) (employees' stop for drinks on the *152 way home held to be within course of employment); Workmen's Compensation Appeal Bd. v. United States Steel Corp., 31 Pa.Cmwlth. 329, 376 A.2d 271 (1977) (automobile accident caused by employee's epileptic seizure which occurred in employer's parking lot prior to employee's scheduled work time held to be within course of employment).
However, the cases cited by Hershey on this issue are inapposite. The Hershey-GESCO contract does not use the language of the Workmen's Compensation Act "in the course of employment" to describe the kinds of injuries that are included within GESCO's duty to indemnify. Instead, the contract expressly requires that the loss, in order to be indemnifiable, "arise out of the performance of the Work," which is specifically defined as electrical work. Moreover, this is not a dispute over workmen's compensation benefits, but rather a question about the proper interpretation of a written contract. Where there is ambiguity in a contract's terms, the doubtful language must be construed most strongly against the drafter, in this case, Hershey. See Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); In re Estate of Breyer, 475 Pa. 108, 379 A.2d 1305 (1977); Raiken v. Mellon, 399 Pa.Super. 192, 582 A.2d 11 (1990).
Because the contract does not clearly include Roland's conduct within the definition of "performance of the Work," and because the contract language is ambiguous with respect to this issue, it must be construed against Hershey. Therefore, Hershey is not entitled to indemnification from GESCO in this case. Because we so hold, we need not reach the fourth issue raised in this appeal, involving the exclusion for losses caused by Hershey's failure to give instructions or directions.[3]
Order affirmed.
OLSZEWSKI, J. files a dissenting statement.
*153 OLSZEWSKI, Judge, dissenting:
I respectfully dissent. I find that the contract language "arising out of or resulting from the performance of the work," encompasses Roland's minor deviation from his duties. Roland's work for GESCO in this case required him to be in close proximity with the elevator which malfunctioned and caused his death. That Roland was taking a break as part of his lunch hour during the performance of the work is not, in my opinion, sufficient to take Roland's actions outside the contractual definition of "the work." Therefore, I would find that the indemnification obligation applies in this case.
NOTES
[1] The parties agreed in the contract that Hershey would not be entitled to indemnification where the damages arose out of "the giving of or the failure to give directions or instructions by [Hershey]." Section 5.20.3. GESCO asserts that the jury's finding of negligence in the underlying tort action was based on Hershey's failure to warn of the dangers of the pallet elevator system, and that this "failure to give directions or instructions" supersedes GESCO's indemnification obligation. It is not clear from the contract language that this type of "failure to warn" was intended to be excluded from the duty to indemnify. Nevertheless, we need not reach this issue because we decide on other grounds that Hershey is not entitled to indemnification.
[2] The trial court did not address this issue in its opinion. Although we agree with the court's holding that Hershey is not entitled to indemnification, we believe that a discussion of GESCO's immunity argument is warranted.
[3] See note 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364006/ | 146 S.E.2d 234 (1966)
206 Va. 730
BOARD OF SUPERVISORS OF PRINCE WILLIAM COUNTY et al.
v.
BOARD OF COUNTY SUPERVISORS OF FAIRFAX COUNTY et al.
Supreme Court of Appeals of Virginia.
January 17, 1966.
Rehearing Denied March 7, 1966.
*235 H. Selwyn Smith, Comm. Atty., Lytton H. Gibson, Falls Church (Gibson, Hix, Millsap & Hansbarger, Falls Church, on brief), for appellants.
John F. Kay, Jr., Richmond (Ralph C. Louk, Comm. Atty., John S. Davenport, III, Thomas E. Crosley, Jr., Richmond, Robert C. Fitzgerald, Fairfax, Denny, Valentine & Davenport, Richmond, on brief), for Board of County Sup'rs of Fairfax County.
John W. Riely, Richmond (Armistead L. Boothe, A. Hugo Blankingship, Jr., Alexandria, E. Milton Farley, III, Richard G. Joynt, Richmond, Boothe, Dudley, Koontz, Blankingship & Stump, Alexandria, Hunton, Williams, Gay, Powell & Gibson, Richmond, on brief), for Alexandria Water Co.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.
GORDON, Justice.
This condemnation proceeding was instituted by Fairfax county. Subsequently, Prince William county filed a petition to intervene in the proceeding as a party condemning.[1] This appeal is from an order denying that petition.
The present posture may be explained by a brief history of the litigation, including related proceedings brought before the State Corporation Commission.
On January 3, 1962, Fairfax county filed a petition in the circuit court of Fairfax county seeking to acquire by condemnation all properties owned by The Alexandria Water Company, located in Fairfax and Prince William counties, and used or useful *236 in the operation of the Water Company's water works system.
The right of Fairfax county to condemn these properties was vigorously contested by the Water Company and by Prince William county, which had been permitted to intervene as a party defendant. (By order entered June 5, 1962, Prince William county was granted leave to intervene as a party defendant "to oppose the Petition hereinbefore filed and to file its pleas, answer or other grounds of defense". The right of Prince William county to intervene as a party defendant for those purposes is not now challenged.)
The Water Company defended the petition for condemnation on the ground (among others) that Fairfax county had not obtained a certificate of public convenience and necessity from the State Corporation Commission and, therefore, had no right to institute and maintain the condemnation proceeding. The Water Company took the position that Code § 25-233 (Va.Code Ann. § 25-233 (Repl. vol. 1964)) required the issuance of such a certificate, since Fairfax county sought to acquire the water system for the benefit of the Fairfax County Water Authority.
Before the court ruled on this defense, the State Corporation Commission at the instance of the Water Company issued a declaratory judgment to the effect that the provisions of Code § 25-233 were applicable to the condemnation proceeding.
We reversed the order of the Commission. Board of Supervisors of Fairfax County v. Alexandria Water Company, 204 Va. 434, 132 S.E.2d 440 (1963). We found that Fairfax county, and not the Fairfax County Water Authority, was the real party plaintiff in the condemnation proceeding, and held that the proceeding could be maintained by Fairfax county without a certificate from the Commission.
We pointed out that "[u]nder § 15-749 the power of the [Fairfax] Board to acquire by condemnation the properties here involved is unconditional".[2] We rejected, moreover, the argument of the Water Company that, since Fairfax county proposed to transfer the properties to the Fairfax County Water Authority, the requested condemnation was not for a proper public purpose.
On July 3, 1964, Prince William county filed its petition for leave to intervene, as a party condemning, in the condemnation proceeding, praying that it be permitted to condemn the portion of the water works system located in Prince William county. It adhered to its previous position that condemnation of the system was not in the public interest. Nevertheless, it expressed the belief that, "since a condemnation * * [had] been in effect approved by this Court [the Fairfax circuit court]," the best interests of the people of Prince William county would be served if it were permitted to condemn the facilities of the Water Company located in Prince William county, and if such facilities were operated by or under the control of Prince William county.
By the order entered September 23, 1964, from which this appeal was prosecuted, the court denied the petition of Prince William county "for the reason that Fairfax County having first filed a petition to condemn is entitled to priority in this respect, over Prince William County, and, therefore, Prince William County, as a matter of law, may not now appear as a party condemning."
The issue, then, is whether the court was correct in applying the rule of first in time, first in right. Prince William county contends that the court should have permitted it to intervene as a party condemning and, after hearing evidence, should have determined, by the application of equitable principles, which county had the superior right to acquire the portion of the water system located in Prince William county.
*237 The lower court applied the general rule that, where two persons[3] would otherwise have equal right to condemn the same property, the right of the person who first institutes condemnation proceedings is superiorthat is, the institution of condemnation proceedings by one such person precludes the right of the other person to condemn the same property. Connolly v. Des Moines & Cent. Iowa Ry. Co., 246 Iowa 874, 68 N.W.2d 320 (1955); City of Chehalis v. City of Centralia, 77 Wash. 673, 138 P. 293 (1914).
In its brief, Prince William county recognizes this general rule, but seeks to avoid the rule on the ground that it "has heretofore been utilized, for all practical purposes, exclusively in contests * * * between * * * utility companies". But the rule has been applied in cases of contests between political subdivisions. City of Chehalis v. City of Centralia, supra. We see no reasonable basis, moreover, for distinguishing contests between public utilities from contests between political subdivisions.
In its brief, Prince William county cites only one case, Village of Richmond Hts. v. Board of County Com'rs, 112 Ohio App. 272, 166 N.E.2d 143 (1960), that supports the application of equitable principles to determine the relative rights of two political subdivisions to acquire and retain the same property. The village brought suit in equity to enjoin the county from condemning land previously purchased by the village for alleged public purposesmunicipal buildings and a park. The court, having found that the village and the county had "equal rights to appropriate property for public purposes", refused to give priority to the village merely because it had acquired the property first.
The court noted that equity should "balance the relative conveniences of the parties" in granting or denying an injunction. It found that the complainant-village had failed to show a clear right to an injunction with respect to the portion of the land intended for use as a park; nor had the village shown that, if the county were permitted to condemn the land intended for use as a park, the injury to the village would exceed the injury that would be inflicted upon the county if it were denied the right to acquire the land for extension of the county's existing airport facilities. An injunction was issued prohibiting the county from proceeding with the condemnation of the portion of the land dedicated by the village for municipal buildings, leaving the county free to condemn the other portion.
One of the three judges who sat in the case filed a concurring opinion, in which he agreed with the result but disagreed with the reasoning of the majority. He was of opinion that a court of equity should not "`compare and weigh the greater or more paramount necessity of the conflicting appropriations,' nor * * * [should] it `make an equitable adjustment of the rights of the contending parties.'" (112 Ohio App. 272, 292, 166 N.E.2d 143, 157). The court, he said, should have confined its inquiry to the question whether all or part of the land owned by the village had been devoted to a public use. He agreed with the holding of the majority because the village had not shown that the land, except for the portion to be used for municipal buildings, was held by the village with a bona fide intention of use for recreational purposes within a reasonable time.
Village of Richmond Hts., unlike the present case, involved the right of one political subdivision to condemn property owned by another political subdivision. Insofar as that case may be relevant here, we find the reasoning of the concurring judgethat the relative necessity of the conflicting appropriations should not be weighed, nor an equitable adjustment of the rights of the parties madeconsonant with Virginia practice and procedure.
*238 We hold that the lower court was correct in applying the rule of first in time, first in right in this case, and in refusing to determine the issue by the application of equitable principles. In fact, the Virginia condemnation statutes preclude a holding that the lower court should have applied equitable principles.
Equity is not the proper forum for condemnation proceedings. Such proceedings should be maintained on the common law side of the court. See Brown v. May, 202 Va. 300, 117 S.E.2d 101 (1960); Dove v. May, 201 Va. 761, 113 S.E.2d 840 (1960).[4]
Jurisdiction and procedure, as well as the scope of the inquiry, in condemnation cases are controlled by statute. Title 25 of the Code captioned "Eminent Domain"[5] confers jurisdiction upon certain courts to entertain petitions for condemnation and sets forth in specific terms the procedure to be followed and the issues to be determined.
Prince William county asks us to read into the statutes an authorization for the condemnation court to determine the relative rights of two competing condemnors by the application of equitable principles. In effect, it is asking us to interpret the condemnation statutes as authorizing the court to determine whether the greater public convenience and necessity would be promoted by the condemnation of part of the water works system by Fairfax county or by Prince William county.
There is no statutory provision that authorizes a Virginia court to determine whether the person who has filed a petition for condemnation is the most appropriate person to acquire the property sought to be condemned. The issues properly before the circuit court in this proceeding were whether Fairfax county had the authority to condemn the properties of the Water Company, whether the proposed taking was for a public use, and whether the county had complied with the requirements of Chapter 1 of Title 25 of the Code (see footnote 5). There is no statute that, would have authorized the court to deny the prayer of the petition upon a finding that the greater public interest would be served by the continued ownership and operation of the water system by the Water Company.[6] Nor is there any statute that would have authorized the court to determine, *239 by applying equitable principles or determining the greater public convenience and necessity, whether a portion of the water system should be owned and operated by Fairfax county or Prince William county.
Two cases decided by the Supreme Court of Washington illustrate the necessity of statutory authority to enable a court to determine, upon the basis of the greater public benefit, the relative rights of competing condemnors. In City of Chehalis v. City of Centralia, supra, 77 Wash. 673, 138 P. 293 (1914), the court applied the rule of first in time, first in right; but in State ex rel. Kennewick Irr. Dist. v. Superior Court for Walla Walla County, 118 Wash. 517, 204 P. 1 (1922), the court decided in favor of the condemnor who had proved that its condemnation of the property would result in the greater public benefit. The statutes governing the condemnation proceeding in Chehalis contained no provision authorizing the court to weigh the public benefit; but when Kennewick was decided, the governing statutes had been amended so as to provide: "In condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one." It should be noticed that the court in Kennewick did not determine the issue by applying principles gratuitously borrowed from equity, but followed the statutory mandate that the greater public benefit be determined.
Not only do the Virginia statutes fail to give authority for a condemnation court to determine the substantive question of greater public benefit, they do not even provide for intervention as a party condemning. Code § 25-42 (Va.Code Ann. § 25-42 (1950)), in effect when this proceeding was instituted, and Code § 25-46.16 (Va.Code Ann. § 25-46.16 (Repl. vol. 1964)) provide for intervention only as a party defendant.
For the reasons assigned, the order is
Affirmed.
NOTES
[1] The boards of supervisors of the two counties are the parties before the court, but for simplicity we will refer to the counties, rather than the boards.
[2] Va.Code Ann. § 15-749 (Supp.1960), now Va.Code Ann. § 15.1-335 (Repl. vol. 1964).
[3] The references to "persons" and "person" are not to individuals, but to political subdivisions or public service corporations.
[4] Fairfax county instituted this proceeding by filing a petition for condemnation as required by Va.Code Ann. § 25-8 (1950), now Va.Code Ann. § 25-46.7 (Repl. vol. 1964), not by filing a bill of complaint. The clerk issued a proof of service in the form prescribed under our Rule 2:5 for a return showing service of a subpoena in chancery, on which he identified the proceeding as "CHANCERY NO. 16514". Later, Fairfax county moved the court to transfer the proceeding from the equity to the law side of the court, which motion was opposed by the Water Company. The court denied the motion, but gave Fairfax county leave to renew the motion before any hearing before the commissioners. Upon remand, the proceeding should be transferred to the law side of the court.
[5] This proceeding was filed pursuant to and is governed by Chapter 1 of Title 25 of the Code (Va.Code Ann. §§ 25-1 through 25-46 (1950)). Chapter 1 of Title 25 was repealed and reenacted as Chaper 1.1 of Title 25 (Va.Code Ann. §§ 25-46.1 through 25-46.34 (Repl. vol. 1964)).
[6] The State Corporation Commission is authorized to determine the dominant public interest in connection with certain condemnation proceedings. Under Code § 25-233, a corporation cannot condemn property belonging to another corporation possessing the power of eminent domain unless the condemning corporation has obtained a certificate of public convenience and necessity from the State Corporation Commission (but in no event can a corporation condemn property owned by and essential to the purposes of another corporation possessing the power of eminent domain). As already pointed out, however, Code § 25-233 is not applicable to this condemnation proceeding. Board of Supervisors of Fairfax County v. Alexandria Water Company, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364014/ | 221 Ga. 648 (1966)
146 S.E.2d 748
TIMEPLAN LOAN & INVESTMENT CORPORATION
v.
MOOREHEAD et al.
23200.
Supreme Court of Georgia.
Argued November 8, 1965.
Decided January 10, 1966.
*649 C. Winfred Smith, for appellant.
Norton & Cooper, W. L. Norton, Jr., for appellee.
COOK, Justice.
In Timeplan Loan &c. Corp. v. Morehead, 220 Ga. 762 (141 SE2d 420), this court dealt with assignments of error on rulings on demurrers in the same litigation now before us. It was there held that the trial court properly overruled the general demurrer and certain special demurrers, but erred in overruling some of the special demurrers. The recast petition of Kyles Moorehead and others, on behalf of themselves and others similarly situated, against Calvary Memorial Gardens, Inc., and Timeplan Loan & Investment Corporation, made substantially the same allegations as in the petition formerly considered by this court. Briefly, the contentions of the petitioners are that Calvary Memorial Gardens, Inc., sold cemetery lots to the petitioners on conditional sale contracts, promising perpetual care of the cemetery, and that the contracts were assigned to Timeplan Loan & Investment Corporation with knowledge by that corporation that the promise of perpetual care would not be kept. The two defendant corporations will be referred to as Calvary and Timeplan.
On the trial of the case two questions were presented to the jury for determination: "(1) Were the instruments in question obtained from plaintiff by Calvary Memorial Gardens, Inc. through fraud? (2) Did Timeplan receive the instruments free of any defects as a bona fide purchaser for value?" The jury returned a verdict answering the first question in the affirmative and the second in the negative. Timeplan filed an appeal from the judgment making the jury verdict the judgment of the court and enjoining Timeplan from proceeding against the petitioners and others similarly situated on the sale contracts and notes held by Timeplan pursuant to transactions with Calvary.
1. The first error enumerated is that the court allowed Kyles Moorehead and other witnesses for the petitioners to testify in regard to conversations with persons not in the presence of Timeplan. The testimony of each of these witnesses concerned conversations they had with representatives of Calvary at the time these representatives were attempting to sell cemetery lots *650 to them. At the time objection was made to this testimony the trial judge instructed the jury that they could consider the testimony only on the question of whether or not the transactions on the part of Calvary were fraudulent, and that the conversations would not be binding on Timeplan.
"A corporation can only make admissions through its agents, and the admissions of such agents acting within the scope of their powers and about the business of their agency, are admissible." Imboden v. Etowah & Battle Branch Mining Co., 70 Ga. 86 (11). See Code §§ 38-406, 4-315. The admissions of the agents of Calvary were admissible against that defendant.
Code § 38-403 (2) provides: "Where there are several parties with no joint interest, the admissions of one cannot be received, unless the issue is of such a character that the effect of the admission can be confined to him alone." Since the trial judge confined the jury in the consideration of this testimony to the issue of fraud on the part of Calvary, it was not error to allow it in evidence.
2. The second error enumerated is that the court allowed the petitioners to call the witness J. Don Sanders for the purpose of cross examination as agent of Timeplan, over objection of Timeplan. The record shows that the objection made was the following: "We object to him calling Mr. Sanders for cross examination as an agent of Timeplan." The contention made in the brief of the appellant is that this witness was not such a party or agent as contemplated by Code Ann. § 38-1801 because the witness was not employed by Timeplan at the time of the trial. The objection to the testimony was insufficient to raise this issue.
3. The fourth error enumerated is that the court denied the appellant's motion to strike the testimony of Adel Hawks. The ground of objection to this testimony was that the witness had been removed from the class action by the court. The fact that a witness has been removed as a party in the case does not make his testimony inadmissible.
4. The errors alleged in grounds 3, 5, 6, 8, 9, 10, and 11 of the enumeration of errors all relate to the question of whether or not the evidence was sufficient to support the finding of the *651 jury that Timeplan did not "receive the instruments free of any defects as a bona fide purchaser for value."
The transactions occurred prior to the effective date of the Uniform Commercial Code (Ga. L. 1962, p. 156 et seq., Code Ann. Title 109A). Former Code § 14-506 provided: "To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith."
There was overwhelming evidence that the original transactions of Calvary in selling cemetery lots to the petitioners and others were fraudulent. The deeds and bonds for title from Calvary to the buyers of the cemetery lots were on identical printed forms and each contained the promise of perpetual care by Calvary. The evidence indicated that the contracts were assigned to Timeplan as the lots were sold, and that the deeds and bonds for title were transferred to the files of Timeplan at that time. Some of the witnesses stated that they made the first payments on their contracts to Timeplan. There is evidence that Timeplan continued to purchase the contracts after complaint had been made to it that no care and maintenance was being given the cemetery by Calvary. The evidence was voluminous and we are not attempting to relate all of the testimony indicating that Timeplan either knew of the fraud of Calvary, or had knowledge of sufficient facts to make its action in purchasing the instruments without inquiring into the facts amount to bad faith. We are of the opinion that the evidence taken as a whole was sufficient to support the verdict of the jury.
4. The seventh ground of error enumerated is that the judge granted relief to the petitioners not prayed for in their petition. "Equity seeks always to do complete justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the court has jurisdiction for that purpose." Code § 37-105. There is no merit in this contention.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364024/ | 221 Ga. 633 (1966)
146 S.E.2d 630
WILLIAMS et al.
v.
RIO GRANDE FENCE COMPANY.
23287.
Supreme Court of Georgia.
Submitted December 14, 1965.
Decided January 6, 1966.
*636 Melton, McKenna & House, Mitchel P. House, Jr., for appellants.
Frank M McKenny, for appellee.
CANDLER, Presiding Justice.
On July 16, 1965, Rio Grande Fence Company, a Georgia corporation, filed a suit in the Superior Court of Bibb County against Jack R. Williams, a resident of Bibb County, and United Fence Company, a partnership composed of Bryon L. Pennell, Jr. and Dan M. Mitchell, residents of Muscogee County, Ga. As amended, the petition alleges: Petitioner and the defendant United Fence Company are both engaged in the business of selling, constructing and installing fences of all kinds and types in Macon, Ga., and elsewhere. On October 2, 1963, petitioner entered into a written contract with the defendant Williams by the terms of which the former employed the latter for a period of not less than one month as its sales representative at a weekly salary of $60 beginning on October 3, 1963. The contract provides that either party thereto may terminate it at any time after one month from its date by giving the other party 14 days' notice of its or his intention to do so. By such contract Williams agreed that he would not during the term of his employment and for a period of two years immediately following termination thereof directly or indirectly accept employment as a sales representative from any *634 person, partnership, or corporation engaged in the fence business in Macon and within a radius of 50 miles therefrom an area in which the petitioner (Rio Grande Fence Company) had established a valuable and extensive trade through solicitation by its sales representatives and by advertising media. The petition further alleges that the defendant Williams voluntarily terminated his employment with the petitioner on February 9, 1965, without giving it any notice of his intention to do so and on the following day accepted employment from the defendant United Fence Company, petitioner's competitor, and pursuant to such employment is, as its sales representative, selling and installing fences of all kinds and types for it in direct competition with petitioner in Macon and in the surrounding contract-restricted area. A copy of the employment contract between petitioner and the defendant Williams was attached to and made a part of the petition. The prayers are that the defendant Williams be temporarily and permanently enjoined from violating the terms of his employment contract with petitioner and that the defendant United Fence Company be likewise enjoined from aiding and abetting the defendant Williams in violating the provisions of his employment contract with petitioner. The defendants interposed separate but like demurrers to the amended petition which attack it on the ground that its allegations are insufficient to state a cause of action against any of the defendants for the relief sought since the employment contract relied upon by the petitioner is null and void because it imposes an unreasonable restraint upon the defendant Williams' right to accept like employment for the two-year period of time immediately following termination of his employment with the petitioner from any other person, corporation or partnership in such restricted area and also because it imposes an employment restriction on him which is unnecessary to protect the petitioner's trade or business. These demurrers were overruled and the defendants appealed that judgment to this court for review. Held:
1. In several recent cases this court has held that a restrictive covenant in a contract of employment whereby a person agrees not to engage in an occupational activity of a particular kind which is reasonably limited as to time and territory, is valid and enforceable so long as it is not unreasonable *635 in other respects. Here the employment restriction as to time is for a period of two years immediately following termination of the defendant Williams' employment for any cause and in an area where the plaintiff has by solicitation through its sales representatives and by advertising media established and built up a profitable trade or business, and following the full-bench decisions of this court in Orkin Exterminating Co. v. Mills, 218 Ga. 340 (127 SE2d 796) and Wood v. Bowers Battery &c. Co., 221 Ga. 215 (144 SE2d 101), we hold that the limitation of two years and the area embraced within a 50-mile radius of Macon where the plaintiff had established a profitable and valuable trade or business are not unreasonable either as to time or area. Hence, as to the defendant Williams, we hold that the amended petition stated a cause of action for the relief sought; and this is especially true where, as here, the defendant Williams had accepted employment from plaintiff's competitor to perform services of the same nature which he had performed for his former employer in the area fixed and restricted by the terms of their contract.
2. But as to the defendant United Fence Company, which was not a party to the contract relied upon, and following the unanimous decision of this court in Kessler v. Puritan Chemical Co., 213 Ga. 845 (102 SE2d 495), we hold that the amended petition failed to state a cause of action for the relief sought against it; and this is true for the reason that the plaintiff's amended petition alleges no malicious tortious act on this defendant's part which caused or induced the defendant Williams to terminate his employment and breach the terms of his contract with the plaintiff Rio Grande Fence Company. While it is true that the amended petition alleges that this defendant had knowledge of the defendant Williams' employment contract, it nevertheless fails to allege any act or conduct on this defendant's part which induced or caused the defendant Williams to breach the terms of his contract with the plaintiff. For a like holding, see Wallace Business Forms, Inc. v. Elmore, 221 Ga. 223 (144 SE2d 82).
Judgment affirmed in part; reversed in part. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364018/ | 112 Ga. App. 834 (1965)
146 S.E.2d 541
JACKSON
v.
THE STATE.
41484.
Court of Appeals of Georgia.
Argued September 9, 1965.
Decided November 16, 1965.
Rehearing Denied December 6, 1965.
*836 Nall, Miller, Cadenhead & Dennis, Thomas A. Rice, James W. McRae, for plaintiff in error.
Lewis R. Slaton, Solicitor General, William Hall, Jr., Carter Goode, contra.
PANNELL, Judge.
1. (a) Certain demurrers entitled in the cause were filed by the defendant and insisted upon before issue was joined. Each paragraph of these demurrers recited "Defendant Robert Craig McQueen demurs," etc. McQueen was jointly indicted with the defendant Jackson, and Jackson obtained a severance and was tried separately. The trial judge did not commit reversible error as to the defendant Jackson in overruling these demurrers, since these demurrers, on their face, appear to be demurrers of another party. No error is assigned on the failure of the trial judge to permit the defendant Jackson to strike out the name of McQueen and insert his own on the demurrers filed.
(b) After the evidence was closed the defendant Jackson interposed the same demurrers, with some additions, to the indictment. The general demurrers were without merit. The indictment sufficiently charged the crimes involved. The special demurrers, having been filed after issue was joined, were filed too late. Scandrett v. State, 124 Ga. 141 (2) (52 S.E. 160); Thomasson v. State, 22 Ga. 499 (1); Jordan v. State, 22 Ga. 545, 546 (3). The failure to demur to the form of an indictment, or the failure to insist upon such demurrer prior to joining issue constitutes a waiver of the defects. See Hardin v. State, 106 Ga. 384 (32 S.E. 365); Lanier v. State, 5 Ga. App. 472, 473 (63 S.E. 536); Hill v. State, 41 Ga. 484 (2); Spencer v. State, 123 Ga. 133 (1) (51 S.E. 294). Whether it would have been the proper practice to dismiss the special demurrers, or to refuse to consider them, the overruling of such demurrers will not be reversed on error assigned by the late demurrant, the defendant here. See Hatcher v. Georgia Farm Bureau Mut. Ins. Co., 112 Ga. App. 711.
2. Where a motion for mistrial is made because of statements of opposing counsel and the trial judge instructs the jury to disregard the statements of counsel and overrules the motion for mistrial and the motion is not renewed after the court instructed the jury to disregard the statement, the ground is insufficient and presents no question to this court for decision. Cherry v. State, 220 Ga. 695 (5) (141 SE2d 412); Barnes v. State, 111 Ga. App. 348 (1) (141 SE2d 785); Fowler v. State, 111 Ga. App. 856 (143 SE2d 553).
3. Alleged errors in rulings on pleadings are not proper grounds *835 of a motion for new trial. Beck v. State, 100 Ga. App. 759, 760 (1) (112 SE2d 426); Halligan v. Underwriters at Lloyds, 102 Ga. App. 905, 909 (2) (118 SE2d 107); Owensby v. Jones, 109 Ga. App. 398, 400 (7) (136 SE2d 451). Grounds 15 and 16 of the motion for new trial in this case, therefore, present no question for decision.
4. A witness for the State was testifying and using certain papers to refresh his memory. These papers were confidential reports of investigators. Upon objection of the prosecuting attorney, the trial court refused to allow the defendant's counsel to examine the reports. Error is assigned on the grounds that this prevented a more effective cross examination of the witness as to what he knew of his own knowledge, and prevented the defendant's counsel from finding possible impeaching evidence. The refusal of the trial judge to permit the defendant's counsel to examine the reports was not error for any reason assigned. See Adams v. State, 34 Ga. App. 144 (1) (128 S.E. 924); Ellison v. Robinson, 96 Ga. App. 882, 887 (7) (101 SE2d 902); see also Walker v. State, 215 Ga. 128, 130 (5) (109 SE2d 748). The motion to overrule Adams v. State and Ellison v. Robinson is denied.
5. While counsel for the defendant was arguing the case before the jury the prosecuting attorney made the following objection: "I object to him saying that he [the defendant] is a nice guy. He had his opportunity to put his character in issue if he wanted to and he hasn't." There was no error in refusing to declare a mistrial because of such statement by the prosecuting attorney. The case of Jones v. State, 14 Ga. App. 568 (3) (81 S.E. 801), relied upon by plaintiff in error, involved a comment by the prosecuting attorney as to facts not in evidence; that is, that the defendant had been previously convicted of an offense against the laws of the State. That case is not applicable here.
6. Grounds 7, 8, 11, 12, 13, 14, 20 and 21 of the motion for new trial are either insufficient to present any question for decision or are without merit.
7. The evidence is sufficient to authorize a conviction of the defendant of receiving stolen goods (a stolen automobile) and possession of an automobile with altered identification numbers.
Judgment affirmed. Nichols, P. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364017/ | 247 S.C. 167 (1966)
146 S.E.2d 606
Frederick A. BOYER, Appellant,
v.
LOFTIN-WOODARD, INC., Respondent.
18450
Supreme Court of South Carolina.
January 28, 1966.
*168 Wilburn C. Gable, Jr., Esq., of Watkins, Vandiver, Kirven & Long, of Anderson, for Appellant.
Messrs. Paul K. Rogers, of Anderson, and J. Pat Miley, of Walhalla, for Respondent.
*169 January 28, 1966.
Per Curiam:
This is an action brought by Frederick A. Boyer, the appellant herein, against Loftin-Woodard, Inc., the respondent herein, to recover damages to his tractor-trailer truck, it being alleged that such was proximately caused by the negligence and recklessness of the respondent in causing a defect in and to the surface of a highway in Oconee County by the continuous crossing thereof with its caterpillar tractors and other heavy equipment. It is then alleged that the appellant was operating his tractor-trailer truck over and along said highway and that he struck the said defect in the highway, causing his vehicle to go out of control and overturn down an embankment, with resulting damage thereto. The respondent, by its answer, denied that it was negligent or reckless as set out in the complaint and alleged affirmatively that the damage to the tractor-trailer of the appellant was the result of his own contributory negligence and recklessness.
This case came on for trial before the Honorable W.L. Rhodes, Jr., Presiding Judge, and a jury, at the 1963 September term of the Court of Common Pleas for Oconee County. At appropriate stages of the trial, the respondent moved for a nonsuit and a directed verdict on the ground that the appellant had failed to prove actionable negligence on the part of the respondent, its agents or servants. These motions were refused and the case was submitted to the jury, resulting in a verdict in favor of the appellant for actual *170 damages. After the verdict was returned the respondent moved for judgment non obstante veredicto. This motion was granted upon the ground that the appellant had failed to prove actionable negligence on the part of the respondent. This appeal followed.
The exceptions of the appellant to this Court are as follows:
"1. His Honor, the trial judge, erred in granting defendant's motion for a judgment non obstante veredicto, the error being that under the evidence a reasonable inference can be drawn that the negligence and recklessness on the part of the defendant was the direct and proximate cause of the accident.
"2. His Honor, the trial judge, erred in granting defendant's motion for a judgment non obstante veredicto, the error being that it is not necessary under the testimony and evidence to build inference upon inference in order to establish the liability of the defendant.
"3. His Honor, the trial judge, erred in granting defendant's motion for a judgment non obstante veredicto, the error being that testimony and evidence raised a reasonable inference that the plaintiff's damages were due to the negligence and recklessness of the defendant and, viewed in the light most favorable to the plaintiff, presented a question of fact for the jury to decide."
Under the rules of this Court, the appeal herein must be dismissed. The foregoing exceptions are entirely too general, vague and indefinite to be considered. They do not comply with Rule 4, Section 6, of this Court which provides:
"Each exception must contain a concise statement of one proposition of law or fact which this Court is asked to review, and the same assignment of error should not be repeated. Each exception must contain within itself a complete assignment of error, * * *."
We have held in many cases that every ground of appeal ought to be so distinctly stated that the Court may at once see the point which it is called upon to *171 decide without having to "grope in the dark" to ascertain the precise point at issue. The object of an exception is to present some distinct principle or question of law which the appellant claims to have been violated by the Court in the trial of the case from which the appeal is taken, and to present it in such form that it may be properly reviewed. Hewitt v. Reserve Life Ins. Co., 235 S.C. 201, 110 S.E. (2d) 852; Fruehauf Trailer Co. v. McElmurray, 236 S.C. 141, 113 S.E. (2d) 756.
It has been held that an exception requiring a review of all the evidence is too general to be considered. Marshall v. Creel, 44 S.C. 484, 22 S.E. 597; Weatherly v. Covington. 51 S.C. 55, 28 S.E. 1; Elkins v. South Carolina & G.R. R. Co., 59 S.C. 1, 37 S.E. 20. In the Elkins case, this Court said:
"* * * a good test whether an exception is too general is to inquire whether it is so framed as to involve the necessity of retrying the whole case just as it was presented to the circuit judge. Subjecting this case to that test, it is very manifest that the exception here is entirely too general."
The case of Causey v. South Carolina Farm Bureau Mut. Fire Ins. Co., 240 S.C. 116, 124 S.E. (2d) 777, was one to recover for the loss of a barn under a fire policy. At the conclusion of all of the testimony, the Trial Judge directed a verdict in favor of the respondents for the amount of the policy coverage. On appeal to this Court it was asserted "[t]hat the Court erred in granting respondents' motion for directed verdict". The appeal was dismissed upon the ground that the exception was too general to be considered.
In the case of F C X Co-op. Service, Inc. v. Bryant, 242 S.C. 511, 131 S.E. (2d) 702, this Court said:
"Exceptions I, XXI and XXII all charge error in directing a verdict for plaintiff; exception I, upon the ground that more than one issue could be drawn from the testimony; exception XXI, because the credibility of the testimony was for the jury alone; and exception XXII, because the evidence *172 would support a verdict in favor of defendant on his counterclaim. None of these exceptions points out any issue of fact which appellant claims should have been submitted to the jury. They leave the court to search the entire record and are too general to be considered."
We conclude that the appeal in this case should be dismissed because the exceptions failed to comply with Rule 4, Section 6, of this Court.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363998/ | 146 S.E.2d 561 (1966)
Betty SARGENT, an infant, who sues by Jay Sargent, her next friend, and Jay Sargent,
v.
O. M. MALCOMB.
No. 12455.
Supreme Court of Appeals of West Virginia.
Submitted January 25, 1966.
Decided February 8, 1966.
*562 Frank C. Mascara, Ross Maruka, Fairmont, for appellants.
William L. Fury, Weston, Lycurgus Hyre, Buckhannon, for appellee.
CALHOUN, Judge:
This case is before the Court on appeal from an order of the Circuit Court of Upshur County entered on June 13, 1964, in a civil action in which Betty Sargent, an infant, suing by Jay Sargent, as her next friend, sought recovery of damages for personal injuries resulting from burns sustained by her while she was employed in a restaurant operated by the defendant, O. M. Malcomb, in the City of Buckhannon. In the same action, Jay Sargent, in his own right, sought recovery from the defendant for hospital and doctor bills which were incurred by him in the treatment of his infant daughter as a consequence of the personal injuries she sustained.
Upon a trial of the case, the jury returned a verdict in favor of Betty Sargent in the sum of $22,500 and a separate verdict in favor of her father, Jay Sargent, in the sum of $935.61. The plaintiffs have appealed from the action of the trial court in setting aside the verdicts and in awarding the defendant a new trial.
The basic question presented for decision on this appeal is whether the trial court properly held that the verdict of $22,500 in favor of the infant plaintiff is excessive.
Numerous alleged errors were asserted in the trial court in the amended motion of the defendant to set aside the verdicts *563 and to grant a new trial. In connection with his ruling upon the motion, the trial judge filed a written opinion which, by a court order, was made a part of the record. In such circumstances, we are authorized to consider the written opinion in order to determine the basis of the trial court's judgment. Rollins v. Daraban, 145 W.Va. 178, pt. 2 syl., 113 S.E.2d 369; Barnett v. Wolfolk, W.Va., 140 S.E.2d 466, 469; Work v. Rogerson, W.Va., pt. 2 syl., 142 S.E.2d 188; Boggs v. Settle, W.Va., 145 S.E.2d 446, 448.
The trial court's written opinion states that a new trial "to all parties and on all issues should be granted on the ground of the excessiveness of the verdicts regardless of the merits of the other grounds upon which said motion for a new trial is based." It appears from the written opinion that the trial court determined that the verdict for $22,500 was "plainly and grossly excessive" and that, for that reason, both verdicts should be set aside. The trial court did not rule upon any other assignments of error. Neither the written opinion nor the court order indicates that the trial court's order in awarding a new trial was based on any ground other than the excessiveness of the verdicts, particularly the verdict in favor of the infant plaintiff. No cross-assignment of error has been made in behalf of the defendant. See Payne v. Kinder, 147 W. Va. 352, 127 S.E.2d 726. In this Court counsel for the respective parties, in their briefs and oral arguments, have urged no ground for affirming or reversing the order of the trial court except on the basis of the alleged excessiveness of the verdicts.
During the trial, no objection was made to the doctor and hospital bills. It was stipulated by counsel that such bills, aggregating the sum of $935.61, were reasonable in their amounts and that they were necessarily incurred in the treatment of the patient. The verdict in favor of Jay Sargent was for $935.61. The question of excessiveness, therefore, relates directly to the verdict for $22,500 in favor of the infant plaintiff.
This Court has recognized that it requires a stronger case in an appellate court to reverse a judgment awarding a new trial than a judgment denying a new trial. Graham v. Wriston, 146 W.Va. 484, pt. 3 syl., 120 S.E.2d 713. On the other hand, it is clear that the judgment of the trial court in awarding a new trial should be reversed if it is in that respect clearly wrong or if a consideration of the evidence shows that the case was a proper one for jury determination. Rollins v. Daraban, 145 W.Va. 178, pt. 6 syl., 113 S.E.2d 369; Reese v. Lowry, 140 W.Va. 772, pt. 4 syl., 86 S.E.2d 381; Henderson v. Hazlett, 75 W. Va. 255, 83 S.E. 907. This Court has affirmed the actions of trial courts in awarding new trials on the ground of excessiveness of verdicts where the verdicts were clearly excessive or where the evidence in relation to that question was doubtful. Browning v. Monongahela Transportation Co., 126 W.Va. 195, 27 S.E.2d 481; Pittsburgh-Wheeling Coal Co. v. Wheeling Public Service Co., 106 W.Va. 206, pt. 1 syl., 145 S.E. 272; Cain v. Kanawha Traction & Electric Co., 81 W.Va. 631, pt. 4 syl., 95 S.E. 88; Corns-Thomas Engineering & Construction Co. v. McDowell County Court, 92 W.Va. 368, pt. 11 syl., 115 S.E. 462; Adkinson v. Baltimore & Ohio Railroad Co., 75 W.Va. 156, pt. 3 syl., 83 S.E. 291. Even in a case in which the damages recoverable are indeterminate in character, this Court will reverse the action of the trial court in refusing to set aside the verdict on the ground of excessiveness where the verdict is clearly in excess of the amount which the evidence shows the plaintiff is entitled to recover. Winters v. Campbell, 148 W.Va. 710, pt. 5 syl., 137 S.E.2d 188. This Court in a personal injury case, will reverse the judgment of the trial court in setting aside a verdict on the ground of excessiveness, reinstate the verdict and enter judgment on the verdict in this Court, if it appears that the action of the trial court in setting aside the verdict was not justified. Reese v. Lowry, 140 W. Va. 772, 86 S.E.2d 381.
*564 A well-settled legal principle, binding both on the trial court and this Court, is that in an action in which the compensation which the plaintiff is entitled to recover is indeterminate in character, the verdict of the jury may not be set aside as excessive unless it is not supported by the evidence or is so large that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case. Poe v. Pittman, W.Va., pt. 7 syl., 144 S.E.2d 671. In such a case a mere difference of opinion between the court and the trial jury concerning the proper amount of recovery will not justify either the trial court or this Court in setting aside the verdict on the ground of inadequacy or excessiveness. Earl T. Browder v. County Court of Webster County, 145 W.Va. 696, pt. 5 syl., 116 S.E.2d 867.
Another well-settled legal principle, binding both on the trial court and the appellate court, is that, in determining whether a jury verdict is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned must be considered, and all facts which the jury might properly have found from the evidence must be assumed as true. Bolling v. Clay, W.Va., pt. 1 syl., 144 S.E.2d 682; Poe v. Pittman, W.Va., pt. 5 syl., 144 S.E.2d 671; Walker v. Monongahela Power Co., 147 W.Va. 825, pt. 3 syl., 131 S.E.2d 736; Bower v. Brannon, 141 W.Va. 435, 440, 90 S.E.2d 342, 346; Butcher v. Stull, 140 W.Va. 31, pt. 1 syl., 82 S.E.2d 278.
In the light of the authorities previously referred to in this opinion, we believe we are required, in considering the question of the alleged excessiveness of the verdict for $22,500, to determine whether the verdict is one which the jury might properly have found from the evidence bearing on that question. Only witnesses for the plaintiffs testified concerning the nature and extent of the personal injuries sustained by Betty Sargent. No testimony of this character was adduced in behalf of the defendant. There is no substantial dispute, therefore, in the testimony bearing directly on the issue of the alleged excessiveness of the verdict in her favor.
On January 12, 1962, Betty Sargent entered a hospital in Buckhannon where she remained as a patient continuously until February 17, a total of thirty-six days. The testimony discloses some uncertainty on the question whether the date of her initial discharge from the hospital was February 7 or February 17, but both a hospital bill and a doctor's bill which were introduced in evidence indicate that the latter of the two dates is correct.
Dr. R. L. Chamberlain, a physician residing at Buckhannon, testified that he was called to see Betty Sargent in the emergency room of the hospital on January 12; that she was then suffering from burns "all up and down her back," on both buttocks, on her left breast, under her left arm, in the left armpit, and on her left leg; that all of the burns were either of the second degree or third degree; that, in connection with his initial treatment of the patient, she was given an injection for pain, skin which was obviously dead and destroyed was removed with surgical scissors and all burned skin which appeared likely to respond to treatment was treated with appropriate medications; that the first thing he did was to give the patient morphine; that pain remedies were given thereafter; that fluids were given intravenously from time to time because of the seepage of fluids through the raw tissues; that bandages were changed and ointment was reapplied at proper intervals; that the patient suffered pain throughout this initial period of hospitalization; that second degree burns are particularly painful; that the squeezing of nerves by the scar tissue in such cases is painful; that, after the patient was initially discharged from the hospital to remain at her home as an outpatient, she returned to the hospital for treatment of the *565 burns at intervals of approximately six days; that some of the burned areas were slow in healing and that in these circumstances Dr. Basil Page, a surgeon of Buckhannon, suggested skin grafting.
The patient returned to the hospital on March 19 for further treatment, particularly for skin grafting, and remained as a patient in the hospital until April 8, or a total of twenty days on this second occasion. Apparently, therefore, the patient's injuries required hospitalization for a total of fifty-six days.
Dr. Chamberlain described the skin grafting procedure in this case as "pinch graft," by which procedure many circular pieces of skin, averaging about a quarter of an inch in diameter, were removed from healthy sites on the patient's body and applied in rows to the raw areas created by the burns until such raw areas were covered and thereafter such areas were protected by bandages. He testified further that a patient is anesthetized and, therefore, suffers no particular pain during the skin grafting procedure, but that the patient later experiences soreness in the areas from which healthy skin has been removed; that the process of transplanting such circular pieces of skin is similar to planting seeds in that only about fifty percent of the transplants are effective and successful; that small rows of scars result from the removal of the circular pieces of healthy skin; that "not all the grafts grew, and of course each site that did grow new skin grew out from that area, but she continued to have dressings about every week or two until healing was complete on August 10, which was the last I felt she needed treatment;" and that the patient suffered pain throughout the period from January 12, when the burns were sustained, until August 10, though the pain diminished as improvement occurred.
In relation to the resulting scars on the patient's body, Dr. Chamberlain testified: "The scarring in the more extensive areas, the areas partly grafted, left upper arm and the armpit and the left lower thigh, are pretty extensive. They are quite extensive and deep and thick. All the other areas involved are scarred but to a much less extent." The witness testified that he knew of no medical or surgical means of correcting or eliminating the scars. He did not deem himself qualified to express an opinion whether plastic surgery would be helpful in that respect. When asked about the emotional or mental reactions of the patient as a result of the burns, the doctor testified that she was naturally apprehensive and anxious during the entire course of treatment and that pain "is wearing and tearing to a person's system." The testimony discloses without contradiction that an offensive odor resulted from the patient's burns. In her testimony, Betty Sargent described the odor as "a rotten smell." She stated that the odor continued until the burns healed about the first of September.
Ivy Sargent, mother of Betty Sargent, testified concerning the scars which resulted from the burns. She testified further that her daughter, as a result of the burns, "just seems like she is tired," and is unable to work as she did before she was injured. She also testified concerning the offensive odor which resulted from the burns and that such odor continued throughout the periods of her daughter's stays in the hospital and until September.
Jay Sargent testified concerning the unpleasant odor which resulted from the burns; that his daughter does not seem to be as active as before; and that he notices that "she hobbles when she goes across the floor."
Betty Sargent testified that, "about in May," the burns "quit hurting so bad;" but that she was in constant pain until that time; that she was not working at the time she testified on May 8, 1964, because she was not able to work; that she gets tired readily when she walks; that "if I use my arm much it tires easy, and I can't walk much on my leg;" and that her left breast, as a result of the injury, is bumpy, scarred and, where it was burned, it is "kind of flat."
*566 At the suggestion of her counsel during the trial and by permission of the court, Betty Sargent retired from the courtroom in order to attire herself in such a way that, upon her return to the courtroom, she was able to exhibit to the jury some of the scars on her body. Spectators were excluded from the courtroom while the scars were being exhibited to the jury. Two photographs introduced in evidence and made a part of the printed record in this Court give evidence of the unsightly scars in the areas of the left breast, the left armpit and the left arm between the elbow and the armpit. While the photographs do not show the scars on other parts of her body, she testified that the burned area "in and about the leg" is "rough and scarred."
The photographs indicate that Betty Sargent is an attractive girl. She was slightly less than sixteen years of age when she commenced working in the defendant's restaurant, seventeen when the accident occurred and nineteen at the time of the trial. She testified that because of the scars on her left leg, she no longer wears shorts as she did before the accident, except at home; and that she now wears sleeveless dresses only once in a while.
In recent cases the Court has reviewed its prior decisions relative to allegedly excessive verdicts in actions to recover damages for personal injuries. Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410; French v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38; Williams v. Penn Line Service, Inc., et al., 147 W.Va. 195, 126 S.E.2d 384; Poe v. Pittman et al., W.Va., 144 S.E.2d 671. While legal principles applicable to such cases are fairly well settled, difficulties arise in their application to factual situations. There is no exact formula or standard for placing a money value on such matters as pain, suffering and mental anguish resulting from personal injuries or embarrassment resulting from bodily disfigurement or scars. The law recognizes that the aggregate judgment of twelve duly selected and properly qualified jurors represents the best method yet devised for fixing the amount of just compensation to the injured plaintiffs in such cases.
A jury verdict in a personal injury case may not be set aside as excessive by the trial court merely because the award of damages is greater than the trial judge would have made if he had been charged with the responsibility of determining the proper amount of the award. This Court cannot set aside a verdict as excessive in such a case merely because a majority or all members of the Court would have made an award of a lesser amount if initially charged with the responsibility of determining the proper amount of the award. In Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115, 122, 2 S.E.2d 898, 901, the Court stated: "The court is unanimous in the view that the verdict is probably excessive; but a majority is of the opinion that, in view of the well known rule that the verdict of a jury will not be disturbed except where it plainly appears to have resulted from mistake, partiality, passion, prejudice or lack of due consideration, the excess finding is not such as would warrant a reversal of the judgment and a setting aside of the verdict on that ground." In Armstead v. Holbert, 146 W.Va. 582, 587, 122 S.E.2d 43, 46-47, the Court stated: "However, a majority of the Judges of this Court are in agreement with the circuit court that while `* * * the verdict was probably too large, * * *' it could not be said to be excessive as a matter of law and would not be set aside upon the ground of excessiveness alone."
The distinguished trial judge believed that the verdict for $22,500 in favor of Betty Sargent was excessive and that partiality or prejudice on the part of the jury was evidenced by the fact that the jury initially returned a verdict for $1,500 in favor of Jay Sargent, notwithstanding the fact that in an instruction given in behalf of the plaintiffs the court had told the jury that it could not return a verdict for Jay Sargent in excess of $935.61. Dr. Chamberlain *567 testified that, even if plastic surgery were undertaken for the benefit of Betty Sargent, his conservative estimate was that it would cost from $500 to $1,000. It may be that this testimony influenced the jury in returning the original verdict for $1,500 in favor of Jay Sargent. Notwithstanding this action on the part of the jury, we are unable to say as a matter of law that the verdict for $22,500 in favor of Betty Sargent is excessive.
For reasons stated in this opinion, the order of the Circuit Court of Upshur County in setting aside the verdicts and awarding the defendant a new trial is reversed. In such circumstances, the verdicts will be reinstated and judgments will be rendered thereon in this Court. "In the case of an appeal from an order granting a new trial or rehearing, if the order be reversed, such final judgment, decree or order shall be rendered or made in the case as the appellant was entitled to in the court below." Code, 1931, 58-5-25. See also Bronson, Executor v. Riffe, 148 W.Va. 362, pt. 4 syl., 135 S.E.2d 244; Brace v. Salem Cold Storage, Inc., 146 W.Va. 180, pt. 7 syl., 118 S.E.2d 799, 92 A.L.R. 2d 1287.
Reversed; verdicts for plaintiffs reinstated; judgments rendered in this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364021/ | 146 S.E.2d 53 (1966)
266 N.C. 134
FIREMEN'S MUTUAL INSURANCE COMPANY
v.
HIGH POINT SPRINKLER COMPANY.
No. 702.
Supreme Court of North Carolina.
January 14, 1966.
*59 Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for plaintiff appellant.
Jordan, Wright, Henson & Nichols, by G. Marlin Evans, Greensboro, for defendant appellee.
LAKE, Justice.
The policy issued by the plaintiff to the Desk Company was in the standard form prescribed by the statute. G.S. § 58-176. It provided: "Subrogation. This Company may require from the insured an assignment of all right of recovery against any party for loss to the extent that payment therefor is made by this Company." Both by virtue of this provision in the policy and upon equitable principles the plaintiff, having paid the loss to the Desk Company pursuant to the policy, is subrogated to the right of the Desk Company, if any, against the defendant. Dixie Fire & Casualty Co. v. Esso Standard Oil Co., 265 N.C. 121, 143 S.E.2d 279; General Insurance Co. of America v. Faulkner, 259 N.C. 317, 130 S.E.2d 645; Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185; Powell & Powell v. Wake Water Co., 171 N.C. 290, 88 S.E. 426. The plaintiff offered evidence, which is uncontradicted, to the effect that it paid the full amount of the loss to the Desk Company. This evidence being taken as true in passing upon the motion for judgment as of nonsuit, the plaintiff now has the same right against the defendant which the Desk Company had immediately prior to such payment.
One who engages in a business, occupation or profession represents to those who deal with him in that capacity that he possesses the knowledge, skill and ability, with reference to matters relating to such calling, which others engaged therein ordinarily possess. He also represents that he will exercise reasonable care in the use of his skill and in the application of his knowledge and will exercise his best judgment in the performance of work for which his services are engaged, within the limits of such calling. Perfecting Service Co. v. Product Development & Sales Co., 261 N.C. 660, 136 S.E.2d 56 (industrial designer); Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (physician); Jackson v. Central Torpedo Co., 117 Okl. 245, 246 P. 426, 46 A.L.R. 338 (oil well digger); Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503 (carpenter). It is alleged in the complaint and admitted in the answer that the defendant, at the time in question, was engaged in the business of installing fire sprinkler systems and held itself out to the public as qualified, competent and experienced in the installation of both wet and dry fire sprinkler systems.
This Court has said on numerous occasions, "The law imposes upon every person who enters upon an active course of conduct the positive duty to exercise *60 ordinary care to protect others from harm, and calls a violation of that duty negligence." Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551. See also: Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132; Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727.
In 38 Am.Jur., Negligence, § 14, it is said:
"[T]he law imposes upon every person who undertakes the performance of an act which, it is apparent, if not done carefully, will be dangerous to other persons or the property of other persons, the duty to exercise his senses and intelligence to avoid injury, and he may be held accountable at law for an injury to person or to property which is directly attributable to a breach of such duty."
However, an action to recover damages for an injury to person or property may not be sustained on the theory that such injury was caused by the negligence of the defendant unless there existed, at the time and place where the injury occurred, a duty on the part of the defendant to exercise care for the protection of the plaintiff or his property. 38 Am.Jur., Negligence, § 12.
Whether there is a duty owed by one person to another to use care, and, if so, the degree of care required, depends upon the relationship of the parties one to the other. The mere relation of one human being to another imposes some duty upon each. "Every man is in general bound to use care and skill in his conduct wherever the reasonably prudent person in his shoes would recognize unreasonable risk to others from failure to use such care." Harper & James, Torts, § 28.1. Other duties arise by reason of special business or economic relations between the parties. For example, under the common law, an employer owes to his employee affirmative duties of care for his safety which he does not owe to the public generally. The relation of physician and patient imposes upon the physician a duty of care for the protection of the patient from injury which he does not owe to others. A bailee of goods, by virtue of the bailment relation, owes a special duty to the bailor to use care for the safety of the goods. An architect, in the preparation of plans and drawings for the construction of a building, owes to the person employing him a duty, not only to use his own best judgment, but also to exercise the ability, skill and care customarily used by architects upon such projects. 5 Am.Jur. 2d, Architects, § 8; 5 C. J., Architects, § 24; 6 C.J.S. Architects § 19; Anno.: 25 A.L.R. 2d 1085. A carpenter who contracts to repair a house is liable in damages if he performs the repair so unskillfully as to damage other portions of the structure. See: Flint Mfg. Co. v. Beckett, supra; Jackson v. Central Torpedo Co., supra; 38 Am.Jur., Negligence, § 20.
The duty to use due care, the breach of which gives rise to a tort action for negligence in favor of one injured thereby in his person or property, may arise out of a contract. A breach of a contract, nothing else appearing, does not give rise to an action in tort. 38 Am.Jur., Negligence, § 20. However, the making of the contract may give rise to a relationship between the parties out of which arises the duty of one party to use due care so as not to injure the person or property of the other. In that event, the failure to use such care resulting in injury to the person or property of the other party gives him a right of action in tort for such negligent injury. Toone v. Adams, supra; Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893; Perfecting Service Co. v. Product Development & Sales Co., supra; Dixie Fire Casualty Co. v. Esso Standard Oil Co., supra; 38 Am.Jur., Negligence, § 14.
However, a complete, binding contract between the parties is not a prerequisite to a duty to use due care in one's actions in connection with an economic relationship. 38 Am.Jur., Negligence, §§ 14, *61 17. Barnhill, C. J., said in Honeycutt v. Bryan, 240 N.C. 238, 81 S.E.2d 653:
"Whenever one person is by circumstances placed in such a position towards another that anyone of ordinary sense who thinks will at once recognize that if he does not use ordinary care and skill in his own conduct with regard to those circumstances, he will cause danger of injury to the person or property of the other, duty arises to use ordinary care and skill to avoid such danger."
The defendant was engaged in the automatic fire sprinkler business. Its regular business included conversion of wet sprinkler systems to dry sprinkler systems. The Desk Company had a wet sprinkler system in its warehouse and informed the defendant of its desire to convert this system to a dry sprinkler system. Taking the plaintiff's evidence to be true and considering it in the light most favorable to the plaintiff, as we are required to do in passing upon the correctness of the judgment of nonsuit, it shows that the Desk Company requested the defendant to examine the system and submit to the Desk Company a proposal of a price for doing the work necessary to convert it to a dry system. The defendant's representative walked through the building, observing the system, unaccompanied by any representative of the Desk Company. One purpose of this inspection was to look for low points. Had he observed one, it would have been his duty to suggest that something be done about it because of the danger that if water was left in such a low point it might freeze and cause the pipe to break. Having completed his inspection, he submitted a proposal to the Desk Company specifying certain things to be done and stating a price for doing them. His proposal was accepted, and the specified things were done. In his inspection he did not find the low point, although it was obvious to an observer who looked at this particular length of pipe. There is nothing to indicate that the Desk Company knew the pipe in question was so connected that it would not drain. Since no other pipe in the system broke, it may reasonably be inferred from the plaintiff's evidence that there were no other low points in the system. The elimination of the hazard caused by this particular low point was a relatively simple, inexpensive matter.
As was said by Moore, J., in Perfecting Service Co. v. Product Development Sales Co., supra:
"When one undertakes a professional assignment, the engagement implies that he possesses the degree of professional learning, skill and ability which others of that profession ordinarily possess, he will exercise reasonable care in the use of his skill and application of his knowledge to the assignment undertaken, and will exercise his best judgment in the performance of the undertaking. * * * He may incur liability in tort by reason of negligent performance."
When one, engaged in the business of installing equipment, such as a sprinkler system, accepts an invitation to inspect an existing installation and submit a proposal for its conversion to one of a different type, which he holds himself out as qualified to do, a relationship arises between him and the owner of the building such as to impose upon him the duty to use, in inspection of the property and the preparation of the specifications for the conversion work, that degree of care which is customarily used upon such assignments by others engaged in such business. In such a situation, knowing that the owner is relying upon him to determine what is necessary to do to the existing system in order to convert it into the system desired, if he, by failure to use due care, omits from his specifications an alteration necessary to avoid danger of damage to the owner's building or other property, he is not absolved from *62 liability for such damage by the fact that the owner accepts his proposal for less than adequate changes in the existing system, the owner being unaware of the condition which makes the proposal inadequate. The duty to use due care to include within the specifications all that is necessary to make the converted system safe continues into and through the performance of the work.
In reviewing the judgment of nonsuit, the plaintiff's evidence must be taken as true and all reasonable inferences favorable to the plaintiff must be drawn therefrom. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579. So considered, the evidence is sufficient to support a finding that the defendant failed to use due care in preparing its specifications of the changes necessary to be made for the conversion of the sprinkler system and that such negligence was the proximate cause of the damage to the property of the Desk Company for which the plaintiff had paid in accordance with its policy. That being true, the motion for judgment of nonsuit should not have been allowed. Upon retrial of the action it will, of course, be for the jury to determine, in the light of all the evidence then introduced, whether the defendant was, in fact, negligent.
The plaintiff's pre-trial motion for an order directing the defendant to permit the plaintiff to inspect its files relating to this matter was addressed to the discretion of the court. G.S. § 8-89. Dunlap v. London Guaranty & Accident Co., 202 N.C. 651, 163 S.E. 750. There is no showing of abuse of this discretion in the denial of the motion.
It is not necessary that we now pass upon the exceptions relating to the admissibility of evidence, since those questions may not recur when the matter is tried again.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364027/ | 221 Ga. 627 (1966)
146 S.E.2d 628
ROBBINS
v.
ROBBINS.
23255.
Supreme Court of Georgia.
Argued December 13, 1965.
Decided January 6, 1966.
Jones & Kemp, Charles M. Jones, for appellant.
William T. Darby, Sr., B. P. Jackson, Jr., for appellee.
DUCKWORTH, Chief Justice.
The errors complained of by the appellant-respondent to the application for citation for contempt are to the overruling of the demurrers, general and special, oral motions to dismiss the application and to strike certain paragraphs of the petition alleging defiant violations of a decree and judgment of the court for (1) nonpayment of alimony; (2) failure to make a due and just accounting of defendant's annual income; (3) failure and refusal to return custody of the oldest child at the end of visitation periods; and (4) doing numerous other acts allegedly defiantly violative of the court decree, and praying for attorney's fees. The respondent also alleges error in holding him in contempt for (1) nonpayment of alimony; (2) failure to make a due and just accounting of his income; (3) making misrepresentations in open court as to custody of the child; (4) failure to deliver custody of the child on a date certain as ordered by the court; and (5) defiantly refusing to live up to the spirit and intent of a nisi order issued in open court. He also specifies error in the issuance of a bench *628 warrant, his arrest and incarceration, the award of attorney's fees, and the judgment attempting to amend and modify the original final decree commanding the parties to comply with each and every provision of the settlement agreement attached to and made a part of the final decree of divorce and alimony. Held:
1. The demurrers are, in the main, based on the question of whether or not the failure of a party to a divorce and alimony suit to perform the various portions of a settlement agreement between the parties amounts to contempt of court. The law makes the nonpayment of alimony in accordance with a decree of divorce and alimony contempt regardless of whether the final order of the court commands the payment of same. Code §§ 30-204, 30-219; Wilson v. Chumney, 214 Ga. 120 (1) (103 SE2d 552), and citations. Here neither the settlement agreement nor the final decree contains language commanding the performance of any act by and between the parties, hence the petition is subject to demurrer in regard to the failure of the party respondent (1) to make an accounting of his net income based upon his income tax returns in prior years; (2) to return custody of the minor child at the required periods after visitation rights had ended; (3) to being openly and defiantly belligerent, as between the parties, in regard to living up to the various parts of the settlement agreement; and (4) to the refusal of the respondent to allow the applicant to see the child on a certain occasion as alleged in the petition. All portions of the petition containing these allegations should be striken therefrom. Palmer v. Bunn, 218 Ga. 244 (127 SE2d 372). The court erred in overruling the special demurrers and motions to strike paragraphs containing these allegations.
2. But the petition clearly alleges a cause of action for nonpayment of alimony, and the court did not err in overruling the general demurrer thereto.
3. However, it appears from the record that the court found the respondent in contempt based on the entire petition and likewise awarded attorney's fees based thereon, and much of the subject matter of the petition should have been striken on demurrer. Since it is clearly apparent that much irrelevant matter was considered in citing the defendant in contempt and we can not separate it from the nonpayment of alimony, the judgment citing him in contempt and awarding *629 attorney's fees is reversed with direction that the entire case be reheard stripped of all irrelevant matter except the nonpayment of alimony.
4. Likewise, the attempt by the court in its judgment to command both parties to abide by the settlement agreement made a part of the final divorce and alimony decree is an attempt to rewrite the final decree and is absolutely void.
Judgment reversed with direction. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364029/ | 588 P.2d 1022 (1979)
The TAHOE HIGHLANDER, a Nevada Corporation, Donald B. Steinmeyer and Marlene Steinmeyer, Appellants and Cross-Respondents,
v.
WESTSIDE FEDERAL SAVINGS AND LOAN ASSOCIATION, Great Western Union Savings and Loan Association, Respondents and Cross-Appellants.
No. 9944.
Supreme Court of Nevada.
January 12, 1979.
*1023 Woodburn, Wedge, Blakey & Folsom, and William E. Peterson, Reno, for appellants and cross-respondents.
Wilson, Pereos & Henderson, and C. Nicholas Pereos, Reno, for respondents and cross-appellants.
OPINION
PER CURIAM:
On November 24, 1975, respondents foreclosed upon a deed of trust executed by appellant Tahoe Highlander. The deed of trust encumbered a 75-unit apartment complex at Incline Village, Nevada, and was given as security for a $1,400,000 promissory note to respondents' assignor. The promissory note was also personally guaranteed by appellants Donald and Marlene Steinmeyer.
On January 24, 1976, respondents commenced this action, pursuant to NRS 40.455, seeking a deficiency judgment against appellants for the amount by which the total indebtedness exceeded the fair market value of the property at the time of the foreclosure sale.[1] The district court scheduled a *1024 hearing on the matter, as required by NRS 40.457.[2] Prior to the hearing, each side employed a real estate appraiser to value the apartment complex as of the date of the foreclosure sale. At the hearing, appellants' appraiser testified that the highest and best use of the property was as a cooperative housing complex, and computed the fair market value at $1,712,000. Respondents' appraiser testified that the highest and best use of the property was as an apartment complex, and computed the fair market value at $1,135,000.
At the conclusion of the hearing, the district court found the total indebtedness to be $1,607,909 and concluded that the fair market value at the time of the foreclosure sale was $1,450,000. Accordingly, the district court, as required by NRS 40.459, awarded respondents $157,909 (the difference between the indebtedness and the fair market value of the property), plus interest and attorney's fees.[3] Both parties appealed from the judgment.
Appellants contend the evidence does not support the district court's determination of the property's fair market value. Their contention is based upon the assumption that fair market value is determined solely by the property's highest and best use.[4] We disagree.
Although highest and best use may be determinative of value for purposes of condemnation, see Sorenson v. State ex rel. Dep't of Hwys., 92 Nev. 445, 552 P.2d 487 (1976), it is but one factor to be considered in ascertaining the property's fair market value for purposes of deficiency judgment proceedings. See Union Nat. Bank of Pittsburgh v. Crump, 349 Pa. 339, 37 A.2d 733 (1944). Accordingly, the district court, in exercise of its discretion, could properly consider the experts' testimony relative to highest and best use, along with the rest of the evidence in the record, in determining the fair market value of the property. Where, as here, that determination is supported by substantial evidence, it will not be disturbed on appeal. Id; see also Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967).
On cross-appeal respondents contend the testimony of appellants' expert should have been disregarded since his appraisal was based, in part, upon market factors which occurred after the date of the foreclosure sale. Respondents' failure to object to this testimony at trial precludes appellate review of this issue. See Warner v. Dillon, 92 Nev. 677, 558 P.2d 540 (1976).
Other issues raised by the parties are without merit.
The district court judgment is affirmed.
NOTES
[1] NRS 40.455 provides:
"Upon application of the judgment creditor or the trustee within 3 months from the date of the foreclosure sale or the trustee's sale held pursuant to NRS 107.080, respectively, and after the hearing conducted under NRS 40.457, the court may award a deficiency judgment to the judgment creditor or trustee if it appears from the sheriff's return or the recital of consideration in the trustee's deed that there is a deficiency of sale proceeds and a balance remaining due to the judgment creditor or the trustee, respectively."
[2] NRS 40.457 provides, in pertinent part:
"1. Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearing and shall take evidence presented by either party concerning the fair market value of the property sold as of the date of foreclosure sale... ."
[3] NRS 40.459 provides:
"After the hearing under NRS 40.457, the court may award a money judgment against the defendant or defendants personally liable for the debt. The court shall not render judgment for more than the amount by which the amount of indebtedness which was secured by the mortgage, deed of trust or other lien at the time of the foreclosure sale or trustee's sale, as the case may be, exceeded the fair market value of the property sold at the time of such sale, with interest from the date of such sale. In no event shall the court award such judgment, exclusive of interest after the date of such sale, in an amount exceeding the difference between the amount for which the property was actually sold at the foreclosure sale or trustee's sale and the amount of indebtedness which was secured by the mortgage, deed of trust or other lien at the time of such sale."
[4] Appellants contend that where, as here, rival experts offer disparate opinions as to the property's highest and best use, the court must select one use and value the property on the basis of evidence adduced as to that use. Thus, they conclude, the court's valuation at a sum between the two experts' valuations is in error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364055/ | 22 Wash. App. 193 (1978)
588 P.2d 1203
THE CITY OF BONNEY LAKE, Respondent,
v.
KATHERINE L. DELANY, Appellant.
No. 3318-2.
The Court of Appeals of Washington, Division Two.
December 14, 1978.
*194 Barton T. Wilson, for appellant.
George Kelley and Skoog & Mullin, for respondent.
SOULE, J.
Katherine L. Delany, defendant, was tried in the Bonney Lake Police Court and convicted of speeding and obstructing arrest. On March 11, 1977, acting pro se, she filed a notice of appeal with the Superior Court followed by ten motions of various types, including two motions for a writ of review. The writ of review was sought to bring out alleged irregularities in the municipal proceedings. The Superior Court granted her appeal, denied the writs of review and proceeded to trial de novo. Defendant was convicted on one charge and acquitted on the other.
Upon appeal to this court, defendant contends that it was error for the Superior Court to proceed with a trial de novo based on her notice of appeal, rather than a review of the lower court proceedings based on her subsequent motions.
[1] Under RCW 3.50.370, municipal court convictions are reviewable in superior court either by an appeal or by a writ of review. The purpose of a writ of review is to review the judicial actions of inferior tribunals when there is no appeal nor any plain, speedy and adequate remedy at law. RCW 7.16.030, .040; Andrus v. Snohomish County, 8 Wash. App. 502, 507 P.2d 898 (1973).
Defendant in this case was granted an appeal to the superior court. Apparently she objects to the fact that in the de novo proceeding she was precluded from having alleged irregularities in the municipal court reviewed. She *195 suggests that an appropriate remedy would be a hearing on a writ of review instead of, or prior to, a trial de novo. We disagree.
A reverse situation was presented in Seattle v. Buerkman, 67 Wash. 2d 537, 408 P.2d 258 (1965), where the pro se defendant did not formally seek a writ of review, but rather, lodged an oral appeal from municipal court to superior court. Under the rules, the superior court lacked jurisdiction to grant a trial de novo without a written notice of appeal, but the court treated the defective appeal effort as a writ of review and granted the parties a hearing on what happened in the municipal court with respect to being forced to trial without the presence of defense counsel. However, the court did not consider the merits of the charges. In holding that the superior court proceedings were in the nature of a writ of review and not an appeal, the Supreme Court distinguished the function and scope of an appeal as follows:
The superior court has jurisdiction over an appeal, properly perfected, in which case the trial therein is de novo, and on the merits, without reference to any irregularities which may have occurred in the lower court.
(Citations omitted.) Seattle v. Buerkman, supra at 540-41.
In State v. Miller, 59 Wash. 2d 27, 365 P.2d 612 (1961), the defendant appealed to the superior court, but after trial de novo there, he contended that the superior court had no jurisdiction because its jurisdiction is derivative and the justice court had no initial jurisdiction. The Supreme Court found that the justice court did have jurisdiction but that its venue was subject to challenge. However, the venue question was held to have been waived by taking the appeal.
A defendant has an independent action in the superior court to require conformance to the law in procedural matters in the justice court. When, however, the jurisdiction of the superior court is invoked by an appeal from a conviction in the justice court, the superior court does *196 not review the action of the justice court because it is not a court of record. Such an appeal invokes a trial de novo.
(Citations omitted.) State v. Miller, supra at 29.
This principle was reiterated in State v. Ladiges, 66 Wash. 2d 273, 401 P.2d 977 (1965), as well as in State v. Buerkman, supra.
It follows that an appeal having been properly perfected, there is no other remedy available, and certainly no concurrent or prior remedy for defendant since her efforts to obtain a writ of review were not made until after she perfected her appeal.[1]
[2] Because defendant represented herself pro se in appealing from municipal court, it was suggested in oral argument before this court that she was not versed in the legal consequences of perfecting an appeal, and therefore her intention of seeking review should have been honored in spite of the fact that she perfected an appeal for trial de novo. We find no merit to this suggestion since the rules of procedure apply equally to parties represented by counsel and parties who wish to take the risk of representing themselves. Cf. State v. Miller, 19 Wash. App. 432, 576 P.2d 1300 (1978).
The judgment of the trial court is affirmed.
REED, A.C.J., and JOHNSON, J. Pro Tem., concur.
NOTES
[1] The matter not being before us, we express no opinion as to whether or not a proceeding in the nature of a writ of review, if timely perfected, would be supplanted by a notice of appeal given thereafter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364030/ | 221 Ga. 647 (1966)
146 S.E.2d 882
BOSTICK
v.
USRY et al.
23130.
Supreme Court of Georgia.
Argued October 11, 1965.
Decided January 10, 1966.
Nicholson & Fleming, William M. Fleming, Jr., for appellant.
Fulcher, Fulcher, Hagler & Harper, Gould B. Hagler, for appellee.
COOK, Justice.
In an action for damages by Joseph O. Bostick against Tommie Lloyd Usry and R. C. Heard, trading as R. C. Heard Trucking Company, for injuries received by the plaintiff when the truck driven by Usry collided with the car driven by the plaintiff, counsel for the plaintiff in his argument to the jury stated as follows: "And I have got one thing further to say and I'm through. The law of the State of Georgia says this it says simply one thing that any person who drives a motor vehicle on the highways of this State is supposed to be financially responsible; to take care of you injury or my injury, or if I injure you to take care of your injury. In other words that is what the law says. I am supposed to be financially responsible anybody else. And the reason for that law is because of situations like this; that the law of the State of Georgia says that if I injure you, if I damage you as the result of my negligence, I should pay you." A motion for mistrial was made by the defendant, and this motion was denied by the trial judge.
The Court of Appeals held that it was "error for counsel, in argument to the jury, to make reference to the financial status of the parties; a statement that the law of Georgia requires that all who drive motor vehicles on the highways must be financially responsible is prejudicial error." Usry v. Bostick, 112 Ga. App. 76 (3) (143 SE2d 781). This court granted certiorari to review this ruling.
*648 It is our view that the Court of Appeals placed an erroneous construction on the language of the plaintiff's counsel. We do not think that the argument related to the worldly circumstances or financial standing of the parties. The word "responsible" is synonymous with "liable." Webster's 3rd Int. Dictionary, p. 1935. The gist of the argument was that a person is liable for injuries caused by his negligence and should respond in damages.
While in civil cases questions of law should be argued exclusively to the court (Code § 24-3319), counsel may state his legal position to the jury. Ransome v. Christian, 56 Ga. 351 (3). "Due latitude should be allowed counsel in argument, and unless the court abuse its discretion therein, this court will not interfere." Spence v. Dasher, 63 Ga. 430; Powell v. State, 179 Ga. 401 (4) (176 S.E. 29).
The argument of counsel in the present case was not of such prejudicial nature as to require the grant of a mistrial, and the trial judge did not abuse his discretion in refusing to grant a mistrial. The Court of Appeals erred in reversing the judgment of the trial court.
Judgment reversed. All the Justices concur, except Almand and Mobley, JJ., who dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265062/ | 6 F. Supp. 494 (1934)
STANDARD OIL CO. OF NEW JERSEY
v.
FOX.
No. 3312.
District Court, S. D. West Virginia.
March 1, 1934.
*495 H. D. Rummel, Donald O. Blagg, and A. G. Stone (of Rummel, Blagg & Stone), all of Charleston, W. Va., for plaintiff.
Homer A. Holt, Atty. Gen., R. Dennis Steed, Acting Asst. Atty. Gen., and Wm. Holt Wooddell, Asst. Atty. Gen., for defendant.
Before SOPER, Circuit Judge, and McCLINTIC and CHESNUT, District Judges.
SOPER, Circuit Judge.
This suit was brought to secure an injunction to restrain the state tax commissioner of the state of West Virginia from paying into the treasury of the state the sum of $240,173.50, paid to him under protest by the plaintiff corporation upon his demand that, under the provisions of an act of the state Legislature passed on March 8, 1933 (chapter 36), the money was due for license taxes upon certain gasoline filling stations and bulk distributing plants which it owned or controlled. The bill of complaint prays that a temporary restraining order and interlocutory injunction be issued; that upon final hearing the injunction be made perpetual; that the sum collected be declared a trust fund in the hands of the defendant for the use of the plaintiff; and that the defendant be required to account for and return it to the plaintiff. The grounds of the suit are: (1) That the application of the act to operators of automobile service stations violates the due process and equality clauses of the Fourteenth Amendment to the Federal Constitution; (2) that the act violates the uniformity requirement of the state Constitution; and (3) that, when properly construed, the act is not intended to apply to the places of business conducted by the plaintiff.
Sections 1 and 2 of the act provide that it shall be unlawful for any person to operate any store in the state without first having obtained a license from the state tax commissioner; and require every person desiring to operate more than one store to make a separate application to the state tax commissioner for each such store. Section 5 provides that each person operating "one or more stores or mercantile establishments within this state" shall pay, upon each store, the following annual license fees: Upon one store, $2; upon 2 to 5 stores, $5; upon 6 to 10 stores, $10; upon 11 to 15 stores, $20; upon 16 to 20 stores, $30; upon 21 to 30 stores, $35; upon 31 to 50 stores, $100; upon 51 to 75 stores, $200; and upon more than 75 stores, $250. The term "store" is defined to mean and include "any store or stores or any mercantile establishment or establishments which are owned, operated, maintained and/or controlled" (section 8) by the same person "in which goods, wares or merchandise of any kind, are sold, either at retail or wholesale." Section 9 provides that any person who shall violate any of the provisions of the act shall be guilty of a misdemeanor, and, upon conviction, fined not less than $25, nor more than $100; and that each day that such violation continues shall constitute a separate and distinct offence. Section 11 provides that no injunction shall issue from any court in the state enjoining the collection of any license tax provided by the act, but the party claiming that any license is not due shall pay the same under protest "with the right to collect the same from the state tax commissioner by an appropriate remedy as provided by law." These sections are set out in full in the margin.[1]
*496 It is alleged in the bill of complaint that the plaintiff is the Standard Oil Company of New Jersey, a corporation incorporated under the laws of the state of Delaware, and is chiefly engaged in the business of refining, transporting, and distributing, at wholesale and retail, in various states of the Union, including West Virginia, gasoline, kerosene, oils, grease, and divers other petroleum products. In 1933 it owned or controlled in West Virginia 949 service or filling stations, or places of business, either through ownership or lease of the premises, or through contractual relations with the owners or persons in control of the premises. This total consisted of 101 stations, owned or leased by the plaintiff and operated by it, called company owned stations; 388 stations, called leased outlets, leased to the plaintiff and operated by the lessor or some other person in control of the premises under commission contracts with the plaintiff; and 460 stations, called vending privilege outlets, at which the plaintiff acquired by lease the right to store and sell its products, and which were operated by the lessor or other person in control under commission contracts. The control of the plaintiff of all of these stations is so complete that the plaintiff does not deny that they are operated by it within the meaning of the act. In addition, it operated 54 bulk or distributing *497 plants, maintained principally as supply depots for the storage and distribution of petroleum products to the said service stations or dealers handling its products and to commercial and industrial customers throughout the state. A relatively small quantity of petroleum products is sold on the premises of the bulk stations.
The defendant is the tax commissioner of the state of West Virginia, and is a citizen and resident of that state, and has his office in the city of Charleston. He is charged with the duty of enforcing all the tax laws of the state, including the act which is the subject of this suit. On June 5, 1933, subsequent to the passage of the act, he issued and circulated throughout the state a written order, wherein he notified the operators of all stores and mercantile establishments that within seven days thereafter they must make application for licenses under the act on pain of the penalties therein imposed; and he ruled and declared that the act imposes license fees upon the plaintiff for the privilege of operating its gasoline filling stations and bulk distributing plants in the state, according to the schedule of fees prescribed by section 5 of the act, and advised the plaintiff that, unless it immediately filed applications for the licenses, and paid the fees, it would render itself subject to the penalties and fees provided in section 9 of the act. Pursuant to these rulings and directions, the plaintiff, on June 6, 1933, filed its application for licenses for 1,003 locations in the state, accompanying the application, however, with a letter stating that the act imposed no liability for license fees upon it; and that it paid the same, under protest and duress, for the sole purpose of avoiding the imposition of fines and penalties in the event that the validity and applicability of the act should be sustained. The amount paid was $240,173.50, composed of the fees scheduled in the act, and the sum of 50 cents for each application, as required by the law.
Since the relief prayed in the bill of complaint constituted an interference with the enforcement of a state statute upon the ground that it is invalid under the Federal Constitution, and since the application for interlocutory injunction was pressed on this ground, a court of three judges was properly organized to try the case under section 266 of the Judicial Code (28 USCA § 380). Stratton v. St. Louis S. W. Ry., 282 U.S. 10, 51 S. Ct. 8, 75 L. Ed. 135; Public Service Corporation v. Batesville Telephone Co., 284 U.S. 6, 52 S. Ct. 1, 76 L. Ed. 135; Sterling v. Constantin, 287 U.S. 378, 53 S. Ct. 190, 77 L. Ed. 375.
The defendant filed a motion to dismiss, and also an answer to the bill of complaint. The motion to dismiss is based on the ground that the federal questions raised are frivolous and unsubstantial; and that, in any event, there is no equitable jurisdiction because the complainant has a complete and adequate remedy at law.
When the case came on for hearing, it was contended in support of the motion to dismiss that the right of a state to impose a graduated license tax upon a chain of stores has been firmly established by the decisions of the Supreme Court in State Board of Tax Commissioners v. Jackson, 283 U.S. 527, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464, and Liggett Company v. Lee, 288 U.S. 517, 53 S. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699, and that therefore, under the rule laid down in Ex parte Joseph Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152, the contention that the present act is contrary to the Fourteenth Amendment to the Federal Constitution is so obviously unsound that it raises no substantial federal question. Whether such a question is present in such a way as to give jurisdiction to the court must be determined by the allegations of the bill; and, in view of the subsequent discussion herein of the constitutionality of the West Virginia act, we need only point out here that the plaintiff asserts in the bill of complaint that it does not enjoy the peculiar economic advantages upon which the separate classification of chain stores for taxation was upheld by the Supreme Court in the cases cited; that the tax imposed by the West Virginia act is so high that it substantially equals the net earnings of the plaintiff on all of its outlets in the state during the year 1932, and exceeds the net earnings of 95 per cent. of said outlets; and that, in the practical operation of the act, there is an arbitrary discrimination between the business of the plaintiff and other oil companies, on the one hand, and the business of other general commodity chain organizations, on the other, in that in the former the ratio of the tax to the gross revenue is very high, and in the latter the ratio is very low, with the result that gross inequality in the burden of taxation ensues.
The right of the plaintiff to invoke the equitable jurisdiction of the court depends *498 upon the absence of an adequate remedy at law. A suit to enjoin the collection of a state tax on the ground that it involves an arbitrary and unreasonable discrimination against the taxpayer in violation of the Fourteenth Amendment will not lie in a federal court when, under the laws of the state, provision is made for the payment of the tax under protest with the right to bring suit for its recovery against the collecting officer or authority, and when means are provided for the satisfaction of any judgment that may be obtained. Henrietta Mills v. Rutherford County, 281 U.S. 121, 50 S. Ct. 270, 74 L. Ed. 737; Matthews v. Rodgers, 284 U.S. 521, 52 S. Ct. 217, 76 L. Ed. 447; Stratton v. St. Louis S. W. Ry. Co., 284 U.S. 530, 52 S. Ct. 222, 76 L. Ed. 465. See, also, Id., 282 U.S. 10, 51 S. Ct. 8, 75 L. Ed. 135. Section 11 of the West Virginia statute provides that the collection of the license tax shall not be enjoined by any court of the state, "but the party claiming that any license is not due, for any reason, shall pay the same under protest with the right to collect the same from the state tax commissioner by an appropriate remedy as provided by law." Section 10 provides that all money collected under the provisions of the act shall be paid into the state treasury monthly by the state tax commissioner, and shall be added to and shall constitute a part of the general fund for the elementary schools.
The bill of complaint charges, and the answer admits, that, prior to the institution of the suit, the tax commissioner had declared his intention to pay the license moneys paid to him by the plaintiff into the state treasury on the 1st day of July, 1933, and that such action would take place unless the tax commissioner was enjoined and restrained from so doing.
The remedy at law provided by the statute is the right to collect the license moneys from the state tax commissioner by an appropriate remedy, as provided by law. How this right is to be exercised is not made definite; nor is it made clear how the taxpayer, if successful in a suit brought for the purpose, may recover back his money. The defendant says that appropriate remedies are provided by section 1, article 3, chapter 12, and sections 1 to 5 of article 2 of chapter 14 of the West Virginia Code. The first mentioned statute provides in substance that every person claiming to receive money from the treasurer of the state shall apply to the auditor for a warrant for the same; that the auditor shall examine the claim and the evidence supporting it, and shall issue his warrant on the treasurer for so much of the claim as he shall find to be justly due from the state, if payment thereof be authorized by law and there be an appropriation not exhausted or expired out of which it is properly payable. On presentation of the warrant to the treasurer, he must ascertain whether it has been drawn in pursuance of an appropriation made by law, and, if so, he is authorized to indorse his check upon the warrant directed to some depository and payable to the person who is to receive the money.
The second statute provides in substance that any person having a pecuniary claim against the state, which the auditor has disallowed in whole or in part, may apply by petition to the circuit court of the county in which the seat of government is, to have the claim audited and adjusted. Provision is made for answer by the auditor, the production of evidence by either party, and a hearing without unnecessary delay. The court is required to ascertain what sum, if any, is due to the petitioner, and to certify its decision to the auditor; and, if the claim, or any part thereof, is allowed, the auditor must report the same to the Legislature at its next session; but no such claim shall be paid until an appropriation shall be made therefor by the Legislature. It is also provided that all suits in which it may be necessary to make the Governor, the Attorney General, the treasurer, or the auditor a party defendant as representing the state shall be brought and prosecuted in the circuit court in which the seat of government is.
In considering whether these statutes provide an adequate remedy at law, we are, at the outset, met with inquiry as to their meaning and with the well-established rule that a remedy is not considered adequate unless the statute which authorizes it is free from doubt and ambiguity, or unless its meaning has been clearly established by the decisions of the state courts. Thus it has been held that, when the statute relied on is a recent one, and has not been construed and applied by the highest court of a state, or when the meaning of the statute is not free from ambiguity or doubt, it cannot be said that the complaining party suing or plaintiff has an adequate or complete remedy at law. On the contrary, the existence of the remedy is debatable and uncertain. Wallace v. Hines, 253 U.S. 66, 68, 40 S. Ct. 435, 64 L. Ed. 782; Atlantic Coast Line *499 R. Co. v. Doughton, 262 U.S. 413, 43 S. Ct. 620, 67 L. Ed. 1051; Union P. R. Co. v. Board of Com'rs of Weld County, 247 U.S. 282, 287, 38 S. Ct. 510, 62 L. Ed. 1110.
The meaning of the West Virginia statutes cited in connection with the kind of suit now before the court has not been made clear by the decisions of the West Virginia courts. It was held in Woodall v. Darst, 71 W. Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L. R. A. (N. S.) 83, Ann. Cas. 1914B, 1278, that a mandamus may be employed against the auditor to enforce payment of a claim for which an appropriation has been made, the constitutionality of which the auditor questions. It was also held in Robinson v. LaFollette, 46 W. Va. 565, 33 S.E. 288, that the proceeding provided by chapter 14, art. 2, §§ 1 to 5, is not a civil case, reviewable by the Supreme Court on writ of error, but is merely a statutory proceeding for the auditing of a claim against the state; and that, even after the claim is audited by the circuit court, it must pass through the Legislature before it can be paid, and even there the appropriation may be contested.
It will have been noticed that section 11 of the Chain Store Act does not give the taxpayer who makes payment under protest the right to collect the money from the treasurer of the state, but merely the right to collect the same from the state tax commissioner, and it cannot be said to be free from doubt that such a right is covered by the general terms of the statutes last mentioned which in terms give a person claiming to receive money from the treasury of the state the right to apply to the auditor for a warrant on the same; and there is no decision of the Supreme Court of West Virginia which throws any light upon the question.
It may be supposed that section 11 of the Chain Store Act, by the use of the term "appropriate remedy," contemplates a common-law action of assumption for money had and received; but, whether the remedy contemplated by the Legislature is to be found in the terms of the statute permitting suit against the state auditor, or under the practice of the common law, in neither case is it free from doubt that provision has been made in any statute for the satisfaction of such a judgment as the taxpayer might obtain. There is no provision in the Chain Store Act itself, or in any other taxing statute to which our attention has been called similar to the state statute under consideration in Henrietta Mills v. Rutherford County, supra, or in Atchison, T. & S. F. R. Co. v. O'Connor, 223 U.S. 280, 32 S. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050.
The West Virginia chain store statute specifically provides that the money collected thereunder shall be paid into the state treasury monthly, and shall be added to and constitute a part of the general fund for the elementary schools. The stipulation of the parties, however, shows that there is no such fund. The principal funds and revenues of the state consist of (1) state fund general revenue; (2) state fund special revenue; (3) general school fund; (4) state road fund. The moneys actually collected by the state tax commissioner from licensees under the Chain Store Act, other than those covered by the interlocutory injunction in this case and in three similar cases, were actually paid by the state tax commissioner into the state treasury, and were there deposited as a part of the state fund general revenue. It is therefore obvious that the proper disposition of the fund is not free from doubt in the minds of the state officials for, although the state possessed a general school fund, which was used to pay the salary of school officials and teachers, including payments sufficient to supplement the elementary teachers' fund, the license moneys from the Chain Store Act were not paid into this fund, but into the general revenues of the state.
If the doubt and uncertainty arising from this situation could be overcome, there would still remain the difficulty as to how license payments paid under protest to the state tax commissioner, and by him turned into the state treasury, might be recovered back if, in a suit by the taxpayer, the tax should be declared invalid or unconstitutional. It is clear from the provisions of section 1, article 3, chapter 12, and sections 1 to 5 of article 2, chapter 14, that a determination in favor of the claimant upon the state treasurer could not be honored unless payment was authorized by law, and unless there should be an unexhausted appropriation out of which it might be paid. Once paid into the treasury, moneys could be taken out only by legislative appropriation.
The defendant claims that such a legislative appropriation is found in section 30-C, chapter 1 of the Acts of the West Virginia Legislature, the First Extraordinary Session of 1933, passed on June 3, 1933, whereby the sum of $5,500,000 was appropriated to supplement the general school fund for the fiscal year beginning July 1, 1933, and *500 a like sum for the fiscal year beginning July 1, 1934. The stipulation shows that the balance in this fund on October 31, 1933, for the first year mentioned, was $440,831.31, and that none of the appropriation for the fiscal year beginning July 1, 1934, has been expended. There is nothing in the act appropriating these sums which indicates that the moneys may be used for any other purpose than that designated in the act, to wit, for the purpose of paying teachers' salaries for four months, and for equalization fund purposes; but the defendant points to two other bills passed by the Legislature at its First Extraordinary Session of 1933 as follows: Section 7 of chapter 1 provides "for refunding moneys erroneously paid into the treasury such sums are hereby appropriated as may be erroneously so paid, payable out of the same fund into which paid"; and section 111 of subsection L of chapter 1 provides for refunding overpayments made into the treasury on account of taxes, license fees, and commissions, to be paid out of the fund into which they were paid, and appropriates such amount as may be necessary for the purpose. There are no decisions of the West Virginia courts in which these statutes are construed, and it is an open question whether license taxes intentionally and understandingly paid to the state tax commissioner under protest are within the description of the statute as "moneys erroneously paid into the treasury," or may be said to constitute an overpayment into the treasury on account of taxes and licenses. The doubt is increased when it is borne in mind that section 10 of the Chain Store Act provides that money collected under it shall constitute a part of the general fund for the elementary schools in the state treasury, notwithstanding the fact that there is no such fund. This defect might be overlooked by the West Virginia courts, and the moneys might be ordered to be paid out of the fund in which they have actually been deposited. But it cannot be said that the matter is entirely free from doubt. There is the additional doubt whether the sum of approximately $400,000, representing the balance in the general school fund on October 31, 1933, would be sufficient to cover, not only the payments made by the plaintiff corporation, but also those made by other persons who have paid the tax under protest and may bring an action to recover it back. Four oil companies, to wit, Standard Oil Company, Gulf Refining Company, Ashland Refining Company, and Sinclair Refining Company, have brought suit against the state tax commissioner to recover back the aggregate sum of $449,423 paid by them under protest.
No greater relief is available to the taxpayer if it be considered that it may have a right of action against the state tax commissioner in his individual capacity under section 11, and the right to satisfy any judgment against him out of his individual assets. It is stipulated that, although the defendant is not personally insolvent, he is not possessed individually of money or property to the value of $240,000, and, so far as may be reasonably anticipated, will not be possessed in his personal capacity of the amount sufficient to enable him to respond in damages to the money judgment or decree which will be entered in favor of the plaintiff, if it shall prevail in this or any other proceeding for the recovery of the money so paid. The official bond of the defendant is in the penalty of only $5,000, as provided by section 1, article 1, chapter 11 of the Code of West Virginia.
We think, therefore, that no adequate legal remedy has been afforded the plaintiff in this case, for it is established beyond controversy in the field of state taxation that the mere ability to obtain a fruitless judgment will not defeat the equitable jurisdiction. Osborn v. Bank of U. S., 9 Wheat. 738, 6 L. Ed. 204; Dodge v. Woolsey, Fed. Cas. No. 18,032; Id., 18 How. 331, 15 L. Ed. 401; Arkansas Bldg. & Loan Ass'n v. Madden, 175 U.S. 269, 274, 20 S. Ct. 119, 44 L. Ed. 159; Matthews v. Rodgers, 284 U.S. 521, 52 S. Ct. 217, 76 L. Ed. 447; Stratton v. St. Louis S. W. Ry. Co., 284 U.S. 530, 52 S. Ct. 222, 76 L. Ed. 465.
This court, therefore, is empowered to entertain the application for an interlocutory and final injunction; and, having taken jurisdiction, may proceed to decide all questions involved in the case, both state and federal, and to afford to the plaintiff, not only the relief by injunction, but also, if it finds that the tax was improperly collected, to decree that the defendant be required to account for and return the money to the plaintiff. Piedmont, etc., Ry. Co. v. Query (D. C.) 56 F.(2d) 172; Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; Atlantic Coast Line Ry. Co. v. Doughton, 262 U.S. 413, 43 S. Ct. 620, 67 L. Ed. 1051.
The plaintiff's objection that the act involves an arbitrary discrimination against the business of the oil companies' chains of *501 gasoline stations, and therefore offends the Fourteenth Amendment, rests upon the practical effect of the application of the tax. The facts adduced to show this situation have been stipulated by the parties, and the more important of them are set out in the following recital: The total number of stores, including gasoline stations in the state, for which licenses were issued under the act in 1933, was 15,210, and the total fees paid amounted to $569,693. Single stores in the number of 10,722 paid $26,723, while multiple stores, in the number of 4,488, paid $542,970. Of the total, 4,453 gasoline stations paid $486,168, or 85.3 per cent. and, of this number, 2,453 chain gasoline stations paid $481,168, or 84.46 per cent. of the total tax, while 2,000 single stations paid $5,000. Five oil companies, including the plaintiff, paid $476,171, or 83.5 per cent., and the plaintiff alone paid $240,173, or 42.16 per cent. of the total tax. These striking results were reached because the oil companies greatly exceed all other businesses in the number of units at which their products are sold, and the graded tax is sharply increased from $5 a store if not more than 5 stores are maintained, to $250 per store if more than 75 are maintained.
In sharp contrast with the large proportion of the tax paid by the oil companies is the small relative volume of business which they do in comparison with other chain store businesses herein referred to as general commodity chains. In 1932, the last year for which complete figures are available, 2,453 gasoline chain stations did an aggregate business of $15,198,638, or 4.6 per cent. of the total business, and would have paid 84.46 per cent. of the total tax had the law then been in effect, while 1,889 general retail stores in chain organizations did an aggregate business of $75,454,257, or 22.9 per cent. of the total business, and would have paid 10.7 per cent. of the total tax. General commodity chain stores do a much larger business per unit, and have a smaller number of units in the state, than the gasoline chains, but they enjoy all the advantages of chain store organizations, since their business is of national scope and is carried on in many stores throughout the United States. The disparity in the application of the tax is shown in the following table in which the situation of the Standard Oil Company is compared with that of six other national general commodity chains. The figures are given for the year 1932 as if the chain store tax had been applicable at that time. For instance, it there appears that the Great Atlantic & Pacific Tea Company, maintaining 198 stores in the state, had a total gross revenue of $12,455,017, and would have paid a total chain store tax of $38,521, or an average of $194.55 per store, while the Standard Oil Company, with 1,046 stations, did a business of $6,428,701, and would have paid a total tax of $251,573, or an average tax per station of $240.51.
Average
No. of Average Total Gross Total
stores or Chain Chain Revenue Gross
stations Store Tax Store Tax per Store Revenue
===============================================================================================================================
Sears Roebuck & Company ....... 4 $ 4.75 $ 19.00 $140,715.00 $ 562,861.00
Montgomery Ward Company ....... 7 6.50 45.50 151,154.00 1,058,083.60
S. S. Kresge Company .......... 12 9.83 118.00 140,428.00 1,685,141.00
F. W. Woolworth Company ....... 21 17.50 367.50 84,698.00 1,778,671.00
Kroger Grocery & Baking Co..... 94 132.64 12,469.00 58,503.00 5,499,343.00
Great Atlantic & Pacific Tea
Company ..................... 198 194.55 38,521.00 62,400.00 12,455,017.00
Standard Oil Company
Company owned stations......... 98 240.51 23,569.98 26,822.00 2,628,615.00
All Gasoline Stations ......... 1046 240.51 251,573.46 6,145.98 6,428,701.00 (including tires, &c.)
Note: The average revenue gross per station is calculated with the bulk plants excluded. If they are included,
the average would be reduced.
It is especially notable that the volume of business of the oil companies does not increase in proportion to the number of stations maintained. Generally speaking, the company owned stations of the Standard Oil Company do a larger business than the leased and vending privilege outlets at which it distributes petroleum products through agents. In 1932 the company owned stations, 98 in number, did a business of $2,628,615, while 948 agency stations did a business of only $3,690,397. The average gross revenue of company stations was $26,822, and of the agency stations $3,892. In 1931 only 157 agency stations out of 815, and in 1932 only 131 out of 948, sold more than 40,000 gallons per annum. A table for the agency stations in 1932 follows:
*502
Table No. 6 Gross Revenue and Net Earnings to Plaintiff from Sale of Petroleum Products at Leased Outlets and Vending Privilege Outlets (Agency
Stations) Grouped and Ranked According to Gallons of Motor Fuel Sold Calendar Year 1932
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annual No. Total Total Total Profit or Loss Average Gross Average Store Average Net Profit or Loss
Group Gallonage Outlets Gross Store Tax Net After Payment Revenue Per Outlet Tax Per Earnings Per Outlet Per Outlet After
No. Classification in Group Revenue For Group Earnings Store Tax By Groups Outlet By Groups Deducting Store Tax
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Profit Loss Profit Loss
1 0- 10,000 319 $ 307,080.18 $ 76,722.69 $ 4,384.00 $ $ 72,338.69 $ 962.63 $240.51 $ 13.74 $ $266.77
2 10- 20,000 247 637,075.07 59,405.97 12,672.63 46,733.34 2,579.25 240.51 51.30 189.21
3 20- 30,000 155 681,360.60 37,279.05 17,828.96 19,450.09 4,395.22 240.51 115.02 125.49
4 30- 40,000 96 586,096.07 23,088.96 15,016.10 8,072.86 6,105.16 240.51 156.42 84.09
5 40- 50,000 56 441,803.19 13,468.56 10,261.98 3,206.58 7,907.19 240.51 183.24 57.27
6 50- 60,000 22 211,534.59 5,291.22 3,007.07 2,284.15 9,615.20 240.51 136.68 103.83
7 60- 70,000 23 267,398.76 5,531.73 5,926.27 394.54 11,626.03 240.51 257.56 17.05
8 70-100,000 16 236,816.12 3,848.16 4,217.99 369.83 14,801.00 240.51 263.62 23.11
9 over 100,000 14 321,232.44 3,367.14 11,770.60 8,403.46 22,902.31 240.51 840.75 600.24
Totals...948 $3,690,397.02 $228,003.48 $85,085.60 $9,167.83 $152,085.71
Net loss..........$142,917.88
For 948 Outlets Per Outlet
Average Gross Revenue Per Outlet, 948 Outlets Chain Store Tax based on computed average
combined, 1932............................. $3,892.82 tax for 1109 units in 1932............ $228,003.48 $240.51
Net Earnings............................ 85,085.60 89.75
Average Net Earnings Per Outlet, 948 Outlets ___________ _______
combined, 1932.............................. $ 89.75 Payment of Chain Store Tax out of Capital $142,917.88 $150.76
The small volume of business done in most of the Standard Oil stations in the state is reflected in the small profits and the heavy burden of the tax when contrasted therewith. In 1931 the average profits of all the gas stations, excluding bulk plants, were $539.24 per station, while the tax, computed according to the rate of the act of 1933, would have been $239.29. In 1932 the profit was $248.37 per station, and the estimated tax $240.51, and in the first six months of 1933 the loss per station was $94.39, to which must be added the tax of $119.72. The average net earnings in 1930 for 105 company owned stations were $3,000 per station; in 1931, for 96 such stations, were $3,641 per station; in 1932, for 98 such stations, were $1,782 per station, and in the first eight months of 1933, for 94 such stations, were $109.72 per station, exclusive of the chain store tax. A much worse showing was made by the agency stations. In 1931 the average net earnings per outlet for 815 outlets were $173.85. In 1932 similar earnings for 948 outlets averaged $89.75, and in the first six months of 1933 there was a net operating loss per outlet for 856 outlets of $62.97. The taxes per store for the respective periods would have been $239.29, $240.51, and $119.72. The total chain store tax on these agency stations would have exceeded the profit in 1931 by $53,330; in 1932 by $142,917; and increased the loss in 1933 from $53,905 to $156,381. The experience of the four other leading oil companies doing business in the state, to wit, Gulf Refining Company, Pure Oil Company, Ashland Refining Company, and Sinclair Refining Company, was less profitable than that of the Standard Oil Company.
It is contended by the defendant Tax Commissioner that these figures, although shown by the books and records of the plaintiff company, and by the stipulation of the parties, do not portray the real profit of the company from the operation of its stations. It is suggested that larger profits might have been realized and credited to some other department of the business, or to some affiliation of the company. The Attorney General of the state requested that he be furnished with the names of all the Standard Oil group of companies, including parent companies, subsidiary companies, and affiliates; the character of business engaged in by them; the character of the affiliation; and the separate *503 profits and losses of all of said companies for the years 1930, 1931, 1932, and the first eight months of 1933. In reply to these questions it was shown that the Standard Oil Company (incorporated in New Jersey), the parent corporation, is solely a holding company and owns all of the stock or an interest in a number of producing, manufacturing, transporting, and marketing companies engaged in the petroleum and natural gas business and collateral enterprises in the United States, Canada, England, France, Germany, Italy, Poland, Australia, Brazil, Argentina, Mexico, Norway, Sweden, Dutch East Indies, and other countries; and it was stipulated that the accountants of the company, if asked to furnish the information contained in the request of the Attorney General, would decline to make further answer than that contained in the calculations referred to, or to give any information concerning the profits and losses of the subsidiaries and affiliations, for the reason that such information would be immaterial to the matters involved in the case as it would concern matters outside of the marketing transactions of the plaintiff, the Standard Oil Company of New Jersey, a Delaware corporation. It is obvious that the request of the Attorney General was so broad that the plaintiff's accountants were justified in their refusal; and, since, as shown in the findings of fact, the billing price at which the petroleum products were delivered by the company's refinery to the company's stations approximated the current market price, the profit or loss obtained by comparing these figures with the established selling price to the customer was the actual profit or loss of the marketing transactions on which the store tax was imposed.
While these results may have been affected by bad economic conditions generally prevailing, they were not wholly or even largely affected thereby. The official reports of the state show that during the year ending June 30, 1931, and June 30, 1932, the gallonage taxes collected, based upon the volume of gasoline sold, exceeded similar figures in the prior years from 1927 to 1930, and the figures for the year ending June 30, 1933, exceeded those in the years ending in 1927, 1928, and 1929. It is possible that overproduction and competition of oil companies during the period may have caused them generally to conduct their business at a loss, but the record is silent on this point. In any event, general bad business conditions did not materially affect the volume of sales during 1931 and 1932. The figures at least warrant the final conclusion that the addition of large numbers of new stations, in excess say of 150 stations, has been accompanied by diminishing, rather than increasing, returns, that the volume of business of even the very best stations has been on the average less than one-half of the average business done by general commodity stores in their least active units, and that the volume of business on the average of all gas stations over 150 per chain has been so small that little or no profit would have remained after payment of such a tax as that imposed by the statute. The net profits of general commodity chain organizations subjected to the tax are not available, but the ratio of the tax borne by them to their gross revenue is in no way comparable with the similar ratio in the case of oil company stations, and it is a fair inference that a similar disparity exists as to the ratio of the tax to net earnings of each class of chain organizations.
With these facts in mind, we come to consider the contention that the West Virginia statute violates the equal protection clause of the Fourteenth Amendment. The principles which underlie classification for the purpose of taxation are familiar. They are summed up in Ohio Oil Company v. Conway, 281 U.S. 146, 159, 50 S. Ct. 310, 313, 74 L. Ed. 775, as follows:
"The States have a wide discretion in the imposition of taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the national government or violating the guarantees of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to insure revenue and foster their local interests. The States, in the exercise of their taxing power, as with respect to the exertion of other powers, are subject to the requirements of the due process and the equal protection clauses of the Fourteenth Amendment, but that Amendment imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to schemes of taxation. The State may tax real and personal property in a different manner. It may grant exemptions. The State is not limited to ad valorem taxation. It may impose different specific taxes upon different trades and professions and may vary the rates of excise upon various products. In levying such taxes, the State is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use, or value. To hold otherwise *504 would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to assure. * * *
"With all this freedom of action, there is a point beyond which the State cannot go without violating the equal protection clause. The State may classify broadly the subjects of taxation, but in doing so it must proceed upon a rational basis. The State is not at liberty to resort to a classification that is palpably arbitrary. The rule is generally stated to be that the classification `must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'"
We are led to inquire from this statement of the rule what was the object of the West Virginia statute under consideration. The surrounding circumstances lead irresistibly to the conclusion that the purpose was to secure revenue for the support of the state government. The local situation is shown in the opinion of the Supreme Court of Appeals of West Virginia in Finlayson v. City of Shinnston, 168 S.E. 479, 480, announced on March 7, 1933. The people of the state at the general election of 1932 adopted an amendment to the West Virginia Constitution, art. 10, § 1 (see Acts W. Va. 1932, Ex. Sess., c. 9), which provides "that the aggregate of taxes assessed in any one year" upon the several classes of property therein enumerated shall not be in excess of certain specified amounts applicable to said classes respectively; except that the Legislature may provide, by general law, for limited increases of maximum rates upon the vote of the people. Subsequently, it was found that direct taxes upon property, when limited in amount as prescribed by the constitutional amendment, would not produce enough revenue to pay the interest on the bonded indebtedness of the state and create sinking funds for its retirement, and also to pay the running expenses of the government. In this situation the people of the city of Shinnston voted in favor of an additional bond issue for the improvement of their city water system, which would have necessitated an additional levy upon property over and above that permitted by the constitutional amendment; and the contention was made that the amendment pertains only to taxes levied for general or current expenses, and does not relate to levies imposed to meet the charges of a public debt. The Supreme Court of Appeals rejected this contention, and ruled that all levies for governmental subdivisions of the state should come within the maxima authorized by the amendment, except as might be otherwise required by paramount law. The provisions of the Federal Constitution, forbidding the passage of any law impairing the obligation of contracts, were not relevant, because the necessity for such legislation was not apparent.
Speaking of the financial condition of the state and local governments, Maxwell, President of the court, said:
"This court must take judicial notice of matters known of all men. `Courts should take notice of whatever is or ought to be generally known, within the limits of their jurisdiction.' 15 Ruling Case Law, p. 1057. Therefore, we note that the burden of taxation in this state has reached the crushing point. It was upon that background that the Legislature in the summer of 1932 submitted to the people of the state a proposed constitutional amendment whereof one of the basic purposes was to place a limitation on direct tax levies, and it was on the same background that the people of the state at the November election adopted the amendment.
"Taxes levied by the various tax levying bodies of the state have very generally increased by leaps and bounds within the last decade. And not only that, but the people themselves of many taxation units have authorized bond issues, the interest and sinking funds of which now add substantially to the burdens of taxation. The serious economic depression of the last three years has greatly accentuated the tax situation. The people have come to realize that a public spending program of exaggerated proportions, such as came into being in the World War period and in the succeeding years of inflation bears heavily upon the people in a period of adversity.
"With these undesirable conditions existing, it must be considered that when the people of the state adopted a constitutional amendment providing that `the aggregate of taxes assessed in any one year * * * shall not exceed' the maximum levies prescribed by the amendment for different classes of property therein enumerated, the people meant that such prescribed maximum levies should be in fact the outside limit, for all purposes, save only as such course might *505 imperil the integrity of solemn obligations and thereby violate paramount law. We say this because the plain language `aggregate of taxes' means all the taxes. Simply that and nothing less. Such plain and unequivocal language leaves no room for interpretation. * * *
"The court takes judicial notice that the Legislature is now in session and that questions pertaining to the providing of additional sources of revenue through indirect taxation are receiving legislative attention. The court will not anticipate legislative failure in that particular."
In a concurring opinion, Hatcher, Judge, said: "We must assume that the Legislature gave due consideration to the reduced amount of revenues which would result from the restricted levies, and had in mind plans to supplement direct taxes with indirect taxation wherever necessary. The Legislature must have foreseen that, in order for some governmental agencies to function after the adoption of the amendment, revenue in addition to the restricted levies would be imperative. The submission of the amendment to the people was in effect an assurance of the Legislature that it would devise ways to replenish the shrunken treasuries which would follow the adoption. That assurance has been accepted, and we must presume that it will be fulfilled."
It was during the pendency of this case of state-wide importance that the Legislature considered and passed the Chain Store Act. It became a law without the approval of the Governor on March 8, 1933, the day after the decision just cited; and it was obviously intended, in view of the new constitutional restriction upon direct taxes upon property, to provide another source of revenue by taxing the advantages of chain store organizations in accordance with the method which had met the approval of the Supreme Court of the United States in the Chain Store Tax Cases.
The defendant, in its answer in the pending case, admits that the act is primarily a tax measure, but denies that it has nothing to do with the exercise of the police power of the state, averring that it is the policy of the state, in the interest of the general welfare, to encourage individual ownership and operation of business undertakings. However, we are left to the terms of the act itself and to the circumstances under which it was passed as the only sources of information on the subject. In a similar situation it was held by the Supreme Court of the United States in Liggett Company v. Lee, 288 U.S. 517, 535, 53 S. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699, that, in the absence of legislative declaration or record proof, the court, in considering the Florida Chain Store Act, could not attribute to the Legislature the purpose to suppress by taxation large corporate chains as a form of organization deemed inimical to the public interest. It had been suggested (288 U.S. 541, 585, 53 S. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699), that the chief aim of the act was to protect the individual, independently owned, retail stores from the competition of chain stores by subjecting the latter to financial handicaps which might conceivably compel their withdrawal from the state; but the court, conceding, for the purpose of argument, that the Legislature might distinguish between corporate owners and individuals, and again between small owners and large owners, said that it was not permitted to guess at any such undisclosed purpose in the minds of the lawmaking body.
The same conclusion seems to be justified in this case, especially in view of the emergency with which the Legislature was confronted. In any event, there is no reason to suppose that a special animosity exists against the particular kind of chain business with which we have here to deal. The difficulty which the small store owner meets in competition with great national chains, and the hostility thereby engendered, doubtless gave rise to chain store taxation; but there is no evidence that the feeling is intensified, if indeed it exists at all, with regard to the numerous gasoline and oil stations which oil companies of national scope have established and maintained in every section of the country. Their establishment is a matter of comparatively recent date. It did not interfere with small businesses previously conducted by independent dealers; and the convenience of the large number of persons who travel by automobile is so greatly served by the wide distribution of service stations in various parts of the country that we cannot conclude that the public desires legislation which would result in their suppression.
The graduated classification under the West Virginia statute rests only on the number of stores in the chain, and we have to consider whether this classification is reasonable when it appears that the practical effect thereof is to exact heavy taxes from a particular industry out of all proportion to the value of the privilege enjoyed. Taxing *506 statutes, which measure the taxes imposed with reference to the number or amount of certain factual differences, are of course well known, and classifications based thereon have been sustained. Thus in Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 48 S. Ct. 423, 72 L. Ed. 770, where the court considered a state tax based upon the recording of mortgages, it was said (page 38 of 277 U. S., 48 S. Ct. 423) that the state might take into consideration, as an element in fixing the amount of the tax, the time within which the indebtedness was to be paid, for the privilege of recording a short-time lien and that of recording a long-time lien have different taxable values; in Dow v. Beidelman, 125 U.S. 680, 690-1, 8 S. Ct. 1028, 31 L. Ed. 841, a state statute was sustained which classified railroad corporations by the length of their lines, and fixed a different limit of the rate of passenger fares in each class, so that the rate was 3 cents per mile on railroads more than 75 miles long, 5 cents for lines between 15 and 75 miles, and 8 cents for lines 15 miles or less; in Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 18 S. Ct. 594, 42 L. Ed. 1037, an inheritance tax law of Illinois was sustained which imposed a graduated tax on legacies, so that, for instance, one who received a legacy of $10,000 paid 3 per cent., and one receiving a legacy in excess of $10,000 paid 4 per cent.; in Clark v. Titusville, 184 U.S. 329, 22 S. Ct. 382, 46 L. Ed. 569, a license tax was sustained which provided that persons in different occupations should pay different amounts, and which classified persons in the same occupation by the maximum and minimum amount of sales; and in Metropolis Theater Co. v. Chicago, 228 U.S. 61, 33 S. Ct. 441, 57 L. Ed. 730, there was sustained a classification of theaters for license fee, graded according to prices of admission, since it was held that there was a natural relation between the price of admission and the revenue, and some advantage inhering therein. In these cases, however, there was some reasonable relation between the distinction based on numbers or amounts and the object of the legislation.
The Chain Store Tax Cases in the Supreme Court did not involve a decision of the particular question with which we are now concerned, for the classification sustained therein did not rest merely upon numbers of stores. It is true that in State Board of Tax Commissioners v. Jackson, 283 U.S. 527, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464, the proof showed that the mere addition of a new unit or store to an existing chain does not increase the sales more than arithmetically, and the volume of business of other stores in the chain is not thereby increased, and it was demonstrated that the tax sustained bore more heavily upon chain stores than upon single department stores doing a large business. Pages 534, 535 of 283 U. S., 51 S. Ct. 540. In answering these considerations, the court said that, in determining how it shall classify occupations for taxation, the Legislature is not confined merely to the value of the business taxed, but may have regard to other elements. The court then outlined the advantages which chain stores alone enjoy, such as concentration upon one kind of stores in many neighborhoods, greater specialization in management and methods, as in massed buying for units selling similar goods, and intensive selling in a single line of business; and said (pages 541, 542 of 283 U. S., 51 S. Ct. 540) that the trial court had fallen into the error of assuming that the distinction between the business of a chain store corporation and that of other sorts of stores was solely one of ownership. Thus it was demonstrated that the classification did not rest merely upon the number of stores under one ownership, as was contended by the taxpayer and found as a fact in the dissenting opinion (page 543 of 283 U. S., 51 S. Ct. 540).
In the case of Liggett Co. v. Lee, 288 U.S. 517, 532, 53 S. Ct. 481, 484, 77 L. Ed. 929, 85 A. L. R. 699, the court, speaking of its earlier decision in State Board of Tax Commissioners v. Jackson, 283 U.S. 532, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464, said:
"The decision in the Jackson Case was based, not upon any single feature of chain store management, but upon the ultimate fact of common knowledge, illustrated and emphasized by the evidence, that the conduct of a chain of stores constitutes a form and method of merchandising quite apart from that adapted to the practice of the ordinary individually operated small store or department store. * * *
"As we have held, gradation of the tax according to the number of units operated cannot be said to be so unreasonable as to transcend the constitutional powers of the legislature. The addition of a store to an existing chain is a privilege, and an increase of the tax on all the stores for the privilege of expanding the chain cannot be condemned as arbitrary."
However, it was held that a statute, *507 which increased the license fee for all stores in a chain if any of them were located in different counties, was lacking in any reasonable basis of classification, since the adoption of a county line could have no reference either to density of population, congregation of the buying public, or any other factor bearing upon the choice of a business site. The court also said: "It is evident, however, that the mere spatial relation between the store and a county line cannot, in and of itself, affect the value of the privilege enjoyed. The appellees fail to show how the fact that the new place of business lies in another county increases the advantage over that to accrue from a location within the same county. The classification is solely of different chains, and the difference between them consists neither in number, size, surrounding population, nor in any factor having a conceivable relation to the privilege enjoyed."
We take this language to reiterate the holding that chain stores are taxable as such because they possess certain characteristics not enjoyed by other forms of merchandising, and that, in measuring the amount of the tax, it is not per se arbitrary or unreasonable to increase the tax on all the stores in a chain when a new store is added. Nevertheless it is also shown, in accordance with the general principle which forbids arbitrary or unreasonable classification for purposes of taxation, that a classification of different chains may be subject to condemnation if the difference between them has no relation to the privilege enjoyed.
Does it follow that a classification of chain store organizations is reasonable which has regard merely to the number of units in a chain, no matter how disproportionate the burden may be in its practical effect when the tax is applied to different members of the group? We think that this cannot be so, for, while it is settled that an occupational tax need not be measured merely by the value of the privilege enjoyed, it has never been said that, in determining whether a particular tax is unreasonable or arbitrary, all considerations of value may be excluded. On the contrary, it was unanimously held in Air-Way Electric Appliance Corporation v. Day, 266 U.S. 71, 83, 45 S. Ct. 12, 69 L. Ed. 169, that a state tax could not be sustained which fixed the annual fee payable by a foreign corporation for the privilege of exercising its franchises in the state with reference to the number of its shares of authorized common stock; the court saying that, while such a charge need not be measured by the value of the privilege for which it was imposed, some relation to such value is a reasonable requirement. The Florida Chain Tax Law, considered by the court in Liggett Co. v. Lee, 288 U.S. 517, 53 S. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699, was condemned because the classification did not take into consideration any factor having a conceivable relation to the privilege enjoyed. See, also, Metropolis Theater Co. v. Chicago, 228 U.S. 61, 64, 33 S. Ct. 441, 57 L. Ed. 730; Ohio Oil Co. v. Conway, 281 U.S. 146, 159, 50 S. Ct. 310, 74 L. Ed. 775; Louisville Gas & Electric Co. v. Coleman, 277 U.S. 38, 48 S. Ct. 423, 72 L. Ed. 770, in all of which the materiality of value as an element entering into the reasonableness of a classification is noticed.
In applying these rules, we must take into consideration the factual situation, for the constitutionality of a taxing statute must be tested by its practical operation and the effect of its enforcement upon the taxpayer. Weaver v. Palmer Bros., 270 U.S. 402, 46 S. Ct. 320, 70 L. Ed. 654; Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 401, 48 S. Ct. 553, 72 L. Ed. 927; Panhandle Oil Co. v. Mississippi, 277 U.S. 218, 48 S. Ct. 451, 72 L. Ed. 857, 56 A. L. R. 583; Air-Way Electric Appliance Corporation v. Day, 266 U.S. 71, 82, 45 S. Ct. 12, 69 L. Ed. 169. The effect of the West Virginia statute, as we have seen, is to place by far the greater part of the burden of the tax upon corporations maintaining chains of gasoline stations; general commodity chains do a very much larger volume of business, but pay a very much smaller tax than the gasoline chains; and the average tax, per unit, upon gasoline stations, is so large that it approximates the average net earnings thereof, whereas the volume of business of the general commodity chains is so much greater that the smaller tax applicable to them is not a matter of great significance. Two factors of much importance bearing upon the reasonableness of the tax are (1) that the general commodity chains enjoy all of the advantages of chain store organizations equally with chains of gasoline stations; and (2) that approximately 10 per cent. of the plaintiff's gasoline stations, which do the largest and most profitable business in populous centers, do very much less business than the stores in general commodity chains, while approximately 90 per cent. of the stations scattered throughout the state do so small a business that little or no profit is left after the tax is paid. In short, *508 since the amount of the tax is determined only by the number of stores, the addition of new stations, taxed at the highest rate fixed by the statute, tends not to increase, but to decrease, the profits of the whole business; and the consequence is that, as between members of the group composed of chain store organizations, the differences by which the gradations of the tax are fixed rest solely upon ownership.
In State Board of Tax Commissioners v. Jackson, supra, the comparison set up in the opinion of the court was between single stores and chains of stores, and, the differences of business methods being shown, it was held that the discrimination in the statute did not solely rest upon ownership. Here, the comparison is between members of chain organizations pursuing like methods of business common to the class. In Liggett Company v. Lee, supra, the highest rate of tax was $50 per store, and the effect of the operation thereof upon a large number of stores in a chain doing a relatively small amount of business per unit was not considered or compared with the effect of such a tax upon a chain doing a large volume of business in a small number of stores. There was no evidence on the point, and it was assumed that the mere addition of a store to a chain was a privilege of taxable value. In the present case, the highest rate of tax is $250 per store, and the total amount of the tax in every instance is fixed solely by the number of units without any reference to the amount of business done or profit gained. There results, as the evidence shows, the imposition upon one kind of chain organization of a heavy burden of taxation which has no reasonable relation to the advantages conferred; for other businesses, enjoying all of the benefits of chain organization, and receiving a much greater revenue, pay a much smaller tax. So it must be said, when the practical effect of the statute is considered, that the subdivision of chain organizations into groups does not bear a fair and substantial relation to the object of the Legislature, that all members of the class of chain organizations, similarly situated, are not taxed alike, and that the equal protection of the law guaranteed by the Fourteenth Amendment is denied.
It has also been urged upon us that the act is unconstitutional for the additional reason that it violates the due process clause of the Fourteenth Amendment. The facts and figures, which we have reviewed, tend very strongly to indicate that in effect the tax, as applied, absorbs substantially the entire profits of the efficiently conducted business of the plaintiff, although in terms the tax is a license measure for the privilege of doing the business; and it is pointed out that, unlike the gallonage tax, the chain store tax is of such a nature that it cannot be directly passed on to the consumer. So it is contended that the tax is in its essence confiscatory, and is therefore in violation of the due process clause of the Fourteenth Amendment. We feel that there is force in this argument, but, in view of the grounds herein elsewhere expressed with regard to the invalidity of the legislation when applied to the plaintiff's situation, we find it unnecessary to rest the decision upon this point.
The contentions that the act violates the uniformity provision of the Constitution of West Virginia, and that, when properly construed, the act does not apply to the plaintiff's places of business, are considered in the following opinion in which Judge CHESNUT speaks for the court:
CHESNUT, District Judge.
At the threshold of the case lies a point of construction. Does the definition of a store in the act (Acts W. Va. 1933, c. 36, § 8) cover the gasoline "filling" or "service" stations conducted by the plaintiff and described in the stipulation? It is unnecessary to repeat the description in any detail as it is a familiar city or roadside spectacle well known to all at this time. Under a substantially similar statute it has very recently been decided in Indiana (Midwestern Petroleum Corp. v. State Board, 187 N.E. 882 (Ind. Supreme Ct. Dec. 15, 1933) in the affirmative; while in a very fully considered opinion (adhered to on re-hearing) it has been decided in the negative in Wisconsin (Wadhams Oil Co. v. Wisconsin, 210 Wis. 448, 245 N.W. 646, 649, 246 N.W. 687). In the former case the decision is based almost entirely on the ground that the word "store" in its dictionary sense is literally broad enough to cover the typical gasoline or service station because it comprehends a place where gasoline and similar automobile necessities, articles of merchandise, are sold at retail. In the latter case there was applied the well known principle of statutory construction that "as a general rule the words of a statute are to be taken in their ordinary and popular sense, unless it appears from the context or otherwise that they were used in a different sense." 2 Lewis' Sutherland, Statutory Construction (2d Ed.) § 390; *509 Old Colony R. R. v. Commissioner, 284 U.S. 552, 560, 52 S. Ct. 211, 76 L. Ed. 484. It was correctly said by the Wisconsin court that "in common language a filling station is not referred to as a store, or a mercantile establishment where goods, wares, or merchandise are sold or offered for sale at retail." A comparison of the reasoning in the two opinions leads us to the conclusion that the sounder rule as applied to this case is that adopted by the Wisconsin court. The dictionary definition of "store" is clearly too broad to be here controlling. It was well said by the Wisconsin court (210 Wis. 448, 245 N.W. 646, 246 N.W. 687, 688):
"There are many places where goods, wares, and merchandise of some kind are kept for sale which would not be understood, according to the common and approved usage of the language, to be stores or mercantile establishments. Among these might be enumerated tailor shops, shoe-shining parlors, wood yards, lumber yards, coal yards, brick yards, stone quarries, news stands, fruit stands, flower stands, cheese factories, restaurants, hotels, and no doubt others. * * * The same argument which supports the conclusion reached in the brief that a gasoline filling station is a store would support the conclusion that a brick yard is a store. It is a place where goods, wares, and merchandise are kept for sale at retail. No one could reasonably argue that the Legislature used the term `store or mercantile establishment' in any such wide, comprehensive and unrestricted sense. No one has yet pointed out that according to the common and approved usage of the language the term `store' or `mercantile establishment' has ever been applied to a gasoline filling station."
There are other, and, in our view, even more persuasive considerations which lead to the same conclusion. We are here construing a statute which is familiarly known as a "chain store act," a type of legislation which now exists in some nineteen states and in recent years has been considered in numerous judicial decisions. The essential principle of these acts is to impose taxation in the form of license fees for the privilege of conducting stores, on a graduated scale, dependent upon the number of units or stores operated or controlled under one management. The type of business enterprise affected by such statutes is well identified in the public mind, but it is reasonably clear that the characteristics which serve to classify "chain stores" as such, as distinct from ordinary stores, do not apply to various other business enterprises involving control of multiple units. Thus a chain of hotels in one or more states has a similar feature of unified ownership or management but has never been thought to be within the provision of these chain store acts although literally also they are places at which goods, wares and merchandise are sold. Similarly it may be said that filling stations meet the needs of the touring automobile in the same general way that hotels and restaurants provide necessities for the traveller. The roadside filling or service station is the modern substitute for the livery stable in connection with an inn or tavern in days of travel by stagecoach. The dominant characteristic of the business is the "filling" of automobiles with gasoline, oil and water, and the rendering of "service" to the motorist hence the name which aptly describes the business. Such transactions are in public thought quite distinct from the purchase of goods at an ordinary store.
Probably the greatest objection to chain stores is their tendency to eliminate the individual storekeeper, an occupation of long standing; but this cannot be said to be true of the chain of filling stations which is itself a feature of a new industry, filling a new public need, and being itself as much a pioneer in the new development of the automobile and petroleum industry as is the single independent station.
The filling or service station is thoroughly identified in the popular mind as a thing which is sui generis and the gasoline industry, including particularly the sale of gasoline at retail, has been the subject of separate legislation, it is safe to say, in every state of the Union. Legislation affecting chain stores and legislation affecting service stations are separate and distinct subject-matters each of which respectively has had its own course and, so far as we are advised, they have followed parallel lines which do not intersect in common thought and understanding. There has been no body of public thought or literature coming to our attention which has identified the chain of filling stations with the characteristic features commonly associated with the popular conception of chain stores. And the somewhat elaborate stipulation of facts in the case very clearly leads to the conclusion that the combined characteristics which feature the typical chain store system and which have served as a basis for special classification for purposes *510 of taxation do not inhere in multiple ownership or control of filling stations as compared with individual or independent ownership and operation of a single filling station. Therefore in searching for the meaning of the legislative definition of the word "store" as used in this "Chain Store Act," it is not reasonable, in our opinion, to determine that the typical filling or service station is a store as the term was defined in this "Chain Store Act," in the absence of language which plainly indicates from its context that such stations were intended to be included.
Taxing statutes, especially when they include highly penal provisions (as does this one) are to be construed in favor of and not against the taxpayer. Gould v. Gould, 245 U.S. 151, 38 S. Ct. 53, 62 L. Ed. 211; Old Colony R. R. v. Commissioner, 284 U.S. 552, 561, 52 S. Ct. 211, 76 L. Ed. 484; Alyea-Nichols Co. v. United States (D. C.) 12 F. (2d) 998.
The state of West Virginia, in common with other states of the Union, has legislated particularly and expressly with regard to the licensing and taxation of filling stations as well as the gasoline sold therefrom. Article 14, c. 11, of the Code of West Virginia provides in substance that distributors of gasoline shall pay an annual license tax of $5.00 for "each distributing station or place of business" from which gasoline is sold for re-sale or distribution, and an annual license tax of $1.00 "for each filling station or place of business" from which gasoline is sold at retail. Code, 11-14-2. It is to be noted that here where the Legislature was plainly dealing with the particular subject matter of filling stations it appropriately used precise words which can leave no doubt as to the meaning, and in view of this precise particularity it is not reasonable to construe the general language of the "Chain Store Act," relating to a subject matter of different popular conception, to be inclusive of the particular subject matter so precisely described in other legislation. In accordance with the general presumption against double taxation, it has been held as a matter of statutory construction, in a number of cases, that where the particular business or occupation has been specifically dealt with in legislation by way of license fees or taxation, more general statutes which literally might be inclusive are not applicable. Gulf Refining Co. v. Chattanooga, 136 Tenn. 505, 190 S.W. 463; Piedmont Oil Co. v. Kennedy, 165 Tenn. 375, 54 S.W.(2d) 958; City of Newport v. Fitzer, 131 Ky. 544, 115 S.W. 742, 21 L. R. A. (N. S.) 279; Atlantic City v. Hemsley, 76 N. J. Law, 354, 70 A. 322; Bell v. Watson, 3 Lea (Tenn.) 328; Walker v. New Orleans, 31 La. Ann. 828.
In West Virginia the gallonage tax on gasoline is 4 cents. While in practical effect this tax is passed on to the consumer it nevertheless is a tax primarily on the vendor and furnishes a very material part of the whole of the state revenues, as is true in many other states. A similar situation existed in Wisconsin and was well expressed in Wadhams Oil Co. v. Wisconsin, 210 Wis. 448, 460, 245 N.W. 646, 246 N.W. 687, 688, as follows:
"Considering this (Chain Store Statute) generally in connection with other statutes relating to taxes, the Legislature may well have thought that, having already imposed a sales tax of 5 cents a gallon upon the use of gasoline by the operators of motor vehicles, approximately 33 1/3 % ad valorem, the business was already bearing its fair share of the tax burden."
The essential difference between filling stations and stores generally is not only well marked in popular understanding but has been judicially expressed in recent cases by the courts. It is said that in at least ten of these Chain Store Acts filling stations have been expressly excluded, and in some cases the contention has been submitted that the exclusion of filling stations from the incidence of general chain store legislation vitiates the act in its constitutional requirement of equality of operation. But this contention has been rejected. In Southern Grocery Stores v. South Carolina Tax Commission (D. C.) 55 F.(2d) 931, 933, Circuit Judge Parker said in dealing with the South Carolina chain store tax:
"There can be no question, we think, but that the exemption of gasoline filling stations from the tax rests upon a reasonable classification. Such stations as a general rule sell only gasoline and other articles of merchandise upon which the state collects a heavy excise tax, and it was doubtless for this reason that they were exempted from the tax in question. Furthermore, such filling stations are quite distinct from ordinary stores or mercantile establishments. Of course, if the operator of a filling station should operate a store or mercantile establishment in connection therewith, such stores would unquestionably be subject to the tax prescribed by the statute."
*511 And dealing with a similar situation under the Florida act the Supreme Court in Liggett Co. v. Lee, 288 U.S. 517, 538, 53 S. Ct. 481, 486, 77 L. Ed. 929, 85 A. L. R. 699, said:
"But in view of the imposition of taxes on the operation of filling stations by other acts, pursuant to the Legislature's power of classification, we cannot declare their exemption from the tax laid by the Chain Store Act offensive to the guaranties of the Fourteenth Amendment."
The stipulation of facts discloses that the total possible annual revenue to the state from all chain stores subject to the act, if filling stations are included, is $569,693.06, and of this aggregate 85.3% will be payable by the operators of filling stations. In these circumstances it seems quite improbable that the Legislature could have intended to make the general word "stores" applicable to the very particular and distinct kind of stores, if they be stores at all, known as filling stations or service stations, without more particularity of description.
Another persuasive consideration for the construction which excludes a filling station from the scope of the act is that a grave question of the constitutionality of the act (both federal and state) is thereby avoided. The application of the act to the plaintiff becomes exceedingly onerous. There is force in the plaintiff's contention that it practically confiscates the value of the plaintiff's property by absorbing under the form of a license tax for privilege to do the business, the whole net profits of the business, and this not by virtue of faulty or inefficient management but from the very nature of the business itself. Filling stations to be of service to the public should be accessible to the motorist. This requires a large number of individual units in different locations throughout the state. If left to purely individual management there is likely to be a lack of co-ordination in location in the interests of the travelling public. Similarity of service both as to the kind of automobile supplies and accessories and trained attendants resulting from unified management is desirable for the public convenience. The economic result from the standpoint of the filling station, therefore, means a large number of small stations conveniently located. The possible volume of business for most of these stations is necessarily limited in amount. It is therefore natural to find, as is shown by the stipulation of facts, that the average net profit per station does not exceed a few hundred dollars a year and yet this tax as applied to the Standard Oil Company, the plaintiff in this case, requires the payment of a license tax of about $240 per station, thus exceeding the annual net profits of the whole business. The result will be obviouseither the abandonment of the stations, thus resulting in a detriment to the public and incidentally a cessation of the revenue, or some entire re-organization of the business which may be less convenient to the public.
The objections to the validity of the act, under the Fourteenth Amendment to the Federal Constitution, if applied to filling stations, are fully stated in Judge SOPER'S opinion for the court. In addition thereto and separately therefrom the plaintiff's counsel also contends that the act, if applied to filling stations, violates the Constitution of the state of West Virginia as amended November 8, 1932, the relevant portion of which reads as follows:
"Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the state, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. * * * The legislature shall have authority to tax privileges, franchises, and incomes of persons and corporations and to classify and graduate the tax on all incomes according to the amount thereof," etc.
It is said that the necessary construction of the above provision is to limit the power of the Legislature "to classify and graduate the tax" to incomes and to exclude the power with reference to privileges and franchises on the familiar principle of statutory construction expressio unius est exclusio alterius. (Note 1.)
*512 Prior to November 8, 1932, the West Virginia Constitution in section 1 of article 10, empowered the Legislature "to tax, by uniform and equal laws, all privileges and franchises of persons and corporations." It is clear from the West Virginia decisions that under the latter constitutional provision occupations could be classified for purposes of taxation. In Sperry & Hutchinson Co. v. Melton, 69 W. Va. 124, 125, 127, 71 S.E. 19, 20, 34 L. R. A. (N. S.) 433, a license tax of $500 for engaging in the business of trading stamps was upheld, the court saying: "Of course there must be reasonable classification, and no unjust discrimination. The tax must be equal and uniform in relation to all persons of the same class." See, also, Sperry & Hutchinson Co. v. Blue (C. C. A. 4) 202 F. 82. And in Hope Natural Gas Co. v. Hall, 102 W. Va. 272, 278, 135 S.E. 582, a tax of a fixed percentage of gross receipts was upheld. And in Eureka Pipe Line Co. v. Hallanan, 87 W. Va. 396, 400, 411, 105 S.E. 506, a tax of two cents per barrel for crude oil transported by pipe line in the state with an exemption if the transportation by the entire system of the particular pipe line company was less in distance than ten miles, was upheld as sufficiently equal and uniform. It seems clear from these cases that the Legislature of West Virginia was not prevented under the earlier constitutional provision from classifying privileges and occupations, nor was it prevented from imposing a graduated tax in simple proportion to value or volume of business. It is contended for the plaintiff that the effect of the constitutional amendment is to now prohibit even simply graduated taxes on privileges and occupations, and an extended argument is submitted in support thereof; but if this is not so, then great reliance is placed upon the distinction between a simply graduated tax which varies directly in proportion to the amount of gross receipts of a business, and a progressively graduated tax which is stepped up in rate as the volume of business or number of units subject to the tax increases. And it is earnestly contended by plaintiff's counsel that the latter form of tax violates the state constitutional requirement as to uniformity, even though it does not run counter to the federal constitutional provision as to equality (State Board of Tax Com'rs v. Jackson, 283 U.S. 527, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464) (note 2) and reference is made to many state court decisions which have adjudicated the invalidity of progressively graduated income and inheritance taxes under particular state constitutional requirements as to uniformity. (Note 3.) *513 However, the analogy between income and occupation taxes is not necessarily absolute. In general it may be said that the tendency of the judicial decisions, in dealing with license taxes is to make no clear cut distinction between the uniformity and equality provisions of the state constitutions, and therefore a tax valid in respect to equality is not invalid as lacking in uniformity, and conversely, an unequal tax, because based on an unreasonable classification is also lacking in uniformity. Thus, while there may be no essential difference in legal principle between simple and progressively graduated taxes with respect to uniformity or equality, yet if the progressive rates of the tax bear no reasonable relation to the subject matter, or become so oppressive in practical application as to be confiscatory, the tax will also be invalid as lacking in uniformity. See Eureka Pipe Line Co. v. Hallanan, 87 W. Va. 396, 411, 413, 105 S.E. 506. In the last analysis, therefore, the question presented under the state Constitution as to uniformity is not substantially different from that under the Fourteenth Amendment to the Federal Constitution, as to equality and due process; unless as the plaintiff contends the amended Constitution of West Virginia prohibits any graduation of all taxes on privileges and occupation. And on this particular question we deem it unnecessary to express a definite opinion in the absence of any decision by the West Virginia court on its amended constitutional provision, especially as our disposition of the case on other grounds does not imperatively demand such a decision. Southern Grocery Stores v. South Carolina Tax Commission (D. C. S. C.) 55 F.(2d) 931, 933.
In opposition to the construction of the act, that it does not apply to filling stations, the defendant stresses the apparent intention of the Legislature evidenced by the defeat in one of the two Houses of the West Virginia Legislature, of an amendment expressly excluding filling stations from the Act. The implication from this action is by no means of clear import. State v. Lancashire Fire Ins. Co., 66 Ark. 466, 51 S.W. 633, 45 L. R. A. 348; Dist. of Columbia v. Washington Market Co., 3 MacArthur (10 Dall. C.) 559 (affirmed 108 U.S. 243, 2 S. Ct. 543, 27 L. Ed. 714); Murdock v. Memphis, 20 Wall. 590, 618, 22 L. Ed. 429. Apart from this we regard the question of construction of the language as written sufficiently clear and certain to render unnecessary resort to the legislative history of this act. State v. Harden, 62 W. Va. 313, 330, 349, 58 S.E. 715, 60 S.E. 394; U. S. v. Shreveport Grain & Elevator Co., 287 U.S. 77, 83, 53 S. Ct. 42, 77 L. Ed. 175; R. R. Comm. of Wis. v. Chicago, B. & Q. R. Co., 257 U.S. 563, 589, 42 S. Ct. 232, 66 L. Ed. 371, 22 A. L. R. 1086; Kelleher v. French (D. C.) 22 F.(2d) 341, 346.
It is also contended by the defendant that some of the service stations sell automobile tires and other accessories. But the stipulation of facts shows that the total amount of sales of such articles is comparatively small, being approximately 6.3% of the total receipts. It is apparent also from the facts that sales of these articles are incidental only and are substantially for service to automobiles en route rather than the vending of merchandise in the usual way. This small incidental sale of articles of merchandise is not sufficient in our opinion to convert a service station, otherwise not subject to the act, into a store within the act any more than the incidental sale of cigars and newspapers and flowers in the lobby of a hotel makes the latter a store as distinct from a hotel or restaurant. It is the dominant nature of the business which characterizes it for purposes of taxation. See Fisk Rubber Co. v. Hinson Auto Co., 168 Ark. 418, 270 S.W. 605; Cesar v. Virgin, 207 Ala. 148, 92 So. 406, 24 A. L. R. 715; Swanson v. DeVine, 49 Utah, 1, 160 P. 872. Of course, as was pointed out in the Wadhams Oil Company Case, it may become a question of fact with regard to any particular station whether by reason of the extent of its sale of accessories or otherwise, its dominant characteristic has become that of a store rather than a mere service station.
We conclude that the tax of $240,173.50, imposed upon the plaintiff corporation and paid by it under protest, was improperly collected, and that it is entitled to a decree whereby the defendant will be perpetually enjoined and restrained from paying said *514 money into the state treasury of West Virginia, and will be ordered and directed to account for and pay over said sum to the plaintiff.
NOTES
[1] Sections of the act of the state Legislature of West Virginia passed on March 8, 1933 (chapter 36):
"Section 1. It shall be unlawful for any person, firm, corporation, association or copartnership, either foreign or domestic, to operate, maintain, open or establish any store in this state without first having obtained a license so to do from the state tax commissioner, as hereinafter provided.
"Sec. 2. Any person, firm, corporation, association or copartnership desiring to operate, maintain, open or establish a store in this state, shall apply to the state tax commissioner for a license so to do. The application for a license shall be made on a form which shall be prescribed and furnished by the state tax commissioner, and shall set forth the name of the owner, manager, trustee, lessee, receiver or other person desiring such license, the name of such store, and such other facts as the state tax commissioner may require. If the applicant desires to operate, maintain, open or establish more than one such store, he shall make a separate application for a license to operate, maintain, open or establish each such store, but the respective stores for which the applicant desires to secure licenses may all be listed on one application blank. Each such application shall be accompanied by a filing fee of fifty cents, and by the license fee as prescribed in section five of this act.
"Sec. 5. Every person, firm, corporation, association or copartnership opening, establishing, operating, maintaining one or more stores or mercantile establishments within this state under the same general management, supervision or ownership, shall pay the license fees hereinafter prescribed for the privilege of opening, establishing, operating or maintaining such stores or mercantile establishments. The annual license fee prescribed herein shall be as follows: (1) Upon one store, the annual license fee shall be two dollars for each such store; (2) upon two stores, or more, but not to exceed five stores, the annual license fee shall be five dollars for each such additional store; (3) upon six stores or more, but not to exceed ten stores, the annual license fee shall be ten dollars for each such additional store; (4) upon each store in excess of ten, but not to exceed fifteen, the annual license fee shall be twenty dollars for each such additional store; (5) upon each store in excess of fifteen and not to exceed twenty stores, the annual license fee shall be thirty dollars for each such additional store; (6) upon each store in excess of twenty, but not to exceed thirty stores, the annual license fee shall be thirty-five dollars for each such additional store; (7) upon each store in excess of thirty, but not to exceed fifty stores, the annual license fee shall be one hundred dollars; (8) upon each store in excess of fifty, but not to exceed seventy-five stores, the annual license fee shall be two hundred dollars; (9) upon each store in excess of seventy-five, the annual license fee shall be two hundred fifty dollars for each additional store.
"Sec. 8. The term `store' as used in this act shall be construed to mean and include any store or stores or any mercantile establishment or establishments which are owned, operated, maintained and/or controlled by the same person, firm, corporation, copartnership or association, either domestic or foreign, in which goods, wares or merchandise of any kind, are sold, either at retail or wholesale.
"Sec. 9. Any person, firm, corporation, copartnership or association who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than twenty-five dollars nor more than one hundred dollars, and each and every day that such violation shall continue shall constitute a separate and distinct offense.
"Sec. 10. Any and all expenses incurred by the state tax commissioner in the administration of this act shall be paid out of the funds accruing from the fees imposed by and collected under the provisions of this act. All money collected under the provisions of this act shall be paid into the state treasury, monthly, by the state tax commissioner, and shall be added to and shall constitute a part of the general fund for the elementary schools.
"Sec. 11. No injunction shall issue from any court in this state enjoining the collection of any license tax provided herein, but the party claiming that any license is not due, for any reason, shall pay the same under protest with the right to collect the same from the state tax commissioner by an appropriate remedy as provided by law."
Note 1: Comparison is invited between the above quoted provision of the West Virginia Constitution and similar subject matter as expressed in Constitution of South Dakota, as amended in November, 1918 (article 11, § 2), reading as follows:
"The legislature is empowered to impose taxes upon incomes and occupations, and taxes upon incomes may be graduated and progressive and reasonable exemptions may be provided;"
and also similar subject matter in section 1 of article 8, of the Wisconsin Constitution reading:
"Taxes may also be imposed on incomes, privileges and occupations, which taxes may be graduated and progressive, and reasonable exemptions may be provided."
Note 2: The Jackson Case did not involve consideration of a state constitutional requirement as to uniformity of taxation because the Indiana court had held its constitutional provision as to uniformity not applicable to occupation or license taxes. 283 U.S. 542, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464. And a similar situation existed in Liggett Co. v. Lee, 288 U.S. 517, 53 S. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699. While state taxes on occupations and privileges, on the simply graduated basis, are not unusual, and have been held generally free from constitutional objection in West Virginia (under the earlier constitutional provision) as well as elsewhere (37 C. J. 197, s. 51) instances of progressively graduated taxes applicable to occupations are comparatively rare, with the exception of the chain store taxing acts now existing in many states.
In the following cases the uniformity clause of state constitutions was held inapplicable to chain store license tax acts: Liggett v. Amos, 104 Fla. 609, 141 So. 153, 157; Penny Stores, Inc., v. Mitchell (D. C. Miss.) 59 F.(2d) 789, 792; State Board of Tax Comm. v. Jackson, 283 U.S. 527, 542, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464; Commonwealth v. Bibee Grocery Co., 153 Va. 935, 151 S.E. 293. In North Carolina and Kentucky the uniformity provision was held applicable, North Carolina sustaining a simply graduated tax (Great Atl. & Pac. Tea Co. v. Maxwell, 199 N. C. 433, 154 S.E. 838), and Kentucky sustaining a progressively graduated tax (Moore v. State Board of Charities and Corrections, 239 Ky. 729, 40 S.W.(2d) 349). A simply graduated tax has, however, been invalidated under the same constitutional provision where the owners of five stores are exempted, and the owners of more than five are taxed for the first five as well as the excess. F. W. Woolworth Co. v. Harrison, 172 Ga. 179, 156 S.E. 904; Great Atl. & Pac. Tea Co. v. Doughton, 196 N. C. 145, 144 S.E. 701. There seems to be no West Virginia decision dealing with a progressively graduated tax on occupation; so far as we are advised, the present Act now under consideration is the first legislation of that kind in the state.
Note 3: See the following cases holding such Acts unconstitutional: In re Opinion of Justices, 82 N. H. 561, 138 A. 284 (income tax); Williams v. State, 81 N. H. 341, 351, 125 A. 661 (inheritance tax); Cope's Estate, 191 Pa. 1, 43 A. 79, 45 L. R. A. 316, 71 Am. St. Rep. 749 (inheritance tax); State ex rel. Garth v. Switzler, 143 Mo. 287, 45 S.W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653 (succession tax); Bachrach v. Nelson, 349 Ill. 579, 182 N.E. 909 (income tax); and see Re Harkness' Estate, 83 Okl. 107, 204 P. 911, 42 A. L. R. 399 (inheritance tax). Contra, Standard Lumber Co. v. Pierce, 112 Or. 314, 228 P. 812; Featherstone v. Norman, 170 Ga. 370, 153 S.E. 58, 70 A. L. R. 449. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265065/ | 6 F. Supp. 800 (1934)
In re REID.
District Court, D. Oregon.
May 3, 1934.
*801 V. C. Tomlinson, Naturalization Examiner, for the United States.
JAMES ALGER FEE, District Judge (after stating the facts as above).
Petitioner claims the right to restoration of citizenship by virtue of an act of Congress permitting "a woman who has lost her United States citizenship by reason of her marriage to an alien eligible to citizenship" to be naturalized "if eligible to citizenship and if she has not acquired any other nationality by affirmative act." Tit. 8 USCA § 369.
Mrs. Reid is eligible for citizenship. Her good character is proved. She was born in this country, is attached to the principles of the Constitution of the United States, and intends permanently to reside in this country. Her husband is eligible to citizenship. See Gorman v. Forty-Second St. M. & St. N. Ave. R. Co., 208 A.D. 214, 203 N. Y. S. 632. She did not acquire any other nationality by affirmative act.
The government admits that there has been no choice of Canadian allegiance by petitioner, either based upon evidence of her residence or marriage to a citizen of that country, and the court so finds. The sole basis of the attempt to prevent petitioner from reclaiming her native allegiance in accordance with the strict letter of the congressional enactment is the contention that the terms of the statute do not apply to her, since she had already lost her citizenship by the naturalization of her father in Canada while she was still a minor. This construction is narrow and technical in view of the tenor of the other acts of the Congress favoring repatriation of the native born. 8 USCA §§ 369a, 372a.
If the instant proceeding, however, had the simple result of denying citizenship to petitioner alone, the court might not hold that the result demanded by the bureaus of the government is inequitable. When the exclusion of petitioner is sought, on the other hand, not upon the ground that she had made choice of Canadian citizenship by continued residence, not upon the ground that her marriage showed a preference for that country to her native land, but upon principles which transcend the incidents of isolated cases, and open the road to involuntary exile of nativeborn *802 citizens of the United States, the rights guaranteed by our basal law to a person born in this country must be reaffirmed.
The argument for the government proceeds upon the ground that by the terms of the Naturalization Treaty between the United States and Great Britain, proclaimed September 16, 1870, 16 Stat. 775, the United States are required to treat all persons naturalized in the British dominions "in all respects and for all purposes" as British subjects. Since the laws of Canada at that time in force conferred citizenship in that country upon all minors whose fathers were naturalized there, it is urged petitioner could not be accorded rights of citizenship by the United States without violation of the treaty.
This result is demanded neither by the statute nor the treaty. The enactment, Rev. Stat. of Canada, 1906, c. 77, reads: "If the father or the mother, being a widow, has obtained a certificate of naturalization within Canada, every child of such father or mother who, during infancy, has become resident with such father or mother within Canada, shall, within Canada, be deemed to be a naturalized British subject."
Clearly the limitation "within Canada" indicates an intention to permit the minor to resume his native allegiance in the country of his birth. This deduction appears more logical when it is considered that, by a subsequent statute, the right of a minor to select, in accordance with the principles of international law, between citizenship in Canada and the country of his birth, is affirmed. Statutes of Canada, 1914, c. 44, § 5. But the court is reminded, Rev. Stat. of Canada, 1886, c. 113, § 15, provides that a naturalized alien shall not be deemed to be a British subject "when within the limits of the foreign state to which he was a subject * * * unless he has ceased to be a subject of that state in pursuance to the laws thereof, or in pursuance of a treaty or statute to that effect." In answer, it may be said that this proviso does not apply. No law of this country broke the tie of citizenship by birth when Mrs. Reid was naturalized in Canada by her father's act. Nor does the treaty require such a termination of her rights.
The compact itself contains no language which expressly destroys citizenship in the United States of a person naturalized in the British dominions, nor specifically does it attempt to forbid the exercise of the option of a minor at maturity between the country of his birth and the country in which, without his concurrence, he may have been naturalized. The document, by article III, expressly permits in the broadest terms the United States to repatriate nationals who may have been naturalized in the British dominions. Since Mrs. Reid is in this country voluntarily seeking citizenship, the United States may restore her rights on any terms which may be deemed proper without violation of its terms.
The history of our relations with England and the language of this document show that the intent was to establish between the governments the right of expatriation to the citizens of either, and to prevent the imperative imposition of obligations of citizenship by either, upon persons who had renounced allegiance to that country. The treaty places restrictions upon governmental action in imposing burdens upon a former citizen. (See construction of a similar treaty with Bavaria, Mr. Wharton to Mr. Phelps, March 26, 1891, For. Rel. 1891, 507.) On the other hand, it permits the other government to confer benefits of citizenship to any person seeking them. The municipal law is, as to this, established as supreme by the compact. The rights of the person who claims citizenship are therefore unfettered by the treaty.
The salient error in the proposed construction of this document by the government is the theory that by naturalization in Canada a minor born in this country loses his citizenship in the United States. The government must insist upon this interpretation or it cannot prevail, because, if citizenship in the United States was not erased by the naturalization of petitioner as a minor, it was "lost" under the terms of the congressional statute by her marriage to Reid. But, during the history of this country, no attempt has been made to cede to an alien power the allegiance of any citizen without an act of expatriation upon his own part.
On the other hand, the law of this country enforced since the inception of the government endowed Mrs. Reid with citizenship here, and from it she could not be divorced except by her own free will. No treaty can accomplish such a result because either of its inherent force or its adoption of foreign municipal law.
At common law and under the early judicial determinations in the United States it was established that birth in a country conferred citizenship. Even under that teaching, although there was no constitutional declaration conferring the right, judicial expression upheld citizenship as inviolable from governmental interference, without voluntary *803 action by the party concerned. "No act of legislation can denationalize a citizen without his concurrence." Burkett v. McCarty, 73 Ky. (10 Bush) 758. The sovereign cannot discharge the subject from his allegiance against his consent except by disfranchisement as a punishment for crime. Ainslie v. Marlin, 9 Mass. 454, 461. "The constitution does not authorize congress to enlarge or abridge those rights [the rights of citizens]." Osborn v. Bank of U. S., 9 Wheat. 738, 827, 6 L. Ed. 204. Thereafter the right of citizens by birth was confirmed by the Constitution. Section 1, Amendment 14, to that instrument provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. * * *" The history of the amendment need not be reviewed to prove that it contains a prohibition against the disfranchisement, denaturalization, or exile of a native-born person without voluntary action by him. That is axiomatic.
Although the treaty as properly interpreted does not debar petitioner, it could not in any event prevent Mrs. Reid, therefore, from claiming the privileges and immunities with which she was invested by common law, and by the express terms of the amendment. For, although the treaty making power extends to all subjects which are proper for negotiation between nations, "it would not be contended that it extends so far as to authorize what the Constitution forbids." Geofroy v. Riggs, 133 U.S. 258, 267, 10 S. Ct. 295, 33 L. Ed. 642.
This limitation is brushed aside by the one case squarely in point. Ostby v. Salmon, 177 Minn. 289, 225 N.W. 158. It holds that, where a minor born in the United States was taken to Canada, of which country, while he was under age, his father became a naturalized citizen and he returned to the United States during minority, he could not resume his native allegiance at majority. Emphasis is placed upon the rights and duties of respective governments under the treaty. The theory of dual allegiance is summarily dismissed, and the doctrine of election is not in terms mentioned at all. The underlying theory of the ruling appears to be upon the ground of convenience of the governments involved and the election officials. The method used by the court seems empirical. But the reasoning of the opinion does not yield to the distinction that the instant case is one concerned with the formalities of naturalization, while that dealt with the right to vote without naturalization. Since repatriation by formal act is mentioned therein as the remedy, a diverse result might here be consistent, even if the exigencies of governmental action alone be considered.
This decision cannot be squared with the terms of the amendment as interpreted in the light of its history by the Supreme Court of the United States. In U. S. v. Wong Kim Ark, 169 U.S. 649, 703, 18 S. Ct. 456, 478, 42 L. Ed. 890, the court held that, notwithstanding national policy and express enactment of Congress required exclusion of the Chinese race, one of its members could not be deprived of his birthright as a citizen of the United States. The history of the Fourteenth Amendment therefore, and its purpose as declared by the courts, void any governmental action denaturalizing a citizen without action unimposed upon him. Unquestionably this principle prevents the forfeiture of citizenship by peremptory conditions imposed after birth. "The fourteenth amendment * * * has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship." U. S. v. Wong Kim Ark, supra. If it were otherwise, members of minority parties might be declared denationalized on account of their doctrines, and other limitations might be set, the effect of which would be to destroy the citizenship conferred by the Constitution.
The right of voluntary expatriation granted to citizens of this country in accordance with "the fundamental principles of the Republic" and obtained for the subjects of other powers by enlightened policy is a doctrine of liberty. The right of two governments to bargain away the allegiance of an individual without action of his own accord is a doctrine of absolutism and inconsistent with the primary law of the United States.
A different ground for upholding the denaturalization of a native-born citizen without consent is that the municipal law of the foreign country declared that the person was a citizen thereof and the United States were bound by treaty to respect the declaration.
In Citizenship of Ingrid Therese Tobiassen, 36 Op. Attys. Gen. 535, is a letter to the Secretary of Labor, in which the Attorney General held that a minor who was born in the United States and whose father, after becoming a citizen of the United States by naturalization, took her to Norway, his native country, where he established a permanent residence, acquired Norwegian nationality *804 through the reacquisition by her father of his rights as a Norwegian subject, and therefore she ceased to be an American citizen, notwithstanding the fact that she returned to this country when she attained majority, established a permanent residence, and attempted to claim citizenship in the country of her birth.
The interesting feature of this letter is that it does not mention the paramount right of a native-born citizen under the Fourteenth Amendment. It likewise dismisses without consideration the limitations upon the treaty-making power suggested by the Secretary of Labor. It assumes without discussion that the acquisition of an alien citizenship by a minor of its own force divests his native citizenship, which does not follow according to the principles of international law. It does not mention the doctrine of election. It bases the determination upon the fact that imperative imposition of Norwegian citizenship upon a person destroys his previous nationality. Finally it assumes that the convenience of the governments involved is the transcendent consideration and that the rights guaranteed to native-born citizens are of no consequence. The recent opinion of the Attorney General, In re Citizenship of Mrs. Marie Thorgaard, August 3, 1933, seems to reflect a more liberal disposition, although the questions here discussed are expressly held not to be in point.
But, if a construction given to a treaty by reference to the municipal laws of a foreign country overrides constitutional limitations, a result is accomplished indirectly which could not be brought about directly. The Department of State has always contended that a mandate by a foreign country imposing citizenship therein upon a citizen of the United States could not destroy his rights to the protection of this country on the ground that "transfer of allegiance must be by a distinctly voluntary act." Mr. Bayard to Mr. Manning, November 20, 1886, For. Rel. 1886, p. 723; The Boisseliers, infra. See, also, Moore Int. Arbitrations, vol. 3, 2479-2482. Where a son was born in Alsace-Lorraine to a naturalized citizen of this country, and was claimed as a German citizen by virtue of the treaty of 1871, it was said: "The American citizenship inherited by Mr. George and elected by him when of full age cannot be divested, either by the municipal laws of Germany nor by a treaty between Germany and France." For. Rel. 1886, pp. 317, 327.
It may be taken as settled that no municipal law of a foreign country can, by imposing involuntary citizenship, thereby deprive a citizen of this country of his rights, and that no governmental agency by virtue of the treaty power can divest a native-born citizen of the privileges and immunities without his affirmative action, either as a direct or indirect result of the foreign law. The question is whether petitioner's rights fall within these protections.
With these limitations in mind then, a review of the rights conferred upon the minor by international law and under decisions of the courts will tend to clarity, and determine whether the destruction of American citizenship by treaty or foreign law is an unwarranted assumption, or is in accordance with the power conferred by the Constitution, for, in order to prevent application of the supremacy of treaty obligations over the rights of citizens from becoming exemplifications of untrammelled power, it is imperative that such instances be confined to cases for which there is historical and logical warrant. The doctrine of dual nationality is applicable where a father emigrates and acquires a new allegiance. Moore, International Law Dig. vol. 3, p. 518. While in a foreign country and a minor, the child of a father naturalized there takes the nationality and domicile of the latter, and is governed by the municipal laws of that country. For practical purposes in accordance with the phraseology of the statute under consideration, he is deemed a citizen of the foreign country. Moore, Int. Law. Dig. vol. 3, pp. 541, 542. But his citizenship in the United States is not thereby impaired or lost. Moore, Int. Law. Dig. vol. 3, pp. 539, 540. At maturity the person thus endowed has the right, and it is his duty to make a decision as to which of the two sovereignties he will accept. The choice is final, and thereafter he owes no allegiance to the country which he has rejected.
In Boyd v. Thayer, 143 U.S. 135, 12 S. Ct. 375, 36 L. Ed. 103, it was recognized that there was a dual nationality in the minor son of an alien, where the latter had filed a simple declaration of intention to become a citizen here, and the right of the former to make an election at majority was affirmed.
Inasmuch as birth in a country confers the strongest claim to citizenship there, the universally recognized right of a child born in a foreign country of American parents to claim citizenship here by election at majority is a cogent argument for permitting like election where a child is born here and by the act of the parent becomes endowed with rights of citizenship in a foreign country. Under *805 both common and international law, birth in a country confers rights of citizenship. Forfeiture of such right can only be by voluntary act of the citizen. The right to citizenship by virtue of the naturalization of the father, on the other hand, can only be conferred by special municipal law. This country through the State Department has always recognized the right of a person born abroad of a father who is a citizen of the United States to claim allegiance to and protection of this country when he arrives at majority, although there is not a syllable in the fundamental law which confers such power upon him. Mr. Bayard to Mr. Pendleton, April 27, 1886, For. Rel. 1886, p. 327; Mr. Seward to Mr. Foster July 2, 1879, For. Rel. 1879, p. 815; Case of Hine, For. Rel. 1901, p. 421; Mr. Seward to Mr. Foster, Aug. 13, 1879, For. Rel. 1879, p. 825. The only reason no specific statute has been passed conferring such power upon the minor born in this country is that his rights are guaranteed by the Constitution itself. Where a child was born in Canada and lived there for a considerable time, but claimed American citizenship of his father, it is said: "The citizenship acquired by Samuel Nelson Jackson at birth was a qualified one, and of that peculiar character under the law which required an election on his part upon attaining his majority or within a reasonable time thereafter whether he would conserve the citizenship of the United States or that of Canada. This election, when once made, is binding upon him and the country of his choice. * * * His son, S. Hollister, * * * was born in Canada in 1875, born into that same kind of American citizenship which required an election on his part as it had of his father." State of Vermont ex rel. Chas. A. Phelps v. S. Hollister Jackson, 79 Vt. 504, 65 A. 657, 661, 8 L. R. A. (N. S.) 1245.
A like determination is found in Ludlam v. Ludlam, 26 N.Y. 356, 84 Am. Dec. 193. The specific question, however, is whether the parents of a minor have the power to destroy his rights to the privileges and immunities of citizenship in the United States to which he is entitled by birth. It would seem that the denial of the right to the minor himself is a cogent argument against the existence of such a right in any other person. It was early recognized in this country that a minor has no right of his own accord to expatriate himself and is "totally incapable of making any election in regard to his citizenship." Ludlam v. Ludlam, 26 N.Y. 356, 376, 84 Am. Dec. 193. This limitation has been reaffirmed recently in U. S. ex rel. Baglivo v. Day (D. C.) 28 F.(2d) 44, where it is said: "A native-born citizen [of the United States], who has not attained the age of 21 years, cannot renounce allegiance to the United States."
The question of the right of the parent was raised but not determined in U. S. v. Wong Kim Ark, 169 U.S. 649, 705, 18 S. Ct. 456, 478, 42 L. Ed. 890, where the court says: "No doubt he might himself, after coming of age, renounce this citizenship, and become a citizen of the country of his parents, or of any other country. * * * Whether any act of himself, or of his parents, during his minority, could have the same effect, is at least doubtful."
In the case of Steinkauler, 15 Op. Attys. Gen. 17, it is said: "Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright."
In that case the minor was by jus sanguinis a subject of the German Empire.
Another expression of this sort is found in Ex parte Chin King (C. C.) 35 F. 354, 356, where it is said: "However, in my judgment, a father cannot deprive his minor child of the status of American citizenship, impressed upon it by the circumstances of its birth under the constitution and within the jurisdiction of the United States. This status, once acquired, can only be lost or changed by the act of the party when arrived at majority, and the consent of the government."
The United States have strenuously insisted upon the application of this principle and apparently with success in cases where obligations of its citizens by personal adoption were demanded by an alien government. Particular emphasis was placed upon right of a person of dual nationality to cast his lot with this country, where, at the time of the controversy, the person who had chosen allegiance to the United States, the country of his birth as against the country of his father's nativity, domicile and citizenship, was within the territorial limits of the former. Mr. Evarts, Secretary of State, writing to Mr. White, Minister to Germany, referring to two persons born in this country to a naturalized citizen of this country, and who had been taken then to the country of the father's nativity, but who returned before majority and preferred allegiance to the United States, uttered a ringing declaration, in which he said with reference to the constitutional guaranty:
*806 "It is quite clear that the two young Boisseliers, being native born citizens of the United States, and now subject to the jurisdiction of the United States, cannot be held under any law, municipal or public, to owe military service to the German Government. Their rights rest on the organic law of the United States. The Constitution declares (Article XIV of the Amendments) `That all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' This is the supreme law of the Republic, available alike to all citizens, whether native or naturalized, and binding upon every Department and officer of the Government. The brothers Richard and Caspar Boisselier, in their present political status, fulfil all its conditions. Their father, it is true, took them to Schleswig when they were quite young, one four and the other two years old. They lived there many years, but during all those years they were minors, and during their minority they returned to the United States; and now, when both have attained their majority, they declare for their native allegiance and submit themselves to the jurisdiction of the country where they were born, and of which they are native citizens. Under these circumstances, this Government cannot recognize any claim to their allegiance, or their liability to military service, put forth on the part of Germany, whatever may be the municipal law of Germany under which such claim may be asserted by that Government.
"* * * Whether or not the father, Carl Gerhard Boisselier, may by his continued residence in Schleswig have resumed his original nationality and renounced his American citizenship is a question which I do not now undertake to determine nor is its determination deemed essential to the present question." Moore Int. Law Digest. Vol. III, § 430, p. 543.
This case is exactly in point, except it is now contended a treaty can override the fundamental declaration.
Nor can the fact that the statute under which petitioner forfeited her citizenship by marriage was upheld as constitutional be recognized as establishing an exception. Marriage depends upon an act of volition. Furthermore, the doctrine of loss of citizenship by a woman by marriage to an alien (Madame Berthemy's Case, 12 Op. Attys. Gen. 7; Mr. Frelinghausen, Secy. of State, to Mrs. Walsh, Jan. 31, 1884, Moore, Dig. Int. Law, 5408) and repatriation after coverture has ended finds explicit warrant in international law (Moore, Dig. Int. Law, 3409). Nor does Mackenzie v. Hare, 239 U.S. 299, 36 S. Ct. 106, 108, 60 L. Ed. 297, Ann. Cas. 1916E, 645, destroy the principle that the consent of the citizen is a prerequisite to denationalization, for it is there said "it may be conceded that a change of citizenship cannot be arbitrarily imposed."
It is thus firmly established in the law of this country and in the law of nations that a minor born in this country who is involuntarily naturalized in a foreign country has a right to elect allegiance when he arrives at maturity, and that he cannot be deprived of that right by his own act nor by the act of his parents, nor by the municipal law of the foreign state. Any attempt by circumlocution to deprive him of the right by the treaty making power would be an arbitrary denaturalization inconsistent with the fundamental law. Before majority, Mrs. Reid thus had a dual nationality and was entitled to the benefits which might flow from either citizenship. Ludlam v. Ludlam, 26 N.Y. 356, 377, 84 Am. Dec. 193.
Nor is it in accordance with sound national policy as expressed in the statutes to prevent native-born citizens from repatriation. These children who are raised in a foreign country and disregard alien influences and parental authority at majority to seek allegiance to their native country have proved their belief in the inherent soundness of its institutions. When it is considered that the consequence of a contrary view might, by an extension of the quota acts, amount to virtual exile, that doctrine cannot be too strongly condemned.
The petitioner was a citizen not only by jus soli but also by jus sanguinis, since she was born in this country of native parents. This right she lost by marriage to an alien and not by other affirmative act. The statute confers her a right by express terms to repatriation.
The petitioner is admitted to citizenship. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265074/ | 6 F. Supp. 574 (1934)
PRATT & WHITNEY CO.
v.
UNITED STATES.
No. K-169.
Court of Claims.
April 9, 1934.
*575 Karl D. Loos, of Washington, D. C. (Preston B. Kavanagh, of Washington, D. C., on the brief), for plaintiff.
J. H. Sheppard, of Washington, D. C., and Frank J. Wideman, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
GREEN, Judge.
The plaintiff in this case seeks to recover $316,701.25 with interest (altogether about a half million dollars) overpaid on the taxes of 1918 and applied by the Commissioner on a deficiency in its taxes for 1917, the collection of which at the time of the application was barred by the statute of limitations. A claim for refund on the taxes of 1918 was filed on June 24, 1921, and thereafter the Commissioner made an audit and review of plaintiff's taxes for the years 1915 to 1919, inclusive, and as a result, among other things, determined a deficiency for the calendar year 1917 in the sum of $316,701.25, an overassessment for the year 1918 in the sum of $495,833.12, and advised the plaintiff thereof by letter on November 4, 1922. The deficiency for 1917 was assessed in January, 1923.
The Commissioner thereafter proceeded in the usual manner to make a certificate showing this overassessment, which was sent to the collector with directions to ascertain the condition of the account against the plaintiff for taxes, apply the overassessment upon any taxes found to be due for other years, complete the schedule and return it. This the collector did, and his certificate showed the amount of $177,041.92 refundable. In accordance with the collector's certificate and about June 1, 1923, the Commissioner mailed to the plaintiff a certificate of overassessment for the year 1918 in the sum of $495,833.12 which also showed that the overassessment was applied on three different items totaling $318,791.20 as credits upon taxes due for other years, leaving $177,041.92 refundable. A check on the Treasury was inclosed with the certificate in payment of the amount refundable together with interest in the sum of $36,638.21. This check was received by plaintiff and cashed.
We have here the same situation which has appeared in many cases recently before us. The certificate mailed to plaintiff was not made up in the ordinary form of an account, but it was in fact nothing more or less than a statement of the account between plaintiff and defendant with reference to plaintiff's taxes for certain years. It showed the amount of the overassessment for 1918 and by appropriate reference that a large part of it had been applied and credited upon taxes for other years in three separate items, one of which was $316,701.25 taxes of 1917, and that the balance which the government claimed was due the plaintiff was $177,041.92 which, together with interest thereon in the amount of $36,638.21, or a total of $213,680.13, was paid in settlement. The plaintiff made no complaint about the transaction until more than five years afterwards, when through its attorneys it made a demand upon defendant for the amount which had been credited on the 1917 taxes and nearly six years expired before suit was begun to recover the amount thereof.
Notwithstanding the recent decisions of the court, which, in our opinion, fully cover the case now before us, the plaintiff insists that the recital of the overassessment contained in the certificate constituted an account stated in its behalf for the amount of the overassessment. We have held many times that, when an account is presented, a party thereto cannot select one or more items stated in his favor therein and ignore charges made against him even though those charges be not well founded, and that an account stated must be taken as a whole or not at all. In this particular case, the account showed a balance of a certain amount in favor of plaintiff for which it received a check issued in settlement. No complaint having been made with reference thereto for over five years, it must be considered an account settled. Cf. R. H. Stearns Co. v. United States, 291 U.S. 54, 54 S. Ct. 325, 78 L. Ed. ___.
The plaintiff, however, seeks to recover on another and novel ground which, in our opinion, is equally unfounded. It is insisted that, if it does not have the right to recover on an account stated the cause of action was still in time for the reason that plaintiff's claim for refund filed June 24, 1921, was not rejected until the Commissioner of Internal Revenue declined to comply with the demand for the return of the amount credited on the 1917 taxes made by its attorneys through a letter dated August 23, 1928, and that the statute of limitations on claims for refund did not *576 begin to run until that date. Nevertheless, it is said in argument that the claim for refund was at first allowed. It is thus conceded, as it must be, that action was taken upon the claim for refund. It is not necessary that any particular form should be used by the Commissioner in allowing or rejecting a claim for refund. In the instant case, after the claim for refund had been filed, the Commissioner made an audit and review of plaintiff's taxes in order to determine whether in fact they had been overpaid as was alleged in the claim for refund. He found and determined that the taxes for 1918 had been overpaid, or, as stated in the language of the Bureau, there had been an "overassessment" thereof. Having also determined a deficiency in the 1917 taxes, he applied part of the overpayment thereon and refunded the balance. All this was shown by the certificate of overassessment in the manner above stated. When the Commissioner computed the amount of refund to be made the plaintiff and paid it, he allowed the claim for refund to that extent. When, instead of refunding the remainder of the overpayment to plaintiff, he credited it upon the taxes of other years, he rejected the claim for refund to the extent of these credits. Section 3226 of the Revised Statutes, as amended by section 1113 (a) of the Revenue Act of 1926 (26 USCA § 156), requires that a suit to recover a tax collected shall not be begun after the expiration of five years from the date of the payment of such tax, "unless such suit or proceeding is begun within two years after the disallowance of the part of such claim to which such suit or proceeding relates." The claim for refund alleged that there had been an overpayment of the 1918 taxes. If, after the filing of this claim, the Commissioner had announced that he had considered the matter and determined that there was no overpayment, we do not think any one would claim that suit could not then be begun. In the case at bar, after consideration and having found that there was an overpayment, he announced that part of this overpayment would be credited on taxes for other years. This was in effect a disallowance of the part of the claim to which the suit relates and the provisions of section 3226 became applicable.
The plaintiff contends that no cause of action accrued until the enactment of the Revenue Act of 1928 which declared that a credit made after the expiration of the statute of limitations was void and might be refunded in the same manner as any other overpayment. But we have already shown that plaintiff's claim for refund was disallowed in part on June 1, 1923, when the certificate was issued and that a cause of action then arose which under section 3226 must be begun within two years, and this leaves no foundation for plaintiff's position. The 1928 act did not repeal section 3226, nor did it in any manner limit its provisions with reference to the time in which suit must be begun.
Counsel for plaintiff also contend that the fact that the Commissioner found the overassessment constituted an allowance of the claim and a promise to pay the amount thereof and that the suit is based on the promise. This is merely a statement in another form that the determination of the overassessment constituted an account stated in favor of plaintiff to the amount of the overassessment. There is no basis for this contention. The action of the Commissioner in allowing the overassessment, crediting part of it on the taxes of other years and refunding the balance, was all one transaction and cannot be separated. The Commissioner did not merely allow the overassessment; he determined it, and by the same determination announced that a part of it would not be refunded. Moreover, we have found as an ultimate fact that there is no evidence showing or tending to show any promise or agreement to pay the plaintiff any other sum than the amount which was refunded.
For the reasons above set forth, we hold that the separate item of the overassessment contained in the certificate did not constitute an account stated upon which plaintiff could bring a suit within six years, and that plaintiff having failed to bring its suit within two years after the certificate of overassessment and statement of account was issued, its action is barred under section 3226 of the Revised Statutes.
In support of the conclusions above stated with reference to an account stated, see R. H. Stearns Co. v. United States, supra, Leisenring v. United States, 3 F. Supp. 853, 78 Ct. Cl. ___ (certiorari denied 54 S. Ct. 558, 78 L. Ed. ___), and Samuel Daube v. United States (Ct. Cl.) 5 F. Supp. 769 (decided February 5, 1934).
It is clear that plaintiff's petition should be dismissed and it is so ordered.
BOOTH, Chief Justice, and WHALEY, WILLIAMS, and LITTLETON, Judges, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265075/ | 54 Cal. App. 4th 80 (1997)
In re the Marriage of RAMONA HELEN and JAMES ROBERT GOWAN, JR.
RAMONA HELEN GOWAN, Respondent,
v.
JAMES ROBERT GOWAN, JR., Appellant;
BECKMAN INSTRUMENTS, INC., PENSION PLAN, Respondent.
Docket No. H015061.
Court of Appeals of California, Sixth District.
March 17, 1997.
*83 COUNSEL
James Anthony Kelly for Appellant.
O'Melveny & Myers, Wayne S. Jacobsen, Larry A. Walraven, Dok, Levy & Perrin, William L. Dok, Hugh T. Thomson and George C. Demos for Respondents.
OPINION
COTTLE, P.J.
After judgment in a marital dissolution action between James Robert Gowan, Jr., and his former wife, Ramona Helen Gowan, the trial court entered an order dividing the community property interest in James's pension plan. Because we find that the trial court had retained jurisdiction to divide the pension plan, and did not abuse its discretion in dividing the pension plan according to the "time rule," we affirm the order.
*84 I. FACTS
James and Ramona were married in June 1957. On May 27, 1960, James began employment with Beckman Instruments, Inc. (Beckman). He was employed there continuously until January 11, 1974, when he left Beckman. At the time his employment terminated, James was earning approximately $30,000 per year.
On October 25, 1978, an interlocutory judgment was entered dissolving the parties' marriage. The interlocutory judgment was based upon a stipulation of the parties, and reflected the parties' agreement regarding support and property division. A final judgment of dissolution was filed on February 21, 1979.
In paragraph 9 of the 1978 interlocutory judgment, the parties agreed to the following: "[Ramona] shall have confirmed to herself as her sole and separate property an undivided one-half interest in any and all retirement benefits to which [James] may be entitled from Beckman Instruments Inc. of Fullerton, California. Said retirement benefits having all been earned by [James] during the course of this marriage, they are all ... therefore community property. This court shall retain jurisdiction over the subject matter and [James] agrees to pay to [Ramona] as and when he receives said funds her one-half thereof forthwith."
At the time of this interlocutory judgment, the Beckman Instruments, Inc. Pension Plan (Beckman Pension Plan) was not joined in the proceedings. When James left Beckman in January 1974, it was anticipated that he would receive a monthly annuity in the amount of approximately $137.16 from the Beckman Pension Plan beginning on July 1, 1999.
On May 1, 1989, James was again hired by Beckman. His salary for this employment was more than $100,000 per year. James retired from Beckman on June 3, 1994.
For purposes of benefit accrual under the Beckman Pension Plan, both of James's employment periods (1960-1974 and 1989-1994) were added together for a total service credit of more than 18 years.[1] In June 1994, James filed a payment directive with the Beckman Pension Plan electing a single life monthly payment option with a Social Security adjustment.
After his retirement in 1994, James began receiving a monthly pension benefit in an initial amount over $3,400. As of March 1, 1996, when James *85 would be entitled to Social Security benefits, his pension benefit was to be reduced to approximately $2,500 per month for the remainder of his life. James did not commence payments to Ramona once he began receiving monthly retirement benefits.
On July 28, 1995, Ramona filed a motion seeking enforcement of pension division, the entry of a qualified domestic relations order (QDRO), and attorneys' fees and costs. Before the matter was heard, Ramona also filed a request for joinder of the Beckman Pension Plan, which was granted on December 4, 1995, and a notice of adverse interest in the Beckman Pension Plan.
In her motion seeking enforcement of the pension division, Ramona argued that because James's pension benefit was based upon over 18 years of service, approximately 14 of which were during their marriage, 72.95 percent of the pension was community property, and she was entitled to one-half of this community property interest or 36.475 percent of the pension. James argued that the 1978 judgment was res judicata, that Ramona's community property share was limited to $68.81 per month, and that the "time rule" should not be applied. After a hearing on December 14, 1995, the court took the matter under submission.
On January 5, 1996, the court filed its findings and orders after hearing. The court concluded that it had authority to divide the pension pursuant to the jurisdiction retained in the 1978 judgment, and granted Ramona's motion to enter a QDRO based upon the time rule. On January 22, 1996, the court filed an amendment to the order, addressing attorneys' fees. James filed a timely appeal from the court's order of January 5, 1996.
II. DISCUSSION
On appeal, James challenges the trial court's order determining the community property interests in his pension according to the time rule. His main contentions are that the trial court's order impermissibly modifies the 1978 judgment, that the order improperly interprets the parties' agreement, and that the time rule was improperly applied.
A. Retained Jurisdiction
James strenuously argues that the language of the 1978 judgment was limited to the retirement benefits with Beckman existing as of 1978, relying on the following sentence in the judgment: "Said retirement benefits having all been earned by [James] during the course of this marriage, they are all *86 ... therefore community property." (1) James contends that any jurisdiction "retained" by the court in the 1978 interlocutory judgment must concern only those benefits from the pre-1978 employment period, and that any attempt to divide subsequently earned benefits is an abuse of discretion.
The problem with this argument is that the Beckman pension as it existed in 1978 can no longer be identified except as part of James's current total Beckman pension based upon more than 18 years of service (combined pension). To distribute the pension referenced in the 1978 judgment, the court must now separate it from the remainder of the combined pension.
Although the parties' agreement provided for an equal division of "any and all retirement benefits to which [James] may be entitled from [Beckman]," the agreement also stated that the court "shall retain jurisdiction over the subject matter...." We agree with the trial court that the retention of jurisdiction over the "subject matter" is broad enough to allow the trial court to separate the pension referenced in the 1978 judgment from the remainder of the combined pension.
Given the fact that James was not expected to receive retirement benefits until 1999 (21 years after the agreement), it was reasonable to expect that new pension laws and other future events (including some events not contemplated by the parties) could have an impact on the parties' rights in the pension. Because plans and their benefits may change over time, it is appropriate for the court, through its retained jurisdiction, to reconcile the order and the intent of the parties with later changes in the plan or plan benefits. Although the parties did not contemplate that the community property pension would become part of a larger "combined pension," this is precisely the kind of changed circumstance that makes the retention of jurisdiction appropriate and necessary.
Because the pension referenced in the 1978 judgment has become a commingled part of the combined pension, a determination of how to divide the combined pension is now necessary, not to rewrite or modify the 1978 judgment, but to implement it. The trial court's division of the combined pension is thus consistent with principles of res judicata and the binding effect of the 1978 judgment. We therefore hold that the trial court did not err in determining that it retained jurisdiction to divide the combined pension into (1) a community property portion attributable to pre-1978 years (which was addressed by the 1978 judgment) and (2) a separate property portion (which was not addressed by the judgment).
*87 B. Interpretation of the Parties' Agreement
James also argues that the 1978 interlocutory judgment, which reflects the parties' agreement regarding support and property division, must be interpreted according to statutory requirements for the interpretation of contracts, including those set forth in sections 1636, 1637, 1638, 1644, 1648 and 1654 of the Civil Code. James argues that the mutual intent of the parties concerned only James's first (1960-1974) employment period, and the contract "could never have embraced the 1990 employment because the parties never intended to include that time frame at the time the Judgment was drafted."
(2) We agree that the stipulation must be analyzed in light of the parties' intent and according to statutory requirements for contract interpretation. We also agree that the parties intended to consider only the retirement benefits from James's first (1960-1974) employment period with Beckman as community property. This conclusion, however, does not address the fundamental problem: separating the retirement benefits from the first employment period (about which the parties contracted) from the other benefits commingled in the current combined pension.
Although this particular issue was not contemplated by the parties, we believe that the stipulated judgment reflects the parties' agreement to have such unanticipated issues addressed by the court in the future: "This court shall retain jurisdiction over the subject matter...." The parties' agreement was not, as James suggests, to somehow "freeze" the value of the community property pension at the level of the 1974 estimate of $137.16 per month. The judgment does not include any fixed monetary amounts. Instead, the parties agreed to an in-kind division of the pension, with the court retaining jurisdiction over the subject matter. The parties' intent was clearly to allow for later implementation of an in-kind division of the actual pension, not to award a particular amount based upon estimates 21 years before any actual payment.[2] By providing for the court to retain jurisdiction over the subject matter, the agreement clearly contemplated the possibility *88 that the court would need to address later changes affecting the pension. The court's decision to exercise its retained jurisdiction, clearly contemplated by the parties in the contract, was therefore consistent with statutory and other principles of contract interpretation.
C. Application of the Time Rule
The trial court concluded that the combined pension included both separate property and community property, and that the time rule was the appropriate method for ascertaining the community's interest. (3) When a trial court concludes that property contains both separate and community interests, the court has very broad discretion to fashion an apportionment of interests that is equitable under the circumstances of the case. (In re Marriage of Hug (1984) 154 Cal. App. 3d 780, 782-783 [201 Cal. Rptr. 676, 46 A.L.R. 4th 623].) "[T]he disposition of marital property is within the trial court's discretion, by whatever method or formula will `achieve substantial justice between the parties.'" (Id. at p. 791.) Consequently, we review the trial court's utilization of the time rule to divide the combined pension under an abuse of discretion standard. (In re Marriage of Adams (1976) 64 Cal. App. 3d 181, 187 [134 Cal. Rptr. 298].)
(4a) Under the time rule, the community is allocated a fraction of the benefits, the numerator representing length of service during marriage but before separation, and the denominator representing the total length of service by the employee spouse. That ratio is then multiplied by the final plan benefit to determine the community interest. (In re Marriage of Judd (1977) 68 Cal. App. 3d 515, 522 [137 Cal. Rptr. 318]; In re Marriage of Cobb (1977) 68 Cal. App. 3d 855, 861 [137 Cal. Rptr. 670].)
The rationale for the use of the time rule was set forth in In re Marriage of Judd, supra, 68 Cal. App. 3d 515: "Where the total number of years served by an employee-spouse is a substantial factor in computing the amount of retirement benefits to be received by that spouse, the community is entitled to have its share based upon the length of service performed on behalf of the community in proportion to the total length of service necessary to earn those benefits. The relation between years of community service to total years of service provides a fair gauge of that portion of the retirement benefits attributable to community effort." (Id. at pp. 522-523) Using this rationale, courts have frequently used this method of determining the community's interest where the amount of the benefit is substantially related to the number of years of service rendered. (See, e.g., In re Marriage of Judd, supra, 68 Cal. App.3d at pp. 519, 522-523; In re Marriage of Adams, supra, 64 Cal. App.3d at p. 186.)
*89 In this case, the trial court held that the pension should be divided according to the time rule. The court evidently accepted Ramona's argument that under the time rule, the community's share of the pension was approximately 72.95 percent of the pension (13.6301 marital years/18.6849 total service years), and that Ramona was entitled to one-half of this amount, or 36.475 percent of the pension.
James challenges the court's decision to apply the time rule to the combined pension on both factual and legal grounds. Factually, he argues that his pension benefit was not related in any way to his years of employment with Beckman during his marriage to Ramona. In a declaration submitted to the trial court, James stated: "[T]his [1989 employment with Beckman] was a separately negotiated contract with nothing at all to do with my prior employment with Beckman between 1960 and 1974. I only received the benefits that I did in exchange for a salary reduction. I did not receive these benefits based upon prior employment with Beckman. [¶] 12. My job description was entirely different, ... my compensation was entirely different, and it was based upon my experience, education, and abilities that I generated the `perks,' including pension benefits, that I obtained." (Capitalization and underlining omitted.)
The trial court did not find this factual argument persuasive. In its findings, the court stated: "[A]side from James' declaration, there is no evidence that the employment package negotiated in 1989 contained any provisions regarding reinstatement of benefit credits which would otherwise have been lost (the 1989 employment contract with Beckman was not introduced into evidence)." The court found that "James did not meet his burden to prove that the increase in the ultimate pension benefits was a result of post-separation negotiations and not attributable to his first employment period."
(5) We have reviewed the entire record on appeal, and find the evidence sufficient to support this finding. Although James's declaration stated that his pension benefits were entirely unrelated to the first employment period, a letter to Ramona's counsel from the Beckman's benefits project manager states that James had two employment periods with Beckman, and that "[b]oth of these employment periods are credited service for Pension Plan benefit accrual." This letter supports Ramona's argument that James's pension was based upon all of the years of his service with Beckman, including the years during his marriage to Ramona. Given the conflicting inferences possible from the evidence, the trial court was entitled to find that the pension was, in fact, related to all of James's service years with Beckman, including those during his marriage to Ramona. This factual finding will not be disturbed on appeal.
*90 James's legal argument is that the time rule has been applied in cases in which the employment period "continues uninterrupted beyond the date the judgment of dissolution is entered," (italics omitted) and not in cases involving a "break in service" between two employment periods. James is correct that the cases employing the time rule generally involve a single, continuing period of employment. (See, e.g., In re Marriage of Judd, supra, 68 Cal. App. 3d 515; In re Marriage of Adams, supra, 64 Cal. App. 3d 181.) The parties have cited no case in which the time rule has been applied to a pension based upon two separate employment periods.
In In re Marriage of Bergman (1985) 168 Cal. App. 3d 742 [214 Cal. Rptr. 661], however, the court considered the possibility that the employee spouse might return to her teaching job at some time in the future. The wife worked as a schoolteacher for approximately eight years, partially during the marriage. The court applied the time rule to determine the community interest in her retirement plan (number of months employed between marriage and separation, divided by the total number of months of wife's service). The court stated: "This fraction, multiplied by the benefit paid under the plan, is the community property interest in benefits under the plan and it is awarded one-half to each party.... [¶] In making this decision, we acknowledge that the amount which Joan will receive from her pension plan upon achieving eligibility for retirement is less certain than is true with Elmer's plan. It is not known if Joan will return to teaching or what salary level she may ultimately achieve if she does so. By using the formula set forth above, it makes no difference whether or not Joan returns to teaching. This formula still determines that portion of the benefits which are community." (Id. at p. 759.) The court thus held that the time rule would properly divide a pension, even if the pension reflected two different periods of noncontinuous employment.
(4b) We agree with the Bergman court that even where an employee's service is not continuous, a pension based upon total service years may be divided according to the time rule. The rationale for the time rule applies wherever the total number of years served by the employee spouse (continuous or otherwise) is a substantial factor in computing the retirement benefits. (6) Although James had two separate employment periods with Beckman, his pension was based upon his total service years. The time rule fairly accounts for both the marital and postmarital years of service because it assigns to the community only a portion of the pension corresponding to the portion of service during marriage and before separation.
Finally, we consider the argument, made implicitly by James, that his later service years at high salaries contributed more to the value of his pension *91 than his earlier years at lower salaries. Similar arguments in cases involving continuous employment have been repeatedly rejected by California courts. For example, in In re Marriage of Judd, the husband argued that because his annuity payments were based in part upon postmarital years of service, which would have a significantly greater dollar value than his years of service during the marriage, the community property award should not give equal weight to the different years of service. The Judd court, however, held that a husband and wife share the same qualitative interest in the retirement rights, and the fact that a plan reflects subsequent salary increases does not alter the community's interest in those rights. "[A]n employee's contributions in the early years of employment during the marriage, even though based on a smaller salary, may actually be worth more than contributions during the post-separation years, due to the longer period of accumulated interest and investment income prior to the commencement of benefit payments." (In re Marriage of Judd, supra, 68 Cal. App.3d at p. 523.) The court therefore gave the first service years (during the marriage) as much weight in computing total service as the last few years (after separation).
Like the court in Judd, we are persuaded that the community contribution to James's pension (approximately 14 years, beginning in 1960) was crucial to its final value and to the amount received by James. Under these circumstances, despite the break in service and the salary differential, the trial court acted within its discretion when it utilized the time rule to apportion the parties' interests in the pension.
D. Joinder of Pension Plan
(7) James argues that because Ramona failed to join the Beckman Pension Plan in 1978, she should be estopped from receiving a "windfall" and being "unjustly enriched" by the 1990 employment period.[3] He relies upon the statutory language of former section 4351 of the Civil Code, which provided in part that the superior court has jurisdiction to make orders regarding support and settlement of property rights, "provided, however, no such order or judgment shall be enforceable against any employee pension benefit plan unless the plan has been joined as a party to the proceeding."
This argument is without merit. Ramona's prior failure to join the pension plan affected only the enforceability of the judgment against the pension plan, not whether Ramona had a particular substantive interest in the pension. Ramona has received no "windfall" from the 1990 employment period *92 (which was, and remains, James's separate property) or from the joinder of the Beckman Pension Plan on December 4, 1995, pursuant to her request.
III. DISPOSITION
The trial court's order of January 5, 1996, as modified by the trial court's amendment dated January 22, 1996, is affirmed.
Premo, J., and Bamattre-Manoukian, J., concurred.
NOTES
[1] In order to give James credit for his total service time, Beckman moved the initial hire date forward to September 27, 1975, which, according to Beckman, yielded the same total benefits service as adding the service from each employment period together.
[2] This case, in which the judgment does not mention any specific monetary amounts, differs from the case of In re Marriage of Melton (1994) 28 Cal. App. 4th 931 [33 Cal. Rptr. 2d 761], in which the judgment did include particular monetary amounts based upon estimates made at the time of the judgment. The benefits were actually much higher than the prior estimates (due to the employee's retirement at age 46 rather than age 45, changes in the plan which increased the benefits, and the classification of the employee in a different group within the plan than the parties anticipated). This court held that the unanticipated increase (the amount by which the actual benefits exceeded the prior estimates) constituted property left undivided by the prior judgment, and therefore remanded the case to the trial court to determine how to divide the omitted portion of the pension. (Id. at p. 939.)
[3] James argues that if the pension plan had been joined in the proceedings in 1978, the judgment would have been different, and the current matter "would, in all likelihood, never have come before this Court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265076/ | 619 A.2d 1199 (1993)
James A. STUART, Appellant,
v.
Cecil O. CLARKE and Farid Srour, Appellees.
No. 87-CV-952.
District of Columbia Court of Appeals.
Submitted March 29, 1989.
Decided February 12, 1993.
James A. Stuart, filed a brief pro se.
Jeffrey M. Hamberger, Rockville, MD., and Jacob A. Kamerow, Washington, D.C., were on the brief, for appellees.
Before FERREN and TERRY, Associate Judges and GALLAGHER, Senior Judge.
PER CURIAM:
Appellant (the seller) contracted to sell real property to appellees (the buyers). At the time of contract, the seller knew that the land records showed there was an unreleased 1948 deed of trust on the property, although he assumed it previously had been satisfied. Well prior to settlement, the title company advised the seller that he could not convey clear title to the property, but he took no action. The buyers came to settlement prepared to meet their contract obligations and to pay for the property. The seller came to settlement well knowing he was unable to convey good title because he had long failed to obtain a release of the old deed of trust.
The parties agreed at settlement to put a portion of the purchase money, i.e., the amount of the unreleased deed of trust ($13,500), in escrow with the title company named in the contract of sale until the *1200 seller obtained its release, at which time he would be entitled to receive from the escrow agent the remainder of his purchase money. But, very significantly, the deed to the property was delivered to the purchasers at settlement. The buyers, therefore, acquired title to the property at settlement; it remained for the seller to perform his previously violated contractual obligation to furnish clear title by obtaining a release of the 1948 deed of trust, in order to obtain the escrowed $13,500, held for his benefit.
Some time later, the escrow agent absconded with the money. The buyers brought this action against the seller, seeking damages for breach of contract, a declaratory judgment, and other relief; the seller responded with a counterclaim for $13,500. The only issue presented on this appeal is whether the buyers or the seller must bear the loss resulting from the escrow agent's defalcation.
The trial court held that the seller, not the buyer, should suffer the loss. The court ruled:
If one is entitled to funds and fails to collect them before they are stolen, the burden of the loss must necessarily fall on that person. * * * This failure cannot be allowed to shift the risk of loss back to the [buyer].
We agree.
The general rule is that "when an escrow agent absconds with money he is holding in his capacity as depositary, the loss must fall upon the person as whose agent he is holding the money at the time." Lechner v. Halling, 35 Wash.2d 903, 216 P.2d 179, 183 (1950). "Under the normal escrow situation where the escrow agent defaults prior to performance of the escrow condition, the loss falls upon the depositor, for he is deemed to have retained legal title to the subject matter of the escrow, and is deemed to be entitled to the return of such subject matter, should the other parties fail to perform." Cradock v. Cooper, 123 So. 2d 256, 258 (Fla.Dist.Ct.App.1960). This case, however, does not reflect the "normal escrow situation"; the loss, therefore, does not fall on the buyer-"depositor." Id. More specifically, this case is distinguishable from other, more typical escrow situations because title to the property has passed to the buyer, and thus the proceeds of saleincluding the amount retained in escrowhave passed to the seller, subject to his performance of a condition subsequent entitling him to release of the escrowed funds. The buyers cannot logically be the owners of both the purchased property and the portion of the money in escrow.
A basic principle applies here: the nature of an escrow agreement, like any other contractual arrangement, must be determined by the intent of the parties as evidenced by all the facts and circumstances surrounding the creation of the escrow. See Ferguson v. Caspar, 359 A.2d 17, 20-21 (D.C.1976); 30A C.J.S. Escrows § 6(b), at 502 (1992). In the typical escrow arrangement to facilitate transfer of title to real property, the seller and buyer "employ a third party to accept their respective tenders of performance under the contract." Ferguson, 359 A.2d at 20. Thus, the seller's deed, the buyer's purchase money, and other pertinent instruments are deposited with the escrow agent pending each party's performance of his or her respective duties required for settlement. Until each party has satisfied the respective conditions precedent, legal title to the property does not pass to the buyer and legal title to the purchase money does not pass to the seller. Id. at 22-23.
This case does not involve the above typical escrow arrangement. Rather, the parties reached a settlement and legal title to the property passed to the buyers. In return, the seller received purchase money in the form of cash and a purchase money note for the balance due along with a deed of trust. At the closing, however, there was one problem: there was a 1948 deed of trust remaining on the property, and thus the seller had not delivered clear title as promised. In order to close the deal despite the outstanding deed of trust, the parties agreed that an escrow agent would hold $13,500 of the purchase money (presumably an amount relating to the 1948 mortgage note) until the seller could obtain *1201 a release of the old deed of trust. Therefore, the seller, rather than receiving an additional $13,500 from the buyers as part of the purchase price, settled for $13,500 in escrow until he could clear the property's title.
The record is not clear what the parties' intention was with respect to the escrowed funds if the seller failed to obtain a release. Given the purpose of the escrow, however, it would appear that if the seller failed to obtain a release, the $13,500 either would go to pay off the deed of trust, with any left over remaining with the seller, or the $13,500 would go back to the buyers as compensation for purchasing a clouded title.[1]
Given the above terms of the parties' settlement agreement under which title to the property passed to the buyer unlike the typical escrow arrangement where the deed also remains in escrowwe conclude the better interpretation is to say that title to the $13,500 passed to the seller when title to the property passed to the buyers. To induce the buyers to settle despite the clouded title, the seller agreed to escrow a portion of the purchase money to secure his performance, i.e., to make good on his earlier promise to remove the 1948 deed of trust "cloud" from the buyers' title. See 30A C.J.S. Escrows § 4, at 498-99 (discussing different types of escrows, including a money escrow as distinguished from a common law escrow for conveyance of property). In other words, the seller agreed to put $13,500 of the purchase money in escrow as consideration for the buyers' willingness to go ahead with the settlement. Thus, the condition the parties agreed to for release of the escrowed funds (clearing title) was a condition "subsequent to passage of title to the matter in escrow." Id. § 5(b), at 500.
Based on our reading of the escrow arrangement, we conclude the facts of this case are more in line with Cradock v. Cooper, (seller bore risk of loss of defalcation because purpose of escrow was to settle cloud on title after title to property had already passed to buyer and because buyer retained no control over escrowed funds), than with the more typical case cited in the dissent, Zaremba v. Konopka, 94 N.J.Super. 300, 228 A.2d 91 (Ch.Div.1967) (buyer bore risk of loss of defalcation because purpose of escrow was to hold down payment while buyer obtained financing before title to property had passed and thus buyer still had title to escrowed finds at time of defalcation). It simply does not make sense to say the buyers had title to the escrowed funds while recognizing that the buyers also had title to the real property. Once it is determined that the seller had title to the escrowed funds at the point they were escrowed, application of the traditional rule places risk of loss caused by the defalcation of the escrow holder on the seller.
In sum, we have circumstances where "[t]he buyer[s] performed and fulfilled all the terms and conditions required of [them] by the agreement, prior to [the] embezzlement; the seller failed to perform prior to the embezzlement all the conditions required to be performed by him.... [T]his agreement was sufficiently different from the ordinary escrow agreement to make it both equitable and legal to impose this unfortunate loss upon the seller whose agent [the escrow agent] primarily was throughout the ... transaction." Paul v. Kennedy, 376 Pa. 312, 102 A.2d 158, 160 (1954).[2]
We conclude the trial court correctly found appellant (the seller) must stand the loss of the embezzled escrow fund.
Affirmed.
*1202 TERRY, Associate Judge, dissenting:
I cannot agree with the majority that, at the time of the escrow agent's defalcation, the escrowed funds were the property of the seller. As I understand the law, those funds remained the property of the buyer until the 1948 deed of trust was released, regardless of the passage of title to the realty in the underlying transaction. Because the escrow agent absconded with the money before the seller effected the release of the deed of trust, ownership of the money never left the buyer, and its loss must be borne by the buyer, not the seller. I would therefore reverse the trial court's judgment, not affirm it. Since my colleagues view the case differently, I respectfully dissent.
The relevant facts were stipulated in the trial court and are not in dispute. At settlement in October 1984 the buyers paid part of the purchase price in cash, and the seller took back a deferred purchase money note for the balance due, along with a deed of trust. There was, however, an earlier deed of trust on the property, executed in 1948, which had not been released. The parties therefore agreed that $13,500 of the purchase price should be held in escrow until a release could be obtained. The buyers deposited that amount with an escrow agent, who later disappeared with the money.[1] The sale was then completed, and the special warranty deed from the seller to the buyers was duly recorded. The deferred purchase money note was later paid in full by the buyers. It was agreed by the parties that title to the real property passed to the buyers at settlement. Thus the only question before the trial court was whether the buyers or the seller had to bear the loss of the $13,500 which had been placed in escrow.
The buyers argued that because the sales contract contained a promise by the seller to convey clear title, the seller bore the risk of loss of the escrowed funds, particularly because the seller had not acted with alacrity in securing the release of the 1948 deed of trust. The seller contended, on the contrary, that under settled law applicable to escrow accounts the risk of loss was on the buyers, who still had title to the escrowed money, and further contended that he had acted with due diligence in his efforts to secure the release of the 1948 deed of trust.
Ruling from the bench, the trial court found for the buyers, concluding that the seller bore the risk of loss because he "had within his power the release of the first deed of trust outstanding against the property, and therefore had within his power the right to demand the $13,500 from the title company, which was the dual agent of the defendant and the plaintiffs." The court later entered a judgment based on this conclusion.
After the trial, in response to the seller's motion to vacate or amend the judgment, the court issued written findings of fact and conclusions of law. The court recognized that "[t]he general rule of law in the District of Columbia is that the risk of loss caused by the defalcation of an escrow agent is placed on the party possessing title to the funds at the time the defalcation occurred." In this case, however, the court concluded that even though the buyers had title to the escrowed funds at the critical time, the seller bore the risk of loss because he had been in the best position to prevent the defalcation by meeting the conditions of the escrow, i.e., by ensuring that the 1948 deed of trust was released. In my view, this was an error of law.
It is uniformly accepted, in the District of Columbia and elsewhere, that
[a]s between a vendor and vendee, the risk of loss caused by the defalcation of an escrow holder is placed upon the party possessing title to the property involved at the time the defalcation occurs.
Lawyers Title Insurance Corp. v. Edmar Construction Co., 294 A.2d 865, 867 (D.C. *1203 1972) (citations omitted);[2]see Annotation, Who Must Bear Loss Resulting from Defaults or Peculations of Escrow Holder, 15 A.L.R. 2d 870 (1952 & 1987 Supp.). Only "when the conditions specified in the escrow agreement have been fully performed [does] title to the purchase money [pass] to the seller." Ferguson v. Caspar, 359 A.2d 17, 22 (D.C.1976); accord, Wagman v. Lee, 457 A.2d 401, 404 (D.C.), cert. denied, 464 U.S. 849, 104 S. Ct. 158, 78 L. Ed. 2d 145 (1983).
These cases make clear that the risk of loss in the case at bar fell on the party who held title to the escrowed propertythe $13,500at the time of the defalcation. Given this premise, it follows that this court should reverse the trial court's judgment. The necessary condition precedent to the seller's receiving the money held in escrow was that he demonstrate to the satisfaction of the buyers and the title company that the 1948 deed of trust was released. That was the sole reason for the creation of the escrow fund. The seller was not entitled to receive the escrowed money until after the release of that deed of trust, and even at the time of trial, by the buyers' own admission, this condition had not been met. Consequently, the seller never had title to the escrowed money, and he should not be made to bear the risk of its loss, through defalcation or otherwise.
For this reason cases such as Cradock v. Cooper, 123 So. 2d 256 (Fla.Dist.Ct.App. 1960), are inapposite. In Cradock a similar dispute arose between a buyer-depositor and a seller. The court held for the buyer because "under the circumstances of the escrow agreement the depositor would not be entitled to the return of the subject matter under any circumstances, irrespective of performance of the terms of the agreement." Id. at 258. Given that particular escrow agreement, the court held that the defalcating escrow holder was the sole agent of the seller. Id. at 258-259. In this case, however, there is no evidence of any special terms; consequently, we should treat this as "the normal escrow situation" in which "the loss falls upon the depositor" in the event of defalcation by the escrow agent. Id. at 258; see Zaremba v. Konopka, 94 N.J.Super. 300, 304-05, 228 A.2d 91, 94 (1967) (noting that Cradock applied an exception to the general rule based on the particular facts of the case).
The general rule, which I would apply here, has been stated as follows:
[I]f the escrowee absconds with the buyer's purchase money before the terms and conditions of the escrow have been performed, the loss must fall on the buyer, because at the time of the defalcation the purchase money still belongs to the buyer.... On the other hand, if the terms of the escrow have been performed and thereafter the escrowee absconds with the money, the loss falls on the seller, because after the escrow terms have been met and performed, the money on deposit belongs to the seller.
R. KRATOVIL & R. WERNER, REAL ESTATE LAW § 412, at 168 (7th ed. 1979) (citations omitted; emphasis in original); accord, 30A C.J.S. Escrows § 11, at 514 (1992).[3] Until the condition of the escrow was fulfilled, the escrow agent had "no right to surrender the deposit," Wagman v. Lee, supra, 457 A.2d at 404, and the seller had no right *1204 to the escrowed $13,500. Because title to that money was in the buyers at the time of the defalcation, the burden of its loss should fall on them.[4]
This is not an inequitable result. Even though the seller lacked clear title at settlement, the buyers freely chose to enter into the escrow agreement. Indeed, it was the buyers who selected the escrow agent that later made off with the money. Further, even though the seller may have been dilatory in fulfilling his duty to effect the release of the 1948 deed of trust, the buyers were equally lax in not holding him to that duty. They could have rescinded the contract of sale when they came to settlement and found that the seller could not deliver the property with a clear title. Instead, by entering into the escrow agreement, the buyers implicitly afforded the seller a reasonable time within which to secure the release of the 1948 deed of trust. As the time dragged on, the buyers could have served on the seller a written demand for compliance within a specified period of time and, upon noncompliance, asked for their money back or sued to obtain it. But the buyers made no such demand; rather, they chose to indulge the seller in his inaction, thereby extending sub silentio the period of reasonableness. In these circumstances, the seller appears to have been no more at fault than the buyers.
Until today, there has been no precedent in this jurisdiction for shifting the risk of loss of purchase money in escrow to the seller before the conditions of the escrow are satisfied. I think that the trial court erred in so doing and that its judgment should therefore be reversed. I would remand the case with directions to enter an appropriate judgment for the seller.
NOTES
[1] In that event, the result effectively would have been a reduction of the purchase price by $13,500. Of course, the buyers would then have had to live with, or pay off, the deed of trust themselves.
[2] This case also falls within the familiar equity principle recognized by this court that "where one of two innocent parties must suffer a loss the loss should be borne by the one whose act permitted the loss to occur." General Motors Acceptance Corp. v. Capital Discount, Inc., 165 A.2d 779, 781 (D.C.1960). Here, the failure of the seller to perform a condition of the contract caused the escrow arrangement to occur, and the loss followed.
[1] The corporate escrow agent, United Title and Escrow Company, was no longer in existence at the time of trial. From the record it appears that appellant Stuart had a newspaper article showing "that one of the principals of that company has, in fact, gone to jail as a result of fraud in connection with certain real estate settlement monies that he held improperly."
[2] After stating the general rule applicable to escrow defalcation cases, the court in Lawyers Title, supra, concluded that it did not apply on the particular facts presented "as [this] is not a suit between buyer and seller." 294 A.2d at 867. It then went on to decide the case on other grounds. In the case at bar, of course, "a suit between buyer[s] and seller" is exactly what we have before us, so that the rule stated in Lawyers Title (and elsewhere) is not only applicable but, in my view, controlling.
[3] An example given in the cited section of C.J.S. fits this case precisely:
As between a vendor and purchaser, if property or money deposited by the purchaser is either lost or embezzled by the escrow holder, the loss falls on the one who owned the property or money at the time of its loss or embezzlement. If the escrow holder embezzles the purchase price before the time when, under the terms of the escrow, the vendor is entitled to it, the loss falls on the purchaser; but if the money is embezzled after the time when the vendor has become entitled to it, the loss falls on him.
[Footnotes omitted; emphasis added.]
[4] At trial, when the matter of the unreleased deed of trust first came up, the seller initially told the court, "I was not aware of it at the time of settlement...." In a later discussion with the court, however, the seller acknowledged that he had known about the deed of trust since he purchased the property in 1979. Because, in my view, the applicable law governing defalcation by escrow agents is clear, it does not matter when the seller first learned of the cloud on the title. Even assuming that the seller knew about the unreleased deed of trust for years before the settlement date, the dispositive fact here is not the seller's knowledge but the buyers' ownership of the escrowed funds. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265077/ | 6 F. Supp. 953 (1934)
MUTUAL LIFE INS. CO. OF NEW YORK
v.
STROEHMANN et al.
No. 973.
District Court, M. D. Pennsylvania.
May 17, 1934.
*954 O'Malley, Hill, Harris & Harris, of Scranton, Pa., for plaintiff.
Snyder, Miller, Hull & Hull and Carl B. Shelley, all of Harrisburg, Pa., for defendants.
WATSON, District Judge.
The Mutual Life Insurance Company of New York, on October 11, 1932, filed a bill in equity against Carl F. Stroehmann and Lycoming Trust Company, trustee, to reform three policies of insurance issued by it on the life of Carl F. Stroehmann. One policy is No. 2,646,105, for the face amount of $5,000, and is dated September 20, 1919. This policy I shall refer to as policy No. 1. Another policy is No. 2,677,078, for the face amount of $5,000, and is dated December 9, 1919. This policy I shall refer to as policy No. 2. The other policy is No. 4,361,192, for the face amount of $40,000, and is dated June 30, 1930. This policy I shall refer to as policy No. 3. It is alleged in the bill that the said Carl F. Stroehmann made false answers to the questions of the medical examiners as to his physical condition at the time of his examinations, and that the plaintiff issued the policies on the strength of these answers. Copies of the policies are attached to the bill of complaint. Each policy provides that the Mutual Life Insurance Company of New York will pay the face amount at the death of the insured, and double that amount if the insured's death is accidental. Each policy also provides for the payment of a monthly income to the insured in case of total and permanent disability of the insured, and for the waiver of payment of premiums in case of the permanent disability of the insured. Policies Nos. 1 and 2 contain the following provisions as to incontestability: "This Policy shall be incontestable after two years from its date of issue except for non-payment of premiums." Policy No. 3 contains the following provision as to incontestability: "Except for non-payment of premiums and except for the restrictions and provisions applying to the Double Indemnity and Disability Benefits as provided in sections 1 and 3 respectively, this Policy shall be incontestable after one year from its date of issue unless the Insured dies in such year, in which event it shall be incontestable after two years from its date of issue." The relief prayed for is the rescission and cancellation of the provision for disability benefits in the policies, and the restraining of the defendants from bringing any action at law, or otherwise, upon the policies for the payment of disability benefits until the hearing in this case and the final decree therein.
The defendants moved the court to dismiss the bill of complaint for the following reasons:
"1. The bill of complaint shows upon its face that Carl F. Stroehmann, the insured named in the policies of insurance pleaded therein, has made demand upon the plaintiff for the payment of disability benefits, and, unless restrained will bring an action at law upon said policies to recover the same. By defense to such action the plaintiff has a full, complete and adequate remedy at law for all of the matters complained of in its bill of complaint.
"2. The bill of complaint shows upon its face that the plaintiff has no cause of action against the defendants."
The questions, therefore, for the court, are: First, whether the bill of complaint *955 shows that the plaintiff has a cause of action against the defendants; and, second, whether the plaintiff has a full, complete, and adequate remedy at law for all the matters complained of in the bill of complaint.
I shall consider the questions in the order stated.
The question as to whether the bill of complaint shows that the plaintiff has a cause of action against the defendants should, in my opinion, be answered in the affirmative. It is urged by the defendants that the words in the incontestable clause in policy No. 3 do not exclude from the incontestable clause the obligation to pay disability benefits but relate only to the particular limitations and provisions contained in sections 1 and 3 of the policy; that they were inserted to assure to the company the right to insist upon those limitations and provisions after the contestable period had expired; and that they were not intended to permit any contest of the obligation to pay on the ground of fraud after the expiration of the contestable period. In Mutual Life Insurance Co. v. McConnell et ux., 20 D. & C. (Pa.) 250, the same question arose on exactly the same incontestable clause. There the court said: "The question for consideration of the court is whether the incontestability clauses in these policies preclude the insurer from avoiding the disability benefits on account of fraud if more than 1 year has expired since the policies were issued. It is clear that the policies are incontestable after 1 year from the date of issue, except for `the restrictions and provisions applying to the double indemnity and disability benefits as provided in sections 1 and 3, respectively.'
"Section 3 is entitled: `Benefits in event of total and permanent disability before age of 60.' It would appear, therefore, that the incontestability clauses do not apply to the disability benefits, and the action here seeks only the cancellation of the disability provisions. The defendants, however, contend that the incontestability clauses in the policies bar the suit of the plaintiff, notwithstanding the exceptions of section 3 relative to the disability cases. It is contended that the purpose of the clause in the policy is to preclude defenses to the policy after 1 year unless the defense is nonpayment of premium, or one of the defenses incident to double indemnity or disability necessary to protect the company from injustice, which defenses are all suggested in sections 1 and 3 of the policy. It is argued that the plaintiff company cannot now go back to the inception of the policy and allege fraud on the part of the insured in answering the questions set forth in the application.
"It is true the alleged fraud goes back to the obtaining of the policy, but why should that interfere with the operation of the exception as to disability? We have had very few cases cited by counsel relative to the question before the court, but we have given careful examination to these and made further investigation as to the law on the subject. We are of the opinion that it was the intent of the contracts to exempt from their incontestability clauses its operation in the disability provision. In other words, the incontestability clauses do not apply to the disability benefits, and the action now before the court seeking only the cancellation of the disability provisions is therefore brought in time."
In Connecticut General Life Insurance Co. v. Jos. F. Brandstein, 233 A.D. 723, 249 N. Y. S. 1018, the same questions were raised as are raised here. The incontestable clauses in the policies were as follows: "Incontestability. This policy shall be incontestable after it shall have been in force during the lifetime of the Insured for two years from its date except for non payment of premiums and except as to provisions and conditions relating to benefits in the event of total and permanent disability and those granting additional insurance specifically against death by accident; but if the age of the insured be misstated, the liability of the Company shall be the amount of insurance which the premium would have purchased at the correct age." The defendants moved to dismiss the bill of complaint on the ground that on its face it did not state facts sufficient to constitute a cause of action. The decision held that a bill of complaint to cancel the disability clauses in the insurance policy was not barred by the fact that more than two years had expired since the date of the policy inasmuch as the disability clauses were excepted from the incontestability clauses.
In a very recent case, New York Life Insurance Co. v. Davis et al., District Court, Western District of Pennsylvania, 5 F. Supp. 316, 319, Judge Schoonmaker, in the opinion, said:
"The three policies of insurance involved in this suit would have been voidable in their entirety for fraud by reason of false answers by the insured to questions in the medical part of his application for insurance, but for the incontestable clause contained in each policy.
*956 "This clause is as follows:
"`This policy shall be incontestable after two years from its date of issue, except for non-payment of premium and except as to provisions and conditions relating to disability and double indemnity benefits.'
"The plaintiff contends that by reason of this clause, it has expressly reserved to itself the right to contest this policy in so far as the provisions and conditions therein contained relating to disability and double indemnity benefits. The defendant, on the other hand, contends that the policies in their entirety are incontestable on account of this clause.
"Our view is that this clause expressly reserves to the insurance company the right to contest its liability for disability and double indemnity benefits accruing under the policy. No other ruling would give effect to the agreement of the parties. After two years, the regular life insurance liability of the company may not be contested, but the disability and double indemnity provisions always remain open to contest. There is no difficulty in canceling the insurance contract as to the two items, and leaving it in force as to the regular life insurance factors."
In my opinion, the bill of complaint shows that the plaintiff has a cause of action against the defendants.
The remaining question is, whether the plaintiff has a full, complete, and adequate remedy at law for all matters complained of in the bill of complaint.
The general rule is that equity will not ordinarily take jurisdiction of a suit for cancellation of a policy of insurance for fraud in its procurement, for the reason that the insurance company has an adequate remedy at law in its right to defend on the ground of fraud in an action instituted on the policies. Brown v. Pacific Mutual Life Insurance Co. (C. C. A.) 62 F.(2d) 711, 712, and many cases there cited. And it has been held in a number of cases that, except for the presence of the incontestable clause in the policy, a court of equity would not have the right to assume and try the issue whether the policy was fraudulently procured. New York Life Insurance Co. v. Seymour (C. C. A.) 45 F.(2d) 47, 73 A. L. R. 1523; Phnix Mutual Life Insurance Co. v. Bailey, 13 Wall. 616, 20 L. Ed. 501; and Cable v. United States Life Ins. Co., 191 U.S. 288, 24 S. Ct. 74, 48 L. Ed. 188. In the case at bar, policy No. 3 contains no incontestable provision which applies to the disability benefits. Mutual Life Insurance Co. of N. Y. v. McConnell et ux., supra.
In those cases where the courts have held that a court of equity is without jurisdiction of a suit for cancellation of a policy of insurance for fraud in its procurement, the policies have been policies of life insurance. In the case at bar, the plaintiff is not seeking the cancellation of the life insurance policies, but the cancellation of the disability provisions only. Policies Nos. 1, 2, and 3 each contain two separate contracts, one of life insurance, and the other of indemnity against total and permanent physical disability and for double indemnity. Penn Mutual Life Ins. Co. v. Hartle et al., 165 Md. 120, 166 A. 614. On life insurance policies procured by fraud, there is but one cause of action, for a person dies but once. Disability policies procured by false representations and fraud create a continuous liability. It must be clear that the relief sought could not be obtained by defending an action instituted at law for recovery under the disability features of the policies, for an action at law might terminate in such a way as not to decide the issue of fraud. In Brown v. Pacific Mutual Life Insurance Co., supra, in which there was a motion to dismiss the suit similar to the motion in this case, the court said: "In the case at bar, the insured is living and there is consequently no possible way in which complainant can secure the full relief to which it is entitled except in equity. It is argued that relief might be obtained at law by defending the action instituted for recovery under the disability feature of the policy. But it is clear that this remedy would not be full, complete, or adequate. In the first place, the action at law might be terminated in such a way as not to decide the issue of fraud at all and in the meantime the policy might have become incontestable. In the second place, the judgment in that action would not be binding upon the beneficiary. See New York Life Ins. Co. v. Halpern (D. C.) 47 F.(2d) 935, 936. In addition to this, it is well settled that equity jurisdiction existing at the commencement of the suit is not lost because after the filing of the bill an adequate legal remedy has become available. Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 296, 41 S. Ct. 272, 65 L. Ed. 638; N. Y. Life Ins. Co. v. Seymour, supra. We think that both on reason and authority, therefore, the jurisdiction of equity in a case such as this is thoroughly established."
I conclude, therefore, that the plaintiff does not have a full, complete, and adequate remedy at law for all of the matters complained of in the bill of complaint.
*957 The questions raised as to policies Nos. 1 and 2 have not been discussed in this opinion, but the bill certainly presents a case for relief, and it is well settled that a bill will not be dismissed if it presents a case for relief. U. S. v. Railway Employes' Department, American Federation of Labor et al. (D. C.) 286 F. 228; Ralston Steel Car Co. v. National Dump Car Co. (D. C.) 222 F. 590.
Defendants' motion to dismiss is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265081/ | 131 N.J. 375 (1993)
619 A.2d 1312
ALFONSO JURADO, PLAINTIFF-RESPONDENT, AND MARLENE JURADO, HIS WIFE, PLAINTIFF,
v.
WESTERN GEAR WORKS, ORVILLE DUTRO AND SONS, BUCYRUS-ERIE CORPORATION, JOHN DOE, RICHARD ROE, ABC CORPORATION, AND XYZ CORPORATION, SAID NAMES BEING FICTITIOUS, DEFENDANTS, AND WESTERN GEAR CORPORATION AND BUCYRUS-ERIE COMPANY, DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued October 14, 1992.
Decided March 3, 1993.
*378 M. Christie Wise argued the cause for appellants (Bumgardner, Hardin & Ellis, attorneys; George R. Hardin, of counsel; Ms. Wise and Edward M. Suarez, Jr., on the briefs).
*379 Amy Lynn Fenno argued the cause for respondent (Fost and Muscio, attorneys).
The opinion of the Court was delivered by POLLOCK, J.
Our focus is on the meaning of "misuse" as that term is used in a strict-liability design-defect products-liability case. See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348, 354-55 (1985) (suggesting various definitions of "misuse"). In the present case, the problem arises from confusion inherent in Model Civil Charge 5.34I pertaining to product misuse. The trial court relied on that charge, which confuses the purpose for which a product is used with the manner of using it, in submitting special interrogatories to the jury. Those interrogatories apparently misled the jury about the meaning of "misuse."
Before submitting the case to the jury, the court reserved decision on a motion for a directed verdict by plaintiff Alfonso Jurado. After the jury returned a verdict for defendants Western Gear Corporation and Bucyrus-Erie Company, the court granted Jurado's motion for a judgment notwithstanding the verdict. The Appellate Division affirmed the judgment on liability in Jurado's favor and remanded to the Law Division for a trial on damages only. 253 N.J. Super. 263, 601 A.2d 748 (1992).
We granted certification, 130 N.J. 7, 611 A.2d 647 (1992). We now reverse that part of the Appellate Division's judgment that affirmed the judgment on liability and remand the matter to the Law Division for a trial on both liability and damages.
-I-
Jurado, an employee of N & W Printing, injured his right hand when it became caught in an "in-running nip point" located between a rotating cylinder and a support bar underneath a collating machine. The machine, which was designed to *380 collate and assemble business forms, was manufactured and distributed by defendants.
During the collating process, excess paper salvage would enter a vacuum tube beneath the machine. Frequently, the paper would build up at the mouth of the tube, forcing the operator to clear it by hand. The tube was located near the rotating cylinder underneath the collator.
On the date of the accident, Jurado reduced the speed of the machine and tried to clear salvage that was blocking the vacuum tube. As he crouched and reached under the collator with his left hand, he lost his balance and tried with his right hand to prevent himself from falling. Jurado's right hand was injured when it was drawn into the in-running nip point. He claimed that he had not turned off the collator before attempting to unclog the vacuum tube because his employer had warned that the interruption would confuse the collating sequence. N & W Printing disputes this claim. Before trial, plaintiff Marlene Jurado abandoned her claim for loss of consortium. The trial proceeded on Jurado's personal-injury claim.
Jurado's expert witness, Gerald Weiner, a mechanical engineer, testified that the collator did not conform to proper design standards because of the absence of a guard on the in-running nip point. Weiner stated that at the time the collator was manufactured, defendants easily and inexpensively could have installed a sheet-metal fixed-barrier guard around the nip point. According to Weiner, the guard would not have affected the function of the machine and could have been installed for as little as $40 to $50 per unit.
He testified that since 1948 design engineers have recognized the potential danger posed by nip points. Defendants should have known, according to Weiner, that salvage would obstruct the mouth of the vacuum, and that an operator of the machine ultimately would have to clear the vacuum manually. In addition, he claimed that production engineers know that employees will typically take "shortcuts" to increase their productivity. *381 Thus, according to Weiner, a machine designer should have taken precautionary steps to prevent accidents that may result from such foreseeable shortcuts by employees.
He also noted that the area of the machine containing the in-running nip point was not "guarded by its location." He defined a guarded location as one either located more than eight feet off the floor or that could not be reached without removing a part of the machine. Weiner intimated that defendants had indirectly acknowledged that the location of the nip point did not constitute a guard because defendants had placed fixed-barrier guards over other nip points in the same area of the collator. He concluded that the in-running nip point was a foreseeable hazard and that defendants had avoided the use of well-known inexpensive methods of installing a guard.
Defendants' expert, Edward Schwalje, a mechanical engineer, asserted that the existence of the nip point did not require the installation of a sheet-metal guard. In his opinion, the nip point was already guarded by its location. Schwalje said that the location served as a guard because Jurado would not have placed his hands in the nip point during the normal course of operating the machine. He pointed out that Jurado had to squat and reach under the machine to touch the nip point, which was twenty-eight inches off the ground.
Schwalje acknowledged that the gears near the location of the injury were properly covered with fixed guards. He stated, however, that the collator had numerous moving parts that created nip points that were potentially dangerous if the operator "tamper[ed]" with the collator while it was in operation. According to Schwalje, the collator was not designed to be adjusted or repaired while in operation. Further, in the case of "salvage jams," the machine was designed to be stopped and cleaned while in "static condition." He concluded that the machine was "safe for use as intended" and met the design standards for safety when it was manufactured and distributed by defendants in the early-to-mid-1960s.
*382 Finally, Schwalje testified that he did not know whether defendants had reasonably anticipated when they had manufactured and distributed the machine that salvage would build up at the mouth of the vacuum tube. He stated, however, that similarly-designed collators occasionally jam because of excess salvage.
At the close of the entire case, Jurado moved for a directed verdict. He asserted that Schwalje's testimony constituted a "net opinion" and that "reasonable minds could not differ" on the outcome in favor of Jurado. After reserving decision, the court charged the jury, instructing it to reach a verdict on damages even if it found for defendants on liability. Relying on Model Civil Jury Charge 5.34I, the court instructed the jury to answer four special interrogatories. The interrogatories and the jury's answers are:
1. Was the product as designed, manufactured or sold defective, in that it was not reasonably safe for its intended or reasonably foreseeable uses? No.
2. Did the defect exist when the product left the hands and control of the defendant? No.
3. At the time of the accident was the product being used for an intended or reasonably foreseeable purpose, that is, that it was not being misused or had not been substantially altered in a way that was not reasonably foreseeable? Yes.
4. Was the defect in the product a proximate cause of the accident? No.
The jury returned a verdict in favor of defendants on liability and awarded Jurado hypothetical damages of $65,000.
In his motion for a judgment notwithstanding the verdict, Jurado argued that the jury's answers to the special interrogatories were inconsistent with the evidence presented at trial. The court granted that motion, but denied Jurado's subsequent motion for additur or a new trial on damages. It then entered a verdict in favor of Jurado for $92,514.18 (the $65,000 award plus prejudgment interest).
The Appellate Division affirmed the judgment on liability, but reversed the denial of a new trial on damages. It found that the affirmative answer to interrogatory three constituted a rejection of the defense expert's testimony and therefore left *383 the opinion of Jurado's expert uncontradicted. 253 N.J. Super. at 271-72, 601 A.2d 748. The court interpreted the jury's response to the third interrogatory as a finding that "plaintiff's use of the machine was reasonably foreseeable, and it was not being misused at the time of the accident." Id. at 271, 601 A.2d 748. This, according to the court, constituted a denial of the plausibility of the defense expert's theory that the nip point was guarded by its location. Ibid. Thus, the court found that the judgment notwithstanding the verdict was warranted. We have a different view.
-II-
We cannot tell whether the jury simply concluded that Jurado was using the collator for its intended purpose, as the trial court apparently believed, or that Jurado was not misusing the machine, as the Appellate Division believed. See ibid. In fairness to the lower courts, some confusion inheres in Model Civil Jury Charge 5.34I. That charge states in relevant part:
If you find that the plaintiff has shown by the preponderance of the credible evidence that (1) the product as designed, manufactured or sold was defective, in that it was not reasonably safe for its intended or reasonably foreseeable uses, (2) the defect existed when the product left the hands and control of the defendant, (3) that at the time of the accident the product was being used for an intended or reasonably foreseeable purpose, that is, that it was not being misused or had not been substantially altered in a way that was not reasonably foreseeable,... and (5) that the defect in the product was a proximate cause of the accident, then you must find for the plaintiff. If plaintiff has failed to establish any one of the just mentioned elements, then you must find for defendant.
Initially, subparagraph 3 of Model Civil Jury Charge 5.34I leads a jury to believe that the focus of the question is the purpose for which the product was used. The charge, however, proceeds to define "use for an intended or reasonably foreseeable purpose" in terms of whether the product was "misused" or "substantially altered." Thus, the charge could be understood to define misuse solely in terms of the purpose for which the collator was being used without mentioning the manner of use.
*384 As read by the Appellate Division, the answer to the third interrogatory, which was based on subparagraph three, confuses the purpose for which a product is used with the manner in which it is used. If the jury found in answering interrogatory three that Jurado was using the collator for its intended purpose, that finding would constitute only a partial resolution of the issue of misuse. The Appellate Division assumed that the jury's response necessarily found not only that the product was being used for a reasonably foreseeable purpose, but also that Jurado's manner of use was reasonably foreseeable.
-A-
Jurado instituted this action on October 4, 1985, before the effective date of the Products Liability Act (the Act), N.J.S.A. 2A:58C-1 to -7. Consequently, the Act does not apply to Jurado's accident. See L. 1987, c. 197, § 8. The Legislature, moreover, did not intend that the Act codify all issues of product liability law. Senate Judiciary Committee Statement, L. 1987, c. 197. For instance, the Act does not specifically address product misuse. It states only that a manufacturer may be held liable "if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose...." N.J.S.A. 2A:58C-2.
Nor did the Legislature intend that the Act would effect a doctrinal change in the common law. Fabian v. Minster Mach. Co., 258 N.J. Super. 261, 273, 609 A.2d 487 (App.Div.) (citing Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94-95, 577 A.2d 1239 (1990)), certif. denied, 130 N.J. 598, 617 A.2d 1220 (1992). The Act generally "leaves unchanged the ... theories under which a manufacturer ... may be held strictly liable for harm caused by a product...." Dewey, supra, 121 N.J. at 94, 577 A.2d 1239. The Legislature intended that the common law should fill the interstices left by the terms of the Act. Senate Judiciary Committee Statement, L.1987, c. 197; see also *385 William A. Dreier, Analysis: 1987 Products Liability Act, 41 Rutgers L.Rev. 1279 (1989) (stating that the Legislature did not intend to supersede prior statutory or common law consistent with the Act). To fill those interstices, we turn to the common law.
Generally, to succeed under a strict-liability design-defect theory, a plaintiff must prove that (1) the product was defective; (2) the defect existed when the product left the hands of the defendant; and (3) the defect caused the injury to a reasonably foreseeable user. O'Brien v. Muskin Corp., 94 N.J. 169, 179, 463 A.2d 298 (1983). Because this case involves a design defect, as distinguished from a manufacturing defect, plaintiff must show specifically that the product "`is not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes....'" Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394, 451 A.2d 179 (1982) (quoting Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 169, 406 A.2d 140 (1979)).
The decision whether a product is defective because it is "not reasonably fit, suitable and safe" for its intended purposes reflects a policy judgment under a risk-utility analysis. O'Brien, supra, 94 N.J. at 181, 463 A.2d 298. That analysis seeks to determine whether a particular product creates a risk of harm that outweighs its usefulness. Ibid. Risk-utility analysis is especially appropriate when a product may function satisfactorily under one set of circumstances and yet, because of a possible design defect, present an unreasonable risk of injury to the user in other situations. Id. at 181-82, 463 A.2d 298.
Under a risk-utility analysis, a defendant may still be liable when a plaintiff misused the product, if the misuse was objectively foreseeable. Johansen v. Makita USA, Inc., 128 N.J. 86, 95, 607 A.2d 637 (1992) (citing Cepeda v. Cumberland Eng'g Co., 76 N.J. 152, 177-78, 386 A.2d 816 (1978), overruled on other grounds by Suter, supra, 81 N.J. 150, 406 A.2d 140). *386 The concept of foreseeable misuse extends to cases in which a product has been substantially altered from its original design. Brown v. United States Stove Co., 98 N.J. 155, 168-69, 484 A.2d 1234 (1984); Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 151, 484 A.2d 1225 (1984). Hence, the plaintiff in a design-defect products-liability suit may succeed even if the product was misused, as long as the misuse or alteration was objectively foreseeable. Soler, supra, 98 N.J. at 151, 484 A.2d 1225; Suter, supra, 81 N.J. at 159, 406 A.2d 140; Cepeda, supra, 76 N.J. at 177-78, 386 A.2d 816.
The absence of misuse is part of the plaintiff's case. Misuse is not an affirmative defense. Cepeda, supra, 76 N.J. at 177, 386 A.2d 816. Thus, the plaintiff has the burden of showing that there was no misuse or that the misuse was objectively foreseeable. Johansen, supra, 128 N.J. at 95-96, 607 A.2d 637; Brown, supra, 98 N.J. at 169, 484 A.2d 1234. So, for example, when a derrick operator injured his thumb while grabbing an overhead chain, he bore the burden of proving the foreseeability of his misuse. Beatty v. Schramm, Inc., 188 N.J. Super. 587, 591, 458 A.2d 127 (App.Div. 1983).
Essentially, product misuse contemplates two kinds of conduct. One is the use of a product for an improper purpose. "If, for instance, a plaintiff undertakes to use his power saw as a nail clipper and thereby snips his digits, he will not be heard to complain...." Suter, supra, 81 N.J. at 194, 406 A.2d 140 (Clifford, J., concurring). For a plaintiff to recover, the purpose for which the product is used at the time of the accident must be objectively foreseeable. When a plaintiff is injured while using the product for a purpose that is not objectively foreseeable, the injury does not establish that the product is defective.
The other kind of misuse concerns the manner in which the plaintiff used the product. When, for example, the operator of a high-lift forklift is injured while using the forklift on steep, instead of level, terrain, the emphasis should be on the *387 manner, not the purpose, of the misuse. Barker v. Lull Eng'g Co., 20 Cal.3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978). As comment h of Restatement (Second) of Torts § 402A states: "A product is not in a defective condition when it is safe for normal handling or consumption."
Commentators have accepted the definition of misuse in terms of purpose and manner. See Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, The Law of Torts § 28.6 at 364-69 (2d ed. 1986); William A. Landes and Richard A. Posner, A Positive Economic Analysis of Products Liability, 14 J.Legal Studies 535, 561 (Dec. 1985); William L. Prosser, The Law of Torts § 102 at 668-69 (4th ed. 1971). So have courts in other states. See, e.g., Kavanaugh v. Kavanaugh, 131 Ariz. 344, 348, 641 P.2d 258, 262 (1982); Simpson v. Standard Container Co., 72 Md. App. 199, 527 A.2d 1337, 1341 (1987); Crown Controls Corp. v. Corella, 98 Nev. 35, 639 P.2d 555, 556 (1982). We, too, find the definition to be helpful.
Product misuse theoretically could relate to the existence of a defect, the issue of causation, or that of comparative fault. See James A. Henderson, Jr. and Aaron D. Twerski, Products Liability Problems and Process 669 (2d ed. 1992). In a work-place setting, when, because of a design defect, an employee is injured while using a machine in a reasonably foreseeable manner, the employee's comparative fault is irrelevant. Rivera v. Westinghouse Elevator Co., 107 N.J. 256, 260, 526 A.2d 705 (1987); Green v. Sterling Extruder Corp., 95 N.J. 263, 264, 471 A.2d 15 (1984); Suter, supra, 81 N.J. at 177, 406 A.2d 140.
To the extent that misuse relates to the duty to design a safe product, "a manufacturer has a duty to make sure that its manufactured products placed into the stream of commerce are suitably safe when properly used for their intended or reasonably foreseeable purposes." Brown, supra, 98 N.J. at 165, 484 A.2d 1234 (citing Soler, supra, 98 N.J. at 144-45, 484 A.2d 1225; Suter, supra, 81 N.J. at 169, 406 A.2d 140); *388 see also Victor E. Schwartz, Strict Liability and Comparative Negligence, 42 Tenn.L.Rev. 171, 172 (1974) ("[when] a user makes an unforeseeable misuse of a product, the supplier has breached no duty to the user."). When someone is injured while using a product for an unforeseeable purpose or in an unforeseeable manner, the misuse sheds no light on whether the product is defective, because a manufacturer is not under a duty to protect against unforeseeable misuses. Suter, supra, 81 N.J. at 159, 406 A.2d 140. A manufacturer, however, has a duty to prevent an injury caused by the foreseeable misuse of its product.
If the jury concludes that the product is defective, it must then determine whether the misuse proximately caused the injury. See, e.g., Brown, supra, 98 N.J. at 171, 484 A.2d 1234. Even if a defect is a contributing or concurring cause, but not the sole cause, of an accident, the manufacturer will be liable. Brown, supra, 98 N.J. at 171, 484 A.2d 1234. For example, if, in the present case, the accident had happened when a co-employee negligently or playfully bumped plaintiff while he crouched in front of the collator, the manufacturer could be found liable notwithstanding the untoward conduct of the co-employee. In that situation, the jury should consider whether the absence of the guard was the proximate, contributing, or concurring cause of the injury.
In some situations, however, the issue of proximate cause is predetermined by the finding that the product is defective solely because of the manufacturer's failure to protect against a foreseeable misuse. As Professor Aaron D. Twerski explains:
If a court determines that a design defect exists [solely] because the manufacturer has failed to include [] safety devices, there is no proximate cause question of any moment left to consider. The very reason for declaring the design defective was to prevent this kind of foreseeable misuse. Proximate cause could not, in such a case, present an obstacle on the grounds of misuse. To do so would negate the very reason for declaring the design defective in the first instance.
*389 [The Many Faces of Misuse: An Inquiry Into the Emerging Doctrine of Comparative Causation, 29 Mercer L.Rev. 403, 421 (1978).]
In sum, when misuse is an issue in a design-defect case, the jury should first determine whether the plaintiff used the product for an objectively foreseeable purpose. If the jury finds that the plaintiff's purpose was not foreseeable, the defendant did not breach any duty owed to the plaintiff. If, however, the jury finds that the plaintiff's purpose was foreseeable, it must then decide whether the product was defective.
Under the risk-utility analysis, the jury must then determine whether the plaintiff used the product in an objectively foreseeable manner. The effect of a finding that the plaintiff did not so use the product, like a determination that the product was not used for a foreseeable purpose, is that the jury will have found that the defendant did not breach any duty owed to the plaintiff. If, however, the jury finds that the plaintiff used the product in an objectively foreseeable manner, it should then evaluate the product's utility. See Brown, supra, 98 N.J. at 170, 484 A.2d 1234. That evaluation entails the determination whether the defendant feasibly could have modified the product's design to prevent the injury or whether that modification would have either unreasonably impaired the utility of the product or excessively increased its cost. Ibid.
If the jury finds that the product is defective, it must then decide whether the misuse proximately caused the injury. In cases in which the product is defective solely because of a foreseeable misuse, the determination of defect predetermines the issue of proximate cause. In other cases, however, where a product is defective for reasons other than the particular misuse, the jury must separately determine proximate cause.
Here, the jury found that the product was not defective as designed, that it was reasonably safe for its intended or reasonably foreseeable uses, that it was not defective when it left defendants' hands, and that it was not a proximate cause of the accident. It also found that at the time of the accident, the *390 product was being used for an intended or reasonably foreseeable purpose in that "it was not being misused or had not been substantially altered in any way that was not reasonably foreseeable." The Appellate Division concluded that the jury had found that Jurado had used the machine in a foreseeable manner and that the jury's finding was a rejection of the defense expert's theory that "the in-running nip point was guarded by reason of its location...." 253 N.J. Super. at 271, 601 A.2d 748. Special interrogatory number three, the jury's answer to which was the predicate for that conclusion, however, does not mention the word "manner." Instead, the interrogatory focuses on the purpose for which the product was being used at the time of the accident.
Consequently, the Appellate Division should not have assumed that the jury had decided the issue of misuse based on the manner in which Jurado had used the collator. In particular, the Appellate Division states: "The jury found that plaintiff had to put his hand into the nip point area during foreseeable operation." Ibid. In effect, the Appellate Division defined away the alternative that the jury found only that the machine had been used for its intended purpose. The inconsistency in the jury's findings requires a retrial on liability as well as damages.
The record suggests that if on retrial the jury determines that plaintiff's misuse was objectively foreseeable, that determination will predetermine that the defect was the proximate cause of the accident. If so, the trial court should instruct the jury that its determination of the existence of a defect will have that further effect.
The Appellate Division, after concluding that the jury must have determined that Jurado had not used the collator in an improper manner, implicitly concluded further that the jury must have determined that the defect was the proximate cause of the accident. As previously stated, however, we cannot ascertain whether the jury found that plaintiff had used the *391 collator in an improper manner or for an improper purpose. Contrary to the Appellate Division's implicit conclusion, moreover, the jury explicitly found that the defect was not the proximate cause of the accident. Given our concern about the possible inconsistency of the jury's finding on the existence of a defect and the implications of that finding for the issue of proximate cause, we believe that the interests of justice are better served by a retrial.
The judgment of the Appellate Division on liability is reversed, and the matter is remanded to the Law Division for a trial on both liability and damages.
CLIFFORD, J., dissenting.
When in a querulous mood, our colleagues at the trial bench sometimes grumble that while trial judges devote their energies to the pursuit of justice, appellate judges spend their time hunched over the record, pawing through it in an unrelenting search for error. One might find support for that dyspeptic observation in today's decision to remand this case for a new trial, given the fact that the jurors rendered a verdict after a charge that, although not squeaky clean, nevertheless fairly put the single critical issue to them in simple, comprehensible terms: was defendants' product as designed, manufactured, or sold defective in that it was not reasonably safe for its intended or reasonably foreseeable uses? Answer: No.
That question and answer should have been the end of the case. In theory, there was no need for the jury to address questions two, three, and four. We have seen many other jury verdict forms in product-liability failure-to-warn cases that state that if the jury finds no defect, it should cease deliberations and return a verdict for defendant. Viewed in that way, the jury's answers to questions two through four become irrelevant, and the sole focus of appellate inquiry becomes whether a reasonable jury could have concluded that the product was not defective.
*392 Whatever shortcomings infect the current Model Civil Jury Charge, no one can be confused by the charge's definition of "defective" as "not reasonably safe for its intended or reasonably foreseeable uses." That is plain English, and I am willing to assume that the jury understood it, understood the evidence, understood what the plaintiff had done with the machine, and understood how plaintiff had been injured. To my way of thinking we go at the problem backwards if we surmise that the jury's answer to interrogatory number three informed, and rendered unacceptable, its answer to interrogatory number one.
With remarkable precision and impeccable clarity the Court lays out the principles of law that henceforth will govern this kind of case. The Court has come up with a better jury charge than the Model Charge, and I enthusiastically endorse the new, improved version. However, I do not perceive that the jury instructions in this case were so wide of the mark as to require yet another court event. The first trial was fair, albeit not pristine, and the result was hardly an unjust one.
I would reverse and remand to the Law Division for entry there of a judgment based on the jury's verdict.
For reversal and remandment Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 6.
Dissenting Justice CLIFFORD 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265087/ | 261 N.J. Super. 495 (1993)
619 A.2d 592
AYR COMPOSITION, INC., PLAINTIFF-APPELLANT,
v.
FRED ROSENBERG, TOM MARGUCCIO DEFENDANTS-RESPONDENTS CROSS-APPELLANTS, AND CHERENSON, CARROLL & HOLZER, A CORPORATION OF THE STATE OF NEW JERSEY TRADING UNDER THE FICTITIOUS NAME OF THE CHERENSON GROUP, DEFENDANTS.
Superior Court of New Jersey, Appellate Division.
Argued December 8, 1992.
Decided January 8, 1993.
*498 Before Judges DREIER and SKILLMAN.
Antonio Inacio argued the cause for appellant (Mr. Inacio, on the brief).
Dore R. Beinhaker argued the cause for respondents-cross-appellants (Gulkin & Beinhaker, attorneys; Alexander J. Graziano, on the brief).
The opinion of the court was delivered by DREIER, J.A.D.
Plaintiff, AYR Composition, Inc. (AYR), appeals from a judgment in its favor in the Superior Court of New Jersey, Law Division, Union County, which limited damages to commissions earned by defendants Rosenberg and Marguccio on accounts transferred to Cherenson, Carroll & Holzer, a corporation (Cherenson). Plaintiff seeks modification of the trial judge's award of damages to state a fixed sum to be recoverable personally against defendants Rosenberg and Marguccio. Defendants Rosenberg and Marguccio cross-appeal from the trial judge's entire order granting the summary judgment against them.
On November 22, 1989, plaintiff filed a separate complaint against Rosenberg/Marguccio, Inc. (R/M) for collection of sums due and owing to AYR. Plaintiff recovered final judgment by default on January 24, 1990 in the amount of $60,160.70 plus costs of $129.90. Post-judgment execution left a *499 balance due of over $70,000.00 on the judgment, including post-judgment interest.
On July 23, 1990, plaintiff instituted the current action against Rosenberg, Marguccio and Cherenson, alleging violation of the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 et seq. Plaintiff also claimed the right to pierce the corporate veil and obtain judgments against defendants Rosenberg and Marguccio for the amount of the judgment obtained against R/M.
Cherenson was dismissed with prejudice from the action on June 26, 1991, whereupon plaintiff filed its second motion for summary judgment against the remaining defendants, Rosenberg and Marguccio. The judge granted AYR's motion, but limited plaintiff's damages to the amount of commissions earned by Rosenberg and Marguccio on the accounts which they brought to Cherenson. Plaintiff appeals from this limitation.
Plaintiff, AYR, is a New Jersey corporation engaged in the business of typesetting. Defendants Rosenberg and Marguccio are the former and sole directors, officers and principals of R/M. Plaintiff filed suit and obtained the final judgment noted earlier against R/M for $60,160.70, plus costs, for outstanding invoices due plaintiff. Post-judgment execution proceedings recovered only $947.02 for plaintiffs.[1]
On Friday, February 2, 1990, a newspaper article in The Star Ledger announced that R/M had "merged" with The Cherenson Group advertising agency. On Sunday, February 4, 1990, a paid advertisement appeared in The Star Ledger announcing that R/M had "joined" with The Cherenson Group. Depositions of Rosenberg and Marguccio, conducted by plaintiff on March *500 13, 1990, revealed the following information about the corporate demise of R/M.
Rosenberg and Marguccio were the sole directors, and officers of R/M, and Mr. and Mrs. Rosenberg were R/M's sole shareholders. Defendants decided in January 1990 to cease doing business as R/M. Accordingly, R/M ceased doing business as of February 1, 1990, although defendants did not file a certificate of dissolution with the State of New Jersey. Rosenberg and Marguccio subsequently acquired employment with Cherenson, as did two of the three other R/M employees. In addition to R/M's office furniture and equipment, which had been levied upon by the Essex County Sheriff, defendants also brought to Cherenson ten to twenty of R/M's accounts, some of which owed money to R/M, R/M's client list, and R/M's telephone number (which was programmed to transfer all calls made to R/M's South Orange place of business to Cherenson). Only defendants' bookkeeper, who was away in Europe and who had not yet closed the corporation's books when R/M ceased doing business, was left out of the move to Cherenson. R/M maintains no inventory.
Defendant Rosenberg's written employment agreement with Cherenson, signed on January 24, 1990, contained the following paragraph which transferred all R/M accounts to Cherenson:
1. Employment. Employer hereby employs Employee to service and supervise advertising and public relations accounts which shall include: (a) accounts with which Employee has dealt in the past in his individual capacity or in his capacity as a principal, agent or employee of other firms (the "Rosenberg Accounts"), a complete list of which is annexed hereto as Schedule "A".... Employee represents and warrants to Employer that he is not subject to a restrictive covenant with any prior employer or firm with which he has ever been affiliated and that he is free to deal with any account with which he has dealt in the past. In addition to servicing and supervising the stated accounts, Employee will assist Employer's management team to increase and build new business.
After hearing arguments from both parties, the trial judge concluded that defendants had breached their fiduciary duty to R/M and had transferred R/M's sole lucrative asset, R/M's accounts, to Cherenson.
*501 The facts in this case show that Defendants, the sole shareholders, directors and officers, who owed a duty to the Corporation, took all of the assets of the Corporation. They made no attempts to wind up corporate affairs. While the Corporation was being sued they began negotiations to secure employment elsewhere, and used the customers they intended to bring with them from R/M Inc. as a bargaining tool to obtain employment. And not only did they take the customers, they took the Corporation's employees and its office furniture and computers to their new employer.
In their capacities as directors, officers and shareholders of R/M Inc., Defendants owed a fiduciary duty to the Corporation. This duty includes an obligation not to take action which would be adverse to the Corporation's interest. In other words, an officer or director has a duty of loyalty to the Corporation; this duty means that a director or officer may not use information he has gained in his capacity as a director or officer, against the interests of the Corporation.
It is clear to this Court that the Defendants in this case blatantly breached this duty. As directors and officers of R/M Inc. they were privy to all the details surrounding the Corporation's customers; i.e., they knew who the customers were, they knew what type of services the customers required, they knew the worth of that customer to the Corporation, the size of the account. The Court considers it an absolute breach of their duty to the Corporation for the Defendants to take all of this information, approach a competing advertising agency, and secure employment with that other agency on the understanding that Defendants would bring R/M Inc.'s customers with them. These acts were deliberately done; they were against the interests of R/M Inc. They were done in bad faith and without regard to the duties owed to the Corporation.
The trial judge also reached the conclusion that R/M's customer lists were a corporate asset of R/M.
On appeal, plaintiff asserts solely that the trial court should have found Rosenberg and Marguccio personally liable and should therefore have awarded plaintiff the sum certain due from the judgment against R/M. Defendants respond by asserting that there were factual issues precluding the entry of summary judgment, that the customer list was not a corporate asset, and that defendants breached no duty to R/M, which was insolvent and out of business.
In their deposition testimony, defendants candidly admitted that they moved all of R/M's office furniture, active accounts and four of R/M's five employees to Cherenson. All telephone calls were automatically forwarded. All of this occurred before R/M's accountant closed the corporation's books and before defendants filed a certificate of dissolution with the State of *502 New Jersey. With these transfers, R/M ceased to exist for practical purposes and announced to the public that it had "merged" with the Cherenson Group. During all of these changes, plaintiff possessed a judgment against R/M.
N.J.S.A. 25:2-25 defines certain transfers as fraudulent as a matter of law.
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation incurred, if the debtor made the transfer or incurred the obligation:
a. With actual intent to hinder, delay, or defraud any creditor of the debtor....
In order to determine fraudulent intent as a matter of law, trial judges may give consideration to, inter alia, any of the eleven factors enumerated in N.J.S.A. 25:2-26. In his grant of summary judgment, the trial judge identified six of eleven N.J.S.A. 25:2-26 factors as applicable to defendants, and the judge thoroughly applied the facts of the case to support each finding. Specifically, the judge ruled that consideration of the following factors determined fraudulent intent in defendants' case:
a. The transfer or obligation was to an insider;
b. The debtor retained possession or control of the property transferred after the transfer;
....
e. The transfer was of substantially all the debtor's assets;
....
h. The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
i. The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
j. The transfer occurred shortly before or shortly after a substantial debt was incurred....
[N.J.S.A. 25:2-26].
Accordingly, defendants' transfer of assets to Cherenson was a fraudulent conveyance as a matter of law. See United States *503 v. Mazzara, 530 F. Supp. 1380, 1383 (D.N.J. 1982), aff'd 722 F.2d 733 (3d Cir.1983).
Defendants claim that because the trial judge only found six of eleven suggested statutory factors to determine fraudulent intent, there remain several issues of fact concerning defendants' transfer of R/M's assets to Cherenson. This argument is without merit. N.J.S.A. 25:2-26 states that "consideration may be given, among other factors," to the eleven enumerated issues. Furthermore, defendants cannot create a material issue of fact merely by arguing the merits of the trial judge's citation and explanation of a statutory factor, when other such factors remain unchallenged.
In reaching his decision to grant summary judgment for plaintiff, the trial judge also concluded that R/M's advertising accounts were corporate assets. Defendant claims that this issue is one of first impression and that the trial judge erroneously concluded that such accounts were assets as a matter of law. This court previously addressed a similar issue briefly in Hollister v. Fiedler, 22 N.J. Super. 439, 92 A.2d 52 (App.Div. 1952), modified on other grounds, 17 N.J. 239, 111 A.2d 57 (1955). In Hollister, we decided that customer lists were a valuable asset of an insurance company:
In the conduct of an insurance business, aside from the ability of the salesman to obtain customers to purchase insurance contracts, perhaps the most valuable asset is information as to who may be in the market for insurance protection and when the most likely time would be to solicit them. That pertinent information is obtained from the list of expirations or records or renewal dates for existing insurance contracts.... In fact, the accountant testified "If you took the expirations away from the business, you would have no business."
[Id. 22 N.J. Super. at 445, 92 A.2d 52].
In a related area, New Jersey courts have previously approached the issue of whether customer accounts are corporate property in cases dealing with an employee's duty of loyalty to the employer not to act contrary to the employer's interest. See Chernow v. Reyes, 239 N.J. Super. 201, 206, 570 *504 A.2d 1282 (App.Div.), certif. denied, 122 N.J. 184, 584 A.2d 245 (1990) (absent non-competition covenant, employer's damages limited to those profits former employee earned by diverting customers of employer while working for employer); Auxton Computer Enterprises, Inc. v. Parker, 174 N.J. Super. 418, 423, 416 A.2d 952 (App.Div. 1980) (employee "may not solicit his employer's customers for his own benefit before he has terminated his employment"). Where there is either a post-employment restrictive covenant or where the customer lists are confidential and thus a trade secret, customer lists may be protected even after employment is terminated. See United Board & Carton Corp. v. Britting, 61 N.J. Super. 340, 160 A.2d 660 (App.Div.), certif. denied, 33 N.J. 326, 164 A.2d 379 (1960) (former employees restrained for two years from doing business with those customers they courted while still in plaintiff's employ); Abalene Exterminating Co., Inc., v. Oser, 125 N.J. Eq. 329, 333, 5 A.2d 738 (Ch. 1939) (employee restrained from using customer list of former employer).
Where a company's business is to provide services, information about customers is a property right of the company. Abalene Extermination Co., Inc., v. Oser, supra, 125 N.J. Eq. at 331, 5 A.2d 738. This is proper because a service company must obtain its customers "at the cost of time, trouble and expense in soliciting and obtaining them as customers...." Ibid. Where a service company is concerned, the names and addresses of its customers "are not open to and ascertainable by every one; they are the private information and property" of the company. Id. at 332, 5 A.2d 738; but cf. Haut v. Rossbach, 128 N.J. Eq. 77, 78, 15 A.2d 227 (Ch. 1940), aff'd, 128 N.J. Eq. 478, 17 A.2d 165 (1941) (customers are not assets where company is a "manufacturer or wholesaler dealing with jobbers or retail merchants").
The trial court thus properly ruled that the customers and accounts of R/M, an advertising agency, were the corporation's assets. As the trial judge correctly observed, "Whatever *505 life R/M Inc. had in it was snuffed out when Defendants took its customers."
Defendants offer no legal support for their claim that they owed no fiduciary duty to R/M, and this court finds none. As the sole directors and officers of R/M, defendants not only owed a fiduciary duty to R/M while it remained in existence, but they also owed a quasi-trust duty to plaintiff, as R/M's creditor, when R/M became insolvent. Portage Insulated Pipe Co. v. Costanzo, 114 N.J. Super. 164, 166, 275 A.2d 452 (App. Div. 1971) ("When a corporation becomes insolvent a quasi-trust relationship arises between its officers and directors on the one hand and its creditors on the other"); Matter of Stevens, 476 F. Supp. 147, 153 n. 5 (D.N.J. 1979) (In this quasi-trust relationship, officers "cannot prefer one creditor over another, and they have a `special duty not to prefer themselves'"); cf. Francis v. United Jersey Bank, 87 N.J. 15, 36, 432 A.2d 814 (1981) ("While directors may owe a fiduciary duty to creditors also, that obligation generally has not been recognized in the absence of insolvency").
Accordingly, the trial judge did not misapply the law to the facts of this case in finding that defendants owed R/M a fiduciary duty even though R/M was insolvent.
After thoroughly reviewing the facts of this case, the trial judge issued the following ruling to accompany his order of summary judgment:
The Court considers [it] an absolute breach of [defendants'] duty to the Corporation for the Defendants to take [R/M's customer list], approach a competing advertising agency, and secure employment with that other agency on the understanding that Defendants would bring R/M Inc.'s customers with them. These acts were deliberately done; they were against the interests of R/M Inc.; they were done in bad faith and without regard to the duties owed to the Corporation and they breached the fiduciary duty.
I believe this is a classic example written in text books on when and why a corporate [veil] should be pierced. The Defendants, individually, are liable only to the extent of the commissions that monies earned from the accounts that they've taken over to the new corporation.
*506 Absent fraud or injustice, courts generally will not pierce the corporate veil. Lyon v. Barrett, 89 N.J. 294, 300, 445 A.2d 1153 (1982). New Jersey courts, however, will ignore a corporate identity, pierce the corporate veil, and hold the corporate principals personally liable, where they fraudulently transfer corporate property in the face of known legal action. State, Dept. of Envtl. Protect. v. Ventron Corp., 94 N.J. 473, 500, 468 A.2d 150 (1983); Touch of Class Leasing v. Mercedes-Benz Credit of Canada, Inc., 248 N.J. Super. 426, 441, 591 A.2d 661 (App.Div.), certif. denied, 126 N.J. 390, 599 A.2d 166 (1991) (collecting relevant cases); John R. Steele & Associates, Inc. v. Villante, 659 F. Supp. 157, 158 (D.N.J. 1987). Imposing personal liability satisfies the purpose of the doctrine of piercing the corporate veil, which "is to prevent an independent corporation from being used to defeat the ends of justice, to perpetrate fraud, to accomplish a crime, or otherwise to evade the law...." State, Dept. of Envtl. Protect. v. Ventron Corp., 94 N.J. at 500, 468 A.2d 150 (citations omitted).
Whether we grant plaintiffs their remedy on the basis of a fraudulent conveyance or on the basis of piercing the corporate veil as of the time the conveyance was made, defendants Rosenberg and Marguccio are personally liable for the full amount of the assets they transferred to Cherenson. This remedy is in addition to those provided by the Fraudulent Transfer Act, N.J.S.A. 25:2-29 and 30. But the principals are not, as suggested by plaintiff, liable for all of the corporate debts of R/M. For example, if a corporation has $500,000 in debts and the corporate principals improperly transfer a few thousand dollars worth of corporate property, representing the final assets of the corporation, it would be highly unfair to charge the principals with the total corporate indebtedness which may have arisen over many years of corporate existence when the corporate form was scrupulously followed. The principals should be responsible only for the effects of their actions. In this case, Rosenberg and Marguccio are liable solely for the fair market value of the assets they transferred to Cherenson, *507 valued as of the date of transfer. This may or may not be equal to the full amount originally claimed. It also may or may not be equal to the commissions generated from the transferred accounts, which was the measure of damages chosen by the trial judge.
Plaintiff has the burden of proof to demonstrate both defendants' liability and the amount of damages chargeable to defendants. While the liability of R/M in the earlier law suit was clearly demonstrated to be the amount of the open bills, now approximately $70,000, the maximum individual responsibility of Rosenberg and Marguccio is measured by the value of the transferred assets. Given the factual dispute concerning such value, summary judgment on this issue was mistakenly entered.
The value of a particular account when transferred may be unrelated to the income later received. The income received may be a factor in this proof, but it is not the sole measure of damages. Post-transfer income may be generated solely because the account was developed or materially changed through Cherenson's efforts. On the other hand it may be nothing more than a continuation of the income previously earned on the account less the expenses necessary to develop the account and discounted to the date of transfer. It also may be true that a particular account had substantial value, but for some extraneous reason was abandoned or lost by Cherenson. A conflict of interest, a clash of personalities or other bases could have caused a valuable account to have generated no income to the transferee. Plaintiff may be able to show through expert testimony how accounts transferred in the advertising industry are valued. Furthermore, the good will of the R/M agency, including its telephone number, general customer lists, employee base and the like may likewise have a value ascribed by suitable expert testimony. We reiterate, however, that the measure of damages is not the gross or net *508 income from any particular account or accounts, but rather the sum of their fair market values as of the date of transfer.
In short, we sustain the trial judge's determination of both a fraudulent conveyance and a piercing of the corporate veil, thus sustaining the liability judgments against the individual defendants. The damages portion of the summary judgment, however, must be reversed and remanded to the trial judge for trial after a suitable period for discovery.[2]
The liability judgment is affirmed; the portions of the final judgment relating to damages are reversed, and the matter is remanded to the Law Division for further proceedings consistent with this opinion.
NOTES
[1] In January 1990, the Sheriff of Essex County levied upon all of the right, title and interest of R/M at its office at 15 South Orange Avenue, South Orange, New Jersey. The Sheriff's levy inventoried only a few pieces of office furniture, three typewriters and two computers.
[2] Due to the passage of time, plaintiff must be afforded a new opportunity to determine the value of the transferred assets as of the transfer date. It may secure an expert after defendants and Cherenson disclose all relevant data concerning the transferred accounts for a reasonable period both before and after the transfer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265089/ | 54 Cal. App. 4th 750 (1997)
ORANGE UNIFIED SCHOOL DISTRICT et al., Plaintiffs and Appellants,
v.
RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT et al., Defendants and Respondents.
Docket No. B095944.
Court of Appeals of California, Second District, Division One.
March 27, 1997.
*754 COUNSEL
Ruiz & Schapiro, Celia M. Ruiz, Priscilla S. Carson and William M. Quinn, Jr., for Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Silvia M. Diaz and Dana T. Cartozian, Deputy Attorneys General, Joseph R. Symkowick, Michael E. Hersher, Littler, Mendelson, Fastiff, Tichy & Mathiason, Richard J. Currier, Susan J. Boyle, Parker, Covert & Chidester, Spencer E. Covert, Michael Y. Toy, Liebert, Cassidy & Frierson and Mary L. Dowell for Defendants and Respondents.
OPINION
SPENCER, P.J.
INTRODUCTION
Six unified school districts appeal from an order of dismissal entered after the trial court sustained without leave to amend the demurrers of three community college districts and granted a judgment on the pleadings to the Chancellor and the Board of Governors of the California Community Colleges.[1] We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On July 27, 1994, appellants filed a second amended petition for a writ of mandate in which they sought an order directing the community college *755 respondents to not operate adult education programs in violation of Education Code sections 8530 through 8533 during the 1994-1995 academic year and beyond, to not seek funding apportionments for programs operated in contravention of the mutual agreement requirements of the law and to transfer the programs described by Education Code sections 8530 and 8531 to appellants, along with the funding for those programs. Appellants also sought to compel the Chancellor and the Board of Governors of the California Community Colleges to cease budgetary calculations and certifications based on the community college respondents offering of these courses. Finally, they sought to compel these respondents and the state Board of Education to resolve differences among the parties in reaching mutual agreements.
Appellants allege they offer adult education programs as provided for in Education Code sections 8530 through 8531. They have an exclusive right to offer adult basic education and high school diploma programs and a qualified right to provide adult vocational training and continuing education. Appellants allege they cannot obtain funding for additional courses due to "[s]tate-funding caps on new programs." They could obtain funding through the community colleges' transfer of existing programs and the concomitant funding. Appellants further allege there are no existing mutual agreements with the community college respondents that cover their adult education programs. While there were agreements in the past, those agreements have terminated.
In 1994, legal counsel for the Chancellor of the California Community Colleges and for the state Department of Education rendered opinions interpreting Education Code sections 8530 through 8538. These opinions supported appellants' view of the matter.
On November 18, 1994, before ruling on the demurrers, the trial court ordered the state boards to attempt a resolution of the dispute. Mediation efforts failed, after which the matter returned to the court. On March 30, 1995, the court sustained without leave to amend the community college respondents' demurrers. Two months later, the Chancellor and Board of Governors of the California Community Colleges moved for judgment on the pleadings. In their view, the court's ruling on the demurrers resolved all questions concerning their legal obligations. The remaining state respondents joined in the motion. The court granted the motion and dismissed from the action "all remaining respondents."
*756 CONTENTIONS
I
Appellants contend the trial court erred in sustaining the demurrers of the community college districts.
II
Appellants additionally contend the trial court erred in granting the motion for judgment on the pleadings of the Chancellor and the Board of Governors of the California Community Colleges.
DISCUSSION
(1) Preliminarily, we consider whether the appeal is timely insofar as it challenges the sustaining of the demurrers. The trial court sustained the community college respondents' demurrers without leave to amend but did not, at that time, dismiss the action as to these respondents. Thereafter, the court granted the motion for judgment on the pleadings of the Chancellor and the Board of Governors of the California Community Colleges. At the same time, the court dismissed from the action "all remaining respondents." Appellants timely appealed from this order.
The community college respondents argue that the appeal is not timely as to the order sustaining the demurrers, in that the order implicitly dismissed them from the action. The later order dismissing "all remaining respondents," they assert, applied only to the state respondents.
The problem with the community college respondents' argument is that an order sustaining a demurrer is not appealable. It may be reviewed only on appeal from a subsequent order of dismissal. (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal. 3d 327, 331 [220 Cal. Rptr. 103, 708 P.2d 682]; Hill v. City of Long Beach (1995) 33 Cal. App. 4th 1684, 1695 [40 Cal. Rptr. 2d 125].) While this court may save a premature appeal by deeming an order sustaining a demurrer to incorporate a judgment of dismissal (Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal. App. 4th 1437, 1440-1441 [2 Cal. Rptr. 2d 683]), we will not use this device to defeat an appeal. There is only one order dismissing parties from this action, the order of July 12, 1995, granting the motion for judgment on the pleadings and dismissing from the matter "all remaining respondents." It matters not that the state respondents requested this dismissal; inasmuch as the community college districts still were respondents at that point, the order applied to them. In short, appellants' appeal is timely as to the sustaining of the demurrers.
*757 I
(2a) Appellants contend the trial court erred in sustaining the demurrers of the community college districts. We disagree.
(3) In determining the merits of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication, but not conclusions of fact or law, are deemed admitted by the demurring party. (Moore v. Conliffe (1994) 7 Cal. 4th 634, 638 [29 Cal. Rptr. 2d 152, 871 P.2d 204]; Interinsurance Exchange v. Narula (1995) 33 Cal. App. 4th 1140, 1143 [39 Cal. Rptr. 2d 752].) On appeal, we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself. (Lee v. Bank of America (1990) 218 Cal. App. 3d 914, 919 [267 Cal. Rptr. 387]; Mayflower Ins. Co. v. Pellegrino (1989) 212 Cal. App. 3d 1326, 1332 [261 Cal. Rptr. 224].)
(2b) The question presented here is purely one of law. It is a matter of statutory interpretation only.
(4) Statutes must be construed with reference to the entire statutory scheme of which they are a part (People v. Comingore (1977) 20 Cal. 3d 142, 147 [141 Cal. Rptr. 542, 570 P.2d 723]) so as to harmonize their effect in conformity with legislative intent (Landrum v. Superior Court (1981) 30 Cal. 3d 1, 12 [177 Cal. Rptr. 325, 634 P.2d 352]; California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal. 3d 836, 844 [157 Cal. Rptr. 676, 598 P.2d 836]). Insofar as it is possible to do so, seemingly conflicting or inconsistent statutes will be harmonized so as to give effect to each. (See Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal. 3d 1, 7 [128 Cal. Rptr. 673, 547 P.2d 449].) When, however, conflicting statutes cannot be reconciled, the later enactments supersede the earlier ones. (City of Petaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal. 2d 284, 288 [282 P.2d 43]; cf. People v. McCaskey (1985) 170 Cal. App. 3d 411, 415 [216 Cal. Rptr. 54].)
(5) In interpreting a statute, a fundamental rule is that the court must "`ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citations.] In determining the intent, the court `turns first to the words themselves for the answer.' [Citation.] [¶] The words must be read in context, `"keeping in mind the nature and obvious purpose of the statute where they appear."' [Citation.] In ascertaining the legislative intent, courts should consider not only the words used, but `the object in view, the evils to be remedied, the legislative history [and] public policy....' [Citation.]" (People v. Aston (1985) 39 Cal. 3d 481, 489 [216 Cal. Rptr. 771, 703 P.2d 111].) (6) Finally, the courts will accord great weight to an administrative agency's construction of pertinent statutes, generally departing from *758 such a construction only if it clearly is erroneous or unauthorized. (Simplicity Pattern Co. v. State Bd. of Equalization (1980) 27 Cal. 3d 900, 905 [167 Cal. Rptr. 366, 615 P.2d 555]; Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal. 3d 86, 93 [130 Cal. Rptr. 321, 550 P.2d 593].)
(2c) Appellants based their petition for a writ of mandate and request for declaratory relief on the language of a small constellation of Education Code provisions, sections 8510 through 8538. Education Code sections 8500 through 8538 comprise the adult education portion of the Education Programs State Master Plans part of the Education Code (part 6, commencing with section 8000). Sections 8500, 8510, and 8530 through 8537 were enacted in 1976 (Stats. 1976, ch. 1010, § 2). Section 8538 was enacted at the same time by the same statute, although it then was numbered section 8512. It was renumbered section 8538 and amended by Statutes 1978, chapter 380, section 32.
These statutes define certain terms pertinent to adult education, assign responsibility for certain programs and grant permission for the offering of others. Education Code section 8510 defines certain terms, only two of which are pertinent to this matter. "`Adult basic education' is education in communication and computational skills to and including the 12th grade level, including English as a second language [ESL] and citizenship." (Id., subd. (a).) "`Mutual agreement' means an agreement between two or more governing boards of districts." (Id., subd. (d).)
Education Code sections 8530 through 8534 assign responsibility or grant permission for the offering of several categories of adult education programs. "Adult basic education is the responsibility of high school and unified school districts except in those instances where by mutual agreement the responsibility is assigned to a community college district." (Id., § 8530.) "The high school diploma program is the responsibility of the high school and unified school districts, but courses leading to a high school diploma may be offered by a community college district pursuant to a mutual agreement." (Id., § 8531.) "Vocational and occupational training and retraining programs for adults may be made available in high school, unified, and community college districts by mutual agreement." (Id., § 8532.) "Adult continuing education, including but not limited to, parent education, consumer education, civic education, education in special fields, and education in the arts and the humanities, may be made available in high school, unified, and community college districts by mutual agreement." (Id., § 8533.) "Programs for adults involving postsecondary programs that meet the standards prescribed by the Board of Governors of the California Community Colleges for credit and noncredit courses are the responsibility of community college districts." (Id., § 8534.)
*759 Appellants interpret these provisions as meaning a community college may offer adult basic education and high school diploma courses only if a high school or unified school district enters into a mutual agreement with the community college that it may do so. In addition, either a high school or unified school district or a community college may offer vocational or occupational programs and adult continuing education, but only if they mutually agree to this.
Appellants base their interpretation in part on the Legislature's assignment of "responsibility" for offering certain programs in Education Code sections 8530 through 8534. A "responsibility" is a duty or burden, something for which one is accountable. (Webster's New Collegiate Dict. (1979 ed.) p. 979, col. 1; Black's Law Dict. (5th ed. 1979) p. 1179, col. 2.) It is not, however, a right.
In support of their interpretation, appellants also place great reliance on the language of Education Code sections 8536 through 8538. These sections concern the process of reaching mutual agreements and the manner in which districts may receive apportioned funding for adult noncredit courses.
"The governing board of every district affected by this chapter shall make all reasonable efforts to reach a mutual agreement when such an agreement is required and shall develop procedures for this purpose." (Ed. Code, § 8536.) "If a mutual agreement cannot be reached by the district governing boards, the points of disagreement shall be resolved by the State Board of Education and the Board of Governors of the California Community Colleges." (Id., § 8537.) "[F]or noncredit classes or programs offered in community colleges pursuant to this chapter, average daily attendance for state apportionment purposes shall only be calculated for such classes or programs which by mutual agreement are the responsibility of the community colleges pursuant to Sections 8530 and 8531; and ... for noncredit classes or programs offered in the community colleges and for classes for adults offered in high schools or adult schools pursuant to this chapter, average daily attendance for state apportionment purposes shall only be calculated for such classes or programs which by mutual agreement are the responsibility of the community colleges or of the high school or unified school districts pursuant to Sections 8532 and 8533." (Id., § 8538.)
As appellants see it, these provisions establish that mutual agreements are essential to community colleges' provision of most adult education instruction. Without such agreements, the community colleges are not entitled to apportioned funding based on average daily attendance.
*760 Attractive as appellants' interpretation may be at this juncture, Education Code sections 8510 through 8538 cannot be read in isolation. They must be interpreted and, if possible, harmonized with all other related portions of the Education Code. (Landrum v. Superior Court, supra, 30 Cal.3d at p. 12; California Mfrs. Assn. v. Public Utilities Com., supra, 24 Cal.3d at p. 844.)
The Legislature also enacted part 24 of the Education Code, entitled "School Finance," in 1976. (Stats. 1976, ch. 1010, § 2, p. 3218 et seq.) Chapter 5.3, entitled "Conditions on Apportionments and Allowances," was added to part 24 in 1979; it became operative on July 1, 1980. (Stats. 1979, ch. 282, § 28.5, p. 986.) Education Code section 41976 is part of chapter 5.3.
Subdivision (a) of Education Code section 41976 authorizes school districts and county superintendents of schools to offer certain classes and courses "for apportionment purposes from the adult education fund." These include "(1) Adult programs in parenting, including parent cooperative preschools, classes in child growth and development, and parent-child relationships, and classes in parenting. [¶] (2) Adult programs in elementary and secondary basic skills and other courses and classes required for the high school diploma. Apportionment for these courses and classes may only be generated by students who do not possess a high school diploma, except for remedial academic courses or classes in reading, mathematics, and language arts. [¶] (3) Adult education programs in English as a second language. [¶] (4) Adult education programs for immigrants eligible for educational services in citizenship, English as a second language, and workforce preparation classes in the basic skills of speaking, listening, reading, writing, mathematics, decisionmaking and problem solving skills, and other classes required for preparation to participate in job specific technical training. [¶] (5) Adult education programs for substantially handicapped persons. [¶] (6) Adult short-term vocational programs with high employment potential. [¶] (7) Adult programs for older adults. [¶] (8) Adult education programs for apprentices. [¶] (9) Adult programs in home economics. [¶] (10) Adult programs in health and safety education." (Ibid.) Subdivision (b) of Education Code section 41976 states that "[n]o state apportionment shall be made for any course or class which is not set forth in subdivision (a)."
In short, as of July 1, 1980, unified school districts have been authorized to offer and receive funding for all of these courses. To authorize is "[t]o empower; to give a right or authority to act.... [¶] `Authorized' is sometimes construed as equivalent to `permitted'; or `directed', or to similar mandatory language.... [Citation.]" (Black's Law Dict, supra, p. 122, col. 2; accord, Webster's New Collegiate Dict., supra, p. 75, col. 1.) Power *761 likewise is the right and authority to act. (Black's Law Dict., supra, p. 1053, col. 1.)
Just as Education Code section 41976, subdivision (a), authorizes school districts to provide a wide variety of adult education programs, so, too, does Education Code section 78401, subdivision (a), empower community colleges to "establish and maintain classes for adults for the purpose of instruction in civic, vocational, literacy, health, homemaking, technical and general education." This section was part of the 1976 enactment. (Stats. 1976, ch. 1010, § 2, p. 4068.) When Education Code section 41976 became effective in 1980, however, the community colleges lacked a similar authority to apportioned funding. Accordingly, upon the enactment of Education Code section 41976, the Legislature favored high school and unified school districts as the providers of adult education.
Former Education Code section 84711, subdivision (a), added by Statutes 1983, chapter 565, section 3, pages 2419-2420,[2] lists the community noncredit courses and classes eligible for funding. The eligible courses and classes are the same as those listed for high schools and unified school districts in Education Code section 41976, subdivision (a). At this point, therefore, the school districts and community colleges had a coequal right to receive apportioned funding for the delineated courses and programs. This marks the beginning of a shift in focus.
Under Education Code section 41976.1, operative July 1, 1993, "[n]otwithstanding Section 41976, any school district may offer adult education courses and classes in the adult education programs described in Section 41976 provided that district qualifies for funding to begin those courses or classes pursuant to Section 52616.18." (Stats. 1992, ch. 1193, § 1.) Education Code section 52616.18, also operative July 1, 1993 (Stats. 1992, ch. 1193, § 5), permits a school district not previously operating an adult education program pursuant to Education Code section 41976 to "apply to the State Department of Education for initial program approval and funding to begin any adult education programs specified in Section 41976" if "[t]he district enters into a written delineation of function agreement pursuant to Chapter 3 (commencing with Section 8500) of Part 6 for the fiscal year for which initial funding is authorized between the applicant school district and the community college district in the same geographical area." (Ed. Code, § 52616.18, subd. (a)(2).) If a school district has a current delineation of function agreement with a community college district, it is "authorized to *762 divide the responsibility for offering courses pursuant to Section 41976 by mutual agreement of the boards of those districts." (Id., subd. (c).)
In other words, effective July 1, 1993, notwithstanding the authority granted school districts in Education Code section 41976 to offer a broad range of adult education programs, Education Code section 52616.18 limited the right of school districts to begin offering such programs. They could do so only if they reached mutual agreement with a community college district to that effect.
Education Code section 66010.4 is part of the Donahoe Higher Education Act (Ed. Code, § 66022 et seq.), enacted in 1991 (Stats. 1991, ch. 1198). Education Code section 66010.3 provides that "[t]he public elementary and secondary schools shall be responsible for academic and general vocational instruction from kindergarten and grades 1 to 12, inclusive, including preparation of pupils for postsecondary instruction, future participation in California's economy and society, and adult instruction to the extent of state support." Education Code section 66010.4 sets forth the "missions and functions of California's ... institutions of higher education." Education Code section 66010.4, subdivision (a)(1) delineates as the primary mission of community colleges the offering of "academic and vocational instruction at the lower division level for both younger and older students, including those persons returning to school." "In addition to the primary mission of academic and vocational instruction, the community colleges shall offer instruction and courses" that provide remedial instruction and, "in conjunction with the school districts, instruction in English as a second language, adult noncredit instruction, and support services which help students succeed at the postsecondary level." (Id., subd. (a)(2)(A), italics added.) These are deemed "essential and important functions of the community colleges." (Ibid.) The Legislature also deems essential and important, but does not mandate, "[t]he provision of adult noncredit education curricula [by the community colleges] in areas defined as being in the state's interest." (Id., subd. (a)(2)(B).)
Together, these sections provide "mission statements" for various components of the state educational system. Under Education Code section 66010.3, the elementary and secondary schools must provide academic and vocational instruction through the 12th grade, as well as adult instruction of the same type "to the extent of state support." Under Education Code section 66010.4, the community colleges must provide postsecondary academic and vocational instruction, remedial instruction and "in conjunction with the school districts, instruction in English as a second language, adult noncredit instruction" and postsecondary support services. They also are encouraged strongly to provide other "adult noncredit education curricula."
*763 The phrase "in conjunction with" means conjointly, in association, or in unison. (Webster's New Collegiate Dict., supra, p. 237, col. 1; see also Black's Law Dict., supra, p. 273, col. 2.) In the context of Education Code section 66010.4, subdivision (a), it means the community colleges must provide English as a second language (ESL) instruction, adult noncredit instruction and postsecondary support services, but have no exclusive mission to provide these services. Rather, the statute contemplates that the community colleges will act conjointly or in unison with the school districts to provide these programs.
To summarize, as of the enactment of the Donohoe Higher Education Act in 1991, community colleges are required to offer a broad range of adult education programs. These include lower division college academic and vocational instruction, remedial instruction, ESL instruction, adult noncredit instruction and postsecondary support services. This partially overlaps with the definition of "adult basic education" found in Education Code section 8510, subdivision (a), the responsibility for which generally is assigned to the school districts by Education Code section 8530. It overlaps completely with the vocational and occupational training mentioned in Education Code section 8532 and with the education in special fields and in the arts and humanities mentioned in Education Code section 8533. Community colleges also are strongly encouraged to offer the broad range of other adult education programs covered by Education Code section 8533. To the extent that the community colleges are required to provide remedial instruction, there also is some overlap with the high school diploma program covered by Education Code section 8531.
Both school districts and community college districts have the authority, power or right to offer the full range of programs. In addition, the Legislature has provided specifically that all of the enumerated programs are eligible for apportioned funding. By enacting Education Code sections 41976.1 and 52616.18 in 1993, section 66010.3 in 1991 and section 66010.4 in 1990, however, the Legislature expressed a preference that community colleges offer the broad range of adult education programs listed in Education Code sections 41976 and 87411. The Legislature required that community colleges offer most forms of adult education. As of the operative date, moreover, a school district not previously operating an adult education program could not do so unless it had funding available and secured a mutual, or delineation of function, agreement from the community college district. (Ed. Code, § 52616.18, subd. (a).)
Inasmuch as community colleges must provide most of this instruction and are strongly encouraged to provide the balance of it, the requirement that they obtain a mutual agreement before offering these programs or seeking *764 funding apportionment would interfere with the fulfillment of their mission. Moreover, the requirement of a mutual agreement before either school districts or community college districts could obtain funding apportionment for the programs delineated in Education Code sections 8532 and 8533 would limit the broad right the Legislature has conferred on both to offer these programs and receive apportioned funding.
While the state Department of Education and the Chancellor of the California Community Colleges have interpreted Education Code sections 8530 through 8538 in the same manner as do appellants, they have done so without considering the effect of later enactments. Inasmuch as their interpretation of the adult education scheme clearly is erroneous, we need not accord it the great weight to which it ordinarily would be entitled. (Simplicity Pattern Co. v. State Bd. of Equalization, supra, 27 Cal.3d at p. 905; Culligan Water Conditioning v. State Bd. of Equalization, supra, 17 Cal.3d at p. 93.)
The mutual agreement requirement, found in Education Code sections 8530 through 8538, is irreconcilably inconsistent with the authority and mandates found in the later-enacted statutes, Education Code sections 66010.4 and 84711. Given the irreconcilable conflict, the later enactments must be deemed to have superseded the mutual agreement elements of the earlier ones. (City of Petaluma v. Pac. Tel. & Tel. Co., supra, 44 Cal.2d at p. 288; cf. People v. McCaskey, supra, 170 Cal. App.3d at p. 415.) Accordingly, the trial court did not err in sustaining the community college districts' demurrers without leave to amend; the community college districts did not need mutual agreements either to offer their adult education programs or to receive apportioned funding for those programs.
II
(7a) Appellants additionally contend the trial court erred in granting the motion for judgment on the pleadings of the Chancellor and the Board of Governors of the California Community Colleges. The contention lacks merit.
(8) A motion for judgment on the pleadings is tantamount to a general demurrer (Maclsaac v. Pozzo (1945) 26 Cal. 2d 809, 812-813 [161 P.2d 449]; Tiffany v. Sierra Sands Unified School Dist. (1980) 103 Cal. App. 3d 218, 224 [162 Cal. Rptr. 669]), although it is not governed by statute and may be made at any time prior to a final judgment (6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 267, pp. 567-568). On appeal from the granting of the motion, the standard of review is the same as for a judgment of dismissal following the sustaining of a general demurrer. (Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal. App. 3d 391, 397 [285 Cal. Rptr. 757]; Tiffany, supra, at p. 225.)
*765 (9) A petition for a writ of mandate pursuant to Code of Civil Procedure section 1085 "must plead facts showing that a public body or official has a clear legal and usually ministerial duty and that the petitioner has a beneficial interest in or right to the performance of that duty. [Citations.] [A] writ of mandate is not available to control the discretion of that public body or official. Although a court may order a public body to exercise its discretion in the first instance when it has refused to act at all, the court will not compel the exercise of that discretion in a particular manner or to reach a particular result. [Citation.]" (Building Industry Assn. v. Marin Mun. Water Dist. (1991) 235 Cal. App. 3d 1641, 1645-1646 [1 Cal. Rptr. 2d 625].)
(7b) Appellants sought a writ of mandate to compel the Chancellor and the Board of Governors of the California Community Colleges to exercise their discretion and resolve points of disagreement among the petitioners and their respective community college districts. Education Code section 8537 places that duty on the State Board of Education and the Board of Governors when a school district and a community college district are unable to reach a mutual agreement.
Inasmuch as the community college districts were not required to obtain mutual agreements, as discussed in part I, ante, there were no points of disagreement for the State Board of Education and the Board of Governors to resolve. Stated otherwise, there was no discretion they were bound to exercise. Accordingly, the trial court did not err in granting the motion for judgment on the pleadings.
The judgment is affirmed.
Vogel (Miriam A.), J., and Masterson, J., concurred.
NOTES
[1] The appellants are Orange Unified School District, Anaheim Union High School District, Placentia-Yorba Linda Unified School District, Covina Valley Unified School District, West Covina Unified School District and Charter Oak Unified School District. The community college respondents are Rancho Santiago Community College District, North Orange County Community College District and Mt. San Antonio Community College District. The appellants also sued the State Board of Education, Superintendent of Public Instruction, State Controller, Department of Finance and Director of Finance. The court also dismissed the action as to these respondents, whose liability was contingent upon the liability of the other respondents.
[2] Education Code section 84711 became inoperative July 1, 1995, and was repealed January 1, 1996. (Ed. Code, § 84713.) It was replaced verbatim, however, by Education Code section 84757. (Stats. 1995, ch. 758, § 126.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265091/ | 261 N.J. Super. 634 (1993)
619 A.2d 664
EDWARD DUERLEIN AND ALICE DUERLEIN, PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION (SELECTIVE INSURANCE COMPANY OF AMERICA, SERVICING CARRIER), DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued October 26, 1992.
Decided February 1, 1993.
*636 Before Judges PETRELLA, LONG and D'ANNUNZIO.
John M. Bashwiner argued the cause for appellant (Bashwiner & Woods, attorneys).
Stanley F. Friedman argued the cause for respondent.
The opinion of the court was delivered by LONG, J.A.D.
On February 16, 1988, Edward Duerlein was injured in an automobile accident. The accident was caused by a tire from Charles Onyegbule's car (driven by Fabian Kelechi Ekean Van Wu) which came loose, jumped the divider and struck Duerlein's windshield. At the time of the accident, Duerlein and his wife, Alice, were insured by the Selective Insurance Company, as Servicing Carrier of the New Jersey Automobile Full Insurance Underwriting Association. Onyegbule was not insured. The Selective policy issued to the Duerleins provided $35,000 in uninsured motorist coverage. Selective was given notice of the accident and of Onyegbule's lack of insurance.
As a result of the injuries and property damage the Duerleins sustained, they filed suit against Onyegbule and Van Wu. On January 11, 1990, the Duerleins made a formal demand for arbitration under the Selective policy which contains a standard arbitration clause. The Duerleins designated Barry Siegel, Esq. as their member of the arbitration panel. On April 4, 1990, Selective chose Edward Cillick, Esq. According to the terms of the policy, the third arbitration panel member was to be selected and agreed upon by the two party-selected members.
Meanwhile, on June 29, 1990, default was entered against Ongyebule and Van Wu in the law suit for failure to answer. The Duerleins' attorney informed Selective of the default by letter dated August 17, 1990 and inquired as to whether Selective "would like to take over the handling of the Superior Court litigation" in light of the uninsured motorist benefits provision *637 of the policy. Selective chose not to become a party to the lawsuit.
A proof hearing was scheduled for January 2, 1991. Selective had been given notice of the proof hearing by counsel for the Duerleins, but chose not to participate. After hearing the proofs, Judge Mandak determined that the Duerleins' damages (including prejudgment interest) amounted to $34,078.21 plus $120.50 for costs of suit. Judgment in that amount was entered against Onyegbule and Van Wu on January 11, 1991. Selective was given notice of the judgment.
In the interim, on January 2, 1991, the third arbitrator, Steven Lichon, was finally agreed upon. During the period in which the parties were struggling over the naming of the third arbitrator, the Duerleins declined to answer Selective's arbitration interrogatories. On November 2, 1990, the answers were provided.
With the selection of the panel completed, arbitration was scheduled for March 8, 1991. That arbitration was canceled due to the illness of Selective's arbitrator. The matter was rescheduled for April 17, 1991. On the second scheduled date, the Duerleins travelled from their home in Pennsylvania to attend the arbitration, only to find it had been canceled because Selective had not been notified that the matter was scheduled and was not ready to proceed.
Frustrated by the delay in arbitration, on July 21, 1991, the Duerleins filed a new complaint accompanied by an order to show cause seeking to compel Selective to arbitrate or, in the alternative, seeking summary judgment in the amount determined at the proof hearing in the suit against Onyegbule and Van Wu. In August, 1991, counsel for Selective wrote to the Duerleins' counsel suggesting that the arbitration take place in late September or early October. In its papers opposing the Duerleins' complaint, Selective indicated its desire to arbitrate because it "disputes that the insured is entitled to recover benefits from the subject contract of insurance because he has *638 failed to prove that his injuries were caused as a result of the negligence of an uninsured operator." Furthermore, Selective disagreed with the quantum of damages claimed by Mr. Duerlein.
At oral argument, counsel for the Duerleins argued that, although the parties had mutually agreed on an arbitration date of October 9, 1991, the trial judge should enter judgment against Selective in the amount already fixed at the proof hearing in the default case on the theory that the insurance company "stands in the shoes of the uninsured motorist." Counsel for Selective emphasized the need for arbitration, positing that the insurer's obligation under the policy is "to pay what the arbitrators say the case is worth." Selective also claimed that it did not take part in the proof hearing because of a possible conflict of interest and because it was not obligated to do so under the contract.
On October 9, 1991, the trial judge granted summary judgment in favor of the Duerleins in the amount of $34,078.21, plus costs. Although he acknowledged Selective's contractual right to arbitrate the Duerleins' claim, the judge ruled that Selective had waived that right due to its bad faith in giving the Duerleins the "run around" and engaging in "undue delay and unjustified avoidance of its responsibilities under its contract and pursuant to law." Selective filed a notice of appeal and a motion for stay which was granted by a trial judge pending appeal.
The question presented is whether the trial judge was correct in determining that Selective waived its right to arbitrate based upon its bad faith dealings with the Duerleins. We think not. Thus, we reverse.
I
The Uninsured Motorist Coverage provided by Selective to the Duerleins contained a standard insurance arbitration clause:
*639 If we [the insurer] and a covered person do not agree: (1) [w]hether that person is legally entitled to recover damages under this part [entitled Uninsured Motorists Coverage]; or (2) [a]s to the amount of damages; either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction.... A decision agreed to by two of the arbitrators will be binding as to: (1) [w]hether the covered person is legally entitled to recover damages; and (2) [t]he amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which your covered auto is principally garaged. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within 60 days of the arbitrator's decision. If this demand is not made, the amount of damage agreed to by the arbitrators will be binding.
No challenge to the validity of this clause has been advanced here and, in fact, this language has been held valid and enforceable.[1]Cohen v. Allstate Ins. Co., 231 N.J. Super. 97, 100, 555 A.2d 21 (App.Div.), certif. denied, 117 N.J. 87, 563 A.2d 846 (1989) (upholding identical arbitration clause).
The scope of arbitration and the duties of each party are dependent upon the agreement of the parties, who have a "right to stand upon the precise terms of their contract; the courts may not rewrite the contract to broaden the scope of *640 arbitration or otherwise make it more effective." Cohen, supra, 231 N.J. Super. at 101, 555 A.2d 21; Moreira Constr. Co. v. Wayne Tp., 98 N.J. Super. 570, 576, 238 A.2d 185 (App.Div.), certif. denied, 51 N.J. 467, 242 A.2d 15 (1968).
However, despite the existence of an arbitration contract, a party may, by expressed or implied acts or omissions, waive the right to arbitrate. John Alan Appleman, 8D Insurance Law and Practice § 5116, at 68 (1981). The insurer may, for example, waive its right to arbitrate by "its failure to request arbitration, or to make a timely demand." Id. at 69-70. See also Patrick D. Kelly, Blashfield Automobile Law and Practice § 332.2 (1987); Annotation, Uninsured Motorist Indorsement: Validity and Enforcement of Provision for Binding Arbitration and Waiver Thereof, 24 A.L.R.3d 1325, §§ 6(a) and 6(b) (1969 & Supp. 1992). Likewise, if an insurer engages in deliberate delay or inaction or other efforts to frustrate the insured's attempts to arbitrate, it may be found to have acted in bad faith and to have impliedly waived its entitlement to arbitration. Appleman, Insurance Law and Practice § 5116, at 71. See also Evans v. Farmers' Reliance Ins. Co., 110 N.J.L. 159, 164 A. 258 (E. & A. 1933) (statement by insurer that it "would not pay [for the insured's loss] and that if the insured wanted the money he would have to sue for it" constituted waiver of fire insurance policy's arbitration provision); Poray v. Royal Globe Ins. Co., 90 N.J. Super. 454, 217 A.2d 916 (Law Div. 1966) (where the insurer failed to exercise the right to arbitrate after being placed on notice that the insured was bypassing arbitration and where the insurer failed to assert a position as to arbitration prior to the time the insured obtained a judgment against the uninsured motorist, it was held to have waived its right to demand arbitration); Niazi v. St. Paul Mercury Ins. Co., 265 Minn. 222, 121 N.W.2d 349 (1963) (insurer's failure to act in good faith acts as waiver if insured is demonstrably prejudiced); Karasch v. Empire Mut. Ins. Co., 13 Misc.2d 395, 175 N.Y.S.2d 690 (N.Y. Sup. Ct. 1958) (waiver due to insurer's failure to appoint representative for 24 days); *641 Bielski v. Wolverine Ins. Co., 2 Mich. App. 501, 140 N.W.2d 772 (1966), aff'd, 379 Mich. 280, 150 N.W.2d 788 (1967) (whether insurer unreasonably delayed arbitration proceedings is question of fact that must be answered before ruling on waiver as a matter of law). But see Riley v. State Farm Mut. Auto. Ins. Co., 420 F.2d 1372 (6th Cir.), cert. denied, 399 U.S. 928, 90 S.Ct. 2245, 26 L.Ed.2d 795 (1970) (When insured made no demand for arbitration, no waiver by insurance company where insurer failed to intervene in case against defaulting uninsured and refused, based on claim of no legal liability, to pay policy benefits).
Once waiver of an arbitration clause is found, judicial remedies will be available. La Stella v. Garcia Estates, Inc., 128 N.J. Super. 173, 176, 319 A.2d 274 (App.Div. 1974), rev'd on other grounds, 66 N.J. 297, 331 A.2d 1 (1975). See also 6A Corbin on Contracts § 1443, at 436 (1962) (If insurer repudiates or waives right to arbitrate, the insured may "bring [an] action in reliance on the repudiation, or otherwise change ... position in reliance. Thereafter, the repudiator has no power of retention and cannot insist on the remedy by arbitration.")
II
Here, the trial judge granted summary judgment in favor of the Duerleins based upon a finding of bad faith on the part of Selective. In order to grant summary judgment, there must be no genuine issue of material fact requiring plenary determination and the trial judge must "must accept as true all recorded facts and reasonable inferences therefrom in the light most favorable to the [party opposing the motion]." Hyland v. Township of Long Beach, 160 N.J. Super. 201, 205, 389 A.2d 494 (App.Div. 1978) (citing Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954)), certif. denied, 78 N.J. 395, 396 A.2d 582 (1978). See also Ocean Cape Hotel Corp. v. Masefield Corp., 63 N.J. Super. 369, 379, 164 A.2d 607 (App.Div. 1960).
*642 The certifications before the trial judge demonstrate that the Duerleins waited almost two years after the accident (from February, 1988 until January, 1990) to demand arbitration; that they appointed an arbitrator at that time; that Selective appointed its arbitrator in April, 1990; that for the next nine months the third arbitrator was not agreed upon; that in January 1991, the third arbitrator was finally appointed; that the first arbitration date was canceled because of the illness of Selective's arbitrator; that the second date was canceled because of an administrative error by Selective; that the Duerleins' new complaint, in fact, demanded arbitration, and that the parties had set an arbitration date of October 9, 1991 before this case came on for oral argument.
While we agree that no genuine issue of material fact is presented here, it is equally clear to us that, if the trial judge had applied the proper standard and viewed the facts in a light most favorable to Selective, he could not have summarily concluded that Selective was guilty of bad faith. Indeed, the facts presented would likely have warranted summary judgment in favor of Selective had such a motion been made. What is critical here is that the Duerleins participated fully in the delay in this case. They neglected to ask for arbitration for two years after the accident. They also failed to invoke the contract remedy provided to deal with delay in the appointment of the arbitrator. According to the arbitration clause, they had a right, within 30 days of the selection of Selective's arbitrator, to seek a court order appointing the third arbitrator. This could have been done in May of 1990. See also N.J.S.A. 2A:24-5 (Supp. 1992). Instead, the Duerleins continued on without acting until January, 1991 when the third arbitrator was finally agreed upon.
To be sure, the two aggravating cancellations were entirely Selective's responsibility. However, neither the illness of the arbitrator nor the administrative error which caused the cancellations evidences the intent or motive to do wrong which is pivotal to a finding of bad faith. New Amsterdam Casualty *643 Co. v. National Newark & Essex Banking Co., 117 N.J. Eq. 264, 277, 175 A. 609 (Ch. 1934), aff'd, 119 N.J. Eq. 540, 182 A. 824 (E. & A. 1936).
In sum, while Selective's behavior in this case may not have been a model, when coupled with the Duerleins' own lassitude, it fell far short of the kind of wrongful action which we think is necessary to warrant depriving a party of the arbitration remedy it bargained for.
Thus, we reverse the entry of summary judgment on count two of the Duerleins' complaint and direct the entry of judgment in favor of the Duerleins on the first count of their complaint which demanded arbitration. The arbitration should be completed within 90 days. Jurisdiction is not retained.
NOTES
[1] The institution and maintenance of arbitration proceedings is governed by N.J.S.A. 2A:24-1 to 24-11. N.J.S.A. 2A:24-1 provides:
A provision in a written contract to settle by arbitration a controversy that may arise therefrom or a refusal to perform the whole or a part thereof or a written agreement to submit, pursuant to section 2A:24-2 of this title, any existing controversy to arbitration, whether the controversy arise out of contract or otherwise, shall be valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of a contract.
N.J.S.A. 2A:24-3 (Supp. 1992) sets forth the remedy for failure to perform a contractual promise to arbitrate.
Where a party is aggrieved by the failure, neglect or refusal of another to perform under a written agreement providing for arbitration, the superior court may in a summary action direct that the arbitration proceed in the manner provided for in the agreement. The party alleged to be in default may demand a jury trial as to the issue that there has been no agreement in writing for an arbitration or that there has been no failure to comply therewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312905/ | GEORGE J. HAZEL, United States District Judge *396In these related cases, Plaintiffs challenged Commerce Secretary Wilbur Ross's decision to include a citizenship question on the 2020 Census. Plaintiffs claimed the decision was arbitrary and capricious in violation of the Administrative Procedure Act (APA), unconstitutional in violation of the Constitution's Enumeration Clause and the equal protection guarantee of the Due Process Clause of the Fifth Amendment (Equal Protection claim), and made as part of a conspiracy to violate their civil rights in violation of 42 U.S.C. § 1985.1 After a six-day bench trial, on April 5, 2019, this Court entered judgment in favor of the Plaintiffs on their claims arising under the Administrative Procedure Act and the Enumeration Clause. ECF No. 155.2 The Court also permanently enjoined Defendants from including a citizenship question on the 2020 Census. Id. However, the Court entered judgment for Defendants on Plaintiffs' Equal Protection claim and on the LUPE Plaintiffs' 42 U.S.C. § 1985(3) claim. Id.On June 3, 2019, Plaintiffs filed a Rule 60(b)(2) Motion for Relief from Final Judgment, alleging that newly-discovered evidence entitled them to judgment on their Equal Protection and § 1985 claims. ECF No. 162. Because an appeal is pending and this Court only retains limited jurisdiction over a Rule 60(b) motion, Plaintiffs also requested that the Court "issue an indicative ruling under Fed. R. Civ. P. 62.1 stating that a Rule 60(b) motion raises a substantial issue or would be granted." Id. at 9 (quoting Fourth Circuit Appellate Procedure Guide (Dec. 2018) at 22-23).After a hearing, ECF No. 169, the Court entered an Order on June 19, 2019, granting Plaintiffs' Motion for an Indicative Ruling Under Rule 62.1(a) and concluding that Plaintiffs' Rule 60(b)(2) Motion raises a substantial issue. ECF No. 174. This Memorandum Opinion explains that Order.I. STANDARD OF REVIEWPlaintiffs ultimately seek relief from the Court's Final Judgment entered in favor of Defendants on Plaintiffs' claims based on the equal protection guarantee of the Fifth Amendment Due Process Clause and, for the LUPE Plaintiffs only, § 1985. To obtain relief under Rule 60(b), a party must show that its motion is timely, that the motion raises a meritorious claim or defense, and that the opposing party would not be unfairly prejudiced by having the *397judgment set aside. See Nat'l Credit Union Admin. Bd. v. Gray , 1 F.3d 262, 264 (4th Cir. 1993) (quoting Park Corp. v. Lexington Ins. Co. , 812 F.2d 894, 896 (4th Cir. 1987) ). When Rule 60(b)(2) is applicable, as here, a party must provide "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)." Fed. R. Civ. P. 60(b)(2).This Court retains limited jurisdiction to consider a motion for relief under Rule 60(b) even though an appeal is pending. See Fobian v. Storage Tech. Corp. , 164 F.3d 887, 891 (4th Cir. 1999) ("[W]hen a Rule 60(b) motion is filed while a judgment is on appeal, the district court has jurisdiction to entertain the motion, and should do so promptly."). Specifically, pursuant to Rule 62.1, the Court may (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. Fed. R. Civ. P. 62.1 ; see also Fourth Circuit Appellate Procedure Guide (Dec. 2018) at 22-23.II. DISCUSSIONThis Court previously concluded that the Secretary's articulated reason for adding a citizenship question to the 2020 Census-to improve Voting Rights Act (VRA) enforcement-was a pretext. ECF No. 154 at 108. However, the Court held that based on the trial record, Secretary's Ross's actual rationale remained, to some extent, a mystery. Id. at 42, 112. Plaintiffs now claim that new evidence sheds additional light on Secretary Ross's real reasoning.Specifically, new evidence shows that a longtime partisan redistricting strategist, Dr. Thomas Hofeller, played a potentially significant role in concocting the Defendants' pretextual rationale for adding the citizenship question, and that Dr. Hofeller had concluded in 2015 that adding a citizenship question would facilitate redistricting methods "advantageous to Republicans and Non-Hispanic Whites." ECF No. 162-3 at 68, 125-126, 128. Before fully exploring the meaning of this new evidence, it is useful, for context, to first review the evidence established at trial.The Court previously found that evidence in the Trial Record demonstrated that persons around Secretary Ross had an interest in whether undocumented immigrants are counted in the Census for apportionment purposes, and that the Secretary did look at that issue. Secretary Ross's activity in this regard included conversations with Chief White House Strategist Steve Bannon who asked the Secretary to speak to Kansas Secretary of State Kris Kobach about adding a citizenship question to the Census. PX-19 (AR 763); PX-58 (AR 2651). Thereafter, complying with Bannon's request, Kobach and Secretary Ross discussed Kobach's ideas about adding a citizenship question to the Census, and "the fact that the US census does not currently ask respondents about their citizenship." PX-19 at 2 (AR 764). Secretary Ross and Kobach also discussed the potential effect adding "one simple question" to the Census would have on "congressional apportionment." Id. Kobach expressed concern that the lack of a citizenship question "leads to the problem that aliens who do not actually 'reside' in the United States are still counted for congressional apportionment purposes," but he did not mention the VRA rationale. Id.Additionally, Deputy Chief of Staff and Director of Policy Earl Comstock emailed the Secretary an article entitled "The Pitfalls of Counting Illegal Immigrants" in response to the Secretary's inquiry into *398whether undocumented people were counted for apportionment purposes on March 10, 2017, shortly after the Secretary's confirmation. PX-55 (AR 2521); Comstock Dep. at 62:13-64:4, 65:5-8. "Potentially" that same day, Secretary Ross made what he later would term his "months old request" that a citizenship question be added to the 2020 Census. Comstock Dep. 146: 1-15; see also PX-88 (AR 3710).The Trial Record also included emails from President Trump's re-election campaign crediting the President with mandating the addition of the citizenship question and various statements and tweets by candidate, President-elect and President Trump, demonstrating his animus towards immigrants and his concern about political power being wielded by undocumented immigrants. PX-64 (AR 2643-44); PX-3 (AR 3424-25); PX-1139; PX-1145; PX-1149; PX-1156; PX-1177.Thus, at the close of trial, Plaintiffs had presented evidence that individuals in Secretary Ross's orbit, including the President and Mr. Kobach, did harbor discriminatory animus towards non-citizens.3 They had also presented substantial evidence, which the Court adopted, that the VRA rationale was not Secretary Ross's original or actual motivation. Ultimately though, the Court could not, by a preponderance of the evidence, connect the dots between the President and Mr. Kobach's views, the Secretary's failure to disclose his real rationale, and the Secretary's final decision and entered judgment in favor of Defendants on the Equal Protection claim and the § 1985 Claim.With this backdrop, the Court turns to the newly discovered evidence.B. Newly Discovered EvidencePlaintiffs point primarily to two pieces of evidence in their Motion: an unpublished 2015 study by Dr. Thomas Hofeller discussing the use of citizen voting-age population (CVAP) data for redistricting purposes and a paragraph found in Dr. Hofeller's files that was identical to a paragraph in an early draft of a letter that would serve as the pretextual basis for the citizenship question. The Court will discuss each in turn.In the newly-discovered unpublished 2015 study, Dr. Hofeller explained how a switch from the current norm of drawing legislative districts of equal total population pursuant to Wesberry v. Sanders , 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) to using CVAP data for redistricting purposes could shift political power in favor of white voters and away from Hispanic voters. ECF No. 162-3 at 60-108. To generate the CVAP data necessary to make this switch-a change that would "be advantageous to Republicans and Non-Hispanic Whites"-Dr. Hofeller concluded that a citizenship question would need to be added to the 2020 Census. Id. at 68.Dr. Hofeller acknowledged that a change from redistricting based on total population to CVAP would be a "radical departure" that might alienate Hispanic voters. Id. at 67. He noted that further research should address whether "the gain of GOP voting strength" from the use of CVAP data would be "worth the alienation of Latino voters who will perceive the switch" as an "attempt to diminish their voting strength." Id. at 63. Dr. Hofeller did not want the 2015 report to be attributed to him "either directly or indirectly" because of the role he played as an expert witness in redistricting cases. Id. at 56-57.*399The significance of this study found in Dr. Hofeller's files is made manifest through evidence previously placed in the record. Existing evidence showed that Dr. Hofeller was "the first person that said something" to Mark Neuman about adding a citizenship question to the 2020 Census. ECF No. 162-4 at 51:7-16.4 Hofeller and Neuman were "good friends" for decades, id. at 137:11-12, and they spoke several times about the citizenship question during the Presidential transition when Neuman was serving as the point person for all issues related to the Census. Id. at 37:16-22; ECF No. 154 at 9; id. at 14 (quoting PX-614).Neuman played an outsized role in advising Secretary Ross and his staff on census-related decisions. See e.g. , PX-87 (AR 3709); PX-614 (COM_DIS00019687) (AR); PX-38 (AR 2051_0001); PX-145 (AR 11329); PX-592 (COM_DIS00017396) (AR); PX-52 (AR 2482); PX-193. After serving as the point person for all issues related to the Census during the Presidential transition in 2016 and 2017, Neuman went on to serve as a "trusted advisor" to Secretary Ross on Census issues. ECF No. 154 at 9; id. at 14 (quoting PX-614).When Secretary Ross complained in May 2017 that nothing had been done about his "months-old request to add a citizenship question," see ECF No. 154 at 10, his chief of staff asked whether she should try to set up another meeting with Neuman, and Ross responded that they should try to "stick Neuman in there to fact find." PX-83. On September 7, 2017, the Department of Commerce's general counsel, Peter Davidson, expressed "concern" about contacting Kansas Secretary of State Kris Kobach about Census matters, and instead recommended that the team "set up a meeting with" someone "trusted" like Neuman before doing "anything externally." PX-614 at 3 (COM_DIS00019687) (AR). Days later, on September 13, 2017, John Gore, the then-Acting Assistant Attorney General for Civil Rights, first connected with Department of Commerce staff about the citizenship question issue. PX-68 (AR 2659); PX-59 (AR 2628); PX-60 (AR 2634) Once Gore-the political appointee who would go on to ghostwrite DOJ's request-had been recruited to solicit the addition of a citizenship question, Neuman communicated with him about the pretextual rationale upon which DOJ could base its request. PX-52; ECF No. 103-10 at 437-38; See also ECF No. 103-8 at 155-56.And that leads to the significance of the second key piece of newly discovered evidence. It now appears that Dr. Hofeller worked with Neuman to concoct the VRA pretext that Neuman then provided to Gore on the Secretary's behalf. ECF No. 162-3 at 2; ECF No. 162-4 at 112:5-11; PX-52 (AR 2482). At a meeting arranged by the Department of Commerce's in-house counsel, Neuman handed Gore a draft letter that could serve as a template to request inclusion of a citizenship question on the 2020 Census. ECF No. 162-3 at 118. The template included a paragraph setting forth the pretextual VRA enforcement rationale. Id. at 125. A copy of this same paragraph was found in Dr. Hofeller's files, indicating that he may have drafted the paragraph that was later incorporated into Neuman's template. Id. at 128.Secretary Ross was aware of Neuman's role as a go-between and specifically of the meeting at which Neuman handed Gore the template DOJ letter apparently co-written with Dr. Hofeller. PX-52 (AR 2482). When the Secretary asked Davidson *400about the "Letter from DoJ" in an October 8, 2017 email, Davidson replied that he was "on the phone with Mark Neuman right now" getting a "readout of his meeting last week." Id. He offered to give the Secretary "an update via phone," id. , to which the Secretary responded, "please call me." Id.Plaintiffs' new evidence potentially connects the dots between a discriminatory purpose-diluting Hispanics' political power-and Secretary Ross's decision. The evidence suggests that Dr. Hofeller was motivated to recommend the addition of a citizenship question to the 2020 Census to advantage Republicans by diminishing Hispanics' political power. ECF No. 162-3 at 68. Taken together with existing evidence, it appears that Dr. Hofeller was involved in the creation of the pretextual VRA rationale and worked with Neuman, Secretary Ross's "trusted advisor," PX-614, to drive the addition of a citizenship question. ECF No. 162-3 at 2-5; PX-52 (AR 2482). Dr. Hofeller's close relationship with Neuman, the fact that they had early discussions about adding the citizenship question and his apparent work with Neuman in crafting the VRA pretext all point to a possible, if not likely, conclusion that the decisionmakers adopted Dr. Hofeller's discriminatory purpose for adding the citizenship question. In this way, a connection between Dr. Hofeller's motive and the decisionmakers' motivations may be less attenuated than any connection between evidence of Kris Kobach's motivations and the Secretary and his staff's intent.The Court is unconvinced by Defendants' argument that Plaintiffs' Rule 60(b) Motion must fail because the newly-discovered evidence supports an entirely different theory than the one advanced at trial. First, the new evidence that decisionmakers may have been originally motivated to add a citizenship question to allow for the use of CVAP data for redistricting purposes because of that change's effect on Hispanic political power does not conflict with Plaintiffs' trial theory that Defendants were also motivated to add the question so that Hispanics and noncitizens would be undercounted. Instead, these methods of depriving Hispanics and/or non-citizens of equal representation are entirely complementary. Whether the ultimate goal was accomplished by causing an undercount of Hispanics and non-citizens or by creating and then using a data set (CVAP) that was less likely to include them, the discriminatory purpose was the same.Further, accepting for the sake of argument that the newly-discovered evidence supports an entirely different theory about the decisionmakers' discriminatory purpose, it still provides additional force to Plaintiffs' original theory. At trial, evidence was provided that Kobach, motivated by discriminatory animus, spoke to Ross about adding a citizenship question; the Trump campaign, with the backdrop of many statements and tweets demonstrating discriminatory animus by the President, sought to take credit for the citizenship question; and Secretary Ross was provided reading material regarding the pitfalls of counting illegal immigrants in the Census, a problem that would be mitigated by adding a citizenship question. Ultimately, the Court found that this evidence still fell just short of establishing discriminatory intent by a preponderance of the evidence. However, even if Dr. Hofeller's study evidences a different approach, the fact that yet another person was providing input into the decision-making process that was based in discriminatory purpose, with no counterbalancing reasoning other than one the Court found to be pretext, provides more weight to Plaintiffs' position that Defendants' ultimate motivation in adding the citizenship question *401was discriminatory. Additionally, there is a basis to conclude that Dr. Hofeller's views directly impacted the decision. Thus, at the very least, Plaintiffs have raised a substantial issue.C. Additional Defense ArgumentsIn addition to challenging the import of the evidence, Defendants raise additional questions, to which the Court now turns.1. Does the Motion comply with Rule 60(b) ?In addition to raising a meritorious claim, to comply with Rule 60(b), the movant must demonstrate that the opposing party would not be unfairly prejudiced and that the motion is timely. Nat'l Credit Union Admin Bd. v. Gray , 1 F.3d 262, 264 (4th Cir. 1993).Regarding Defendants' claim that they will suffer unfair prejudice if the judgment is set aside, the Court is sensitive to Defendants' deadlines. However, Defendants' deadlines affect Plaintiffs' ability to obtain relief and appellate review just as much as they impact Defendants'. Further, an appeal is currently pending before the Fourth Circuit and is not yet ripe, meaning whether Defendants were waiting for a ruling by this Court or by the Fourth Circuit, their deadlines could come and go under either circumstance. Finally, because this Court previously concluded that, on his path to adding a citizenship question, Secretary Ross bulldozed over the Census Bureau's standards and procedures for adding questions, at times entirely ignoring the Bureau's rules, ECF No. 154 at 100-108, any prejudice that Defendants now face is partially of their own making. Taken together, the Court cannot conclude that Defendants would be unfairly prejudiced by having the judgment set aside.Additionally, Plaintiffs' Motion is timely. This Court entered judgment on April 5, 2019, and Plaintiffs could not reasonably have obtained this evidence prior to or within 28 days of that judgment, despite their diligent discovery efforts. Neuman mentioned at his deposition, which was taken on the last day of fact discovery, that Dr. Hofeller was the first person to raise the citizenship question issue with him, ECF No. 162-4 at 51:7-16, but he may have misled Plaintiffs about the nature of Hofeller's role, ECF No. 162-4 at 138:3-15; id. at 143:25-144:6; id. at 54:11-56:24. Neuman represented at his deposition that the "substance" of his conversations with Dr. Hofeller were limited to encouragement that "block level data" was necessary to "draw the most accurate districts" and requests that the administration not "skimp on the budget." ECF No. 162-4 at 138:3-15. Neuman also testified that he did not rely on Dr. Hofeller for "expertise on the Voting Rights Act." Id. at 143:25-144:6. The new evidence casts doubt on the plausibility of this testimony. Similarly, Neuman also suggested that Hofeller's interest in obtaining citizenship data from the Census was to create Latino-majority voting districts, ECF No. 162-4 at 54:11-56:24, which is unlikely in light of Hofeller's 2015 study. Neuman further testified that he "wasn't part of the drafting process of the [DOJ] letter." Id. at 114:15-21. The newly-discovered evidence indicating that Neuman and Hofeller collaborated to draft a template DOJ letter calls the credibility of this testimony into question. Thus, it is possible that if Neuman had testified more accurately, Plaintiffs would have had the necessary motivation to pursue the material now at issue.Defendants argue that Plaintiffs had access to the Hofeller documents on March 13, 2019. ECF No. 168-1 at 11. That is inaccurate. The large law firm representing *402the New York Plaintiffs had access to the documents because of their work on an unrelated case on March 13, 2019. ECF No. 162-3 at 2; see also ECF No. 167-1 ¶¶ 1-5. They had no reason to search the documents for terms relevant to this action. Id. When the documents were subsequently identified as relevant to the New York plaintiffs, those plaintiffs filed the New York Motion, publicly revealing the new evidence's existence for the first time. Id. at 2-5. Days later, the Plaintiffs here filed their motion. In sum, Plaintiffs have demonstrated that the newly-discovered evidence could not have been discovered with reasonable diligence in time to raise the evidence at trial or to move for a new trial under Rule 59(b). Fed. R. Civ. P. 60(b)(2).Defendants' argument that the newly-discovered evidence is clearly inadmissible also fails. To authenticate the documents found on Dr. Hofeller's computer, Plaintiffs have provided the deposition testimony of Dr. Hofeller's daughter taken in the unrelated North Carolina litigation. ECF No. 167-28. That testimony establishes how Ms. Hofeller came into possession of the documents. Id. at 20. Given her distant location, Ms. Hofeller is an unavailable declarant and her prior sworn testimony is likely admissible under Rule 804(b)(1) because the parties cross-examining her in the unrelated North Carolina action had a similar motive to question her on authentication issues as the Defendants here. Fed. R. Evid. 804(b)(1) ; see also Horne v. Owens-Corning-Fiberglas Corp. , 4 F.3d 276, 283 (4th Cir. 1993) (holding that district court's introduction of past deposition testimony was proper even though plaintiff was not a party to the prior litigation and noting that "privity is not the gravamen" of Rule 804(b)(1) ). It is irrelevant that the North Carolina action is factually unrelated to this case because Ms. Hofeller's deposition testimony served the same purpose in that case as it would here.The newly-discovered documents are also not barred by the rule against hearsay. Plaintiffs would not be admitting either of the key documents for their truth but rather to show the motive or intent behind the citizenship question.The Court did not arrive at its previous findings-that Secretary Ross's articulated reasoning was pretextual and that the overall decision to add a citizenship question was arbitrary and capricious-lightly; instead, careful consideration of the evidence compelled those conclusions. The question of whether the Secretary's true reasoning was driven by discriminatory animus is similarly weighty. But, here as well, it is becoming difficult to avoid seeing that which is increasingly clear. As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers' motives takes shape.The Court recognizes that because of the unique procedural posture of this and related cases, this Opinion and the Order it supports may well be moot by the time it is read by anyone other than the Court's own staff. Nonetheless, pursuant to Rule 62.1, the Court finds a substantial issue has been raised. If the case is remanded, the Court will reopen discovery for no more than 45 days, order an expedited evidentiary hearing, and provide a speedy ruling.III. CONCLUSIONFor the foregoing reasons, on June 19, 2019, the Court granted Plaintiffs' Motion for an Indicative Ruling Under *403Rule 62.1(a), finding Plaintiffs' Rule 60(b) Motion raises a substantial issue.Only the LUPE Plaintiffs alleged the § 1985 claim.Unless otherwise noted, all citations to the docket are to the lead Case: No. 18-CV-1041.Outside of showing that a citizenship question is likely to disparately impact Hispanics, the Court found that Plaintiffs, at that time, had not provided any evidence that Secretary Ross was motivated by animus towards Hispanics/Latinos.Pin cites to deposition transcripts refer to the page numbers generated by the transcripts rather than the page number generated by the ECF system. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2265100/ | 619 A.2d 514 (1993)
In re Peter E. NOVICK, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
Nos. 90-SP-93, 90-SP-927.
District of Columbia Court of Appeals.
Submitted January 7, 1993.
Decided January 23, 1993.
Before FERREN, KING and SULLIVAN, Associate Judges.
PER CURIAM:
This matter is before the court on the Report and Recommendation of the Board on Professional Responsibility (the Board) that respondent be disbarred, effective nunc pro tunc as of July 28, 1989, as a consequence of his conviction for a violation of 18 U.S.C. § 1001, making a false statement in connection with a Department of Housing and Urban Development transaction. While this matter was pending before the Board, respondent filed a Motion to Consent to Disbarment in this court. Bar Counsel has filed a memorandum in support of that motion. Respondent concedes that if he is disbarred by consent, and if he should seek reinstatement under D.C.Bar Rule XI, § 16, he would have the burden of proving rehabilitation. We accept and adopt the Board's recommendation.
This matter arose both as a reciprocal proceeding, pursuant to D.C.Bar Rule XI, § 11, based on respondent's voluntary disbarment in Maryland, pursuant to D.C.Code § 11-2503(a), and under D.C.Bar Rule XI, § 10(c) because respondent was convicted of a criminal offense. In the past, we have referred this type of matter to the Board for a determination of whether the offense of conviction constituted one of moral turpitude. If the offense was determined to be one of moral turpitude, the respondent would be permanently disbarred and could never seek readmission. Disbarment for any other reason, however, including disbarment by consent, allowed an attorney to apply for readmission after five years. Therefore, even in those cases where a respondent was prepared to consent to disbarment, the matter would ordinarily *515 be referred to a Hearing Committee to determine whether the offense was one involving moral turpitude.
Last year this court held, in In re McBride, 602 A.2d 626 (D.C.1992) (en banc), that when an attorney was disbarred for having committed a crime of moral turpitude, readmission could be sought after five yearsthe same rule that applies to disbarment for any other reason. As a result, the Board maintains, and Bar Counsel agrees, that there is no longer any need to refer a case to a Hearing Committee to determine whether respondent's offense is one of moral turpitude since he will be able to apply for readmission after five years regardless of the nature of the offense. The respondent, Bar Counsel, and the Board share the view that it would be a misuse of resources to pursue this matter in a Hearing Committee since that course will necessarily result in a sanction no different than the one respondent has conceded should be imposed upon him in his Motion to Consent to Disbarment. We agree.
Accordingly, in light of McBride, we accept the recommendations of the Board and grant respondent's Motion to Consent to Disbarment. If respondent seeks readmission in the future, he will then be required to confront the issue raised relative to the misconduct that gave rise to his criminal conviction. See In re White, 605 A.2d 47 (D.C.1992). Accordingly, it is
ORDERED that respondent be disbarred from the practice of law in the District of Columbia, nunc pro tunc to July 28, 1989, with reinstatement to be subject to proof of rehabilitation and other requirements of D.C.Bar Rule XI, § 16. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265102/ | 422 Pa. Super. 343 (1992)
619 A.2d 709
COMMONWEALTH of Pennsylvania, Appellant,
v.
Michael MORRIS.
Superior Court of Pennsylvania.
Argued October 22, 1992.
Filed November 25, 1992.
Reargument Denied February 2, 1993.
*346 Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
Paul George, Asst. Public Defender, Philadelphia, for appellee.
Before CIRILLO, MONTEMURO and TAMILIA, JJ.
CIRILLO, Judge:
The Commonwealth appeals[1] a Court of Common Pleas of Philadelphia County order suppressing 109 vials of crack cocaine found after a routine traffic stop. We reverse.
Michael Morris was charged with possession and possession with the intent to deliver a controlled substance. Morris was a passenger in a car stopped in mid-morning by Officer Larry Smart for failing to signal a right-hand turn. When Officer Smart approached the stopped car he saw Morris stuffing a brown paper bag under the seat. Officer Smart went around the car to the passenger's side and ordered Morris out of the car. The police officer looked into the car and found a brown paper bag containing clear vials. He testified that when he saw the vials he recognized, and it was later confirmed, that they contained crack cocaine. The police officer patted Morris down for weapons while the driver remained in the car with his hands on the dashboard as Officer Smart had ordered. Officer Smart then arrested Morris.
We are asked to determine whether an officer's order to a passenger to get out of a car, following a routine traffic stop, *347 and the subsequent seizure of contraband under the passenger seat was reasonable under the facts of this case.
In reviewing an order granting a motion to suppress, we must first determine whether the suppression court's factual findings and legal conclusions are supported by the record. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992) (citing Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987)). To determine whether the findings of fact are supported by the record, we review only the evidence of the appellee and so much of the evidence of the appellant which, when read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986) (citation omitted). If the factual findings are supported by the record, then we may reverse only for an error of law. Id.
The Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from "unreasonable searches and seizures." Evidence derived from an unreasonable search or seizure is inadmissible at trial. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). To determine whether the vials of crack cocaine were properly suppressed we must determine whether the police officer's search of the car was reasonable. We arrive at this determination by addressing each increment of the confrontation separately: 1) the initial stop of the motor vehicle for a traffic violation, 2) the officer's request that Morris get out of the vehicle, 3) the discovery of the brown bag containing crack vials, and 4) the search of the passenger compartment and the pat down of Morris.
A forcible stop of a motor vehicle by a police officer constitutes a seizure of a person and activates the protections of the Fourth Amendment of the U.S. Constitution. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989). However, a forcible stop and seizure is not unreasonable under the Fourth Amendment where the officer has articulable and reasonable grounds to suspect, or probable *348 cause to believe that criminal activity may be afoot. Swanger; supra; see Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). Here, the record establishes that the vehicle in which Morris was a passenger was stopped for a violation of the Motor Vehicle Code. Such a stop under these facts is permissible under 75 Pa.C.S.A. § 6308. The initial stop, therefore, was proper. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989); see also Swanger, supra. As this court stated in Elliott, "the more difficult question is whether the suppression court erred in concluding that [the officer's] order to [Morris], the passenger, to step from the vehicle constituted an unreasonable invasion in the absence of a reasonable suspicion that he was armed and dangerous." We disagree with the suppression court's conclusion that, regardless of the lawfulness of the vehicle stop, the officer had no justification for ordering Morris out of the car.
Concern over the safety of our police officers mandates that a police officer maintain the authority to order a driver out of a vehicle. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), the Supreme Court found that an officer's order to a driver to get out of a vehicle, issued after the driver was legally detained for a motor vehicle violation, was not an unreasonable seizure when balanced against legitimate concerns for the officer's safety. Id. at 111, 98 S. Ct. at 333. The Court described the intrusion as "de minimis" as compared to the risks and hazards confronting an officer under these circumstances. Id. at 110-111, 98 S. Ct. at 333. "What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety." Id.
In Elliott, supra, this court determined that the same rationale applies to passengers in a lawfully stopped vehicle when the officer has an articulable basis to believe that criminal activity is afoot. 376 Pa.Super. at 549, 546 A.2d at 660. As the Elliott court observed, the Mimms case "makes it clear that the officer need not articulate any reason for ordering the driver from the vehicle when the vehicle is *349 lawfully detained for a traffic violation." Id. In Elliott, the officer did not simply order the passenger out of the vehicle as a matter of course. The officer "was able to articulate a tenable reason for his actions." Id. The officer observed beer on ice behind the passenger and empty beer bottles throughout the car. When the passenger told the officer that he was 19 years old, the officer had a sufficient basis for believing that criminal activity was afoot. Id.[2]
Similarly, the officer's actions in the case before us were justified after observing Morris's furtive movements in stuffing a brown bag under the front passenger seat of the vehicle. This action justified not only the command of the officer for Morris to get out of the car, but the subsequent search of the passenger compartment and frisk of Morris under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)[3].
A search without a warrant is generally unreasonable. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963) cert. denied, 375 U.S. 910, 84 S. Ct. 204, 11 L. Ed. 2d 149 (1963). There are, however, exceptions to the warrant requirement. One of those was articulated in Terry, where the Supreme Court held that a police officer can "stop and frisk" an individual for weapons on an articulable suspicion that wrong-doing may be afoot and that the subject may be armed. The Terry rationale is based upon the legitimate interest in allowing an officer to protect himself or herself.
*350 In Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983) the Supreme Court extended the rationale of Terry to include the passenger compartment of a car, holding:
[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer believing that the suspect is dangerous.
Id. at 1049, 103 S. Ct. at 3481.
Turning to the case at hand, we find that the officer lawfully stopped the car in which Morris was riding for a violation of the Motor Vehicle Code. Once the car was stopped, Officer Smart acted reasonably in ordering Morris out of the car after he saw Morris push a bag under the seat. Elliott, supra. The officer's observation of Morris's actions created more than a mere guess; his observations supported a genuine belief that his safety was in jeopardy and, at the very least, articulable suspicion that the bag contained contraband or a dangerous weapon. Terry, supra; Long, supra; Elliott, supra.
The officer was positioned lawfully, and he was entitled to search the car for his own protection. Terry, supra; Long, supra. The fruits of that search are, consequently, admissible. Katz, supra.[4] The seizure of the bag *351 and visible contraband, following the permissible stop and order for Morris to get out of the car, gave the officer reasonable suspicion to suspect that Morris was connected with criminal activity or that he may be armed and dangerous. As a result, Morris's pat down and arrest was likewise reasonable. Terry, supra; Long, supra; Elliott, supra.
We note that this case is distinguishable from Lopez, supra, a case recently decided by a panel of this court. In Lopez, after an initial lawful stop, the officer pressed his investigation on no articulable basis. This court held in Lopez that the ensuing search was unreasonable. In this case, seeing Morris push a bag under the seat could reasonably have given Officer Smart fear for his safety. No such basis was present in Lopez.
Order reversed. Remanded for proceedings consistent with this decision. Jurisdiction relinquished.
Decision rendered prior to MONTEMURO, J., leaving the bench.
NOTES
[1] The Commonwealth's right to appeal an unfavorable suppression order is not absolute. It is a qualified right. To accord a suppression order the attribute of finality necessary "`to justify the grant of the right of appeal to the Commonwealth . . .,' the Commonwealth [must] certif[y] in good faith that the suppression order terminates or substantially handicaps its prosecution." Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). The Commonwealth has certified here that the suppression order terminates or substantially handicaps its case. Id. See also 42 Pa.C.S.A. § 5105(a).
[2] Though not a question before us, we point out that there would appear to be no basis for distinguishing between an officer's authority to order a driver from a car, and an officer's authority to order a passenger from a car when the officer reasonably fears in either case for his or her safety or believes that criminal activity is afoot.
[3] Morris argues that the Commonwealth waived the argument that the stop was a legitimate Terry stop and frisk by not raising it at the suppression hearing. We find that the assistant district attorney by citing Pennsylvania cases which rely on Terry amply raised the argument. In any case we are not bound to consider only legal arguments raised in the trial courts; we are free to consider any issue properly preserved on any legal grounds we find appropriate. Pa.R.A.P. 302(a). The Commonwealth vigorously raised the issue that suppression was inappropriate in this case.
[4] While we find that the search of the passenger compartment was reasonable under Terry, supra, and Long, supra, we note parenthetically that notwithstanding the officer's observations of Morris's furtive movement, seizure of the bag would still be permissible under the facts of this case. The record establishes that the bag was only partially stuffed under the passenger seat with exposed clear vials protruding out from under the seat. Accordingly, the officer would be justified in seizing the bag as the vials were in plain view and the seizure would be a continuation of the officer's prior justification of legally stopping the car for a motor vehicle violation. Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984) (the plain view doctrine is not an independent exception to the warrant requirement, but rather, it is an extension of whatever the prior justification for the officer's access to the object may be). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265104/ | 54 Cal. App. 4th 772 (1997)
ORANGE COUNTY WATER DISTRICT, Plaintiff and Respondent,
v.
ASSOCIATION OF CALIFORNIA WATER AGENCIES JOINT POWERS INSURANCE AUTHORITY, Defendant and Respondent; FEDERAL INSURANCE COMPANY, Defendant and Appellant.
Docket No. G015734.
Court of Appeals of California, Fourth District, Division Three.
April 28, 1997.
*774 COUNSEL
Nelsen, Thompson, Pegue & Thornton, Timothy M. Thornton, Jr., and Glenn M. White for Defendant and Appellant.
Barber & Bauermeister, Linda Bauermeister-Schlott and Karen S. Oittinen for Plaintiff and Respondent.
Kronick, Moskovitz, Tiedemann & Girard, Edward J. Tiedemann, Robin Leslie Stewart, and Jeffrey M. Starsky for Defendant and Respondent.
Joseph E. Sheeks and Terry J. Traktman as Amici Curiae on behalf of Plaintiff and Respondent and Defendant and Respondent.
OPINION
WALLIN, J.
In this case we are asked to consider whether a public entity self-insurance pool, formed by several water agencies pursuant to a joint exercise of powers agreement, is "insurance" subject to a commercial insurer's policy provision that its coverage will not apply until all "other insurance" is exhausted. Because the statutes authorizing creation of public entity self-insurance pools specifically provide such arrangements are not to be considered insurance (Gov. Code, § 990.8, subd. (c)),[1] we conclude the "other insurance" clause is not applicable and affirm the judgment.
In 1979, the Orange County Water District (OCWD) and several other water agencies entered into a joint powers agreement (the JPA) which created the Association of California Water Agencies Joint Powers Insurance Authority (the ACWA-JPIA). The ACWA-JPIA was created under section 6500 et seq., authorizing the joint exercise of power by two or more public agencies; section 990.4, providing that public agencies may insure themselves against tort or other liabilities and may do so through self-insurance *775 and/or purchase of commercial insurance; and section 990.8 which authorizes two or more public entities to form a joint powers authority for the purposes of obtaining insurance or pooling self-insured claims or losses. The stated purpose of the ACWA-JPIA was to pool self-insured losses, jointly purchase excess insurance, and share administrative and other claims-related services. The ACWA-JPIA is a legal entity separate and distinct from any of its member districts.
Joint powers liability pooling arrangements, like the ACWA-JPIA, were approved by the Legislature in the 1970's in response to the insurance crisis faced by California public agencies. Part of the legislation was section 990.8, subdivision (c), which provides, "The pooling of self-insured claims or losses among entities as authorized in subdivision (a) of Section 990.4 shall not be considered insurance nor be subject to regulation under the Insurance Code." (Italics added.) The express purpose of this bill was to "recognize these self-insuring pools as an alternative to insurance and remove them from regulation under the Insurance Code." (City of South El Monte v. Southern Cal. Joint Powers Ins. Authority (1995) 38 Cal. App. 4th 1629, 1634 [45 Cal. Rptr. 2d 729], citing Assem. Com. on Finance, Insurance, and Commerce, Analysis of Sen. Bill No. 2054 (1975-1976 Reg. Sess.) as amended June 1, 1976.)
To participate in the ACWA-JPIA, each member district pays an annual "deposit premium" or contribution to the pool which pays for its own and other member districts' losses and administrative costs. The initial contribution is based on the member district's payroll, incurred losses for the prior three years, and other factors. Thereafter, the premium is based on the ratio of the member district's initial contribution to the total contributions. Periodically, an adjustment is made to the contribution amount to account for a member district's actual losses. As a result, the member district might get a refund of past contributions or be required to pay an additional amount for a prior year. If an additional payment is significantly higher than the member district's annual contribution, it may spread the payment over up to five years.
The JPA contained a detailed memorandum of liability coverage setting forth the types of losses which would be covered by the ACWA-JPIA and the limits of that coverage. As applicable here, the ACWA-JPIA will pay up to $500,000 for any one occurrence of bodily or personal injury or property damage.
In February 1990, OCWD entered into a contract with Beylik Drilling, Inc., for drilling services. The contract required Beylik to indemnify OCWD *776 for claims and to obtain appropriate liability insurance which named OCWD as an additional insured. The contract required the insurance policies be in a form acceptable to OCWD and contain an endorsement that it was primary insurance and that no insurance held by OCWD would be called upon to cover losses under the policies.
Beylik obtained two general liability policies. The first, from Maryland Casualty, and the second, an umbrella excess liability policy from Federal Insurance Corporation (FIC). The certificate of insurance provided to OCWD contained the statement that the liability policies were primary and no insurance of OCWD's would be called upon to cover losses under the policies.
The FIC policy contained a standard "other insurance" clause. The policy stated it would cover losses to which no "Underlying Insurance" (specifically defined as the Maryland policy) or "other insurance" applied. It also stated that if "other insurance" applied to the loss, the FIC policy was excess to that insurance and FIC would not pay until the "other insurance" was used up. The policy defined "other insurance" as any insurance other than the Underlying Insurance.
On July 16, 1991, Anthony Grossi was severely injured on the Beylik/OCWD jobsite. He sued Beylik and OCWD for $25 million. OCWD tendered the claim to Maryland and FIC. Maryland admitted coverage and provided a defense. FIC agreed there was coverage, but asserted its policy was excess to the Maryland policy and coverage under the ACWA-JPIA, and it would not extend coverage until coverage under both was exhausted.
OCWD filed its declaratory relief action against FIC in June 1993. The ACWA-JPIA was subsequently brought in as an additional defendant. OCWD filed its motion for summary judgment in December 1993, and ACWA-JPIA joined. One of FIC's arguments in opposition to the motion was that OCWD and ACWA-JPIA had either waived, or should be estopped to raise, the argument that the coverage under the JPA was not "insurance" because the JPA used the term "insurance" and other insurance-related expressions in describing the ACWA-JPIA's obligations toward its member districts. It requested it be allowed to conduct discovery on this issue to prove estoppel, but its motion for a continuance was denied.
The trial court granted summary judgment finding the JPA was not an insurance policy and the FIC "other insurance" provision was not applicable. FIC's motion for new trial was denied.
*777 I
(1) FIC contends the liability coverage provided OCWD by the ACWA-JPIA is subject to the "other insurance" clause contained in its policy. We disagree.
Summary judgment is granted when the evidence establishes there is no material issue of fact to be tried. (Code Civ. Proc., § 437c.) The facts are undisputed.[2] We exercise our independent judgment as to the legal effect of those facts. (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal. App. 3d 1072, 1086-1087 [234 Cal. Rptr. 835].)
The FIC policy provides that if "other insurance" applies to a loss, the FIC policy is excess to that insurance. FIC's first argument is that the ACWA-JPIA coverage is in reality insurance and is subject to all of the general principles of insurance law, including rules of priority of coverage. It is not.
Preliminarily, Insurance Code section 22 states that insurance is a contract which undertakes to indemnify the insured against loss, damage or liability, arising from an unknown or contingent event. A self-insurer does not contract to indemnify another, nor does the ACWA-JPIA indemnify its member agencies in the traditional sense. Rather, the member agencies through the ACWA-JPIA have pooled their resources to jointly manage their liability claims. Claims are paid out of the ACWA-JPIA's self-insured retention pool and then by excess insurance purchased by the ACWA-JPIA. Each member agency's contribution, or premium, is based on its loss history and payroll, but the contribution is later adjusted to reflect the agency's actual losses. Because the member agency ultimately pays back to the ACWA-JPIA amounts paid out in its behalf, there has been no shifting of the risk of loss. Thus, the arrangement lacks a fundamental feature of "insurance." (See Nabisco, Inc. v. Transport Indemnity Co. (1983) 143 Cal. App. 3d 831, 836 [192 Cal. Rptr. 207] ["We recognize the term `self-insurance,' while perhaps a misnomer, is nevertheless a common and accepted concept in risk management today."].)
Furthermore, FIC's contention that the ACWA-JPIA coverage is insurance directly conflicts with section 990.8, subdivision (c), which expressly provides such an arrangement is not insurance and is not subject to regulation by the Department of Insurance as such. FIC counters that we should, by resorting to the legislative history of the enactment of section 990.8, subdivision (c), interpret the section as meaning something other than what it so *778 clearly states. It argues the legislative intent was very narrow; simply to exempt public entity self-insurance pools from Department of Insurance oversight. But, it urges, the Legislature did not intend to remove them from all other principles of insurance law.
In City of South El Monte v. Southern Cal. Joint Powers Ins. Authority, supra, 38 Cal. App. 4th 1629, the court explained the intent of the Legislature in adopting section 990.8, subdivision (c) was twofold: "[To] recognize these self-insuring pools as an alternative to insurance and remove them from regulation under the Insurance Code." (38 Cal. App.4th at p. 1634, italics added.) Furthermore, the court concluded principles of insurance law should not be used to interpret the scope of a joint powers self-insurance pooling agreement. "Considering the purpose of the pooling arrangements, we determine questions of coverage are properly answered by relying on rules of contract law that emphasize the intent of the parties. Given a local entity's broad power to insure against all potential liabilities and to do that through joint power pooling arrangements, principles governing insurance carriers and insurance law have no applicability, absent consent of the parties to the pooling agreement. [¶] Joint authority pools are member directed. Municipalities best understand the nature of their risks and losses and a `sense of ownership in the pool endeavor [is] an important motivation in practicing risk management.' [Citation.] The pools are the creation of the membership and reflect the local perspective on matters the members have elected to pool and share. Members agree to abide by the terms of their joint powers agreements and programs and agree to pool prescribed losses. They have the authority to self-insure as they deem appropriate and to provide additional coverage as necessary. This authority is based on the members' perceptions of which risks they elect to pool and which risks they do not. [¶] Members jointly determine the scope and extent of their own coverage. They do so by creating member-written agreements and programs tailored to suit the needs of the participating entities. The governing bodies of these pooling arrangements interpret the agreements and programs to implement the intent of the members. The joint powers agreement, bylaws and the self-insurance program, with related coverage memoranda, provide the framework within which to determine the rights, liabilities, and intentions of the pools and their respective members." (Id. at pp. 1639-1640.) The court went on to hold that while members of a joint powers authority might agree to incorporate some common insurance terms into their agreement, it does not mean they incorporate all principles governing insurance carriers and insurance law. (Id. at p. 1640.)
FIC also contends that even if the ACWA-JPIA is properly considered self-insurance, and not insurance, there is no rational reason to treat *779 self-insurance any differently than insurance for purposes of determining policy priorities. FIC relies primarily upon out-of-state authority. Aetna Casualty & Surety Co. v. Market Insurance Co. (Fla. Dist. Ct. App. 1974) 296 So. 2d 555, Carolina Casualty Insurance Co. v. Belford Trucking Co., Inc. (N.J. Super.Ct.App.Div. 1972) 298 A.2d 288, and Southern Home Insurance Co. v. Burdette's Leasing Service, Inc. (1977) 268 S.C. 472 [234 S.E.2d 870], each held self-insurance certificates of owners of motor vehicles were "other collectible insurance" subject to priority of coverage clauses of the commercial insurance policies at issue. Although California historically followed a different rule (see Metro U.S. Services, Inc. v. City of Los Angeles (1979) 96 Cal. App. 3d 678, 683 [158 Cal. Rptr. 207] [City's self-insured retention pool was not "insurance" subject to a commercial insurance policy's "other insurance" clause because the Insurance Code differentiated self-insurers from insurers and holders of insurance policies, self-insurance was not a contract of indemnity, and "the cases have uniformly held that the obligations arising from a policy of insurance do not extend to a self-insurer."]; accord, Pacific Intermountain Express v. National Union Fire Ins. Co. (1984) 151 Cal. App. 3d 777, 780 [198 Cal. Rptr. 897]; Western Pioneer Ins. Co. v. Estate of Taira (1982) 136 Cal. App. 3d 174, 179 [185 Cal. Rptr. 887]; O'Sullivan v. Salvation Army (1978) 85 Cal. App. 3d 58, 62 [147 Cal. Rptr. 729]; Glens Falls Ins. Co. v. Consolidated Freightways (1966) 242 Cal. App. 2d 774, 785 [51 Cal. Rptr. 789]), in 1980 the Legislature enacted Insurance Code section 11580.9, subdivision (g), which specifically provides a certificate of automobile self-insurance "shall be considered a policy of automobile insurance" for the purpose of establishing the priority of coverage. (Pacific Intermountain Express v. National Union Fire Ins. Co., supra, 151 Cal. App.3d at p. 781; see Grand Rent A Car Corp. v. 20th Century Ins. Co. (1994) 25 Cal. App. 4th 1242 [31 Cal. Rptr. 2d 88].) But while the Legislature has specifically deemed automobile self-insurance to be insurance for priority of coverage, it does not follow a public entity self-insurance pooling agreement is subject to the same rule. Especially when the Legislature has specifically declared such an arrangement not to be insurance.[3]
*780 II
FIC next argues the ACWA-JPIA is in reality a "risk retention group" governed by the federal Liability Risk Retention Act (15 U.S.C. § 3901 et seq.) and the California Risk Retention Act (Ins. Code, § 125 et seq.), and section 990.8 has no applicability. We reject its argument for two reasons.
Preliminarily, neither the federal nor the state risk retention acts have any bearing on this case. Under both acts to qualify as a risk retention group the entity or association must be "chartered or licensed as a liability insurance company under the laws of a State and authorized to engage in the business of insurance under the laws of such State." (15 U.S.C. § 3901(4)(c); Ins. Code, § 130, subd. (k)(3).) The ACWA-JPIA is neither.
Additionally, FIC did not raise this issue below. We do not ordinarily consider new theories raised for the first time on appeal. (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal. App. 3d 625, 629 [223 Cal. Rptr. 339].) FIC has offered no reason for us to exercise our discretion to do so here. (Cf. Resolution Trust Corp. v. Winslow (1992) 9 Cal. App. 4th 1799, 1810 [12 Cal. Rptr. 2d 510].)
III
(2) Finally, FIC contends the trial court abused its discretion in refusing to grant it a continuance of the hearing on the summary judgment motion so it could conduct discovery on the ACWA-JPIA member agencies' "intent" in drafting the JPA. (Code Civ. Proc., § 437c, subd. (h).) In brief, it argues that by using the term "insurance" in the JPA, the member agencies, including OCWD, evidenced their intent that the ACWA-JPIA be considered insurance. Therefore, they have waived the protections of section 990.8, specifying a joint liability pooling agreement is not insurance, and OCWD should be estopped to deny that the ACWA-JPIA is insurance.
The argument is without merit. The sine qua non of estoppel is that the party claiming it relied to its detriment on the conduct of the party to be estopped. (Standard Oil Co. v. Feldstein (1980) 105 Cal. App. 3d 590, 607 [164 Cal. Rptr. 403].) FIC offered no evidence that it was even aware of, let alone saw or relied upon, the JPA in issuing its umbrella policy to Beylik. Furthermore, evidence of reliance is exclusively within the control of FIC and additional discovery was not necessary to produce it.
*781 The judgment is affirmed.
Sills, P.J., and Rylaarsdam, J., concurred.
NOTES
[1] All statutory references are to the Government Code unless otherwise indicated.
[2] With the exception of undiscovered facts FIC speculates might exist with respect to its estoppel argument discussed post.
[3] Because we conclude the ACWA-JPIA joint liability pool is not "other insurance" within the FIC policy, we need not consider what effect, if any, the underlying contract between OCWD and Beylik has in this case. The construction contract required all insurance to be primary and the certificate of insurance provided to OCWD contained a representation that all policies, including the FIC policy, were primary and no insurance of OCWD would be looked to to cover any loss. (See Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal. 3d 622, 634 [119 Cal. Rptr. 449, 532 P.2d 97] [Agreement between district and contractor required contractor's insurance be primary. Held, despite contractor's policy's "other insurance" clause, it was primary to district's own insurance because to apportion would "effectively negate the indemnity agreement and impose liability on [the district's insurer] when [the district] bargained with [the contractor] to avoid that very result as part of the consideration for the construction agreement."].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265105/ | 619 A.2d 429 (1993)
Philip A. PIRRI, Jr.
v.
TOLEDO SCALE CORPORATION.
No. 91-579-M.P.
Supreme Court of Rhode Island.
January 26, 1993.
Charles F. Reilly, Jr., John J. McConnell, Jr., Robert McConnell, Jr., Michael Marran, Richard Lessard, Providence, for plaintiff.
John G. Rallis, Providence, for defendant.
*430 OPINION
FAY, Chief Justice.
This case came before us on the petition of the defendant, Toledo Scale Corporation, for certiorari. The defendant seeks review of the trial justice's denial of a motion to dismiss. The motion was predicated upon a statute of limitations defense that would have been dispositive.
This matter arises out of a civil suit filed on April 25, 1991, by plaintiff, Philip A. Pirri, Jr. The plaintiff stated that on November 9, 1987, approximately three and one-half years earlier, he sustained an injury to his hand while operating a meat-cutting machine manufactured by defendant. Upon settling a workers' compensation claim with his employer, plaintiff filed a product-liability suit against defendant. The plaintiff's complaint stated three causes of action against defendant. The plaintiff stated that defendant had breached the implied warranty of fitness and merchantability. He alleged negligent design, manufacture, and installation of the machine. He also claimed that the machine was defective, was unreasonably dangerous, and lacked adequate safeguards and warnings.
The defendant filed a motion to dismiss plaintiff's complaint, asserting that the action was not commenced within the period provided by the statute of limitations. The trial justice denied the motion on the grounds that plaintiff's action was not entirely within the three-year statute of limitations for personal injuries. It appears from the record that the trial justice was influenced more by the ability to divide the form of the action than by the nature of the injury alleged.
The defendant argues that plaintiff's damages were in the nature of a personal injury and the period of limitation is controlled by G.L. 1956 (1985 Reenactment) § 9-1-14(b). Section 9-1-14 provides that actions to recover for personal injuries are barred after three years.[1]
The plaintiff claims that his suit is preserved by two separate statutes. He contends that § 9-1-13 applies to all product-liability actions, including actions for personal injuries.[2] An amicus curiae brief was filed in support of plaintiff's argument. The plaintiff further asserts that breach of warranty claims between third-party beneficiaries and manufacturers are governed by the four-year statute of limitations in G.L. 1956 (1992 Reenactment) § 6A-2-725.
In this appeal we must first decide whether the present tort action is subject to the statute of limitations set forth in § 9-1-13(a) or § 9-1-14(b). Our analysis of § 9-1-14(b) is controlled by Commerce Oil Refining Corp. v. Miner, 98 R.I. 14, 199 A.2d 606 (1964), wherein we construed the phrase "injuries to the person." We stated that the purpose of the phrase
"is to include within that period of limitation actions brought for injuries resulting from invasions of rights that inhere in [a person] as a rational being, that is, rights to which one is entitled by reason of being a person in the eyes of the law. Such rights, of course, are to be distinguished from those which accrue to an *431 individual by reason of some peculiar status or by virtue of an interest created by contract or property." Id. at 20-21, 199 A.2d at 610.
The court further noted that it is "the nature of the right invaded and not the elements of damage resulting therefrom that determines its character as an injury to the person." Id. at 21, 199 A.2d at 610.
The plaintiff seeks relief under strict liability and implied warranty theories, in addition to his negligence claim. However, the nature of his claim arises out of a personal injury for which he is entitled to relief "by reason of being a person in the eyes of the law." Id. at 20, 199 A.2d at 610. The plaintiff's physical injuries, pain and suffering, lost earning capacity, and diminished quality of life all stem from the injuries allegedly caused by defendant's machine. Our Legislature "intended that all actions containing a common element, that is, injury to the person, were to be subjected to [the same] period of limitation." Id. at 17, 199 A.2d at 608. There is no legal status, property right, or contractual relationship between the parties creating an alternative right upon which plaintiff might sue. Thus the limitation period set forth in § 9-1-14 for "injuries to the person" is the appropriate statute of limitations.
We next evaluate whether § 6A-2-725 of the Uniform Commercial Code is applicable to the implied warranty alleged by plaintiff. Even though we have disposed of plaintiff's suit, we entertain this issue to clarify the breadth of § 6A-2-725.
The plaintiff asserts that despite Rhode Island precedents holding that the four-year statute of limitations found in § 6A-2-725 is inapplicable to the issue before us, the title of the statute has since been extended to encompass a breach of warranty claim. The title had read, "Statute of limitations in contracts for sale." Section 6A-2-725, History of section. In 1985 the title of the statute was amended to read, "Statute of limitations Contracts for sale Breach of warranty." Id.
Selecting the proper statute of limitations for warranty actions has been a subject of much dispute in this and other jurisdictions. See Taylor v. Ford Motor Co., 185 W. Va. 518, 408 S.E.2d 270 (1991) (summarizing three different positions that have evolved). The rationale underlying the distinction between the application of an implied warranty claim sounding in tort and one that sounds in contract helps to clarify this dispute.
In Romano v. Westinghouse Electric Co., 114 R.I. 451, 336 A.2d 555 (1975), we emphasized the distinct policies underlying tort law in our discussion of strict liability based on the Restatement (Second) Torts § 402A, comment m (1965). We found that strict liability in tort is "free of the restrictions surrounding an action based on a contract for the sale of goods, and that it was developed for the reason that the remedies of the consumer were unduly limited by the peculiarities of the law of sales." Id. at 456-57, 336 A.2d at 558. We noted that " `warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer's liability to those injured by its defective products.'" Id. at 457, 336 A.2d at 558.
In our evaluation of the nature of the action pleaded, we are guided by a consistent line of Rhode Island cases holding that an implied warranty is tortious in nature. See Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288, 373 A.2d 492 (1977); Romano v. Westinghouse Electric Co., 114 R.I. 451, 336 A.2d 555 (1975); Kelly v. Ford Motor Co., 110 R.I. 83, 290 A.2d 607 (1972). We find no reason to depart from the sound holdings of our precedents. "[Section] 6A-2-725 applies only to situations involving a buyer-seller relationship and therefore does not govern noncontracutal [sic] warranty actions against manufacturers." Plouffe, 118 R.I. at 293, 373 A.2d at 495. Despite plaintiff's request, we may only construe the title of a statute if there is doubt about the meaning of its provisions. The Town of East Greenwich v. O'Neil, 617 A.2d 104, 108 (R.I. 1992). We find that the content of the statute is clear *432 and unambiguous and unaffected by the change of the title.
We conclude that § 9-1-14 applies to this entire action, requiring it to be brought within three years of the accrual of the action. The trial justice erred in not granting the defendant's motion to dismiss.
For the reasons stated, the petition for certiorari is granted, the order appealed from is quashed, and the case is remanded to the Superior Court for further proceedings in accordance with this opinion.
SHEA, J., did not participate.
NOTES
[1] General Laws 1956 (1985 Reenactment) § 9-1-14 provides in part:
"Limitation of actions for words spoken or personal injuries. * * * (b) Actions for injuries to the person shall be commenced and sued within three (3) years next after the cause of action shall accrue, and not after." (Emphasis added.)
[2] Section 9-1-13 provides:
"Limitation of actions generally Product liability. (a) Except as otherwise specially provided, all civil actions shall be commenced within ten (10) years next after the cause of action shall accrue, and not after.
"(b) Notwithstanding the provisions of subsection (a) of this section, an action for the recovery of damages for personal injury, death or damage to real or personal property, including any action based upon implied warranties arising out of an alleged design, inspection, listing or manufacturing defect, or any other alleged defect of whatsoever kind or nature in a product, or arising out of any alleged failure to warn regarding a product, or arising out of any alleged failure to properly instruct in the use of a product, shall be commenced within ten (10) years after the date the product was first purchased for use or consumption." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265107/ | 54 Cal. App. 4th 848 (1997)
In re ALEXIS M., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
v.
CHRISTOPHER M., Defendant and Appellant;
WENDY S., Intervener and Respondent.
Docket No. G019950.
Court of Appeals of California, Fourth District, Division Three.
March 28, 1997.
*849 COUNSEL
Steven D. Schatz, under appointment by the Court of Appeal, for Defendant and Appellant.
Laurence M. Watson, County Counsel, and Dana J. Stits, Deputy County Counsel, for Plaintiff and Respondent.
Carolyn L. Silva for Intervener and Respondent.
Harold LaFlamme and Linda M. O'Neil for Minor.
*850 OPINION
SILLS, P.J.
After this appeal was filed, the appellant, Christopher M., was convicted of felony child abuse arising out of the death of a four-month-old child. (See Pen. Code, § 273a, subd. (a).) Christopher is now serving a six-year term in Wasco state prison.
In particular, Christopher's conviction arose out of the January 1994 death of four-month-old Alexander M., who, if he had lived, would have been the elder brother of Alexis M., who was born in September 1994. Christopher was arrested for child abuse on November 16, 1994, two months after the birth of Alexis, and was convicted in September 1996. A petition to declare Alexis a dependent of the juvenile court was filed the day of the arrest. Christopher pled no contest to the allegations in the petition, which were based on the death of Alexander.
Christopher filed this appeal from orders made at a six-month review completed in May 1996, arguing that the juvenile court should have found him to be a presumed father at the dispositional hearing in September 1995 and therefore entitled to reunification services. Christopher was accorded presumed father status in March of 1996 and given reunification services then, but the services were terminated again in November 1996, when the juvenile court found, at a 12-month review, that reunification would be detrimental to Alexis. While Christopher had been convicted of felony child abuse arising out of the death of Alexander by November 1996, that fact was not one of the bases of the trial court's decision. (1) After learning of the conviction, this court specifically requested supplemental briefing on the question of whether Christopher's appeal should not be dismissed as moot, or the judgment otherwise affirmed, because of it.
Welfare and Institutions Code section 361.5, subdivision (b)(4) stated, at the time of Christopher's conviction, that reunification services "need not" be provided a parent who "has been convicted of causing the death of another child through abuse or neglect." Changes in the statute effective January 1, 1997, make the law even less favorable to Christopher. There is no longer the requirement of a conviction simply a finding by clear and convincing evidence that the parent has "caused" the death of another minor.[1]
There is no dispute that very serious acts of abuse perpetrated within the home occurred in this case, resulting in the death of a child. Such abuse is *851 simply too shocking to ignore when the dispositive legal problem is whether the offending parent should have been offered services aimed at a reunification with the surviving child. Indeed, given the gravity and nature of the crime involved here felony child abuse resulting in death of a small infant the idea of reunification with another infant must be considered as bordering on the frivolous. (See § 361.5, subd. (b)(4); cf. In re Geoffrey G. (1979) 98 Cal. App. 3d 412, 423 [159 Cal. Rptr. 460] [conviction of voluntary manslaughter arising out of killing of spouse was "of such a nature as to prove" father's "unfitness to have the future care and control of his son"].)[2]
*852 In Justice Crosby's opinion for this court in In re Andrew B. (1995) 40 Cal. App. 4th 825, 858, footnote 25 [47 Cal. Rptr. 2d 604], there is a collection of cases where juvenile dependency appellants took positions which were palpably untenable. One of those positions was described as: "... a birth father who is currently incarcerated for murdering a child and has a conceded mental disability that renders him incapable of utilizing reunification services may not be denied those services unless the juvenile court makes an additional finding under Welfare and Institutions Code section 361.5, subdivision (e), supported by clear and convincing evidence, that the services would be detrimental to the minor." In other words, somebody took the position that the murderer of a child was still entitled to reunification unless there was a technical reference by the trial court to section 361.5. Christopher's argument that his conviction for felony child abuse does not moot this appeal because section 361.5 was not the basis of the juvenile court's ruling is only a hair removed from the argument condemned in Andrew B.[3]
In the context of the specific facts of this case, Christopher's position is nothing less than surreal. Courts do not exist to explore theoretical possibilities unremoved from concrete cases. His arguments are irrelevant to the issue before us, which is whether reunification would be detrimental to Alexis. The removal of Alexis here arose out of the very incident which gave rise to the felony conviction, and Christopher did not contest the allegations in the petition.[4] Under such facts, we are willing to go so far as to say that *853 it would have been, in the wake of the conviction, an abuse of the juvenile court's discretion to have offered Christopher reunification services.[5]
Our statement in In re Brittany S. (1993) 17 Cal. App. 4th 1399, 1402 [22 Cal. Rptr. 2d 50], about the inappropriateness of "go to prison, lose your child" obviously does not apply in cases where the very reason a parent is in prison in the first place is the death of another child from child abuse, particularly an infant sibling. (§ 361.5, subd. (b).)
The appeal is dismissed as moot.
Crosby, J., and Sonenshine, J., concurred.
A petition for a rehearing was denied April 28, 1997, and appellant's petition for review by the Supreme Court was denied June 18, 1997.
NOTES
[1] Section 361.5, subdivision (b)(4) now reads: "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] ... [¶] (4) That the parent or guardian of the minor has caused the death of another minor through abuse or neglect." All statutory references to section 361.5 are to the Welfare and Institutions Code.
[2] In his supplemental letter brief, Christopher argued that section 361.5 simply is not relevant to this case, since no decision had been made by the trial court pursuant to the statute. He also emphasized the discretionary nature of the statutory language ("need not" rather than "shall not"). We reject both arguments because they implicitly trivialize a child's death. The fact of a death and a subsequent petition for felony child abuse arising out of that death simply obliterates almost any possibility of reunification, even if the Legislature did leave a tiny crack open by using the words "need not" instead of "shall not."
In a petition for rehearing made after we initially filed this opinion, Christopher then took issue with the characterization that he "caused" the death of Alexander, and asked us, in that regard, to take judicial notice of the record in the criminal proceeding, which we have. He argues that the evidence in the criminal proceeding was insufficient to determine the cause of death, and that he never actually admitted to causing the death in the dependency proceeding merely to pleading no contest to a petition that a child died in his care.
If Christopher fears that characterizing him in the juvenile proceeding as having "caused" the death of Alexander will collaterally estop him in the criminal proceeding, he need not worry. Because the two proceedings have different burdens of proof, with the burden being more stringent in the criminal proceeding, Christopher will not be collaterally estopped from contending, in the criminal appeal, that the evidence was insufficient. (In re Nathaniel P. (1989) 211 Cal. App. 3d 660, 670 [259 Cal. Rptr. 555]; cf. People v. Sims (1982) 32 Cal. 3d 468, 485 [186 Cal. Rptr. 77, 651 P.2d 321] [because county's burden of proof in administrative proceeding was less than burden in subsequent criminal prosecution, county's failure to show fraud in the administrative proceeding would, "a fortiori," decide issue in the criminal proceeding].)
As to the merits of Christopher's belated causation argument in the context of this juvenile proceeding, the requested judicial notice of the appellate record only confirms the accuracy of our characterization. We need look no further than the summary of evidence at the preliminary hearing contained in Christopher's own motion to strike murder and assault charges. Here are excerpts from Christopher's moving papers: "It is consistent with Dr. Halka's opinion that there was a good possibility that the baby's death was attributable to child abuse.... In this case, there is evidence of repeated trauma over a period of time in various parts of the body.... [¶] Dr. Halka's findings also were consistent with the infant being shaken and then laid face down so that his air supply was cut off.... [¶] Dr. Halka considered it a distinct possibility that the child was killed as a result of shaking.... [¶] Tina told Marilyn that she saw Mr. M[.] pick up the baby and shake Cole [also known as Alexander] on a couple of occasions. The baby was crying while being shaken. Mr. M[.] shook the baby several times to keep him from crying.... [¶] Mr. M[.] had demonstrated to Sherry how he would shake Cole. Mr. M[.] would pick Cole up under the arms and slam him up and down. Sherry told Mr. M[.] that he could kill the baby doing that. Mr. M[.] responded that he just gets upset and frustrated with Cole's crying, and that is why he shakes the infant.... [¶] On January 31, 1994, a phone conversation was taped between Sherry and [Christopher]. In that conversation, Mr. M[.] said `I shook the baby, I don't deny that.' Mr. M[.] also said that at times he cussed at the infant and that he had dropped Cole one night when got up to feed the baby. Mr. M[.] said that he did not tell anyone about it, and that the infant may have been hurt because of broken ribs. Mr. M[.] had said, `Goddam it, I dropped that son of a bitch.' ... Mr. M[.] said that when he got frustrated with the baby, he lifted Cole over his head and shook him back and forth. When the baby cried, he said `What's the fuck's a matter with you?'"
Christopher's "causation" argument, as made in the criminal proceeding and reiterated in his petition for rehearing here, rests on the idea that because it is was very hard to pinpoint the precise cause of his son's death even though the child was admittedly abused during his short lifetime that death therefore should be ascribed to sudden infant death syndrome. Whatever the merits of this argument for the criminal appeal yet ahead, it does nothing to undermine applicability of section 361.5 in the juvenile case: A child died; a juvenile dependency petition was filed arising out of that death; and a parent was tried and convicted of felony child abuse based on that death. Under such circumstances, it would absolutely defy common sense for us to say anything else but that Christopher caused the death of Alexander.
[3] While the author of this opinion dissented in In re Andrew B. and the other member of this panel signed In re Kayla G. (1995) 40 Cal. App. 4th 878 [47 Cal. Rptr. 2d 86], which took a position opposite that of Andrew B. on the question of Wende review, this panel is united on the point made in footnote 25 of Andrew B.: Too many arguments in juvenile dependency appeals are being made just to be made.
[4] Christopher lays great stress on the fact the words "the minor's sibling was physically abused which caused her [sic] death" were crossed out in favor of amended language which merely admitted to the fact of death while in his care and custody. For purposes of our analysis in this dependency case, that is a distinction without a difference. The only reasonable inference that can be drawn is that Christopher was morally culpable in some way for the death, particularly in light of the evidence in the criminal case that the dead child had been the object of repeated abuse. Consequently, the possibility of a miscarriage of justice in the juvenile court occurring because the criminal court convicted an innocent person need not concern us here. A much harder case would be presented where a parent actually contested a jurisdictional petition based on the death of another child, claiming to be morally innocent of that death.
[5] Accordingly, Christopher's argument that section 361.5, subdivision (b) necessarily entails development at the trial level and therefore cannot moot an appeal when there is a conviction for felony child abuse arising out of the death of a child is unpersuasive. It is only common sense that the times when a parent commits felony child abuse, and an infant dies, and the parent should still be offered reunification services regarding the surviving children are going to be extremely rare. The enormity of a death arising out of felony child abuse swallows up almost all, if not all, competing concerns. And, while the Legislature's wording may allow for some theoretical case where a parent can be convicted of felony child abuse arising out the death of a child and still be accorded reunification services, this case isn't it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265108/ | 619 A.2d 94 (1993)
MAINE BEER & WINE WHOLESALERS ASSOCIATION, et al.
v.
STATE of Maine.
Supreme Judicial Court of Maine.
Argued November 18, 1992.
Decided January 5, 1993.
*96 H. Glenn Alberich (orally), Amy J. Axelrod, Mahoney, Hawkes & Goldings, Boston, MA, John A. Graustein, Drummond, Woodsum, Plimpton & MacMahon, Peter L. Murray (orally), Barbara T. Schneider, Murray, Plumb & Murray, Portland, for plaintiffs.
Michael E. Carpenter, Atty. Gen., Lucinda E. White (orally), Asst. Atty. Gen., Augusta, for defendant.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, COLLINS and RUDMAN, JJ.
GLASSMAN, Justice.
The plaintiffs, Maine Beer & Wine Wholesalers Association, Inc., Maine Soft Drink Association and Farmington Coca-Cola Bottling and Distributing Co. (hereinafter the industry), appeal from a summary judgment in favor of the defendant, the State of Maine, entered in the Superior Court (Kennebec County, Alexander, J.) on their complaints against the State for declaratory and injunctive relief.[1] They contend that the court erred in determining, as a matter of law, that the amended beverage container deposit statute, 32 M.R.S.A. § 1866-A (Supp.1992), does not effect a taking of property without just compensation in violation of article I, section 21 of the Maine Constitution[2] and the fifth amendment of the United States Constitution.[3] We affirm the judgment.
Submitted on cross-motions for summary judgment, this controversy involves no disputed issues of fact. See M.R.Civ.P. 56(c) (Summary judgment is appropriate when the record reveals no issues of material fact and any party is entitled to a judgment as a matter of law.) The plaintiffs' sole challenge on appeal is to the court's interpretation of 32 M.R.S.A. §§ 1861-1872 (1988 & Supp.1992), as amended, governing the collection and disposition of beverage containers. The statute as originally enacted became effective January 1, 1978, following a favorable statewide referendum. The law's statement of legislative purpose expresses the legislature's finding
that beverage containers are a major source of nondegradable litter and solid waste in this State and that the collection and disposal of this litter and solid waste constitutes a great financial burden for the citizens of this State.
32 M.R.S.A. § 1861(1). In addition, it reveals a legislative intent
to create incentives for the manufacturers, distributors, dealers and consumers of beverage containers to reuse or recycle beverage containers thereby removing the blight on the landscape caused by the disposal of these containers on the highways and lands of the State and reducing the increasing costs of litter collection and municipal solid waste disposal.
Id. § 1861(2). As a result, the law requires that every beverage container sold, or offered for sale to consumers, have a refund value of at least five cents, id. § 1863, that manufacturers, distributors and retailers are required to pay to consumers on presentment of an empty beverage container. Id. § 1866. The mechanics of this refund system were left to the industry, which, in turn, either charged a deposit to consumers to cover the cost incurred or included the statutorily mandated refund value in its cost of doing business.
*97 The amendment at issue, effective July 1, 1991, provides that the industry must maintain a deposit transaction account for the collection of deposits on beverage containers and payment of refund values and distribution of unclaimed deposits. P.L. 1991, ch. 591, §§ R-3 & R-4 (codified at 32 M.R.S.A. §§ 1866(7), 1866-A (Supp.1992)). It defines the minimum deposit as the property of the consumer who purchases a beverage container and declares that such deposit value is held by the industry in trust for the consumer or for the State if the deposit is abandoned by the consumer. Id. § R-1 (codified § 1863). Deposits are presumed unclaimed or abandoned when retained by the manufacturer or distributor 60 days after being collected within any 3-month period. Id. § R-4 (codified § 1866-A). On a quarterly basis, 50% of the unclaimed minimum deposits are to be remitted to the State, id. § R-4 (codified § 1866-A(2)), with reimbursement to the industry if returns exceed the amount credited to the deposit transaction account in any given quarter. Id. § R-4 (codified § 1866-A(3)).
The plaintiffs filed complaints challenging the constitutionality of the amendment. After a hearing, the court granted the State's motion for a summary judgment that the statute does not effect an unconstitutional taking of property, and the industry appeals.
Statutory interpretation is a question for the court. State v. Bellino, 390 A.2d 1014, 1022 (Me.1978). We have previously stated that
[t]he `fundamental rule' in statutory construction is that the legislative intent as divined from the statutory language controls the interpretation of the statute. Unless the statute reveals a contrary intent, the words `must be given their plain, common and ordinary meaning.'... To determine legislative intent when there is an ambiguity in the statute, [however,] the court may look beyond the words themselves to the history of the statute, the policy behind it, and contemporary related legislation.
State v. Edward C., 531 A.2d 672, 673 (Me.1987) (citations omitted). Consequently, the court will give a provision's language "such meaning as may best answer the intention which the Legislators had in mind, when they enacted the statute." Mundy v. Simmons, 424 A.2d 135, 137 (Me.1980). All legislative enactments are presumed constitutional, and the party challenging the constitutionality of a statute bears the burden of proof. Union Mutual Life Ins. Co. v. Emerson, 345 A.2d 504, 507 (Me.1975). This presumption, however, is not absolute; legislation which violates an express mandate of the constitution is invalid even though it is expedient or is otherwise in the public interest. Orono-Veazie Water Dist. v. Penobscot Cty. Water Co., 348 A.2d 249, 253 (Me.1975).
Thus, we construe a statute to promote the end the legislators sought by its enactment and approve a construction which will not nullify its purpose. Waddell v. Briggs, 381 A.2d 1132, 1135 (Me.1978). If necessary, we may ignore the literal meaning of phrases in favor of an interpretation consistent with the legislative intent. State v. Niles, 585 A.2d 181, 182 (Me.1990). It is within this context that we turn to the challenged amendment.
Private property may not be taken for public use without just compensation. U.S. Const. amend. V; Me. Const. art. I, § 21. Although both tangible and intangible property may be the subject of an impermissible taking, there is no property right to potential or future profits. York Hosp. v. Maine Health Care Fin. Comm'n, 719 F. Supp. 1111, 1121 (D.Me. 1989) ("Absent legal entitlement to specific profits, there can be no property interest, and thus, no taking."); Seven Islands Land Co. v. Maine Land Use Regulation Comm'n, 450 A.2d 475, 482 n. 10 (Me.1982) (citing Andrus v. Allard, 444 U.S. 51, 66, 100 S. Ct. 318, 327, 62 L. Ed. 2d 210 (1980)). Furthermore, an appropriation of money does not constitute a per se taking,[4] as *98 would a physical occupation of property or a denial of all its beneficial use. United States v. Sperry Corp., 493 U.S. 52, 62 n. 9, 110 S. Ct. 387, 395 n. 9, 107 L. Ed. 2d 290 (1989) ("It is artificial to view deductions of a percentage of a monetary award as physical appropriations of property. Unlike real or personal property, money is fungible.... Such a rule would be an extravagant extension of the [definition of per se takings]."). Accord Wellman v. Department of Human Servs., 574 A.2d 879, 885 (Me.1990) ("In order for there to be a taking... there must be a physical invasion of private property or a substantial impairment of its use and enjoyment. The concept of a taking does not apply to an overpayment of money to the state by a citizen,... or a fine under a statute later declared to be unconstitutional." (citations omitted)).
Enacted in response to a growing concern with increased litter due to the introduction and popularity of "no deposit, no return" containers, the bottle law is an environmental regulation that falls squarely within the State's police power to regulate for the public health and safety. American Can Co. v. Oregon Liquor Control Comm'n, 15 Or.App. 618, 517 P.2d 691, 698 (Or.App.1973) (citing Huron Cement Co. v. Detroit, 362 U.S. 440, 442, 80 S. Ct. 813, 815, 4 L. Ed. 2d 852 (1960)). Accord Ace Tire Co. Inc. v. Municipal Officers of Waterville, 302 A.2d 90, 97 (Me. 1973). The refund system, as originally enacted, had as its goal the reduction of the cost to the state of collecting and disposing of nondegradable litter and solid waste. Implicit in 32 M.R.S.A. §§ 1861(1)-1861(2) is the legislature's recognition of the cost burden that disposable beverage containers impose on the State and its intention to remove that cost from the general public and place it on those who profit from the sale of the contents of the containers.
Rather than mandating industry sponsored litter pick-up, however, the legislature created an incentive system that encourages consumers to participate in container recycling. By requiring that the industry pay the minimum refund value for returned containers, the legislature expressed its clear intent that the industry remain primarily responsible for the containers. That the industry is free to charge consumers a deposit to cover the cost of its statutory duty to pay refund values does not relieve it of its primary responsibility for the disposal of used containers.
Subsequently, in recognition that the bottle law had only successfully dealt with a portion of the container litter problem, the legislature amended the law to address the disposition of the remaining litter. The amendment focuses on those used containers that disappear from the recycling continuum and may wind up on the roadside or in the State's landfills thereby inflicting a cost on the State, and the amendment makes clear that this cost is, within the purview of the original legislation, also to be borne by the industry that profits from their sale. Recognizing the likelihood that a deposit had been paid for the non-returned containers, and using the unclaimed deposits as a measure of the number of unreturned containers, the legislature made explicit provision for assessing the industry for the public cost of disposing of the unreturned containers by requiring that a percentage of the unclaimed refund values be remitted to the State. Rather than assessing the industry a packaging fee or tax, the legislature chose to depict the unclaimed refund values as the property of the consumers that had been abandoned to the State.[5]
Consequently, the industry's claim that the amendment is a physical invasion and permanent occupation of its sales proceeds and that such action constitutes a per se *99 taking is unavailing.[6] The challenged amendment does not authorize a physical invasion or confiscation of the industry's property but merely regulates its sale of beverage containers by making it financially accountable for those containers not returned. See Yee v. City of Escondido, 503 U.S. ___, ___, 112 S. Ct. 1522, 1529, 118 L. Ed. 2d 153, 166 (1992) (The existence of a wealth transfer does not "convert regulation into physical invasion."); Prudential Ins. Co. of Am. v. Insurance Comm'n, 293 A.2d 529, 537 (Me.1972).
Nor does the amendment, though it imposes costs on the industry, represent an impermissible regulatory taking. Legislation that requires the use of one person's assets for the benefit of another does not violate due process unless it is arbitrary or irrational. Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 223, 106 S. Ct. 1018, 1025, 89 L. Ed. 2d 166 (1986). Similarly, government regulation that exacts costs from private business is permissible as long as it is a reasonable use of the state's police power. Shapiro Bros. Shoe Co. Inc. v. Lewiston-Auburn S.P.A., 320 A.2d 247, 255 (Me.1974). Reasonableness in the exercise of the state's police power requires that the purpose of the enactment be in the interest of the public welfare and that the methods utilized bear a rational relationship to the intended goals. National Hearing Aid Centers, Inc. v. Smith, 376 A.2d 456, 460 (Me.1977). Because the amendment further clarifies and implements the legislature's original goal of reducing the cost to the State of litter collection and disposal by assessing a fee on the industry for the unreturned containers, it is neither irrational nor unreasonable. See Usury v. Turner Elkhorn Mining Co., 428 U.S. 1, 18-19, 96 S. Ct. 2882, 2893-94, 49 L. Ed. 2d 752 (1976) (regulation may be irrational in the absence of any connection between the regulated conduct and the public detriment).
Contrary to the industry's claim, the record discloses no evidence that the amendment imposes a severe economic burden on the industry, or that the industry has a legitimate investment expectation in the status quo.[7]See Connolly, 475 U.S. at 227, 106 S. Ct. at 1027 ("Those who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end.") (quoting FHA v. The Darlington, Inc., 358 U.S. 84, 91, 79 S. Ct. 141, 146, 3 L. Ed. 2d 132 (1958)).
Nor do we find merit in the industry's contention that the required remittance to the State of 50% of the unclaimed deposit values does not comport with accepted principles of abandoned property law. The industry argues that the State's right to the deposits is derivative of those of the consumer and is conditioned on the presentment of the container. Although the reference in the amendment to "abandoned deposits" may be a misnomer, the required remittance to the state of the equivalent of 50% of the minimum refund value on unreturned containers arises precisely because the containers are not returned. The entire thrust of the amendment is to provide a mechanism for the State to recover the cost of disposing of unreturned containers, thereby more fully implementing the purpose of the original statute enacted in 1978.
The entry is:
Judgment affirmed.
All concurring.
NOTES
[1] Maine Beer and Wine Wholesalers Association, Inc. filed its complaint in the Superior Court on August 22, 1991, challenging the constitutionality of the amendment. Maine Soft Drink Association and Farmington Coca-Cola Bottling and Distributing Co. filed their complaint on October 22, 1991, seeking declaratory and injunctive relief similarly charging that the deposit forfeiture provisions are unconstitutional. The court withheld a decision on the plaintiff's subsequent motions for preliminary injunctions, consolidated the cases for all further purposes, and ordered expedited discovery, briefing and oral argument on cross-motions for summary judgment.
[2] Me. Const. art. I, § 21 provides:
Private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it.
[3] U.S. Const. amend. V provides:
[N]or shall private property be taken for public use, without just compensation.
[4] An alleged per se taking, as compared to a regulatory taking claim, requires no case specific analysis of the appropriation but is compensable "per se." Yee v. City of Escondido, 503 U.S. ___, ___, 112 S. Ct. 1522, 1526, 118 L. Ed. 2d 153, 162 (1992); Bell v. Town of Wells, 557 A.2d 168, 178 (Me.1989).
[5] This analogy, although circuitous, does not render the amendment constitutionally infirm since its practical consequences produce a permissible result. See Niles, 585 A.2d at 182; Tiedemann v. Johnson, 316 A.2d 359, 364 (Me. 1974).
[6] The industry's reliance on Webb's Fabulous Pharmacies Inc. v. Beckwith, 449 U.S. 155, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980), is misplaced. In Webb's, the Court invalidated the appropriation of interest on funds deposited with the court as an excessive fee for the court's services: a regulatory taking, not a per se taking. 449 U.S. at 163, 101 S.Ct. at 451-52.
[7] Because this is a facial challenge to the amendment, we are not presented with a case specific factual inquiry. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265110/ | 54 Cal. App. 4th 21 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
CHARLES W. NICHOLS, Defendant and Appellant.
Docket No. A071295.
Court of Appeals of California, First District, Division Three.
April 7, 1997.
*22 COUNSEL
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, and Ross C. Moody, Deputy Attorney General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
PARRILLI, J.
A jury convicted appellant Charles W. Nichols of theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). The jury also found appellant had suffered two prior convictions for robbery of an inhabited dwelling (and related crimes) on March 15, 1984, and first degree burglary on September 16, 1987. The court sentenced appellant to a term of *23 25 years to life pursuant to the three strikes law. (Pen. Code, § 667, subds. (d) & (e)(2)(A).[1])
Appellant raises eight separate issues in this appeal. Most significantly, appellant contends (1) the trial court erred when it failed to give appellant an opportunity to waive his right to conflict-free counsel when his first attorney declared a conflict of interest; (2) his second counsel also had a conflict of interest; and (3) the trial court erred when it refused to inform the jury this was a three strikes case in order to encourage them to exercise their power of "jury nullification." We affirm.
I
FACTS
The facts of the current offense are only tangentially relevant to the issues appellant raises on appeal. It is sufficient to note appellant was initially charged with unauthorized use or theft of a vehicle (Veh. Code, § 10851) and receiving stolen property. (Pen. Code, § 496, subd. (a).) The information alleged six prior felony convictions, four of which brought appellant within the three strikes sentencing scheme. The jury found appellant guilty only of the vehicle charge and found that he had suffered 2 three strikes priors.
The evidence established that on October 26, 1994, appellant was arrested while driving a stolen car, a 1959 Volkswagen. The car had been stolen in Santa Rosa sometime after October 21, 1994. The car contained items the police had reason to believe were stolen from appellant's brother. When the car was returned to its owner, the radio was missing. Although appellant admitted he was driving the stolen car when he was stopped, he claimed he had purchased it on October 26 from a man named Harry White for $250 in cash. Appellant said he did not know the car was stolen.
II
DISCUSSION
A., B.[*]
.... .... .... .... .... .... .... .
*24 C. The Trial Court's Refusal to Inform the Jury That Appellant Was Charged Under the Three Strikes Law.
Early in the trial, the court cautioned defense counsel against mentioning the potential punishment appellant was facing (25 years to life) or that this was a three strikes case. Counsel heeded this warning. However, later during trial, the jury sent a note to the court asking, "Is the defendant part of the three strikes and you're out?" The court responded: "You have given us a note. Sometimes we can answer them and sometimes it's not the appropriate thing to do. If you don't get an answer, you're not supposed to speculate what the answer might have been or make guesses. [¶] I do want to remind you again that in your deliberation, you're not to discuss or consider the subject of penalty or punishment. That subject must not, in any way, affect your verdict. You do have to live with the information that we give you folks here in this room."
(1) Appellant claims the trial court erred by not informing the jury this was a three strikes case. We disagree.
First, to the extent the court informed the jury that the subject of penalty or punishment must not enter into its deliberations, the admonition was unquestionably correct. (CALJIC No. 17.42.) Without this admonishment, "a jury may permit their consideration of guilt to be deflected by a dread of seeing the accused suffer the statutory punishment." (People v. Shannon (1956) 147 Cal. App. 2d 300, 306 [305 P.2d 101]; see also People v. Alvarez (1996) 49 Cal. App. 4th 679, 687 [56 Cal. Rptr. 2d 814]; People v. Moore (1985) 166 Cal. App. 3d 540, 551 [211 Cal. Rptr. 856]; People v. Allen (1973) 29 Cal. App. 3d 932, 936 [106 Cal. Rptr. 43] ["It is settled that in the trial of a criminal case the trier of fact is not to be concerned with the question of penalty, punishment or disposition in arriving at a verdict as to guilt or innocence."].)
However, appellant suggests the jury's question was more than a simple inquiry regarding punishment, but was instead an implicit request for guidance regarding the jury's power to ignore the evidence in the interests of justice. That is, appellant claims the jury wanted to know if appellant was a three strikes candidate because this was important to the jury's decision as to whether it should exercise its power of jury nullification.
Although the jury has "`undisputed power'" to ignore the evidence and the law and to acquit if that is what it chooses to do (People v. Fernandez (1994) 26 Cal. App. 4th 710, 714 [31 Cal. Rptr. 2d 677]; People v. Dillon (1983) 34 Cal. 3d 441, 490 [194 Cal. Rptr. 390, 668 P.2d 697] (conc. opn. of *25 Kaus, J.)), the courts have not required trial judges to instruct on this power. "During the 19th century, most American courts, including the United States Supreme Court, rejected whatever precedent there was on instructing the jury on its power to nullify a verdict and chose to follow the contemporary English practice of not instructing the jury on the point and of not permitting the matter to be raised in argument to the jury. [Citation.] Recent cases by the federal courts of appeals have reaffirmed this position. [Citation.]" (People v. Fernandez, supra, 26 Cal. App.4th at pp. 714-715.) The District of Columbia Circuit explained the reason why instructions on the jury's power of nullification are not given as a matter of course: "What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a `necessary counter to case-hardened judges and arbitrary prosecutors,' does not establish as an imperative that the jury must be informed ... of that power." (United States v. Dougherty (D.C. Cir.1972) 473 F.2d 1113, 1136 [154 App.D.C. 76], fn. omitted; see also People v. Dillon, supra, 34 Cal.3d at pp. 487-488, fn. 39 [Instructing on power of jury nullification "may achieve pragmatic justice in isolated instances, but we suggest the more likely result is anarchy."].)
Since the trial court was not required to instruct on the jury's power of nullification, we see no reason in law or logic why the court would be required to provide the jury with otherwise irrelevant information such as the likely punishment simply to encourage the jury to exercise that power. The Second District, Division Four recently reached a similar conclusion in People v. Baca (1996) 48 Cal. App. 4th 1703 [56 Cal. Rptr. 2d 445], review denied December 11, 1996. In Baca, the defendant, who was subject to the three strikes law, argued he "`had an absolute right to have the jury made aware of the harsh sentence which the court would be required to impose if he were convicted, and to have the jury acquit him if they felt that the sentence was too harsh, regardless of the strength of the evidence of his guilt.'" (Id. at pp. 1705-1706.) The appellate court disagreed. Although the jury in Baca was actually aware the defendant was subject to the three strikes law (id. at p. 1706), the reviewing court concluded the trial court was not required to instruct on the precise penalty appellant faced or on the power of jury nullification. "The California cases, while recognizing the jury's `undisputed power' to acquit regardless of the evidence of guilt, reject suggestions that the jury be informed of that power, much less invited to use it." (Id. at p. 1707, citing, inter alia, People v. Honeycutt (1977) 20 Cal. 3d 150, 157, fn. 4 [141 Cal. Rptr. 698, 570 P.2d 1050] [jury properly instructed that possible punishment is not matter for its consideration]; People v. Moore (1968) 257 Cal. App. 2d 740, 750 [65 Cal. Rptr. 450] [rule that trier of fact must not consider penalty or punishment in arriving at decision on guilt or innocence is fundamental].)
*26 Here, informing the jury appellant was subject to three strikes would in effect be "inviting" the jury to exercise its power of jury nullification.
Finally, appellant relies on Justice Kaus's concurring opinion in People v. Dillon to argue that when a jury asks questions which concern its power to nullify a result which it considers unjust, courts are bound to tell the jurors the truth that they have the absolute power to acquit. In Dillon, Justice Kaus concluded that when a jury in effect asks a trial judge if it has the power of nullification, the judge must answer truthfully that the jurors do have that power. (34 Cal.3d at pp. 492-493.) Putting aside for a moment whether the question in this case was tantamount to the jury asking if it had the power of nullification, we note none of Justice Kaus's colleagues joined in his view and the lead opinion expressly rejected it. (Id. at pp. 487-488, fn. 39; People v. Partner (1986) 180 Cal. App. 3d 178, 185-186 [225 Cal. Rptr. 502].) Thus, in California, trial courts are not required to instruct on the power of jury nullification even if the jury asks whether it has that power.[6]
In sum, the trial court did not err when it refused to inform the jury this was a three strikes case or that the jury had the power to "nullify" the verdict.
D.-H.[*]
.... .... .... .... .... .... .... .
III
DISPOSITION
The judgment is affirmed.
Corrigan, Acting. P.J., and Walker, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 16, 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 II A, II B, II D, II E, II F, II G and II H.
[1] Subsequent statutory references are to the Penal Code, unless otherwise noted.
[*] See footnote, ante, page 21.
[6] In a footnote, appellant acknowledges the California courts which have considered the issue have not "supported the view espoused [in this brief]." He claims this is because the California cases have not paid sufficient attention to the Sixth Amendment underpinnings to the power of jury nullification. What he does not explain, however, is why the Sixth Amendment underpinnings require a court to instruct on the power of jury nullification. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364034/ | 206 Va. 804 (1966)
MARTHA OPAL (BURKE) LASTER, EXECUTRIX, ETC.
v.
REBECCA M. TATUM.
Record No. 6061.
Supreme Court of Virginia.
January 17, 1966.
Norman F. Slenker (Duff & Slenker, on brief), for the plaintiff in error.
Alfred L. Hiss (George H. V. Cooper; Hiss & Rutledge, on brief), for the defendant in error.
Present, All the Justices.
1. Gross negligence is conduct which, though less than wilful recklessness, shows such indifference to others' welfare as to constitute utter disregard of prudence. It is not to be presumed from the mere happening of an accident; rather, the causal connection between defendant's actions and the accident must be established.
2. Plaintiff recovered $15,000 for injuries suffered when the automobile in which she was riding with defendant's decedent went off the road and struck a tree at a curve on a private drive. Plaintiff at one point stated she did not know what caused the accident, but also attributed it to the driver's speed; and her counsel stressed his inattention to his driving while looking at plaintiff. The latter action, however, was not shown to have any causal connection with the mishap, and the driver's speed, even if conceded to be too fast, was not such under the circumstances as to be characterized as gross negligence. Hence final judgment for defendant was entered on appeal.
Error to a judgment of the Circuit Court of Arlington county. Hon. Emery N. Hosmer, judge presiding. The opinion states the case.
GORDON
GORDON, J., delivered the opinion of the court.
The plaintiff, Rebecca M. Tatum, was injured when an automobile in which she was riding struck a tree on the side of a private road. This appeal is from a judgment for $15,000 entered for her against the executrix of Raymond David Burke, the driver of the automobile.
We should consider, first, whether the evidence brought forth at the trial, viewed most favorably to the plaintiff, was sufficient to sustain the jury's finding of gross negligence, proximately causing the accident. Indeed, a finding that the evidence was not sufficient will end our inquiry, since the guest-passenger's judgment can stand only if there was sufficient proof of gross negligence and proximate cause (Va. Code Ann. | 8-646.1 (Repl. Vol. 1957)).
The accident happened August 13, 1962 on Seeger's Lane, after the plaintiff and Burke had attended a party at the Seeger home.
The evidence discloses that Seeger's Lane is blacktopped, winding, and relatively narrow -- when compared to a state road -- but sufficiently wide to permit two cars to pass if care is exercised. The road slopes downward from the Seeger home, on a bluff overlooking the Potomac River, to the scene of the accident; but the grade is not disclosed by the testimony. There is a steep ravine on the right side of the road, at the scene of the accident.
Neither the plaintiff nor Burke had visited the Seeger home before the night of the party. Going to the party, Burke drove slowly after leaving the county road and while traveling on Seeger's Lane. It was dusk and, according to the plaintiff, "that was dangerous"; also, "we [the plaintiff and Burke] didn't know where we were going, and we didn't know what to expect and we didn't know where the house was". The plaintiff and Burke "discussed how treacherous the road [Seeger's Lane] was, going to the Seeger's house".
After attending the party, the plaintiff and Burke left the Seeger home shortly after midnight. The plaintiff described the party, celebrating the twenty-fifth wedding anniversary of William R. Walker and his wife, as "just a family-type party, because his [Walker's] two teen-age children were both there". Nothing else need be said about the party or the plaintiff's and Burke's activities while at the Seeger home. The plaintiff testified that she was not afraid to ride with Burke, and there is no evidence that Burke had been adversely affected by drink or, for any other reason, was in unfit condition to drive the automobile.
Leaving the immediate vicinity of the Seeger home, Burke put *806 his foot on the accelerator "just a little more than he should have" -- "he sort of gunned the car, to leave". (Nevertheless, the tires did not squeal, according to the plaintiff's recollection at the trial.) The plaintiff, who was sitting in the right front seat of the two-door automobile, then looked at the speedometer. It registered about 35 miles an hour, and she asked Burke to slow down. He removed his foot from the accelerator, but the plaintiff testified "he still maintained the speed" and "the car did not necessarily slow down", because it was going downhill. The plaintiff was unable to state how far they traveled at 35 miles an hour. She said "not very far, but he didn't reduce it [the speed] very much".
At some point, Burke turned to look at the plaintiff. (Burke was in a happy mood; the plaintiff had agreed to marry him within a few weeks, and he had just seen the happiness afforded by a successful marriage.) According to the plaintiff, she "turned in the seat at that time so that he could see me, so that he could have his eyes on the road", and she asked him "to watch where he was going". Also, she asked him again "to slow down".
The automobile left the road on a curve, described as a sharp curve, about 200 yards from the Seeger home. It traveled an undisclosed distance before its movement was stopped by a tree. When William R. Walker, who had left the Seeger home shortly after the plaintiff, arrived at the scene of the accident, "the car was up against the tree, partially" -- "it was turned up at an angle against the tree". "The tree had kept it from falling on down the hill". Walker explained "the land falls off there" [on the right side of the road, where the car came to rest]; "it falls off rather sharply, and the tree sits -- the roots of the tree are below the level of the road." Walker did not notice whether the left wheels of the automobile were off the road.
According to the plaintiff, the right side of the automobile "took the bark off" the tree. The pictures introduced in evidence show that the right door of the automobile struck the tree. The glass on this door was broken, and the windshield was shattered at the right side.
The plaintiff's right arm was severely cut and there were abrasions on other parts of her body, apparently caused by broken glass. Her head was bruised by striking the top of the car.
Burke died before trial of this case, from a cause unrelated to the accident, and the plaintiff was the only living eyewitness. She was unable to estimate the speed of the automobile as it approached the *807 curve. She said only "I knew it was faster than it should have been"; "[that] is my opinion. I have got scars to prove it".
When asked why the automobile ran off the road, the plaintiff said, "I wish I could answer that. It ran off the road, mainly, because he was going too fast". At another point in her testimony, the plaintiff admitted that she did not know why the automobile ran off the road.
"Gross negligence" was properly defined in this instruction given by the trial court:
"Gross negligence is not to be presumed from the mere happening of an accident. [1]"
"Gross negligence is defined as conduct showing such indifference to others as constitutes an utter disregard of prudence amounting to complete neglect of the safety of the plaintiff guest, that is, such a degree of negligence as should shock fair minded men although something less than wilful recklessness." [2]
The question is whether Burke's conduct could constitute gross negligence, as so defined. And in testing the evidence against the definition, we should bear in mind that Burke's actions are pertinent only if they were shown to have had a causal connection with the accident. The plaintiff can recover only if the jury was justified in finding that Burke's gross negligence (if any) was the proximate cause of the accident.
Plaintiff's counsel relies upon Burke's failure to keep a proper lookout, in that he directed his attention to the plaintiff while driving down Seeger's Lane. But the evidence does not support a finding that Burke's looking at the plaintiff, instead of at the road ahead, contributed to the accident. The plaintiff's testimony negated any inference of a causal connection. She said she "turned in the seat . . . so that he could see me, so that he could have his eyes on the road". She did not say that this occurred near the scene of the accident, or that Burke, after she turned in the seat, did not "have his eyes on the road". The plaintiff is relegated, then, to excessive speed as the basis for sustaining a finding of gross negligence.
The plaintiff testified that Burke drove at a speed of 35 miles an hour after leaving the Seeger home, but she was unable to give the speed of the automobile as it approached the curve where the accident happened. The evidence disclosed the physical characteristics *808 of Seeger's Lane and the fact that it was dark at the time of the accident. Also, the jury viewed the scene of the accident during the trial. But there was no evidence of any posted sign, nor was there any testimony, that indicated what might be deemed a reasonable speed on Seeger's Lane. [3] Even if the jury could have properly inferred that as the automobile approached the scene of the accident, it was traveling 35 miles an hour, and if the jury could have properly concluded that this was not a reasonable speed under the circumstances, nevertheless the evidence afforded no basis for determining that to travel at this speed, at this time and place, amounted to complete neglect of the safety of the plaintiff-guest.
The result is the same whether the jury accepted the plaintiff's admission that she did not know why the automobile ran off the road, or her statements that "it ran off the road, mainly, because he was going too fast" -- "I knew it was faster than it should have been"; "[that] is my opinion. I have got scars to prove it".
If her admission be accepted, the cause of the accident is left to conjecture, and a finding of gross negligence cannot be based upon conjecture.
Barnes Barnes, Adm'r, supra (footnote 1); see Canupp Wade,
205 Va. 850, 140 S.E.2d 659 (1965), and Weddle, Adm'x. Draper, 204 Va. 319, 130 S.E.2d 462 (1963), dealing with ordinary negligence.
Under the other version, the jury could have based its finding of gross negligence only upon the plaintiff's conclusion that Burke was driving "too fast". She based this conclusion upon the happening of the accident, but, as properly explained in the court's instruction to the jury, gross negligence cannot be inferred from the mere happening of an accident. Moreover, merely driving "too fast" does not constitute gross negligence. Rigney Neauman,
203 Va. 822, 127 S.E.2d 403 (1962); Barnes Barnes, Adm'r, supra; Sibley Slayton, 193 Va. 470, 69 S.E.2d 466 (1952).
We hold that the evidence in this case was insufficient as a matter of law to show Burke's gross engligence. This conclusion is dictated by Scott Foley, supra (footnote 2), and Sibley Slayton, supra, which involved similar factual situations.
In Scott Foley, supra, the automobile, which was being driven *809 by the defendant at a speed of 50 to 60 miles an hour in a 45 mile an hour zone, left the highway and struck "chuck holes" on the paved shoulder. The defendant lost control, and the plaintiff, a guest-passenger, was injured when the automobile turned over. This Court reversed the judgment for the plaintiff, holding as a matter of law that the evidence was insufficient to support the jury's findings of gross negligence.
In Sibley Slayton, supra, a pickup truck ran off the road on a curve and struck a hole three feet from the edge of the hard surface. The driver lost control, and a guest-passenger was killed when the truck struck a tree. The defendant was traveling too fast to keep his truck on the road, but there was no evidence that he had exceeded the speed limit. We held the evidence insufficient to prove gross negligence.
Accordingly, the court erred in failing to sustain the motion of the defendant, Martha Opal (Burke) Laster, executrix of Raymond David Burke, to strike the evidence of the plaintiff, Rebecca M. Tatum, and enter summary judgment for the defendant. Final judgment for the defendant will be entered here.
Reversed and final judgment.
NOTES
[1] Barnes v. Barnes, Adm'r, 199 Va. 903, 103 S.E.2d 199 (1958).
[2] Scott v. Foley, 205 Va. 382, 136 S.E.2d 849 (1964); Bond v. Joyner, 205 Va. 292, 136 S.E.2d 903 (1964).
[3] Walker testified that he drove down Seeger's Lane at a speed of 10 or 15 miles an hour after leaving the party, but his testimony does not purport to indicate the maximum reasonable speed. Walker did not even indicate whether he drove 10 or 15 miles an hour of his own choice or because of the speed of his wife's automobile, which he was following. The distance between the two vehicles was not disclosed by the evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364062/ | 221 Ga. 567 (1965)
146 S.E.2d 275
HEATH SALES COMPANY, INC. et al.
v.
BLOODWORTH; and vice versa.
23180, 23181.
Supreme Court of Georgia.
Argued November 8, 1965.
Decided December 6, 1965.
Bloch, Hall, Groover & Hawkins, Denmark Groover, Jr., Carl E. Lancaster, Jr., for appellants.
Jack J. Gautier, Clarence H. Clay, Jr., for appellee.
ALMAND, Justice.
Heath Sales Company, Inc., C. L. Stephens and C. I. Martin brought separate trover suits in Bibb Superior Court against Jimmy Bloodworth for enumerated items of personal property to which they claimed title. Bloodworth, in his answer, alleged that the items of personal property were in his possession as Sheriff of Bibb County; that they were slot machines and pinball machines and were gambling devices and contraband under the laws of Georgia and that they were seized by him under a lawfully executed search warrant. He prayed for an order authorizing him to destroy these devices and machines.
The plaintiffs filed general demurrers attacking the assertions in the defendant's answer that the machines and devices were contraband in that Code § 26-6502 upon which the defendant relies to hold said machines is violative of the due process clauses of the Fourteenth Amendment to the Federal Constitution and the Georgia Constitution in that the language of the statute is so vague and indefinite that it is incapable of being enforced in that men of common intelligence must necessarily *568 guess at its meaning. They also demurred on the ground that the machines and devices were not gambling machines and devices under the laws of Georgia, even if the laws were constitutional.
On motion of all the parties the three cases were consolidated and tried before the judge without a jury. On this hearing the court overruled the demurrers of the plaintiffs to the answer of the defendant. The court, after a hearing, found: (1) that the 19 machines involved in the Martin case were slot machines and gaming devices and under the ruling in Elder v. Camp, 193 Ga. 320 (18 SE2d 622) were contraband, and their destruction was ordered; (2) that the 52 machines commonly called "monkey machines" were gaming devices and contraband under the authority of Davis v. State, 77 Ga. App. 541 (49 SE2d 173). As to the latter class of machines it was stipulated by the parties that "These machines are what are known as upright machines, commonly called Monkey Machines, and ... among the machines involved in the C. L. Stephens case is an antique slot machine, such as was in existence in the early days of the West" and "it is stipulated that the condition of the machines ... in the C. L. Stephens case... was that they were not location ready. By that is meant that if they were to be placed on a location they could not be placed without some minor adjustment being made. It is stipulated that while the machines are not on location that they could be readied for location with minor adjustments and minor repairs. By minor adjustments, it is meant leveling, checking of existence of fuses, replacement if required, by checking the other essential parts and making such minor adjustments as might be needed but that essentially all parts for their operation were present with the machines"; (3) as to 3 pinball machines the court found that since they were set up to give a free game something of value they were gaming devices and contraband; (4) as to the remaining 16 machines the court found that "said machines are of the pinball type, are disassembled, that there is no evidence that said machines have been used for gambling or are to be used for gambling and the evidence is that said machines can be re-assembled so as to be used for amusement *569 purposes only. Under the decision in Childs v. The State, 70 Ga. App. 99, and the decision in Williams v. The State, 65 Ga App. 843, pinball machines under the Georgia law are not illegal per se. Thus the court finds that said machines in their present condition and under the evidence in this case are not contraband, that the plaintiff has a property right therein and is thus entitled to the return of said machines."
To this order the plaintiffs filed notice of appeal. Error is enumerated on (a) the courts ruling on the demurrers; (b) the holding that Code § 26-6502 is applicable to all the machines and, (c) that this Code section is applicable to all the machines which gave free plays and that a free play is a valuable thing.
The defendant filed notice of cross appeal. He asserts that the court erred in ordering the return of the disassembled pinball machines.
1. The plaintiffs attack the constitutionality of Code § 26-6502, which provides: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." This section is a codification of the Act of 1877, p. 112. The preceding section, Code § 26-6501, provides: "Any person who, either by himself or his agent, shall sell or offer for sale, or procure for or furnish to any person any ticket, number, combination, or chance, or anything representing a chance, in any lottery, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor." These two Code sections may be construed together in determining whether or not the offense of carrying on a lottery has been committed. Russell v. Equitable Loan &c. Co., 129 Ga. 154 (58 S.E. 881); Dove v. State, 78 Ga. App. 425 (50 SE2d 773). The essentials of a lottery are consideration, prize and chance. Equitable Loan &c. Co. v. Waring, 117 Ga. 599 (44 S.E. 320, 62 LRA 93, 97 ASR 177).
Is Code § 26-6502 when construed with Code § 26-6501 so vague and indefinite that it is incapable of enforcement and deprives one of due process of law? We cannot agree that this section is so vague and indefinite that a person of ordinary *570 intelligence cannot understand its application to a particular state of facts. He is informed that if he keeps, maintains or employs any lottery, gift enterprise or other scheme or device for the hazarding of any money or valuable thing he shall be guilty of a misdemeanor. He is informed that if he keeps a machine or device where for a money consideration a chance or prize is given, such machine is a device for the hazarding of money or a valuable thing and he is guilty of a criminal offense. The trial judge did not err in holding this Code section to be valid.
2. Does Code § 26-6502 apply to the slot machines in question? This court in unanimous opinions beginning with Kolshorn v. State, 97 Ga. 343 (23 S.E. 829), and followed in Meyer v. State, 112 Ga. 20 (37 S.E. 96, 51 LRA 496, 81 ASR 17), Jenner v. State, 173 Ga. 86 (159 S.E. 564), and Elder v. Camp, 193 Ga. 320 (18 SE2d 622), has held that a machine in which the player inserts a coin of value and either loses his coin or wins money or something of value by chance is within the provisions of Code § 26-6502. We have been requested to review and overrule these cases. This request is refused. We are of the opinion that they are sound and controlling here.
3. Does Code § 26-6502 apply to a machine which gives only free plays? The trial court held that certain types of machines seized by the sheriff were pinball machines in which a free game was given the player if in the operation of the machine by use of a coin he achieved a score that entitled him to a free play. The trial judge held that obtaining the right of a free play is a thing of value and such category of machines is illegal. In this ruling he is supported by AAA Amusements, Inc. v. State, 106 Ga. App. 663 (127 SE2d 919) (cert. denied 106 Ga. App. 886). Counsel for the appellants cite cases from other jurisdictions where the courts are divided on the question of whether the prize of a free game in a pinball machine is a valuable thing within the meaning of the statute. In our opinion this court in Jenner v. State, 173 Ga. 86 (159 S.E. 564) in a unanimous opinion settled this question adversely to the contention of the appellants. In answer to a certified question from the Court of Appeals it was there held: "The owner and operator of a machine so arranged and contrived that when a *571 person inserted therein a five-cent coin and pulled a lever, a package of candy mints worth five cents was ejected, and `sometimes, but not always, small metal tokens, varying from 1 to 20 tokens, were also ejected with the mints,' which could be used by inserting them back into the machines and thereby securing for the person playing it `a horoscopic message or pretended fortune,' which was displayed in printing inside the machine, was guilty of a violation of section 398 of the Penal Code of 1910, which provides that `No person, by himself or another, shall keep, maintain, employ, or carry on any lottery in this State, or other scheme or device for the hazarding of any money or valuable thing,' although the metal tokens referred to were plainly marked `For amusement only,' and had no redemption value in money or merchandise." In the opinion it was said: "Amusement and entertainment of this character is usually and generally recognized as thing of value... If the metal tokens had had stamped on them, instead of the words `For amusement only,' the words `This token has no value,' nevertheless if as a matter of fact it was understood that the token did secure for the person obtaining it the right to some form of amusement or entertainment which is generally recognized as having a value, the mere statement on the metal token that it had no value would not in itself render it valueless."
4. We now consider the contention of the appellee in his cross appeal that the court erred in holding that the disassembled pinball machines had been used for gambling and, there being evidence that the machines could be re-assembled so as to be used for amusement purposes only, these unassembled pinball machines in their present condition were not subject to condemnation. From the evidence in this case the court was authorized to make this conclusion. The cross appeal is without merit.
Judgment affirmed on the appeal and on the cross appeal. All the Justices concur, except Mobley, J., not participating for providential cause. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364054/ | 146 S.E.2d 31 (1966)
266 N.C. 299
Elsie Johnson WRIGHT et al.
v.
William A. VADEN, Trustee for the beneficiaries under the Will of the late W. W. Davis, deceased, et al.
No. 770.
Supreme Court of North Carolina.
January 14, 1966.
*33 McMichael & Griffin, Reidsville, for plaintiff appellants.
Charles W. Campbell, Reidsville, guardian ad litem for Jean Johnson Wright, and others, defendant appellees.
SHARP, Justice.
This action, being for the construction of a will, should have been brought in Gaston County where the will was admitted to probate. Since, however, no objection on this ground was taken in the court below, the improper venue was waived. Devereux v. Devereux, 81 N.C. 12; McIntosh, N.C. Practice and Procedure § 804 (1956).
The question presented by this appeal is whether, in the devise of the remainder after her death, the words "to the children or other lineal descendants of said Elsie May Johnson" are words of purchase, or words of limitation which bring the devise within the rule in Shelley's Case. (Emphasis added.)
*34 "The rule in Shelley's Case was first stated, 1 Coke, 104, in 1581, and is as follows: `When an ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately, or immediately, to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.'" Crisp v. Biggs, 176 N.C. 1, 2, 96 S.E. 662.
See also Martin v. Knowles, 195 N.C. 427, 142 S.E. 313; Nichols v. Gladden, 117 N.C. 497, 500, 23 S.E. 459, 460. "The rule * * * applies whenever judicial exposition determines that heirs are described, though informally, under a term correctly descriptive of other objects, but stands excluded whenever it determines that other objects are described, though informally, under the term heirs.'" Martin v. Knowles, supra, 195 N.C. at 430, 142 S.E. at 314.
Without doubt, testator intended that Elsie May Johnson (Wright) should take only a life estate in his property. If, however, the rule in Shelley's Case is applicable, she is entitled to the entire corpus of testator's estate, for it operates "`as a rule of property without regard to the intent of the grantor or devisor.'" Hammer v. Brantley, 244 N.C. 71, 72, 92 S.E.2d 424, 425; accord, Chappell v. Chappell, 260 N.C. 737, 133 S.E.2d 666. Furthermore, with us the Rule applies to personalty as well as to realty. Riegel v. Lyerly, 265 N.C. 204, 143 S.E.2d 65.
In considering the applicability of the rule in Shelley's Case it is important to draw and constantly keep in mind the difference between words of purchase and words of limitation. When used with reference to the Rule, words of purchase give the remainder to designated persons who thus take in their own right under the will or conveyance, and not by descent as heirs of the first taker. A purchaser, therefore, is one who acquires property in any manner other than by descent. See 1 Mordecai, Law Lectures § 648 (2d Ed.1916); Black, Law Dictionary 1399 (4th Ed.1951); Ballentine, Law Dictionary 1369-70 (2d Ed. 1948); 96 C.J.S. Wills § 870 (1957). Words of limitation denote the creation of an estate and define its extent or quality. Starnes v. Hill, 112 N.C. 1, 19-20, 16 S.C. 1011, 1016, 22 L.R.A. 598; Campbell v. Everhart, 139 N.C. 503, 511, 52 S.E. 201, 204; Ballentine, op. cit. supra 760; Black, op. cit. supra 1076. They are words
"which by referring to some other words in the instrument describe the extent or size of an estate that has already attached to some person. And so when the Rule says that the words `heirs' or the `heirs of the body' of A are words of limitation and not words of purchase, it simply means that `heirs' or the `heirs of the body' refer to and are read in connection with the estate given to A, extending or modifying that estate, and are not taken as describing a group to whom an estate will first attach." Block, The Rule in Shelley's Case in North Carolina, 20 N.C.L.Rev. 49, 50 (1941).
Plaintiffs contend that the devise "to the children or other lineal descendants of said Elsie May Johnson" is the equivalent of a devise to the heirs of her body and that the words are, therefore, words of limitation which create in her a fee tail, converted by G.S. § 41-1 into a fee simple.
It is settled in North Carolina, and generally, that the word children is ordinarily a word of purchase. Moore v. Baker, 224 N.C. 133, 29 S.E.2d 452; 47 Am.Jur., Shelley's Case § 18 (1943). Children, standing alone, does not refer to an indefinite line of succession from generation to generation; they are a class within heirs generally. "When the devise is to one for life, and after his death, to his children, or issue, the rule has no application, unless it manifestly appears that such words are used in the sense of heirs generally." Faison v. Odom, 144 N.C. 107, 109, 56 S.E. 793, 794. Accord, In re Will of Wilson, 260 *35 N.C. 482, 133 S.E.2d 189; Moore v. Baker, supra; Bobbitt v. Pierson, 193 N.C. 437, 137 S.E. 160; Hutton & Bourbonnais Co. v. Horton, 178 N.C. 548, 101 S.E. 279; Smith v. Moore, 178 N.C. 370, 100 S.E. 702; Wilkinson v. Boyd, 136 N.C. 46, 48 S.E. 516; Hauser v. Craft, 134 N.C. 319, 46 S.E. 756.
"`Thus, even the word children, aided by the context, or the word issue, uncontrolled by the context, may have all the force of the word heirs, and then the rule applies; while the word heirs, restrained by the context, may have only the force of the word children, and then the rule is utterly irrelevant. These are preliminary questions, purely of construction, to be considered without any reference to the rule, and to be solved by, exclusively, the ordinary process of interpretation. This point, kept steadily in view, would have prevented infinite confusion.'" Martin v. Knowles, supra, 195 N.C. at 430, 142 S.E. at 314.
In paragraph Third of his will, had testator stopped with the word children, no question of the application of the Rule could have arisen. To sustain their position that the addition of the words "or other lineal descendants" invokes the Rule, plaintiffs rely on the case of In re Will of Wilson, supra. In Wilson, after devising lands to her three nephews and a grandnephew, testatrix said, "at there death I want the place to go to there children & so onI would love for it to always be the Spain place." This Court was of the opinion that the phrase & so on, coupled with her expressed desire "for it to always be the Spain place," indicated testatrix' intention that each succeeding generation should take the property. The Court held, therefore, that the Wilson language was equivalent to "heirs of the body." The result was that, under the rule in Shelley's Case and the doctrine of merger, the nephews and grandnephews took an estate tail, converted by G.S. § 41-1 into a fee simple. See Martin v. Knowles, supra at 432, 142 S.E. at 314-315.
In the instant case, however, we do not think the superadded words "or other lineal descendants * * * to have and to hold the same to them and their heirs, executors and administrators absolutely" demonstrate that testator contemplated an indefinite succession from generation to generation. On the contrary, the finality of the term absolutely and the use of the disjunctive or clearly indicate testator's intention that his estate should vest at the death of Elsie May Johnson and that should any of her children predecease her, the issue of such child would take the parent's share. As the "absolute" takers, he designated those of her children who survived her or, alternatively, the issue of children predeceasing her. Members of such a class are not heirs "who take generally, without exception, as a class of inheritable persons." Miller v. Harding, 167 N.C. 53, 54, 83 S.E. 25, 26. In its reference to descendants, the devise in question refers only to descendants of a particular class of heirs, i. e., predeceased children of the life tenant. Thus, the words "children or other lineal descendants" are words of purchase, and the rule in Shelley's Case has no application.
We hold, therefore, that Elsie May Johnson (Wright) has only a life estate in the property of testator. At her death, her children then surviving, together with the issue of any predeceased child (which issue will represent their parent) will take the fee simple.
The judgment below is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2572767/ | 88 P.3d 281 (2004)
193 Or. App. 9
Mark MANDERSCHEID and Tami Manderscheid, husband and wife, Respondents,
v.
Jan DUTTON, Appellant.
01-08287-CV; A119095.
Court of Appeals of Oregon.
Argued and Submitted January 14, 2004.
Decided April 14, 2004.
Stanley E. Clark, Redmond, argued the cause and filed the briefs for appellant.
William E. Flynn, Eugene, argued the cause for respondents. On the brief was George W. Kelly.
Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.
LANDAU, P.J.
Defendant appeals a judgment quieting title in a parcel of land that the trial court concluded plaintiffs had acquired by adverse possession. Defendant argues that plaintiffs failed to establish the elements of adverse possession as provided in ORS 105.620, in particular, that they either continuously possessed the disputed parcel for 10 years or that they reasonably believed the property was theirs. On de novo review, ORS 19.415(3) (2001);[1]Gibbons v. Lettow, 180 Or.App. 37, 42, 42 P.3d 925 (2002), we affirm.
*282 In 1977, defendant and her former husband purchased a 40-acre parcel of land in Mount Vernon. In 1980, they divided the property into four smaller parcels. Shortly after that, they sold the southernmost parcel, tax lot 2000, which was approximately nine acres. At the time of the sale, lot 2000 contained a mobile home that straddled the northern boundary of the property, so that half of the home lay on lot 2000 and half of it on defendant's property, lot 1900. The mobile home was serviced by a septic tank that was located north of the boundary, on defendant's property, lot 1900. There also existed a set of surveyor's stakes, along which the new owners immediately erected a fence, that ran from the southwest corner of lot 2000 north across the boundary and into lot 1900 approximately 234 feet, then east across the full width of lot 1900 at a slight angle so that, at the west end of lot 1900, it encroached on lot 1900 approximately 172 feet, then south across the boundary and back to the southern border of lot 2000, and finally across the full width of lot 2000 back to the southwest corner. The dispute in this case concerns the portion of lot 1900 that is contained within the fence.
The disputed parcel is roughly five acres in size and rural in nature, mostly dry, rocky, uneven, and, at places, steep. Its eastern area is open, growing mostly sagebrush and permitting limited winter pasturing of a few cows or horses. In the middle is the mobile home, a garden, and the septic tank. To the west is more open "pasture" and a hilly canyon.
Defendant and her former husband separated in 1979, and defendant retained lot 1900. Meanwhile, in 1988, the Haags acquired lot 2000 and moved onto it on July 1, 1989. Before purchasing the property, the Haags viewed it personally. They saw the continuous fence and assumed that the fence enclosed the property that they were buying. From 1989 to the spring of 1997, the Haags grazed approximately 60 goats on the pasture areas of the disputed parcel north of the lot 2000 boundary but within the fence. They also grazed a few cows and raised several pigs. They used the garden and the septic tank as well. Among other things, they hauled manure "by the truck loads for the garden area." They also improved the fences on the property.
In 1997, the Haags decided not to keep goats. They boarded some cows for a month. In June or July, they began boarding horses, which grazed on the entire property, including the pasture areas of the disputed parcel. The horses grazed there for most of each year, although not without interruption. On at least one occasion, during the summer, the horses did not graze on the property for two to three months. There may have been an additional summer during which horses were not grazed. And, during one extremely cold winter, the horses were removed from the pasture. The Haags also placed a second mobile home on the property. Like the first, it straddled the boundary between lots 1900 and 2000.
On March 1, 2000, the Haags sold lot 2000 to plaintiffs. The Haags told plaintiffs that the property consisted of the land enclosed within the fence, that is, lot 2000 plus the disputed parcel. Shortly after buying the property, however, plaintiffs discovered that the actual boundary was different from what was enclosed within the fence. They then initiated this action to quiet title in the disputed parcel, alleging that they had acquired title to the parcel by adverse possession. Defendant argued that, among other things, there was insufficient evidence of continuous use or that the Haags possessed the property with a reasonable, honest belief that they owned it. After a bench trial, and after the trial court personally viewed the disputed parcel, the court concluded that plaintiffs established all the elements of a statutory claim for adverse possession, as provided in ORS 105.620, and entered judgment quieting title to the disputed parcel in plaintiffs.[2]
*283 On appeal, defendant first argues that plaintiffs failed to establish continuous use of the disputed parcel for 10 years. According to defendant, although the evidence demonstrates that the Haags used the disputed parcel continuously from 1989 to early 1997 for grazing goats, that period falls short of the 10-year period the statute requires. Defendant acknowledges that, from 1997 to 2000, the Haags also grazed horses, but she contends that, because there was a break of at least several months in the grazing, their use of the property was not continuous for a 10-year period. In support of her argument, defendant relies on Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999), which she reads to require proof of "constant" use. In any event, defendant argues, under ORS 105.620(2)(b), evidence of grazing alone is insufficient to satisfy the statutory elements of an adverse possession claim.
ORS 105.620 sets out the elements of a claim of adverse possession when a claim is filed and the interest vests after January 1, 1990. Markovich v. Chambers, 122 Or.App. 503, 506, 857 P.2d 906 (1993). Among other things, the statute requires a person seeking to acquire title by adverse possession to prove that "[t]he person and the predecessors in interest of the person have maintained actual, open, notorious, exclusive, hostile and continuous possession of the property for a period of 10 years." ORS 105.620(1)(a). In that respect, the statute is understood to restate the common-law elements of adverse possession. Zambrotto v. Superior Lumber Co., Inc., 167 Or.App. 204, 208, 4 P.3d 62 (2000). ORS 105.620(2)(b), however, provides that, "[a]bsent additional supporting facts, the grazing of livestock is insufficient to satisfy the requirements of subsection (1)(a) of this section." The standard of proof is "clear and convincing evidence." ORS 105.620(1)(c).
In this case, the issue is whether plaintiffs established that they or their predecessors actually used the disputed parcel for the required 10-year period. In Hoffman, the Supreme Court explained that, "[t]o be continuous, use of the property must be constant and not intermittent." 329 Or. at 560, 994 P.2d 106. The court, however, qualified that statement as to cases in which the use at issue involves grazing of livestock: "Nonetheless, where continuous use is premised upon the grazing of livestock, the requisite continuity may be established by showing continuous use during the pasturing season." Id. at 560-61, 994 P.2d 106.
In Terry v. Timmons, 282 Or. 363, 578 P.2d 405 (1978), the court similarly explained that, where the hostile use involves grazing of livestock, "continuity" may be satisfied by intermittent grazing that is consistent with the nature of the property. In that case, the claimant grazed horses on the disputed property several months each year. The court concluded that the intermittent grazing was sufficient in light of the nature of the property:
"The fact that the horses grazed upon the land for only a few months each year did not break the continuity of defendants' claim. Defendants were only required to use the land as an average owner of the particular type of land would use it, even though that use might have permitted intervals in which the land was not used at all. In this case, the land was not irrigated and there was only enough grass for horses to graze for those few months."
Id. at 369, 578 P.2d 405 (citation omitted).
In this case, as in Terry, the disputed parcel is mostly dry and rocky, is not irrigated, and permits pasturing only a few horses or cows in the spring and winter. The Haags' use of the property for grazing horses is thus consistent with the nature of the property, and the two- to three-month intervals during which there was a break in that use did not disturb the continuity of plaintiffs' claim.
Defendant argues that, even if the grazing was continuous for 10 years, under ORS 105.620(2)(b), it is insufficient to establish the required use of the disputed parcel. As we have noted, that statute does provide that the grazing of livestock, by itself, is insufficient to establish a statutory adverse possession claim. But the statute provides that grazing of livestock, combined with "additional supporting facts," is sufficient. ORS 105.620(2)(b). In this case, in addition to the *284 grazing of livestock, there is evidence that the Haags occupied the mobile home, used the septic tank, tended the gardenincluding moving "truck loads" of manure onto the propertymaintained the fences, and built a second home on the disputed parcel. This is not a case in which adverse possession is predicated on the grazing of livestock alone.
Defendant next argues that, even if plaintiffs established the common-law elements of their adverse possession claim, they failed to establish the additional statutory element that they or their predecessors in interest occupied the property with a reasonable and honest belief that the property was theirs. According to defendant, a reasonable person should have known that the property enclosed within the fence was too large to comprise lot 2000.
ORS 105.620(1)(b) requires an adverse possession claimant to prove, in addition to the common-law elements of section (1)(a), that,
"[a]t the time the person claiming by adverse possession or the person's predecessor in interest, first entered into possession of the property, the person entering into possession had the honest belief that the person was the actual owner of the property and that belief:
"(A) By the person and the person's predecessor in interest, continued throughout the vesting period;
"(B) Had an objective basis; and
"(C) Was reasonable under the particular circumstances[.]"
ORS 105.620(1)(b). In this case, there is no dispute that the Haags first entered into possession believing that they were the actual owners of the disputed parcel. The only issues in contention are whether their belief had an objective basis and was reasonable.
As we have noted, the Haags viewed the property personally before buying it. They saw the continuous fence and the mobile home that was located in the middle of the fenced-in property. They did not know that the home was located on the boundary, and there were no external indicators that the lot was something other than the area enclosed by the fence. It did not occur to them that the true boundary ran through the middle of the buildings in the center of the property. Defendant insists the Haags should have known that the parcel enclosed within the fence was too big to be lot 2000. Sharon Haag testified, however, that she did not know precisely how big an acre is. Moreover, the difference between a 9-acre lot and a 14-acre lot is not great, given the uneven nature of the property, which made it difficult for anyone to determine precisely the size of the parcel.[3] Under the circumstances, we cannot say that, as a matter of law, the parties' belief about the extent of the property that they purchased lacked an objective basis and was unreasonable.
Defendant advances other arguments as well, which we reject without further discussion.
Affirmed.
NOTES
[1] Because the judgment was entered on July 30, 2002, the amendments to ORS 19.415, Or. Laws 2003, ch. 576, § 88, are inapplicable to this case. Or. Laws 2003, ch. 576, § 90a; ORS 171.022 (2003).
[2] The trial court concluded that plaintiffs also had established a common-law claim for adverse possession based on the use of the property before the Haags purchased lot 2000. Because we conclude that the trial court correctly ruled that plaintiffs prevailed on their statutory claim, however, we need not address any issues involving the common-law claim.
[3] Even defendant's own witness, a professional surveyor, testified that it would not be immediately obvious to him that the area surrounded by the fence was greater than approximately 9 acres and that it generally is difficult to estimate acreage from simple observation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265112/ | 262 N.J. Super. 78 (1993)
619 A.2d 1321
STATE OF NEW JERSEY, IN THE INTEREST OF J.L.A., JUVENILE-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted October 13, 1992.
Decided February 24, 1993.
Before Judges PETRELLA, LONG and KEEFE.
*79 Zulima v. Farber, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).
Edward F. Borden, Jr., Camden County Prosecutor, attorney for respondent (Norma R. Evans, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by LONG, J.A.D.
After a bench trial, J.L.A., a juvenile, was adjudicated a delinquent and committed to Jamesburg for an indeterminate term not to exceed four years for acts which, if committed by an adult, would have constituted first-degree robbery, contrary to N.J.S.A. 2C:15-1. He was also committed to a consecutive term not to exceed three years for acts which, if committed by an adult, would have constituted aggravated assault, contrary to N.J.S.A. 2C:12-1b(1).
J.L.A. appeals, contending that:
POINT I:
THE ADJUDICATIONS OF DELINQUENCY ON THE ARMED ROBBERY AND AGGRAVATED ASSAULT CHARGES WERE AGAINST THE WEIGHT OF THE EVIDENCE AND MUST THEREFORE BE REVERSED. (NOT RAISED BELOW).
POINT II:
THE TRIAL COURTS REFUSAL TO GRANT A CONTINUANCE FOR THE DEFENSE TO CALL OFFICER KLINE DENIED DEFENDANT A FAIR TRIAL.
POINT III:
THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE UPON JUVENILE J.L.A., SINCE THE CODE OF JUVENILE JUSTICE (N.J.S.A. 2A:4A-20 ET SEQ.) CONTAINS NO PROVISION AUTHORIZING THE IMPOSITION OF CONSECUTIVE [DISPOSITIONS].
POINT IV:
ASSUMING CONSECUTIVE DISPOSITIONS ARE AUTHORIZED BY THE CODE OF JUVENILE JUSTICE, THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE DISPOSITIONS UPON J.L.A.
We have carefully reviewed this record in light of these contentions and have concluded that the issues raised in Points I and II of J.L.A.'s brief are clearly without merit. R. 2:11-3(e)(2). *80 However, we agree with J.L.A. that consecutive dispositions are unauthorized by the Code of Juvenile Justice. N.J.S.A. 2A:4A-20 to -91.
The Juvenile Code became effective in December, 1983. Its stated purposes are fundamentally rehabilitative:
a. To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of juveniles coming within the provisions of this act;
b. Consistent with the protection of the public interest, to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute therefor an adequate program of supervision, care and rehabilitation;
c. To separate juveniles from the family environment only when necessary for their health, safety or welfare or in the interests of public safety;
d. To secure for each child coming under the jurisdiction of the court such care, guidance and control, preferably in his own home, as will conduce to the child's welfare and the best interests of the State; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents;
e. To insure that children under the jurisdiction of the court are wards of the State, subject to the discipline and entitled to the protection of the State, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them. [N.J.S.A. 2A:4A-21].
To this end, a detailed methodology to deal with juvenile offenders was established by the Code of Juvenile Justice, including 18 separate dispositional options. N.J.S.A. 2A:4A-43. Among the available dispositions are in-home supervision, probation, civil commitment, fines, restitution and community service. Additionally, incarceration is included as an available disposition. N.J.S.A. 2A:4A-44. Extended terms may be imposed in the limited circumstances delineated in N.J.S.A. 2A:4A-44d(3). Finally, the Code of Juvenile Justice allows, in appropriate cases, referral to adult court where harsher adult penalties apply. N.J.S.A. 2A:4A-26.
Not mentioned in the Code is the alternative of imposing consecutive dispositions upon a juvenile adjudicated delinquent for more than one offense. J.L.A. argues that the absence of a reference to consecutive dispositions is an indication of the Legislature's intent to omit that option. The State counters *81 that if the Legislature had intended to prohibit consecutive terms of incarceration it would have done so, and that, without a clear statement to that effect, we should interpret the statute as allowing for consecutive treatment.
In construing this statute, we are mindful that our role is to give effect to the Legislature's intent. Johnson Machinery Co., Inc. v. Manville Sales Corp., 248 N.J. Super. 285, 303, 590 A.2d 1206 (App.Div. 1991). See also Monmouth County v. Wissell, 68 N.J. 35, 42, 342 A.2d 199 (1975); Cedar Cove v. Stanzione, 233 N.J. Super. 336, 340, 558 A.2d 1351 (App.Div. 1989), rev'd on other grounds, 122 N.J. 202, 584 A.2d 784 (1991); Coletti v. Union County Bd. of Chosen Freeholders, 217 N.J. Super. 31, 35, 524 A.2d 1270 (App.Div. 1987); State v. H.J.B., 240 N.J. Super. 216, 220-21, 572 A.2d 1205 (Law Div. 1990); Shapiro v. Essex County Bd. of Chosen Freeholders, 177 N.J. Super. 87, 92-93, 424 A.2d 1203 (Law Div. 1980), aff'd 183 N.J. Super. 24, 443 A.2d 219 (App.Div.), aff'd, 91 N.J. 430, 453 A.2d 158 (1982). Among the sources of legislative intent are the language chosen by the Legislature, the policy behind the act, its legislative history, and concepts of reasonableness. Cedar Cove, supra, 233 N.J. Super. at 340, 558 A.2d 1351; Shapiro, supra, 177 N.J. Super. at 93, 424 A.2d 1203. Statutes are to be read sensibly and the controlling legislative intent is to be presumed as "consonant to reason and good discretion." Schierstead v. City of Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959) (citations omitted). "In construing a statute, we assume that the Legislature intended a reasonable approach ...", Roman v. Sharper, 53 N.J. 338, 341, 250 A.2d 745 (1969), not one "at odds with the sense of the situation." Id. at 340, 250 A.2d 745; Cedar Cove, supra, 233 N.J. Super. at 341, 558 A.2d 1351.
A full review of the legislative history of the Code of Juvenile Justice sheds no light on the issue before us. The statement of policy underlying the Code, as expressed in N.J.S.A. 2A:4A-21, is helpful insofar as it affirms the thrust of *82 the Code as being fundamentally redemptive and not retributive. However, because the Code nevertheless makes specific provision for incarceration, extended terms and waiver to adult court, its rehabilitative theme is not dispositive on the issue of consecutive dispositions.
As to precedent, this is a case of first impression. Although prior decisions have been rendered regarding consecutive sentences for youthful adult offenders, an entirely distinct category, See State v. Carroll, 66 N.J. 558, 334 A.2d 17 (1975); State v. Horton, 45 N.J. Super. 44, 131 A.2d 425 (App.Div. 1957), no decision on the issue of consecutive juvenile dispositions has issued since the effective date of the Code in 1983. Even prior to the enactment of the Code, only one decision on this subject was reported. In State in the Interest of T.B., 149 N.J. Super. 1, 372 A.2d 1345 (App.Div. 1977), a panel of this court declared consecutive dispositions to be authorized under then current law, disapproved a general use of such dispositions and questioned whether they are "contrary to the rehabilitative purpose of the Act ..." Id. at 5 n. 1, 372 A.2d 1345.
In short, it seems to us that it is the language of the Code of Juvenile Justice itself, tested against established canons of statutory construction, which is the key to what the Legislature intended in enacting it. We begin with the omission of specific authorization for consecutive dispositions. While we are ordinarily wary of placing too much emphasis on legislative silence, we think it speaks volumes in this case. A review of the statute demonstrates this point. N.J.S.A. 2A:4A-43 sets forth the legislatively approved dispositions.
(1) Adjourn formal entry of disposition of the case for a period not to exceed 12 months for the purpose of determining whether the juvenile makes a satisfactory adjustment, and if during the period of continuance the juvenile makes such an adjustment, dismiss the complaint; provided that if the court adjourns formal entry of disposition of delinquency for a violation of an offense defined in chapter 35 or 36 of Title 2C, of the New Jersey Statutes the court shall assess the mandatory penalty as set forth in N.J.S. 2C:35-15 but may waive imposition of the penalty set forth in N.J.S. 2C:35-16 for juveniles adjudicated delinquent;
(2) Release the juvenile to the supervision of his or her parent or guardian;
*83 (3) Place the juvenile on probation to the chief probation officer of the county or to any other suitable person who agrees to accept the duty of probation supervision for a period not to exceed 3 years upon such written conditions as the court deems will aid rehabilitation of the juvenile;
(4) Transfer custody of the juvenile to any relative or other person determined by the court to be qualified to care for the juvenile;
(5) Place the juvenile under the care of the Department of Human Services under the responsibility of the Division of Youth and Family Services pursuant to P.L. 1951, c. 138, s. 2(c) (C. 30:4C-2(c)) for the purpose of providing services in or out of the home. Within 14 days, unless for good cause shown, but not later than 30 days, the Department of Human Services shall submit to the court a service plan, which shall be presumed valid, detailing the specifics of any disposition order. The plan shall be developed within the limits of fiscal and other resources available to the department. If the court determines that the service plan is inappropriate, given existing resources, the department may request a hearing on that determination;
(6) Place the juvenile under the care and custody of the Commissioner of the Department of Human Services for the purpose of receiving the services of the Division of Mental Retardation of that department, provided that the juvenile has been determined to be eligible for those services under P.L. 1965, c. 59, s. 16 (C. 30:4-25.4);
(7) Commit the juvenile, pursuant to the laws governing civil commitment, to the Department of Human Services under the responsibility of the Division of Mental Health and Hospitals for the purpose of placement in a suitable public or private hospital or other residential facility for the treatment of persons who are mentally ill, on the ground that the juvenile, if not committed, would be a probable danger to himself or others or property by reason of mental illness;
(8) Fine the juvenile an amount not to exceed the maximum provided by law for such a crime or offense if committed by an adult and which is consistent with the juvenile's income or ability to pay and financial responsibility to his family, provided that the fine is specially adapted to the rehabilitation of the juvenile or to the deterrence of the type of crime or offense. If the fine is not paid due to financial limitations, the fine may be satisfied by requiring the juvenile to submit to any other appropriate disposition provided for in this section;
(9) Order the juvenile to make restitution to a person or entity who has suffered loss resulting from personal injuries or damage to property as a result of the offense for which the juvenile has been adjudicated delinquent. The court may determine the reasonable amount, terms and conditions of restitution. If the juvenile participated in the offense with other persons, the participants shall be jointly and severally responsible for the payment of restitution. The court shall not require a juvenile to make full or partial restitution if the juvenile reasonably satisfies the court that he does not have the means to make restitution and could not reasonably acquire the means to pay restitution;
(10) Order that the juvenile perform community services under the supervision of a probation department or other agency or individual deemed appropriate by *84 the court. Such services shall be compulsory and reasonable in terms of nature and duration. Such services may be performed without compensation, provided that any money earned by the juvenile from the performance of community services may be applied towards any payment of restitution or fine which the court has ordered the juvenile to pay;
(11) Order that the juvenile participate in work programs which are designed to provide job skills and specific employment training to enhance the employability of job participants. Such programs may be without compensation, provided that any money earned by the juvenile from participation in a work program may be applied towards any payment of restitution or fine which the court has ordered the juvenile to pay;
(12) Order that the juvenile participate in programs emphasizing self-reliance, such as intensive outdoor programs teaching survival skills, including but not limited to camping, hiking and other appropriate activities;
(13) Order that the juvenile participate in a program of academic or vocational education or counseling, such as a youth service bureau, requiring attendance at sessions designed to afford access to opportunities for normal growth and development. This may require attendance after school, evenings and weekends;
(14) Place the juvenile in a suitable residential or nonresidential program for the treatment of alcohol or narcotic abuse, provided that the juvenile has been determined to be in need of such services; or
(15) Order the parent or guardian of the juvenile to participate in appropriate programs or services when the court has found either that such person's omission or conduct was a significant contributing factor towards the commission of the delinquent act, or, under its authority to enforce litigant's rights, that such person's omission or conduct has been a significant contributing factor towards the ineffective implementation of a court order previously entered in relation to the juvenile;
(16)(a) Place the juvenile in a nonresidential program operated by a public or private agency, providing intensive services to juveniles for specified hours, which may include education, counseling to the juvenile and the juvenile's family if appropriate, vocational training, employment counseling, work or other services; or
(b) Place the juvenile under the custody of the Department of Corrections for placement with any private group home or private residential facility with which the department has entered into a purchase of service contract;
(17) Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed 2 years the driver's license, registration certificate, or both of any juvenile who used a motor vehicle in the course of committing an act for which he was adjudicated delinquent. In imposing this disposition and in deciding the duration of the postponement, suspension, or revocation, the court shall consider the severity of the delinquent act and the potential effect of the loss of driving privileges on the juvenile's ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial commitment, or
*85 (18) Order that the juvenile satisfy any other conditions reasonably related to the rehabilitation of the juvenile.
c. (1) If the county in which the juvenile has been adjudicated delinquent has a juvenile detention facility meeting the physical and program standards established pursuant to this subsection by the Department of Corrections, the court may, in addition to any of the dispositions not involving placement out of home enumerated in this section, incarcerate the juvenile in the youth detention facility in that county for a term not to exceed 60 consecutive days. Counties which do not operate their own juvenile detention facilities may contract for the use of approved commitment programs with counties with which they have established agreements for the use of pre-disposition juvenile detention facilities. The Department of Corrections shall promulgate such rules and regulations from time to time as deemed necessary to establish minimum physical facility and program standards for the use of juvenile detention facilities pursuant to this subsection.
(2) No juvenile may be incarcerated in any county detention facility unless the county has entered into an agreement with the Department of Corrections concerning the use of the facility for sentenced juveniles. Upon agreement with the county, the Department of Corrections shall certify detention facilities which may receive juveniles sentenced pursuant to this subsection and shall specify the capacity of the facility that may be made available to receive such juveniles; provided, however, that in no event shall the number of juveniles incarcerated pursuant to this subsection exceed 50% of the maximum capacity of the facility.
(3) The court may fix a term of incarceration under this subsection where:
(a) The act for which the juvenile was adjudicated delinquent, if committed by an adult, would have constituted a crime or repetitive disorderly persons offense;
(b) Incarceration of the juvenile is consistent with the rehabilitative goals of this act and the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors as set forth in section 25 of this act; and
(c) The detention facility has been certified for admission of adjudicated juveniles pursuant to paragraph (2).
(4) If as a result of incarceration of adjudicated juveniles pursuant to this subsection, a county is required to transport a predisposition juvenile to a juvenile detention facility in another county, the costs of such transportation shall be borne by the Department of Corrections.
d. Whenever the court imposes a disposition upon an adjudicated delinquent which requires the juvenile to perform a community service, restitution, or to participate in any other program provided for in this section other than subsection c., the duration of the juvenile's mandatory participation in such alternative programs shall extend for a period consistent with the program goal for the juvenile and shall in no event exceed 1 year beyond the maximum duration permissible for the delinquent if he has been committed to a correctional institution.
*86 The considerations governing incarceration are, in turn, set forth in N.J.S.A. 2A:4A-44, which provides:
a. (1) In determining whether incarceration is an appropriate disposition, the court shall consider the following aggravating circumstances:
(a) The fact that the nature and circumstances of the act, and the role of the juvenile therein, was committed in an especially heinous, cruel, or depraved manner;
(b) The fact that there was grave and serious harm inflicted on the victim and that based upon his age or mental capacity the juvenile knew or reasonably should have known that the victim was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable;
(c) The character and attitude of the juvenile indicate that he is likely to commit another delinquent or criminal act;
(d) The juvenile's prior record and the seriousness of any acts for which he has been adjudicated delinquent;
(e) The fact that the juvenile committed the act pursuant to an agreement that he either pay or be paid for the commission of the act and that the pecuniary incentive was beyond that inherent in the act itself;
(f) The fact that the juvenile committed the act against a policeman or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority, or the juvenile committed the act because of the status of the victim as a public servant;
(g) The need for deterring the juvenile and others from violating the law;
(h) The fact that the juvenile knowingly conspired with others as an organizer, supervisor, or manager to commit continuing criminal activity in concert with two or more persons and the circumstances of the crime show that he has knowingly devoted himself to criminal activity as part of an ongoing business activity;
(i) The fact that the juvenile on two separate occasions was adjudged a delinquent on the basis of acts which if committed by an adult would constitute crimes.
(2) In determining whether incarceration is an appropriate disposition the court shall consider the following mitigating circumstances:
(a) The child is under the age of 14;
(b) The juvenile's conduct neither caused nor threatened serious harm;
(c) The juvenile did not contemplate that his conduct would cause or threaten serious harm;
(d) The juvenile acted under a strong provocation;
(e) There were substantial grounds tending to excuse or justify the juvenile's conduct, though failing to establish a defense;
(f) The victim of the juvenile's conduct induced or facilitated its commission;
*87 (g) The juvenile has compensated or will compensate the victim for the damage or injury that the victim has sustained, or will participate in a program of community service;
(h) The juvenile has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present act;
(i) The juvenile's conduct was the result of circumstances unlikely to recur;
(j) The character and attitude of the juvenile indicate that he is unlikely to commit another delinquent or criminal act;
(k) The juvenile is particularly likely to respond affirmatively to noncustodial treatment;
(l) The separation of the juvenile from his family by incarceration of the juvenile would entail excessive hardship to himself or his family;
(m) The willingness of the juvenile to cooperate with law enforcement authorities;
(n) The conduct of the juvenile was substantially influenced by another person more mature than the juvenile.
b. (1) There shall be a presumption of nonincarceration for any crime or offense of the fourth degree or less committed by a juvenile who has not previously been adjudicated delinquent or convicted of a crime or offense.
(2) Where incarceration is imposed, the court shall consider the juvenile's eligibility for release under the law governing parole.
c. The following juveniles shall not be committed to a State correctional facility:
(1) Juveniles aged 11 or under unless adjudicated delinquent for the crime of arson or a crime which, if committed by an adult, would be a crime of the first or second degree; and
(2) Juveniles who are developmentally disabled as defined in paragraph (1) of subsection a. of section 3 of P.L. 1977, c. 82 (C. 30:6D-3a(1)).
d. (1) When the court determines that, based on the consideration of all the factors set forth in subsection a., the juvenile shall be incarcerated, unless it orders the incarceration pursuant to subsection c. of section 24 of this act [N.J.S.A. 2A:4A-43], it shall state on the record the reasons for imposing incarceration, including any findings with regard to these factors, and commit the juvenile to a suitable institution maintained by the Department of Corrections for the rehabilitation of delinquents pursuant to the conditions set forth in this subsection and for terms not to exceed the maximum terms as provided herein for what would constitute the following crimes if committed by an adult:
(a) Murder under N.J.S. 2C:11-3a(1) or (2) ... 20 years
(b) Murder under N.J.S. 2C:11-3a(3) .......... 10 years
(c) Crime of the first degree, except murder 4 years
(d) Crime of the second degree ............... 3 years
(e) Crime of the third degree ................ 2 years
(f) Crime of the fourth degree ............... 1 year
(g) Disorderly persons offense ............... 6 months
*88 (2) The period of confinement shall continue until the appropriate paroling authority determines that such a person should be paroled; except that in no case shall the period of confinement and parole exceed the maximum provided by law for such offense. However, if a juvenile is approved for parole prior to serving one-third of any term imposed for any crime of the first, second or third degree, including any extended term imposed pursuant to paragraph (3) or (4) of this subsection, or one-fourth of any term imposed for any other crime the granting of parole shall be subject to approval of the sentencing court. Prior to approving parole, the court shall give the prosecuting attorney notice and an opportunity to be heard. If the court denies the parole of a juvenile pursuant to this paragraph it shall state its reasons in writing and notify the parole board, the juvenile and the juvenile's attorney. The court shall have 30 days from the date of notice of the pending parole to exercise the power granted under this paragraph. If the court does not respond within that time period, the parole will be deemed approved.
Any juvenile committed under this act who is released on parole prior to the expiration of his maximum term may be retained under parole supervision for a period not exceeding the unserved portion of the term. The Parole Board, the juvenile, his attorney, his parent or guardian, or with leave of the court any other interested party, may make a motion to the court, with notice to the prosecuting attorney, for the return of the child from a correctional institution prior to his parole and provide for an alternative disposition which would not exceed the duration of the original time to be served in the institution. Nothing contained in this paragraph shall be construed to limit the authority of the Parole Board as set forth in section 15 of P.L. 1979, c. 441 (C. 30:4-123.59).
(3) Upon application by the prosecutor, the court may sentence a juvenile who has been convicted of a crime of the first, second, or third degree if committed by an adult, to an extended term of incarceration beyond the maximum set forth in paragraph (1) of this subsection, if it finds that the juvenile was adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would constitute a crime of the first or second degree, and was previously committed to an adult or juvenile State correctional facility. The extended term shall not exceed 5 additional years for an act which would constitute murder and shall not exceed 2 additional years for all other crimes of the first degree or second degree, if committed by an adult, and 1 additional year for a crime of the third degree, if committed by an adult.
(4) Upon application by the prosecutor, when a juvenile is before the court at one time for disposition of three or more unrelated offenses which, if committed by an adult, would constitute crimes of the first, second or third degree and which are not part of the same transaction, the court may sentence the juvenile to an extended term of incarceration not to exceed the maximum of the permissible term for the most serious offense for which the juvenile has been adjudicated plus 2 additional years.
We have reproduced these aspects of the Code of Juvenile Justice in numbing detail for a purpose. Specifically, the purpose is to show that in enacting the Code, the Legislature *89 did not merely prescribe a dispositional skeleton, the interstices of which were meant to be filled in by construction. On the contrary and in painstaking detail, a comprehensive scheme, essentially complete as written, was set forth. Indeed, in the face of dispositional minutiae such as the authorization of hiking and camping programs to encourage self-reliance, N.J.S.A. 2A:4A-43b(12), it is hard to imagine that the Legislature intended its silence as to any other disposition to stand for more than its omission.
This view is supported by the 1979 Code of Criminal Justice in which the Legislature specifically authorized consecutive sentences for multiple criminal offenses and set forth the methodology for calculating such terms. N.J.S.A. 2C:44-5a, e. The difference between the Criminal and Juvenile Codes likely reflects a legislative recognition that consecutive dispositions are of a piece with the punishment and "desert" focus of the former, See State v. Yarbough, 100 N.J. 627, 630, 498 A.2d 1239 (1985), cert. den., 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), but out of phase with the rehabilitative thrust of the latter. Genesis aside, what may fairly be inferred from a facial comparison of the two Codes is that the Legislature fully understood the concept of consecutive sentencing, which springs from the common law, State v. Maxey, 42 N.J. 62, 198 A.2d 768 (1964), and that, by including it in the Criminal Code but omitting it from the Juvenile Code, it intended consecutive dispositions not to be an available arrow in the juvenile judge's dispositional quiver.
This view is bolstered by another provision of the Code of Juvenile Justice, N.J.S.A. 2A:4A-43b(17), which prescribes:
Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed 2 years the driver's license, registration certificate, or both of any juvenile who used a motor vehicle in the course of committing an act for which he was adjudicated delinquent. In imposing this disposition and in deciding the duration of the postponement, suspension, or revocation, the court shall consider the severity of the delinquent act and the potential effect of the loss of driving privileges on the juvenile's ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial commitment. [emphasis added].
*90 In this section, the point of which is to assure that a juvenile is not able to serve a license suspension while incarcerated, the Legislature showed, as it did in enacting the Criminal Code, that it was aware of its power with respect to the consecutive option. Having authorized the power in one section of the statute, ordinarily it should not be implied where excluded. Marshall v. Western Union Telegraph Co., 621 F.2d 1246 (3d Cir.1980).
Most telling to us is that provision of the Code of Juvenile Justice which allows for extended term sentencing. N.J.S.A. 2A:4A-44d(4) provides that:
Upon application by the prosecutor, when a juvenile is before the court at one time for disposition of three or more unrelated offenses which, if committed by an adult, would constitute crimes of the first, second or third degree and which are not part of the same transaction, the court may sentence the juvenile to an extended term of incarceration not to exceed the maximum of the permissible term for the most serious offense for which the juvenile has been adjudicated plus 2 additional years.
Under this section, a juvenile who commits three unrelated offenses at different times can only be sentenced to the maximum term for the most serious of the three offenses plus two years. Thus, a juvenile adjudicated delinquent for three distinct and unrelated acts which, if committed by an adult, would constitute first degree offenses would be subject to a statutory maximum of six years (four years plus the two year extended term). N.J.S.A. 2A:4A-44d(1), (4).
The State argues that the Legislature nevertheless intended to preserve consecutive treatment for identical offenses arising out of one transaction. Under this view, a juvenile convicted of several offenses committed in a single, isolated, aberrant criminal event would be subject to significantly greater punishment than a juvenile who undertook three separate and distinct criminal transactions. This result flies in the face of the reform guidelines for incremental punishment set forth in Yarbough, supra, 100 N.J. at 644, 498 A.2d 1239, and is neither consonant with reason nor good discretion. It does not seem to us that it could have been the Legislature's intent to expose the *91 more culpable juvenile to a lesser penalty. While we might enforce what we would otherwise view as an unwise or an anomalous result if the Legislature had clearly expressed its will, we will not supply, by implication, a term which conflicts in spirit with another provision of the Code.
Finally, we note that the statutory sentencing provisions codified by the Legislature in the Code are penal and must be strictly construed. State v. Valentin, 105 N.J. 14, 17, 519 A.2d 322 (1987).
The rule that penal statutes are to be strictly construed has at its heart the requirement of due process. No one shall be punished for a crime unless both that crime and its punishment are clearly set forth in positive laws. [Id. at 17-18, 519 A.2d 322 (quoting In re DeMarco, 83 N.J. 25, 36, 414 A.2d 1339 (1980)) (emphasis added)].
Such laws cannot be extended by implication or intendment. Valentin, supra, 105 N.J. at 18, 519 A.2d 322. Thus, where more than one reasonable interpretation may be made or where the language is ambiguous, the narrowest construction will prevail. Id. Here, it is only by supplying words which were specifically omitted by the Legislature that the consecutive disposition option can be wrested out of the Code of Juvenile Justice. Even if this were not the case and two reasonable interpretations of the Code (one allowing consecutive dispositions and one not) could be read from the face of it, the principle that the narrowest construction of a penal statute will prevail informs our rejection of the more expansive interpretation.[1]
For these reasons, we reverse the consecutive dispositions imposed on J.L.A. and remand the case to the trial judge for a *92 disposition consonant with this opinion. The adjudication of delinquency is otherwise affirmed.
NOTES
[1] In reaching our conclusion, we have taken into consideration a Parole Board regulation which makes reference to consecutive juvenile commitments. N.J.A.C. 10A:71-3.23(c) provides that, at a Juvenile Parole hearing, among the aggravating factors which may be considered in determining whether a juvenile's tentative parole date should be altered from the presumptive term is whether "[t]he inmate has received additional concurrent or consecutive commitments." Because this regulation pre-existed the Code, N.J.A.C. 10A:71-3.21(c)(1) and (2) (1980), at which point consecutive juvenile dispositions, although questionable, See State in the Interest of T.B., supra, 149 N.J. Super. at 5 n. 1, 372 A.2d 1345, were apparently authorized, we do not view it as an interpretation of the later enacted Code provisions to which some deference should accrue. Interestingly, the regulation treats the existence of additional commitments as aggravating factors in themselves and does not distinguish between them based on the type of disposition imposed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265113/ | 54 Cal. App. 4th 1402 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
DARREN STEVEN CLOYD, Defendant and Appellant.
Docket No. B101203.
Court of Appeals of California, Second District, Division Seven.
May 14, 1997.
*1404 COUNSEL
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Susan D. Martynec and Arthur H. Auerbach, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS, J.
A jury convicted appellant of robbery (Pen. Code, § 211; statutory references, unless otherwise noted, are to the Penal Code) and, in a bifurcated proceeding, the trial court found true allegations appellant had suffered prior convictions for robbery (§§ 211, 667, subds. (b)-(i), 667, subd. (a)(1), 667.5, subd. (b)) and possession for sale of cocaine base (Health & Saf. Code, § 11351.5; § 667.5, subd. (b)). Appellant was sentenced to state prison for 15 years.
Appellant contends the trial court erred in excluding evidence the victim had two misdemeanor cases pending and had failed to appear on those cases. *1405 Appellant also contends the trial court erred in admitting the victim's preliminary hearing testimony.
We find no error and affirm the judgment.
FACTUAL BACKGROUND
There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal. 3d 284, 303-304 [228 Cal. Rptr. 228, 721 P.2d 110].)
On August 13, 1995, about 12:10 a.m., Doris McCalpin[1] (victim) was walking north on Magnolia approaching 5th Street, in Long Beach, as appellant was walking south. When they passed each other appellant "came back," grabbed the victim's purse and said, "Let go of the purse, bitch." The victim held on until appellant raised his hand as though to strike her, when she ducked and let go. Appellant, with the victim's purse, ran off.
Long Beach Police Officer Kanaley, as he approached the corner of 5th and Magnolia, in his marked patrol car, noticed a "commotion." He saw appellant, who wore a white tee shirt, run across the street, and saw the victim yelling and waving at him. The victim, who appeared excited, emotional, and scared, told Officer Kanaley, "He took my purse."
Officer Kanaley pursued appellant but lost sight of him in an alley. He radioed for assistance and described the suspect.
Officer Davenport heard Officer Kanaley's broadcast and then saw appellant jogging west on 5th Street holding a white tee shirt in his hand. Officer Davenport pulled alongside appellant and told him to "come here." Appellant changed direction, increased his pace, and fled.
Officer Davenport attempted to pursue appellant but soon lost sight of him. He broadcast information about his contact with the robbery suspect and soon other officers established a perimeter, securing the area.
Officer Davenport existed his patrol car and searched for appellant. During the search, Sergeant Hiscox talked to a male Hispanic and then Sergeant Hiscox and Officer Davenport went to apartment 1, 436 Main Street. Ruby Bishop, appellant's "common law" wife, answered the door and, after the officers explained they were looking for a robbery suspect, said they could *1406 come in and search. They found appellant hiding in a closet. They looked for but did not find the victim's purse.
The victim was brought to the scene and identified appellant as the robber.
The defense was not mistaken identity but rather that there had been no robbery, only an ordinary $5 purchase of rock cocaine transaction.
Appellant testified he approached the victim to buy cocaine because she (everyone called her "Moms") was a well-known rock cocaine seller and user. He put $5 in her hand, she removed rock cocaine from her mouth but dropped it. He picked it up, thus completing the transaction, and, now eager to smoke his cocaine, trotted off. Then, when he saw an approaching patrol car, he thought the officer might have observed the drug purchase and, because he was on parole, he fled. For the same reason, he later fled from Officer Davenport. The only reason he removed his tee shirt was to wipe the sweat from his face.
He did not discard the rock cocaine during his flight but when he arrived home and told his wife about his purchase, he did as she said, and flushed it down the toilet.
Ruby Bishop testified she and appellant have lived as husband and wife and have four children. Appellant was a "little out of breath" when he returned home that night and when he showed her the rock cocaine he had just bought from "Moms" she made him flush it down the toilet. She once bought rock cocaine from "Moms" for a friend and saw "Moms" sell rock cocaine to other people. She also once saw "Moms" smoke rock cocaine. Shortly after appellant's arrest, Ruby Bishop talked to "Moms" who told her the robber wore khaki pants (not the black shorts appellant wore) and did not fit appellant's description.
DISCUSSION
1. Appellant contends the trial court erred in excluding evidence the victim had two misdemeanor cases pending and had failed to appear on those cases.
(1a) Appellant asserts the instant case, like People v. Allen (1978) 77 Cal. App. 3d 924 [144 Cal. Rptr. 6], involved a witness with a motive to fabricate, a motive to win leniency.
*1407 In Allen the prosecutor called William O. who testified he and the defendant committed the robbery but it was the defendant's idea and the defendant who had the gun. William O., a minor, had not yet been sentenced in his juvenile proceeding for this robbery and had two other robbery cases still pending. Allen held it was prejudicial error to prevent cross-examination of William O. concerning the pending robbery cases. Those pending cases provided William O. with a motive to help the prosecutor in order to obtain leniency.
Plainly, Allen is inapposite. Unlike Allen, Doris McCalpin and appellant were not robbery accomplices. Unlike Allen, Doris McCalpin did not help the prosecution by testifying against appellant at trial. Unlike Allen, by failing to appear Doris McCalpin prevented any disposition of her pending cases, let alone more favorable ones. Unlike Allen, by failing to appear for trial Doris McCalpin handicapped the prosecution and helped the defense. Moreover, we note, the prosecutor of appellant was the Los Angeles County District Attorney while the prosecutor of Doris McCalpin's pending misdemeanor cases was the Long Beach City Prosecutor.
The trial court did not err in excluding evidence of the victim's pending misdemeanor cases because those pending cases were irrelevant to the victim's credibility.
Appellant additionally argues that the victim's failure to appear on her two misdemeanor cases (both involved Health & Saf. Code, § 11364, possession of drug paraphernalia), resulting in the issuance of bench warrants, and her failure to appear, as ordered, in the instant trial constitute "conduct ... amounting to misdemeanors," admissible under People v. Wheeler (1992) 4 Cal. 4th 284 [14 Cal. Rptr. 2d 418, 841 P.2d 938]. We disagree.
Wheeler held "that if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion...." (4 Cal.4th at p. 295.) The misdemeanor must also involve moral turpitude. (Id. at pp. 288, 295.)
To satisfy the "criminal conduct amounting to a misdemeanor" requirement of Wheeler, appellant cites section 1320. But that section applies only to a defendant charged with a felony, released on her own recognizance, who "willfully fails to appear...." Doris McCalpin was not charged with a felony and had not been shown to "willfully fail to appear."
*1408 Appellant also cites section 1331 which makes "[d]isobedience to a subpoena, or a refusal to be sworn or to testify ... a contempt." But the record failed to show Doris McCalpin disobeyed a subpoena,[2] refused to be sworn, or refused to testify.
Finally, appellant cites section 166, subdivision (a)(4) which makes it a misdemeanor to "willfully" disobey a court order. Although Doris McCalpin did not obey the trial court's order to return on February 6, 1996, there was no evidence her failure was "willful." Nor are we satisfied such a failure would constitute "moral turpitude."
(2) Wheeler recognized the danger of burdening trials with collateral issues of witness misconduct. (People v. Wheeler, supra, 4 Cal.4th at p. 290.) It stated: "Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. By expressly preserving this authority, [California Constitution, article I,] section 28(d) makes clear the voters' determination to prevent such consequences.
"When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. (See People v. Beagle [(1972)] 6 Cal.3d [441,] 453-454 [99 Cal. Rptr. 313, 492 P.2d 1]; see also People v. Castro [(1985)] 38 Cal.3d [301,] 309 [211 Cal. Rptr. 719, 696 P.2d 111].) But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor or any other conduct not amounting to a felony is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (People v. Wheeler, supra, 4 Cal.4th at pp. 296-297, fn. omitted.)
*1409 (1b) We find the trial court did not abuse its broad discretion by not allowing the jury to speculate why Doris McCalpin had failed to appear as a trial witness.[3]
2. Appellant contends the trial court erred in admitting the victim's preliminary hearing testimony.
(3) Even if a witness is unavailable, her preliminary hearing testimony is not admissible at trial unless the defendant had a "meaningful opportunity for effective cross-examination ... in the earlier proceeding." (People v. Brock (1985) 38 Cal. 3d 180, 191 [211 Cal. Rptr. 122, 695 P.2d 209].)
Appellant contends he lacked such an opportunity because his attorney was unaware of the victim's pending misdemeanor cases and therefore could not cross-examine her about them at the preliminary hearing. The contention does not bear scrutiny.
Since possession of a controlled substance does not involve moral turpitude (People v. Castro (1985) 38 Cal. 3d 301, 317 [211 Cal. Rptr. 719, 696 P.2d 111]), certainly mere possession of narcotic paraphernalia does not. Therefore People v. Wheeler, supra, 4 Cal. 4th 284 would not have authorized defense counsel to ask the victim at the preliminary hearing if she had possessed narcotic paraphernalia.[4]
But, realistically, it was not these two cases no more than unproven accusations the defense was interested in. If, as appellant and Ruby Bishop later testified, "Moms" (the victim) was a notorious drug seller and user with whom they had both had contact before August 13, 1995, then defense counsel could pursuant to People v. Wheeler have asked her if she had committed such misconduct and whether, on August 13, 1995, rather than being robbed by appellant, she had sold him rock cocaine. Defense counsel asked no such questions. Instead, as is usual in robbery cases, defense counsel skillfully questioned the victim's identification of appellant.
Defense counsel was provided full opportunity to cross-examine the victim at the preliminary hearing. Although direct examination by the prosecutor is two transcript pages, cross-examination consumed nine pages. There were no objections during cross-examination and no restrictions imposed by the magistrate.
We find the trial court properly admitted the preliminary hearing testimony of the victim.
*1410 DISPOSITION
The judgment is affirmed.
Lillie, P.J., and Johnson, J., concurred.
A petition for a rehearing was denied June 6, 1997, and appellant's petition for review by the Supreme Court was denied August 20, 1997. Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.
NOTES
[1] Ms. McCalpin did not appear at trial. Her preliminary hearing testimony was read to the jury.
[2] She signed citations promising to appear on each of the misdemeanors. When she failed to appear initially, bench warrants issued. Later, when she did appear the warrants were recalled.
[3] The trial court informed the jury she had been ordered to appear but they should not speculate why she had not.
[4] And, if asked, she could have asserted her privilege against self-incrimination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265114/ | 422 Pa. Super. 410 (1993)
619 A.2d 743
Barbara Ann DAVIS, Appellant,
v.
Glenn R. DAVIS and John William Beyer.
Superior Court of Pennsylvania.
Argued September 23, 1992.
Filed January 8, 1993.
*412 Paul G. Campbell, Lancaster, for appellant.
Robert D. Beyer, Lancaster, for appellees.
Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
HOFFMAN, Judge:
This is an appeal from an order sustaining appellees' demurrer and dismissing appellant's complaint. Appellant, Barbara Davis, contends that the trial court erred in sustaining appellees', Glenn Davis and John Beyer,[1] demurrer to appellant's complaint and, in the alternative, that the trial court improperly refused to permit appellant to amend her complaint. For the reasons set forth below, we affirm.
The relevant facts in this case are as follows. Barbara Davis and Glenn Davis were married on October 22, 1983. On August 1, 1985, Glenn Davis ("appellee-Davis") filed for divorce. After years of negotiations between the parties, a hearing before a divorce master was held on March 21, 1991, at which time the agreement of the parties was placed on the record. At this hearing, appellant and appellee-Davis agreed to the following property settlement:
The parties own a piece of real estate . . . at 1765 Windy Hill Road in Lancaster, Pennsylvania. All of [appellant's] right, title and interest to that real estate will be conveyed to [appellee-Davis] in consideration for the sum of twenty-five thousand dollars. . . . In addition, the parties are the owners of a twenty-foot SeaRay boat. [Appellee-Davis] will convey any right or interest in that boat to [appellant]. . . . [Appellant] will withdraw any outstanding claims as we have just covered and the divorce will proceed on [appellee-Davis'] *413 original complaint in the 201(c) consentual [sic] basis.
Appellee-Davis' Brief, Exhibit A, 2/3/92, at 6-7.
On May 21, 1991, the divorce master filed his report with the trial court incorporating the terms of the agreement as provided at the hearing. Husband and wife had further disagreements and, as a result, on June 18, 1991, both appellant and appellee-Davis signed the Addendum to the Property Settlement Agreement ("Addendum") which provided:[2]
The parties now desire to resolve the differences that have arisen between them subsequent to the agreement reached on March 21, 1991, and to enter into a written agreement evidencing the terms and conditions of that resolution.
Now, therefore, in consideration of the mutual benefits to be derived here from, the parties hereto agree as follows:
1. Husband agrees to pay to Wife the sum of Twenty-Six Thousand Dollars ($26,000.00) in exchange for Wife's interest in the marital real estate located at 1756 Windy Hill Road.
By execution of this Agreement, Husband acknowledges receipt of signed Deed from counsel for Wife on or about June 12, 1991.
2. Husband shall retain all ownership interest in the Sea Ray boat and Wife agrees to waive any and all claim to that boat.
3. Wife agrees to execute any documents necessary to withdraw the Exceptions to the Divorce Master's Report which are presently pending in the Court of Common Pleas of Lancaster County, Pennsylvania, and further to withdraw any and all Exceptions to a Recommended Order for Alimony Pendente Lite. . . .
*414 4. Husband agrees to pay to Wife the aforementioned Twenty-Six Thousand Dollars ($26,000.00) no later than July 11, 1991.
.....
6. All other terms and provisions of the Divorce Master's Report not inconsistent with the terms of this Agreement shall be incorporated therein.
Appellant's Amended Complaint, Exhibit A, 1-9-92, at 2-3.
On December 12, 1991, appellant brought an action against appellee-Davis for breach of contract and against appellees for willful, intentional and fraudulent misrepresentations, seeking both special and punitive damages as well as specific performance on the contract. Appellees filed preliminary objections in the form of a demurrer and motions to strike. On January 9, 1992, appellant filed an amended complaint. Subsequently, on January 27, 1992, appellees filed a second set of preliminary objections in the form of a demurrer and motions to strike various paragraphs of the complaint. As a result of the preliminary objections, appellees' demurrer was granted and appellant's complaint was dismissed with prejudice on March 10, 1992. This timely appeal followed.
Appellant's first contention is that the trial court erred in granting appellees' demurrer and dismissing the complaint. We disagree.
In examining an order granting preliminary objections, our standard of review is as follows:
A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible. Therefore, if any theory of law will support the claim raised by the petition, a dismissal is improper. . . .
For the purpose of our review of a dismissal on the pleadings in the nature of a demurrer, [all well-pleaded facts], except to the extent that they constitute conclusions of law, must be taken as true[.]
Cianfrani v. Com., State Employees' Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (1984); see also Philmar Mid-Atlantic *415 v. York St. Associates II, 389 Pa.Super. 297, 300-301, 566 A.2d 1253, 1254 (1989).
In count I of appellant's amended complaint, appellant pleads that "[b]y failing to satisfy the first mortgage on the estate in the names of both [appellant] and [appellee-Davis], [appellee-Davis] failed to comply with the terms of the Addendum to the Property Settlement Agreement." Appellant's Amended Complaint, 1-9-92, at 12 (emphasis added).
The Addendum, however, makes no reference to any obligation on the part of appellee-Davis to refinance the mortgaged property and thereby release appellant from personal liability on the property. See Appellant's Amended Complaint, Exhibit A, 1-9-92, at 1-8. Since the terms of the Addendum which allegedly were not complied with never required appellee-Davis to refinance, appellant's claim as pleaded is legally insufficient.
Nonetheless, our analysis does not end here. In order to dismiss an action with prejudice by granting a preliminary objection in the form of a demurrer, we must find that no theory of law would support the claim raised by appellant. See Cianfrani 505 Pa. at 297, 479 A.2d at 469. While appellant's first count alleges that the literal terms of the Addendum were not complied with, we must also consider whether any obligations existed outside the written contract.
Earlier in the amended complaint, appellant alleges that appellees made repeated oral promises that they would refinance the property. Although there was no mention of these promises in the Addendum, appellant might contend that they were antecedent or contemporaneous understandings which were intended to vary the terms of the Addendum. While this court could grant leave for appellant to amend her pleading on this basis, such a procedure would be pointless.
The parol evidence rule "forbids the introduction of parol evidence of antecedent or contemporaneous agreements, negotiations and understandings of the contracting parties for the purposes of varying or contradicting the terms of a contract which both parties intended to represent the definite *416 and complete statement of their agreement." Am. Bank & Trust Co. of Pa. v. Lied, 487 Pa. 333, 340, 409 A.2d 377, 381 (1979) (citation omitted).
For purposes of the parol evidence rule, the Addendum is a "definite and complete" contract. First, its terms are clear and unambiguous. See Gemini Equip. v. Pennsy Supply, 407 Pa.Super. 404, 413, 595 A.2d 1211, 1215 (1991) ("[T]he written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements are admissible to explain or vary the terms of such a contract."); McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), affirmed per curiam 519 Pa. 439, 548 A.2d 1223 (1988) (citations and footnotes omitted). The manner of the transfer of ownership of the property, the cost of the transfer to appellee-Davis and the respective rights and obligations of the parties are outlined in the written agreement. Furthermore, the Addendum clearly represents that it is an agreement encompassing the entire equitable distribution. See Appellant's Amended Complaint, Exhibit A, 1-9-92, at 8 ("All the claims of the parties are settled in accordance with the foregoing outline of the settlement agreement of the parties and as contained in the Record of Testimony of this case.").
In addition, the alleged refinancing promise in the instant case is a condition which would naturally be included in such a specific and comprehensive agreement as the Addendum: the question of refinancing directly relates to the transferee's obligation to the transferor of property in a settlement agreement. See Gemini 407 Pa.Super. at 413, 595 A.2d at 1215 (citations omitted) ("[P]arol evidence is inadmissible to show a contemporaneous oral agreement which, if made, would naturally and normally have been contained in the written agreement between the parties."); Universal Film Exchanges, Inc. v. Viking Theatre Corp., 400 Pa. 27, 161 A.2d 610 (1960). Since the parol evidence rule applies in the instant action, evidence of appellees' alleged promises of refinancing would not be admissible to alter the terms of the Addendum. Accordingly, *417 there is no theory of law which would support appellant's claim in count I.
Likewise, appellant is not entitled to any legal recovery under counts II or III. The second and third counts of appellant's complaint allege that appellees "willfully, intentionally, maliciously and fraudulently misrepresented to [appellant] that [they] intended to satisfy the first mortgage in [the] Addendum to the Property Settlement Agreement and in all [their] negotiations concerning this agreement." Appellant's Amended Complaint at 14 and 16.
In stating a cause of action for fraud, the plaintiff must allege the following elements:
(1) a misrepresentation;
(2) a fraudulent utterance thereof;
(3) an intention by the maker that the recipient will thereby be induced to act;
(4) justifiable reliance by the recipient upon the misrepresentation; and
(5) damage to the recipient as the proximate result.
Brindle v. West Allegheny Hospital, 406 Pa.Super. 572, 574, 594 A.2d 766, 768 (1991) (citation omitted).
While appellant has pleaded facts sufficient to support four of the required elements, appellant provides no support to show that she "justifiably relied upon" appellees' misrepresentations. Appellant claims that because of appellees' misrepresentations, she was induced to sign the Addendum and to apply for a mortgage which was refused because of appellee-Davis' failure to refinance. Appellant's reliance is unjustified.
First, appellant was represented by able counsel both at the hearing before the divorce master and at the time of the signing of the Addendum. Moreover, she maintained adversarial relations with appellee-Davis. Finally, the Addendum specifically encompassed all property settlement claims. There was absolutely no mention of refinancing at the hearing before the divorce master, in the Divorce Master's Report or *418 in the Addendum. In light of the exclusion of such an important element of settlement, appellant was effectively put on notice that appellees' promises were insincere.[3]
Appellant's second contention is that even if she failed to state a legally sufficient claim, she should be given the opportunity to amend her complaint. This court has required that "[i]n order to sustain preliminary objections in the nature of a demurrer and dismiss the complaint without leave to amend `it must appear with certainty that, upon the facts averred the law will not permit recovery by plaintiff.'" Schuylkill Products, Inc. v. H. Rupert & Sons, Inc., 305 Pa.Super. 36, 40, 451 A.2d 229, 231 (1982) (quoting Schott v. Westinghouse Electric Corp., 436 Pa. 279, 291, 259 A.2d 443, 449 (1969)) (citations omitted); see also Pa.R.Civ.P. No. 1028(c); Pa.R.Civ.P. No. 126. Because we have already found that there is no theory of law which would support any part of appellant's amended complaint, we are neither required to nor should we grant appellant leave to amend.
We affirm the order of the trial court granting appellees' preliminary objection in the form of a demurrer.
Order affirmed.
NOTES
[1] John Beyer was Glenn Davis' attorney throughout the property settlement negotiations.
[2] We point out that the terms of the Divorce Master's Report are expressly incorporated into the Addendum to the extent that they are not inconsistent with the terms of the Addendum. Accordingly, when referring to the Addendum, we are also referring to the incorporated terms of the Divorce Master's Report.
[3] Appellant also argues that she spent $400 in filing for her own mortgage, which was denied because her name was on the mortgage at issue. However, appellant was on notice that appellees' promises might not be honored. Once on notice, appellant could have easily ascertained whether the property had indeed been refinanced before applying for her own mortgage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265117/ | 533 Pa. 99 (1992)
619 A.2d 1349
COMMONWEALTH of Pennsylvania, Appellant,
v.
Dominick W. SULLENS, Appellee.
Supreme Court of Pennsylvania.
Argued September 23, 1992.
Decided November 19, 1992.
*100 William R. Cunningham, Dist. Atty., Joseph P. Conti, First Asst. Dist. Atty., Jane M. Earll, Asst. Dist. Atty., Erie, for appellant.
Ronald Eisenberg, Deputy Dist. Atty., Law Div., Philadelphia, George S. Leone, Asst. Dist. Atty., for amicus curiae, Pennsylvania Dist. Attys. Ass'n.
Michael R. Cauley, Erie, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.
OPINION OF THE COURT
FLAHERTY, Justice.
The only issue in this appeal is whether the Superior Court erred in granting a new trial due to appellee's trial in absentia in the court of common pleas. We hold that the trial was *101 properly held in appellee's absence and therefore reverse the order of the Superior Court.
While in custody in Erie awaiting trial on charges unrelated to this appeal, appellee Dominick W. Sullens learned that his brother had died in an automobile accident. He requested permission to attend the funeral in another city, but did not return to custody following the funeral; consequently, he was charged with escape, 18 Pa.C.S. § 5121. After being apprehended, he was arraigned in the court of common pleas on January 12, 1989, and waived his right to a jury trial on the escape charge. Appellee was notified to appear for his nonjury trial on February 27, 1989. On his trial date, however, appellee did not appear.
The trial court found that appellee knew of the trial date and that his absence was "without cause" in terms of Pa. R.Crim.P. 1117(a), which provides:
The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict.
(Emphasis added.) Accordingly, the court issued a bench warrant for appellee's arrest and proceeded to trial in appellee's absence. Appellee was found guilty of escape. Two months later he was apprehended, and he appeared before the court on May 26, 1989, for sentencing. He admitted that he had notice of the trial date and stated that he had absented himself because he did not want to be found guilty. He offered no justifiable reason for his absence. The court imposed a sentence of three and one-half to seven years imprisonment.
On appeal, appellee raised three issues, one of which was his claim that the trial court should not have tried him in absentia. The Superior Court reversed the judgment of sentence and remanded for a new trial, 584 A.2d 1050, holding that "an accused cannot waive his right to be present at trial by failing *102 to appear on the date scheduled for trial," citing Commonwealth v. Felton, 224 Pa.Super. 398, 307 A.2d 51 (1973). Commonwealth v. Sullens, No. 1744 Pittsburgh, 1989 (Pa.Super.1990, Memorandum Opinion at 3). The court did not address the two remaining issues,[1] as they were mooted by the granting of a new trial. We granted allocatur to consider only whether appellee's trial in absentia was impermissible, as the Superior Court held.
A defendant has an absolute right to be present at his trial. It is a right, however, which may be waived. It may be waived expressly, or waiver may be implied by a defendant's actions. See, e.g., Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976); Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543 (1954). This principle is embodied in Pa.R.Crim.P. 1117(a), quoted supra: "The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict."
Superior Court did not cite or discuss Pa.R.Crim.P. 1117(a) which, on its face, appears to authorize trial in absentia under the circumstances present in this case. Instead, the Superior Court relied on its precedent in Felton, which held that after a trial begins, the unauthorized departure of a defendant does not preclude the completion of trial in his absence, but if he fails to appear for the commencement of trial, trial may not begin in his absence. The distinction was based on the following rationale of the Superior Court:
This case [where the appellant was never present in the courtroom during his trial] is distinguishable from a proceeding where the defendant voluntarily absents himself from the courtroom subsequent to the initiation of the proceeding. If a mistrial were declared whenever a defendant *103 voluntarily absents himself from the courtroom during trial, the courts would encourage defendants to refuse to appear whenever they expect the judge or jury to render a verdict of guilty. Such an absence would guarantee the defendant another opportunity to be acquitted. These circumstances do not attach to a case where the defendant does not appear on the date scheduled for trial. While the appellant's absence delayed the administration of justice, the appellant would not have received a second chance at acquittal if the trial had been postponed until his apprehension. If the waiver rule were extended to include actions taken by an accused prior to trial, fugitives who are unaware of the charges against them could be tried in absentia.
Commonwealth v. Felton, 224 Pa.Super. at 403, 307 A.2d at 53. In Felton, as in this case, the Superior Court did not address the applicability of Rule 1117(a). The court's conclusion, supra, that "fugitives who are unaware of the charges against them could be tried in absentia," is absurd; Rule 1117(a) does not authorize trial in absentia unless a defendant is absent "without cause," and a defendant who is unaware of the charges against him or who does not know of the establishment of a trial date is not absent "without cause." The court's fanciful speculation about fugitives who are unaware of the charges against them was unwarranted, for the defendant in Felton was aware of the charges against him and his trial date just as appellee in this case was aware of the charges against him and his trial date.
The Superior Court reasoned that to permit a defendant to halt the proceedings by absconding during trial would encourage him to avoid an expected verdict of guilt. It is equally apparent that applying a different rule when a defendant fails to appear at all, thus permitting him to halt his trial by absconding before the trial commences, has precisely the same effect: it encourages a defendant to ignore his summons to trial if he thinks a guilty verdict is likely, secure in the knowledge that he cannot be convicted until he is apprehended. In the words of the late Mr. Justice McDermott: *104 "No society on earth offers more than we do to preserve and protect the rights of those held for trial. It is more than simple discourtesy not to attend. It is an anarchical contempt of everything that so many have died to preserve." Commonwealth v. Jones, 530 Pa. 536, 541, 610 A.2d 439, 441 (1992) (McDermott, J., concurring).
Moreover, in Jones, supra, we recently affirmed the Superior Court's order quashing Jones' appeal due to his fugitive status following trial and sentencing in absentia.[2] Jones appeared on the day scheduled for trial and participated in the selection of jurors but disappeared before the second day of trial: before jury selection was completed, before the jury was impanelled and sworn, and before any evidence was presented. For double jeopardy purposes, a trial begins when the jury is impanelled and sworn. Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979). To distinguish the Jones case from this one by saying that Jones' trial began with him in attendance whereas appellee never appeared for trial is to rely on an almost meaningless distinction; for double jeopardy purposes, at least, Jones was not present when his trial began and most of the protections afforded by the right to be present at one's trial were forfeited by Jones when he departed before the jury was impanelled. Appellee in this case personally, in open court, waived his right to trial by jury then left before evidence was presented in his bench trial. There is little functional difference between the Jones case and this one.
We are therefore unwilling to adopt the holdings of the Superior Court in Felton and this case which distinguish absence before trial from departure during trial. We hold that when a defendant is absent without cause at the time his trial is scheduled to begin, he may be tried in absentia, as Pa.R.Crim.P. 1117(a) contemplates.
A contrary rule . . . would be a travesty of justice. It would allow an accused at large upon bail to immobilize the *105 commencement of a criminal trial and frustrate an already overtaxed judicial system until the trial date meets, if ever, with his pleasure and convenience. It would permit a defendant to play cat and mouse with the prosecution to delay the trial in an effort to discourage the appearance of prosecution witnesses. . . . A defendant has a right to his day in court, but he does not have the right unilaterally to select the day and hour.
Government of Virgin Islands v. Brown, 507 F.2d 186, 189-90 (3d Cir.1975). Although we have not previously decided this issue, we note that numerous other jurisdictions have reached the same conclusion.[3]
Appellee argues, nevertheless, that the trial court improperly found, at the time his trial was scheduled to begin on February 27, 1989, that he was absent "without cause." He argues that the record failed to establish that he had been notified of the trial date. Although appellee characterizes the colloquy as reflecting "considerable" doubt that he had received notice of trial, the record establishes that there was very little doubt indeed. The judge's recollection and defense counsel's statements provided an adequate basis for the court to make a factual finding that appellee had notice of his trial date. The only uncertainty was due to the fact that defense counsel could not find a copy of his letter to appellee conveying the information.
In any event, we need not review the sufficiency of the evidence at the time the court found appellee to be absent without cause and decided to proceed with a trial in absentia. The record establishes beyond any doubt that appellee had *106 notice of his trial, due to his admission at sentencing that he knew of his February 27, 1989 trial date and that he willfully decided to absent himself without cause or justification. Accordingly, the trial court did not err in conducting a bench trial in appellee's absence.
The order of the Superior Court is reversed. The case is remanded for the Superior Court to review the remaining issues raised by appellee.
PAPADAKOS, J., joins the majority opinion and files a concurring opinion.
ZAPPALA, J., files a dissenting opinion which is joined by CAPPY, J.
CAPPY, J., files a dissenting opinion which is joined by ZAPPALA, J.
PAPADAKOS, Justice, concurring.
I join with the majority, but write separately to emphasize that no harm is done to a defendant whose case is heard in his absence because good cause has not been shown to the trial judge for the absence when, in fact, good cause exists for the absence. At sentencing, when the defendant appears, if he can establish that he had good cause for his absence at trial, he would be entitled to a new trial.
ZAPPALA, Justice, dissenting.
I join in Justice Cappy's Dissenting Opinion but write separately to emphasize the inequities of the majority's ruling. It has always been my view that the law is fair and impartial, favoring neither the prosecution nor the defendant. But, today, the majority fosters injustice by holding that an accused who is absent without cause on his date of trial, may be tried in absentia.
Citing court timeliness, scheduling, and judicial respect, the majority punishes the careless or willful defendant who fails to appear. Yet, this same majority fails to consider the instances where the prosecutor neglects to appear "without cause." *107 Surely, court timeliness, scheduling and judicial respect are also at stake in these circumstances. However, we do not consider waiving the prosecution's right to try the defendant as an appropriate punishment.
In Commonwealth v. Carson, 510 Pa. 568, 510 A.2d 1233 (1986), we held that the lower court abused its discretion in sua sponte dismissing charges against the defendant when the prosecutor failed to timely appear for trial. As a basis for our holding we stated:
The failure of a party to appear at a scheduled time must involve more than a mere failure of time; the failure must involve a failure of justice or prejudice to a defendant to justify the discharge of a criminal action. When such interests are not involved, the offending party may be otherwise sanctioned without defeating the public interest.
510 Pa. at 572, 510 A.2d 1235.
I cannot accept the double standard that this court continues to adopt. If a defendant or his counsel fails to appear, sanctions are now imposed. He effectively loses the greatest of all rights, that being the rights which are afforded him by the Pennsylvania State Constitution. However, if a prosecutor fails to appear, we require a showing of prejudice. It has always been said that although we strive to achieve a perfect trial, the most that we can hopefully obtain is a fair trial. If the process is not fair, however, then the exercise has been futile. If prejudice is a material issue when the prosecutor fails to appear, then the same standard should be applied to a defendant.
CAPPY, J., joins this dissenting opinion.
CAPPY, Justice, dissenting.
I dissent. The majority holds that a trial in absentia may be conducted where a defendant is aware of his trial date and willfully absents himself from trial without cause or justification. The majority further holds that the record in the case sub judice establishes beyond any doubt that appellee had *108 notice of his trial date "due to his admission at sentencing that he knew of his February 27, 1989 trial date . . ." I disagree.
Notice of his trial is absolutely necessary to support a finding that appellee willfully absented himself from trial without cause or justification. In support of its finding that appellee had notice of his trial date the trial court stated:
The defendant admitted that the reason for his absence from trial was fear of a guilty verdict. The record indicates that the defendant's attorney at the time gave the defendant written notice of the trial date. This Court also notes that the defendant was incarcerated from at least January 12, 1989 (the date he signed the Waiver of Jury Trial) to February 13, 1989. The trial date was set and defense counsel was notified of that date on January 12, 1989. The defendant also knew he would be scheduled for trial soon but made no inquiry to ascertain his trial date.
Opinion p. 7.
Based upon these reasons, I believe that there was no way the trial court could have known whether appellee had notice of the trial date when it ordered trial in absentia. Nevertheless, the majority concludes that the insufficiency of this evidence is irrelevant, because appellee admitted at sentencing that he knew of his trial date. However, such evidence cannot cure the insufficiency of the evidence before the trial court at the time it found appellee had notice of his trial date, and had willfully absented himself.
Clearly, the mere representations of appellee's counsel that he had mailed notice of the trial date to appellee, without knowledge of whether appellee had, in fact, received such notice, cannot serve to support a finding of the requisite notice. The majority's need to resort to reliance upon appellee's admission at sentencing further supports the insufficiency of the evidence when the trial court issued its order.
Therefore, I would hold that in the absence of uncontrovertible proof that appellee had notice of the trial date, the trial court was precluded from finding that appellee willfully absented himself from trial without cause.
*109 Accordingly, I would affirm the opinion and order of the Superior Court, which found that the trial court erred in trying appellee in absentia, and remand for a new trial.
ZAPPALA, J., joins in this Dissenting Opinion.
NOTES
[1] The two issues not decided by the Superior Court are: a) whether the trial court improperly graded appellee's escape conviction as a felony of the third degree; and b) whether prior counsel were ineffective for failing to challenge the trial court's gradation of the escape charge and for failing to challenge the legality of the parole detainer under which appellee was being held at the time of his escape.
[2] Although this court did not expressly approve Jones' trial and sentencing in absentia, quashing his appeal had the practical effect of insulating the procedure from appellate review. See Jones, 530 Pa. at 539 n. 2, 610 A.2d at 440 n. 2.
[3] E.g., United States v. Houtchens, 926 F.2d 824 (9th Cir.1991); United States v. Crosby, 917 F.2d 362 (8th Cir.1990); United States v. Muzevsky, 760 F.2d 83 (4th Cir.1985); United States v. Crews, 695 F.2d 519 (11th Cir.1983); Government of Virgin Islands v. Brown, supra; United States v. Sanchez, 790 F.2d 245 (2d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 584, 93 L. Ed. 2d 587 (1986); State v. McGuire, 1991 WL 181041, 1991 Tenn.Crim.App. LEXIS 766 (1991); State v. Hudson, 119 N.J. 165, 574 A.2d 434 (1990); Barnett v. State, 307 Md. 194, 512 A.2d 1071 (1986); Freeman v. State, 541 N.E.2d 533 (Ind.1989); State v. LaBelle, 18 Wash.App. 380, 568 P.2d 808 (1977); State v. Davis, 108 Ariz. 335, 498 P.2d 202 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265121/ | 152 Pa. Commw. 427 (1992)
619 A.2d 399
Robert SMITH and Karen Smith, his wife
v.
ZONING HEARING BOARD OF THE BOROUGH OF BELLEVUE and Suburban General Hospital.
Appeal of SUBURBAN GENERAL HOSPITAL, Appellant.
Commonwealth Court of Pennsylvania.
Argued October 22, 1992.
Decided December 30, 1992.
Reargument Denied February 12, 1993.
*429 J. Lawrence McBride, for appellant.
Robert W. Goehring, for appellees, Robert Smith et ux. Michael Georgalas, for appellee Borough of Bellevue.
Before McGINLEY and KELLEY, JJ., and SILVESTRI, Senior Judge.
SILVESTRI, Senior Judge.
Suburban General Hospital (SGH) appeals two orders of the Court of Common Pleas of Allegheny County reversing a decision of the Zoning Hearing Board (ZHB) of the Borough of Bellevue which granted SGH permission to construct parking lots. We affirm.
When it was constructed, SGH was a permitted use in a district defined as Residential-Second by the zoning ordinance of the Borough of Bellevue (the Borough). The Borough amended its zoning ordinance in 1984 and deleted "institutions" (which includes hospitals) from the permitted uses in the district. SGH thereafter was a valid non-conforming use. At the time of the 1984 amendment, SGH owned four lots contiguous to the hospital. After those amendments, SGH purchased two more lots.[1] These six contiguous lots, which are approximately the size of a football field, are the subject of this litigation.
Section 1121.04(a)(11) of the zoning ordinance provides for "accessory uses on the same lot customarily incident to the [permitted] uses". Parking is not specifically listed as a separate permitted use. In 1988, SGH asked the Borough's Town Council to rezone the tract to allow parking as a permitted use but that request was denied. SGH then sought a building permit to construct the parking lot. The Borough's solicitor notified SGH that the permission was denied because the lots were separate from the lot upon which SGH was built. SGH appealed that denial to the ZHB.
*430 Hearings were held before the ZHB on four dates over a three month period. The Borough was represented by its solicitor and appeared in opposition to the request; Karen and Robert Smith, adjoining landowners, also appeared in opposition. At these hearings, SGH presented evidence concerning its severe shortage of parking space. It also presented its plans for landscaping and lighting of the parking lot to make it as unobtrusive as possible. Following the hearings, the ZHB made findings of fact and concluded that SGH should be permitted to construct the parking lots. The ZHB held that such use was permitted as a reasonable expansion of a nonconforming use; the Board also stated that "[t]he permitted expansion is necessary in order to accommodate the requirements of natural growth of the operation of the hospital and is the hardship necessary for granting a variance in this case". (Decision of the ZHB, Conclusion of Law 6, 1/29/91.) Both the Borough and the Smiths appealed the ZHB's decision to common pleas court.
Without taking additional evidence, the common pleas court reversed the ZHB's order, concluding that the ZHB had committed two errors of law. The court first concluded that the doctrine of reasonable expansion of a non-conforming use did not apply to property acquired after the use became non-conforming. The court also held that there was no evidence to show that SGH was entitled to a variance. Based upon this reasoning, the court reversed the ZHB's order insofar as it granted a variance. The court vacated the order granting permission to construct the parking lot as an expansion of a non-conforming use and remanded the matter to the ZHB to make findings of fact on the question of whether a parking lot consisting solely of the properties held by SGH at the time it became a non-conforming use would be detrimental to public health, safety and welfare.
Because of the remand ordered by the common pleas court, SGH petitioned that court to amend the interlocutory portion of the orders to permit an interlocutory appeal by permission because of the existence of a controlling question of law as to which there was substantial ground for a difference of opinion.[2]*431 The court treated this petition as one seeking reconsideration and modification. It, thereafter, vacated the original order and entered a new order which simply reversed the entire order of the ZHB, deleting any reference to a remand, stating instead that "[t]he ruling of this court is without prejudice to the right of [SGH] to file an amended application with the [ZHB]. . . ." (Order of the Court of Common Pleas of Allegheny County, 2/18/92.) SGH then appealed those final orders to this Court.
On a zoning appeal where the common pleas court did not take any additional evidence, our scope of review is limited to determining if the ZHB committed an error of law or manifestly abused its discretion. Pa. Northwestern Distributors, Inc. v. Zoning Hearing Board, 526 Pa. 186, 584 A.2d 1372 (1991); Curtis Investment Co. v. Zoning Hearing Board of the Borough of West Mifflin, 140 Pa.Commonwealth Ct. 302, 592 A.2d 813 (1991). SGH argues that the ZHB did not commit any legal errors[3] and thus should have been affirmed by the common pleas court. We do not agree.
The Supreme Court could not have been more clear when it stated, "While a non-conforming use may be extended in scope as the business increases in magnitude it may not be so extended over ground not occupied at the time of the passage of the zoning ordinance." Humphreys v. Stuart Realty Corp., 364 Pa. 616, 620, 73 A.2d 407, 409 (1950) (emphasis added). This principle, first expressed over forty years ago, is still the law. We have held that where such expansion is sought a variance is necessary. Schaffer v. Zoning Hearing Board of Upper Darby Township, 32 Pa.Commonwealth Ct. 261, 378 A.2d 1054 (1977). As we said, "[The landowner] needed a variance to use the lots acquired after the enactment of the zoning ordinance for parking because her nonconforming use . . . did not entitle her to extend that use over land not occupied when the ordinance became effective." Id. at 265, 378 A.2d at 1056. It is thus *432 required that SGH prove its entitlement to a variance to use the after acquired lots for parking.
Section 910.2 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2 (Supp.1992-93), provides in pertinent part:
The board may grant a variance, provided that all of the following findings are made where relevant in a given case:
(1) That there are unique physical circumstances or conditions. . . peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable a reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant.
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
(Emphasis added.)
Specifically, with regard to the two after acquired lots, the variance should not have been granted for at least two reasons. First, there is not one shred of evidence in this voluminous record to show that the two lots could not be used as zoned, i.e., for residential purposes. This failure of proof is alone sufficient to deny the request for a variance. We have *433 stated that "[u]nnecessary hardship occurs where it is shown that compliance with a zoning ordinance would render a property `practically valueless'". Ignelzi v. Zoning Board of Adjustment of the City of Pittsburgh, 61 Pa.Commonwealth Ct. 101, 104, 433 A.2d 158, 160 (1981). SGH has offered no evidence that the zoning ordinance has so effected the value of these two lots.
We also believe that Snyder v. Zelienople Zoning Hearing Board, 20 Pa.Commonwealth Ct. 139, 341 A.2d 546 (1975), prohibits the grant of the variance to SGH. In that case, an automobile dealership, which was operating as a nonconforming use, was being pressured by its manufacturer to expand its facilities. In an attempt to expand the owner of the dealership purchased a lot across the street. That district did not permit an automobile dealership. The owner sought a variance which was denied by the local zoning authorities. We pointed out in affirming that the hardship was being suffered by the dealership and not by the after acquired property. There was no proof there that any unnecessary hardship attached to the after acquired lots.[4] In the present case, as in Snyder, SGH offered evidence capable of supporting a finding that the lack of adequate parking was an unnecessary hardship to SGH and its original property. To obtain a variance for after acquired property, the landowner must prove an unnecessary hardship as to the after acquired land for which the variance is needed. SGH offered no such evidence.
SGH argues that Everson v. Zoning Board of Adjustment, 395 Pa. 168, 149 A.2d 63 (1959) and Civera v. Zoning Board of Adjustment, 39 Pa.Commonwealth Ct. 499, 395 A.2d 700 (1979), compel the conclusion that the grant of the variance was not an error of law. Those cases, which deal with the question of parking for a non-conforming use, are distinguishable and do not support SGH's contention. In each of those cases, the landowner seeking permission to use space for *434 parking proposed to use land which already was owned by the non-conforming use at the time the use became non-conforming.
In Everson, the landowner was seeking to expand its building and to add on-site parking. A dimensional variance was necessary to expand the building. A close reading of the case reveals that no variance was necessary for the on-site parking; that request was granted on the basis of an extension of a non-conforming use. The court also held that the zoning board had the power to impose conditions, such as landscaping and paving, when approving the parking site.
Civera is somewhat different. In that case, we affirmed the trial court's order on the basis of its opinion. Civera v. Zoning Board of Adjustment, 9 Pa.D & C 3d 39 (1977). As described by the trial court, the proposed parking facility was not on land occupied by the art gallery, the non-conforming use, but was "on land which it long owned." Id. at 44. After referring to the rule in Humphreys mentioned above, the court went on to explain:
The expansion of right, however, is limited to land already occupied by the nonconforming use. `[T]he expansion of a nonconforming use does not in and of itself entitle the owner to erect structures on a portion of his land not previously occupied by the business enterprise.' Mack Zoning Appeal, 384 Pa. 586, 589, 122 A.2d 48 (1956); Philadelphia v. Angelone, 3 Pa.Commonwealth Ct. 119, 280 A.2d 672 (1971). The burden is on the land user to prove that the land was previously so used: Philadelphia v. Angelone, supra. If the land user fails to meet this burden, or seeks to put additional property to the nonconforming use a variance must be obtained.
Civera, 9 D & C 3d at 44 (emphasis in original). The court went on to explain why the lack of adequate parking constituted an unnecessary hardship for the nonconforming use's entire property permitting the grant of the variance based entirely on the lack of adequate parking and public safety concerns. In no way, however, can Civera be read as allowing the grant of a variance to after acquired property without meeting the *435 traditional test for a variance. We thus will affirm those orders.
ORDER
NOW, December 30, 1992, the orders of the Court of Common Pleas of Allegheny County, dated February 18, 1992, at Nos. SA 471-91 and SA 468-91 are affirmed.
KELLEY, Judge, dissenting.
I respectfully dissent. While I acknowledge the general rule and application as applied by the majority, I believe it is inapplicable to the facts in the instant case.
Although caselaw supports the majority's decision not to allow the extension of the nonconforming use over the after-acquired property, there is an overriding public policy which I believe should be controlling in this case.
Several of the lots in one block were purchased for the extension of the nonconforming use prior to the amendment to the zoning ordinance. I believe that this fact should allow the entire block to be utilized as parking. See Philadelphia Art Alliance v. Zoning Board of Adjustment, 377 Pa. 144, 104 A.2d 492 (1954).
In this particular case, the applicant is the Suburban General Hospital which public policy, within the reasonable bounds of discretion, should allow to continue functioning for the betterment of society and the community.
I would hold as controlling the significant shift of the hospital's character of service, from inpatient to outpatient services. Such a shift necessarily involves increases in the demand for parking space. Because there is increased utilization of outpatient services by patients on a daily basis, parking is essential, and the extension of such parking is necessary to the continued viability of the nonconforming use.
Accordingly, I would reverse.
NOTES
[1] One of the lots is vacant while the other lot still has a house erected on it.
[2] See Pa.R.A.P. 1312.
[3] There is not now, nor has there been, any allegation that the ZHB committed an abuse of discretion.
[4] In Snyder, the dealership property, the non-conforming use, was owned by a corporation with Snyder as the sole shareholder. Snyder individually purchased the after acquired property. We do not believe this distinction is of any moment to our present analysis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265038/ | 6 F. Supp. 965 (1934)
VANDERLIP
v.
UNITED STATES.
No. 41993.
Court of Claims.
May 7, 1934.
*966 *967 Ellsworth C. Alvord, of Washington, D. C. (Ralstone R. Irvine and Carbery O'Shea, both of Washington, D. C., on the brief), for the plaintiff.
George H. Foster, of Washington, D. C., and Frank J. Wideman, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
BOOTH, Chief Justice.
The pertinent facts of this case are stated in the findings and the opinion of the court. The record is not open to serious controversy, for it is made up as to vital issues involved upon documentary evidence. If the unlimited waiver of the statute of limitations executed in accord with section 250 (d) of the Revenue Act of 1921, 42 Stat. 265, is a valid and binding one, it is then apparent that the collection of the tax for which a refund is herein claimed was timely. To this issue the opinion of the court is addressed.
*968 On October 2, 1921, the plaintiff's attorney in fact, acting under a written and duly executed power of attorney so to do, signed an unlimited waiver of the statute of limitations as to the assessment and collection of the tax herein sought to be recovered. This waiver was lawfully signed by the Commissioner and duly filed in the Bureau. On March 10, 1923, the Commissioner notified the plaintiff that the waiver was invalid and that a jeopardy assessment of an additional tax of $77,836.17 would be made immediately. The five-year period for the assessment and collection of the tax expired on April 1, 1923, and the jeopardy assessment was made by the Commissioner on March 31, 1923. On April 26, 1923, the plaintiff filed a claim for abatement of the additional tax, and thereafter on January 30, 1926, the Commissioner abated $13,920.09 of the tax. The Collector on March 10, 1926, collected from the plaintiff $63,916.08, together with $10,478.73 interest. Thus it appears that the assessment of the additional tax was timely. The collection of the same is challenged, among other grounds, on the asserted invalidity of the waiver. The power of attorney conferred upon plaintiff's attorney in fact the unrestricted right and authority to do all things essential to be done concerning plaintiff's business and financial affairs, except sign deeds for real property. This instrument is comprehensive in its provisions; the plaintiff was abroad and intentionally made it so. He was a person of large means and large estate involving a multiplicity of business transactions which inevitably included the item of taxation, a fact which, if the plaintiff did not actually know, he must be charged with knowing.
The plaintiff's argument is addressed to a contention that the power of attorney did not authorize the waiver of any of plaintiff's rights. To sustain the same a great number of state and federal cases are cited. We will not review them because they simply exemplify the fundamental rule that the authority to act under such a written instrument must be ascertained from the terms of the same. In other words, its scope is limited to its provisions.
Tested by this familiar rule of law, the power of attorney in this case, after specifying certain subjects included within its scope, recites as follows:
"To settle, compound, compromise, and adjust by payment or otherwise any claims or demands which may be made against me; and, in general, to have the full and complete charge and management of my property and interests, and to do any act or thing in relation thereto which may to him seem advisable, in the same manner and to as great an extent as if the same belonged to him personally (except to sell real estate * * *)."
It is hardly necessary to emphasize the scope of conferred authority to "settle, compound, compromise," and adjust claims. In each instance the surrender, as well as the acquisition, of legal rights, is distinctly involved if the transaction becomes effective. The collection of an income tax unpaid is generally preceded by a demand for payment, and assuredly it is an enforceable claim which under certain circumstances may be summarily enforced. This plaintiff, in the name of his attorney in fact and under the precise power of attorney now challenged, filed a refund claim on August 19, 1921, for $572.67 for an alleged overassessment of 1916 taxes, and the same was allowed, the refund made and accepted. Aside from other rules of law deemed invulnerable, the plaintiff may not recognize the validity of the power of attorney when it is to his interest so to do, and subsequently repudiate it when adjustment of his later taxes demonstrates that by so doing he may secure an additional and substantial refund thereof. Naumkeag Steam Cotton Co. v. United States, 2 F. Supp. 126, 76 Ct. Cl. 687; Id., 289 U. S. 749, 53 S. Ct. 694, 77 L. Ed. 1495.
After the execution of the waiver under discussion, the plaintiff filed a claim in abatement of the additional tax for 1917. The Commissioner, acting upon the abatement claim, abated $13,920.09 of the additional tax on January 30, 1926, reducing the amount of the tax from $77,836.17 to $63,916.08. Therefore, it is apparent that at the time of the execution of the waiver the plaintiff, acting through his attorney in fact, gained a substantial benefit by waiving the statute of limitations for the collection of the additional tax. A lawful waiver of the statute of limitations for the collection of a tax may not be said to be indubitably a waiver of a right, for the provision of law granting such a procedure comprehended the difficulties inherent in the ascertainment of the correct tax in involved and great estates and business transactions, and the right of waiver is of mutual benefit to both the taxpayer and the government. Its filing stays immediate collection of the tax and results not infrequently in substantial refunds and credits which a time limit would otherwise prohibit. Aldridge v. United States, 64 Ct. *969 Cl. 424; Colonial Trust Co. v. United States, 55 F.(2d) 512, 73 Ct. Cl. 549, certiorari denied 286 U.S. 560, 52 S. Ct. 643, 76 L. Ed. 1294. The instant case demonstrates exactly what is meant, for as late as 1926 the plaintiff received an abatement of his tax liability as herein pointed out.
The Commissioner approved the waiver, and the statute in this respect was fully complied with. Later, he advised the plaintiff that a waiver executed by an attorney "is held to be invalid," and proceeded to resort to a jeopardy assessment of the additional tax. No reason appears of record why the Commissioner determined the waiver to be invalid except that it was executed by an attorney. In this instance it was executed by an attorney in fact and unless some legal impediment existed which in and of itself precluded the possibility of an attorney in fact acting for another under a letter of authority sufficient in terms to authorize the act, it would seem as though the Commissioner exceeded his authority in holding the same invalid. To hold otherwise would be to repose in the Commissioner the right to construe instruments of this character, in view of the statute, and thereby prejudice the express rights which the statute gives to both the taxpayer and the government.
While it was optional with the Commissioner under the statute to accept the waiver, once having signed it, it was a valid waiver and continued in effect until terminated under the law or legal regulations of the Commissioner.
The plaintiff in his own name ratified and confirmed the action of his attorney in fact in filing the waiver, and received substantial benefits from so doing. On April 26, 1923, the plaintiff individually filed the claim in abatement and his tax liability was decreased thereby to the extent of $13,920.09. The plaintiff must have known, at least knowledge is by law imputed to him, that the statute of limitations for the collection of the tax had expired more than twenty days prior to the filing of this claim, and notwithstanding the jeopardy assessment of the tax, if the plaintiff intended to rely upon the expiration of the statute of limitations for collection then was the time to assert the right. The waiver being valid, the collection of the tax was timely.
Much is said with respect to the practice of the Bureau obtaining at the time the facts set forth in the findings transpired. It is sufficient to observe that the practice stated was found by the Supreme Court to be contrary to law. Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676. The petition is dismissed. It is so ordered.
LITTLETON, Judge.
I concur in the decision dismissing the petition on the ground that, if the waiver was invalid, the provisions of section 611 of the Revenue Act of 1928 (26 USCA § 2611) are applicable and preclude recovery of the amount sued for which is not claimed to have been in excess of the tax due for the year involved.
The Commissioner of Internal Revenue proceeded throughout in accordance with his published decisions, namely, that the statute of limitation did not apply in any case to collection of a tax by demand of the Collector or by distraint if a timely assessment thereof had been made. I 1 C. B. 305; I 2 C. B. 218. In such cases it was the practice to assess the tax within the period provided in the statute, invite a claim for abatement, and postpone efforts to collect awaiting the filing of a claim for abatement, and, if such a claim was filed, to further withhold collection until a decision had been made thereon. Under this practice collection of the tax was made in many cases after it had become barred and, had section 611 not been enacted, the amounts so collected would have been refundable under the decision in Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676, decided February 21, 1927. In that case it was held (1) that distraint by the Collector was a proceeding within the meaning of section 250 (d) of the Revenue Act of 1921; (2) that collection of the tax became barred upon the expiration of five years after the return was filed, unless the period was extended in accordance with the statute; and (3) that a tax collected after the expiration of the statutory period of limitation could be recovered in a suit by the taxpayer. As a result of the situation thus arising and in order to withdraw the defense of the statute of limitation to the collection of a tax not in excess of the amount due in cases where, under the administrative practice, the Department had delayed collection believing same was not barred, and where a claim in abatement was filed, section 611 of the Revenue Act of 1928 was enacted. This section follows:
"If any internal-revenue tax (or any interest, penalty, additional amount, or addition *970 to such tax) was, within the period of limitation properly applicable thereto, assessed prior to June 2, 1924, and if a claim in abatement was filed, with or without bond, and if the collection of any part thereof was stayed, then the payment of such part (made before or within one year after the enactment of this act [May 29, 1928]) shall not be considered as an overpayment under the provisions of section 607 [section 2607], relating to payments made after the expiration of the period of limitation on assessment and collection."
The act of 1928 was introduced in the House of Representatives early in December 1927, and the Committee on Ways and Means, to which it was referred, recommended its passage in House Report No. 2, December 7, 1927, 70th Congress, 1st Sess., and, on page 34, made the following explanation of the purpose of section 611:
"Sec. 611. Collections in Cases in Which Claims in Abatement Were Filed.
"Prior to the enactment of the Revenue Act of 1924 it was the administrative practice to assess immediately additional taxes determined to be due. Upon the assessment, taxpayers were frequently permitted to file claims in abatement with the collector and thus delay the collection until the claim in abatement could be acted upon. If this practice had not been followed, undue hardship undoubtedly would have been imposed upon the taxpayer. It was supposed that there was no limitation upon the collection by distraint of the amount ultimately determined to be due. However, the Supreme Court has recently held in a case in which the period for assessment expired prior to the enactment of the 1924 act, that the period for collection was limited to five years from the date on which the return was filed. Decisions upon claims in abatement are being made every day. Amounts have been paid, are being paid, by the taxpayer even though the statute of limitations may have run. Exceptionally large amounts are involved. Accordingly, it is of utmost importance to provide that the payments already made should not be refunded. In order to prevent inequality, it is also provided that the amounts not yet paid may be collected within a year after the enactment of the new act.
"Your committee appreciates the fact that this provision will probably be subjected to severe criticism by some of the taxpayers affected. However, it must be borne in mind that the provision authorizes the retention and collection only of amounts properly due, and merely withdraws the defense of the statute of limitations. If it is determined that the amount paid is in excess of the proper tax liability, computed without regard to the statute of limitations, such excess will constitute an overpayment which may be refunded or credited as in the case of any other overpayment."
When the Revenue Bill of 1928 came before the Senate early in May, 1928, section 611 was entirely eliminated by Senate Amendment No. 190 on the ground that the statute of limitation should be made effective as to both the government and the taxpayer. See Senate Finance Committee Report No. 960, May 1, 1928, 70th Congress, 1st Sess., page 42. The section was restored in conference with an amendment to the section as passed by the House eliminating a provision that, in cases falling within the section, "a distraint or proceeding in court for the collection of such part may be begun within one year after the enactment of this act." The conference report, No. 1882, 70th Congress, 1st Sess., stated, on page 22, as follows: "Amendment No. 190: The House bill (sec. 611) provided that in cases in which a tax was assessed within the period of limitation upon assessments and thereafter (whether before or after the expiration of such period) a claim in abatement was filed, with or without a bond, and if proceedings for the collection of the tax were not promptly instituted (as would have been the case had the claim in abatement not been filed), then (1) if any part of the amount covered by the claim in abatement was thereafter paid, such amount should not be refunded, solely because of the fact that it was paid after the running of the statute, and (2) in cases where the amount was not paid, it could be collected by distraint or proceedings in court begun within one year after the enactment of the new law. The Senate amendment struck out this section; and the House recedes with an amendment retaining the prohibition upon refunds, as above described, and eliminating the authority for collection."
Plaintiff construes the section as applying solely to cases where timely collection was not made because of the filing of a claim in abatement before the expiration of the statutory period for collection. But this construction seems to be too narrow. The language of the section discloses a purpose to withdraw the defense of the statute of limitation with respect to collection of a tax not *971 in excess of the amount due in those cases where the department delayed collection in order that the taxpayer might receive the benefit, through an abatement claim, of a full and thorough consideration of the case before being required to make payment. I think a proper construction of the section does not require the holding that collection within the statutory limitation period must have been stayed by an abatement claim previously filed. Congress recognized that in those cases where assessment of a tax had been made without previously giving notice thereof and affording the taxpayer an opportunity for a hearing collection was withheld in order that the taxpayer might have consideration of the case after a hearing on an abatement claim and appeal. It also knew that in a great many cases the assessment was made very near the last day of the period of limitation; that it was the practice to allow at least ten days after assessment for the filing of an abatement claim and that this time was frequently extended. I think it is clear therefore that the word "stayed" was used in the sense of delayed or postponed, and had reference to a stay before, as well as after, the filing of the abatement claim. This seems clear enough from the fact, as disclosed in the committee reports, that the primary purpose of the section was to validate collections made after the expiration of the applicable period of limitation because of the erroneous view consistently followed by the department, that such limitation did not apply to collection where timely assessment had been made. Compare Graham & Foster v. Goodcell, 282 U.S. 409, 51 S. Ct. 186, 190, 75 L. Ed. 415. Congress, however, did not deem it proper to withdraw from the taxpayer the right to rely upon the statute of limitation unless he had availed himself of the extended privilege of filing a claim for abatement of the assessment, the collection of which had been withheld or postponed for that purpose. The revenue statutes authorized the Commissioner, when he believed that collection of the tax due would be jeopardized by delay, to make assessment and collection thereof without giving the usual thirty-day notice or awaiting the conclusions of a hearing. In such case the taxpayer had a remedy through a claim for refund. However, in the case at bar, the Commissioner, when he advised the taxpayer on March 10, 1923, that immediate assessment of an additional tax would be made, in order that collection might not be jeopardized by delaying the assessment until after notice and appeal under section 250 (d) of the Revenue Act of 1921, did not promptly institute a proceeding to collect but invited a claim for abatement and appeal prior to collection. The tax was assessed on March 31, one day before the statutory period of five years for assessment and collection expired. No steps to collect were taken by the Collector at New York, and on April 23 the Commissioner wired the Collector to accept a claim for abatement. The abatement claim was accordingly filed three days later and shows that a hearing before the Commissioner on the matter of the correctness of the amount assessed had been arranged for June 27, 1923. The case of Graham & Foster v. Goodcell, supra, clearly lays down the rule that the stay referred to in section 611 does not need to be a legal stay to make that section applicable. In that case the plaintiffs contended that "the stay to which section 611 referred was not simply a voluntary delay in enforcing payment." But the court said the word "stay" could not be limited to a mandatory stay, and that a postponement by the Commissioner, while acting under the belief that the statute did not bar proceedings for collection, "created the situation to which section 611 was directed." This is the situation which we have in the case at bar. The findings show that the Commissioner, believing that proceedings for collection by distraint were not barred, postponed the collection of the tax to permit the filing of a claim for abatement, which, upon its filing, further postponed collection until the claim was decided. The filing of the abatement claim in the instant case, as a matter of law, did not operate to stay the proceedings. The stay was entirely voluntary on the part of the Collector, but, as stated in Graham & Foster v. Goodcell, supra, it was voluntary proceedings that Congress intended to be covered by section 611. In the case of Oak Worsted Mills v. United States, 36 F.(2d) 529, 68 Ct. Cl. 539, a claim for abatement was filed at a time when there was no authority under the statute for such action. In other words, the abatement claim was a nullity except as it was given effect by section 611. See, also, Petroleum Iron Works v. United States, 5 F. Supp. 558, decided by this court January 8, 1934. In the case at bar the claim for abatement in itself could not and did not accomplish a legal stay. It did, however, delay the collection of the tax after the Commissioner had made a jeopardy assessment and when all parties concerned appear to have proceeded on the theory that the tax could still *972 be legally collected. The statute of limitation was not pleaded in the claim for abatement of the assessment. Section 611 must be interpreted in the light of the purpose intended to be accomplished, and, when so construed, I think it is applicable to the case at bar and precludes recovery of the tax and interest paid March 10, 1926. The section makes no distinction between an abatement claim filed within the limitation period and one filed afterward, and I think none was intended. Congress did not proceed in the enactment of this section on the theory that an abatement claim constituted a waiver of the limitation statute, nor that the filing of such claim revived the legal right to collect a tax otherwise barred. It recognized that collection of a tax after the applicable period of limitation was illegal under provisions of other acts, whether an abatement claim was filed before or after the expiration of such period. The section was wholly designed to take away from the taxpayer the right to obtain a refund of a tax correctly due in a case where it had been timely assessed, collection stayed, and a claim for abatement filed. It simply prescribed three conditions under which a payment made after the expiration of the applicable period of limitation should not be considered an overpayment. The plaintiff's construction requires that a fourth condition be added, namely, that in order for the section to become applicable the abatement claim must have been filed within the statutory period for collection. Had this been intended, the section would doubtless have been differently worded.
On the whole, I am of opinion that section 611 withdraws the defense of the statute of limitation in all cases where proceedings for collection of the tax were not promptly instituted, because of the belief that the statutory limitation did not apply to collection of a tax timely assessed, and where a claim for abatement was filed, whether such filing occurred before or after the expiration of the limitation period.
In reaching this conclusion I have not overlooked the decisions in Neuland v. Bowers (D. C.) 38 F.(2d) 842, and G. C. M. 4879, VII 2 C. B. 9, to the effect that collection of the tax must have been stayed by a claim for abatement filed before the expiration of the statutory period for collection; however, I am unable to concur in these decisions for the reasons hereinbefore stated.
I am authorized to state that Judge GREEN and Chief Justice BOOTH concur in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265048/ | 329 Md. 300 (1993)
619 A.2d 528
NATIONAL GLASS, INC.
v.
J.C. PENNEY PROPERTIES, INC.
No. 42, September Term, 1992.
Court of Appeals of Maryland.
February 9, 1993.
James E. Williams (Jester and Williams, on brief), Washington, DC, for appellant.
Scott S. Braugh (J.C. Penney Co., Inc., on brief), Dallas, TX and Carlton T. Obecny, Bethesda, for appellee.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
KARWACKI, Judge.
We issued a writ of certiorari in this case to determine a conflicts of law question, namely whether Maryland's statutory prohibition against the waiver of mechanics' lien rights by a subcontractor in an executory contract, as provided by Maryland Code (1974, 1988 Repl.Vol.), § 9-113 of the Real Property Article, is such a fundamental public policy so as to render unenforceable such a waiver in a contract in which the parties have provided that the law of another state should govern its interpretation and enforcement, and under the law chosen by the parties such a waiver is permitted. After hearing argument in this case, we have determined that this appeal is from an unappealable interlocutory judgment, and thus, lacking jurisdiction, we shall dismiss the appeal. A brief summary of the procedural history of this case is in order.
I.
In November 1990, appellant, National Glass, Inc. ("NGI"), entered into a subcontract with a general contractor, John R. Hess, Inc. ("Hess"), relating to the construction of a new department store for appellee, J.C. Penney Properties, Inc. ("Penney"). Penney's new department store was to be constructed at the St. Charles Towne Center located at Waldorf in Charles County.[1]
Under its subcontract with Hess, NGI agreed to provide labor, materials, and supplies in connection with the installation of glass, windows, and doors for the store at a price of $90,000.00. Upon completing its work and after complying with the statutory notice requirement, NGI filed a petition to establish a mechanics' lien on July 19, 1991, in the Circuit Court for Charles County, seeking a lien in the amount of $56,579.00.[2]
On July 26, 1991, a Show Cause Order was issued by Judge George W. Bowling of the Circuit Court for Charles County. See § 9-106; Maryland Rule BG 73. A show cause hearing was scheduled for September 4, 1991. Prior to the show cause hearing, Penney moved to dismiss NGI's petition to establish a mechanics' lien challenging both NGI's compliance with the statutory notice requirements and the applicability of an arbitration clause in NGI's subcontract with Hess. At the show cause hearing on September 4, 1991, Penney further asserted that NGI, in paragraph 12.1 of its subcontract with Hess, waived its right to file a mechanics' lien. Paragraph 12.1 of the subcontract provides:
"Subcontractor hereby waives and releases all liens or right of liens now existing or that may hereafter arise for any and all work or labor performed or material furnished under this Subcontract, upon said facility, or monies due or to become due to Contractor, and agrees to furnish a good and sufficient waiver of lien in proper form for filing from every person or entity furnishing labor or materials for this Project under Subcontractor."
Notwithstanding paragraph 12.1 of the subcontract, NGI asserted that, by prior correspondence, it had expressly refused to waive its right to establish any future mechanics' liens that might arise from construction of the department store. Although no testimony was received by the circuit court, NGI asserted that, before the subcontract was signed, it had mailed a letter to Hess stating that it refused to waive its mechanics' lien rights. NGI further asserted that Hess accepted this proviso by initialing the letter and sending it back to NGI. Following argument from both NGI and Penney, the circuit court in an oral opinion dismissed NGI's petition to establish a mechanics' lien on the ground that the petition failed to state a claim upon which relief could be granted. See Md.Rule 2-322(b). The Circuit Court stated:
"I don't think we can go forward until the pleadings assert a claim on which you are entitled to relief. And a pleading which has attached to it a contract which says that the party who agrees to do the work will not assert a lien against the property certainly would preclude one from obtaining a lien as authorized under the statute. The contract itself says that he waives his right to assert any claim to a lien against the property."
Prior to conclusion of the hearing, NGI requested and was granted leave to amend its petition by September 20, 1991. On September 6, 1991, two days after the show cause hearing, instead of amending its petition, NGI filed a motion for reconsideration, asserting that § 9-113 of the Real Property Article rendered the lien waiver provision contained in paragraph 12.1 of the contract void.[3]
Penney opposed the motion for reconsideration, asserting that Maryland law was not controlling. Rather, Penney contended that the subcontract contained a choice of law provision in paragraph 15.9 by which Pennsylvania law was controlling, and under the law of that state, the waiver of lien rights in paragraph 12.1 was valid.[4]
On September 26, 1991, the circuit court denied NGI's motion for reconsideration, and NGI appealed that denial to the Court of Special Appeals. We issued our writ of certiorari in this case to the intermediate appellate court prior to argument in that court.
II.
As a general rule an appeal will lie only from a final judgment. Md.Code (1974, 1989 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article. It is well settled that the dismissal of a complaint for failure to state a cause of action with leave to amend is not an appealable final judgment. Makovi v. Sherwin-Williams Co., 311 Md. 278, 281, 533 A.2d 1303, 1305 (1987); Central Collection Unit v. Columbia Medical Plan, 300 Md. 318, 323-24, 478 A.2d 303, 305 (1984); Griffin v. Board of Trustees of Saint Mary's College, 258 Md. 276, 279, 265 A.2d 757, 759 (1970); Porter v. Bingham, 257 Md. 213, 215, 262 A.2d 498, 499 (1970); Read Drug & Chemical Co. v. Colwill Constr. Co., Inc., 250 Md. 406, 422, 243 A.2d 548, 558 (1968); Evans v. Shiloh Baptist Church, Inc., 196 Md. 543, 551, 77 A.2d 160, 163-64 (1950). Judge Eldridge speaking for the Court in Makovi v. Sherwin-Williams Co., supra, stated the principles which, in the context of this case, are both appropriate and dispositive.
"If the circuit court's order of [September 4, 1991,] had not contained the provision for leave to file an amended [petition by September 20, 1991, the September 4th] order would have been final and appealable. Nevertheless, the express provision for amendment shows that the [September 4th order dismissing NGI's petition to establish a mechanics' lien] was not intended finally to dispose of the case; thus the order was not final and appealable. Consequently, the ... appeal was premature."
311 Md. at 281-82, 533 A.2d at 1305 (citations omitted). An issue similar to the instant case was presented in Griffin v. Board of Trustees of Saint Mary's College, supra. The trial judge sustained a demurrer and granted Griffin 15 days leave to amend. 258 Md. at 279, 265 A.2d at 758. Griffin did not amend, but did appeal within 30 days. Id. We dismissed the appeal because the judgment appealed from was not final. Id. We stated: "That Griffin allowed the time within which he could have amended to expire without taking any action does not improve his position." Id., 265 A.2d at 759.
In short, because this appeal was taken from an unappealable interlocutory judgment, the appeal is dismissed.
APPEAL DISMISSED. COSTS TO BE PAID BY THE APPELLANT.
NOTES
[1] The record indicates that this case is one of several lawsuits arising out of the construction of the department store. During construction of the department store, Hess abandoned the job site. Penney filed suit against Hess in the United States District Court for the District of Maryland on July 8, 1991. J.C. Penny Properties, Inc. v. John R. Hess, Inc., et al., No. JH-91-1910. Among the counts in that suit is one alleging fraudulent retention of trust funds resulting from the failure of Hess to pay its subcontractors. See Maryland Code (1974, 1988 Repl.Vol., 1992 Supp.), §§ 9-201 to 9-204 of the Real Property Article. The record also indicates other suits relating to the construction of the department store are pending in various courts.
[2] In Maryland, mechanics' liens are governed by Md.Code (1974, 1988 Repl.Vol., 1992 Supp.), §§ 9-101 to 9-114 of the Real Prop. Art. and Maryland Rules BG 70 through BG 77. Section 9-104 provides that a subcontractor is not entitled to a mechanics' lien unless, within 90 days after doing the work or furnishing the materials, the subcontractor gives the owner written notice of an intention to claim a lien. The notice is required for the protection of the owner of the property. Himelfarb v. B & M Welding & Iron Works, Inc., 254 Md. 37, 42, 253 A.2d 842, 844 (1969). On receipt of the notice, the owner is afforded an opportunity to withhold, from the sums due the contractor, the amount the owner ascertains to be due the subcontractor. Id.; § 9-104(f).
[3] Section 9-113 provides:
"(a) In general. An executory contract between a contractor and any subcontractor that is related to construction, alteration, or repair of a building, structure, or improvement may not waive or require the subcontractor to waive the right to:
(1) Claim a mechanics' lien; or
(2) Sue on a contractor's bond.
"(b) Provisions void. Any waiver provision of a contract made in violation of this section is void."
[4] Paragraph 15.9 provides:
"This subcontract shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania; and shall be binding on the parties, their successors and assigns."
It is undisputed that under Pennsylvania law mechanics' liens may be waived at any time. See Pa. Stat. Ann. tit. 49, § 1401 (Purdon 1965).
"A contractor or subcontractor may waive his right to file a claim by a written instrument signed by him or by any conduct which operates equitably to estop such contractor or subcontractor from filing a claim."
Id.; see also McLaughlin v. Gwynedd Pike Assocs., 368 Pa.Super. 358, 534 A.2d 122 (Pa. Super. Ct. 1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265051/ | 422 Pa. Super. 495 (1993)
619 A.2d 1066
COMMONWEALTH of Pennsylvania,
v.
Daniel LUNDBERG, Appellant.
Superior Court of Pennsylvania.
Argued December 2, 1992.
Filed January 25, 1993.
*496 Thomas P. Sundmake, Asst. Public Defender, Pocono Pines, for appellant.
Curtis J. Rogers, Asst. Dist. Atty., Stroudsburg, for Com., appellee.
Before MCEWEN, CIRILLO and HOFFMAN, JJ.
*497 CIRILLO, Judge:
This is an appeal from an order of the Court of Common Pleas of Monroe County denying appellant Daniel Lundberg's Writ of Habeas Corpus. We affirm.
Lundberg was charged with driving under the influence of alcohol (DUI) in October, 1988. A jury found Lundberg guilty of the DUI charge, post-verdict motions were filed and denied, and sentencing was scheduled. The Honorable Peter J. O'Brien sentenced Lundberg to not less than one year and no more than two years imprisonment to be served at the Monroe County correctional facility. Shortly thereafter, a work release was authorized for Lundberg, permitting him to leave the correctional facility for scheduled periods of time. While out on work release on October 2, 1989, Lundberg fled. At the time of his escape, Lundberg had a balance of approximately four months and twenty-six days left to serve on his minimum sentence. During his illegal absence from Monroe County correctional facility, Lundberg was charged with other crimes in Warren County and Forest County. Specifically, Lundberg was sentenced to different periods of imprisonment by the Honorable Robert Wolfe, P.J.; one in the Warren County prison for a period of not less than one year for DUI, and a separate term of incarceration in a state correctional facility for not less than one year and no more than two years on a charge of implements of escape.
During these subsequent periods of incarceration, authorities from Monroe County lodged a bench warrant and/or detainer upon Lundberg; the purpose of these restraints were due to the remaining sentence that Lundberg had to serve in Monroe County. In early November, 1990, Lundberg was paroled from the state correctional facility in Huntington. A few months later, however, he was reincarcerated on parole violations and also upon the bench warrant and/or detainer from Monroe County. Finally, on March 4, 1992 Lundberg was transported to Monroe County correctional facility to finish the balance of his sentence. Lundberg then filed various legal actions challenging the propriety of his status in Monroe County. Following a hearing held on Lundberg's *498 petition for writ of habeas corpus, Judge O'Brien rendered an order denying the petition. This timely appealed followed. Lundberg raises three issues for our consideration:
(1) Whether the two one-to-two year sentences imposed by different judges from different counties run concurrently from the date of disposition.
(2) Whether the Commonwealth's reliance on Commonwealth v. Pfeiffer, 396 Pa.Super 641, 579 A.2d 897 (1990) was unfounded, as the adoption of Pa.R.Crim.P. 1406 changed the sentencing process.
(3) Whether it was error for the sentencing judge to not credit Lundberg for time during which he was mistakenly placed on state parole.
The first and second issues will be analyzed together, as they are closely related. Initially, we note that a decision to grant or deny a petition for a writ of habeas corpus will be reversed on appeal only for a manifest abuse of discretion. Commonwealth ex rel. Kitchen v. Burke, 175 Pa.Super. 597, 601, 107 A.2d 193, 195 (1954); Commonwealth ex rel. Richter v. Burke, 175 Pa.Super. 255, 260, 103 A.2d 293, 295 (1953), cert. denied, 348 U.S. 850, 75 S. Ct. 77, 99 L. Ed. 670 (1954).
The thrust of Lundberg's argument is that the time he spent serving sentences in the western part of the state should count towards the uncompleted sentence at Monroe County correctional institution. In other words, Lundberg wants his Monroe County sentence treated as a concurrent sentence. He cites Pennsylvania Rule of Criminal Procedure 1406 as authority for his position which reads, in pertinent part, as follows:
(a) Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is incarcerated for another offense, such sentences shall be deemed to run concurrently unless the judge states otherwise.
* * * * * *
(c) When, at the time sentence is imposed, the defendant is imprisoned under a sentence imposed for any other offense *499 or offenses, the instant sentence which the judge is imposing shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences.
Lundberg argues that if it is not specified by the sentencing judge whether or not sentences are to be consecutive, they are automatically concurrent. Although this appears to be a fair reading of Rule 1406, it does not apply to Lundberg's situation.
In attempting to ascertain the meaning of the statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988), appeal denied, 520 Pa. 604, 553 A.2d 967 (1988); 1 Pa.C.S.A. § 1921. We are to presume the legislature did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989), appeal denied, 525 Pa. 597, 575 A.2d 563 (1990); 1 Pa.C.S.A. § 1922. Were the court to apply Lundberg's interpretation of Rule 1406, the result would clearly be unreasonable. Rule 1406 expressly provides for the situation where a defendant is "incarcerated for another offense" as in 1406(a), and one where a defendant is "imprisoned under a sentence imposed" for another offense or offenses as in 1406(c). Lundberg, however, was not incarcerated or imprisoned for purposes of Rule 1406, as he had escaped from the Monroe County correctional facility before he committed the additional crimes. Lundberg's argument under Rule 1406 would therefore lead to an undeniably absurd result as, under Lundberg's interpretation, he would reap the benefit of serving a concurrent sentence as a result of his own unlawful behavior. This is simply not the type of situation for which Rule 1406 was intended to govern.
We are also persuaded by the Commonwealth's argument and reliance on Commonwealth v. Pfeiffer, 396 Pa.Super. 641, 579 A.2d 897 (1990). Similar to the facts in the instant *500 appeal, the appellant in Pfeiffer argued that the trial court failed to indicate in its written order whether appellant's state sentence was to run concurrent to our consecutive with a county sentence which he was already serving and, therefore, that the state sentence was to run concurrent with the county sentence. Id. 396 Pa.Super. at 645, 579 A.2d at 899. In addressing this issue, the court in Pfeiffer unequivocally stated:
Contrary to appellant's line of case law ... we are not dealing with a situation where both sentences were imposed by the same court to be served in the same institution. Here, we have a situation where different courts have sentenced appellant for different offenses to be served at separate and distinct institutions. In this situation, absent any written indication to the contrary, it is presumed that the sentences are to run consecutively.
Id. at 646, 579 A.2d at 900 (citations omitted). In light of the resolution of this issue in Pfeiffer, it is clear that this court has carved out an exception to the application of Rule 1406.
This position has also been looked favorably upon by federal courts. In Thomas v. Whalen, 962 F.2d 358 (4th Cir.1992) the court reversed the district court's grant of a writ of habeas corpus, concluding that appellee's state sentence would not be credited towards his federal sentences. The appellee in Thomas argued that his state sentence was deemed to run concurrently with his federal sentence under Rule 1406(a). The Fourth Circuit, in response to this argument, noted: "It is doubtful that Rule 1406(a) was intended to apply where the two sentences in question have been imposed by different sovereigns. `Where different courts have sentenced [a person] for different offenses to be served at separate and distinct institutions,' Pennsylvania courts presume `that the sentences are to run consecutively,' and Rule 1406(a) does not apply." Id. at 362, n. 6 (citing Pfeiffer, supra); see also Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.1976), cert. denied, 429 U.S. 851, 97 S. Ct. 140, 50 L. Ed. 2d 125 (1976) (holding that the rule of presumptive concurrence of sentences, in the absence of a specific directive that sentences be served consecutively, does *501 not apply where one sentence is imposed by a federal court and the other by a state court).
Lundberg contends that we should disregard Pfeiffer because it interpreted the Act of May 28, 1937, P.L. 1036, § 1, 19 P.S. § 894, which has been superseded and replaced by Rule 1406. The majority in Pfeiffer, however, found this to have no impact on the ultimate decision.[1] Despite Lundberg's attempt to label it differently, the Pfeiffer case and its principles are still good law.
Based on the foregoing, we find that Lundberg's incarceration in the Monroe County correctional facility is valid; he has not yet completed the minimum term required by such sentence. Lundberg has failed to establish any basis for the grant of a writ of habeas corpus.
Finally, Lundberg argues that he should be granted credit for that time during which he was paroled and subject to the supervision of the Pennsylvania State Parole Board. The case law cited by Lundberg addresses the inadvertent release of defendants from incarceration due to clerical errors. This simply does not apply to the instant case. Rather, through his own misconduct, Lundberg violated the parameters of work release program in which he was placed. He took advantage of a benefit bestowed upon him and, the fact remains, the only reason that there is a balance remaining on the Monroe County sentence is due to Lundberg's own unlawful behavior. For this he should obtain no benefit. Therefore, no credit should be granted for the time during which Lundberg was paroled.
In light of the authority and reasoning set forth above, we find that there is no basis on which to disturb the trial court's *502 denial of Lundberg's writ of habeas corpus. Commonwealth ex rel. Kitchen, supra; Commonwealth ex rel. Richter, supra.
Order affirmed.
McEWEN, J., concurs in the result.
NOTES
[1] The court expressly addressed this issue in a footnote:
Both parties address this issue utilizing case law which interpreted the Act of May 28, 1937, P.L. 1036, § 1, 19 P.S. § 894. This statute was suspended in 1973 and replaced by Pa.R.Crim.P.Rule 1406, 42 Pa.C.S.A. Because we find no substantial change in the law occasioning the advent of Rule 1406, we deem the case law cited by the parties appropriate and dispositive of the instant issue.
Pfeiffer, 396 Pa.Super. 641, 646 n. 3, 579 A.2d 897, 899 n. 3 (citation omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726165/ | 970 So. 2d 824 (2007)
SHELL
v.
SCHWARTZ.
No. SC07-1265.
Supreme Court of Florida.
November 19, 2007.
Decision without published opinion. Mand. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743865/ | 286 S.W.3d 871 (2009)
Stacie L. RIFE, Appellant-Respondent,
v.
Monte D. RIFE, Respondent-Appellant.
Nos. WD 69716, WD 69812.
Missouri Court of Appeals, Western District.
July 28, 2009.
Michael C. McIntosh, for Appellant-Respondent.
Theodore D. Barnes, for Respondent-Appellant.
Before Division Two: VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge and MARK D. PFEIFFER, Judge.
ORDER
PER CURIAM:
Monte Rife and Stacie Rife appeal the judgment of the trial court dissolving their marriage. On appeal, Stacie Rife claims that the trial court erred in characterizing the parties' home as marital property. *872 Monte Rife claims that the trial court erred in its division of marital property and in denying his requests for maintenance and attorney's fees. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.
The judgment is affirmed. Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364356/ | 483 S.E.2d 379 (1997)
225 Ga. App. 298
KING et al.
v.
KING.
No. A96A2393.
Court of Appeals of Georgia.
March 7, 1997.
*380 Kennedy & Kennedy, Reid W. Kennedy, Marietta, for appellants.
Donald L. Mize, Marietta, for appellee.
ANDREWS, Chief Judge.
After Henry J. King died in 1994, Sarah E. King, Mr. King's former spouse from whom he was divorced in 1985, brought an action against Joyce L. King,[1] Mr. King's surviving spouse, seeking the imposition of a constructive trust over annuity benefits being paid to Joyce King pursuant to Mr. King's participation in the Survivor Benefit Plan (SBP) (10 U.S.C. §§ 1447-1455) as a United States Air Force retiree. Sarah King alleged that she was the rightful beneficiary of the SBP annuity benefits, which commenced at Mr. King's death, because the 1985 divorce decree between her and Mr. King incorporated a written agreement between them providing that she would receive the annuity paid pursuant to the SBP. However, after the divorce, neither Mr. King nor Sarah King took the steps necessary under the provisions of the SBP to notify the applicable military authority of the divorce agreement to implement an election designating Mr. King's former spouse as the beneficiary of the SBP annuity. Accordingly, after Mr. King died, the Air Force, acting pursuant to the provisions of the SBP, commenced making the annuity payments to Mr. King's surviving spouse, Joyce King. After a bench trial, the trial court concluded that, since the SBP annuity was awarded to Sarah King as part of the marital property divided pursuant to the divorce decree, she had a right to receive the annuity despite any conflicting provisions of the SBP. On appeal, Joyce King contends that under the provisions of the SBP she was entitled to receive the annuity, and the trial court erred by elevating the provisions of the divorce decree over the provisions of the federal statutory scheme set forth in the SBP for regulating the payment of the survivor's annuity.
Sarah and Henry King were married from 1952 until their divorce in 1985. In 1969 Mr. King retired from the Air Force and began receiving his military retired pay based on his years of service in the Air Force. In addition, Mr. King elected to participate in the SBP, a plan created by Congress in 1972 *381 under which the government withheld a portion of his monthly retired pay to fund (along with government contributions) an annuity payable to his surviving spouse or child at his death. 10 U.S.C. §§ 1447-1455. Mr. King made this election when the SBP was enacted in 1972 at which time Sarah King was the designated beneficiary of the annuity as Mr. King's spouse. As originally codified, the SBP had no provision for coverage of a former spouse, and upon a divorce a participant's former spouse, except under limited circumstances, lost SBP coverage. In 1982 Congress passed the Uniformed Services Former Spouses' Protection Act (FSPA), Pub.L. No. 97-252, 96 Stat. 718, 730-738 (1982) (codified in various sections of 10 U.S.C. and the subject of various subsequent amendments), which amended the SBP to allow a participant to voluntarily elect to provide annuity coverage for a former spouse at the time the service member became eligible to participate in the SBP. A 1983 amendment to the SBP clarified the authority of a service member who elected to participate in the SBP prior to the enactment of the FSPA to designate a former spouse as the SBP beneficiary. Department of Defense Authorization Act, 1984, Pub.L. No. 98-94, 97 Stat. 614, 652-654 (1983) (codified in part at 10 U.S.C. § 1448(b)). That amendment provided in part that a participant in the SBP who originally designated his spouse as beneficiary, and later divorced the spouse after the 1983 amendment, could voluntarily elect to designate the former spouse as the SBP beneficiary by making that election in writing to the appropriate government Secretary within one year after the date of the divorce. Matter of: DOD Military Pay and Allowance Committee Action No. 560Survivor Benefit PlanFormer Spouse Coverage, 60 Comp. Gen. 687, 689-690 (1987). The SBP was again amended in 1984 to provide conditions under which a former spouse could be designated by a participant as the SBP beneficiary pursuant to a voluntary written agreement which was incorporated, ratified, or approved in a court-ordered divorce decree. Department of Defense Authorization Act, 1985, Pub.L. No. 98-525, 98 Stat. 2492, 2548 (1984) (codified in part at 10 U.S.C. § 1450(f) (3)). The relevant provisions of the 1984 amendment provided that:
"(3)(A) If a person described in paragraph (2) or (3) of section 1448(b) of this title enters, incident to a proceeding of divorce, dissolution, or annulment, into a voluntary written agreement to elect under section 1448(b) of this title to provide an annuity to a former spouse and such agreement has been incorporated in or ratified or approved by a court order, and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives a written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made and receives a copy of the court order, regular on its face, which incorporates, ratifies, or approves the voluntary written agreement of such person.
"(B) An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person before October 1, 1985, or within one year of the date of the court order involved, whichever is later." 10 U.S.C. § 1450(f) (3) (A), (B) (as codified in 1984).
Although the SBP was further amended in 1986 to provide that a court could order a participant in the SBP to elect SBP coverage for a former spouse, the 1986 amendment applied only to court orders issued after November 14, 1986. Moreover, the 1986 amendment did not alter the requirement that the SBP participant take the further step of designating the former spouse as the SBP beneficiary by making that election in writing to the appropriate government Secretary within one year after the date of the divorce decree (10 U.S.C. § 1448(b)), nor did it eliminate the necessity for the former spouse to take steps under the "deemed election" provisions of 10 U.S.C. § 1450(f) (3) if the SBP participant fails or refuses to make the election under § 1448(b). National Defense Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat. 3816, 3885-3886 *382 (1986) (codified in part at 10 U.S.C. §§ 1448(b) and 1450(f) (3)).
In the present case, Mr. King voluntarily entered into a written agreement to provide Sarah King with former spouse SBP coverage, and the agreement was subsequently incorporated into a divorce decree dated May 29, 1985. As a benefit acquired during the course of the marriage between Sarah and Henry King, the SBP annuity was marital property subject to equitable distribution by the trial court. Andrews v. Whitaker, 265 Ga. 76, 77, 453 S.E.2d 735 (1995); Courtney v. Courtney, 256 Ga. 97, 344 S.E.2d 421 (1986). However, the right to claim entitlement to an SBP annuity is also governed by and subject to conditions set forth in the SBP at 10 U.S.C. §§ 1447-1455. It is undisputed that, after their divorce in 1985 in which Sarah King was awarded the SBP annuity, neither Henry King nor Sarah King complied with the applicable provisions of the SBP governing election of a former spouse as the beneficiary of the annuity. Mr. King failed to comply with the applicable provisions of the SBP which required that within one year of the date of the divorce decree he make a written election to the appropriate government Secretary designating his former spouse as the beneficiary of the SBP annuity. When Mr. King failed to make the election under the SBP, Sarah King was entitled to notify the government Secretary under the "deemed election" provisions of 10 U.S.C. § 1450(f) (3) that she had been designated pursuant to the divorce agreement as the beneficiary of the SBP annuity. Because she failed to do so, no election was ever made under the provisions of the SBP designating Sarah King as the former spouse beneficiary of the annuity. Mr. King married Joyce King on January 11, 1986. Under the applicable SBP provisions, in the absence of any election making Mr. King's former spouse the annuity beneficiary, Joyce King became the designated spouse beneficiary of the SBP annuity after one year of marriage to Mr. King. 10 U.S.C. § 1447(3) (A).[2] Accordingly, the issue is which law controlsthe Georgia divorce decree awarding the SBP annuity to Sarah King or the provisions of the SBP under which Joyce King was the beneficiary of the annuity as Mr. King's surviving spouse.
As a general rule, state law rather than federal law controls in the area of domestic relations. "`State family and family-property law must do "major damage" to "clear and substantial" federal interests before the Supremacy Clause [(U.S. Const., Art. VI, cl.2) ] will demand that state law be overridden.... The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.' McCarty v. McCarty, 453 U.S. [210, 220, 101 S. Ct. 2728, 2735, 69 L. Ed. 2d 589 (1981) ]." Stumpf v. Stumpf, 249 Ga. 759, 760, 294 S.E.2d 488 (1982). In McCarty, supra, the Supreme Court held that, because the application of state community property principles to the allocation of military retirement pay threatened clear and substantial federal interests embodied in the applicable federal statutes governing such pay, the application of such state law was federally preempted. In reaction to McCarty, Congress changed the federal statutory scheme by enacting the FSPA which was designed in part to remove the effect of McCarty by employing a statutory scheme which allowed federal and state courts to apply both community property and equitable distribution principles to military retirement pay. Mansell v. Mansell, 490 U.S. 581, 584, n. 2, 109 S. Ct. 2023, 2026 n. 2, 104 L. Ed. 2d 675 (1989); Powell v. Powell, 80 F.3d 464, 465 (11th Cir.1996). However, nothing in the FSPA or subsequent amendments grants the same power to the states with respect to the award of annuity benefits for former spouses under *383 the SBP. To the contrary, the provisions of the SBP specifically set forth the conditions under which a former spouse awarded SBP benefits in a state court divorce decree may thereafter be elected as the beneficiary of the annuity under the SBP and become entitled to receive the annuity. Moreover, Congress has declared that an annuity under the SBP "is not assignable or subject to execution, levy, attachment, garnishment, or other legal process." 10 U.S.C. § 1450(i); McCarty, supra at 226, n. 18, 101 S.Ct. at 2738 n. 18.
The right to the annuity asserted by Sarah King pursuant to the divorce decree clearly conflicts with the express provisions of the SBP under which Mr. King's surviving spouse is the beneficiary of the annuity. In providing the means by which former spouses may become entitled to SBP annuity benefits, Congress enacted plain and precise statutory language placing conditions and limits on that right and made clear that any annuity benefits paid in compliance with the provisions of the SBP are not subject to legal process. Since the provisions of the SBP unambiguously preclude the rights asserted under the divorce decree, we further conclude that the consequences of enforcing the conflicting state law principles sufficiently injures the objectives of the SBP so that federal law preempts the authority of state law. See Poloney v. Tambrands, Inc., 260 Ga. 850, 851, 412 S.E.2d 526 (1991); Mansell, supra at 588-595, 109 S.Ct. at 2028-2032.
The trial court erred by concluding that Sarah King had a controlling right to receive the SBP annuity pursuant to the divorce decree. We need not address appellants' additional grounds.
Judgment reversed.
POPE, P.J., and SMITH, J., concur.
NOTES
[1] The suit also named Joyce King in her capacity as executrix of the estate of Mr. King.
[2] It appears from the record on appeal that there was no eligible spouse or former spouse SBP beneficiary for a period of time after the 1985 divorce until Mr. King had been remarried for one year. Nevertheless, it also appears that SBP withholding continued to be deducted from Mr. King's military retirement pay in apparent violation of 10 U.S.C. § 1452(a) (3). Since Sarah King was the recipient of Mr. King's retirement pay during this period pursuant to the 1985 divorce decree, there may be a question as to whether she is entitled to a refund of unauthorized deductions. This, however, is not an issue in this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364471/ | 483 S.E.2d 337 (1997)
225 Ga. App. 117
SPIRES
v.
TARLETON.
No. A96A2464.
Court of Appeals of Georgia.
March 4, 1997.
Adams, Barfield, Dunaway & Hankinson, Nancy C. Barfield, Thomaston, for appellant.
C. Arthur Moss, Jr., for appellee.
JOHNSON, Judge.
Phillip Tarleton married Salina Conkle, the mother of Jessica Lee Conkle. Tarleton then filed this petition to terminate the parental rights of Jessica's biological father, Robert Spires, and to adopt Jessica. The trial court granted the petition. Spires appeals, and we reverse.
*338 1. Spires correctly claims the trial court erred in denying his motion to dismiss, made on the ground that Tarleton's petition failed to meet the requirements of OCGA § 19-8-13(a)(4). This statute sets out a list of documents, each of which "shall be provided or attached or its absence explained when [a] petition is filed" under OCGA § 19-8-6(a), which governs stepparent adoptions. Tarleton failed to attach or explain the absence of the affidavit of the legal mother, required by OCGA § 19-8-13(a)(4)(C); the allegation of compliance with OCGA § 19-8-12, required by OCGA § 19-8-13(a)(4)(E); the birth certificate of the child and marriage certificate of the custodial parent and new spouse, required by OCGA § 19-8-13(a)(4)(F); and the information sheet required by OCGA § 19-8-13(a)(4)(G), which is a "completed form containing background information regarding the child to be adopted." Because "[a]doption statutes should be strictly construed and meticulously followed," Nelson v. Taylor, 244 Ga. 657, 659-660(2), 261 S.E.2d 579 (1979), the failure to attach or explain the absence of these documents requires reversal. See id.
Cases upholding adoptions in spite of technical flaws in the supporting documents are distinguishable. In Families First v. Gooden, 211 Ga.App. 272, 439 S.E.2d 34 (1993), the biological mother omitted some facts and falsified others in her affidavit. We held this did not give her a right to challenge the adoption later, because the purpose of the information in question was to allow notice to the putative biological father, who in fact received notice in spite of the affidavit's defects. Moreover, it would have been inequitable to allow the biological mother to profit by her own intentional misconduct. See id. at 274-275(2), 439 S.E.2d 34.
Similarly, in Lee v. Stringer, 212 Ga.App. 401, 441 S.E.2d 861 (1994), the biological mother signed a surrender form that should have, but did not, contain language surrendering the child to the Department of Human Resources if the intended adopting parents did not file their adoption petition within 60 days. We held this defect immaterial because the adopting parents filed a proper petition within 60 days. Id. at 401-402(1), 441 S.E.2d 861. The instant case, by contrast, deals with the omission of entire documents, and Tarleton has not demonstrated that they were immaterial.
Chandler v. Cochran, 247 Ga. 184, 186(2), 275 S.E.2d 23 (1981) is also distinguishable. Though Chandler affirmed an adoption in spite of the complete absence of a statutorily required report, the statute there in issue vested the trial judge with discretion to take alternative investigatory steps if the report were unavailable. The judge in Chandler took those steps. Id. at 185-186, 275 S.E.2d 23. Moreover, the Chandler report was to have come from a neutral source, the Department of Human Resources. In the instant case, however, OCGA § 19-8-13(a)(4) provides that the documents in issue are to come from the petitioner; places squarely on the petitioner the burden of explaining the absence of any missing document; and does not set out any other ground for proceeding without the documents. Tarleton did not attach the documents or explain their absence. The judgment in his favor therefore cannot be sustained. See generally Nelson v. Taylor, supra.
2. Though we need not reach the issue to decide this appeal, we note for purposes of retrial our doubt that the evidence in this case reaches the "clear and convincing" standard required to support a termination of parental rights. See Blackburn v. Blackburn, 249 Ga. 689, 694(2), 292 S.E.2d 821 (1982). Certainly Tarleton has shown no abandonment under OCGA § 19-8-10(a), because there is no evidence whatsoever of "an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations ... and forego all parental duties and claims." (Citation, punctuation and emphasis omitted.) Griffith v. Brooks, 193 Ga.App. 762, 766(1), 389 S.E.2d 246 (1989). Moreover, the evidence suggests Conkle may have deliberately frustrated Spires' attempts to communicate with and provide support for Jessica. If she did so, then it is unlikely Tarleton could show that Spires' conduct met one of the two alternative grounds for terminating his rights under OCGA § 19-8-10(b): Failure for at least one year, without justifiable cause, to communicate meaningfully with or provide support for *339 the child. See generally Crumb v. Gordon, 157 Ga.App. 839, 841-842(2), 278 S.E.2d 725 (1981).
Judgment reversed.
McMURRAY, P.J., and RUFFIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364481/ | 18 Kan. App. 2d 581 (1993)
856 P.2d 515
KANSAS HUMAN RIGHTS COMMISSION, Appellant,
v.
TOPEKA GOLF ASSOCIATION, Appellee.
No. 69,029
Court of Appeals of Kansas.
Opinion filed July 16, 1993.
*582 Judy Fowler, of Kansas Human Rights Commission, of Wichita, for the appellant.
William E. Enright, of Scott, Quinlan & Hecht, of Topeka, for the appellee.
Before BRISCOE, C.J., LEWIS and PIERRON, JJ.
Aff'd 254 Kan. 767, 869 P.2d 631 (1994).
LEWIS, J.:
This is an appeal by the Kansas Human Rights Commission (KHRC) from adverse rulings by the district court.
This review is the culmination of an action began by Kelly Muxlow against the Topeka Golf Association (TGA), a/k/a Topeka Men's Golf Association. In 1988 and 1989, Muxlow filed a total of four complaints against the TGA before the KHRC. These complaints alleged that the TGA had unlawfully discriminated against Muxlow by refusing her membership and the right to play in their golf tournaments because of her sex. The TGA responded to the complaints filed by Muxlow by asserting that the KHRC had no jurisdiction over the TGA.
After the hearing was concluded, the KHRC found that it did have jurisdiction over the TGA. It also found that the TGA had violated the provisions of K.S.A. 44-1009 by unlawfully discriminating against Muxlow because she was a female. The KHRC assessed a $6,000 fine against the TGA for its unlawful discriminatory practices. The TGA did not seek judicial review of this decision.
The KHRC has no power to enforce payment of the fines and penalties assessed. The TGA refused to pay the fine levied.
The present action was instituted by the KHRC in the district court, seeking to enforce its order assessing $6,000 in fines and penalties against the TGA. The district court refused to enforce the order, finding that the KHRC had no jurisdiction over the TGA. The KHRC appeals the district court's decision that it had no jurisdiction over the TGA. We affirm the decision of the district court.
Muxlow is a resident of Topeka and is a golfer of some repute. Muxlow cannot simply be designated as a good "female golfer." She is a good golfer and capable of competing successfully with both men and women. Indeed, Muxlow played in a TGA tournament in 1987. She and her husband played in the city "two-man" tournament as a team, won the first flight, and received a *583 plaque and a gift certificate. Muxlow also worked for a period of time as an assistant golf pro at a Topeka public golf course and, for some period of time, was considered to be a professional golfer. The record shows that her amateur status was later officially restored.
The TGA was organized for the purpose of promoting golf within the City of Topeka. Its purpose is to promote "good fellowship" among the various clubs, their members, and other golfers of the city. The TGA is a nonprofit corporation and was granted nonprofit status by the IRS in 1964; it has maintained that status to the present date. Although not specified in the record, we assume that its nonprofit status was obtained and is maintained under § 501(c)(7) (1988) of the Internal Revenue Code. That section provides for exempt, nonprofit status for "[c]lubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder."
There is apparently no question that the TGA qualifies under the definition cited above. The district court found that "[n]o officer or member of the Topeka Men's Golf Association profited in any way from the operation of the Association." The KHRC does not appeal from that factual finding.
During the relevant times disclosed by the record, the TGA did not: (a) own a golf course; (b) own any kind of public facilities; (c) own, operate, lease, or manage a public facility of any kind; or (d) act as an agent or employee for any place of public accommodations.
The sole function of the TGA was to arrange for and conduct golf tournaments for its members on various golf courses within the City of Topeka. Membership in the TGA was obtained by filling out a membership card/application and by sending the application along with a $3.00 fee to the TGA. Muxlow became a member of the TGA in 1987 by following this procedure.
Although the Topeka Golf Association occasionally refers to itself as the Topeka Men's Golf Association, we shall refer to it in this opinion as the TGA. The problem relevant to this opinion developed in November 1987 when section five of the bylaws of the TGA was amended to read as follows: "With the exception *584 of the Junior Tournaments and the Bill Mohr Memorial Tournament, TGA Tournaments are men's events." (Emphasis added.)
Despite the fact that Muxlow had been a member in 1987, she was denied membership in the TGA in 1988 and 1989. During 1988 and 1989, Muxlow was advised in four separate incidents that, because she was female, she would not be allowed to play in TGA tournaments. These four incidents form the basis of the complaints Muxlow filed before the KHRC.
There is only one basic issue on this appeal: Did the KHRC have jurisdiction over the TGA in the proceedings in which the $6,000 in fines and penalties were levied? This issue can be separated into two basic questions: (1) Did the KHRC have the authority to enact K.A.R. 21-46-2 on which it based its finding that it had jurisdiction over the TGA? (2) If K.A.R. 21-46-2 is not valid, is the TGA a nonprofit fraternal or social association or corporation as that term is used in K.S.A. 44-1002(h)? In this opinion, we will limit our discussion to the question of whether the TGA is a nonprofit social association or corporation. There is no claim that the TGA is a fraternal association.
The issue before this court is narrowly defined. Our question is whether the KHRC had jurisdiction over the TGA. If it did, its assessment of fines and penalties was valid and the order of the district court should be reversed. If it did not, then its orders were void and the district court must be affirmed.
We emphasize that we are not required to determine whether the TGA discrimination against Muxlow because she was female. The KHRC found that the TGA did discriminate against Muxlow on that basis. That finding was not appealed and is binding upon this court as well as the parties to the action. We take it as an established fact that the TGA did discriminate against Muxlow on the basis of her sex.
Not all discrimination has been made unlawful by our legislature. While arguably discrimination is morally and ethically objectionable, only certain types of discrimination are designated as unlawful. If the KHRC was not given jurisdiction over groups such as the TGA, then such groups may, by legislative fiat, discriminate without interference by the KHRC. Such a conclusion is not an endorsement of discriminatory action by this court. It is a simple recognition that the legislature has not seen fit to *585 allow the KHRC to punish a particular organization for an act of discrimination. The legislature has provided that nonprofit social associations or corporations are not subject to the Kansas Act Against Discrimination, with some very narrowly defined exceptions.
There are multiple state and federal agencies whose job is to seek out and punish acts of discrimination deemed unlawful by our legislative bodies. These various agencies have certain defined areas of jurisdiction. Actions by an administrative body taken against organizations over which they do not have jurisdiction are void. This fact does not grant legitimacy to the discriminatory action. It merely recognizes that the law has not given the agency in question the authority to punish the acts of discrimination by that particular organization.
We note that the KHRC has suggested that if it has no power to punish discrimination by the TGA, then that organization is free to discriminate, not only on the basis of sex but on the basis of race, creed, color, or national origin. While it may be true that the KHRC has no power to punish the TGA for discriminatory acts, our decision goes no further than that. The acts of discrimination by the TGA are not legitimized by the fact that the KHRC has no jurisdiction over the TGA.
As an example, we note that an organization such as the TGA would lose its I.R.C. § 501(c)(7) exemption should it discriminate against any person on the basis of race, color, or religion. IR Manual 7(10)G-40, 3/30/79. Thus, we doubt that a decision affirming the district court would lead the TGA to assume that it could then discriminate on the base of race, color, or religion. If it did so, it would lose its nonprofit status because, under those circumstances, the Internal Revenue Service would have jurisdiction to punish those particular acts of discrimination. We do note, however, that Congress has not seen fit at this point to provide forfeiture of nonprofit status because an organization discriminated on the basis of the sex of the complaining party.
Our decision is based upon the power which was given by the legislature to KHRC to punish certain organizations for acts of discrimination. It should not be read to stand for anything other than that.
*586 VALIDITY OF K.A.R. 21-46-2
The KHRC based its action against the TGA on a violation of K.S.A. 44-1009(c)(1) and (2), which provide:
"(c) It shall be an unlawful discriminatory practice:
"(1) For any person, as defined herein being the owner, operator, lessee, manager, agent or employee of any place of public accommodation to refuse, deny, or make a distinction, directly or indirectly, in offering its goods, services, facilities, and accommodations to any person as covered by this act because of race, religion, color, sex, physical handicap, national origin or ancestry, except where a distinction because of sex is necessary because of the intrinsic nature of such accommodation.
"(2) For any person whether or not specifically enjoined from discriminating under any provisions of this act, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." (Emphasis added.)
Muxlow was forbidden membership in the TGA because of her sex. This is clearly a discriminatory practice on the part of the TGA. The question is whether the KHRC has any authority to punish the TGA for that discriminatory act.
As noted, the legislature has forbidden certain discriminatory actions by the owner, manager, employee, etc. of a place of "public accommodation" The term "public accommodation" is a term of art. K.S.A. 44-1002(h) defines "public accommodations" as: "any person as defined herein who caters or offers goods, services, facilities, and accommodations to the public but shall not include a nonprofit fraternal or social association or corporation." (Emphasis added.)
By statute, the term "public accommodation" does not include a social association or corporation. If the TGA is such an association or corporation, then it is not a public accommodation and it is not subject to the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq.
The TGA argues that it is a nonprofit social association or corporation and not a "public accommodation" as defined in the statute.
The KHRC concluded that it had jurisdiction over the TGA on the basis of K.A.R. 21-46-2. This regulation, which was enacted by the KHRC, reads as follows:
"An association or corporation shall be deemed exempt from coverage by the Kansas act against discrimination as a nonprofit fraternal or social association *587 or corporation only if it meets all the following requirements: (a) Requirements. (1) It is organized in good faith for social or fraternal purposes;
(2) Membership entails the payment of bona fide initiation fees or regular dues;
"(3) There exists a regularly established means of self-government by the members thereof clearly set forth in a constitution or by-laws adopted by the membership.
"(4) There is a regularly established means and criteria for admitting members and for expulsion of members by the existing membership or by their duly elected or appointed delegates.
"(5) It is not operated, directly or indirectly, for purposes of profit for any individual or groups of individuals other than the membership as a whole."
It is apparent that K.A.R. 21-46-2 is an attempt to limit and define the type of nonprofit social association or corporation which can be regulated under the Act.
The KHRC held that the TGA was not a social association or corporation as that term is defined by K.A.R. 21-46-2. Specifically, the KHRC concluded that the TGA did not meet the requirements of K.A.R. 21-46-2(1) and (4). The Commission concluded that the TGA did meet the requirements of K.A.R. 21-46-2(2), (3), and (5). However, the regulation requires that, in order to be exempt from coverage, an organization must meet all of the requirements of K.A.R. 21-46-2. The key to the assumption of jurisdiction over the TGA is the validity of K.A.R. 21-46-2.
The district court declared that the KHRC had exceeded its authority in adopting K.A.R. 21-46-2, on which it based its jurisdiction over the TGA. It declared the regulation to be void and held that no jurisdiction could be assumed by the KHRC on the basis of that regulation. We agree with the decision of the district court.
The district court's ruling that K.A.R. 21-46-2 was void is a question of law. This court's review of that decision is, therefore, unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App.2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
K.S.A. 44-1004(3) specifically gives the KHRC the power and duty "[t]o adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of [the KAAD], and *588 the policies and practices of the commission in connection therewith." Kansas Administrative Regulations, if valid, have the force of law. K.S.A. 77-425; Kansas Gas & Electric Co. v. Kansas Comm'n on Civil Rights, 242 Kan. 763, 765, 750 P.2d 1055 (1988).
The Supreme Court has clearly defined the limits to which an agency may adopt regulations under the statute quoted above:
"Pursuant to K.S.A. 44-1004(3), the KCCR has the authority to `adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the [Act]. However, this authority is administrative, not legislative, and to be valid must be within the authority conferred by statute. A rule or regulation which goes beyond that which the legislature has authorized, or which violates the statute, or which alters, extends, or limits the source of its legislative powers is void. Woods v. Midwest Conveyor Co., 231 Kan. 763, 771, 648 P.2d 234 (1982)." (Emphasis added.) Kansas Comm'n on Civil Rights v. U.S.D. No. 501, 243 Kan. 137, 144, 755 P.2d 539 (1988)
See Rhodes v. Harder, 211 Kan. 820, 508 P.2d 959, aff'd as modified 212 Kan. 500, 512 P.2d 354 (1973); Willcott v. Murphy, 204 Kan. 640, 465 P.2d 959 (1970).
In Willcott v. Murphy, the Supreme Court declared that "[t]he power to regulate, though declared to be broad, nevertheless, falls short of the power to legislate." 204 Kan. at 648. In State, ex rel., v. Columbia Pictures Corporation, 197 Kan. 448, 455, 417 P.2d 255 (1966), the following is stated: "The authority to declare the public policy of this state is vested in the legislature, not an administrative board."
In Kansas Comm'n on Civil Rights v. U.S.D. No. 501, 243 Kan. 137, the Kansas Commission on Civil Rights (KCCR), the predecessor of the KHRC, attempted to declare by regulation that public schools were "places of public accommodation." The Supreme Court struck down the regulation as an unlawful attempt by the KCCR to broaden its authority:
"By enacting K.A.R. 21-46-3, the KCCR exceeded the scope of the Act, broadening its authority beyond the three areas of housing, employment, and public accommodations to student admission to schools. This is not regulation, but legislation, and we have long held that legislation may not be enacted under the guise of regulation. [Citation omitted.]" (Emphasis added.) 243 Kan. at 144.
In Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982), the KCCR had adopted a regulation which allowed it to award punitive damages. This regulation was declared void *589 by the Supreme Court as exceeding the statutory authority of the KCCR.
"However, the Commission cannot pull itself up by its own boot straps. The power to adopt rules and regulations is administrative in nature, not legislative, and to be valid must be within the authority conferred. An administrative rule or regulation which goes beyond that which the legislature has authorized, or which violates the statute, or which alters, extends, or limits the source of its legislative powers is void. [Citations omitted.]" 231 Kan. at 771.
In the case presently before this court, K.S.A. 44-1002(h) exempted from the term "public accommodations" "a nonprofit fraternal or social association or corporation." The legislature did not see fit to limit or further define the term "nonprofit fraternal or social association or corporation." K.A.R. 21-46-2 is an attempt to subject certain nonprofit social associations or corporations to the terms of the act against discrimination. The legislature has exempted all such organizations. The only requirement is that the organization be nonprofit and social in nature. The regulation is an attempt to broaden the authority of the KHRC over social associations and corporations which have been declared exempt by the legislature. This is an attempt to exercise legislative power and to declare the public policy of the state. The KHRC has no authority to act in this fashion, and K.A.R. 21-46-2 is void.
The legislative history of the Kansas Act Against Discrimination indicates an intent by the legislature not to define or limit the type of nonprofit social association or corporation which is exempted from the Act.
The term "nonprofit social association or corporation" was first employed by the legislature in 1961 when 44-1002(b) was amended to define "employer" as "any person in this state employing eight (8) or more persons." L. 1961, ch. 248, § 2. The statute, however, went on to provide that the term employer "shall not include a nonprofit religious, charitable, fraternal, social, educational, or sectarian association or corporation." L. 1961, ch. 248, § 2. This same terminology has been employed over the past 32 years, during which time the legislature has only once attempted to define what nonprofit social organizations are subject to the provisions of the act.
*590 In 1963, the legislature added 44-1002(h), which originally read as follows:
"The words `hotel,' `motel' and `restaurant' shall each have the meanings ascribed to them respectively by sections 36-101 and 36-301 ... but shall not include a nonprofit religious, fraternal, or sectarian association or corporation." (Emphasis added.) L. 1963, ch. 279, § 2.
In 1965, subsection (h) of 44-1002 was again amended to read:
"[T]he term `public accommodations' shall include any person, as defined herein, who caters or offers his goods, facilities, and accommodations to the public, but shall not include a nonprofit fraternal or social association or corporation." (Emphasis added.) L. 1965, ch. 323, § 2.
In the 28 years since 1965, 44-1002(h) has used the terms "nonprofit fraternal or social association or corporation." In those 28 years, the legislature has only seen fit to further define or limit the application of those terms on one occasion.
In 1974, the legislature added the term "physical handicap" to the list of unlawful discriminatory practices. It also specifically defined and limited the term "physical handicap" by amending 44-1002 and adding subsection (j). Despite this specific and limiting definition of the term "physical handicap," the legislature made no effort to define or limit the term "nonprofit fraternal or social association or corporation." L. 1974, ch. 209, § 2.
In 1991, after the facts in this case gave rise to the cause of action, the legislature amended K.S.A. 44-1002(i) by adding the following:
"(i) `Unlawful discriminatory practice' means: (1) Any discrimination against persons by reason of their race, religion, color, sex, disability, national origin, or ancestry; ...
....
"(2) any discrimination against persons in regard to membership in a nonprofit recreational or social association or corporation by reason of race, religion, sex, color, disability, national origin or ancestry if such association or corporation has 100 or more members and: (A) Provides regular meal service; and (B) receives payment for dues, fees, use of space, use of facility, services, meals or beverages, directly or indirectly, from or on behalf of nonmembers." (Emphasis added.) L. 1991, ch. 147, § 2.
This amendment in 1991 demonstrates that the legislature has reserved unto itself the right to limit or define the type of nonprofit social association or corporation to which the Act applies. The legislature, in fact, did so in 1991 and did so very narrowly. *591 The TGA does not now and did not at the time of the incidents in question provide regular meal service or receive payments from nonmembers. Thus, the TGA is not subject to the terms of the Act even under the 1991 amendments. This is a clear indication that the attempt of the KHRC to exercise jurisdiction over certain nonprofit corporations by regulation was clearly void.
The legislature has reserved unto itself the power to define or limit the term "nonprofit fraternal or social association or corporation." That power has not been delegated to the KHRC. The regulation passed by the KHRC and declared void herein was an attempt to usurp legislative functions and, as such, is invalid.
We have examined minutes of legislative committee meetings compiled over the years concerning the act against discrimination. These minutes show that in 1991, both the American Civil Liberties Union and the Jewish Community Relations Bureau sought to remove from 44-1002(h) the clause: "Public accommodations do not include a nonprofit fraternal or social association or corporation." Despite their efforts, the legislature steadfastly refused to remove or to limit by definition the terms in question. As pointed out, the legislature did subject a very narrowly defined and limited nonprofit social association or corporation to the Act in K.S.A. 1992 Supp. 44-1002(i)(2) as quoted above. This is additional evidence of the fact that the legislature has retained the sole and exclusive right to define specifically the type of nonprofit organization it wishes to place under the act against discrimination. It did not grant that authority to the KHRC.
IS THE TGA A NONPROFIT SOCIAL ASSOCIATION OR CORPORATION?
We have stricken K.A.R. 21-46-2 as void. The KHRC's jurisdiction over the TGA cannot be based on that regulation. The final question is whether the TGA is a nonprofit social association or corporation within the meaning of K.S.A. 44-1002(h). We deem the answer to that question to be nearly self-evident.
There is no question that the TGA is a nonprofit corporation organized for pleasure and other recreation which is exempt from taxation under § 501(c)(7). Its sole purpose is to sponsor and regulate golf tournaments. It is an organization which members join for the sole purpose of playing in various golf tournaments. *592 We believe that the TGA is the very essence of a social association or corporation.
We find no specific definition of these terms in the Kansas Reports. Black's Law Dictionary 1561 (4th Ed. Rev. 1968) defines "social clubs" as follows: "Within federal statutes imposing tax on dues and initiation fees of such clubs, clubs whose social features are a material part of their activities and necessary to their existence, and not merely incidental."
In Lake of the Forest Club v. United States, 137 F.2d 843, 845 (10th Cir.1943), the term "social club" was discussed:
"It is not necessary that the dominant or major portion of a club's activities be devoted to social or athletic functions to make it a social or athletic club within the meaning of the taxing statute. If the social or athletic features of the club are a material part of its purpose and activities and promote its existence and advancement, it is a social club within the meaning of the Act."
The record in this case shows that the social and athletic features of the TGA are a material part of its purpose and promote its existence and advancement. The TGA is certainly a social association or corporation as that term is defined above.
A golf club whose members associated together for the common purpose of playing golf has been held to be a social club. Bunker Hill Country Club v. United States, 9 F. Supp. 52, 56 (1934). A yacht club which leased space from the state and rented slips to its members is a "social, athletic or sporting club." Hawaii Yacht Club v. United States, 301 F. Supp. 1150, 1152 (1969). A nonprofit bowling club that conducted regular tournaments for its members qualified for an exemption as a § 501(c)(7) social club where its overall purpose was designed to effect a "commingling of its members for their pleasure and recreation." Rev. Rul. 65-63, 1965-1 C.B. 240.
There is no need to extend this discussion. There are certain terms and functions which are known to all of us by our common understanding. An organization formed to promote golf and supervise golf tournaments for the pleasure and fellowship of its members is engaging in what most of us would clearly recognize to be a social function. We hold that the TGA is clearly a social association or corporation within the meaning of K.S.A. 44-1002(h). The KHRC has no jurisdiction over such a social association *593 or corporation and, thus, had no authority to subject it to any fines or penalties.
We have examined the record to determine whether it can be said that the TGA is engaged in an endeavor of such a nature that Muxlow may have been deprived of a competitive business advantage by its refusal to admit her. We find no such evidence in the record. Muxlow did attempt to prove that she was damaged competitively by being barred from TGA events. However, the KHRC found her evidence in this regard to be "entirely speculative" and made no award of loss of income to Muxlow for that reason. We can find nothing in the record on appeal to indicate that the TGA was engaged in anything more than putting on golf tournaments for the enjoyment and pleasure of its members. The record was not developed to show any overriding business advantage in playing golf or in being a member of the TGA. We conclude that there is nothing in the record on which we could conclude that the TGA is anything more than a social association or corporation. We are not unaware of the fact that certain organizations have seen fit to justify their discriminatory practices by claiming to be entirely social in nature. Where the record has shown that the organization in question was, in reality, a "business establishment," the courts have declared that such organizations may not discriminate under the guise of being a "social organization." One example of this is Bd. of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 95 L.Ed.2d 474, 107 S.Ct. 1940 (1987). Although this case has no significance to the instant matter, it is an example of an instance in which an organization which deemed itself to be social in nature was found to be in fact a "business establishment." We have examined the record for evidence of this nature and find nothing to support a conclusion that the TGA is a "business establishment" or that it is anything other than a social association or corporation.
In the final analysis, the legislature has seen fit to exempt from the Kansas Act Against Discrimination any nonprofit social association or corporation. It is not our function to determine whether that is a sound policy because the authority to declare the public policy of the State of Kansas is vested in the legislature and not in the courts or administrative bodies of this state. We conclude that the TGA, as a nonprofit social association or corporation, *594 is not subject by statute to the provisions of the KAAD. The KHRC had no authority to exercise jurisdiction over the TGA. We affirm the decision of the district court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267626/ | 683 F.Supp. 917 (1988)
Donald L. JONES, Petitioner,
v.
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility; Denis Dillon, District Attorney of Nassau County; and Robert Abrams, Attorney General of the State of New York, Respondents.
No. CV 82-0123.
United States District Court, E.D. New York.
April 19, 1988.
*918 Michael Young, New York City, for petitioner.
Denis Dillon, Nassau County Dist. Atty. by Bruce Whitney, Mineola, N.Y., for respondents.
MEMORANDUM AND ORDER
WEXLER, District Judge.
This case is before the Court on remand from the Second Circuit for a determination as to whether the "ends of justice" test of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) requires this Court to reach the merits of petitioner Donald Jones's successive application for a writ of habeas corpus and upon such finding, to address the arguments set forth in the petition.
BACKGROUND
The facts surrounding this case are laid out in detail in the Second Circuit's opinion Jones v. Henderson, 809 F.2d 946 (2d Cir. 1987). This Court will, however, briefly review the background leading up to this decision.
Donald Jones was convicted after a jury trial in January 1974, in Nassau County Court of one count of sale of a dangerous drug in the third degree and one count of criminal possession of a dangerous drug in the fourth degree. Jones was sentenced to a five year term of probation. During the presentation of the state's case at trial, the prosecutor requested that the courtroom be sealed while one of its witnesses, Police Officer Stephen DeSaro, an undercover narcotics agent, testified. The court granted the state's request over the objection of defense counsel. On January 6, 1975, the Appellate Division of the Supreme Court of the State of New York unanimously affirmed the conviction without opinion. On March 5, 1975, the New York Court of Appeals denied petitioner leave to appeal.
*919 On May 19, 1977, Jones filed in the United States District Court for the Eastern District of New York a pro se petition for a writ of habeas corpus pursuant to 28 U.S. C. § 2254. The case was assigned to District Court Judge Eugene H. Nickerson, who, in a Memorandum and Order dated December 2, 1977, denied petitioner's request. Judge Nickerson based his decision on United States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir.1975) cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975), which reversed a district court's grant of a writ of habeas corpus on the basis of courtroom closure during trial. The Second Circuit held:
While we wish to make it clear that the better course would have been for the trial judge to hold an evidentiary hearing, we think that it was within the [state trial] court's power to make a finding that exclusion was required on the basis of his judicial knowledge of the role of undercover agents.
Id. at 1275.
Jones remained unsuccessful in two applications to the district court for reconsideration of his petition and a motion to the Nassau County Court for vacature of his conviction. Jones then filed a petition for a writ of habeas corpus with the instant Judge. In a Memorandum and Order dated January 5, 1984, this Court denied the petition, holding that the merits of petitioner's claim were already addressed by a judge of this Court and that there were no new developments in the case law that justified the relitigation of the issue of whether the sealing of the courtroom constitutes a denial of petitioner's right to a public trial. This Court issued a certificate of probable cause and petitioner filed a notice of appeal with the Second Circuit.
While this case was on appeal, the United States Supreme Court decided Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), which involved a Sixth Amendment challenge to the closure of a courtroom during a suppression hearing, and there held that:
[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
467 U.S. at 48, 104 S.Ct. at 2216. In light of the Supreme Court's decision in Waller, the Second Circuit remanded the case to this Court and directed that if this Court determines that the "ends of justice" would thereby be served, this Court should entertain Jones's petition for a writ of habeas corpus.
DISCUSSION
The "Ends of Justice" Test
In considering whether the "ends of justice" would be served by reconsideration of the merits of the present petition, this Court is guided by the Supreme Court's instruction in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), that when an application for a writ of habeas corpus involves purely legal issues, the petitioner may be entitled to a re-adjudication of the unsuccessful merits determination "upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application." 373 U.S. at 17, 83 S.Ct. at 1078. This Court is also mindful of the Supreme Court's words of caution: "[T]he foregoing enumeration is not intended to be exhaustive." Id.
In the present case, the legal issue is under what circumstances a courtroom proceeding may be closed to the public. The state of the law at the time of petitioner's first application for a writ of habeas corpus clearly provided that, although the right to an open criminal trial is not absolute, it is presumed, and any closure must be justified. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).
While petitioner's appeal to the Second Circuit was pending, the Supreme Court rendered its decision in Waller, which set forth more definitively the procedures that must be followed before the public can be excluded from the courtroom. Although *920 the Supreme Court in Waller did not overrule any of its prior decisions and in fact was quite consistent with the earlier development of the law of closure, it did impose a more precise standard than it had previously enunciated and made clear that this standard governs in the context of an accused's right to a public trial under the Sixth Amendment.
Prior to Waller, the Supreme Court had not spoken recently on the issue of a criminal defendant's Sixth Amendment right to a public trial. The Court had, however, rendered several decisions concerning the right of the press and the public, under the First Amendment, to observe court proceedings. See e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). In these cases, the Court made clear that a criminal trial must be held in open court barring those rare instances where the balance of interests warrant closure. Globe, 457 U.S. at 606-07, 102 S.Ct. at 2620; Richmond, 448 U.S. at 581, 100 S.Ct. at 2829-30; Gannett, 443 U.S. at 392-93, 99 S.Ct. at 2912. After both the original District Judge and the present Judge denied Jones's applications, the Supreme Court decided Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), a First Amendment challenge to closure of a voir dire proceeding. The Court held that:
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
464 U.S. at 510, 104 S.Ct. at 824.
Four months later, the Supreme Court handed down its opinion in Waller, which involved a criminal defendant's objection, on Sixth Amendment grounds, to courtroom closure during a suppression hearing. The Court noted, "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." Waller, 467 U.S. at 46, 104 S.Ct. at 2215. The Court in Waller applied the same standards it articulated in Press-Enterprise to the Sixth Amendment challenge Waller presented.
While Waller in no way represents a departure from existing precedent, it does clarify and lend structure to a criminal defendant's otherwise amorphous right to an open trial, mandating steps that a trial judge must first take before granting the government's request for exclusion and therefore providing greater protection for the individual defendant. This Court finds that Waller does not constitute a change in the law in the sense that it introduces a new substantive constitutional right which provides for a result contradictory to one that would otherwise be required. Nor can it be said that the holding in Waller was unexpected as the decision built upon precedent governing the subject. Waller's instructions do, however, constitute a sufficient furtherance of the relevant case law to satisfy the "intervening change" requirement of Sanders, particularly in light of Sanders' qualification regarding the illustrative nature of this factor.
This Court's conclusion is borne out by the history of the present case. The District Judge who reviewed the original petition relied on a decision of the Second Circuit in an analogous case, United States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir.1975), cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975). In Lloyd, the Court of Appeals found that the trial judge could impinge upon the defendant's public trial right solely "on the basis of his judicial knowledge of the role of undercover agents." Id. at 1275. This "judicial notice of the perilous lifestyle of undercover agents" standard does not pass constitutional muster under Waller and, therefore, Waller represents a different, more stringent test than that which was applied to Jones's previous petition. Thus, this Court finds that petitioner has met Sanders' "intervening *921 change in the law" requirement and the presentation of a successive petition is justified.
Retroactivity
The Court must now consider whether this "change" should be applied retroactively such that Jones would be entitled to reap the benefits of Waller's more precise mandate. Supreme Court decisions concerning retroactivity exhibit a dichotomy between the treatment of cases on direct appeal and those presented to a court for collateral review. New precedents are to be applied retroactively to all cases pending direct appeal. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). New precedents are also to be applied to all cases on collateral review where the new decision represents a clarification of existing law. The rationale for affording retroactive application of holdings which clarify existing law is that "one could never say with any assurance that this court would have ruled differently at the time the petitioner's conviction became final." Desist v. United States, 394 U.S. 244, 264, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (Harlan, J. dissenting). Petitioner's case is on collateral review. Since as noted above, Waller represents a clarification of established precedent rather than a change in existing law, the Supreme Court's holding in Waller must be retroactively applied to the closure of petitioner's trial.
In addition, new decisions which are designed to "enhance the accuracy of the criminal trial" are also applied retroactively to cases on collateral review. Allen v. Hardy, 478 U.S. 255, 258-59, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986) (quoting Solem v. Stumes, 465 U.S. 638, 643, 104 S.Ct. 1338, 1342, 79 L.Ed.2d 579 (1984)). The central aim of criminal proceedings is to try the accused fairly. Supreme Court decisions have consistently recognized the public trial guarantee "as one created for the benefit of the defendant." Gannett, 443 U.S. at 380, 99 S.Ct. at 2905. A public trial ensures that the judge and prosecutor will carry out their duties responsibly. Public trials also encourage witnesses to come forward and discourages perjury. Waller, 467 U.S. at 46, 104 S.Ct. at 2215. See In re Oliver, 333 U.S. 257, 270, n. 24, 68 S.Ct. 499, 506, n. 24, 92 L.Ed. 682 (1948). The Sixth Amendment right to a public trial goes directly to the "heart of the truthfinding function." Allen, 478 U.S. at 259, 106 S.Ct. at 2880. Thus, public trials safeguard the accuracy and integrity of criminal proceedings.
Accordingly, since the procedural guidelines established in Waller directly concern the right to a public trial, which is intimately related to the accuracy of criminal proceedings, Waller must be afforded retroactive application.
"Colorable Claim of Innocence"
The Second Circuit further instructed this Court that "it is free to consider whether petitioner has supplemented his claim with a colorable showing of innocence when determining whether the ends of justice would be met by considering this successive petition." Jones, 809 F.2d at 952. The Supreme Court first examined this factor in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), which involved a successive application for a writ of habeas corpus on the ground that a change in the law had occurred subsequent to the petition's original disposition. The four Justice plurality concluded that a successive petitioner can only seek relief if he can demonstrate a "colorable claim of factual innocence". 106 S.Ct. at 2631. Two Justices rendered a dissenting opinion opposing consideration of petitioner's guilt or innocence as a factor, regardless of whether the application was successive or original. Kuhlmann, 106 S.Ct. at 2631. Two of the remaining Justices stood silent on the issue, and Justice Stevens, in his dissenting opinion, concluded that the existence or absence of a colorable claim of innocence is "one of the facts that may properly be considered" in the ends of justice analysis. 106 S.Ct. at 2639 (Stevens, J. dissenting) (emphasis added). Justice Stevens did, however, add that a colorable claim of innocence "is not an essential element of every just disposition of a successive petition." Id.
*922 The Second Circuit concluded that since the common thread in the plurality opinion and Justice Stevens' dissent is the addition of factual innocence as a consideration that may be weighed by the district court before entertaining a successive petition, this factor may be applied to this Court's analysis of whether the ends of justice would be served by re-examination of Jones's request for habeas corpus relief.
This Court finds that Jones has not supplemented his petition with a "colorable claim of factual innocence." In this regard, petitioner merely points out that he pled "not guilty" to the crimes charged and that he continued to assert his innocence throughout the trial. The Court is of the opinion that this contention alone is insufficient to constitute a colorable claim of innocence.
Although Jones has not advanced a colorable claim of innocence, the Court is not foreclosed from finding that the ends of justice would be served by re-adjudicating the merits of his petition. First, the Second Circuit left to this Court's discretion the decision of whether to even consider the issue of petitioner's innocence. Quite candidly, this Court is troubled by the notion that the pursuit of habeas corpus relief from a constitutional violation is contingent on proof of one's innocence. The per se limitation on this constitutional remedy that the Kuhlmann plurality proposes extends far beyond the holding of Sanders, which vested in the district court the discretion to entertain a subsequent petition. The permissive language of the Sanders Court merely provided a mechanism by which a district court might avoid relitigating vexatious successive petitions that amount to an abuse of the writ. Kuhlmann, 106 S.Ct. at 2635-36 (Brennan, J. and Marshall, J. dissenting). The test announced in Sanders focuses exclusively on factors that would tend to show the existence of such an abuse and in no way attempts to reserve, as a privilege, this form of relief only for those who can first factually exculpate themselves. Thus, any consideration given to Jones's failure to advance a colorable claim of innocence certainly does not rise to a dispositive level.
In addition, any weight that might be afforded the absence of a colorable claim of innocence is minimized by the nature of the present petition. In this case, unlike in Kuhlmann, the substantive claim is not merely a challenge to the admissibility of evidence introduced at trial. Petitioner attacks a fundamental aspect of the manner in which the trial was conducted. See Jones v. Henderson, 809 F.2d 946, 952 (2d Cir. 1987) (Kearse, J., concurring) (suggesting that this Court not consider the question of Jones's innocence, particularly since this case involves "a constitutional right having value reaching beyond the trial court's truth-seeking function ...").
The Kuhlmann plurality reasoned that "a requirement that the prisoner come forward with a colorable showing of innocence identifies those habeas petitioners who are justified in again seeking relief from their incarceration." Kuhlmann, 106 S.Ct. at 2627. This Court finds that justification for returning to a court for redress of a constitutional violation after such relief is denied does not arise out of one's lack of culpability but instead derives from circumstances of a legal and procedural nature which warrant a re-evaluation of an earlier determination as to the merits. Here, the district judge who heard the original petition relied on Second Circuit case law that supported the result the district judge reached. The Supreme Court's decision in Waller dictates structured guidelines for courtroom closure which provides greater procedural safeguards for an accused's right to a public trial than did Lloyd's more lenient standard.
Jones's justification for re-presenting his petition is grounded in the district court's reliance on binding precedent which, under Waller, failed to afford full protection against a constitutional violation, the fundamental nature of the constitutional challenge, and the absence of any ill-faith on the part of the petitioner in continuing to pursue relief. The Court finds that petitioner has not abused the writ of habeas corpus and that the ends of justice would be served by reaching the merits of Jones's successive petition.
*923 The Merits
Turning to the merits of petitioner's application, the Court must determine whether the closure of the courtroom during petitioner's trial violated petitioner's Sixth Amendment right to a public trial. As this Court discussed earlier in this opinion, the Supreme Court in Waller set forth four prerequisites that must be satisfied before the presumption of openness may be overcome:
[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceedings, and [4] it must make findings adequate to support the closure.
467 U.S. at 43, 104 S.Ct. at 2216.
As to the first Waller requirement, the government did not advance any overriding interest that was likely to be prejudiced. The prosecutor merely indicated that the witness who was about to testify was, at that time, still working in an undercover capacity. Although it can be inferred from this assertion that the government's interest was in protecting the secrecy of the true identity of an undercover agent, the government offered no specific evidence which demonstrated the compelling character of this interest under the particular circumstances of Jones's trial and failed to present even the basic facts concerning the extent and nature of this witness's undercover duties. In excluding the public despite the absence of such information, the trial judge essentially adopted a per se rule that would require closure during the testimony of any witness who engages in undercover activities. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Supreme Court, in the context of the testimony of a young rape victim, explicitly rejected a per se rule of courtroom closure. The Court held:
... as compelling as th[e] interest [in protecting minor victims] is, it does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary....
457 U.S. at 609, 102 S.Ct. at 2620-21.
Similarly, in the present case, the trial court's closing of the courtroom without even considering the factual details underlying the prosecutor's blanket assertion that closure was necessary was improper and does not satisfy the overriding interest factor of Waller.
A trial court's assessment of the precise extent of the government's interest is essential to satisfy the second element of Waller as well. The trial court must focus upon the specific circumstances underlying the government's asserted interest if it is properly to determine the appropriate breadth of any closure that may be necessary in a given case.
As for Waller's third prerequisite, the record clearly shows that the trial court did not consider possible alternatives to closing the proceeding. The trial court granted the prosecution's application for closure without even affording defense counsel an opportunity to be heard.[1] The objection *924 defense counsel voiced was summarily overruled. Trial counsel then asked to approach the bench and stated his objection on the record. The judge at no time explored the feasibility of options other than complete closure of the trial.
The judge also failed, in violation of Waller's fourth requirement, to articulate any findings to support the closure. The court merely "so ordered" the government's application, "overruled" defense counsel's objection and noted the objection for the record.
Since these prerequisites were not satisfied, the trial judge's order closing the courtroom during the undercover officer's testimony violated Jones's Sixth Amendment right to a public trial. Accordingly, petitioner's conviction was unconstitutionally reached and thus must be set aside.
The trial judge sentenced petitioner to a five year term of probation in connection with the conviction at issue. In 1977, however, before the end of the probation period, Jones was convicted and incarcerated on unrelated charges, the nature of which this Court is completely unaware. Therefore, this Court does not order the release of Jones from custody but merely vacates the 1974 conviction and the resulting sentence. Respondent is not barred from retrying the petitioner.
SO ORDERED.
NOTES
[1] The following colloquy took place just before the government called the undercover officer to testify:
MR. CHASE: Your Honor, the People at this time request that inasmuch as Patrolman DeSaro is still an undercover officer, that this courtroom be sealed during his testimony.
THE COURT: So ordered.
MR. WOLSTEIN: Objection.
THE COURT: Overruled. So ordered.
MR. CHASE: May the courtroom be sealed?
MR. WOLSTEIN: Your Honor, may we approach the bench?
(The following occurred at the bench, not within the hearing of the jury:)
MR. WOLSTEIN: Your Honor, by allowing the People to close the courtroom because of an undercover officer supposedly sometimes working under cover, I believe adds an element of secrecy to the case so that the jury does not understand the reason or really relevant issues in this particular case. The witness comes into the courtroom and testifies for the People, and to put him on the stand in this type of secrecy, when the courtroom has been closed I think leads the jury to believe that his testimony is in fact true, and I think Judge Gibbons in another case has decided that the courtroom should not be closed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364543/ | 431 S.E.2d 557 (1993)
ALLSTATE INSURANCE COMPANY, Appellant,
v.
Randall DURHAM, d/b/a Randall Durham Plumbing Company, Respondent.
No. 23858.
Supreme Court of South Carolina.
Heard April 6, 1993.
Decided May 17, 1993.
W. Francis Marion, Jr. and J.D. Quattlebaum, both of Haynsworth, Marion, McKay & Guerard, Greenville, for appellant.
James H. Watson and Samuel W. Outten, both of Leatherwood, Walker, Todd & Mann, Greenville, for respondent.
HARWELL, Chief Justice:
Allstate Insurance Company (Allstate) appeals the denial of its motion for a new trial based on the inadequacy of a jury verdict, alleging that the trial judge abused *558 his discretion in refusing to grant a new trial. We agree and reverse.
I. FACTS
On August 24, 1988, Randall Durham (Durham) performed plumbing services in the home of Lawrence J. and Linda M. McReynolds, which included the connection of lavatories in the upstairs bathroom. Three months later, a water line Durham had installed separated from its lavatory connection and flooded the majority of the McReynolds' home.
Allstate paid $35,651.74 to repair damage caused by the flooding and sought to recover that amount from Durham, alleging, among other things, that Durham breached an implied warranty. Durham counterclaimed for $343.00, the amount allegedly owed for his plumbing services. The jury returned a $343.00 verdict for Durham on his counterclaim and awarded Allstate $160.20 on its breach of implied warranty cause of action.[1] The trial judge denied Allstate's motion for a new trial nisi additur or, in the alternative, a new trial absolute, and Allstate appealed.
II. DISCUSSION
Allstate alleges that the trial judge erred in denying its motion for a new trial. We agree.
When a party moves for a new trial based on a challenge that the verdict is either excessive or inadequate,[2] the trial judge must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, or prejudice. Easier v. Hejaz Temple, 285 S.C. 348, 356, 329 S.E.2d 753, 758 (1985). When the verdict indicates that the jury was unduly liberal or conservative in its view of the damages, the trial judge alone has the power to reduce the verdict by the granting of a new trial nisi. O'Neal v. Bowles, ___ S.C. ___, ___, 431 S.E.2d 555, 556 (1993) (citing Easier, 285 S.C. at 356, 329 S.E.2d at 758). However, when the verdict is so grossly excessive or inadequate that the amount awarded is so shockingly disproportionate to the injuries as to indicate that the jury was moved or actuated by passion, caprice, prejudice, or other considerations not found in the evidence, it becomes the duty of the trial judge and this Court to set aside the verdict absolutely. Easier, 285 S.C. at 356, 329 S.E.2d at 758.
A trial judge's refusal to grant a new trial absolute when the verdict is grossly inadequate or excessive is an abuse of discretion. O'Neal, ___ S.C. at ___, 431 S.E.2d at 556. Here, Allstate presented undisputed evidence that it sustained damages of $35,651.74 as a result of Durham's breach of implied warranty. We find that the verdict of $160.20 is grossly inadequate and, therefore, hold that the trial judge abused his discretion in refusing to grant a new trial absolute.
REVERSED AND REMANDED.
CHANDLER, FINNEY, TOAL and MOORE, JJ., concur.
NOTES
[1] This corresponds to the estimated cost of repairing defective plumbing in the McReynolds' home.
[2] Motions for a new trial based on the inadequacy of the verdict are governed by the same principles as motions for a new trial based on the excessiveness of the verdict. Toole v. Toole, 260 S.C. 235, 239, 195 S.E.2d 389, 390 (1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364549/ | 431 S.E.2d 95 (1993)
189 W.Va. 301
HIGHWAY PROPERTIES, a Limited Partnership, a West Virginia Limited Partnership, Plaintiff Below, Appellant,
v.
DOLLAR SAVINGS BANK and New Market Corporation, a Subsidiary of Dollar Savings Bank, Defendants Below, Appellees.
No. 21366.
Supreme Court of Appeals of West Virginia.
Submitted January 13, 1993.
Decided May 25, 1993.
*96 William W. Talbott, Webster Springs, for appellant.
Frederick A. Jesser, III, Jesser & Harrington, Fayetteville, for appellees.
PER CURIAM:
The appellant, Highway Properties, a limited partnership, brought suit against Dollar Savings Bank (Dollar Savings) and its subsidiary New Market Corporation (New Market) seeking to enforce an easement for ingress and egress to and from its *97 property across the adjacent property of Dollar Savings and New Market. The trial court concluded that the doctrine of merger extinguished Highway Properties' easement. This finding was based on the premise that both tracts were derived from a common owner, Fayette Square Limited (Fayette Square). When Fayette Square obtained these tracts, reciprocal easements were contained in its deed; however, it appears that the trial court reasoned that because Fayette Square was the common owner of the two tracts, the reciprocal easements were extinguished.
The property in controversy originally was owned by North Hills Group, Inc. (North Hills), a West Virginia corporation, and consisted of approximately 36 acres. It is located near Oak Hill, West Virginia, adjacent to U.S. Route 19. In 1983, a developer wanted to create a shopping center on the property and a limited partnership was created called Fayette Square. By a deed dated December 29, 1983, North Hills conveyed the 36-acre tract to Fayette Square. In that conveyance, the property was conveyed by specifically described parcels numbered one through five.
The two largest parcels, Parcel One consisting of 17.45 acres, and Parcel Five consisting of 16.4 acres, are the parcels involved in this litigation. Despite their parcel numbering in the 1983 deed, no dispute exists that these two tracts are adjacent to each other.[1] This litigation stems from the current owners of Parcel Five, Highway Properties, seeking to cross Parcel One in order to reach the main access road which adjoins Parcel One.
The 1983 deed to Fayette Square contained this single provision with regard to easements: "It is agreed and understood that there is common parking and rights-of-way or easements in, to and across all parcels for ingress and egress from and to all other parcels." In subsequent transfers by Fayette Square, even more general language was used to describe the easements. By deed of trust dated September 1, 1984, Fayette Square conveyed to Dollar Savings Bank the 17.45 acre tract known as Parcel One. The deed contained only this language: "subject to easements and restrictions of record[.]" Fayette Square eventually defaulted on its loan to Dollar Savings Bank and the property was sold under the deed of trust to the appellee, New Market, a subsidiary corporation of Dollar Savings.[2]
By deed dated February 25, 1987, Fayette Square conveyed the 16.4 acre tract known as Parcel Five to Highway Properties, which was part of the same property that Fayette Square obtained in its 1983 deed from North Hills. In the 1987 deed from Fayette Square, Highway Properties received by way of general language all rights, privileges, rights-of-way, and easements owned by Fayette Square on the property conveyed.[3]
Thereafter, Highway Properties sought to utilize the 16.4 acre tract for commercial *98 development, but was denied access to it. According to Highway Properties, the only access to this property was the easement on the 17.45 acre tract owned by Dollar Savings and its subsidiary New Market. When the matter of access could not be resolved amicably, Highway Properties sued Dollar Savings and New Market asserting that it had an easement by virtue of its 1987 deed across their property. The defendants claimed that the easement was extinguished when North Hills made its original conveyance to Fayette Square in 1983.
At the urging of Dollar Savings and New Market, the court below decided that a merger between the dominant and servient estates occurred in the 1983 deed and the easements were extinguished. Merger occurred in spite of the fact the deed contained easement language, reciting reciprocal rights-of-way for ingress and egress and parking on the five tracts, because Fayette Square received fee simple title to the five parcels.
We recognized the doctrine of merger in Syllabus Point 2 of Henline v. Miller, 117 W.Va. 439, 185 S.E. 852 (1936):
"When the owner of a dominant estate acquires the fee simple title to the servient estate, an easement appurtenant to the dominant estate is extinguished."
See also Perdue v. Ballengee, 87 W.Va. 618, 105 S.E. 767 (1921). In Pingley v. Pingley, 82 W.Va. 228, 229, 95 S.E. 860, 861 (1918), we explained the basis for this doctrine:
"It seems to be firmly established that where the owner of land over which an easement is claimed as appurtenant to another tract of land becomes also the owner of such other tract, the easement is merged in his superior estate. No one can use part of his own estate adversely to another part, and the proposition, therefore, must be true that if the owner of one of the estates, whether the dominant or servient one, becomes the owner of the other, the servitude which one owes to the other is merged in such ownership, and thereby extinguished." (Citations omitted).[4]
Independently of the doctrine of merger, it is our belief that there is a more fundamental problem foreclosing Highway Properties' easement. In the law of real property, it is recognized that a right-of-way or other type of easement constitutes an exception or reservation to the full fee simple interest. See Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454 (1948).[5]
Where such rights are created in a deed, we have held that it must be done with some certainty. As we stated in Syllabus Point 2 of G & W Auto Center, Inc. v. Yoursco, 167 W.Va. 648, 280 S.E.2d 327 (1981):
"`In order to create an exception or reservation in a deed which would reduce a grant in a conveyance clause which is clear, correct and conventional, such exception or reservation must be expressed in certain and definite language.' Syllabus Point 2, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961)."[6]
*99 See also Syllabus Point 2, Bennett v. Smith, 136 W.Va. 903, 69 S.E.2d 42 (1952); Syllabus Point 2, Harding v. Jennings, 68 W.Va. 354, 70 S.E. 1 (1910).
More specifically, in the context of a right-of-way, in Hoard v. Railroad Co., 59 W.Va. 91, 53 S.E. 278 (1906), we concluded that a deed which described the dimensions of a right-of-way, but failed to establish its beginning point, was insufficient to convey the right-of-way.[7] We stated this principle in Syllabus Point 1:
"A deed granting to a railroad company land for its right of way must contain on its face a description of the land in itself certain, so as to be identified, or if not in itself so certain, it must give such description as, with the aid of evidence outside the deed, not contradicting it, will identify and locate the land, otherwise the deed is void for uncertainty."
Other jurisdictions have evolved similar rules with regard to the sufficiency of the description of an easement created in a deed. One of the best summaries is given by the North Carolina Supreme Court in Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984):
"When an easement is created by deed, either by express grant or by reservation, the description thereof `must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers.... There must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land.' Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942)." (Emphasis in original; citations omitted).
See also Dunlap Investors Ltd. v. Hogan, 133 Ariz. 130, 650 P.2d 432 (1982); Parkinson v. Board of Assessors of Medfield, 395 Mass. 643, 481 N.E.2d 491 (1985); Royse v. Easter Seal Soc'y for Cr. Children, 256 N.W.2d 542 (N.D.1977); Germany v. Murdock, 99 N.M. 679, 662 P.2d 1346 (1983); Lewis v. Midgett, 448 S.W.2d 548 (Tex.Civ. App.1969).
From the foregoing law and aside from the merger question, it is our conclusion that the easement sought to be created in this case in the 1983 deed to Fayette Square was insufficient as a matter of law as to its description. The language in the 1983 deed that "[i]t is agreed and understood that there is common parking and rights-of-way or easements in, to and across all parcels for ingress and egress from and to all other parcels" was a totally inadequate description. In its outconveyance of Parcel One and Parcel Five, Fayette Square could have created an easement on Parcel One in favor of Parcel Five, but the language it used was totally inadequate. Fayette Square's deed of trust to Dollar Savings and the trustee's deed to New Market were entirely too general and nonspecific to create any easement rights on Parcel One, the 17.54 acre parcel.[8] The same result is true as to the easement language in Fayette Square's deed for Parcel *100 Five dated February 25, 1987, to Highway Properties.[9]
None of the easement language identified the location or width of the easements on the land. The descriptions contained nothing that would serve to specify in the slightest degree any means of geographically locating the easements on the property.
It should be noted that these rules regarding the sufficiency of the description of an easement contained in a deed apply only to the initial conveyance. The fact that subsequent deeds may refer generally to exceptions and reservations of record or may make no such references does not diminish the validity of the original easement if it previously was described adequately. The reason for this rule is because a purchaser of real property is on notice as to those matters which are contained in the chain of title to the property.
We discussed the law of notice at some length in Tanning Co. v. Boom Co., 63 W.Va. 685, 60 S.E. 890 (1908), and concluded in Syllabus Points 1 and 2:
"1. Whatever is sufficient to direct the attention of a purchaser to prior rights and equities of third parties, so as to put him on inquiry into ascertaining their nature, will operate as notice.
"2. A party is not entitled to protection as a bona fide purchaser, without notice, unless he looks to every part of the title he is purchasing, neglecting no source of information respecting it which common prudence suggests."
See also Bailey v. Banther, 173 W.Va. 220, 314 S.E.2d 176 (1983). In addition, we gave this rather graphic summary of a purchaser's duty to examine the title to real property in James v. Lawson, 103 W.Va. 165, 170, 136 S.E. 851, 853 (1927), where we quoted this language from Burwell's Administrators v. Fauber, 62 Va. (21 Grat.), 446, [447] (1871):
"`He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes to the inlet of information and then say he is a bona fide purchaser without notice.'" (Citations omitted).
We recognize that our ruling in this case regarding the sufficiency of the description of the involved easement was not touched upon by the trial court. As earlier pointed out, we note the trial court concluded that the doctrine of merger abolished the easements. However, we find the easement to be void for the lack of an adequate description. Thus, we sustain the trial court's result on a different ground following the principle set out in Syllabus Point 3 of Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965):
"This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment."
See also Sherwood Land v. Mun. Planning Comm'n, 186 W.Va. 590, 413 S.E.2d 411 (1991); McJunkin Corp. v. Human Rights Comm'n, 179 W.Va. 417, 369 S.E.2d 720 (1988); Chambers v. Sovereign Coal Corp., 170 W.Va. 537, 295 S.E.2d 28 (1982).
For the foregoing reasons, we affirm the judgment of the Circuit Court of Fayette County.[10]
Affirmed.
NOTES
[1] Three much smaller parcels also were conveyed in the 1983 deed. Parcel Two consisted of approximately 41,763 square feet, Parcel Three contained 37,699 square feet, and Parcel Four contained 11,512 square feet.
[2] Thomas H. Gilpin, successor trustee to Dollar Savings, conveyed the 17.45 acre tract to New Market by way of an outconveyance deed dated October 30, 1991. According to the 1991 deed, the sale under the September 1, 1984 deed of trust occurred on August 28, 1991.
The 1991 deed to New Market concludes with this language: "The conveyance hereunder is subject to ... any and all liens and encumbrances of any nature whatsoever prior to that of the Deed of Trust, as amended, including without limitation any rights of way or easements affecting said property." Moreover, the phrase "subject to easements and restrictions of record" appears at the end of the description of the 17.45 acre tract.
[3] The 1987 deed contained this language:
"There is likewise conveyed, for the consideration aforesaid, all rights, privileges, rights-of-way and easements, minerals and mineral rights, owned by the party of the first party over, across and under the above-described property.
"This deed is made and accepted subject to all lawful and continuing reservations, exceptions, restrictions, conditions, rights-of-way and easements made and contained in all deeds of record in the chain of title to the above-described property and to all valid liens of record against said property incurred by Fayette Square, Limited Partnership, to secure indebtedness."
[4] There are limitations to the concept of merger, as summarized in 28 C.J.S. Easements § 57(b) (1941):
"In order to extinguish an easement by merger, there must be unity of title and, according to some decisions, of possession and enjoyment of the dominant and servient estates, coextensive in validity, quality, and all other circumstances of right. Ways of necessity and natural easements are, strictly speaking, not subject to the doctrine of merger."
See McNeil v. Kennedy, 88 W.Va. 524, 529, 107 S.E. 203, 205 (1921) (Merger "would not debar him from his right of way acquired by prescription through the lands of other servient owners.")
[5] We also said in Bennett v. Charles Corp., 159 W.Va. 705, 710, 226 S.E.2d 559, 563 (1976):
"An easement, whether affirmative or negative, is an incorporeal hereditament and as such is a species of real property or land subject to the provisions of the statutes governing the conveyance or creation of estates in land. W.Va.Code, 36-1-1, and the Statute of Frauds, W.Va.Code, 36-1-3." (Citation omitted).
[6] We recognized the distinction between an "exception" and a "reservation" in Malamphy v. Potomac Edison Co., 140 W.Va. 269, 273, 83 S.E.2d 755, 758 (1954):
"An exception is language by which ` * * * the grantor withdraws from the operation of the conveyance that which is in existence, and included under the terms of the grant.' Tate v. United Fuel Gas Co., 137 W.Va. 272, [280,] 71 S.E.2d [65, 70 (1952)]; 1 Devlin on Real Estate, Third Edition, § 221; 16 Am.Jur., Deeds, § 298. `A reservation is `"something arising out of the thing granted, not then in esse, or some new thing created or reserved, issuing or coming out of the thing granted, and not a part of the thing itself, nor of anything issuing out of another thing'"`.
State v. United Fuel Gas Co., supra; 1 Devlin on Real Estate, Third Edition, supra."
We went on to state in Malamphy: "Notwithstanding that the language in a deed of conveyance may be phrased as a `reservation', such language may be regarded and treated as an exception if it is necessary in order to carry out the plain purposes of the parties to the instrument." 140 W.Va. at 273, 83 S.E.2d at 758. (Citations omitted).
[7] In Malamphy v. Potomac Edison Co., 140 W.Va. at 273, 83 S.E.2d at 758, we questioned the sufficiency of the description of two rights-of-way which were described as "`the old county road near the river and the present county road above it.'" However, we did not decide whether the description was sufficient.
[8] As earlier stated, the only language in the deed of trust was the phrase "subject to easements and restrictions of record." As a result of the inadequacy of the description in the deed of trust, the question of whether the trustee could establish a valid easement will not be addressed. The language in the deed from the trustee to New Market is set out in note 2, supra.
[9] See note 3, supra, for the easement language in the 1987 deed.
[10] We recognize that the trial court did not decide the second claim advanced by Highway Properties that it has a way of necessity because of its landlocked position. This claim undoubtedly will be the subject of further litigation in the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364534/ | 856 P.2d 998 (1990)
Earl W. GOSS, Jr. and Cheryl Goss, Appellants,
v.
OKLAHOMA BLOOD INSTITUTE and Mercy Health Center, Inc., Appellees.
No. 71191.
Court of Appeals of Oklahoma, Division No. 3.
February 13, 1990.[*]
As Amended on Grant of Rehearing May 23, 1990.
Certiorari Denied June 21, 1993.
Larry Monard, Geary & Monard, Oklahoma City, for appellants.
Ronald R. Hudson, Holloway, Dobson, Hudson & Bachman, Oklahoma City, for appellee Mercy Health Center, Inc.
James D. Foliart, Larry D. Ottaway and Susan A. Short, Foliart, Huff, Ottaway & Caldwell, Oklahoma City, for appellee Oklahoma Blood Institute.
Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.
*999 BAILEY, Judge:
Appellants seek review of the Trial Court's order granting summary judgment to Appellees. On September 17, 1984, Appellant Earl Goss underwent open heart surgery at Appellee Mercy Health Center, Inc. (Hospital), during which Appellant required transfusions of blood. Appellee Oklahoma Blood Institute (Institute) supplied the blood transfused, which had been obtained from a voluntary donor on September 12, 1984. The donor later tested positive for the Acquired Immuno-deficiency Syndrome (AIDS) virus, as did Mr. Goss. Mr. Goss subsequently developed several symptoms associated with the AIDS virus, and underwent treatment therefor.
Appellant Earl Goss, joined by his wife Appellant Cheryl Goss (hereinafter collectively Appellants), subsequently filed suit against Institute and Hospital, asserting liability of Appellees under strict liability, breach of implied warranty and negligence theories. In support of their negligence claims, Appellants alleged that Institute was negligent in its screening of potential donors and testing of donated blood, and that Hospital was negligent in failing to inquire of Institute regarding its testing and screening procedures. Appellees Hospital and Institute answered, denying negligence, asserting that blood transfusions have unavoidable inherent dangers, that there were, at the time of the blood donation and subsequent transfusion to Appellant, no tests or screening procedures which could detect the AIDS virus or carriers thereof, and that Hospital and Institute had exercised due and reasonable care in the screening and selection of donors and blood products.
The parties exchanged interrogatories and document requests. The Appellees deposed Appellant Earl Goss, at which time Mr. Goss admitted that he knew of the potential for blood communicated disease before he underwent surgery. Institute then filed its motion for summary judgment. As to the Appellants' strict liability and breach of warranty claims, Institute asserted that 63 Ohio St. 1981 § 2151 shielded Institute from liability thereunder. That section provides in pertinent part:
The procurement, processing, distribution or use of whole blood, plasma, blood products, blood derivatives and other human tissues such as corneas, bones or organs for the purpose of injecting, transfusing or transplanting any of them into the human body, for compensation or otherwise, shall be deemed a transaction for the purposes of this act. No such transaction shall give rise to any implied warranty of the fitness, quality, suitability of purpose, safety, or acceptability to the body of the patient or of any other characteristic or circumstance incident to the transaction involved bearing upon the propriety of the transaction, as applied to the recipient, on the part of the person or persons rendering such service, in the absence of negligence.
63 Ohio St. 1981 § 2151.
As to the negligence claim, Institute offered the affidavit of the director of Institute, Dr. G., which showed lack of any test available at the time of donation and transfusion to detect the presence of the AIDS virus. Dr. G. also asserted that Institute *1000 required all potential donors to review AIDS information, to certify that the donors had reviewed the material, and requested that donors within any of the at risk categories described in the materials exclude themselves from donation. Dr. G. therefore asserted exercise of reasonable care and no breach of duty by Institute in its screening and testing of donors and blood donations.
Hospital joined in Institute's motion for summary judgment, also asserting immunity from liability under § 2151. Thereby, Hospital maintained that Dr. G.'s affidavit showed that blood transfusions have some inherent unavoidable dangers, and that Appellants had adduced no evidence to attribute the transmission of the AIDS virus to any negligence by Hospital. Hospital also introduced the affidavit of its Vice-president, who stated that Hospital had, previous to using Institute as a source of blood, determined (1) that Institute, the only local source of blood, adhered to all testing requirements mandated by the Bureau of Biologics/Federal Drug Administration and the American Association of Blood Banks, (2) that Institute used due care in its screening and testing of donors and blood products, and that therefore, Hospital had met its duty of care by investigating and using the reputable Institute as supplier of its blood products.
Appellants requested additional time to respond to the Appellees' motions for summary judgment, which the Trial Court granted, and Appellants deposed Dr. G. At his deposition, Dr. G. stated that an FDA approved test for AIDS virus was not available until March, 1985, and reiterated that no tests existed at the pertinent time in 1984 to detect AIDS infected donors and/or blood products. Dr. G. also asserted that Institute met all screening and testing requirements of the FDA and the American Association of Blood Banks, and exceeded those mandates by requiring potential donors to review AIDS information and requesting donor self-exclusion if the donor fell within one of the at-risk categories. Dr. G. admitted, however, that Institute did not perform two "surrogate marker" tests then being employed on a temporary basis by two blood suppliers in California.[1] Dr. G. asserted that Institute did not employ the "surrogate marker" tests because surrogate tests were non-specific and not definitive,[2] resulting in rejection of viable and safe donors and blood without specific reason therefor, and consequently diminishing the available blood supply for transfusion needs.
Appellants then filed their responses to Appellees' motions for summary judgment. In response to that of Institute, and relying on the Oklahoma case of Gilmore v. St. Anthony Hospital, 598 P.2d 1200 (Okl. 1979), Appellants asserted that Dr. G.'s testimony that no other tests existed at the time did not constitute an absolute defense to Appellants' action, and that Dr. G.'s admission that Institute employed neither the anti-hepatitis B core antibody test nor the T4/T8 test created an unresolved issue of fact as to Institute's duty of care and/or breach of that duty, precluding summary judgment. Appellants also argued that Institute's policy of requesting donor self-exclusion, especially in voluntary group donations *1001 during which the instant infected blood product was obtained, was insufficient for the purpose of excluding potentially at-risk donors and donations.[3] Appellants additionally asserted that 63 O.S. § 2151 amounted to a constitutionally prohibited special law under the Oklahoma Constitution, Article V, § 46, and violated the due process protections of Article II, § 7.
In response to Hospital's assertion of lack of evidence of Hospital's negligence in the transmission of the AIDS virus to Appellant Earl Goss, Appellants' submitted the affidavit of Mr. Goss, who asserted for the first time in the proceedings that Hospital had not informed him previous to surgery (1) of the risk of transmission of AIDS from blood transfusions, (2) an alternative procedure to transfusion, known as intra-operative salvage, or (3) the availability of direct donations by family members.[4] Appellants' also objected to the competency of the Hospital Vice-president to make the affidavit upon which Hospital based its allegation of exercise of due care.
The Trial Court, by letter ruling, denied the Appellees' motions for summary judgment, but later withdrew the orders to allow Appellees to respond to Appellants' objections to summary judgment. Hospital responded, maintaining the constitutionality of § 2151. Hospital further asserted that Appellants' alleged lack of information concerning the risk of transmission of AIDS by transfusion did not address Appellants' allegation of negligent selection of Institute by Hospital, or Hospital's evidence of reasonable care in the choice of Institute as its blood supplier, and by operation of Rule 13, such failure deemed Hospital's assertion of reasonable care admitted. Hospital also submitted an additional affidavit of its Vice-president asserting that Hospital's records showed that intraoperative salvage had, in fact, been used during Mr. Goss' surgical procedure.
Hospital also argued that the Gilmore case was distinguishable as involving blood product obtained through a paid-donor system (arguably presenting the issue of inviting donations from at-risk individuals), as opposed to the voluntary donation in the case at bar. Additionally, Hospital asserted that the blood bank/appellee in Gilmore "made no attempt [on summary judgment] to show the donor did not fall within the category of a dangerous or high risk donor," contrary to the evidence presented in the instant case, showing Institute to have attempted to pre-screen for at-risk individuals. See, Gilmore, 598 P.2d at 1205. Institute responded, asserting that it offered potential donors three different avenues for confidential self-exclusion, and further showing Appellants' failure to adduce evidence of any governmental or administrative mandate to undertake the testing which Appellants assert should have been accomplished.
The Trial Court subsequently granted summary judgment to Appellees by the following letter ruling:
1. The [Appellants'] right to recover under the theories of strict liability and, or implied warranty of fitness is barred by 63 Ohio St. 2151 which is found to be a constitutional expression of the legislature.
2. [Appellees'] motion for summary judgment is sustained with respect to that portion of [Appellants'] petition setting forth an action based on implied warranty of fitness or strict liability as being barred by statute.
3. [Appellants] present no evidence of negligence on the part of [Hospital] in its selection of [Institute] for its blood supply *1002 or of contamination of blood while in [Hospital's] possession.
4. [Appellants] present no evidence of negligence on the part of [Institute] in its selection of donors, testing, storage, or in any other phase of dealing in blood.
5. It is not enough to show, as [Appellants] do, that there were other testing procedures available but not used or that there were other sources of blood available. In the face of affirmative statements by [Appellees'] witnesses, Dr. [G.] and [Hospital's Vice-president], that [Institute] complied with all pertinent, applicable standards for testing, [Appellants'] lack of evidence to the contrary is fatal to their claims of negligence against either [Hospital] or [Institute].
6. Motions of [Appellees] for summary judgment are sustained.
Appellants then filed their "Motion to Reconsider/Vacate" the orders granting summary judgment to Appellees. In addition to reurging the previously asserted grounds for denial of summary judgment, Appellants tendered the affidavit of Dr. L., expressing the opinion that "the procedure utilized by [Institute] in the screening and selection of donors was negligent and failed to meet an acceptable standard of care," and that Hospital "was negligent in failing to ascertain the methods which were used to get blood by [Institute] and their failure [sic] to advise patients of alternative methods available for obtaining blood such as directed donations." Appellees responded, objecting to the submission of the additional evidence by Appellants, not previously presented on motion for summary judgment.
The Trial Court denied Appellants' motion for reconsideration. Appellants commenced the instant appeal, again asserting (1) unconstitutionality of 63 O.S. § 2151 under the Oklahoma Constitution, and further (2) error in denying the motion for reconsideration in view of the new evidence presented therein arguably establishing Appellees' breach of duty and negligence, and (3) error in granting summary judgment to Appellees (a) in the presence of unresolved material fact questions concerning Appellees' breach of duty and/or negligence and (b) in that § 2151 does not bar a cause of action for breach of implied warranty in the presence of negligence.
We initially note only one case to have discussed the application of § 2151. In Gilmore v. St. Anthony's Hospital, 516 P.2d 248 (Okl. 1973), the Supreme Court held, under § 2151, that a blood bank could not be held strictly liable for injuries from defects in blood supplied, but specifically recognized that an action for breach of implied warranty might still obtain if it was shown that the blood supplier had negligently breached its implied contract. 516 P.2d at 251. In that case, however, because the issue was not properly presented, the Supreme Court specifically reserved consideration of the issue of constitutionality of § 2151 for a later time. 516 P.2d at 252.
After remand, the case again came before the Supreme Court after the Trial Court granted summary judgment to Appellee blood bank. Gilmore v. St. Anthony's Hospital, 598 P.2d at 1201. The Supreme Court found material fact questions upon which reasonable men might differ concerning blood bank's exercise of care in its selection of donors, precluding summary judgment. 598 P.2d at 1206. As we find neither of the previous Gilmore cases dispositive of the issues raised in the instant case, we proceed to the argument of Appellants.
I. APPELLANTS' CONSTITUTIONAL CLAIMS
In their challenge to the constitutionality of § 2151, Appellants assert that § 2151 is violative of the "special law" proscription of the Oklahoma Constitution, Art. V, § 46, and the due process guarantee of Art. II, § 7. These constitutional provisions establish:
No person shall be deprived of life, liberty or property without due process.
Oklahoma Constitution, Art. II, § 7.
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
.....
*1003 For limitation of civil or criminal actions.
Oklahoma Constitution, Art. V, § 46.
Hereunder, Appellants argue that § 2151 shields blood centers and hospitals from liability, while leaving donors open to liability, and thus § 2151 violates the "special law" proscription of Art. V, § 46, also in violation of Art. II, § 7. We disagree.
In rejecting an equal protection challenge to the South Carolina "blood shield" statute, substantially similar to that of Oklahoma, the South Carolina Supreme Court noted:
... [O]f the 48 blood shield statutes enacted nationwide, not one has been ruled unconstitutional on Equal Protection grounds... .
Samson v. The Greenville Hospital System and the Carolina-Georgia Blood Center, Inc., 295 S.C. 359, 368 S.E.2d 665, 667 (1988).
Therein, and just as Appellants herein, Plaintiffs challenged the South Carolina statute as improperly favoring blood centers and other providers to the exclusion of donors. The South Carolina Supreme Court rejected this argument:
[W]e discern [no] unequal treatment of potential defendants. Plaintiffs' assertion that commercial blood components manufacturers and paid donors remain exposed to suits for breach for implied warranties has no basis in the statute itself. [The statute] encompasses not only blood, but also "blood products or blood derivatives." Moreover, the statute does not distinguish paid donors from voluntary donors or commercial distributors from charitable distributors.
Samson v. Greenville Hospital System, 368 S.E.2d at 668-669.
Just as the South Carolina blood shield statute does not distinguish between different classes of blood suppliers, the Oklahoma statute similarly makes no distinction between different sources of blood products in the statutory immunity. Rather, § 2151 limits liability as to the "transaction" of the supply of blood and blood products, and hence, does not specially favor a class or classes of blood suppliers in the transaction.
In rejecting the identical "special law" argument attacking the Louisiana blood shield statute, the Fifth Circuit Court of Appeals reasoned:
The plaintiff-appellants challenge ... [the blood shield statute's] state constitutionality. They contend [the Louisiana blood shield statute] violates the guarantee of due process, ..., and the prohibition against the legislative creation of an exclusive right or immunity... . The argument, in essence, is two-fold: that (1) the legislature may not, acting consistently with limitations imposed by the state constitution, eliminate causes of action already provided by the positive law announced by [state law], (2) for the benefit of a specific individual or organization.
We are unable to accept this reasoning. For over 50 years, the Louisiana courts have recognized the validity of regulation of causes action, including replacement and even extinction, that one person may have against another for personal injuries. (Citation omitted.) The entire scheme of workmen's compensation is grounded on the acknowledgment of this power.... .
The [blood shield statute] is no less valid because it is explicitly directed at the suppliers of blood and blood components. [While] the Louisiana Constitution prohibits the granting of special immunity for "any corporation, association or individual," ... as long as a privilege or immunity "operates equally and fairly to those who engage in like transactions" and "affects alike all persons pursuing the same business under the same conditions, the Louisiana Constitution is satisfied. (Citations omitted.) ... Because the [blood shield statute] applies with such generality to those who provide the vital medical service of supplying blood and blood components such as blood banks, hospitals and the like it easily satisfies the well-established tests for constitutionality as a valid exercise of legislative authority.
*1004 Heirs of Fruge v. Blood Services, 506 F.2d 841, 848-849 (5th Cir.1975).
As the Sixth Circuit recognized, in upholding the Tennessee blood shield statute:
The law in question involves all within the class of selling or distributing blood or plasma equally and treats this activity as a medical service. There appears to be no discrimination in the law favoring Hospital per se, because it is a hospital rendering important services. We will, therefore, recognize the provisions of [the Tennessee blood shield statute] in questions as being a constitutional exercise of authority for the public welfare by the Tennessee legislature.
McDaniel v. Baptist Memorial Hospital, 352 F. Supp. 690, 695 (W.D.Tenn. 1972), aff'd. on appeal, McDaniel v. Baptist Memorial Hospital, 469 F.2d 230, 235 (6th Cir.1972).
Oklahoma law and constitutional analysis parallels this authority:
In testing the validity of a state statute which differentiates in its treatment of one group of individuals compared with its treatment of another group as against the constitutional prohibition against taking property without due process of law, against denial of equal protection of the laws, and against the enactment of special as distinguished from general laws, a common test is applied, i.e., whether the classification which forms the basis for the differentiation is neither arbitrary nor capricious, and bears a reasonable relation to the object to be accomplished.
Texas Oklahoma Exp. v. Sorenson, 652 P.2d 285, 289-290 (Okl. 1982).
Because the Oklahoma blood shield statute treats all within the "transaction" of supplying blood and/or blood products equally and without discrimination, and affords all within the "transaction" a qualified immunity, i.e., immunity from liability in the absence of negligence, we hold that § 2151 does not violate the "special law" prohibition of Art. V, § 46, nor the due process protection of Art. II, § 7. We recognize the provision of an adequate blood and organ supply for transfusion and transplantation as a matter of overriding public concern, and we hold that the grant of immunity to those within the transaction of supplying blood for transfusion bears a reasonable relation to the public interest in the maintenance of an adequate blood supply for transfusion needs. Section 2151 is neither arbitrary nor capricious in attaining this object, and amounts to a constitutional exercise of the authority vested in the Oklahoma Legislature in the interest of the welfare of the citizens of this state to insure an adequate blood and organ supply. We therefore reject Appellants' constitutional challenges.
II. APPELLANTS' CLAIMS AGAINST INSTITUTE
We next address Appellants' assertion that material fact questions concerning Appellee Institute's alleged breach of duty and/or negligence remained controverted, precluding summary judgment. We do not so view the evidence. The only evidence adduced on summary judgment showed adherence by Institute to all Federal and/or other authority regulations in the testing and screening of donors and blood product. Appellants assert that the admission by Institute's director, Dr. G., that two surrogate tests were not performed, presented a material issue of fact as to Institute's duty and breach thereof, mandating that summary judgment be denied.
We find this argument, unsupported by evidence of any kind showing a breach of duty or causation of damages by Institute arising from its failure to perform the advocated tests, unpersuasive. In rejecting the identical argument by Appellants therein, the District Court of the District of Columbia observed:
Plaintiffs argue [against blood bank] that it was negligent for the [blood bank] to fail to use surrogate laboratory tests to eliminate contaminated blood from the blood supply... . Plaintiffs argue that AIDS and hepatitis were closely linked, ... [and] therefore suggest that [blood bank] should have implemented what is *1005 known as the Hepatitis B core antibody test... .
Plaintiffs are in error for two reasons. First, Plaintiffs can point to no organization, governmental or medical, which advocated the use of the [Hepatitis B core antibody test] as a means of screening blood for AIDS. Instead, Plaintiffs offer the testimony of two experts whose current opinion is that hospitals and blood banks should have used the core antibody test... . These two individuals' opinions cannot alone create a standard of care or a prima facie case of negligence, where they are entirely in opposition to the standard prevailing at every hospital blood bank in the nation. To permit these hindsight opinions to preclude summary judgment would violate the United States Supreme Court's mandate that Rule 56 be construed with due regard to defendants who have shown by competent evidence that a plaintiff's claims have no factual basis. Celotex Corp. v. Catrett, [477 U.S. 317, 327] 106 S. Ct. 2548, 2555 [91 L. Ed. 2d 265] (1986). Thus, ... plaintiffs cannot establish a standard of care regarding surrogate tests from which the [defendant blood bank] departed.
.....
The second insurmountable hurdle in plaintiffs' negligence case against the [blood bank] is that the Hepatitis B core antibody test, which plaintiffs' experts advocate, would have proven inutile in screening out the donor whose contaminated blood [plaintiff's decedent] received. That donor would have tested negative of hepatitis-B at the time of his donation. (Citation omitted.) Thus, the critical element of causation, wherein plaintiffs must show that the [blood bank's] failure to implement this test caused [plaintiff's decedent] to become infected, is absent. For this second reason, the [blood bank] is entitled to summary judgment as to plaintiff's negligence count.
Kozup v. Georgetown University, et al., 663 F. Supp. 1048, 1057, 1058 (D DC 1988).
In the present case, Appellants offered no evidence of any kind, beyond the mere argument, that Institute breached its standard of care by failure to implement tests which, by the only evidence adduced, were shown to be of no value. Appellants' attempt to cure the deficiencies in their proof on Motion to Vacate/reconsider came far too late to revitalize their case after the grant of summary judgment to Institute. 12 Ohio St. 1981 § 991; Rule 13(d), Rules of the District Court, 12 O.S., Ch. 2, App.; Lucas v. Hockett, 469 P.2d 237 (Okl. 1970). In short, Appellants failed to present any evidence of any kind which would justify a trial of the issues of Institute's negligence, and we therefore hold that the Trial Court properly granted summary judgment to Institute.
As to Appellants' challenge to the construction of § 2151, we find Appellants' argument without merit. Appellants hereunder assert that the Trial Court erred in finding the Appellants' claims for breach of implied warranty barred by § 2151. Appellants contend that their claims for breach of warranty remain viable if negligence is found. Gilmore v. St. Anthony Hospital, 516 P.2d at 251. With this contention, we agree. However, in the present case, as the Trial Court determined, and with which conclusion we agree, Appellants failed to make a prima facie case of negligence, in the absence of which, under § 2151, Appellants' claims under strict liability and breach of implied warranty theories must fail:
... [A] cause of action making [a blood supplier] strictly liable [i.e., liable without negligence] for injuries from defects in the blood it furnishes, is barred, or unauthorized, by statute.
... [O]nly in cases where the defendant has negligently failed to perform [his] duty or negligently breached such implied contract, that he will be liable for the consequences thereof. If the breach of warranty has occurred without negligence on [the defendant's] part, then, by *1006 statute, plaintiff has no cause of action; ... .
Gilmore, 516 P.2d at 251.
Therefore, Appellants' claim under strict liability theory is barred by statute, and the Trial Court did not err. Because Appellants failed to make a prima facie case of negligence, their claim under breach of warranty theory must likewise fail. Gilmore. We therefore find the Trial Court properly granted summary judgment to Appellee Institute.
III. APPELLANT'S CLAIMS AGAINST HOSPITAL
As we previously noted, Appellants raised a new issue, i.e., lack of informed consent, for the first time in the proceedings in their objections to summary judgment. While we have found no Oklahoma authority discussing the effect of an "eleventh hour" interjection of new matter, authority construing F.R.C.P. Rule 56 governing summary judgments recognizes that "affidavits going beyond the pleadings may be considered if facts appear in the affidavits which would justify an amendment." 6 Moore's Federal Practice, ¶ 56.11[3], p. 56-132; see also, Sweeney v. Athens Regional Med. Ctr., 705 F. Supp. 1556 (M.D.Ga. 1989); Kane v. Chrysler Corp., 80 F. Supp. 360 (Del. 1948). As Professor Moore elsewhere observes, "Affidavits that measure up to the requirements of Rule 56(e) may pierce pleading allegations and may raise issues that go beyond the pleadings where an amendment of a pleading to raise those issues would be warranted." 6 Moore's, Part 2, ¶ 56.22[1], p. 56-736.
Further, and as regarding amendment of pleadings, Professor Moore notes that under F.R.C.P. Rule 15 governing amendment, amendments "may change the theory of recovery or the relief sought." 3 Moore's, ¶ 15.08[2], p. 15-54. Federal Rule 15 is nearly identical to 12 O.S.Supp. 1984 § 2015 which mandates that leave to amend must be freely granted in the interests of justice. In that vein, Professor Moore states with regard to amendment to interject new matter on summary judgment:
[I]f the amendment adds a new theory for relief, the pending motion for summary judgment is not defeated if the trial court does not subject the added claim to the pending motion. If the new theory of relief is not subjected to the pending motion for summary judgment, the court should either deny the motion, or if appropriate, enter a partial summary judgment based on the original theory of relief. On the other hand, if the new theory of recovery is made subject to the pending motion for summary judgment, the motion should be defeated, unless the parties are given sufficient opportunity to present matter directed to the issue of summary judgment as to the new claim.
6 Moore's, ¶ 56.10, pp. 56-96, 56-97.
In the present case, the Trial Court's order granting summary judgment to Appellees makes no reference to the new issue of lack of informed consent on summary judgment, but the Trial Court clearly rejected Appellants' assertion of this new issue on Appellants' subsequent motion to reconsider. Under the authority cited above, we therefore find the issue of informed consent properly asserted and the Trial Court's ruling thereon ripe for review.
In that regard, Oklahoma law recognizes the duty of a physician to adequately inform his patients of known material risks of a particular procedure, in order that the patient may make an informed decision whether to consent to or reject the physician's proposed procedure or treatment. Spencer v. Seikel, 742 P.2d 1126 (Okl. 1987); Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d 285 (Okl. 1984); Masquat v. Maguire, 638 P.2d 1105 (Okl. 1981); Scott v. Bradford, 606 F.2d 554 (Okl. 1979); Lambert v. Park, 597 F.2d 236 (10th Cir.1979); Martin v. Stratton, 515 P.2d 1366 (Okl. 1973). In order to support a cause of action based on lack of informed consent, there must be shown (1) plaintiff's consent without complete revelation of attendant risks, (2) that plaintiff would not have consented to the treatment in the presence of *1007 complete information, (3) that the unrevealed risk did in fact materialize, and (4) that plaintiff suffered injury as a result of subjection to the particular treatment or procedure. Spencer, 742 P.2d at 1129; Smith, 686 P.2d at 288; Masquat, 638 P.2d at 1106; Scott, 606 P.2d at 558; Martin, 515 P.2d at 1368-1369. However, a physician has no duty to inform a patient of risks known by the patient. Spencer, 742 P.2d at 1129; Scott, 606 P.2d at 558; Martin, 515 P.2d at 1368.
However, we find no Oklahoma authority imposing a like duty on hospitals to inform patients of potential risks and/or available alternatives to a particular procedure or treatment. Our review of the authority cited by the parties hereto from other jurisdictions reveals a consistent rejection of imposition of the duty to inform on hospitals, even in the presence of a statutorily mandated duty to inform. See, e.g., Howell v. Spokane & Inland Emp. Blood Bank, 114 Wash.2d 42, 785 P.2d 815 (1990); Alexander v. Gonser, 42 Wash. App. 234, 711 P.2d 347 (1985); Pauscher v. Iowa Methodist Med. Cir., 408 N.W.2d 355 (Iowa 1987); Valcin v. Public Health Trust, 473 So. 2d 1297 (Fla.App. 1984), approved in part, quashed in part, 507 S.2d 596 (Fla. 1987); Nevauex v. Park Place Hospital, Inc., 656 S.W.2d 923 (Tex. App. 1983); Cox v. Haworth, 54 N.C. App. 328, 283 S.E.2d 392 (1981); Cooper v. Curry, 92 N.M. 417, 589 P.2d 201 (App. 1978), writ quashed 92 N.M. 353, 588 P.2d 554 (1978); Kershaw v. Reichert, 445 N.W.2d 16 (N.D. 1989); Krane v. St. Anthony Hospital Systems, 738 P.2d 75 (Colo. App. 1987); Lincoln v. Gupta, et al., 142 Mich. App. 615, 370 N.W.2d 312 (1985); Cross v. Trapp, 170 W. Va. 459, 294 S.E.2d 446 (1982); Pickle v. Curns, 106 Ill. App. 3d 734, 62 Ill. Dec. 79, 435 N.E.2d 877 (1982).
Like these jurisdictions, we now refuse to impose upon hospitals the duty to inform patients of the material risks of a procedure prescribed by the patient's physician. To impose upon a hospital the duty to inform would be to require a hospital to intervene into the physician/patient relationship, "more disruptive than beneficial to [the] patient." Howell, 785 P.2d at 882; Alexander, 711 P.2d at 351. In short, we believe it to be the duty of the physician ordering blood transfusions, rather than the hospital filling the physician's orders, "to inform patients of the risks, general and specific, involved in the surgical procedures." Howell.
We therefore hold, under the facts and circumstances of this case, that Appellants' claim of lack of informed consent will not lie against Hospital under existing Oklahoma law. Even assuming arguendo that we should recognize such a duty of Hospital, clearly Hospital would not be required to inform Mr. Goss of a risk known to him. Spencer, 742 P.2d at 1129; Scott, 606 P.2d at 558; Martin, 515 P.2d at 1368. Mr. Goss' deposition testimony revealed that Mr. Goss knew of the risks of transfusion transmitted disease before he underwent surgery, clearly fatal to his claim of lack of informed consent. Further, we find no allegation or admissible evidence that Mr. Goss would have foregone the prescribed treatment if he had been informed of the specific risk of contraction of AIDS from any necessary blood transfusion, also fatal to his claim under extant Oklahoma law. Spencer, 742 P.2d at 1129; Smith, 686 P.2d at 289; Masquat, 638 P.2d at 1106; Scott, 606 P.2d at 558. We therefore find no error in the Trial Court's order granting summary judgment to Hospital on the issue of lack of informed consent.
The orders of the Trial Court granting summary judgment to Institute and Hospital are therefore AFFIRMED.
DONE BY ORDER OF THE COURT OF APPEALS IN CONFERENCE this 18th day of May, 1990.
BAILEY and MacGUIGAN, JJ., concur.
NOTES
[*] Editor's Note: On grant of rehearing the court withdrew part III of its original opinion and substituted part III as published herein. Judge MacGuigan dissented to Part III of the original opinion but concurred in the substituted Part III on grant of rehearing. The court denied appellant's petition for rehearing.
[1] "Surrogate marker" tests are tests employed to detect diseases or conditions which may be associated with a different condition for which the testing is employed. According to the deposition testimony, and having observed a relationship between the incidence of hepatitis type B and male homosexuality, one blood institute in California employed the "anti-hepatitis B core antibody" test to screen out potentially at-risk donors and blood products. One other blood bank, having observed a decrease in the ratio of "T helper lymphocytes" to "T suppressor Iymphocytes" in AIDS sufferers, used a "T4/T8" test to measure the ratio and excluded samples showing a lowered ratio.
[2] This conclusion, in hind-sight and in light of later-acquired knowledge, appears supported by the deposition testimony of Dr. G. The FDA never approved the anti-hepatitis B core antibody test or the T4/T8 test for AIDS screening. After the donor in the instant case tested positive for the AIDS virus using the newly developed and FDA approved test in 1985 when the donor sought to again donate blood, Institute also tested using the anti-hepatitis B core antibody test, and that test revealed negative results. Further, and according to the deposition testimony, carriers of the AIDS virus may or may not show depressed T4/T8 ratios.
[3] Dr. G. admitted in his deposition the possibility that a prospective donor in a voluntary group donation atmosphere might be unwilling to admit that the donor occupies an at-risk category.
[4] Intraoperative salvage, also known as intraoperative autotransfusion, uses a machine initially invented by Dr. G. and another doctor, generically known as an autotransfuser, by which a patient's own blood is recovered during the surgical process, cleansed, and returned to the patient. Dr. G. also testified as to a third method of donation, known as elective preoperative autotransfusion, by which, prior to surgery, a patient's own blood is collected and stored for use during the patient's surgery. This method, said Dr. G., is perhaps the safest method of transfusion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364578/ | 856 P.2d 486 (1993)
George W. ROWE, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent.
No. 92SC396.
Supreme Court of Colorado, En Banc.
July 6, 1993.
Rehearing Denied July 26, 1993.
*487 Miller, Hale & Harrison, Daniel C. Hale, Boulder, for petitioner.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Laurie A. Booras, Asst. Atty. Gen., Denver, for respondent.
Justice ERICKSON delivered the Opinion of the Court. Justice VOLLACK specially concurs in the result only, and Justice LOHR and Justice KIRSHBAUM join in the special concurrence.
The court of appeals in People v. Rowe, 837 P.2d 260 (Colo.App.1992), affirmed the judgment of conviction and the sentence imposed on the petitioner, George W. Rowe, for first-degree assault committed under heat of passion. The court of appeals rejected Rowe's assertion that the district court had committed reversible error by giving a jury instruction stating that first-degree assault committed under heat of passion was a lesser included offense of first-degree assault. We reverse the judgment of the court of appeals and return this case to the court of appeals with directions to remand to the district court for a new trial.
I
Rowe worked as a manager of the Atrium Bar and Grille. On the evening of February 18, 1989, two customers, Thomas Gary and Kevin Fox, refused to leave the bar at closing time. After an altercation broke out involving the two customers, Rowe and an off-duty bartender forced the two men out of the bar and locked the door to the bar. Once outside, Gary continued to shout obscenities and pounded on the locked door in an attempt to reenter the bar. Rowe subsequently fired several shots from a handgun into the door, seriously injuring Gary.
On February 28, 1989, Rowe was charged with one count of first-degree assault in violation of section 18-3-202, 8B C.R.S. (1986),[1] and one count of committing a violent crime in violation of section 16-11-309(2), *488 8A C.R.S. (1986). On January 12, 1990, the prosecution added habitual criminal counts, under which Rowe faced a potential mandatory life sentence.
At trial, Rowe's theory of the case was self-defense. For tactical reasons, Rowe also advanced an alternative theory of defense based on provocation and requested a jury instruction on second-degree assault committed under heat of passion, a class one misdemeanor. See § 18-3-203(2)(a), 8B C.R.S. (1986).[2] Defense counsel's strategy and conclusion were that if Rowe was convicted of second-degree assault committed under heat of passion, a misdemeanor, instead of first-degree assault, Rowe not only would receive a shorter sentence, but also could not be adjudged a habitual criminal. The prosecution subsequently withdrew the habitual criminal counts during the jury instruction conference. The district court agreed to give the instruction on second-degree assault committed under heat of passion as a lesser included offense of first-degree assault and incorporated Rowe's request within Jury Instruction Number 13. See Appendix.
The prosecution subsequently requested a jury instruction on second-degree assault, a class four felony. § 18-3-203(1)(d), 8B C.R.S. (1986).[3] The prosecution also requested an instruction on first-degree assault committed under heat of passion, a class five felony. § 18-3-202(2)(a), 8B C.R.S. (1986).[4] Over Rowe's objection, the district court agreed to give both of the instructions requested by the prosecution as lesser included offenses of first-degree assault and incorporated the requests within Jury Instruction Number 13. See Appendix.
The jury found Rowe guilty of first-degree assault committed under heat of passion. Rowe was sentenced to four years in the department of corrections. On appeal, Rowe asserted that first-degree assault committed under heat of passion was a lesser nonincluded offense of first-degree assault, and, as a lesser nonincluded offense, could only be requested by a defendant.
The court of appeals determined that first-degree assault committed under heat of passion was neither a lesser included nor a lesser nonincluded offense of first-degree assault, but that heat of passion was merely a mitigating factor. Rowe, 837 P.2d at 263. While the court of appeals agreed with Rowe that the district court erroneously instructed the jury that first-degree assault committed under heat of passion was a lesser included offense, it concluded that no prejudice resulted from the erroneous instruction. Id. We granted certiorari to review the decision of the court of appeals and now reverse.[5]
*489 II
Prior to 1979, Colorado's first-degree assault statute, section 18-3-202, did not contain any "heat of passion" language. In People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978), we determined that the legislative scheme embodied in the first-degree assault statute was constitutionally infirm because a person charged with first-degree assault who could establish that he acted under heat of passion nevertheless could receive a greater penalty than he could have received had he caused the death of his victim and been charged with manslaughter.
Montoya concluded:
Under the manslaughter statute, a person who intentionally causes the death of another in the "heat of passion" is guilty of a class four felony and is subject to imprisonment for one to ten years. Section 18-1-105(1), C.R.S.1973. A person who intentionally causes serious bodily injury under "heat of passion," however, is subject to conviction for first-degree assault and imprisonment for a term of five to forty years. Thus, the offender who acts with the less culpable intent and who causes the less grievous result receives the greater penalty. Such an unreasonably structured legislative scheme is constitutionally infirm.
Id. at 114, 582 P.2d at 675.
In 1979, the General Assembly sought to remedy the constitutional infirmities set out in Montoya by enacting section 18-3-202(2)(a), which amended the first-degree assault statute to include heat of passion language.[6] The General Assembly could have responded to Montoya in a variety of ways. Among other possibilities, the General Assembly could have (1) increased the sentence for manslaughter; (2) reduced the sentence for first-degree assault; (3) created a separate offense of "first-degree assault committed in the heat of passion;" (4) established heat of passion as an affirmative defense to first-degree assault; (5) utilized some form of rebuttable presumptions; or (6) maintained the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. Senate Bill No. 189 (S.B. 189) was proposed in direct response to Montoya to add heat of passion language to the first-degree assault statute. In this case, we must determine the effect of the amendment to the first-degree assault statute.
III
A
Our task in construing statutes is to ascertain and give effect to the intent of the General Assembly, not to second guess its judgment. Goebel v. Colorado Dep't of Institutions, 830 P.2d 1036, 1041 (Colo.1992); Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo.1991); § 2-4-203, 1B C.R.S. (1980). To determine legislative intent, we look first to the language of the statute. Goebel, 830 P.2d at 1041; Farmers Group, 805 P.2d at 422. If a statute is ambiguous, we may determine the intent of the General Assembly by considering the statute's legislative history, the state of the law prior to the legislative enactment, the problem addressed by the legislation, and the statutory remedy created to cure the problem. Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988); Schubert v. People, 698 P.2d 788, 793-94 (Colo.1985).
Applying these settled principles of statutory construction, we conclude that in amending the first-degree assault statute in 1979, the General Assembly maintained the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. Our conclusion is supported by the legislative history of S.B. 189, the overall purpose of the statutory provisions enacted in response to Montoya, the internal structure of the first-degree assault statute, and the language employed in the amendment.
*490 In our view, the legislative history of S.B. 189 demonstrates that the General Assembly intended to maintain the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. In the Senate Judiciary Committee hearing on S.B. 189, the drafter of the amendment repeatedly stressed that "all we are doing is changing the penalty, we are not changing the elements of the [offense of first-degree assault]." Hearings on S.B. 189 Before the Senate Judiciary Committee, 52d Gen. Assembly, 1st Reg.Sess. (audio tape, Jan. 29, 1979, at 2:50-3:04).
By maintaining the offense of first-degree assault while adopting a statutory mitigating factor to reduce a defendant's sentence in certain circumstances, the General Assembly achieved its overriding purpose of addressing the constitutional problems identified in Montoya. S.B. 189 was drafted so that a person who committed first-degree assault under heat of passion would not receive a greater punishment than a person who committed a homicide under heat of passion.
Based on the foregoing considerations, we hold that the General Assembly maintained the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. Our conclusion that the General Assembly intended to establish a mitigating factor that could reduce a defendant's sentence for first-degree assault can also be reached by briefly examining the options the General Assembly chose not to adopt in responding to Montoya.
B
The power to define criminal conduct and to establish the legal components of criminal liability is vested with the General Assembly. People v. Low, 732 P.2d 622, 627 (1987); Hendershott v. People, 653 P.2d 385, 390 (Colo.1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983). As such, the General Assembly could have established an entirely new offense containing the element of heat of passion, as it did in defining the crime of manslaughter. See § 18-3-104, 8B C.R.S. (1986).
The internal structure of section 18-3-202, however, suggests that the General Assembly did not intend to create a new and separate offense of "first-degree assault committed under heat of passion." Section 18-3-202 is entitled "Assault in the First Degree." Subsection (1) defines the crime of first-degree assault by listing the elements necessary to establish the offense. Notably, the heat of passion language was placed in subsection (2), which deals exclusively with sentencing for defendants convicted of first-degree assault.[7] Moreover, there is nothing in the hearings on S.B. 189 that suggests that the General Assembly intended to create a new and separate offense.
We conclude that by enacting section 18-3-202(2)(a) the General Assembly did not intend to create a new offense of first-degree assault committed under heat of passion, which contained the same elements as first-degree assault and an additional element of heat of passion. Compare CJI-Crim.2d 10:20 (heat of passion is not an element of first-degree assault but an issue the jury must consider once it has found a defendant guilty of first-degree assault) with CJI-Crim.2d 9:08 (listing heat of passion as an element of the offense of manslaughter that the prosecution must establish beyond a reasonable doubt).[8]
Because the General Assembly did not create a new and separate offense, there is no chargeable offense of first-degree assault committed under heat of passion, a point that the prosecution conceded during oral argument. Moreover, *491 there is no separate offense to classify as either a "lesser included offense" or a "lesser nonincluded offense" of first-degree assault.[9] Instead, there is only one single crime of first-degree assault, albeit one that may have different sentences depending on whether the mitigating factor of heat of passion has been established.
C
In addition to establishing the essential components of criminal liability, it is within the prerogative of the General Assembly to establish affirmative defenses based on principles of justification or excuse. Hendershott, 653 P.2d at 390; see Low, 732 P.2d at 627.[10] Section 18-1-407, 8B C.R.S. (1986), governs affirmative defenses to criminal conduct. Subsequent statutory provisions delineate the general affirmative defenses that are subject to section 18-1-407. See §§ 18-1-701 to -805, 8B C.R.S. (1986) (listing affirmative defenses); see also § 18-1-504, 8B C.R.S. (1986) (listing when mistake qualifies as an affirmative defense); § 18-1-505, 8B C.R.S. (1986) (listing when consent qualifies as an affirmative defense).
Within constitutional limitations, the General Assembly also may restrict an affirmative defense to a particular crime. Low, 732 P.2d at 627. On numerous occasions, the General Assembly has explicitly delineated particular affirmative defenses to specific crimes within the statutory section defining the offense.[11] However, in none of the examples where the General Assembly has established an affirmative defense to a specific crime does a defendant receive a reduced sentence if the affirmative *492 defense is established. Rather, the affirmative defense acts as a complete bar to conviction for the offense.
The General Assembly, in its discretion, certainly could have established heat of passion as an affirmative defense to all offenses as it has done with the categories of justification defenses and responsibility defenses. See § 18-1-710, 8B C.R.S. (1986); § 18-1-805, 8B C.R.S. (1986). Alternatively, the General Assembly could have established heat of passion as an affirmative defense to the particular offense of first-degree assault by stating that heat of passion was an affirmative defense.[12]
In contrast to the various statutory sections where the General Assembly explicitly established affirmative defenses, nothing in the plain language of section 18-3-202, or in the placement and location of the heat of passion language in the criminal statutory scheme, indicates that the General Assembly intended for heat of passion to be an affirmative defense. Nor does the legislative history suggest that the General Assembly intended to create a new and separate offense. We conclude that the General Assembly did not intend for heat of passion to be an affirmative defense to the offense of first-degree assault. See People v. Pennese, 830 P.2d 1085, 1088 (Colo.App.1991) (stating that the General Assembly chose not to classify heat of passion as an affirmative defense to first-degree assault); see also People v. Huckleberry, 768 P.2d 1235, 1239 (Colo.1989) (rejecting argument that alibi was an affirmative defense and noting that an alibi defense was not expressly established by statute as an affirmative defense).
D
Based on the foregoing considerations, we conclude that the General Assembly addressed Montoya by including heat of passion language in the statutory scheme for first-degree assault as a mitigating factor that could reduce a defendant's sentence for first-degree assault, rather than by creating a new and separate offense of first-degree assault committed under heat of passion or by establishing an affirmative defense. See Pennese, 830 P.2d at 1088 (characterizing heat of passion as a statutory penalty mitigator); People v. Harris, 797 P.2d 816, 818 (Colo.App.1990) (same). To decide otherwise would require us to ignore the clear intent of the General Assembly, the legislative history of S.B. 189, the plain language and structure of the first-degree assault statute, and the overriding purpose of the General Assembly.
IV
Based on our conclusion that the General Assembly did not create a new and separate offense of first-degree assault committed under heat of passion, it is clear that the district court erroneously instructed the jury that first-degree assault committed under heat of passion was a lesser included offense of first-degree assault. We further conclude that the erroneous instruction constitutes reversible error in this case.
Rowe was entitled to raise the issue of provocation and to request a jury instruction on heat of passion. Instead of giving a jury instruction on a separate lesser included offense of first-degree assault committed under heat of passion, however, the district court should have instructed the jury in accord with CJI-Crim.2d 10:20. See, e.g., Pennese, 830 P.2d at 1089.[13] Under *493 the model jury instruction, a jury properly considers the question of provocation only after it has determined that a defendant is guilty of first or second degree assault. In our view, the district court's instructions in this case, which are dramatically different from the model jury instruction, constitute reversible error. The jury was in effect instructed on, and convicted Rowe of, an offense that does not exist as a separate offense. Accordingly, we reverse the judgment of the court of appeals and order a new trial.
V
We conclude that the district court's erroneous instruction on first-degree assault committed under heat of passion as a lesser included offense of first-degree assault constitutes reversible error. Accordingly, we reverse the judgment of the court of appeals and return the case with directions to remand for a new trial.
VOLLACK, J., specially concurs in the result only, and LOHR and KIRSHBAUM, JJ., join in the special concurrence.
APPENDIX
INSTRUCTION NO. 13
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged if the evidence is sufficient to establish his guilt of the lesser offense beyond a reasonable doubt.
The offense of Assault In The First Degree, as charged in the information in this case necessarily includes the lesser offenses of Assault In The First Degree (Heat of Passion), Assault In The Second Degree (Heat of Passion) and Assault In The Second Degree (Reckless).
The elements of the crime of Assault In The First Degree (Heat of Passion) are:
(1) That the Defendant,
(2) in the City and County of Denver, State of Colorado, on or about February 19, 1989,
(3) with intent,
(4) to cause serious bodily injury to another person,
(5) causes serious bodily injury to another person,
(6) by means of a deadly weapon,
(7) under circumstances where the act causing the injury was performed, not after deliberation, upon a sudden heat of passion,
(8) caused by a serious and highly provoking act of the intended victim,
(9) affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person,
(10) without the affirmative defense(s) in Instructions No. 17 and 18.
The elements of Assault In The Second Degree (Heat of Passion) are:
(1) That the Defendant,
(2) in the City and County of Denver, State of Colorado, on or about February 19, 1989,
(3) with intent to cause bodily injury to another person,
(4) caused or attempted to cause such injury to any person,
(5) by means of a deadly weapon,
(6) under circumstances where the act causing the injury was performed, not after deliberation, upon a sudden heat of passion,
(7) caused by a serious and highly provoking act of the intended victim,
*494 (8) affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person,
(9) without the affirmative defense(s) in Instructions No. 17 and 18.
The elements of Assault In The Second Degree (Reckless) are:
(1) That the Defendant,
(2) in the City and County of Denver, State of Colorado, on or about February 19, 1989,
(3) recklessly caused serious bodily injury to another person,
(4) by means of a deadly weapon.
You should bear in mind that the burden is always upon the prosecution to prove beyond a reasonable doubt each and every material element of any lesser included offense which is necessarily included in any offense charged in the information; the law never imposes upon a defendant in a criminal case the burden of calling any witnesses or producing any evidence.
After considering all the evidence, if you decide that the prosecution has proven each of the elements of the crime charged or of a lesser included offense, you should find the Defendant Guilty of the offense proven, and you should so state in your verdict.
After considering all the evidence, if you decide that the prosecution has failed to prove one or more elements of the crime charged or of a lesser included offense, you should find the Defendant Not Guilty of the offense which has not been proved, and you should so state in your verdict.
While you may find the Defendant Not Guilty of any or all of the crimes charged, or of any or all lesser included offenses, you may not find the Defendant Guilty of more than one of the following offenses:
Assault In The First Degree (Heat of Passion)
Assault In The Second degree (Heat of Passion)
Assault In The Second Degree (Reckless)
Justice VOLLACK specially concurring in the result only:
The majority holds that "[t]he jury was in effect instructed on, and convicted Rowe of, an offense that does not exist." Maj. op. at 493. I agree; I write separately, however, to address the gravamen of the second issue upon which we granted certiorari. Unlike the majority, I find that the district court committed reversible error in this case by granting the prosecution an instruction containing a mitigating factor at the close of the evidence.
I.
As the majority notes, we granted certiorari to address the following two issues:
Whether assault in the first degree committed in the heat of passion, § 18-3-202(2)(a), 8B C.R.S. (1986), is a lesser non-included offense of assault in the first degree, § 18-3-202(1)(a), 8B C.R.S. (1986).
Whether the prosecution is entitled to request, despite the objection of the defendant, that a jury be instructed on the lesser non-included offense of assault committed in the heat of passion.
In response to the first issue, I agree with the majority that first-degree assault committed in the heat of passion is not a lesser nonincluded offense of first-degree assault because "there is no chargeable offense of first-degree assault committed under heat of passion." Maj. op. at 490. I also agree with the proposition that "there is only one single crime of first-degree assault, albeit one that may have different sentences depending on whether the mitigating factor of heat of passion has been established." Id. at 490-91. I find, however, that heat of passion functions like an affirmative defense regardless of whether the Colorado General Assembly has sought to define it as such. Accordingly, because heat of passion admits the doing of the act charged, but seeks to lessen liability for that act, only the defendant may request an instruction on it at the close of evidence.
*495 A.
An affirmative defense is one which tends to "negative guilt by canceling out the existence of some required element of the crime." Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.8, 71 (1986); see People v. Huckleberry, 768 P.2d 1235, 1238 (Colo.1989) ("[A]n affirmative defense basically admits the doing of the act charged but seeks to justify, excuse or mitigate it."). First-degree assault is a specific intent crime: it requires that a defendant act either with an intent to cause serious bodily injury, or with an intent to disfigure, or with knowledge that his or her conduct will create a grave risk of death to another person. § 18-3-202(1), 8B C.R.S. (1986). First-degree assault, as defined in section 18-3-202(1), is a class 3 felony. § 18-3-202(2)(b). Conversely, in a case of "heat of passion," if the assault in the first-degree is "committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person," it is a class 5 felony. § 18-3-202(2)(a), 8B C.R.S. (1986). Thus, heat of passion is like an affirmative defense insofar as it tends to negate the fact that a defendant had the requisite specific intent or acted after deliberation.
Heat of passion additionally resembles an affirmative defense insofar as, once some credible evidence on that issue is raised, then the burden to prove a lack of provocation falls on the prosecution. See § 18-1-407, 8B C.R.S. (1986) ("`Affirmative defense' means that unless the state's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, shall present some credible evidence on that issue."); LaFave & Scott, supra, at 72 ("[I]t is uniformly held that the defendant is obliged to start matters off by putting in some evidence in support of his defense."). Under Colorado Criminal Jury Instruction Number 10:20, "[i]t is the burden of the prosecution to prove beyond a reasonable doubt a lack of provocation for the defendant's acts."[1]
Whether heat of passion may be characterized as a "mitigating factor," or as an affirmative defense, the prosecution should not be permitted to add charges via tendered jury instructions at the close of evidence; such conduct prejudices the defendant's substantial right to notice of the crimes charged.[2]
B.
In the present case, the prosecuting attorney charged Rowe with first-degree assault in an information. At the close of the evidence at Rowe's trial, Rowe tendered an instruction on second-degree assault committed under heat of passion, upon which his theory of the case was premised. The prosecution subsequently tendered instructions on second-degree assault and on first-degree assault committed under heat of passion. The district court gave all of the above-mentioned instructions to the jury. The district court's action constitutes reversible error.
"The right of an accused to notice of the charges which have been made against him constitutes a fundamental constitutional guarantee and lies at the foundation of due process of law." People v. Cooke, 186 Colo. 44, 46, 525 P.2d 426, 428 (1974). "Where a defendant acquiesces in placing a *496 lesser crime before the jury, the requested instruction allows the jury to consider fully the elements of the crime charged and of the offense the defendant contends was involved." People v. Rivera, 186 Colo. 24, 29, 525 P.2d 431, 434 (1974). Constitutional notice requirements, however, "preclude the submission of such an instruction at the request of the district attorney or by the court." Id. at 28, 525 P.2d at 434. "It would be haphazard and unfair to say to a defendant that he must defend on the principal charge and any other charge which the evidence established." Id. at 27, 525 P.2d at 434 (emphasis added). Accordingly, an information may only be amended as to form before the verdict "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Crim.P. 7(e).
Only Rowe, and not the prosecuting attorney, could submit an instruction at the close of evidence on a heat of passion theory, thereby seeking to mitigate the level of the offense. The prosecution originally charged Rowe only with first-degree assault, a class 3 felony. Thus, at the time the information was filed, Rowe was put on notice that he was required to defend against a class 3 felony. The prosecution attempted to cast first-degree assault by heat of passion, a class 5 felony, as a different charge than first-degree assault, a charge against which Rowe did not have notice to defend, and a charge added without Rowe's consent after the conclusion of the trial. Rivera and Cooke dictate that only the defendant is entitled to invoke the benefit of heat of passion "mitigation" at the close of trial.
I agree with the majority's conclusion that a new trial is warranted in this case.
I am authorized to say that LOHR and KIRSHBAUM, JJ. join in this special concurrence in the result only.
NOTES
[1] Section 18-3-202 provided in relevant part:
(1) A person commits the crime of assault in the first degree if:
(a) With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon; or
(b) With intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person; or
(c) Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person;
....
(2)(a) If assault in the first degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, it is a class 5 felony.
(b) If assault in the first degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 3 felony.
(c) If a defendant is convicted of assault in the first degree pursuant to paragraph (a), (c), (e), or (f) of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S.
[2] Section 18-3-203(2)(a) provided:
(2)(a) If assault in the second degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, it is a class 1 misdemeanor.
In 1991, the General Assembly amended § 18-3-203(2)(a) to make second-degree assault committed under heat of passion a class six felony. See § 18-3-203(2)(a), 8B C.R.S. (1992 Supp.).
[3] Section 18-3-203 provided:
(1) A person commits the crime of assault in the second degree if:
....
(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon;
....
(2)(b) If assault in the second degree is committed without the circumstances provided in paragraph (a) of this section (2) [heat of passion], it is a class 4 felony.
[4] See supra note 1.
[5] We granted certiorari to address two questions:
1. Whether assault in the first degree committed in the heat of passion, § 18-3-202(2)(a), 8B C.R.S. (1986), is a lesser non-included offense of assault in the first degree, § 18-3-202(1)(a), 8B C.R.S. (1986).
2. Whether the prosecution is entitled to request, despite the objection of the defendant, that a jury be instructed on the lesser non-included offense of assault committed in the heat of passion.
[6] The General Assembly also enacted § 18-3-203(2)(a), which amended the second-degree assault statute by adding the same heat of passion language.
[7] In our view, if the General Assembly had intended to create a new and separate offense, it is more likely that it would have added a new section to the Criminal Code of the Colorado Revised Statutes, rather than merely amending an already existing section.
[8] We disapprove of footnote two in People v. Brighi, 755 P.2d 1218, 1221 (Colo.1988), to the extent that it suggests that heat of passion is an element of second-degree assault, because such a conclusion is clearly contrary to the intent of the General Assembly.
[9] Based on our conclusion that there is no separate offense of first-degree assault committed under heat of passion, and thus no lesser nonincluded offense, it is not necessary for us to address the second question on which we granted certiorari. See supra note 5. Citing People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), Rowe contends that "[b]ecause assault committed in the heat of passion is a lesser non-included offense of the original charge of assault, only a defendant can request a jury instruction on such lesser, non-included offenses." Because we conclude that first-degree assault committed under heat of passion is not a separate offense from first-degree assault and therefore cannot be a lesser nonincluded offense, Rivera simply does not apply to the present case.
Rivera prohibits the prosecution from requesting an instruction on a lesser nonincluded offense because the information does not provide a defendant with notice of the crimes charged. Rivera, 186 Colo. 24, 28, 525 P.2d 431, 434 (1974). However, there is no such bar to the prosecution submitting and securing an instruction on a lesser included offense over a defendant's objection, because the information charging the principal crime provides a defendant with sufficient constitutional notice of the lesser included offense that do not appear in the information. See People v. Cooke, 186 Colo. 44, 48, 525 P.2d 426, 428-29 (1974).
Nor can a defendant charged with first-degree assault reasonably assert constitutionally deficient notice in a case where a trial court properly instructs the jury on the heat of passion mitigating factor. Rather, in such a case the defendant has been convicted of the very offense charged in the information. For the same reasons, in such a case there is no amendment of an information to include "an additional or different offense" to raise constitutional notice or due process concerns. See Crim.P. 7(e). An information cannot be amended to include an additional offense that does not exist.
[10] Professors LaFave and Scott have explained that various types of substantive law defenses adopted by state legislatures are termed, somewhat loosely, "affirmative defenses:"
Some of these are substantive law defenses which negative guilt by canceling out the existence of some required element of the crime.... Certain other defenses ... do not negative any of the elements of the crime but instead go to show some matter of justification or excuse which is a bar to the imposition of criminal liability. In addition to these defenses of general applicability, there are also substantive law defenses applicable to individual crimes, in which case, the common practice is for the statute defining the crime to contain an exception or proviso setting forth the defense.
See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.8, at 71-72 (1986). An affirmative defense, as its name implies, is a complete defense to the crime a defendant is charged with and is used to avoid or prevent conviction. See generally id.
[11] See, e.g., § 18-6-201(1), 8B C.R.S. (1986) (bigamy); § 18-8-508, 8B C.R.S. (1986) (perjury); § 18-9-106(2), 8B C.R.S. (1986) (disorderly conduct); § 18-9-112(3), 8B C.R.S. (1986) (loitering); § 18-9-204.5, 8B C.R.S. (1992) (unlawful ownership of a dangerous dog); § 18-12-105(2), 8B C.R.S. (1986) (unlawfully carrying a concealed weapon); § 18-13-121(1), 8B C.R.S. (1992 Supp.) (furnishing cigarettes to minors).
[12] The disorderly conduct statute, section 18-9-106, 8B C.R.S. (1986), provides an example of the language used by the General Assembly to create an affirmative defense to a specific crime based on provocation. In 18-9-106(1), the elements of the offense of disorderly conduct are defined. Section 18-9-106(2) then provides "[i]t is an affirmative defense to prosecution under subsection (1)(b) of this section that the actor had significant provocation for his abusive or threatening conduct." (Emphasis added.) In our view, if the General Assembly had intended for the issue of provocation to be an affirmative defense to the offense of first-degree assault, it would have employed similar language to that used in section 18-9-106(2).
[13] CJI-Crim.2d 10:20 provides:
ASSAULT1ST AND 2ND DEGREEPROVOCATIONMITIGATING CIRCUMSTANCES
If you find the defendant not guilty of [Count No. ___], [First] [Second] Degree Assault, you need not consider this instruction. If however, you find the defendant guilty of [Count No. ___] [First] [Second] Degree Assault, you must then consider the issue of provocation.
The evidence in this case has raised the issue of provocation. Provocation means that the defendant's acts were performed, not after deliberation, but upon a sudden heat of passion caused by a serious and highly provoking act of the intended victim which affected the defendant sufficiently to excite such an irresistible passion in a reasonable person.
It is the burden of the prosecution to prove beyond a reasonable doubt a lack of provocation for the defendant's acts.
[1] As a matter of practical consequence, a prosecutor will not endeavor to prove the four elements of heat of passion, see People v. Garcia, 826 P.2d 1259, 1262 (Colo.1992), in order to sustain a first-degree assault convictiona class 5 felonywhen a conviction of second-degree assaulta class 4 felonymay be more easily established. Cf. §§ 18-3-202(2)(a), -203, 8B C.R.S. (1986).
[2] I recognize that the prosecution may submit instructions on lesser included offenses at the close of the evidence, which the district court, in its discretion, may give to the jury. See People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974); Crim.P. 31(c). I agree with the majority, however, that first-degree assault by heat of passion is not a lesser included offense of first-degree assault. See maj. op. at 490. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364580/ | 856 P.2d 1011 (1993)
David Samuel CALVERT, Appellee,
v.
J.B. HUNT TRANSPORT, INC., Appellant.
No. 78,989.
Court of Appeals of Oklahoma, Division No. 3.
May 4, 1993.
Certiorari Denied July 7, 1993.
Jerry V. Beavin, Steve A. Weeks, Oklahoma City, for appellant.
Leslie Williams, Jerry L. Breathwit, Oklahoma City, for appellee.
Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.
*1012 OPINION
HANSEN, Chief Judge:
In this action for damages for retaliatory discharge under the Workers' Compensation Act, 85 Ohio St. 1991 §§ 5-7, a jury awarded Plaintiff $10,000.00 in actual and $30,000.00 in punitive damages. The trial court overruled Defendant's motion for new trial and its motion to modify the judgment as to punitive damages and entered judgment accordingly. Defendant appeals to this Court.
Defendant on appeal asks us to overrule a decision by this division of the Court of Appeals, Wise v. Johnson Controls, Inc., 784 P.2d 86 (Okla. App. 1989). We decline to do so. Defendant complains that the trial court erred in instructing the jury it could award more in punitive damages than in actual damages. They argue the general damage statute, 23 Ohio St. 1991 § 9 which limits punitive damages to the amount of actual damages, should control over § 6 of the Workers Compensation Act which allows a jury to award $100,00.00 in punitive damages.
Workers' Compensation laws are to be liberally construed. Zaragosa v. Oneok, Inc., 700 P.2d 662 (Okla. App. 1984). In Wise, this Court emphasized the long standing rule of statutory construction that where there are two statutory provisions, one of which is special and clearly includes the matter in controversy and prescribes something different from the general statute, the special statute and not the general statute applies. Thus, the special punitive damage limitations in the Workers' Compensation Act apply rather than the general limitation of § 9.
Defendant also argues the trial court should have modified the punitive damage award down from $30,000.00. A punitive damage award of $30,000.00 for retaliatory discharge is not in and of itself excessive. A punitive damage claim rests peculiarly within the province of the jury, and it will not be casually interfered with on appeal where it is claimed to have been actuated by passion or prejudice. Mantha v. Liquid Carbonic Industries, 839 P.2d 200 (Okla. App. 1992). Defendant does not point to any evidence the award was generated by passion or prejudice so that the decision of the amount to award Plaintiff should be taken away from the jury. We do not find the punitive damage award to be excessive.
*1013 Defendant's only other complaint on appeal deals with the admission of testimony. It claims the trial court erred in allowing testimony regarding the authenticity of exhibits depicting computer entries of telephone conversations with Plaintiff. Even though the witness's statements might be considered to have been couched in tentative terms, Defendant had ample opportunity to cross-examine and attack the credibility of the testimony. As stated in King v. Haliburton Co., 813 P.2d 1055 (Okla. App. 1991), we do not believe the actions complained of denied Defendant a fair trial or that the trial court abused its discretion in denying the motion for new trial. A trial court has great latitude concerning the practical conduct of a trial and an appellate court will not reverse unless a clearly erroneous conclusion or judgment is made.
In addition, Defendant in its motion for new trial suggests Plaintiff fraudulently denied he had been issued a traffic citation while working for Defendant. However, Defendant had evidence of the citation on which it could have impeached Plaintiff during the trial. In its motion for new trial, Defendant presented no additional evidence that Plaintiff's testimony was fraudulent. We find no prejudice in the denial of Defendant's motion for new trial. It is for the jury to decide the credibility of the witnesses and the effect and weight to be given conflicting or inconsistent testimony. Where there is any competent evidence reasonably tending to support the verdict of the jury, the court on appeal will not disturb the verdict and judgment based thereon. King v. Haliburton Co., supra at page 1057.
TRIAL COURT AFFIRMED.
HUNTER, J., concurs.
BAILEY, P.J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364583/ | 856 P.2d 805 (1993)
Robby VALENZUELA, Petitioner/Cross-Respondent,
v.
The PEOPLE of the State of Colorado, Respondent/Cross-Petitioner.
No. 91SC526.
Supreme Court of Colorado, En Banc.
July 19, 1993.
Rehearing Denied August 23, 1993.
David F. Vela, Colorado State Public Defender, Robert B. Holt, Sp. Deputy Public *806 Defender, Denver, for petitioner/cross-respondent.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., A. William Bonner, Asst. Atty. Gen., Appellate Section Denver, for respondent/cross-petitioner.
Justice VOLLACK delivered the Opinion of the Court.
Petitioner Robby Jack Valenzuela (Valenzuela) petitions for certiorari to review the decision of the court of appeals in People v. Valenzuela, 825 P.2d 1015 (Colo.App.1991), wherein the court of appeals considered Valenzuela's age[1] in determining that an abbreviated form of proportionality review was appropriate. After conducting such a review, the court of appeals concluded that Valenzuela's sentence to life imprisonment with no possibility of parole for forty years[2] for committing the crime of first-degree murder does not violate the Eighth Amendment to the United States Constitution. We reject the court of appeals' conclusion that age is a relevant consideration in conducting a proportionality review, but we agree with the court of appeals findings that an abbreviated review is appropriate in this case, and that Valenzuela's sentence does not violate the Eighth Amendment.
I.
On the evening of December 9, 1988, Valenzuela, his friend Angelo Davy Martinez (the victim),[3] and their respective girlfriends planned to spend the evening together in Valenzuela's apartment. Valenzuela and the victim paid two unknown men to purchase two twelve-packs of beer and a bottle of rum for them from a local liquor store. The four teenagers then returned to Valenzuela's apartment with the alcohol and proceeded to play a drinking game for the next two to three hours. Valenzuela and Martinez each drank approximately four to five cans of beer and an unspecified amount of rum.
Between 1:00 and 2:00 a.m., Valenzuela walked with his girlfriend to the bus stop. When Valenzuela returned, he told the victim that he "was going to fight some guys at the bus stop." At approximately 2:00 a.m., the victim's girlfriend stated that she needed to go home, and telephoned her mother to pick her up at Valenzuela's apartment. The victim's girlfriend then went into the bathroom, and when she returned, Valenzuela was becoming angry. As the victim and his girlfriend walked outside of the apartment to the balcony to wait for the victim's girlfriend's mother to arrive, Valenzuela said to the victim: "Yeah, go ahead and leave, get out of here, you and your lady, just book."
Valenzuela then swore at the victim and, referring to the victim's prior incarceration at the Fort Logan Mental Hospital, Valenzuela told the victim, "You should go back. That's where you belong." Valenzuela also yelled at the victim, "Yeah, tell [your girlfriend] that you used to write [to] my lady." Valenzuela proceeded to taunt the victim.
Valenzuela and the victim began fighting on the balcony, and then continued fighting inside of the apartment. After a few minutes, Valenzuela and the victim went outside, and Valenzuela told the victim to leave. The victim then walked down the stairs with his girlfriend. Valenzuela went back into the apartment and returned with a small kitchen knife in his hand. Valenzuela approached the victim and told him, "I should just kill you. I'll kill you." The victim responded, "What are you going to do? Are you going to stab me?" The victim then raised his arms to the side and stated, "Go ahead. Go for it, dude." Valenzuela then stabbed the victim in the left side of his chest.
*807 Valenzuela then ran back upstairs into his apartment and slammed the door. The victim tried to chase Valenzuela up the stairs, and kicked the door several times before collapsing in front of the door. The victim died on arrival at the hospital.
On December 10, 1988, Valenzuela was arrested. On December 14, 1988, Valenzuela was charged by information with one count of murder in the first degree, a class 1 felony, § 18-3-102, 8B C.R.S. (1986), and with one count of crime of violence by use of a deadly weapon, § 16-11-309, 8A C.R.S. (1986).
Valenzuela was tried as an adult, and on April 14, 1989, a jury found him guilty of first-degree murder. The district court sentenced Valenzuela on June 9, 1989, to life imprisonment with no possibility of parole for forty years.
On appeal, Valenzuela argued that "[t]he sentence of life i[m]prisonment with no possibility of parole for forty years mandated by section 16-11-103, C.R.S. constitutes imposition of an unconstitutionally disproportionate sentence when applied to a juvenile offender under eighteen years of age." Section 16-11-103 provides in relevant part:
Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment, unless the defendant was under the age of eighteen years at the time of the commission of the offense, in which case the defendant shall be sentenced to life imprisonment.
§ 16-11-103(1)(a), 8A C.R.S. (1986) (emphasis added).
The court of appeals interpreted the United States Supreme Court's holding in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) (holding that the Eighth Amendment prohibits sentences which are disproportionate to the crime committed), to suggest that, "whenever a defendant claims a sentence violates the cruel and unusual punishment clause of the Eighth Amendment, he is entitled to a proportionality review of that sentence." Valenzuela, 825 P.2d at 1017. In determining whether Valenzuela was entitled to an abbreviated or extended proportionality review of his sentence, the court of appeals concluded that,
if a defendant in a criminal case is under the age of 18 at the time he commits an offense and he receives a life sentence therefor, then his age should be considered, along with other factors (i.e., violence of the offense, the gravity of the conviction, the possibility of parole), in determining the nature and the extent of the proportionality review to be given to his sentence.
Id. The court of appeals further found that,
for juveniles age 16 or 17, only limited consideration of the minor's age need be given in determining if a limited or extended proportionality review of a life sentence is necessary. Hence, since the defendant here was age 17 at the time of the crime, since he was the perpetrator of an extraordinarily violent offense, and since there is a realistic possibility of parole from his life sentence, we determine that an extended proportionality review is not required.
Id. at 1017-18. In conducting an abbreviated proportionality review of Valenzuela's sentence, the court of appeals held that "the violence of the offense, the gravity of the conviction, the defendant's age, and the realistic possibility of parole within the defendant's lifetime are all factors which lead us to conclude that the sentence does not violate the Eighth Amendment." Id. at 1018.
We granted certiorari in Valenzuela to resolve three related issues:
Whether the court of appeals erred in holding that a juvenile, convicted as an adult of a class 1 felony, is entitled to a proportionality review of his mandatory sentence to life imprisonment.
Whether the court of appeals erred in holding that the age of a juvenile offender should be considered in determining whether an abbreviated or an extended proportionality review is required.
*808 Whether the automatic sentencing provisions mandated by § 16-11-103, 8A C.R.S. (1986), constitute an unconstitutionally disproportionate sentence when applied to a juvenile offender under eighteen years of age.[4]
Based upon previous decisions by the United States Supreme Court and this court, we conclude that the court of appeals was correct in conducting an abbreviated, rather than remanding for an extended, proportionality review. See Harmelin v. Michigan, ___ U.S. ___, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001; People v. Cisneros and People v. Ates, 855 P.2d 822 (Colo.1993); People v. Juarez, 855 P.2d 818 (Colo.1993); People v. Smith, 848 P.2d 365 (Colo.1993); People v. Gaskins, 825 P.2d 30 (Colo.1992); Alvarez v. People, 797 P.2d 37 (Colo.1990); People v. Drake, 785 P.2d 1257 (Colo.1990); People v. Hernandez, 686 P.2d 1325 (Colo.1984). We further conclude that the court of appeals was correct in finding that Valenzuela's mandatory sentence to life imprisonment with no possibility of parole for forty years for committing first-degree murder is not an unconstitutionally disproportionate sentence when applied to a juvenile offender under eighteen years of age. Accordingly, we affirm the judgment of the court of appeals, but we reject the court of appeals' conclusion that age is a relevant consideration in conducting a proportionality review.
II.
In addressing the three related issues before us, we first consider whether Valenzuela was entitled to a proportionality review of his sentence; second, we determine the appropriate scope of such a review, and finally, we decide whether Valenzuela's sentence was disproportionate in violation of the Eighth Amendment.
A.
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. In Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), the United States Supreme court interpreted the Cruel and Unusual Punishments Clause of the Eighth Amendment to require that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Id. at 290, 103 S.Ct. at 3009. Solem, a habitual offender case, established a three-part test for analyzing whether a sentence is disproportionate:
When sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized. First, we look to the gravity of the offense and the harshness of the penalty....
Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction....
Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.
Id. at 290-92, 103 S.Ct. at 3009-3011.
In Harmelin v. Michigan, ___ U.S. ___, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), the United States Supreme Court again considered whether the Eighth Amendment contains a proportionality principle. Harmelin differed from Solem in that it involved an Eighth Amendment challenge to a statutorily mandated sentence in a non-habitual offender case. The justices disagreed as to what type of proportionality review, if any, was required in such a case. In his concurrence, Justice Kennedy was joined by Justice O'Connor and Justice Souter in concluding that the Eighth Amendment contains a narrow proportionality principle, id. at ___, 111 S.Ct. at 2702, and that the scope of this proportionality principle is limited by such factors as the primacy of the legislature in determining the types and limits of punishments for crimes. Id. *809 at ___, 111 S.Ct. at 2703-04. In conducting the required proportionality review, Justice Kennedy applied only the first factor of the Solem test: a comparison of the gravity of the offense and the harshness of the penalty. Id. at ___, 111 S.Ct. at 2705.
In People v. Smith, 848 P.2d 365 (Colo.1993), a non-habitual offender case, we concluded that an abbreviated proportionality review was required where the twenty-year-old defendant challenged his mandatory sentence to life imprisonment with no possibility of parole for forty years for committing the crime of first-degree murder. Smith, 848 P.2d at 374. We held in Smith: "In the present action, which, like Harmelin, involves a mandatory sentence imposed in a non-habitual case, we conclude that the appropriate review of proportionality is a comparison of the gravity of the offense and the harshness of the penalty." Id.
Prior to Smith, this court held, in a long line of cases, that a proportionality review in an abbreviated form is required where a defendant challenges the constitutionality of a sentence imposed under the Colorado habitual criminal statute. See People v. Gaskins, 825 P.2d 30 (Colo.1992); Alvarez v. People, 797 P.2d 37 (Colo.1990); People v. Drake, 785 P.2d 1257 (Colo.1990); People v. Hernandez, 686 P.2d 1325 (Colo.1984); see also People v. Cisneros and People v. Ates, 855 P.2d 822 (Colo.1993) (post-Smith habitual offender cases holding that proportionality review was required where defendant challenged mandatory life sentence pursuant to the habitual offender statute); People v. Juarez, 855 P.2d 818 (Colo.1993) (post-Smith habitual offender case holding that proportionality review was required where defendant challenged mandatory life sentence pursuant to the habitual offender statute).
In Valenzuela, as in Smith, the defendant is challenging the constitutionality of his sentence to life imprisonment with no possibility for parole for forty calendar years under section 16-11-103 for committing the crime of first-degree murder. As in Smith, we find that Valenzuela is entitled to some form of proportionality review of that sentence. See Smith, 848 P.2d at 374-75.
B.
We next consider the appropriate scope of the required proportionality review, and whether the court of appeals erred in holding that the age of a juvenile offender should be considered in determining whether an abbreviated or an extended proportionality review is required.
This court has held in a series of cases that an abbreviated form of proportionality review, consisting of a comparison of the gravity of the offense and the harshness of the penalty, is required when a defendant, in either a habitual or a non-habitual offender case, challenges the constitutionality of a life sentence. Cisneros and Ates, 855 P.2d 822, 826-27; see Juarez, 855 P.2d 818; Smith, 848 P.2d 365; Gaskins, 825 P.2d 30; Alvarez, 797 P.2d 37; Drake, 785 P.2d 1257; Hernandez, 686 P.2d 1325.
We have also held that a defendant's age is not a relevant consideration in determining the scope of proportionality review required. See Cisneros and Ates, 855 P.2d 822, 828 (finding that Cisneros and Ates were not entitled to an extended proportionality review simply because their respective life expectancies did not exceed the forty-year period of parole ineligibility); Juarez, 855 P.2d 818 (holding that Juarez was not entitled to an extended proportionality review by virtue of his age).
In the present case, the court of appeals held that,
if a defendant in a criminal case is under the age of 18 at the time he commits an offense and he receives a life sentence therefor, then his age should be considered, along with other factors (i.e., violence of the offense, the gravity of the conviction, the possibility of parole), in determining the nature and the extent of the proportionality review to be given to his sentence.
Valenzuela, 825 P.2d at 1017. The court of appeals holding conflicts with our recent holdings in Cisneros, Ates, and Juarez that *810 age is not a relevant factor in determining the scope of proportionality review, and with our holding in Smith, that age is not a relevant factor in conducting such a review. The court of appeals was correct, however, in determining that only an abbreviated review is required in the present case, and that the gravity of the offense, the harshness of the penalty, and the possibility of parole are all relevant factors in conducting such a review. Accordingly, we hold that the court of appeals properly determined that an abbreviated form of proportionality review is appropriate in the present action, but that the court of appeals should not have considered the defendant's age in deciding whether to conduct an abbreviated or an extended proportionality review.
C.
After determining that Valenzuela is entitled to an abbreviated proportionality review of his mandatory life sentence, we next determine whether the automatic sentencing provisions mandated by section 16-11-103 constitute an unconstitutionally disproportionate sentence when applied to a juvenile offender under eighteen years of age.
In Smith, 848 P.2d at 374-75, we held that Donald Eugene Smith's sentence to life imprisonment with no possibility of parole for forty years, see § 16-11-103, 8A C.R.S. (1986 & 1989 Supp.), for committing the crime of first-degree murder, was not disproportionate when applied to a twenty-year-old defendant, and did not violate the Eighth Amendment's prohibition against cruel and unusual punishments.
In Cisneros and Ates, 855 P.2d 822, 826, we further held that, "[b]ased upon previous decisions by this court and by the United States Supreme Court, we conclude that mitigating factors, such as the defendant's age, are irrelevant in determining whether a punishment is proportionate to the crime under the Eighth Amendment." See Harmelin, ___ U.S. ___, 111 S. Ct. 2680; Solem, 463 U.S. 277, 103 S. Ct. 3001; Juarez, 855 P.2d 818; Smith, 848 P.2d 365; Gaskins, 825 P.2d 30; Alvarez, 797 P.2d 37; Drake, 785 P.2d 1257; Hernandez, 686 P.2d 1325.
The present action is most like Smith in that it concerns a young offender challenging the constitutionality of a mandatory sentence to life imprisonment for committing the crime of first-degree murder, a class 1 felony. The only distinction between these two cases is that Valenzuela was seventeen years old when he committed first-degree murder, while Smith was twenty years old when he committed the same crime. The court of appeals reasoned that such an age difference is a relevant consideration in conducting a proportionality review. We disagree. We have already determined that a defendant's age is not a relevant consideration in conducting a proportionality review. Cisneros and Ates, 855 P.2d 822, 826; Juarez, 855 P.2d 818, 821; Smith, 848 P.2d at 374-75.
Valenzuela was convicted of first-degree murder, "a crime of the utmost gravity." See Smith, 848 P.2d at 374. Section 16-11-103 provides that the death penalty is not an option for a defendant under the age of eighteen years at the time of the offense, and that such juvenile offenders who commit a class 1 felony "shall be sentenced to life imprisonment." § 16-11-103, 8A C.R.S. (1986) (emphasis added). We therefore agree with the court of appeals' conclusion that Valenzuela's sentence to life imprisonment with no possibility of parole for forty years for committing the crime of first-degree murder is not disproportionate in violation of the Eighth Amendment, but we disapprove of the court of appeals' considering Valenzuela's age in reaching this decision.
III.
The judgment of the court of appeals is affirmed.
KIRSHBAUM, J., specially concurs in the result, and LOHR and MULLARKEY, JJ., join in the special concurrence.
Justice KIRSHBAUM specially concurring in the result.
I concur in the majority's conclusion that the court of appeals properly conducted an *811 abbreviated proportionality review of the sentence of life imprisonment with no possibility of parole for forty years imposed upon the petitioner, Robby Valenzuela, for the offense of first degree murder. I also concur in the majority's conclusion that the court of appeals properly determined, on the basis of such abbreviated proportionality review, that the sentence did not violate the prohibition against cruel and unusual punishments contained in the Eighth Amendment to the United States Constitution. I write separately, however, to again record my strong disagreement with the principle adopted for the first time by a majority of this court in the combined cases of People v. Cisneros and People v. Ates, 855 P.2d 822 (Colo.1993), that a defendant's age is constitutionally irrelevant for purposes of cruel and unusual punishments analysis.
In my special concurrence and dissent to those opinions, see People v. Cisneros and People v. Ates (Kirshbaum, J., concurring and dissenting), I indicated, with the historical and jurisprudential bases for my conclusions, that age is a relevant factor in Eighth Amendment proportionality analysis under the rationale of Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), as interpreted by this court in People v. Gaskins, 825 P.2d 30 (Colo.1992); that the United States Supreme Court's conclusion in part V of Harmelin v. Michigan, ___ U.S. ___, ___, 111 S. Ct. 2680, 2701-02, 115 L. Ed. 2d 836 (1991), that the individualized sentencing doctrine developed in capital cases is not applicable in non-capital cases does not answer the question of whether a defendant's age may be considered by a court conducting a proportionality review; and that this court's prior decisions, including our recent decision in People v. Smith, 848 P.2d 365 (Colo.1993), do not require a contrary result. I adhere to those views, but see no useful purpose in reiterating the bases for those conclusions here.
What may be useful here is to reemphasize my view that in addition to representing a departure from principles enunciated by this court, the United States Supreme Court, and other state courts, the majority's narrow view of the scope of the Eighth Amendment's proportionality principle in all probability forecloses meaningful proportionality review in circumstances wherein it may be most essential. As the majority accurately but inconsistently observes, Valenzuela was a seventeen-year-old juvenile at the time he committed first degree murder. Had he been thirteen or twelve, the majority concludes that such fact may not be considered by any Colorado court conducting a constitutionally required Eighth Amendment proportionality review unless he were sentenced to death. I find no support in history or precedent for so severe a conclusion. See Naovarath v. State, 105 Nev. 525, 779 P.2d 944 (1989).
I conclude that the court of appeals did not abuse its discretion in determining that an abbreviated proportionality review was sufficient in this case, that it did not err in considering Valenzuela's age in comparing the harshness of the sentence to the gravity of the offense, and that it correctly concluded that the sentence does not violate the Eighth Amendment to the United States Constitution. For those reasons, I specially concur in the result reached by the majority.
I am authorized to state that Justice LOHR and Justice MULLARKEY join in this special concurrence.
NOTES
[1] Valenzuela was seventeen years old at the time of the offense.
[2] Valenzuela was convicted of first-degree murder, § 18-3-102, 8B C.R.S. (1986), a class 1 felony, and sentenced pursuant to § 16-11-103, 8A C.R.S. (1986).
[3] The victim was sixteen years old at the time of the offense.
[4] We denied certiorari with respect to the issue of "[w]hether the court of appeals erred in holding that ... sufficient evidence was introduced at trial to establish beyond a reasonable doubt that Valenzuela acted with the requisite intent to commit first-degree murder." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364630/ | 431 S.E.2d 595 (1993)
STANLEY SMITH & SONS, INC., Appellant,
v.
I. Barton DUMAS, d/b/a I.B.'s and NCNB, South Carolina, Respondent.
No. 2016.
Court of Appeals of South Carolina.
Submitted September 1, 1992.
Filed April 8, 1993.
Refiled May 13, 1993.
William Frederick Austin and Richard Lee Whitt, both of The Austin Law Firm, Columbia, for appellant.
David B. Butler, Lexington, for respondent.
Formerly Unpublished Opinion No. 93-UP-100.
PER CURIAM:
This action in circuit court to enforce an arbitration award by foreclosure of a mechanic's lien arises out of a construction contract dispute between Stanley Smith & Sons, Inc. (the contractor) and I. Barton Dumas d/b/a I.B.'s (the owner). Along with the enforcement of the arbitration award, the contractor sought attorney fees both for the arbitration and for the circuit court action. In an order of summary judgment, the trial judge confirmed the award and granted foreclosure of the mechanic's lien, but denied all attorney fees. The contractor appeals from the denial of attorney fees in the arbitration and in circuit court. We reverse and remand.
The contractor agreed to build a restaurant for the owner. Because of a payment dispute during construction, the contractor filed and sought foreclosure of a mechanic's lien. The contractor then moved to refer the case for arbitration in accordance with the terms of the parties' contract. In a consent order, the circuit court referred "the instant matter" to binding arbitration "under the terms and provisions of the contract between the parties."
In its complaint, the contractor asked for $28,782.39 plus interest and attorney fees. In his answer, the owner presented defenses and monetary counterclaims based on alleged breaches of contract and alleged unfair trade practices by the contractor. The arbitrator awarded the contractor $23,-782.37, stating, "This award is in full settlement of all claims and counterclaims submitted to this arbitration."
When the owner did not pay the award, the contractor filed motions to confirm and enforce the award, grant foreclosure, and award attorney fees. The trial court granted enforcement and foreclosure but denied attorney fees in an order of summary judgment, ruling that the issue either was or should have been included in the arbitration *596 award. The trial court did not explicitly rule on the claim for attorney fees in the enforcement proceeding, but the denial of all attorney fees is an implicit rejection of the contractor's claim.[1] The contractor appeals, asserting the court should have awarded attorney fees for the arbitration and for the circuit court proceeding.
In seeking attorney fees, the contractor relies on contract language that it refers to as a reservation of rights clause:
13.4 RIGHTS AND REMEDIES
13.4.1 Duties and obligations imposed by the contract documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.
The contractor claims this language preserves its right to seek attorney fees in circuit court under the mechanic's lien statute, S.C.Code Ann. §§ 29-5-10 and 29-5-410 (1991).
Where a contract providing for arbitration includes a reservation of rights and the lienor must bring a foreclosure action to enforce an arbitration award, an award of attorney fees is proper under Code Section 29-5-410. Sentry Engineering and Construction, Inc., v. Mariner's Cay Development Corp., 287 S.C. 346, 338 S.E.2d 631 (1985).
The trial court found Sentry inapplicable because the arbitrator "should have or did consider attorney fees." The parties agree the issue of attorney fees was not presented to the arbitrator. In holding the arbitrator "should have" considered attorney fees, the court found the consent order of arbitration included "all issues." This finding, however, is incorrect. The consent order directed arbitration "under the terms and conditions of the contract between the parties." There is nothing in the consent order to suggest that all issues between the parties were to go before the arbitrator. We find Sentry is applicable to this case.
In Sentry, the Court affirmed an attorney fee award that included fees both for the arbitration and for the following enforcement proceeding. Sentry dealt with the same reservation of rights clause as appears in this case. In Sentry, as in this case, the circuit court directed arbitration of matters arising out of the contract between the parties. In Sentry, as in this case, the award of the arbitrator was unallocated and there was no record of the arbitration hearing. Our examination of the appellate record in Sentry shows that the Supreme Court was presented with the question of whether attorney fees should be barred because they were not sought in the arbitration proceeding. The parties in this case agree attorney fees were not before the arbitrator. Sentry came to the Supreme Court in the same procedural posture as this case comes to us. In short, we see no meaningful distinction between Sentry and this case.
Sentry affirmed a circuit court award of attorney fees for the arbitration and for the circuit court proceeding. We find, therefore, that the contractor in this case properly sought attorney fees in the circuit court, both for the arbitration and for the enforcement of the award by foreclosure. Consequently we reverse and remand to the circuit court to consider the award of attorney fees.
REVERSED AND REMANDED.
NOTES
[1] See State v. McLaughlin, 307 S.C. 19, 413 S.E.2d 819 (1992) (admission into evidence of defendant's statement was an implicit ruling that defendant voluntarily waived his Miranda rights). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364638/ | 431 S.E.2d 484 (1993)
110 N.C. App. 784
TAYLORSVILLE FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff,
v.
L.Q. KEEN and wife, Doris Keen.
No. 9222SC691.
Court of Appeals of North Carolina.
July 6, 1993.
Edward Jennings, Taylorsville, for defendants-appellants.
Joel C. Harbinson, Taylorsville, for plaintiff-appellee.
COZORT, Judge.
Plaintiff Taylorsville Federal Savings and Loan Association loaned Ray Eugene Foy and Ruth Foy $20,000 pursuant to a promissory note executed by the parties on 7 November 1985. The note matured on 7 February 1986. Defendants L.Q. Keen and Doris Keen also signed the promissory note. On 26 May 1988, plaintiff filed this action against the Keens, alleging that they had failed to pay the indebtedness. The record reflects that the parties' attorneys were in contact concerning the taking of a voluntary dismissal by plaintiff, so long as defendants would not avail themselves of a statute of limitations defense in the event of a reinstatement of the action against them. No conditions were explicitly agreed upon, but the plaintiff's attorney nonetheless filed a voluntary dismissal on 3 March 1989.
Plaintiff re-filed the cause of action on 1 April 1991. Plaintiff never obtained leave of court to extend the one-year period for re-filing the action. On 1 August 1991, plaintiff filed a motion for summary judgment; the motion was denied by an order entered by Judge John M. Gardner on 12 August 1991. Defendants filed a motion for summary judgment on 3 March 1992. Plaintiff filed a second motion for summary judgment on 13 March 1992. Following a hearing on the matter, Judge Preston Cornelius denied the defendants' motion for summary judgment and granted plaintiff's second motion for summary judgment. Defendants appeal. We reverse.
Defendants argue on appeal that plaintiff is barred from bringing this action, since plaintiff took a voluntary dismissal pursuant to N.C.R.Civ.P. 41 and failed to re-file the action until over two years later. We need not address the Rule 41 issue, however, because we find that the trial court did not have the authority to grant plaintiff's second motion for summary judgment.
"[A] motion for summary judgment denied by one superior court judge may not be allowed by another superior court judge on identical legal issues." American Travel *485 Corp. v. Central Carolina Bank, 57 N.C.App. 437, 440, 291 S.E.2d 892, 894, cert. denied, 306 N.C. 555, 294 S.E.2d 369 (1982).
This rule is based on the premise that no
appeal lies from one superior court judge to another. Moreover ... to allow an unending series of motions for summary judgment "would defeat the very purpose of summary judgment procedure, to determine in an expeditious manner whether a genuine issue of material fact exists and whether the movant is entitled to judgment on the issue presented as a matter of law."
Id. (quoting Carr v. Carbon Corp., 49 N.C.App. 631, 634, 272 S.E.2d 374, 377 (1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981)).
In the case below, plaintiff made, on 1 August 1991, a motion for summary judgment, which was denied. On 13 March 1992, plaintiff filed a second motion for summary judgment involving the same issue as presented by the initial motion. "[B]oth the language and policy behind N.C.R.Civ.P. 56 contemplate a single hearing on a motion for summary judgment involving the same case on the same legal issues." Id., 57 N.C.App. at 441, 291 S.E.2d at 895. Because "[t]he issue may not be relitigated by way of a second motion for summary judgment before a different judge," id., we conclude the trial court erred by granting plaintiff's motion for summary judgment. Having decided the summary judgment issue in defendants' favor, we need not address their additional assignment of error. The award of summary judgment granted to plaintiff by Judge Cornelius is reversed and the cause is remanded.
Reversed and remanded.
WELLS and JOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364575/ | 856 P.2d 609 (1993)
Lisa Michele PIPPIN, Appellant,
v.
Herbert D. JONES, Appellee.
No. 79789.
Court of Appeals of Oklahoma, Division 3.
June 22, 1993.
David P. Henry, Oklahoma City, for appellant.
William E. Liebel, Oklahoma City, for appellee.
Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.
OPINION
HANSEN, Chief Judge:
This is as appeal from a decision by the trial court sustaining Appellee Herbert D. *610 Jones' motion to dismiss in a paternity action filed by Appellant Lisa Michele Pippin.
On July 3, 1986, Appellant filed for divorce against her husband, Wilbur R. Pippin, in Oklahoma County District Court. In her petition, she declared the minor child of the parties to be the issue of her six year union with her husband.
On July 17, 1986, an agreed decree of divorce was entered placing the custody of the child with Appellant and requiring Mr. Pippin to maintain certain insurance on the child. [Case No. FD-86-5071]. The decree did not set child support. No appeal was taken therefrom and the validity of the decree has not been attacked.
On March 10, 1988, in the Dallas County, [Texas] District Court, Appellant filed a Motion to Modify, Enforce, and Withhold Earnings against Mr. Pippin.
On March 31, 1988, in Oklahoma County District Court, Mr. Pippin filed a "Motion and Cross-Petition to Establish Paternity and to Modify the Decree of Divorce."
On April 13, 1988, the Dallas County District Court modified the Oklahoma divorce decree to include an order to Mr. Pippin to pay child support, and in the process found him to be the legal father of the child. The parties do not dispute this order has been registered and filed of record in Oklahoma County Case No. FD-86-5071. Moreover, the parties do not dispute that these orders have not been modified or appealed.
On July 14, 1988, Mr. Pippin filed a trial brief in furtherance of his motion and cross-petition to establish paternity and modify decree of divorce. Therein, he denied paternity and submitted that because the "alimony award was intended for support," it should be terminated. He also claimed he was not told he could be subject to 18 years of alimony (support) if he did not challenge the child as illegitimate. He claimed fraud pursuant to 12 Ohio St. 1981 § 1031, Fourth.[1]
On April 27, 1989, the District Court of Oklahoma County entered an order approving an agreement between Appellant and Mr. Pippin that the child was not Mr. Pippin's child.
On October 11, 1991, Appellant filed a petition for paternity alleging Appellee (Herbert D. Jones) is the biological father of her minor child, born on May 6, 1986, during the time she was married to Wilbur R. Pippin.
Appellee filed a motion to dismiss asserting Appellant was attempting to collaterally attack a valid judgment adjudicating another person to be the father of this same child.
On July 10, 1992, in sustaining Appellee's motion to dismiss, the trial court found the April 27, 1989 order was void because there had been a failure to comply with 12 Ohio St. 1981 § 1031. As a result of the failure to comply, the trial court reasoned the Oklahoma District Court acquired no jurisdiction of the subject matter and had no jurisdiction when it entered its April 27, 1989 order. Because the divorce decree had not been vacated, and on the face of the record Mr. Pippin is the legal father, the trial court held Appellant is precluded from attempting to pursue a paternity action against another person. Appellant appeals from this order.
On appeal, Appellant argues the trial court erred in determining Mr. Pippin to be the legal father of the minor child. She points out that pursuant to the divorce decree, there was no finding the child was the offspring of Mr. Pippin, that Mr. Pippin was not required to pay child support, and the trial court did not award him any visitation with the child. Thus, she argues, the best conclusion to be reached is that Mr. Pippin is not the father.
Title 10 Ohio St. 1991 § 1 provides: "All children born in wedlock are presumed to be legitimate." Even though there is a presumption that a child born within wedlock is the child of the married couple, Appellant *611 contends Mr. Pippin rebutted this presumption "in other pleadings."
On March 31, 1988, Mr. Pippin filed his "Motion and Cross-Petition to Establish Paternity and Modify Decree of Divorce. He filed his trial brief in support thereof on July 15, 1988 in which he alleged fraud as his ground for modification of the decree. He claimed he was fraudulently misled by his attorney into consenting to a 10 year alimony payment (which he claims was intended as child support) and was not told he could be subject to 18 years of child support if he did not challenge the minor child's legitimacy.
12 Ohio St. 1991 § 1031, Fourth provides that the district court shall have power to vacate or modify its own judgments or orders within the time prescribed hereafter:
Fourth. For fraud, practiced by the successful party, in obtaining the judgment or order.
In Matter of 1974 Mercury Cougar, 2-Door Beige/Bronze, Bearing 1973 Oklahoma License No. KK-8089, 1974 Tab No. 969964 and Vin # F4A93H562624F, 581 P.2d 465 (Okla. 1978), the Supreme Court held that fraud which will authorize the court to vacate a judgment must be extrinsic fraud of the prevailing party that prevents the other party from fully and fairly presenting his side of the case, or fraud practiced on the court. Herein Mr. Pippin alleged neither. Moreover, he never alleged that any fraud had been practiced on him regarding his paternity of the minor child. Mr. Pippin failed to comply with § 1031, Fourth.
The trial court loses control over a judgment and is without jurisdiction to vacate, modify or set aside the same unless in substantial compliance with § 1031. Fowler v. Goldfeder, 418 P.2d 317 (Okla. 1966). Mr. Pippin did not rebut the presumption of legitimacy of the minor child. Moreover, because Mr. Pippin's motion did not substantially comply with § 1031, the trial court did not acquire subject matter jurisdiction and had no jurisdiction when it entered the April 27, 1989 order approving the agreement between Appellant and Mr. Pippin that Mr. Pippin is not the child's father. The trial court did not err in finding the April 27, 1989 order is void.
Further, Appellant contends that because Appellee was not a party to the April 27, 1989 order, he should be estopped from collaterally attacking it. As support for this contention, she cites this Court to Estate of Akers, 541 P.2d 284 (Okla. App. 1975). Her reliance on this case is misplaced. Therein, the Court of Appeals held:
... that a stranger (one not a party to the assailed proceedings) whose rights and interests have been adversely affected collaterally by a judgment which for any reason is void shall not be estopped from asserting such affected rights and protesting such interests in some other proceeding even though the validity of the earlier judgment is incidentally drawn in question.
Herein, Appellant even states in his appeal brief that "Appellee in this action did not do anything to attack the order entered at the District Court on April 27, 1989." Therefore, inasmuch as Appellee's rights and interests were adversely affected by the April 27th order, which is void for lack of jurisdiction, he shall not be estopped from denying paternity even though the validity of the April 27th order is incidentally drawn in question.
Because the divorce decree has not been vacated, and on the face of the record Mr. Pippin is the legal father of the minor child, Appellant is precluded from attempting to pursue a paternity action against Appellee. The trial court did not err in dismissing Appellant's paternity petition.
Appellee's request for costs and attorney fees in appeal is denied.
AFFIRMED.
BAILEY, P.J., and HUNTER, J. concur.
NOTES
[1] The July 10, 1992 journal entry of judgment, from which this appeal was taken, states that Mr. Pippin filed another brief in support of his motion of March 31, 1989 on April 27, 1989. It is not a part of the record on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364555/ | 431 S.E.2d 11 (1993)
334 N.C. 155
STATE of North Carolina
v.
Jeffrey James GINYARD.
No. 365A92.
Supreme Court of North Carolina.
Heard April 14, 1993.
Decided July 2, 1993.
*12 Michael F. Easley, Atty. Gen. by Mary Jill Ledford, Asst. Atty. Gen., Raleigh, for State.
Dewitt W. Daniell, Asheville, for defendant-appellant.
MITCHELL, Justice.
The defendant, Jeffrey James Ginyard, was tried in a capital trial upon a proper bill of indictment charging him with murder. The jury found him guilty of first-degree murder. At a separate sentencing proceeding, pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of life imprisonment. The trial court entered judgment accordingly. The defendant appealed to this Court as a matter of right.
The State's evidence introduced at trial tended to show, inter alia, the following. On 8 April 1991, at approximately 5:00 a.m., Gladys Brown and Earl Bowman returned to Brown's apartment at Hillcrest, a public housing project, and found Lewis Lytle waiting for them. The three of them entered the apartment, and Lytle used the telephone. Shortly thereafter, the defendant, Jeffrey James Ginyard, knocked on the door and asked Brown if she would tell Lytle that he would like to see him. Lytle went outside to speak with the defendant. Moments later, Brown heard a screeching sound outside. She looked out of a window and saw the defendant and Lytle engaged in a fist fight. In an attempt to stop the two men from fighting, Brown said, "you all stop before someone gets hurt." Brown testified that she saw both men glance at her, and then she saw "Jeff come from under his jacket with a knife and struck Lewis in his upper torso and Lewis grabbed the area and cringed." Lytle then started running, and the defendant followed him for a while, then ran behind another building.
At approximately 5:20 a.m., Tracy Clements heard a tapping on a bedroom window of his apartment in Hillcrest. Clements looked out of his window and saw Lytle, who was hurt and bleeding. Clements let Lytle into the apartment through the back door and took him into the kitchen. As he lay bleeding on the floor, Lytle said, "help me Tray, help me Tracy; they got me." Clements' girlfriend called 911 and, within fifteen minutes, an ambulance and paramedics arrived. Lytle was taken to a hospital where he died a short time later.
On 8 April 1991, Dr. Carl Biggers performed an autopsy on the body of the victim, Lewis Lytle. The autopsy revealed that Lytle had suffered the following wounds: (1) a cut on the left forearm, 2 centimeters in length; (2) a cut at the left armpit on the interior axillary fold which was 2.2 centimeters in length and 1.8 centimeters in width; (3) a wound in the lower abdomen described as an irregularity at the lower end of a surgical incision, beneath which there was a severed rib; and (4) a wound in the upper abdomen which was 2.2 centimeters in length, 10 centimeters in depth and had penetrated the victim's heart. Dr. Biggers testified that Lytle had died as a result of a loss of blood due to a stab wound to the left side of the heart.
The defendant's evidence presented at trial tended to show, inter alia, the following. The defendant presented Latonda Whitmire as an alibi witness. Whitmire testified that she had spoken to the defendant at "Crankshaft's" home at Hillcrest at approximately 5:00 a.m. on 8 April 1991. Whitmire stated that she had conversed with the defendant while he was upstairs and she was downstairs. Whitmire went outside and waited for the defendant because he owed her husband some money. While waiting for the defendant, Whitmire heard the ambulance arrive to assist the victim, Lewis Lytle. The defendant also presented several witnesses in an effort to impeach the credibility of Gladys Brown.
Other evidence introduced at trial is discussed at other points in this opinion where pertinent to the issues raised by the defendant.
By his first assignment of error, the defendant contends that the trial court erred in denying his motion to dismiss the first-degree murder charge at the conclusion of *13 all of the evidence. Specifically, the defendant contends that the trial court erred by submitting the first-degree murder charge to the jury because the evidence introduced at trial would not support any reasonable finding that he intentionally killed the victim after premeditation and deliberation.
In ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each element of the offense charged. E.g., State v. McPhail, 329 N.C. 636, 406 S.E.2d 591 (1991); State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991); State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). In making its determination, the trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984).
Premeditation and deliberation are usually proved by circumstantial evidence because they are mental processes that ordinarily are not readily susceptible to proof by direct evidence. State v. Richardson, 328 N.C. 505, 402 S.E.2d 401 (1991). On many occasions, this Court has enumerated some of the circumstances which tend to support a proper inference of premeditation and deliberation. See, e.g., State v. Thomas, 332 N.C. 544, 423 S.E.2d 75 (1992); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984). Among these are at least two circumstances that are directly applicable in this case: (1) the nature and number of the victim's wounds, and (2) the conduct and statements of the defendant before and after the killing.
Evidence of the nature and number of the victim's wounds in the present case provides substantial evidence from which the jury could properly infer that the defendant premeditated and deliberated before killing the victim. In State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384 (1987), we held that there was sufficient evidence from which the jury could properly have inferred premeditation and deliberation, where the evidence showed that the killing was accomplished by stabbing the victim through the neck, partially removing the knife, and then plunging it home again. In State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986), this Court held that there was sufficient evidence from which the jury could properly have inferred premeditation and deliberation where there were multiple stab wounds, including two wounds to the chest, one of which hit the deceased's heart. Similarly, the deceased in the present case suffered four stab wounds, including a wound to his upper abdomen which pierced his heart and a wound to his lower abdomen which severed a rib. This evidence is substantial evidence tending to show that the defendant premeditated and deliberated.
In addition, evidence of the defendant's actions before the killing was substantial evidence supporting a proper inference of premeditation and deliberation. In State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1991), we stated that evidence tending to show that the defendant was carrying a gun supported an inference that he had anticipated a possible confrontation and given some forethought to how he would deal with a confrontation. Similarly, in this case, the fact that the defendant was carrying a knife was evidence tending to support an inference that he had anticipated a possible confrontation with the victim and that he had given some forethought to how he would resolve that confrontation.
We conclude that there was sufficient substantial evidence of premeditation and deliberation to support the trial court's denial of the defendant's motion to dismiss at the conclusion of all of the evidence. The trial court did not err in permitting the jury to consider a possible verdict of first-degree murder based upon the theory that the defendant killed the victim after premeditation and deliberation. Accordingly, this assignment of error is without merit.
By his next assignment of error, the defendant contends that the trial court erred in denying his request to instruct the jury on a possible verdict of voluntary manslaughter. *14 Instead, the trial court instructed the jury on possible verdicts finding the defendant guilty of first-degree murder, guilty of second-degree murder or not guilty.
When the jury is instructed on possible verdicts for first-degree murder and second-degree murder and the jury convicts on the basis of first-degree murder, any failure to instruct on a possible verdict for manslaughter cannot be harmful to the defendant. State v. Young, 324 N.C. 489, 380 S.E.2d 94 (1989); State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969). In the present case, the trial court instructed the jury on first-degree murder and second-degree murder, and the jury convicted the defendant of first-degree murder. Assuming arguendo that the trial court erred in failing to instruct on manslaughter, any error was harmless. Accordingly, this assignment of error is overruled.
By his next assignment of error, the defendant contends that the trial court erred in failing to declare a mistrial as a result of the prosecutor's improper closing argument. The trial court sustained the defendant's objection to the prosecutor's argument in question and instructed the jury to disregard the argument. The defendant did not make a motion for a mistrial. "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make...." N.C.R.App.P. 10(b)(1). Since the defendant made no motion for a mistrial in the trial court, this issue is not properly before this Court. In any event, the trial court instructed the jury to disregard the improper argument, and the law assumes that the jury did so. State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988); State v. Walker, 319 N.C. 651, 356 S.E.2d 344 (1987). This assignment of error is overruled.
By his next assignment of error, the defendant contends that the trial court erred in denying his motion for appropriate relief, in which he alleged that he had been denied effective assistance of counsel in violation of his state and federal constitutional rights. The defendant was convicted of first-degree murder and sentenced to life imprisonment on 26 March 1992. On that same day, the defendant entered notice of appeal to this Court. On 10 August 1992, the defendant filed a motion for appropriate relief in the Superior Court, Buncombe County. This motion was denied by order of the Honorable C. Walter Allen, Superior Court Judge, on 14 August 1992.
Pursuant to N.C.G.S. § 15A-1415(b)(3), a defendant may make a motion for appropriate relief more than ten days after entry of judgment on the ground that he received ineffective assistance of counsel in violation of his state and federal constitutional rights. N.C.G.S. § 15A-1415(b)(3) (1988). However, "[w]hen a case is in the appellate division for review, a motion for appropriate relief based upon grounds set out in G.S. 15A-1415 must be made in the appellate division." N.C.G.S. § 15A-1418(a) (1988). In the present case, once the defendant entered notice of appeal to this Court on 26 March 1992, the Superior Court no longer had jurisdiction and could not consider the defendant's motion for appropriate relief. See id. Therefore, we affirm the trial court's denial of the defendant's motion for appropriate relief on jurisdictional grounds, without prejudice to the defendant's right to file a motion for appropriate relief in the Superior Court on this issue after this opinion has been filed and certified. Accordingly, this assignment of error is overruled.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005290/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6471
MICHAEL J. SINDRAM,
Plaintiff - Appellant,
versus
J. M. VANYUR, Warden,
Defendant - Appellee.
No. 01-6787
MICHAEL J. SINDRAM,
Plaintiff - Appellant,
versus
J. M. VANYUR, Warden,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. Malcolm J. Howard, District
Judge. (CA-98-857-5-H)
Submitted: September 6, 2001 Decided: September 13, 2001
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael J. Sindram, Appellant Pro Se. Jerri Ulrica Dunston, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In these consolidated appeals, Michael J. Sindram appeals from
the district court’s orders and judgment granting summary judgment
to John M. Vanyur and dismissing his civil rights complaint and
denying his motion for reconsideration. We have reviewed the rec-
ord and the district court’s orders and find no reversible error.
Accordingly, we affirm on the reasoning of the district court. See
Sindram v. Vanyur, No. CA-98-857-5-H (E.D.N.C. Mar. 1, 2001 & Apr.
3, 2001). We deny Sindram’s motion for appointment of counsel. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265136/ | 185 Cal. App. 4th 1515 (2010)
PENNSYLVANIA GENERAL INSURANCE COMPANY, Plaintiff and Appellant,
v.
AMERICAN SAFETY INDEMNITY COMPANY, Defendant, Cross-complainant and Appellant;
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Cross-defendant and Respondent.
No. D054522.
Court of Appeals of California, Fourth District, Division One.
June 3, 2010.
*1518 Wolkin Curran, Brandt L. Wolkin and Dawn A. Silberstein for Plaintiff and Appellant.
Blau & Associates, David S. Blau, David M. Morrow and James Whitemyer for Defendant, Cross-complainant and Appellant.
Branson, Brinkop, Griffith & Strong, John H. Podesta, John R. Campo and Geoffrey Hutchinson for Cross-defendant and Respondent.
OPINION
McDONALD, J.
D. A. Whitacre Construction, Inc. (Whitacre), a framing subcontractor on a construction project, was insured under a commercial general liability (CGL) insurance policy issued by plaintiff Pennsylvania General Insurance Company (Pennsylvania General) for the period October 1998 through December 2001. While insured by Pennsylvania General, Whitacre entered into a subcontract to perform work on a project and completed that work. At the conclusion of Pennsylvania General's coverage period, and after Whitacre's work on the project was completed, Whitacre was insured by a CGL policy issued by defendant American Safety Indemnity Company (ASIC), for the period December 2001 through December 2002.[1]
In an ensuing construction defect lawsuit involving Whitacre (the construction defect litigation), various parties alleged that Whitacre's work on the project was improperly done and had created various problems with the project. Whitacre tendered its defense to both Pennsylvania General and ASIC. Pennsylvania General accepted Whitacre's tender of the defense under a reservation of rights and ultimately paid the defense and settlement costs for Whitacre. ASIC declined Whitacre's tender, asserting there was no possibility of coverage under its policy, and did not participate in defending or indemnifying Whitacre.
After the underlying construction defect litigation was settled, Pennsylvania General filed the present lawsuit against ASIC seeking equitable contribution from ASIC for a portion of the defense and indemnity costs paid by Pennsylvania General. The trial court, ruling on cross-motions for summary judgment, concluded ASIC had no responsibility to pay any portion of the *1519 defense or indemnity costs because there was no potential coverage under ASIC's policy for the claims asserted against Whitacre in the construction defect litigation and entered summary judgment for ASIC. Pennsylvania General timely appealed.
I
FACTUAL BACKGROUND
A. The Involved Entities
Whitacre was a framing subcontractor. Pennsylvania General insured Whitacre under a CGL policy for the period October 7, 1998, through December 31, 2001. ASIC insured Whitacre under a CGL policy for the period December 31, 2001, through December 31, 2002. National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National), a cross-defendant, insured Whitacre under a CGL policy for the period December 31, 2002, through October 1, 2005.
B. The Project
In the summer of 1999 an entity known as "900 F Street Partners" (owners) retained GAFCON/Taylor Ball, Joint Venture (GAFCON) as general contractor for a construction project. In December 1999, GAFCON entered into a subcontract with Whitacre pursuant to which Whitacre agreed to provide framing and rough carpentry work for the project. Whitacre substantially completed its work by June 2001, although it performed some punch list work after June 2001. The final inspection notice for the entire project was issued in March 2002.
C. The Third Party Lawsuits
In the construction defect litigation, involving a series of lawsuits commenced in April 2002 that ultimately consolidated, owners alleged there were numerous problems in the construction of the project. Among the claims asserted in the construction defect litigation was the allegation that Whitacre's work was deficient and had caused damage to the project.[2]
*1520 D. The Defense and Settlement
Whitacre tendered the defense of the construction defect litigation to numerous insurers, including Pennsylvania General and ASIC. Pennsylvania General accepted the tender of the defense for Whitacre as well as for GAFCON as an additional insured under the policy under a reservation of rights.[3] ASIC declined Whitacre's tender of the defense (as well as GAFCON's tender of the defense as an additional insured under the ASIC policy), asserting various provisions of its policy excluded coverage for the claims asserted in the construction defect litigation, including a "pre-existing damage" exclusion in ASIC's policy.
Pennsylvania General funded the defense of Whitacre and GAFCON in the construction defect litigation and paid about $780,000 as defense costs. Pennsylvania General and its assignor paid an additional $775,000 to settle the claims asserted in the construction defect litigation against its insureds.[4]
II
THE PRESENT ACTION
Pennsylvania General filed the present action seeking declaratory relief and equitable contribution from ASIC, asserting ASIC's policy provided coverage for some or all of the damages sought against Whitacre in the construction defect litigation and therefore ASIC should be required to contribute to the defense and settlement costs paid by Pennsylvania General. ASIC's answer denied its policy provided any potential for coverage and therefore asserted it owed no defense or indemnity obligations to Whitacre. ASIC filed a cross-complaint against a subsequent insurer (National) asserting that, if ASIC owed any obligation to share in the costs of defending and indemnifying Whitacre, it was entitled to equitable contribution from National as another insurer that also owed defense or indemnity obligations to Whitacre.
*1521 All parties filed motions seeking summary judgment.[5] ASIC argued it was entitled to summary judgment because its policy covered only damages caused by an occurrence during the term of the policy, and expressly excluded coverage for any loss that first manifested before the term of its policy. ASIC argued that because its policy contained language eliminating any potential coverage under the "progressive damage-continuous trigger" of Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal. 4th 645 [42 Cal. Rptr. 2d 324, 913 P.2d 878] (Montrose), it could not have an obligation to defend and indemnify Whitacre concurrent with any defense and indemnification by any prior insurer for Whitacre, and the absence of any possible concurrent obligation shared with Pennsylvania General precluded Pennsylvania General's claim for equitable contribution. Pennsylvania General opposed ASIC's motion, arguing that because there was potential coverage under both ASIC's policy and Pennsylvania General's policy, it was entitled to contribution from ASIC for the defense costs and was presumptively entitled to contribution for the settlement costs.
Pennsylvania General's cross-motion for summary judgment interposed the same arguments: there was at least a potential for coverage under ASIC's policy for the claims asserted in the construction defect litigation; this potential coverage entitled Pennsylvania General (as another insurer that honored its obligation to provide a defense to Whitacre) to require ASIC to contribute to the defense costs under equitable contribution principles; and ASIC was presumptively liable to contribute to the settlement costs. ASIC's opposition to Pennsylvania General's motion asserted there was no potential for coverage under its policy, and therefore no duty to defend or indemnify, because ASIC's policy contained language excluding coverage for any occurrence that happened before the effective date of its policy. ASIC argued the term "occurrence" employed in ASIC's policy expressly and unambiguously referred to the underlying conduct that caused the resulting damage, rather than to the damage resulting from that conduct, and it was undisputed Whitacre's conduct was completed before the effective date of ASIC's policy. ASIC therefore argued there was no potential for coverage under ASIC's policy, regardless of when the damage resulting from Whitacre's conduct may have occurred, because all of Whitacre's work (the causal conduct) was completed prior to ASIC's policy period; ASIC's definition of "occurrence" did not suggest damage resulting from that conduct was germane to determining when there was an occurrence.
*1522 The trial court granted ASIC's motion for summary judgment and denied Pennsylvania General's motion for summary judgment, concluding ASIC's policy excluded coverage for the claims asserted against Whitacre in the construction defect litigation because Whitacre's work was completed before the inception of ASIC's policy. The trial court reasoned that under ASIC's CGL policy: "The terms `occurrence' and `property damage' are distinctly defined and are not synonymous. In evaluating the trigger of coverage in the policies, there are two separate triggers, `occurrence' and `property damage' which are not the same, in light of the fact that `property damage' is caused by an `occurrence.' [Citations.] An occurrence is a causal event. [Citation.] [¶] . . . [ASIC's] policy requires that . . . the occurrence [both] . . . `happen during the term of the insurance' . . . and cause property damage during the policy period. It also excludes a prior `occurrence' . . . . [¶] . . . [¶] In the context of the underlying action, the Court finds that the `occurrence' (the act causing the injury/damage), here the defective framing work performed by Whitacre, could arise no later than the time Whitacre's framing work on the project was completed. The undisputed evidence establishes that Whitacre's work was completed by June of 2001. . . . Therefore, the evidence establishes that the `occurrence' commenced during [Pennsylvania General's] policy period, which was prior to the inception of [ASIC's] policy."
The trial court therefore entered summary judgment in favor of ASIC, and against Pennsylvania General.[6]
*1523 III
APPLICABLE LEGAL PRINCIPLES
A. Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 334 [100 Cal. Rptr. 2d 352, 8 P.3d 1089]; see Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 767 [107 Cal. Rptr. 2d 617, 23 P.3d 1143].) "[W]e exercise `an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] `. . . [W]e construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.'" (Seo v. All-Makes Overhead Doors (2002) 97 Cal. App. 4th 1193, 1201-1202 [119 Cal. Rptr. 2d 160].)
B. Interpreting Insurance Contracts
The order granting summary judgment turned principally on the trial court's interpretation of ASIC's CGL policy. The legal principles applicable to interpreting insurance policies, which we apply de novo on appeal (Standard Fire Ins. Co. v. Spectrum Community Assn. (2006) 141 Cal. App. 4th 1117, 1124 [46 Cal. Rptr. 3d 804]), are established. The Supreme Court in Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal. 4th 377, 390-391 [33 Cal. Rptr. 3d 562, 118 P.3d 589] summarized those principles as follows:
"`When determining whether a particular policy provides a potential for coverage . . ., we are guided by the principle that interpretation of an insurance policy is a question of law. [Citation.]' [Citation.] [¶] `The insurer is entitled to summary adjudication that no potential for indemnity exists . . . if the evidence establishes as a matter of law that there is no coverage. [Citation.] We apply a de novo standard of review to an order granting summary judgment when, on undisputed facts, the order is based on the interpretation or application of the terms of an insurance policy.' [Citations.]
(1) "In reviewing de novo a superior court's summary adjudication order in a dispute over the interpretation of the provisions of a policy of insurance, the reviewing court applies settled rules governing the interpretation of insurance contracts. We reiterated those rules in our decision in *1524 [Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal. 4th 857 [77 Cal. Rptr. 2d 107, 959 P.2d 265]]: [¶] `"While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply." [Citations.] "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties." [Citation.] "Such intent is to be inferred, if possible, solely from the written provisions of the contract." [Citation.] "If contractual language is clear and explicit, it governs." [Citation.]' [(Quoting Foster-Gardner, supra, at p. 868.)]
(2) "`"A policy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable." [Citations.] The fact that a term is not defined in the policies does not make it ambiguous. [Citations.] Nor does "[d]isagreement concerning the meaning of a phrase," or "`the fact that a word or phrase isolated from its context is susceptible of more than one meaning.'" [Citation.] "`[L]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.'" [Citation.] "If an asserted ambiguity is not eliminated by the language and context of the policy, courts then invoke the principle that ambiguities are generally construed against the party who caused the uncertainty to exist (i.e., the insurer) in order to protect the insured's reasonable expectation of coverage." [Citation.]' [(Quoting Foster-Gardner, supra, 18 Cal.4th at p. 868.)] [¶] . . . [S]tandard form policy provisions are interpreted under the same rules of construction. `"[W]hen they are examined solely on a form, i.e., apart from any actual agreement between a given insurer and a given insured, the rules stated above apply mutatis mutandis. That is to say, where it is clear, the language must be read accordingly, and where it is not, in the sense that satisfies the hypothetical insured's objectively reasonable expectations."'"
C. The Relevant Policy Provisions
Because our analysis begins with an examination of the relevant policy provisions, rather than on general rules that may not necessarily be responsive to the policy language (Harbor Ins. Co. v. Central National Ins. Co. (1985) 165 Cal. App. 3d 1029, 1034-1035 [211 Cal. Rptr. 902]), we examine the language employed by ASIC in its CGL policy.
ASIC's CGL policy provided it would indemnify Whitacre for any amount Whitacre became obligated to pay as "`property damage' to which this insurance applies," and specified that "[t]his insurance applies to . . . `property damage' only if: [¶] (1) The . . . `property damage' is caused by an `occurrence' that takes place in the `coverage territory'; and [¶] (2) The . . . *1525 `property damage' occurs during the policy period." (CGL policy, § I, coverage A, ¶ 1(a) & (b).) ASIC's CGL policy provided a "per occurrence" limit of $1 million, and provided a "Products/Completed Operations" aggregate limit of $1 million.
ASIC's CGL policy also contained two 1999 endorsements that modified the standard policy provisions. The standard definition of "occurrence" contained in the 1997 version of the CGL policy[7] was replaced by ASIC's 1999 endorsement that refined the definition of "occurrence" by adding the following italicized language: "`Occurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions that happens during the term of this insurance. `Property damage'.. . which commenced prior to the effective date of this insurance will be deemed to have happened prior to, and not during, the term of this insurance." (Italics added.)
At the same time, ASIC added another 1999 endorsement, entitled "PRE-EXISTING INJURY OR DAMAGE EXCLUSION," which stated: "This insurance does not apply to: [¶] 1. Any `occurrence', incident or `suit' . . . [¶] [(a)] which first occurred prior to the inception date of this policy . . .; or [¶] [(b)] which is, or is alleged to be, in the process of occurring as of the inception date of this policy . . . even if the `occurrence' continues during this policy period."
D. Analysis of Summary Judgment Order
The pivotal issue is whether the terms of ASIC's CGL policy clearly and unambiguously provide that two separate "triggers of coverage"[8]i.e., the causal acts by Whitacre and the commencement of damages resulting from those actsmust happen during the effective date of the policy before a potential for coverage exists. ASIC's interpretation of its CGL policy rests on the assertion that its CGL policy distinctly defined (and differentiated between) the terms "occurrence" and "property damage" and did not incorporate property damage as a defining characteristic of an "occurrence." ASIC argues there are therefore two separate triggers of coveragean "occurrence" and "property damage"and the former is the causal event or conduct that *1526 produced the latter. Accordingly, ASIC asserts that because the 1999 endorsement requires the occurrence to have "happen[ed] during the term of th[e] insurance" as well as have caused property damage during the policy period, there was no potential for coverage because the undisputed facts show Whitacre's causal conduct did not happen during the term of ASIC's policy. Because the trial court's ruling was premised on its determination that ASIC's CGL policy required the causal acts to happen during the policy period, our focus is on that determination.[9]
(3) The courts have repeatedly confronted insurance policies that have insured against an occurrence and that employed language defining the term "occurrence" to mean "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." In a series of cases, those courts have concluded that "the time of occurrence of an accident within the meaning of an insurance policy is the time the complaining party was damaged, not the time the wrongful act was committed." (Hallmark Ins. Co. v. Superior Court (1988) 201 Cal. App. 3d 1014, 1018 [247 Cal. Rptr. 638]; accord, Remmer v. Glens Falls Indem. Co. (1956) 140 Cal. App. 2d 84, 88 [295 P.2d 19]; Standard Fire Ins. Co. v. Spectrum Community Assn., supra, 141 Cal.App.4th at p. 1127.) Accordingly, the ordinary trigger of coverage would focus on when damage was inflicted, not on when the causal acts were committed, and we must determine whether ASIC's addition of the italicized language to its policy definition of "occurrence" (as something that "happens during the term of this insurance. `Property damage' . . . which commenced prior to the effective date of this insurance will be deemed to have happened prior to, and not during, the term of this insurance") unambiguously altered the ordinary trigger of coverage by requiring the causal acts to be committed (as well as the resulting damage to first arise) during the policy period.
(4) We conclude ASIC's CGL policy, read as a whole, remains reasonably susceptible to the interpretation that resulting damage, not the causal conduct, is still a defining characteristic of the occurrence that must take place during the policy period to create coverage. When construing an insurance policy, we must resolve ambiguities in coverage clauses most *1527 broadly in favor of coverage, and we concomitantly must narrowly construe exclusions and limitations on coverage. (Atlantic Mutual Ins. Co. v. Ruiz (2004) 123 Cal. App. 4th 1197, 1208 [20 Cal. Rptr. 3d 628].) A policy provision is ambiguous when it is capable of two or more constructions, both of which are reasonable. (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal. 4th 854, 867 [21 Cal. Rptr. 2d 691, 855 P.2d 1263].) Here, the 1999 endorsement adding the italicized language to the definition of "occurrence" does not clearly and unambiguously limit coverage to those claims in which the causal acts took place during the policy period. (See Smith Kandal Real Estate v. Continental Casualty Co. (1998) 67 Cal. App. 4th 406, 414 [79 Cal. Rptr. 2d 52] [although insurer may select risks it will insure "an exclusion or limitation on coverage must be clearly stated and will be strictly construed against the insurer. If an exclusion ambiguously lends itself to two or more reasonable constructions, the ambiguity will be resolved against the insurer and in favor of coverage."].) The italicized language read as a whole (see Industrial Indemnity Co. v. Apple Computer, Inc. (1999) 79 Cal. App. 4th 817, 826 [95 Cal. Rptr. 2d 528]) is at least equally susceptible to the interpretation that resulting damage is the defining characteristic of the occurrence. The newly added language, after stating that the occurrence' must "happen[] during the term of this insurance," then immediately expands upon and refines the definition by explaining what would be deemed not to have constituted an "`[o]ccurrence' . . . that happens during the term of this insurance." The endorsement explains that "`[p]roperty damage' . . . which commenced prior to the effective date of this insurance will be deemed to have happened prior to, and not during, the term of this insurance." (Italics added.) Thus, the newly minted language of the 1999 endorsement lends itself to the interpretation that what must occur to qualify as an occurrence is property damage during the term of the policy, and there is nothing in the newly minted 1999 language clearly stating the causal conduct must also occur during the policy period.
Additionally, ASIC's other 1999 endorsement buttresses the interpretation that ASIC's CGL policy employed the term "occurrence" to refer to the damage, not to the causal acts that produced the damage. ASIC's other 1999 endorsement states the insurance would not apply to "[a]ny `occurrence' . . . [¶] . . . which first occurred prior to the inception date of this policy . . .; or [¶] . . . which is, or is alleged to be, in the process of occurring as of the inception date of this policy . . . even if the `occurrence' continues during this policy period." That language is found under the heading "PRE-EXISTING INJURY OR DAMAGE EXCLUSION," not "Pre-Existing Causal Conduct Exclusion," which supports the interpretation that the term "occurrence" (and that which ASIC will exclude from coverage if it first happened before the inception date of ASIC's policy) refers to the "injury or damage" resulting from the conduct, not the causal conduct itself.
*1528 ASIC argues, however, that (1) its policy language clearly differentiates between the concept of "occurrence" from the property damage resulting from the occurrence, and (2) courts have construed the term "occurrence" as referring to the underlying causal conduct rather than the resulting property damage. From these predicates, ASIC asserts that its 1999 endorsement, by employing language that required the occurrence to "happen[] during the term of this insurance," clearly and unambiguously excludes coverage where the causal conduct takes place before the inception of the policy regardless of when the resulting damage first occurs. We are not persuaded by either ASIC's policy language argument or by the case law relied on by ASIC.
ASIC's policy language argument rests on its quote from the policy stating that the insurance applies to property damage only if the "`property damage' is caused by an `occurrence.'"[10] This partial quote from the policy, ASIC asserts, demonstrates that property damage is separate from and not an element of the definition of an occurrence. However, ASIC's interpretation rests on a partial quote that has been shorn from the language (represented by the italics) explaining that its CGL has territorial limitations. The full quotethat the insurance only applies to "`property damage' . . . caused by an `occurrence' that takes place in the `coverage territory'" (CGL policy, § I, Coverage A, ¶ 1(a) & (b), italics added)is at least equally susceptible to the interpretation that the quoted language was designed to impose territorial requirements on coverage (e.g., that the insurance only applies to "`property damage' . . . that takes place in the `coverage territory'"), and was not designed to redefine the term "occurrence" as limited to the causal conduct leading to the covered damage.
(5) ASIC's case law argument is also unconvincing. ASIC cites several cases, including EOTT Energy Corp. v. Storebrand Internat. Ins. Co. (1996) 45 Cal. App. 4th 565 [52 Cal. Rptr. 2d 894] and Chemstar, Inc. v. Liberty Mut. Ins. Co. (C.D.Cal. 1992) 797 F. Supp. 1541, for the proposition that an insurance policy's use of the term "`[o]ccurrence' refers to the underlying cause of injury, rather than the injury or claim itself." (Travelers Cas. and Sur. Co. v. American Internat. Surplus Lines Ins. Co. (S.D.Cal. 2006) 465 F. Supp. 2d 1005, 1020 [relying on Whittaker Corp. v. Allianz *1529 Underwriters, Inc. (1992) 11 Cal. App. 4th 1236 [14 Cal. Rptr. 2d 659]].) However, the cited cases address the distinct question of how to construe the term "occurrence" in the context of determining how to apply the policy's "per occurrence limits" (Chemstar, at p. 1546) or a policy's per occurrence deductibles (see EOTT Energy Corp., at pp. 574-578; cf. Travelers, at p. 1020 [construing occurrence for purposes of self-insured retention]), not in the context of determining (as here) whether the trigger for coverage had happened within the policy period. In Whittaker Corp., the court explained that although the courts had applied divergent interpretations to the term "occurrence" (i.e., as meaning when the damage happened rather than when the causal conduct happened), those interpretations were not inconsistent, because the term "occurrence" can involve: "two distinct questions. The issue here is whether there was a covered injury within the policy period [and the insured] erroneously attempts to apply case law relating to the `per occurrence' limitation of liability for a covered injury. [¶] ... [¶] For the purpose of determining whether there was coverage within the policy period, it is well established that the time of the relevant `occurrence' or `accident' is not when the wrongful act was committed but when the complaining party was actually damaged. [Citations.] ... [¶] [The insured] misplaces reliance upon cases interpreting `occurrence' for the purpose of an insurer's limitation of liability to a certain amount for each covered occurrence. For that purpose, occurrence has generally been held to mean the underlying cause of the injury, rather than the injury or claim itself; otherwise, the insurer's effort to limit its liability per occurrence would be substantially weakened. [¶] The number of relevant occurrences for the purpose of interpreting the per occurrence limitation of liability is different from the question of when the relevant occurrence happens for the purpose of determining if there is coverage at all, or whether coverage should be allocated to a particular policy period.... [¶] ... Appalachian Ins. Co. v. Liberty Mut. Ins. Co. [(3d Cir. 1982) 676 F.2d 56, 61-62] also explains this distinction. For the purpose of interpreting the per occurrence $25,000 deductible, the court looked to the underlying proximate cause. [Citation.] (6) For the distinct purpose, however, of determining whether the occurrence took place within the policy period, the court said, `[w]hile the "cause" test is appropriate for determining whether there is a single occurrence or multiple occurrences, it is not applicable in determining when an occurrence takes place. We hold that the determination of when an occurrence happens must be made by reference to the time when the injurious effects of the occurrence took place. "There can be no question but that the aspect of the occurrence which must take place within the policy period ... is the `result,' that is, the time when the accident or injurious exposure produces personal injury."' (Id. at pp. 61-62.)" (Whittaker Corp. v. Allianz Underwriters, Inc., supra, 11 Cal.App.4th at pp. 1241-1243, fns. omitted.)
*1530 The reasoning of Whittaker, as well as numerous other cases (see, e.g., Michigan Chemical Corp. v. American Home Assur. Co. (6th Cir. 1984) 728 F.2d 374, 379), persuades us that the fact some courts (addressing different issues) have interpreted the term "occurrence" to focus on the causal conduct is irrelevant to the distinct question presented herewhether the "occurrence," which must happen during the policy year to trigger coverage under ASIC's policy, is the first manifestation of damage rather than Whitacre's causal conduct. Accordingly, ASIC's cited cases do not control whether the term "occurrence" in ASIC's policy refers to causal conduct rather than to the resulting damage.[11]
ASIC cites one caseUSF Ins. Co. v. Clarendon America Ins. Co. (C.D.Cal. 2006) 452 F. Supp. 2d 972 (USF)that appears to state the term "occurrence" as used in the insurer's policy should be construed to require the insured's causal conduct (not the resulting damage to the project) to happen during the term of the policy to trigger coverage.[12] However, we are unconvinced USF supports the trial court's order in this case. In USF, an insurer under a CGL policy filed suit seeking contribution from another insurer, Clarendon, alleging Clarendon had wrongfully refused to participate in defense and indemnity of the insured contractor in the underlying suit by homeowners for damages resulting from alleged construction defects. Clarendon's policies contained language analogous to that of ASIC's policy.[13] The plaintiff insurer asserted Clarendon had a duty both to participate in the defense and to contribute to indemnifying the insured. (USF, supra, 452 F.Supp.2d at pp. 983-984.)
*1531 The USF court first noted Clarendon's policies contained language conditioning coverage on the requirements that the property damage be caused by an occurrence "`which takes place during the policy period'" and that the property damage resulting from such occurrence "`first take[] place during the policy period.'" (USF, supra, 452 F.Supp.2d at p. 982.) Importantly, the USF court noted Clarendon's policies also contained a "`deemer clause'" providing that, "`All property damage or bodily injury arising from, caused by or contributed to by, or in consequence of an occurrence shall be deemed to take place at the time of the first such damage, even though the nature and extent of such damage or injury may change and even though the damage may be continuous, progressive, cumulative, changing or evolving ....'" (USF, supra, 452 F.Supp.2d at p. 987.) Clarendon argued it was clear under these coverage provisions that "occurrence" was not synonymous with "property damage" and that it referred to the cause of the property damage, which was the insured's purportedly negligent work or the exposure of its work to the elements, both of which happened before the inception of Clarendon's policy. Clarendon also argued it was clear the property damage caused by the insured's defective work first occurred before the inception of the policies. Accordingly, Clarendon argued it had no indemnity obligation because neither the accident constituting the occurrence nor the first instance of property damage caused by the occurrence took place within their policy periods. (Id. at pp. 987-988.)
Although the USF court did state that the language of the Clarendon policies "make[s] a clear distinction between the `occurrence,' which is the accident or exposure that causes damage to the claimant, and the resulting `physical damage'" (USF, supra, 452 F.Supp.2d at p. 989), this statement was dicta because the USF court held Clarendon had no indemnity because of when the damages first manifested. In USF, the plaintiff argued that because the damage was ongoing during the term of Clarendon's policies, Clarendon provided coverage under Montrose's "continuous trigger." Rejecting that argument, the USF court noted Clarendon's policies "contain contractual language that is different than that of the policies at issue in [Montrose]. In fact, as USF concedes, the coverage terms of defendants' Policies were revised in 1996 to `circumvent the continuous injury trigger of the coverage rule laid down' in [Montrose]." (USF, at p. 989.) Thus, the USF court held there was no indemnity obligation because the damages first manifested themselves before the inception of the Clarendon policies, not because the causal acts occurred before the inception of those policies. (USF, at pp. 990-991.)
*1532 Additionally, we note the USF decision undermines ASIC's arguments on a different issue involved in this action: equitable contribution for the defense costs. Although the USF court concluded there was no indemnity obligation (because it was undisputed damage first occurred before the inception of the Clarendon policies) it nevertheless concluded that, because "`at the time of tender, ... the Underlying Action did, in fact, present the possibility of damage within the coverage grant.'" (USF, supra, 452 F.Supp.2d at p. 994.) Because there was a potential for coverage, giving rise to a duty by Clarendon to defend the insured, the plaintiff insurer was entitled to seek equitable contribution for the defense costs. (Id. at pp. 994-1005.)
We agree with the USF court insofar as it concluded the proper interpretation of the language employed in ASIC's policy is that it was designed to "`circumvent the continuous injury trigger of the coverage rule laid down' in [Montrose]." (USF, supra, 452 F.Supp.2d at p. 989.) However, that construction means the appropriate focus for an occurrence is on when the damages caused by the negligent causal acts of the insured first commenced, and is not on when the insured completed its work. Here, the facts were disputed on when those damages first commenced (see fns. 2 & 3, ante) and the trial court's entry of summary judgment in favor of ASIC was based solely on its conclusion that there was no potential for coverage because Whitacre's causal acts happened before the inception of ASIC's policy. We conclude, however, the policy was reasonably susceptible to the interpretation that the trigger of coverage was not when the insured completed its work, but was instead based on when the damages caused by the negligent causal acts of the insured first commenced.
Our constructionthat a reasonable insured could conclude the purpose and effect of ASIC's 1999 policy endorsements was to obviate Montrose's continuous trigger approach rather than to exclude coverage if the injury-producing conduct preceded the inception of the policyis reinforced when considering the coverage afforded by ASIC's policy under the so-called "products-completed operations hazard." (Cf. Prudential Ins. Co. of America, Inc. v. Superior Court (2002) 98 Cal. App. 4th 585, 598-599 [119 Cal. Rptr. 2d 823] [interpretation of insurance policy focuses on language of policy as a layperson would understand it and provisions of policy must be construed within the context of the policy as a whole].) ASIC's products-completed operations hazard appears to employ standard language to promise the insured coverage against claims for property damage "arising out of ... `your work' except [for] [¶] ... [¶] [w]ork that has not yet been completed ...." This type of coverage ordinarily is conditioned on damage occurring during the policy period, as long as the work was completed before the damage occurred, and is not conditioned on when the work was completed. (See 3 Cal. Insurance Law & Practice (2010) Construction Insurance, § 37.05[7], pp. 37-19 to 37-20 (rel. 66-12/2009); Croskey et al., Cal. Practice Guide: *1533 Insurance Litigation (The Rutter Group 2009) ¶¶ 7:1428 to 7:1432, pp. 7E-24 to 7E-25 (rev. # 1, 2008).) The protection provided by this products-completed operations hazard appears to require three conditions: there was property damage, it arose "out of ... `your work,'" and "`your work'" has been completed. There is certainly nothing in the products-completed operations hazard that suggests the second elementthe insured's work caused the damagewas itself subject to a fourth condition that the insured's work happened during the policy period. Although ASIC argues this fourth condition (the insured's injury-causing work happened during the policy period) was clearly and unambiguously contained in ASIC's 1999 endorsement that refined the definition of "occurrence," as well as by its 1999 "PRE-EXISTING INJURY OR DAMAGE EXCLUSION" endorsement, we are not persuaded by ASIC's argument. Prior to the addition of ASIC's 1999 endorsements, ASIC's CGL provided separate definitions for the term "occurrence" (§ V., par. 13) and the term "your work" (§ V., par. 21). The 1999 endorsement, which refined the definition of "occurrence" as requiring the occurrence to "happen[] during the term of this insurance," did not similarly amend the definition of "your work" as requiring such work also "happen[] during the term of this insurance." Similarly, the "PRE-EXISTING INJURY OR DAMAGE EXCLUSION," which stated ASIC's insurance would not apply to any "`occurrence' ... [¶] ... which first occurred prior to the inception date of this policy," did not similarly state ASIC's CGL policy would not apply to any injury-producing "work" that happened prior to the inception date of this policy. The 1999 amendments to ASIC's policy do not clearly and unambiguously add, as a fourth condition to the protection provided under the products-completed operations hazard, the requirement that "your work" must have happened during the policy period.
ASIC's proffered constructionthat the terms "occurrence" and "your work" should be treated as synonymous and therefore simultaneously amended by the 1999 endorsementsignores that the original policy separately defined and employed those terms. However, the interpretation we adoptthe term "occurrence" refers to the damage and the term "your work" refers to the conduct that produced the injuryharmonizes and gives effect to how a reasonable insured could read ASIC's CGL policy provisions as modified by the 1999 endorsements: under the CGL policy provisions, the products-completed operations hazard protected against claims for property damages "arising out of ... `your work'" once that work was completed, regardless of when that work was completed, as long as (under the 1999 endorsements) the property damage (or occurrence) "happens during the term of this insurance" but cautioning "`[p]roperty damage' ... which commenced prior to the effective date of this insurance will be deemed to have happened prior to, and not during, the term of this insurance."
*1534 E. Conclusion
(7) We conclude that ASIC's CGL policy is reasonably susceptible to the interpretation that the trigger of coverage was damage to property, not the causal conduct, and the 1999 endorsements were merely designed to obviate the application of the "progressive damage-continuous trigger" articulated in Montrose. As we have previously noted, the facts here were disputed on when the damages sought in the construction defect litigation first commenced. Accordingly, it was error to grant summary judgment in ASIC's favor insofar as Pennsylvania General sought contribution for the indemnity payments, and it was also error to grant summary judgment in ASIC's favor insofar as the Pennsylvania General action sought equitable contribution for the defense costs paid in the underlying action.
DISPOSITION
The judgment is reversed. Pennsylvania General is entitled to its costs on appeal against ASIC. ASIC and National shall bear their own costs on appeal.
Benke, Acting P. J., and Irion, J., concurred.
NOTES
[1] ASIC provided Whitacre coverage for only one year. Thereafter, Whitacre was covered by a different CGL policy, issued by another insurer, that insured Whitacre for the period December 2002 through October 2005.
[2] Pennsylvania General and ASIC disputed whether the damages allegedly caused by Whitacre's work first manifested during Pennsylvania General's policy period. ASIC produced two letters from GAFCON's representative, written in the summer of 2001, informing Whitacre that the work performed by Whitacre was not acceptable, including concerns about ceiling deflection, walls that were not perpendicular to the floor, and window framing issues. However, Pennsylvania General presented evidence that these complaints were discussed between GAFCON and Whitacre and resolved because they agreed there was no damage to the project from Whitacre's work. It therefore appears there is a factual dispute over whether damages attributable to Whitacre's work first manifested themselves prior to the inception of ASIC's policy.
[3] Pennsylvania General's reservation of rights letter noted various exclusions that potentially could eliminate coverage for the claims asserted against Whitacre, including questions about whether the damages sought in the construction defect litigation occurred during Pennsylvania General's policy period.
[4] Pennsylvania General funded $200,000 of the settlement. An excess insurer paid the remaining $575,000 of the settlement, and later assigned its rights to Pennsylvania General to seek recovery of all or part of that amount from ASIC.
[5] Although the dispositive rulings on the various motions for summary judgment involved the motions made by Pennsylvania General and ASIC, National also moved for and obtained summary judgment in its favor. However, the order granting National's summary judgment motion was premised on the foundational ruling that, because ASIC was not liable to Pennsylvania General for contribution, ASIC could not establish the elements of a claim for contribution against National.
[6] The court also granted National's motion for summary judgment against ASIC. ASIC's claim against National for equitable contribution was dependent on the predicate determination that ASIC was liable to Pennsylvania General for some portion of the defense and/or settlement costs. Accordingly, after the court determined ASIC was not liable to Pennsylvania General, it determined ASIC could not maintain any claim against National, and therefore granted National's motion for summary judgment. Considering our determination that summary judgment in favor of ASIC was error, we must reverse the order in favor of National and remand for further proceedings on ASIC's cross-complaint against National. (Cf. Pfeiffer Venice Properties v. Bernard (2002) 101 Cal. App. 4th 211, 219 [123 Cal. Rptr. 2d 647].) Nothing in this opinion should be construed as resolving any of the substantive contentions arising out of ASIC's claims against National.
Additionally, we note that in the present appeal Pennsylvania General argues (and ASIC disputes) ASIC also is liable for contribution insofar as Pennsylvania General paid to defend and indemnify GAFCON as an additional insured. Although that claim was raised by Pennsylvania General in its summary judgment motion, it was not among the issues resolved by the trial court in connection with the ruling on ASIC's summary judgment motion, which is the only ruling before us in the current appeal. Accordingly, we express no opinion on this issue.
[7] The 1997 version of ASIC's CGL policy defined "occurrence" to mean "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
[8] "`[T]rigger of coverage' is a term of convenience used to describe that which, under the specific terms of an insurance policy, must happen in the policy period in order for the potential of coverage to arise. The issue is largely one of timingwhat must take place within the policy's effective dates for the potential of coverage to be `triggered'?" (Montrose, supra, 10 Cal.4th at p. 655, fn. 2.)
[9] The trial court also stated in its ruling that Pennsylvania General's April 13, 2005, reservation of rights letter, by which Pennsylvania General accepted Whitacre's tender of the defense, "likewise supports that there was an `occurrence' during [Pennsylvania General's] policy period," which necessarily excluded coverage under ASIC's 1999 "PRE-EXISTING INJURY OR DAMAGE EXCLUSION." On appeal, however, Pennsylvania General persuasively argues the statements in its reservation of rights letter were not an admission that there was in fact an occurrence for purposes of the trigger to coverage and, indeed, the letter specifically reserved its right to contest whether there was coverage. ASIC acknowledges the trial court's mention of the reservation of rights letter was incidental, and its ruling was not dependent on the letter. We agree this letter appears to be collateral to the central inquiry and therefore do not further consider this letter or the trial court's incidental reliance on it.
[10] ASIC's appellate brief, in an apparent attempt to buttress its contention that the occurrence is necessarily used to denote the causal conduct and not the distinct issue of the resulting damage, also appears to argue ASIC's CGL policy also uses the phrase "occurrence giving rise to the property damage." However, ASIC has not directed this court to the portion of the policy containing this phraseology, and we therefore do not further examine this aspect of ASIC's appellate argument. (Air Couriers Internat. v. Employment Development Dept. (2007) 150 Cal. App. 4th 923, 928 [59 Cal. Rptr. 3d 37] ["A party on appeal has the duty to support the arguments in the briefs by appropriate reference to the record, which includes providing exact page citations. We have no duty to search the record for evidence and may disregard any factual contention not supported by proper citations to the record."].)
[11] One of the cases cited by ASIC as supporting its interpretative gloss on the term "occurrence," Chemstar, Inc. v. Liberty Mut. Ins. Co., supra, 797 F. Supp. 1541, itself recognized that "defining `occurrence' for the purpose of applying per occurrence limits on [liability] [r]ather [than] determining whether property damage `occurred' during the policy periods of one or more insurers, thus triggering liability[,] ... are two distinct questions to which different rules apply." (Id. at p. 1547, fn. 11.)
[12] ASIC cites a second case, Clarendon America Ins. Co. v. Mt. Hawley Ins. Co. (C.D.Cal. 2008) 588 F. Supp. 2d 1101, in which the court stated that the "threshold question ... is whether the damages arising from DB's alleged defective construction work [were] covered by the Clarendon CGL policy. That in turn depends on whether the damages at issue were caused by acts of DB that occurred within Clarendon's policy period." (Id. at p. 1104.) However, that case does not quote the policy language the court construed when it concluded the policy required the causal acts to happen during the policy period, and is therefore not helpful in this case. In ASIC's supplemental briefing, it cites a second case (PMA Capital Ins. Co. v. American Safety Indem. Co. (E.D.Cal. Mar. 17, 2010, No. 2:08-CV-02258 JAM DAD) ___ F.Supp.2d ___) to support its argument. Although the trial court in PMA appears to have accepted an argument analogous to that asserted by ASIC here, it is unclear whether the trial court was required to evaluate arguments similar to those raised by Pennsylvania General in this case, and we are unpersuaded by the opinion in PMA.
[13] Clarendon's policy required that the property damage "`caused by an occurrence which takes place in the coverage territory,'" was "`caused by an occurrence which takes place during the policy period,'" and that the "`property damage resulting from such occurrence first takes place during the policy period.'" (USF, supra, 452 F.Supp.2d at p. 982, boldface omitted.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265140/ | 657 F. Supp. 1535 (1987)
Jessie Gail CLIFT, by Jane CLIFT, Administratrix of her Estate, Jane Clift, Robert Clift, Jr., William A. Clift, Barbara Clift Francis, and Mary Jane Clift Cole,
v.
Jaylon FINCANNON, Former Superintendent Fort Worth State School, Present Superintendent Austin State School, Arren C. Buchannan, M.D., Former Medical Director Fort Worth State School, Norman Read, M.D., Former Staff Physician Fort Worth State School, in their official and individual capacities; and State of Texas; Texas Department of Mental Health and Mental Retardation.
Civ. A. No. S-84-5-CA.
United States District Court, E.D. Texas, Sherman Division.
April 13, 1987.
*1536 *1537 *1538 Bryce J. Denny, Sherman, Tex., for plaintiffs.
Toni Hunter, Asst. Atty. Gen., State & County Affairs, Austin, Tex., for defendants.
MEMORANDUM OPINION AND ORDER
PAUL N. BROWN, District Judge.
This civil rights action arises from the death of Jessie Gail Clift on August 6, 1980, while committed to the care, custody and control of the Fort Worth State School. Suit is brought against the State of Texas, the Texas Department of Mental Health and Mental Retardation ("MHMR"), the Fort Worth State School, and against Jaylon Fincannon, Arren C. Buchannan, M.D., and Norman Read, M.D., in their individual and official capacities. Presently pending and under consideration is State Defendants' Motion for Summary Judgment and *1539 Individual Defendants' Motion for Summary Judgment.
Plaintiffs' First Amended Complaint ("the complaint") invokes the federal question jurisdiction of this Court under 28 U.S.C. § 1331 and seeks damages and declaratory relief. As a basis for invoking such jurisdiction the Plaintiffs have alleged causes of action under various federal statutes. Specifically, they allege causes of action under 42 U.S.C. §§ 1983,[1] 1985(3),[2] 6010,[3] 6011,[4] 6063[5] and 29 U.S.C. § 794.[6] At the outset it should be noted that while some of these statutes do create private causes of action for money damages, some create neither a private cause of action for money damages nor do they create any substantive rights.
In addition to the federal claims, Plaintiffs also assert pendent state-law claims. However, the disposition of the federal claims pretermits the need for reaching these claims.
Decedent Jessie Gail Clift was a handicapped quadriplegic who had been committed to the care and custody of the MHMR facilities in Fort Worth.[7] Plaintiffs allege that on or about August 6, 1980, Jessie Gail Clift, while being given a whirlpool bath by an employee of the Fort Worth State School, was left unattended, that this was negligence on the part of the named Defendants, and that as a result of such negligence decedent slipped under the water and drowned. Defendants dispute this allegation contending that Jessie Gail Clift died from acute respiratory failure due to aspiration of gastric contents.
Plaintiffs further allege that Jessie Gail Clift's death was attributable to misuse of drugs, failure to render adequate emergency treatment and failure to follow established emergency procedures prescribed by the Texas Mental Health Code.[8]
The complaint also alleges that Jessie Gail Clift suffered constitutional deprivations under the First, Fourth, Eighth, Ninth and Fourteenth Amendments by actions and/or inactions of the individually named Defendants in their capacity as state actors. None of these claims is alleged to have caused the death. These claims are discussed more fully below in conjunction with the section on qualified immunity.
STANDING
Plaintiffs include Jessie Gail Clift's estate; her mother, Jane Clift; her brothers, Robert Clift, Jr. and William A. Clift; and her sisters, Barbara Clift Francis and Mary Clift Cole. Initially, the Court is confronted with a standing issue which presents three related but separate questions: (1) whether § 1983 and/or § 1985(3) afford parents a cause of action for a wrongful killing of their child by a state actor; (2) whether § 1983 and/or § 1985(3) afford *1540 siblings a cause of action for a state actor's wrongful killing of one of their brothers or sisters; and (3) whether a § 1983 and/or § 1985(3) cause of action survive one's death?
The Reconstruction-era Civil Rights Acts, 42 U.S.C. § 1981 et seq., fail to specify many rules which are necessary in civil rights litigation. This is especially true with section 1983 cases because section 1983 does little more than create a cause of action. Congress meant for the statute to serve only that general function, however, and it indicated that intention by enacting 42 U.S.C. § 1988 (1982).[9] That statute purports to govern the choice of law analysis for determining the appropriate rule to be applied. Under section 1988, federal courts must undertake a three-step inquiry to determine whether to fill a deficiency in the Acts by borrowing a state rule: (1) the court must first determine if there is controlling federal law; (2) if not, then the court must consider application of the state common law, as modified by the constitution and statutes of the forum state; and (3) then the court must apply the state law so long as it is not inconsistent with the Constitution and the laws of the United States. Burnett v. Grattan, 468 U.S. 42, 104 S. Ct. 2924, 2928-29, 82 L. Ed. 2d 36 (1984).
The Court begins its analysis by undertaking the first step of the three-step inquiry. There is no controlling federal law with respect to the survivability of a § 1983 or § 1985(3) cause of action in favor of the decedent's parents, the decedent's siblings, or the decedent's estate. Therefore, the Court must undertake the second step of the three-step inquiry.
Under the second step of the three-step inquiry, the relevant sources of state law are the wrongful death and survival statutes.[10] In Texas, the nature of the cause of action determines which of the statutes control. A claim that involves damages personal to the plaintiff invokes a wrongful death claim. Section 71.004 of the Civil Practice and Remedies Code states that wrongful death claims are for the exclusive benefit of the surviving spouse, children, and parents of the deceased. Therefore, Jessie Gail Clift's brothers and sisters have no standing under the state law of Texas to bring claims in their own right. Although Jane Clift, the decedent's mother, has standing under § 71.004 to assert a wrongful death claim, the Code limits her claim to acts which caused Jessie Gail Clift's death by reason of the state actor's wrongful act, neglect, carelessness, unskillfulness, or default. V.T.C.A., Civil Practice & Remedies Code § 71.002.
A claim that involves damages personal to the decedent, on the other hand, is considered a survival action. State law on survival of actions provides in pertinent part: "[a] cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person.... *1541 A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person." V.T.C.A., Civil Practice & Remedies Code § 71.021.
In sum, application of state wrongful death law results in granting standing to decedent's mother while denying standing to her siblings; and application of state survival law results in granting standing to the heirs, legal representatives, and estate of Jessie Gail Clift to maintain actions on her behalf. The third step of the three-step inquiry requires this Court to determine whether application of the adopted state rules of law are inconsistent with the Constitution or laws of the United States.
"In resolving questions of inconsistency between state and federal law raised under § 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at `the policies expressed in [them].'" Robertson v. Wegmann, 436 U.S. 584, 98 S. Ct. 1991, 1995, 56 L. Ed. 2d 554 (1978) (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 406, 24 L. Ed. 2d 386 (1969)). The instant actions arise under 42 U.S.C. §§ 1983 and 1985(3). The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law. See, e.g., Monroe v. Pope, 365 U.S. 167, 81 S. Ct. 473, 476-484, 5 L. Ed. 2d 492 (1961). The policy underlying § 1985(3) is to provide a civil remedy for conspiracies directed at depriving a person, or class of persons, of equal protection of the laws, or of equal privileges and immunities under the laws, when there is some invidiously discriminatory animus behind the conspirator's action. Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 1797-98, 29 L. Ed. 2d 338 (1971). None of the policies behind these statutes is subverted by the adoption of the State of Texas survival or wrongful death law. "A state statute cannot be considered `inconsistent' with federal law merely because the statute causes [a] plaintiff to lose the litigation." Robertson v. Wegmann, supra, 98 S.Ct., at 1996. Moreover, "it defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that ... it meant to withdraw the protection of civil rights statutes against the peril of death." Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir.1961).
However, state law is inconsistent with federal law to the extent that it would permit recovery for actions which do not rise to the level of a constitutional deprivation. Section 1983 only provides a remedy for actions which deprive persons of federal rights. To the extent that state law is inconsistent with federal law, the federal law will be controlling.
ELEVENTH AMENDMENT IMMUNITY DEFENSE
The State Defendants[11] have raised the Eleventh Amendment defense. The Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar that the court must give it first consideration. Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S. Ct. 3304, 3314, n. 18, 73 L. Ed. 2d 1057 (1982). In fact, Eleventh Amendment sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III, § 2 of the United States Constitution. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 907, 79 L. Ed. 2d 67 (1984) (Pennhurst II). Moreover, the limitation deprives federal courts of any jurisdiction to entertain such claims, and thus may be raised at any point in a proceeding. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 351, 89 L. Ed. 389 (1945). When the defense is successfully asserted, the court is without subject-matter jurisdiction, Crane v. State of Tex., 759 F.2d 412, 415 (5th Cir.1985), and the proper disposition is an order of dismissal without prejudice. For these reasons the Court will consider State Defendants' motion as a motion to dismiss for lack of jurisdiction under Rule *1542 12(b)(1) of the Federal Rules of Civil Procedure.
The State of Texas has been sued as a named party defendant. The Eleventh Amendment denies federal courts jurisdiction over any action wherein a state is named as a defendant, and this jurisdictional bar applies unless the state has unequivocally consented to be sued in federal courts. McKay v. Boyd Const. Co., Inc., 769 F.2d 1084 (5th Cir.1985). The Court finds no waiver or consent to suit in federal courts by the State of Texas. The State of Texas has waived its common law sovereign immunity in regard to certain negligent acts, but a waiver of a state's immunity from suit in its own courts will not be inferred to extend to a waiver of its constitutional immunity from suit in federal courts. See, e.g., Florida Dept. of Hlth. v. Florida Nursing Home, 450 U.S. 147, 101 S. Ct. 1032, 1034, 67 L. Ed. 2d 132 (1981) (per curiam). "A State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." Pennhurst II, supra, 104 S.Ct., at 907. "[I]t is not consonant with our dual system for the Federal courts ... to read the consent to embrace Federal as well as state courts.... [A] clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found." Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S. Ct. 873, 877, 88 L. Ed. 1121 (1944). The State of Texas does not state such an intention in its statute which waives her immunity from suit for certain negligent acts. Therefore, the State of Texas has not consented to this suit.
However, "Congress may, in determining what is `appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 2671, 49 L. Ed. 2d 614 (1976). In order for Congress to abrogate Eleventh Amendment immunity the statute must indicate an "unequivocal expression of Congressional intent" to do so. Pennhurst II, supra, 104 S.Ct., at 907. Thus, three questions arise with respect to each federal statute asserted by Plaintiffs: (1) does the statute create a private cause of action; (2) was the statute enacted pursuant to the enforcement powers of Congress under section 5 of the Fourteenth Amendment; and (3) if so, did Congress intend to abrogate the Eleventh Amendment sovereign immunity?
Section 1983 is Plaintiffs' main vehicle for establishing jurisdiction and vindicating the alleged deprivation of federally protected rights. Plaintiffs seek damages through § 1983 to redress the deprivation, under color of state law, of rights accorded to them by the laws of the United States and the First, Fourth, Eighth, Ninth and Fourteenth Amendments to the Federal Constitution. Courts have long recognized that 42 U.S.C. § 1983 was enacted pursuant to Congress' enforcement powers under the Fourteenth Amendment and creates a private cause of action. However, the Supreme Court has definitively stated that § 1983 does not abrogate a State's Eleventh Amendment sovereign immunity. Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 1147, 59 L. Ed. 2d 358 (1979). Therefore, this Court need not reach the difficult issue of whether Plaintiffs' federally protected rights[12] have been infringed by the State of Texas. It is clear that all of their § 1983 claims seek to impose a liability which must be paid from public funds in the state treasury and are barred by Eleventh Amendment immunity from being asserted against the State of Texas in a federal court.
Although there is no similar pronouncement from the Supreme Court with regard to § 1985, it does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered *1543 and firmly decided to abrogate Eleventh Amendment immunity of the States.
The Supreme Court was presented with the question whether States are subject to suit in federal court by litigants seeking retroactive monetary relief under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in the case of Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985). The Court rejected the argument that § 794 abrogated constitutional sovereign immunity and stated that the provisions of the Act "fall far short of expressing an unequivocal congressional intent to abrogate the States' Eleventh Amendment immunity." Id., at 3150. Therefore, it is unnecessary for this Court to consider the first two prongs of the three-prong analysis; the Eleventh Amendment bars a suit against the State on the basis of § 794.
The three remaining statutes, i.e., 42 U.S.C. §§ 6010, 6011 and 6063, are part of the Developmentally Disabled Assistance and Bill of Rights Act of 1975. In Pennhurst State Sch. & Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981) (Pennhurst I), the Supreme Court held that § 6010 created no substantive rights. Id., 101 S.Ct., at 1536. The Court further stated: "Because we conclude that § 6010 confers no substantive rights, we need not reach the question whether there is a private cause of action under that section or under 42 U.S.C. § 1983 to enforce those rights." Id., 101 S.Ct., at 1545, n. 21. The same is true of the instant case; Plaintiffs fail to satisfy the first prong of the analysis. Therefore, their claim based on § 6010 is barred by the Eleventh Amendment.
Furthermore, after reviewing the purpose of the Act and several provisions therein, including §§ 6011 and 6063, the Court in Pennhurst I held that only one provision of the Act, i.e., § 6068, creates a cause of action. Id., 101 S.Ct., at 1538. That section provides a State, whose federal funds have been terminated or reduced by the Secretary of the Department of Health and Human Resources for failure to comply with the provisions of § 6063, with the right to appeal the Secretary's decision to the federal court of appeals. Here, Plaintiffs seek to recover retroactive monetary relief because of the Fort Worth State School's failure to comply with the terms of §§ 6011 and 6063. Because the Supreme Court has previously decided that there is only one cause of action provided in the Developmentally Disabled Assistance and Bill of Rights Act, and since Plaintiffs do not come under that particular section, it is clear that they have no cause of action against the State under §§ 6011 and 6063.
In sum, Plaintiffs have stated no claims against the State of Texas that are not barred by the Eleventh Amendment. The only remaining issue in regard to State Defendants' motion is whether MHMR, the Fort Worth State School and the officials in their official capacity are cloaked with the State's Eleventh Amendment sovereign immunity.
The Eleventh Amendment, enacted to protect state treasuries from suits by individuals, prohibits an award of damages which is in substance against the state. Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Because the Eleventh Amendment is informed by principles of federalism, Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 2573-2574, 57 L. Ed. 2d 522 (1978), it has been interpreted to restrict federal court jurisdiction in those cases in which the state is the real, substantial party in interest. Lincoln County v. Luning, 133 U.S. 529, 10 S. Ct. 363, 33 L. Ed. 766 (1890). For this reason, Eleventh Amendment immunity cannot be circumvented by suing a governmental unit or official, which stands in the shoes of the state. Edelman v. Jordan, supra, 94 S.Ct., at 1358; Downing v. Williams, 624 F.2d 612, 625 (5th Cir.1980). In determining whether an action against a governmental unit or an individual in his official capacity is really against the state, a court must examine the relationship and duties created by state law as to the institution or individual official involved to see whether Eleventh Amendment immunity exists. Hander v. San Jacinto Junior College, 519 F.2d 273 (5th Cir.1975). Although a federal court must look to state law to determine the true character of the relationship between the state and the institution *1544 or official, the final determination is a question of federal law. Id., at 279. If it is determined that MHMR is an "arm of the state" or its "alter ego", then the suit against MHMR, as well as the individual officials, is barred by the Eleventh Amendment because the action is in essence one for the recovery of money from the state. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 350, 89 L. Ed. 389 (1945). Therefore, it is necessary to determine whether MHMR is an arm of the State of Texas.
In Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir.1981), the Fifth Circuit concluded that Rusk State Hospital is an arm of the state for the purpose of Eleventh Amendment immunity. The Court reached this conclusion on the basis of the trial court's uncontested finding that Rusk State Hospital is a state institution under the exclusive control of MHMR. See Tex.Rev.Civ.Stat. article 5547-202, § 2.01. This holding necessarily implies that MHMR is an arm of the State of Texas, and subsequent Fifth Circuit cases have approvingly cited the Sessions court for this proposition. See Jacintoport Corp. v. Gr. Baton Rouge Port Com'n, 762 F.2d 435, 438 (5th Cir.1985); Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 727 (5th Cir.1982). Like Rusk State Hospital, the Fort Worth State School is also a state institution under the exclusive control of MHMR. Therefore, the Court is compelled, under the doctrine of stare decisis, to hold that MHMR, the Fort Worth State School and the officials in their official capacity are only nominal defendants, and that the State of Texas is the real, substantial party in interest. It also follows that these defendants derive Eleventh Amendment immunity to the same extent that it is enjoyed by the State.
QUALIFIED IMMUNITY DEFENSES
Defendants Jaylon Fincannon, Arren C. Buchannan, M.D. and Norman Read, M.D. have been sued individually for acts within the course and scope of their employment or official duties, and in furtherance of the duties of their office or employment. These Defendants have asserted the qualified "good faith" immunity defense.
It has long been held that governmental officials are entitled to some sort of immunity from damages. "As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability." Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2732, 73 L. Ed. 2d 396 (1982). The recognition of a qualified immunity defense reflects an attempt to balance competing values: the importance of a damages remedy to protect the rights of citizens, and the need to protect officials who are required to exercise their discretion, and the related public interest in encouraging the vigorous exercise of official authority. Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 2909-2910, 57 L. Ed. 2d 895 (1978). The qualified immunity defense has been identified as the best attainable accommodation of these competing values because it permits "insubstantial lawsuits [to] be quickly terminated." Id., 98 S.Ct., at 2911-2912.
The standard by which this Court is guided in making its determination of whether these Defendants are entitled to qualified immunity is set forth in the case of Harlow v. Fitzgerald, supra. There the Court held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id., 102 S.Ct., at 2738. Moreover, litigants invoking 42 U.S.C. § 1983 are required to state specific facts in support of their claims, which, if proved, would overcome the defense of qualified immunity. Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985).
The resolution, then, of the qualified immunity defenses raised by these individually named Defendants turns initially on whether the law was clearly established at the time the action in question occurred.[13]*1545 Thus, if the Court determines that the law was not clearly established when the administrative official acted, then the analysis ends there. On the other hand, if the Court determines that the law was clearly established at the time the action occurred, the second part of the Harlow analysis becomes relevant. In such a case, the second part of the analysis requires the public official to show that, because of extraordinary circumstances, "he neither knew nor should have known of the relevant legal standard." Harlow v. Fitzgerald, supra, 102 S.Ct., at 2739. See, e.g., Barnett v. Housing Authority of the City of Atlanta, 707 F.2d 1571 (11th Cir.1983) (even though the constitutional violation was well settled, the court remanded to allow defendants to show extraordinary circumstances).
Within this framework of qualified immunity the Court will now consider the federal rights which Plaintiffs allege were clearly established and which Plaintiffs allege these individual Defendants violated while acting within the course of their official duties. It is alleged that Jessie Gail Clift's freedom from state-imposed segregation under the Equal Protection Clause of the Fourteenth Amendment was violated; that her liberty, privacy, dignity, and freedom from harm were violated under the First, Fourth, Eighth, Ninth and Fourteenth Amendments; that her rights to speak, read, communicate, associate and assemble under the First Amendment were violated; that she was denied food in adequate quantity; and that her right to habilitation in the least restrictive environment under the Due Process Clause was violated.
EQUAL PROTECTION CLAIM
The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct which discriminates on the basis of race. Moreover, the applicable legal standard in reviewing this constitutional issue is whether there has been a showing of racially discriminatory purpose. The complaint alleges, in a conclusory fashion, that the decedent's[14] right to equal protection of the laws was violated because of the state-imposed segregation. The Court finds no desegregation cases involving state mental health institutions, but by analogy it draws from school desegregation cases.
The school desegregation opinions have adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must be traced to a racially discriminatory purpose. The essential element of de jure segregation is "a current condition of segregation resulting from intentional state action." Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S. Ct. 2686, 2696, 37 L. Ed. 2d 548 (1973).
The complaint is without sufficient facts to support an equal protection claim. The Court is unaware of the decedent's race, what law or official acts are claimed to be invidiously discriminatory, and how the decedent was segregated. This claim fails on the face of its pleading.
EIGHTH AMENDMENT CLAIM
The complaint alleges that Defendant officials deprived decedent of her rights to liberty, privacy, dignity and freedom from harm, and subjected her to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth.[15]See Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). The Eighth Amendment embodies "broad and idealistic concepts *1546 of dignity, civilized standards, humanity, and decency ...". Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)).
In support of Plaintiffs' Eighth Amendment claim it is alleged that, on several occasions prior to her death, and as an incident of her death, Jessie Gail Clift was denied necessary medical attention or was subjected to treatment or procedures not in accordance with accepted medical practice. It is an elementary principle that the government has an obligation to provide medical care for those whom it is punishing by incarceration. See Estelle v. Gamble, supra, 97 S.Ct., at 290. Certainly, this obligation extends to those who are civilly committed as well. However, not every claim of inadequate medical treatment, by a person under a state's care and custody, states a violation of the Eighth Amendment. In order to state a cognizable claim, the complaint must allege acts or omissions sufficiently harmful to evidence a state officer's "deliberate indifference" to serious medical needs. Id., 97 S.Ct., at 292.
With that standard in mind, the Court has considered the factual allegations of the complaint in light of the qualified immunity standard of Harlow and the pleading requirements of Elliott and concludes that the complaint fails to state an Eighth Amendment claim and that it is insufficient to overcome the qualified immunity defense.
THE CONSTITUTIONAL STANDARD OF CARE FOR THE MENTALLY RETARDED
Several of the alleged constitutional deprivations visited upon Jessie Gail Clift by the named individuals call into question the constitutional standard of care imposed on States when they undertake to provide substantive services to the handicapped and mentally retarded. As a general matter, States are under no constitutional duty to provide substantive services within their borders. Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 2459, 73 L. Ed. 2d 28 (1984). However, if a State chooses to provide such services, then a duty to provide certain services and care does exist, although even then a State has considerable discretion in determining the nature and scope of its responsibilities. Ibid.
Youngberg confirmed that there are certain liberty interests which are substantively protected by the Due Process Clause of the Fourteenth Amendment, and that these interests are not extinguished by becoming involuntarily committed. Certainly the voluntarily committed would be entitled to the same protected interests. These substantively protected liberty interests include: the right to adequate food, shelter and clothing; the right to reasonable conditions of safety; and the right to freedom from unreasonable bodily restraints. Furthermore, there is a constitutional right to habilitation, but only to the extent that such habilitation is necessary to avoid unconstitutional infringement of one's rights to safety and freedom from bodily restraints. The Youngberg Court stopped short, however, of holding that there is a general constitutional right to habilitation per se.
Moreover, the Court held that a decision, if made by a professional, is presumptively valid, and that liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment. Id., 102 S.Ct., at 2462. This presumption furthers the policy of limited judicial intervention in the internal operations of institutions such as the Fort Worth State School, where professional judgment necessarily must continuously be exercised as to the needs of its residents.
It is alleged that Jessie Gail Clift was denied the right to such habilitation as was necessary in order to enable her to speak, read, communicate, associate and assemble. These claims involve qualitative betterment of a retarded person's life, and not habilitation which is necessary to afford safety and freedom from bodily restraint.
The complaint alleges that Jessie Gail Clift was denied food in adequate *1547 quantity, taste, appearance and nutrient content. However, each of the named Defendants has stated by affidavit that their decisions were at all times based on their best professional judgment. Giving these uncontroverted affidavits a presumption of validity, as indeed the Court must, there is no genuine issue as to any material fact in regard to this claim.
The complaint alleges that the physical environment to which Jessie Gail Clift was subjected deprived her of a substantively protected right to habilitation in the least restrictive alternative setting. The complaint does not state which federal statute or constitutional provision forms the basis of this alleged federal right. However, whether it is alleged to be either a substantive due process right grounded in the liberty component of the Due Process Clause of the Fourteenth Amendment, or a substantive right under the provisions of 42 U.S.C. § 6010, the result is the same.
In Pennhurst I the Court laid to rest any contention that section 6010 creates substantive rights, leaving no room for doubt that section 6010 may not support a claimed federal right to habilitation in the least restrictive alternative setting. 101 S. Ct., at 1136. Nor does the Federal Constitution confer a right to habilitation in the least restrictive environment. Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir. 1987); accord Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1248 (2nd Cir.1984). Cf. Phillips v. Thompson, 715 F.2d 365, 368 (no denial of liberty of movement to deny community placement to several hundred higher functioning mentally retarded adults and to place those individuals in institutions; post-Youngberg decision). There being no clearly established federal right to habilitation in the least restrictive alternative setting, the individual Defendants' claims of qualified immunity must prevail in that regard.
CONCLUSION
All claims against the State of Texas, MHMR, the Fort Worth State School and the officials in their official capacity are barred by the Eleventh Amendment to the United States Constitution. Furthermore, the claims alleged against the named Defendants in their individual capacity are barred by the qualified "good faith" immunity defense.
It is, therefore, ORDERED that Plaintiffs' claims against the State of Texas, the Texas Department of Mental Health and Mental Retardation, the Fort Worth State School, Jaylon Fincannon in his official capacity, Arren C. Buchannan, M.D., in his official capacity and Norman Read, M.D., in his official capacity be, and the same are hereby, DISMISSED without prejudice.
It is further ORDERED that the Motion for Summary Judgment of Individual Defendants, Jaylon Fincannon, Arren C. Buchannan, M.D., and Norman Read, M.D., be, and the same is hereby, GRANTED.
It is the further ORDER of this Court that Plaintiffs' pendent state-law claims be, and the same are hereby, DISMISSED without prejudice.
NOTES
[1] Section 1983 confers a private federal right of action for damages and injunctive relief against state actors who deprive any citizen or person within the jurisdiction of the United States of "rights, privileges, or immunities secured by the Constitution or laws." See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961) (constitutional deprivations); Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980) (statutory violations).
[2] 42 U.S.C. § 1985(3) creates a private right of action for damages for injury or deprivation caused by a conspirator to deprive "any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws."
[3] 42 U.S.C. § 6010 provides no cause of action nor any substantive rights.
[4] 42 U.S.C. § 6011 provides no cause of action nor any substantive rights.
[5] 42 U.S.C. § 6063 provides no cause of action nor any substantive rights.
[6] 29 U.S.C. § 794 provides a cause of action for handicapped individuals who have been intentionally discriminated against based on their handicap by programs receiving Federal financial assistance. See Guardians Association v. Civil Service Commission, 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983); Carter v. Orleans Parish Public Schools, 725 F.2d 261 (5th Cir. 1984).
[7] The record is unclear whether she was committed voluntarily or involuntarily, however, the Court need not make that determination in the disposition of this case.
[8] The above allegations of negligence will not be considered by the Court as a basis for establishing a § 1983 cause of action. See footnote 13, infra.
[9] 42 U.S.C. § 1988 provides in pertinent part: "The jurisdiction ... conferred on the district courts [by the civil and criminal Civil Rights Titles] for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause...."
For discussion of the history of 42 U.S.C. § 1988 and its complementary role in the scheme of federal civil rights legislation, see Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 1792, and n. 13, 1792-1794, and nn. 18-29, 36 L. Ed. 2d 596 (1973).
[10] Effective September 1, 1985, the Texas legislature repealed the Wrongful Death Act, Tex. Rev.Civ.Stat.Ann. arts. 4671 et seq. (Vernon 1970) [codified Civil Practice and Remedies Code section 71.001 et seq. (Vernon Supp. 1985)]. Effective the same date the Texas legislature also repealed the Texas Survival Statute, Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1970) [codified Civil Practice and Remedies Code section 71.021 (Vernon Supp.1985)]. The recodification made no substantive changes. See V.T. C.A., Civil Practice & Remedies Code § 1.001.
[11] State Defendants include the State of Texas, the Texas Department of Mental Health and Mental Retardation, the Fort Worth State School, and Jaylon Fincannon, Arren C. Buchannan, M.D., and Norman Read, M.D., in their official capacities.
[12] The Supreme Court recognized the liberty interests of the involuntarily committed which are substantively protected by the Due Process Clause of the Fourteenth Amendment in Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982).
[13] Much of the complaint alleges negligent conduct as a basis for liability. In Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986), the Court held "that the Due Process Clause is not implicated by a negligent act of an official causing unintended loss or injury to life, liberty or property." Id., 106 S.Ct., at 663 (emphasis original). As previously noted, the Court's federal question jurisdiction has been invoked; therefore, the Court will consider only that complained of conduct which is protected under the Constitution or laws of the United States and actionable under 42 U.S.C. §§ 1983 and 1985.
[14] The Court expresses no opinion with regard to the appropriate relief available upon the successful assertion of an equal protection claim, the standing of Plaintiffs to assert this claim on behalf of themselves or on behalf of the decedent, and the mootness of this claim, since the Court finds that a claim has not been properly stated.
[15] The Eighth Amendment provides:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265147/ | 657 F. Supp. 917 (1987)
SEVEN STAR SHOE COMPANY, INC., Plaintiff,
v.
STRICTLY GOODIES, INC., Good Times Industries, Inc., Ronald W. Gootkin, Robert Y. Greenberg and Ernest Williams, Defendants.
No. 83 Civ. 2904 (RWS).
United States District Court, S.D. New York.
March 26, 1987.
Herbert Monte Levy, New York City, for plaintiff.
Zavin, Sinnreich & Wasserman, New York City, for defendants Good Times Industries, Inc., Robert Y. Greenberg and Ernest Williams; Jonathan Zavin, Andrew R. Schein, of counsel.
*918 Schwartz & Schlacter, New York City, for defendants Strictly Goodies, Inc. and Ronald W. Gootkin.
SWEET, District Judge.
Defendants Strictly Goodies, Inc. ("Strictly Goodies"), Ronald Gootkin ("Gootkin"), Good Times Industries, Inc. ("Good Times"), Robert Greenberg ("Greenberg"), and Ernest Williams ("Williams") have moved pursuant to Fed. R.Civ.P. 56 for an order dismissing the complaint against them. Strictly Goodies has also moved for partial summary judgment on its counterclaim in the amount of $14,515.95. Seven Star Shoe Co. ("Seven Star") has cross-moved for an order granting summary judgment on its complaint, striking the defendants' counterclaims, and requiring an accounting of the defendants. For the reasons set forth below, summary judgment is granted on behalf of Good Times, Greenberg, and Williams, and the complaint shall be dismissed as against them. The application by Seven Star is granted in part, and the application by Strictly Goodies is denied.
Facts
This diversity case raises the question of a sales representative's commercial fidelity to a footware manufacturer. In early 1982, Seven Star makers of a popular sneaker known as the "pie" shoe, signed a contract with Strictly Goodies which made Strictly Goodies "the exclusive representative" in California, Hawaii, Nevada, Arizona, Washington, and Oregon of Seven Star's footware line. Strictly Goodies was to receive a six percent commission on the Seven Star shoes that it sold, including the hot "pie" shoe. The contract reads:
This contract confirms our agreement whereby Strictly Goodies Incorporated, an independent manufacturers representative, and Seven Star Shoes, a wholesale shoe manufacturer, join in the following agreement:
1. Strictly Goodies agrees to sell and display Seven Star Shoes in our showroom and all shoe shows in our territory.
2. Strictly Goodies territory consists of California, Hawaii, Nevada, Arizona, Washington, and Oregon.
3. Seven Star Shoes agrees that Strictly Goodies will be the exclusive representative for the Seven Star Shoe Company for the above territories.
4. Strictly Goodies agrees to service all existing accounts in the above territory effective on January 12, 1982.
5. Seven Star Shoes agrees to pay Strictly Goodies 6% commission on all orders written by Strictly Goodies as well as all orders called in, written in or otherwise received by Seven Star Shoes from the above territory.
6. Seven Star Shoes agrees to pay Strictly Goodies 6% commission on all orders received and written at trade shows from the above territory, as well as trade shows outside the territory with accounts from the above territory.
7. Seven Star Shoes agrees to pay commission on the fifteenth of each month for all orders shipped up to and including the twenty-fifth of the previous month.
8. Commission refunds Seven Star Shoes reserves the right to bill back Strictly Goodies for commissions paid on all non-collectible accounts that are 120 days old or over.
This agreement may be terminated by either party within thirty days by written notice.
At the time Seven Star and Strictly Goodies signed their agreement, Strictly Goodies was not carrying any other shoe lines. According to Gootkin, president of Strictly Goodies and a defendant himself, Strictly Goodies began to carry other lines of shoes within several months of its agreement with Seven Star, including Tom Brown Shoes, Jams, and Ciao. Although Gootkin has testified that "there are many, many multiple shoe line representatives in the business," Seven Star has submitted an affidavit from Arthur Jacob, president of the National Shoe Travelers Association (a not-for-profit association of approximately 6,000 wholesale shoe representatives), *919 swearing that the practice, usage and custom in the shoe industry is and always has been that a sales representative will not and should not take on a line directly competitive with the company he represents, in the absence of complete disclosure of such engagement, and without the prior written approval of the company which he first represents.
Before it carried shoes, as well as after it began to do so, Strictly Goodies had marketed other kinds of accessories, novelty shoelaces for instance. One supplier of shoelaces was Greenberg, president of defendant Good Times, who sold Gootkin shoelaces with pictures of the movie character "E.T." on them.
Sometime after Greenberg and Gootkin began to do business, Greenberg travelled from California to New York to meet with the owner and president of Seven Star, Larry Silverstein ("Silverstein"). Greenberg wanted to buy out Silverstein's business, but Silverstein thought Greenberg's offer was too low. After being rebuffed by Silverstein, Greenberg decided that Good Times would create its own line of sneakers, which it produced under the name L.A. Gear. Greenberg approached Gootkin and asked if Strictly Goodies was interested in carrying the L.A. Gear line, which Gootkin was. Consequently, Strictly Goodies began to sell L.A. Gear sneakers, including a shoe that Silverstein claims is a bald knock-off of the "pie" shoe, Gootkin was to be paid a commission of seven percent or more.
Gootkin says that it took on L.A. Gear because it offered more styles and colors, a more reliable supply, and filled a market niche that Seven Star was abandoning, that of a lower quality sneaker, because it was upgrading its sneaker by incorporating extras such as fancy sock liners. According to Gootkin, he did not contact Silverstein to tell him about the new line, nor did he make any effort to keep it a secret. He displayed both lines in his showroom and took both lines to show on sales calls.
In February, 1983, Silverstein received a report that Strictly Goodies was showing close copies of Seven Star shoes under L.A. Gear's label. After an unsatisfactory telephone conversation with Gootkin, Silverstein sent the following mailgram to Strictly Goodies cancelling the contract effective immediately:
IT APPEARS THAT YOU ARE WRONGFULLY DIVERTING OUR BUSINESS AND CUSTOMERS TO A DIRECTLY COMPETING ITEM CAUSING US SUBSTANTIAL DAMAGE. WE ELECT TO TERMINATE OUR AGREEMENT WITH YOU IMMEDIATELY FOR CAUSE. WE DEMAND THAT YOU IMMEDIATELY CEASE USING OUR CUSTOMER LIST AND TO CALL ON OUR CUSTOMERS UNDER THE PRETENSE YOU WILL BE SHOWING OUR LINE AT THE LONG BEACH SHOW.
WE DEMAND YOU RETURN TO GENERAL ELECTRIC EQUIPMENT LEASED TO US FOR USE IN YOUR OFFICE AND NOW IN YOUR PERSONAL POSSESSION. WE HOLD YOU RESPONSIBLE FOR ALL DAMAGES AND BUSINESS DIVERTED.
Silverstein also refused to pay Strictly Goodies the commissions on orders of Seven Star shoes already sold on the grounds that Strictly Goodies' perfidy had damaged Seven Star far beyond what was owing.
Seven Star subsequently sued Strictly Goodies and Gootkin for breach of contract, and Good Times, Greenberg, and another Good Times employee, Ernest Williams for the tort of interference with contract. Strictly Goodies has cross-claimed against Seven Star for the unpaid commissions.
All of the defendants have moved for summary judgment for an order dismissing the complaint, and Strictly Goodies has moved for an order granting it partial summary judgment in the amount of $14,515.95 on its counterclaim. Seven Star has conceded that the complaint against Williams should be dismissed, has opposed the motion with regard to the rest of the defendants, and has cross-moved against Strictly Goodies for an order dismissing the counterclaim and for an accounting of Strictly Goodies' alleged unfair profits.
*920 Good Times' Alleged Tortious Interference with Contract
Two factors are present in this case which increase the showing that Seven Star must make to sustain a claim of tortious interference. First, Good Times (the alleged tortfeasor) and Seven Star are business competitors. Second, the contract between Seven Star and Strictly Goodies, containing as it did a thirty-day cancel at will clause, was a contract that is "terminable at will." Krim Cartage Co. v. Courier Services, Inc., 52 A.D.2d 831, 384 N.Y.S.2d 164 (1st Dep't. 1976). Under New York law, when these two factors are present, a competitor is not liable for interference with a contract "where the interference is intended at least in part to advance the competing interest of the interferer, no unlawful restraint of trade is effected, and the means employed are not wrongful." Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 406 N.E.2d 445, 448, 428 N.Y.S.2d 628, 632 (1980) (footnote omitted).
Here, it is apparent that the interference advanced Good Times' competitive interest, and Seven Star has cited no authority for the proposition that Good Times was engaged in an illegal restraint of trade. That leaves only the question of whether Good Times' acts were "wrongful," as defined in Guard-Life. The New York Court of Appeals has drawn a tight line around the concept of wrongfulness in this context:
"Wrongful means" include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract.
Id. 50 N.Y.2d at 191, 406 N.E.2d at 448, 428 N.Y.S.2d at 632; see also Strapex Corp. v. Metaverpa N.V., 607 F. Supp. 1047, 1050 (S.D.N.Y.1985).
Seven Star seeks to hang its hat on the "fraud" peg of this definition of wrongfulness. In essence they have argued that Silverstein's negotiations with Greenberg created a special "fiduciary relationship" between Seven Star and Good Times because during the failed negotiations Silverstein had proffered certain advice about running a shoe business. According to Seven Star, the existence of this relationship created a special duty on Good Times' part to disclose to Seven Star that it had begun to deal with Strictly Goodies. Through this omission, submits Seven Star, Good Times has defrauded them. Unsurprisingly, Seven Star has submitted no authority for the proposition that a brief, failed, arms-length negotiation between two parties creates a long-lasting "fiduciary relationship" between them. Quite the contrary, such a momentary brush in the marketplace is the virtual antithesis of a fiduciary relationship, and, consequently, Seven Star has failed to make out a case of fraud.
Seven Star having "failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," Celotex Corp. v. Catrett, ___ U.S. ___, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986), Good Times and Greenberg's motions for summary judgment dismissing the complaint against them are granted.
Strictly Goodies' Alleged Breach of Contract
As to Strictly Goodies' application for an order dismissing the breach of contract claims against it, the issue turns on what it means in the shoe business when one is a sales "representative." An affidavit submitted by President Jacob of the National Shoe Travelers Association, who has been affiliated with the shoe industry for more than forty years, swears:
the practice, usage and custom in the shoe industry is and always has been that a sales representative will not and should not take on a line directly competitive with the company he represents....
All that Gootkin has submitted in opposition to this is his own conclusory statement that, "[t]here are many, many multiple shoe line representatives in the business." Unsupported by any examples or by an affidavit by anyone else in the business, a conclusion such as this drawn by one of the *921 parties is insufficient to create an issue of fact as to industry usage.
Strictly Goodies has argued that any consideration of business custom and usage should be barred from the court's consideration by the Parole Evidence rule. However, under New York law, "A contract must be construed according to the custom and use prevailing in a particular trade." Edison v. Viva Int'l, Ltd., 70 A.D.2d 379, 421 N.Y.S.2d 203, 205 (1st Dep't. 1979). Thus, for instance, the Edison court ruled that evidence had to be taken on what the words "edit" and "change" meant in the context of the publishing industry when addressing the question of breach of a contract to publish an article. Id.
This is not a case in which usage or custom is directly at odds with an express clause in a contract, see, e.g., Kologel Co., Ltd. v. Down in the Village, Inc., 539 F. Supp. 727, 729 (S.D.N.Y.1982), because here the contract is silent on the question of whether Strictly Goodies may or may not carry other lines of shoes. Indeed, Strictly Goodies has essentially acknowledged the silence of the contract on this issue in arguing that the contract's explicit limitation on Seven Star's authority to use other representatives implies that Strictly Goodies was authorized to carry other shoe lines because of the absence of an explicit restriction. Lacking an explicit clause that speaks to the issue, the court is bound to consider business usage. Consequently, as Jacob's affidavit establishes, by agreeing to be a sales representative, Strictly Goodies was agreeing that it would carry only a single line of shoes. Since Strictly Goodies admits that it carried more than a single line, and that it started to do so within just a few months of entering into a contract with Seven Star, it has breached.[1]
Conclusion
For the foregoing reasons, the summary judgment motions of Good Times, Greenberg and Williams are granted, and the complaint will be dismissed as to them. Seven Star's cross motion against Strictly Goodies is granted to the extent that Strictly Goodies is declared in breach of the contract. The single remaining question, therefore, is whether the damages that Seven Star incurred because of the breach exceed the amount of commissions owed Strictly Goodies for shoes already sold, or vice versa. Parties will contact chambers and a hearing on this issue will be set down within thirty (30) days.
IT IS SO ORDERED.
NOTES
[1] In addition to the counterclaim for commissions it says it is owed, Strictly Goodies has counterclaimed against Seven Star on the grounds that Seven Star allowed another sales representative to carry its line within Strictly Goodies' territory, which, according to Gootkin, happened in late 1982. Since Strictly Goodies had already itself breached by then by carrying other shoe lines, the counterclaim is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265148/ | 185 Cal. App. 4th 509 (2010)
110 Cal. Rptr. 3d 362
THE PEOPLE, Plaintiff and Respondent,
v.
ALBERT JEROME BECKLEY, JR., et al., Defendants and Appellants.
No. B212529.
Court of Appeals of California, Second District, Division One.
June 9, 2010.
As modified June 24, 2010.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*511 Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant Albert Jerome Beckley, Jr.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant Darrell Amont Finn.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sarah J. Farhat and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ROTHSCHILD, J.
In this opinion we hold that the prosecution's failure to authenticate a photograph and "gang roster" downloaded from Internet Web sites should have barred their admission but that the errors were harmless as to both defendants. We also conclude there was insufficient evidence to support the street gang enhancement of each defendant's sentence. We modify the judgments as to each defendant by striking the street gang enhancements. We further modify Darrell Amont Finn's judgment by striking the gun use enhancements under Penal Code section 12022.53, subdivisions (b) through (d) and remand for resentencing. In all other respects, we affirm the judgments.
*512 FACTS AND PROCEEDINGS BELOW
Following a jury trial, Albert Jerome Beckley, Jr., and Darrell Amont Finn were each convicted of one count of first degree murder and two counts of attempted premeditated murder. The jury also found true as to each defendant the gang-benefit enhancement allegations under Penal Code section 186.22, subdivision (b)[1] and the firearm use allegations under section 12022.53, subdivisions (b), (c), and (d). The court sentenced each defendant to a term of 50 years to life consisting of 25 years to life for the murder and a consecutive 25 years to life for firearm discharge by a principal resulting in death during a gang-benefiting offense (§ 12022.53, subds. (d) & (e).) Sentences on the remaining counts and enhancements were imposed to run concurrently or stayed.
We summarize the evidence in the light most favorable to the judgments.
In late April 2007, the Mahone brothers, Matthew and Jamal, attended a party in Compton where Jamal got into a fight. After the fight, Jamal agreed to meet his opponent for a rematch in South Park, a park claimed by the Southside Compton Crips as their territory. About 50 people were waiting for Matthew and Jamal and their 20 to 25 friends when they arrived at the park. The fight lasted about nine minutes. Jamal lost. Afterward, Matthew fought with Beckley and knocked him out. The two groups then fought each other. When the fighting ended, Matthew considered the "problems" between him and the other group had been settled.
Approximately two weeks later, while walking home, Matthew saw Beckley and Finn near a liquor store. Beckley called out to Matthew, "Southside Compton Crips." Matthew walked away and did not respond. He knew Beckley and Finn only by their gang monikers, "Bluebird" and "Little Freaky."
On May 14, 2007, at approximately 7:30 p.m., Matthew and Jamal were standing outside their residence, within territory claimed by the Neighborhood Compton Crips, a rival of the Southside Compton Crips. Rene Duncan, Jerrica Allen and Andrew B., a minor, were also present. A car passed by twice before stopping in front of the house. The brothers spoke with the two female occupants of the car for a few minutes. The women accused the brothers of involvement in a club shooting the prior week. When *513 the women asked Jamal his name and nickname, he responded, Jamal and Maleemal. After the women drove off, Matthew advised everyone to go inside because he thought they were being set up for a driveby shooting.
Within minutes, a tan or silver car similar to the one previously occupied by the two women drove by. Finn was the driver and Beckley, along with one or two others, was a passenger. Beckley, who was seated behind the driver, pulled himself partly out of the rear window and fired at Matthew, Jamal and Duncan from over the car's roof. Jamal died from a single gunshot wound to his chest. A bullet grazed Duncan's forehead and another bullet struck the side of her foot. Matthew was unharmed.
Detective Joseph Valencia, the People's gang expert, testified that Beckley and Finn were members of the Southside Compton Crips. In his opinion, this driveby shooting was in retaliation for the earlier fight in the park and "directed at members of the Neighborhood Compton Crip street gang." Valencia also testified, however, that neither Mahone brother was a member of the Neighborhood Compton Crips. Another police officer testified at trial that Beckley admitted to him in April 2007, that he belonged to the Southside Compton Crips.
Finn fled to Seattle shortly after the shooting. He was in custody there on another matter when he was interviewed by Detective Brian Schoonmaker of the Los Angeles County Sheriff's Department. In the interview Finn admitted that he belonged to the Southside Compton Crips and that he was known to his friends as Little Freaky. Finn also admitted that he was near the Mahone brothers' residence when he heard the gunshots on the night of May 14th and that he knew he was wanted for murder before he left for Seattle.
Finn did not testify.
Beckley presented a defense based on alibi and mistaken identity. He testified that he had been a Southside Compton Crips gang member but denied active membership after he began dating Kyeera Fulmore in February or March 2006. He stated that he knew Finn through working as a disc jockey at Finn's parties in Long Beach. He denied that Finn was a Southside Compton Crips gang member. Beckley also denied that he killed Jamal, had fought with Matthew at the park or had seen him at a liquor store.
Beckley's girlfriend, Fulmore, testified that Beckley babysat her two-year-old daughter at his Long Beach house while Fulmore attended classes at Camilla College from 4:00 p.m. until 10:00 p.m. Monday through Friday. She *514 stated that she attended class the night of May 14th and presented documentary proof of her attendance. She denied associating with gang members and stated that when she began dating Beckley she insisted he stop "running with the [gang]" and was sure that he had complied with her demand. She further testified that she had never seen Beckley and Finn together.
Tiffany Garcia testified that immediately after the shooting she saw four or five individuals in a tan car. Someone she knew as "Brim," "Dossey," or "Dorsey," not Beckley, was the person in the backseat.
In rebuttal to Beckley's and Fulmore's testimony denying Beckley's gang involvement, Detective Schoonmaker testified regarding gang-related evidence he recovered from the MySpace.com Internet accounts of Finn and Beckley.
DISCUSSION
I. ADMISSIBILITY OF KYEERA FULMORE'S PHOTOGRAPH
To rebut Fulmore's testimony that she did not associate with the Southside Compton Crips and that she insisted Beckley stop his association with the gang, the prosecution offered a photograph purportedly showing Fulmore flashing the Southside Compton Crips gang sign. Detective Schoonmaker testified that he downloaded the photograph from Beckley's home page on the Internet Web site MySpace. The trial court admitted the photograph over both defendants' objections that it had not been authenticated. We agree with defendants that the court erred in admitting the photograph but we conclude that the error was harmless.[2]
(1) A photograph is a "writing" and "[a]uthentication of a writing is required before it may be received in evidence." (Evid. Code, §§ 250, 1401, subd. (a).)
(2) A photograph or other writing may be authenticated by "the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is" (Evid. Code, § 1400), including the two kinds of evidence described by our Supreme Court in People v. Bowley (1963) 59 Cal. 2d 855 [31 Cal. Rptr. 471, 382 P.2d 591]. "It is well settled," *515 the court stated, "that the testimony of a person who was present at the time a film was made that it accurately depicts what it purports to show is a legally sufficient foundation for its admission into evidence." (Id. at p. 859.) In addition, the court noted, authentication of a photograph "may be provided by the aid of expert testimony, as in the Doggett case, although there is no one qualified to authenticate it from personal observation." (Id. at p. 862.) In People v. Doggett (1948) 83 Cal. App. 2d 405 [188 P.2d 792], the Court of Appeal upheld the admission of a photograph showing the defendants committing a crime. Because only the victim and the defendants, none of whom testified, were present when the crime took place and one of the defendants took the photograph, there was no one to testify that it accurately depicted what it purported to show. The People, however, produced evidence of when and where the picture was taken and that the defendants were the persons shown committing the crime. Furthermore, a photographic expert testified that the picture was not a composite and had not been faked. The court held this foundation sufficiently supported the photograph's admission as substantive evidence of the activity depicted. (Id. at p. 410.) (3) Citing Doggett with approval, the Supreme Court held in Bowley that "a photograph may, in a proper case, be admitted into evidence not merely as illustrated testimony of a human witness but as probative evidence in itself of what it shows." (People v. Bowley, supra, 59 Cal.2d at p. 861.)
Although defendants conceded that the face in the MySpace photograph was Fulmore's, the record does not contain the kind of evidence described in Bowley or any other evidence sufficient to sustain a finding that it is photograph that the prosecution claims it is, namely, an accurate depiction of Fulmore actually flashing a gang sign. Schoonmaker could not testify from his personal knowledge that the photograph truthfully portrayed Fulmore flashing the gang sign and, unlike People v. Doggett, supra, 83 Cal.App.2d at p. 410, no expert testified that the picture was not a "`composite' or `faked'" photograph. Such expert testimony is even more critical today to prevent the admission of manipulated images than it was when Doggett and Bowley were decided. Recent experience shows that digital photographs can be changed to produce false images. (See, e.g., U.S. v. Newsome (3d Cir. 2006) 439 F.3d 181, 183 [digital photographs used to make fake identification cards].) Indeed, with the advent of computer software programs such as Adobe Photoshop "it does not always take skill, experience, or even cognizance to alter a digital photo." (Parry, Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words At A Time (2009) 2009 J. Tech. L. & Pol'y 175, 183.) Even the Attorney General recognizes the untrustworthiness of images downloaded from the Internet, quoting the court's warning in St. Clair v. Johnny's Oyster & Shrimp, Inc. (S.D.Tex. 1999) 76 F. Supp. 2d 773, 775 that "`[a]nyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to *516 independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content of any web-site from any location at any time."
(4) We cannot say, however, that the admission of the photograph prejudiced Beckley or Finn.
Beckley argues that the photograph of Fulmore flashing the Southside Compton Crips gang sign damaged the credibility of Fulmore's testimony that she did not associate with gangs and that, upon her insistence, Beckley had ceased involvement with the gang. He also argues that the photograph undercut the credibility of Fulmore's testimony in support of Beckley's alibi that he was babysitting Fulmore's daughter at his home on the night of the shooting.
These arguments lack merit for several reasons. Beckley's active membership in the Southside Compton Crips at the time of the shooting was not subject to reasonable doubt. He was part of the Southside Compton Crips group that fought with Jamal's and Matthew's group in the park a month before the shooting. He called out the gang's name in a challenge to Matthew approximately two weeks before the shooting and he admitted his gang affiliation to police as recently as a month before the shooting. In addition, Fulmore's testimony did not fully support Beckley's alibi. She testified that in the month of May 2007 Beckley babysat her daughter at his home every night she attended school and that she attended school on the night of the shooting from 4:00 p.m. until 10:00 p.m. She admitted on cross-examination, however, that because she was at school she had no personal knowledge whether Beckley was babysitting at the time of the shooting. Beckley's alibi was further weakened by evidence that he lived with his aunt and her children and that they were present most days when Fulmore dropped off her daughter. Beckley produced no evidence that his aunt was not at home the night of the shooting.
In contrast to the inconclusive evidence supporting Beckley's alibi, strong evidence supported his guilt. Matthew, an eyewitness to the shooting, who had fought Beckley in the park a month before the shooting and had been confronted by Beckley at the liquor store only two weeks earlier, identified Beckley as the shooter from a book of photographs of gang members shown to him by police five days after the shooting. He also identified Beckley as the shooter at trial. Andrew B., another eyewitness, aged 12 at the time of trial, identified Beckley as the shooter from a photo six-pack although at trial he denied seeing the shooter or identifying the shooter in the six-pack. Further, Beckley had a motive for the shootingretaliation for his humiliating knockout at the hands of Matthew in the fight at the park.
*517 Given the state of the evidence, it is not reasonably probable that Beckley would have been acquitted of the shooting if the court had not admitted Fulmore's picture flashing a gang sign.
Finn's claim of prejudice is even more attenuated than Beckley's. Finn reasons that the photograph purportedly showing Fulmore displaying the Southside Compton Crips gang sign destroyed the credibility of her testimony that she wanted nothing to do with gangs and therefore the jury likely disbelieved her testimony that she had never seen Finn in the company of Beckley. Leaving aside the weak connection of her testimony to the question of whether Finn and Beckley spent time together, the record included undisputed evidence that they had spent time together. Beckley testified that he had worked as a disc jockey at two parties organized by Finn.
II. ADMISSIBILITY OF THE GANG ROSTER EVIDENCE
As evidence that defendants belonged to the Southside Compton Crips, the prosecution offered a purported roster of the gang's members, including Beckley and Finn, which appeared on a Web page that Detective Schoonmaker printed from the Internet. The trial court admitted the evidence over defendants' objections. Only Finn has pursued the admissibility of the roster on appeal. He argues that the roster was "unauthenticated" because there was no evidence as to who created it, what it was intended to represent, whether it did in fact represent what it was intended to represent, and whether its creator had any basis in personal knowledge for including the names on the list.[3]
The printout is presumed to be an accurate representation of the Web page Detective Schoonmaker found on the Internet. (Evid. Code, § 1552, subd. (a) ["A printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent."].) The issue, however, was not whether the computer's printer could be trusted to reliably print out what was on the computer's screen or stored on some site but whether the content of what was on the site was reliable. We conclude that the evidence was insufficient to show that the writing was what it purported to bea roster of the Southside Compton Crips. Therefore, the writing should have been excluded as unauthenticated and, therefore, irrelevant. We further conclude, however, that the error was harmless.
(5) The requirement that a writing be authenticated before it may be received into evidence (Evid. Code, § 1400, subd. (a)) is satisfied by "introduc[ing] evidence sufficient to sustain a finding that it is the writing that the *518 proponent of the evidence claims it is." As a leading treatise on evidence explains: "Before a writing may be admitted in evidence, its proponent must make a preliminary showing that the writing is relevant to an issue to be decided in the action. A showing of relevancy usually means proof that the writing is authentic ...." (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 1997) § 24.13, p. 386.) Without such proof the writing is irrelevant because it has no "tendency in reason" to prove or disprove a fact at issue in the case. (Evid. Code, § 210.)
Here, Schoonmaker claimed the writing was a roster of the members of the Southside Compton Crips. Schoonmaker admitted that he did not know who authored the roster but testified that he believed "that is a roster of Southside Compton Crip gang members that they themselves put together." This evidence was insufficient to authenticate the document as a roster of the Southside Compton Crips. Schoonmaker admitted that he did not know who created the list nor did he explain the basis for his assertion that the gang members "themselves put [it] together." Moreover, he offered no evidence that the person who created the list had any personal knowledge of the members of the gang or that the persons named in the list were current gang members. Accordingly, the court should have excluded the purported roster of gang members. The court's error, however, does not require reversal of Finn's conviction because the information contained on the list was cumulative. There was other evidence of Finn's membership in the gang, including his own admission, only one month before the shooting, made to police when interviewed in Seattle, and the testimony of Detective Valencia that Finn "has been seen and congregated with other members of this particular street gang." Evidence also showed that he had a body tattoo indicating affiliation with the gang.
III.-VI.[*]
DISPOSITION
The sentence of each defendant is modified by striking the street gang enhancement. Finn's sentence is further modified by striking the gun use enhancements under Penal Code section 12022.53, subdivisions (b) through (d) and remanded for resentencing. The causes are remanded to the trial court *519 with directions to prepare amended abstracts of judgment and to forward corrected copies thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
Mallano, P. J., and Johnson, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts III., IV., V. and VI.
[1] All statutory references are to the Penal Code unless otherwise noted.
[2] Our analysis is limited to whether the photograph was admissible to show that Fulmore associated with the gang and not to any other issue such as whether Beckley associated with gang members.
[3] Finn does not address the question whether the Web page should have been excluded as inadmissible hearsay. Therefore, we do not address that issue.
[*] See footnote, ante, page 509. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266807/ | 165 Cal.App.4th 620 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
SERGIO JAVIER VASQUEZ GONZALES, Defendant and Appellant.
No. C054743.
Court of Appeals of California, Third District.
July 30, 2008.
*622 Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Alice Su, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
CANTIL-SAKAUYE, J.
Defendant Sergio Javier Vasquez Gonzales was found guilty by a jury of two counts of robbery. (Pen. Code, § 211.)[1] The jury found true the special allegation that defendant personally used a firearm in the commission of the robberies. (§ 12022.53, subd. (b).) The jury found defendant not guilty of assault with a deadly weapon, but guilty of the lesser included misdemeanor offense of assault. (§ 240.) The jury acquitted defendant of making criminal threats and the trial court granted defendant's motion for acquittal of a third robbery.
The trial court sentenced defendant to a total prison term of 17 years four months.
*623 Defendant's sole contention on appeal is the claim the trial court erred in denying his Batson/Wheeler[2] motion. Agreeing with defendant's claim, we shall reverse the judgment.
FACTUAL BACKGROUND
The facts underlying defendant's offenses are not necessary to the sole issue on appeal. Basically, the jury found defendant went into the ampm market in Tracy in August 2005, pretended to buy a soda, and when the cashier opened the cash drawer to give defendant change, defendant pointed a gun in her face and grabbed cash from the drawer. On August 22, 2005, defendant went into the Mi Esperanza Market in Tracy, confronted the cashier and told her to give him money. Defendant had a gun in his hand. Defendant grabbed a handful of cash from a cashbox. The cashier lunged at defendant and struggled with him. Defendant hit the cashier. Other employees came to the cashier's aid and eventually defendant was subdued and held on the ground by the employees and owner of the store until the police arrived.
DISCUSSION
Defendant claims the prosecutor violated his constitutional right to equal protection by exercising peremptory challenges in a racially discriminatory fashion during jury selection. (Batson, supra, 476 U.S. 79 [90 L.Ed.2d 69]; Wheeler, supra, 22 Cal.3d 258.)
A. Background
During voir dire, the prosecutor exercised his first four peremptory challenges to Prospective Jurors J.C., M.F., S.C., and F.R., all with Hispanic surnames. Defendant objected pursuant to Batson, supra, 476 U.S. 79 [90 L.Ed.2d 69].[3] Outside the presence of the jury, defense counsel contended all of the peremptory challenges made by the prosecutor were to Hispanic individuals and that the prosecutor appeared to be systematically eliminating Hispanics from the jury. The trial court found a prima facie case and asked the prosecutor to give his reasons for disqualifying the four prospective *624 jurors, although it noted Prospective Juror F.R. looked "like he'll be a terrible juror for both sides" and that "I would have gotten rid of [him] myself."
The prosecutor stated his reasons for excusing each of the prospective jurors. The trial court accepted those reasons and denied defendant's motion.
Defendant now claims the trial court erred in accepting the prosecutor's reasons for challenging two of the four prospective jurors, Prospective Juror J.C. and Prospective Juror F.R. We focus on the voir dire of those two prospective jurors.
Prospective Juror J.C.
During the initial voir dire by the trial court, Prospective Juror J.C. stated his name, that he "clear[s] power lines for PG&E," and that his answer was "no" to the court's written questions Nos. 2 through 7. The court's written questions Nos. 2 through 7 asked for: 2. The occupation of anyone with whom the juror had a significant personal relationship and the occupation of any adult children; 3. Whether the prospective juror knew any attorneys or staff in the district attorney's office or public defender's office; 4. Whether the prospective juror knew any of the witnesses or parties in this case; 5. Whether the prospective juror had heard about this case; 6. Whether the prospective juror had previously served on a jury; and 7. Whether there was any reason the prospective juror could not be fair to both sides. There was no further individual questioning of Prospective Juror J.C.[4]
When asked his reason for exercising a peremptory challenge to J.C., the prosecutor stated J.C. "was young; he had no significant ties as far as spouses, children. [¶] As far as experiences with what I'm particularly looking for in a juror, I don't believe he possessed those qualities." The prosecutor also noted J.C. was Spanish speaking. "As [defense counsel] brought out during his questioning of the jurors, you know, it does raise an issue when you have interpreters and you're going to have witnesses using interpreters. I believe it poses a problem as far as witnesses [sic][5] listening to actually what is being said versus what is being interpreted at that point."
*625 The prosecutor's comments referred to a portion of defense counsel's earlier voir dire of the prospective jurors in which defense counsel explained defendant spoke both Spanish and English, but had chosen to have an interpreter in order to make sure he understood every word of the English spoken during the trial. Defense counsel asked if any of the jurors had a problem with defendant making such a choice. Defense counsel then asked for a show of hands of the prospective jurors who understood Spanish. "Quite a few" raised their hands[6] and defense counsel proceeded to explain that if a witness testified in Spanish, they would be required to accept the English translation provided by the interpreter for the witness and not use their own skills to translate the testimony.[7] Defense counsel asked if any of them would have a problem following an instruction to that effect. The record does not reflect any response other than a couple of questions posed by Prospective Juror R.B. and Prospective Juror S.C.
Subsequent to defense counsel's questions, the prosecutor again asked the prospective jurors, as a group, whether they would have a problem "tuning out what the witness actually says until it comes through the interpreter?" He explained there were several witnesses that would probably have interpreters. Only Prospective Juror R.B. spoke up. She said she thought she would listen to both the Spanish and the English interpretation.[8] All other prospective jurors shook their heads, apparently in the negative, when asked again if there was going to be a problem.
In response to the prosecutor's stated reasons for challenging Prospective Juror J.C., defense counsel responded that the prosecutor did not "speak at all as far as I know with [J.C.] He didn't inquire of anything with him. He indicates that he didn't have the life experiences that he wanted, but there was absolutely no questioning by counsel of [J.C.] [¶] The reason he was disqualified, I submit, is that he was Spanish speaking, and that, Your Honor, is definitely a protected class. . . . People raised their hands who spoke Spanish, and counsel has singled them out to disqualify them."
Prospective Juror F.R.
In response to the initial voir dire questions posed by the trial court,Prospective Juror F.R. stated only his name and that his answer was "no" to *626 the remaining questions. The prosecutor subsequently asked Prospective Juror F.R. if he was currently employed. F.R. responded "Yeah." He said he worked for Mar Fence. The prosecutor asked whether he was married or single and F.R. said he was single.
When asked his reason for exercising a peremptory challenge to Prospective Juror F.R., the prosecutor stated F.R. was in baggy pants, was single, and he appeared thoroughly bored with the proceedings. His outward appearance suggested he had no real interest in being there. "In addition, he was also Spanish speaking, not that that is the sole reason for excluding him."
Defense counsel believed Prospective Juror F.R. did not present "any colorful reason" for being excused. He stated it was "unconstitutional to disqualify people because they're Hispanic or because they speak Spanish. [¶] The persons that [the prosecutor] disqualified didn't state any problem with accepting the translation. I questioned the jurors on this, and none of them objected to accepting the translation. The only juror who raised any possible theoretical questions was [Prospective Juror R.B.]."
The Trial Court's Conclusion
The trial court commented it was uncertain if language was a cognizable protected group. The court stated: "It's race, color, religion, sex, national origin, but speaking a language, I don'tI mean, the issue here has been raised as to whether or not jurors are going to be able to listen to the interpreter as opposed to what the witnesses say."
The court went on to find Prospective Juror F.R. was clearly bored, which was "clearly not a racially motivated challenge." As to the two challenged jurors including Prospective Juror J.C., the court stated it was "not quite as clear, but I do not find that there was a racial motivation for the exclusion of those jurors by [the prosecutor]. Also I would note we have approximately six remaining Hispanics on this panel or not the panel but, I mean, on the groupthe 12 jurors, and just looking at the group of jurors on the panel as a whole, it would be virtually impossible for a D.A. to exclude Hispanics peremptorily, but in any case, I do not find that the challenges were made forout of a racial motive." The trial court said it accepted the prosecutor's reasons and denied defendant's motion.
The prosecutor subsequently exercised peremptory challenges to two more prospective jurors with Hispanic surnames. Defendant did not make any further objection or motion under Batson/Wheeler.
*627 B. Analysis
Defendant argues the trial court erred in denying his motion pursuant to Batson, supra, 476 U.S. 79 [90 L.Ed.2d 69] and Wheeler, supra, 22 Cal.3d 258. By excusing Prospective Jurors J.C. and F.R. because they spoke Spanish, defendant claims the prosecutor violated defendant's rights to equal protection and to a jury drawn from a representative cross-section of the community.
(1) "The applicable law is well settled. `[Under Wheeler,] [a] prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group biasthat is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds"violates the right of a criminal defendant to trial by a jury drawn from a representative crosssection of the community under article I, section 16 of the state Constitution. [Citations.] [Under Batson,] [s]uch a practice also violates the defendant's right to equal protection under the Fourteenth Amendment. [Citations.]
(2) "`The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. "First, the defendant must make out a prima facie case `by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the `burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, `[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]"'" (People v. Zambrano (2007) 41 Cal.4th 1082, 1104 [63 Cal.Rptr.3d 297, 163 P.3d 4] (Zambrano), quoting People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009 [47 Cal.Rptr.3d 467, 140 P.3d 775], quoting Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410]; see Snyder v. Louisiana (2008) 552 U.S. ___, ___ [170 L.Ed.2d 175, 180-181, 128 S.Ct. 1203]; Johnson v. California, supra, 545 U.S. at p. 168 [162 L.Ed.2d 129, 138].) The same three-prong test has been endorsed by our Supreme Court for proof of state constitutional claims. (People v. Bell (2007) 40 Cal.4th 582, 596 [54 Cal.Rptr.3d 453, 151 P.3d 292].)
On appeal, "`[w]e review the trial court's ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court's ability to distinguish "bona fide reasons from sham excuses." [Citation.] As long as the court makes "a sincere and reasoned effort to *628 evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal."'" (Zambrano, supra, 41 Cal.4th at p. 1104, quoting People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009; see People v. Ervin (2000) 22 Cal.4th 48, 74-75 [91 Cal.Rptr.2d 623, 990 P.2d 506].) But deference is not abdication: "`When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.'" (People v. Stevens (2007) 41 Cal.4th 182, 193 [59 Cal.Rptr.3d 196, 158 P.3d 763], quoting People v. Silva (2001) 25 Cal.4th 345, 386 [106 Cal.Rptr.2d 93, 21 P.3d 769]; see People v. Williams (1997) 16 Cal.4th 153, 189-190 [66 Cal.Rptr.2d 123, 940 P.2d 710].)
(3) Defendant complains here that the fact Prospective Jurors J.C. and F.R. spoke Spanish is not a race-neutral reason for excluding them and that the challenges cannot be saved based on the prosecutor stating other nondiscriminatory reasons for the challenges. We agree as to Prospective Juror J.C. and therefore, do not need to consider the claim in detail as to Prospective Juror F.R. (Snyder v. Louisiana, supra, 552 U.S. at p. ___ [170 L.Ed.2d at p. 181].) "Since the day the seminal decisions in Wheeler and Batson were each decided, it has been clearly understood that the unconstitutional exclusion of even a single juror on improper grounds of racial or group bias requires the commencement of jury selection anew, or reversal of the judgment where such error is established on appeal. [Citations.]" (People v. Reynoso (2003) 31 Cal.4th 903, 927, fn. 8 [3 Cal.Rptr.3d 769, 74 P.3d 852]; see People v. Granillo (1987) 197 Cal.App.3d 110, 123 [242 Cal.Rptr. 639].)
In Hernandez v. New York (1991) 500 U.S. 352 [114 L.Ed.2d 395, 111 S.Ct. 1859] (Hernandez), a prosecutor exercised peremptory challenges to two bilingual Hispanic jurors in a trial featuring Spanish-speaking witnesses because the jurors expressed some hesitation about accepting the court interpreter's translations as authoritative. (Id. at p. 356 [114 L.Ed.2d at pp. 403-404].) The defendant argued the challenges based on the jurors' ability to speak Spanish were not race neutral since the jurors' bilingual skills bore a close relation to their ethnicity. (Id. at p. 360 [114 L.Ed.2d at p. 406].) The Supreme Court concluded it did not need to address this argument because "the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony." (Ibid., fn. omitted.) As stated by the prosecutor, the basis for the peremptory challenges was race neutral. "[T]he challenges rested neither on the intention to exclude Latino or *629 bilingual jurors, nor on stereotypical assumptions about Latinos or bilinguals. The prosecutor's articulated basis for these challenges divided potential jurors into two classes: those whose conduct during voir dire would persuade him they might have difficulty in accepting the translator's rendition of Spanishlanguage testimony and those potential jurors who gave no such reason for doubt. Each category would include both Latinos and non-Latinos." (Id. at p. 361 [114 L.Ed.2d at p. 407].)
Once a race-neutral basis for the exercise of peremptory challenges has been offered, the trial court has the duty to determine if the defendant has proved purposeful discrimination. (Batson, supra, 476 U.S. at pp. 97-98 [90 L.Ed.2d at pp. 88-89]; Hernandez, supra, 500 U.S. at p. 363 [114 L.Ed.2d at p. 408]; Zambrano, supra, 41 Cal.4th at p. 1104.) The Supreme Court in Hernandez deferred to the trial court's decision on the ultimate question of discriminatory intent because the trial court took a permissible view of the evidence in crediting the prosecutor's explanation. (Hernandez, supra, at pp. 364-369 [114 L.Ed.2d at pp. 408-412].)
However, the Supreme Court in Hernandez, in its plurality opinion, offered this caution: "Our decision today does not imply that exclusion of bilinguals from jury service is wise, or even that it is constitutional in all cases. It is a harsh paradox that one may become proficient enough in English to participate in trial [citation], only to encounter disqualification because he knows a second language as well." (Hernandez, supra, 500 U.S. at p. 371 [114 L.Ed.2d at p. 413] (plur. opn. of Kennedy, J.) While not resolving the issue, the Supreme Court stated: "We would face a quite different case if the prosecutor had justified his peremptory challenges with the explanation that he did not want Spanish-speaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis." (Ibid.)
In People v. Cardenas (2007) 155 Cal.App.4th 1468 [66 Cal.Rptr.3d 821], the Second District Court of Appeal, Division Seven, followed Hernandez, supra, 500 U.S. 352 [114 L.Ed.2d 395], in rejecting a claim the prosecutor exercised group bias in violation of Wheeler by excusing two Spanishspeaking Hispanic prospective jurors because he distrusted their ability to accept the interpreter's version of witnesses' testimony. (155 Cal.App.4th at pp. 1475-1477.) Each of the two challenged prospective jurors was individually questioned regarding his or her ability to follow the interpretation given by the certified interpreter and had expressed some hesitancy. (Id. at pp. 1472-1474.) After carefully considering the record, the appellate court *630 found substantial evidence supported the trial court's finding that "the prosecutor had put forth a valid, race-neutral reason for excluding [the two jurors] and that this was the prosecutor's true reason, not a mere pretext to cover up intentional discrimination against Hispanics." (Id. at p. 1477.)
In contrast, in this case, there was no individual questioning of each of the prospective jurors who identified themselves as able to understand Spanish, and as a group they indicated they did not have a problem with accepting the interpreter's translation of testimony given in Spanish. Only Prospective Juror R.B. and Prospective Juror S.C. raised any questions about the requirement that they rely only on the official translation of testimony given in Spanish. Interestingly, the prosecutor did not justify his peremptory challenge to Prospective Juror S.C. on the basis of her questions or responses. He justified his challenge to her in part on her late return to court from the break. And the prosecutor never challenged Prospective Juror R.B., the only juror who actually indicated she would not be able to tune out what the witness actually says and listen only to the interpretation. The record does not reflect the ethnicity of R.B., but her surname is not Hispanic. Thus, it appears the prosecutor, through the exercise of his first four peremptory challenges, eliminated the clearly Hispanic Spanish-speaking prospective jurors, leaving Prospective Juror R.B. as the only juror who understood Spanish.
The prosecutor here did not justify his exercise of a peremptory challenge to Prospective Juror J.C. based on his particular demeanor or body language during the relevant questioning and group response. In fact, the prosecutor referenced only defense counsel's discussion of the language issue, not any particular jurors' response to that issue. The prosecutor then simply cited his general belief that there could be a problem when testimony was given by Spanish-speaking witnesses through an interpreter.
If the prosecutor had based his challenge to Prospective Juror J.C. on J.C.'s specific responses or reasonable inferences therefrom or if the prosecutor had described J.C.'s demeanor as the basis for the challenge then his "Spanishspeaking" reason might have been a race-neutral justification under Hernandez, supra, 500 U.S. at page 361 [114 L.Ed.2d at p. 407]. (People v. Cardenas, supra, 155 Cal.App.4th at p. 1477.) Instead, in the absence of any other evidence, this aspect of the prosecutor's stated basis expressed only "stereotypical assumptions about Latinos or bilinguals." (Hernandez, supra, 500 U.S. at p. 361 [114 L.Ed.2d at p. 407]; see People v. Calvin (2008) 159 Cal.App.4th 1377, 1388 [72 Cal.Rptr.3d 300] [if prosecutor had dismissed African-American jurors based merely on assumptions regarding their attitudes, defendant would have demonstrated unconstitutional group-based discrimination].) On this record we are unable to conclude that the prosecutor's *631 challenge to Prospective Juror J.C. based on Spanish-speaking jurors' issues with interpreters, was race neutral.
Indeed, on this record, the stated basis is strongly suspicious of being a ruse for excusing those persons who may be perceived as more closely identifying with their national origin and/or their Hispanic ethnicity, i.e., those who still speak Spanish. Given the prosecutor's systematic elimination of all Hispanic Spanish speakers, the fact there remained other Hispanics [apparently non-Spanish speakers] on the jury and on the panel does not in this case provide a sufficient inference of race neutrality. (See People v. Guerra (2006) 37 Cal.4th 1067, 1108 [40 Cal.Rptr.3d 118, 129 P.3d 321], disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151 [74 Cal.Rptr.3d 454, 180 P.3d 224] [fact that the jury included members of group allegedly discriminated against may be considered a factor indicating good faith in the exercising of peremptories].) We conclude the prosecutor's "Spanish-speaking" justification was unconstitutionally racially based.
The prosecutor's other reasons for challenging Prospective Juror J.C. also do not change our opinion. The prosecutor first explained he excused J.C. because he "was young; he had no significant ties as far as spouses, children. [¶] As far as experiences with what I'm particularly looking for in a juror, I don't believe he possessed those qualities."
(4) Youth and a corresponding lack of life experience can be a valid race-neutral basis for a peremptory challenge. (People v. Sims (1993) 5 Cal.4th 405, 430 [20 Cal.Rptr.2d 537, 853 P.2d 992] ["youthful college student with insufficient maturity to accept the responsibility involved in serving on a death-penalty case" and a juror who was "very young and appeared immature"]; People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [35 Cal.Rptr.2d 103] [single college students without significant life experience]; U.S. v. Ferguson (7th Cir. 1991) 935 F.2d 862, 865 [young and unemployed].) The problem with the prosecutor's statement here, however, is that it was implausible in light of its lack of support in the record.
While we accept as true the assertion that J.C. was young since defendant did not challenge the prosecutor's statement, we note the record does not disclose Prospective Juror J.C.'s age. A wide range of ages may arguably fall within the general characterization of "young." Moreover, what was significant about Prospective Juror J.C.'s youth, as expressed by the prosecutor, was his corresponding lack of maturity expressed through the absence of his marital and parental relationships and other life experiences. But nothing in the record supports such a conclusion.
During voir dire, Prospective Juror J.C. gave only his name and occupation. His occupation was clearing utility lines. Nothing in the nature of such *632 employment suggests it was not a responsible, permanent, possibly career, position. J.C. then stated his answer was "no" to the trial court's general questions. By such response, J.C. did not state an occupation of any "significant other" or any adult children, but he was not asked and he did not state he was single or childless. As there were no jury questionnaires used in this case, nothing else in the record supports the prosecutor's statement that Prospective Juror J.C. was single and childless. The prosecutor did not ask Prospective Juror J.C. any individual questions about any life experiences. The prosecutor did not ask him any individual questions at all. The prosecutor did not explain, nor did the trial court ask him to explain, what specific life experiences he was looking for in a juror or that he found Prospective Juror J.C. lacked.
Thus, the prosecutor's stated reasons were substantially unsupported by the record and implausible, particularly when considered in light of the prosecutor's statement of a reason that was not race neutral.
(5) We recognize that as long as the court makes "`"a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal."'" (Zambrano, supra, 41 Cal.4th at p. 1104, quoting People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009; see People v. Ervin, supra, 22 Cal.4th at pp. 74-75.) "`But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.'" (People v. Stevens, supra, 41 Cal.4th at p. 193, quoting People v. Silva, supra, 25 Cal.4th at p. 386.) The trial court must carefully evaluate the reasons given in light of the whole record and ask, when necessary, probing questions. (People v. Silva, supra, at pp. 385-386; People v. Fuentes (1991) 54 Cal.3d 707, 714-715 [286 Cal.Rptr. 792, 818 P.2d 75].) The trial court here did not sufficiently question and evaluate the prosecutor's exercise of his peremptory challenges. The trial court's ultimate determination that the prosecutor's challenge to Prospective Juror J.C. was not racially motivated is unreasonable in light of the evidence of the voir dire proceedings. (People v. Silva, supra, at p. 385.)
(6) The prosecutor's challenge of Prospective Juror J.C. violated defendant's right to equal protection and right to a jury drawn from a representative cross-section of the community as one of the prosecutor's stated reasons for excusing Prospective Juror J.C. was not race neutral. We shall reverse the judgment and remand for a new trial. (People v. Reynoso, supra, 31 Cal.4th at p. 927, fn. 8; Wheeler, supra, 22 Cal.3d at p. 283; Batson, supra, 476 U.S. at p. 100 [90 L.Ed.2d at p. 90].)
*633 DISPOSITION
The judgment is reversed and the matter is remanded for a new trial.
Davis, Acting P. J., and Morrison, J., concurred.
NOTES
[1] Hereafter, undesignated statutory references are to the Penal Code.
[2] Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).
[3] We conclude defendant's objection below based on Batson was sufficient to allow him to argue on appeal error under both Batson and Wheeler because a motion under either raises the same factual inquiries and application of the same legal standards. (See People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [2 Cal.Rptr.3d 186, 72 P.3d 1166] [Batson claim not forfeited in the trial court when defendant only cited Wheeler].)
[4] On our own motion we ordered the record augmented to include the jury questionnaires for the panel of prospective jurors summoned for defendant's trial. (Cal. Rules of Court, rule 8.155(a)(1).) The clerk of the trial court responded that jury questionnaires are not always used in San Joaquin County and that jury questionnaires were not filled out in this case. The trial court and parties, therefore, had no information about any of the prospective jurors other than what was developed on voir dire.
[5] We agree with appellant it is likely the prosecutor misspoke and that he meant to say "jurors" might have a problem listening.
[6] Later comments by defense counsel indicate there were five prospective jurors who raised their hands to signify they understood Spanish.
[7] It is misconduct for a juror to rely on his or her own translation instead of the interpreter's translation. (People v. Cabrera (1991) 230 Cal.App.3d 300, 303-304 [281 Cal.Rptr. 238].)
[8] Prospective Juror R.B., who does not have a Hispanic surname, was excused for cause by the trial court based on a financial hardship after the resolution of defendant's Batson/Wheeler motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265324/ | 185 Cal.App.4th 260 (2010)
110 Cal. Rptr. 3d 241
CLORISTEEN COLLINS et al., Plaintiffs and Respondents,
v.
PLANT INSULATION COMPANY, Defendant and Appellant.
No. A124268.
Court of Appeals of California, First District, Division One.
June 3, 2010.
*263 Horvitz & Levy, Lisa Perrochet, Robert H. Wright; Burnham Brown, Eric R. Haas, Richard J. Finn, Ulla M. Pajala, Kevin M. Larson; McKenna, Long & Aldridge, Christopher W. Wood and Catherine Liu for Defendant and Appellant.
Shook, Hardy & Bacon and Patrick J. Gregory for Coalition for Litigation Justice, Inc., as Amicus Curiae on behalf of Defendant and Appellant.
Kazan, McClain, Lyons, Greenwood & Harley, James L. Oberman, Michael T. Stewart and Phillip Allan Harley for Plaintiffs and Respondents.
OPINION
BANKE, J.
I. INTRODUCTION
Defendant Plant Insulation Company appeals from the judgment against it in this asbestos case, claiming the trial court erred in excluding the United *264 States Navy from the list of entities as to which the jury could apportion "fault" pursuant to Proposition 51. We agree, and reverse and remand for a retrial on apportionment.
II. FACTUAL AND PROCEDURAL BACKGROUND
We set forth only those facts pertinent to the appeal. Plaintiffs and respondents Cloristeen Collins and Patricia Collins (plaintiffs) are, respectively, the wife and daughter of Ulysses Collins (Collins). Collins died on May 8, 2005, of mesothelioma contracted as a result of workplace exposure to asbestos. Collins worked as a welder at the Hunters Point Naval Shipyard from 1960 to 1973, and as a boilermaker welder at the Standard Oil refinery in Richmond from 1973 through 1976. His last job was at the Mare Island Naval Shipyard, where he worked as a structural welder and pipewelder from 1976 through 1994. Throughout his career, Collins worked extensively with asbestos and asbestos-containing products, including those manufactured by defendant Plant Insulation Company (Plant).
At the close of evidence, plaintiffs moved for a directed verdict regarding the Navy, arguing fault could not be allocated to the service pursuant to Proposition 51 (Civ. Code, § 1431 et seq.).[1] Citing Munoz v. City of Union City (2007) 148 Cal.App.4th 173 [55 Cal.Rptr.3d 393] (Munoz), they claimed federal sovereign immunity precluded the Navy from being a "tortfeasor" for purposes of Proposition 51. They further asserted there was no evidence of an exception to that immunity and thus no evidence the Navy breached any duty of care owed to Collins. Plant opposed the motion, arguing allocation was proper under Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063 [6 Cal.Rptr.3d 695] (Taylor), and there was sufficient evidence to include the Navy among the entities to which the jury could allocate fault. The trial court ruled Munoz was controlling, and granted plaintiffs' motion.
The special verdict form listed 17 entities, including Plant, among which the jury could allocate responsibility for Collins's injuries. During deliberations, the jury sent a note to the court asking why the Navy was "omitted from [the] list of responsibility allocation." The court responded "[a]s a matter of law you may not apportion to the U.S. Navy. Do not speculate as to why." The jury found Plant was negligent and liable under strict products liability, and allocated fault as follows: 20 percent to Plant, 15 percent to Fibreboard, 5 percent to Chevron/Standard Oil, 30 percent to Owens-Corning Fiberglas/FENCO/Kaylo, and 30 percent to Johns-Manville/Western Asbestos/Western MacArthur.
*265 On November 7, 2008, the court issued judgment against Plant for $1,038,000 in economic damages, $400,000 for pain and suffering, $400,000 for loss of consortium, and $1 million in wrongful death damages ($600,000 to Collins's wife and $400,000 to his daughter). The judgment stated it "shall be amended nunc pro tunc to the date of its filing, today, November 7, 2009, [sic] when the Court makes its determinations as to costs and the amount by which the economic damages award shall be reduced to reflect plaintiffs' preverdict settlements with other defendants."[2] (Italics omitted.) On November 26, 2008, the court ordered the "judgment filed on November 7, 2008 ... modified so that the economic damages awarded against Plant Insulation Company ... shall be reduced by 10.349% of $9,139,490.46 or $945,845.87, for a net reduction of $93,104.13." This timely appeal by Plant followed.
III. DISCUSSION
Plant challenges the trial court's ruling that excluded the Navy from the list of entities to which fault could be allocated pursuant to Proposition 51. There is no dispute the Navy is immune from liability for plaintiffs' asbestos claims. Whether the Navy's immunity precludes an allocation of fault under Proposition 51 turns on the nature and character of the immunity, and is a question of law we review de novo. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [101 Cal.Rptr.2d 200, 11 P.3d 956].)
A. Proposition 51 and Fault Allocation to Immune Entities
We first examine the purpose and scope of Proposition 51, and its application to individuals and entities immune from suit.
By 1986, when Proposition 51 was placed on the ballot, "the courts had eliminated certain inequities of the former tort recovery system, but so-called `deep pocket' defendants whose fault was slight could still be saddled with large damage awards mainly attributable to the greater fault of others who were able to escape their full proportionate contribution. [Citation.] Proposition 51 sought to modify this system of recovery." (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 599 [7 Cal.Rptr.2d 238, 828 P.2d 140] (DaFonte).)
"Proposition 51 first codified its purpose by adding section 1431.1 to the Civil Code. This statute decries the unfairness and cost of the `deep pocket' rule to both `governmental and private defendants' [citation] and cites the *266 exploitation of relatively blameless defendants who `are perceived to have substantial financial resources or insurance coverage ....' [Citation.]" (DaFonte, supra, 2 Cal.4th at p. 599.) To "remedy these inequities," the statute declares "defendants in tort actions shall be held financially liable in closer proportion to their degree of fault. To treat them differently is unfair and inequitable." (§ 1431.1.) The statute further declares "reforms in the liability laws in tort actions are necessary and proper to avoid catastrophic economic consequences for state and local governmental bodies as well as private individuals and businesses." (Ibid.)
"To carry this intent into effect, Proposition 51 amended section 1431 and added section 1431.2. Amended section 1431 establishes a presumption that `[a]n obligation imposed upon several persons ... is presumed to be joint, and not several, except as provided in Section 1431.2 ....' (Italics added.) New section 1431.2 declares that in actions for wrongful death, personal injury, or property damage based on comparative fault, `the liability of each defendant for non-economic damages shall be several only and shall not be joint.' The statute further specifies that `[e]ach defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.'" (DaFonte, supra, 2 Cal.4th at pp. 599-600, quoting § 1431.2, subd. (a).)
"Proposition 51 thus retains the joint liability of all tortfeasors, regardless of their respective shares of fault, with respect to all objectively provable expenses and monetary losses. On the other hand, the more intangible and subjective categories of damage were limited by Proposition 51 to a rule of strict proportionate liability. With respect to these noneconomic damages, the plaintiff alone now assumes the risk that a proportionate contribution cannot be obtained from each person responsible for the injury." (DaFonte, supra, 2 Cal.4th at p. 600.)
(1) Proposition 51 thus contemplates a defendant's fault will be "compared to all other `fault' responsible for the injury." (Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 998 [60 Cal.Rptr.2d 103, 928 P.2d 1181] (Richards).)[3] This follows from the express purpose of Proposition 51"to eliminate the perceived unfairness of imposing `all the damage' on defendants who were `found to share [only] a fraction of the fault.' (§ 1431.1, subd. (b).) In this context, the only reasonable construction of section 1431.2 is that a `defendant['s]' liability for noneconomic damages cannot exceed his *267 or her proportionate share of fault as compared with all fault responsible for the plaintiff's injuries, not merely that of `defendant[s]' present in the lawsuit." (DaFonte, supra, 2 Cal.4th at p. 603.) Proposition 51 "`quite clearly is simply intended to limit the potential liability of an individual defendant for noneconomic damages to a proportion commensurate with that defendant's ... fault.'" (DaFonte, at p. 603.) The finder of fact must therefore consider all others whose conduct contributed to the plaintiff's injury, whether or not they are named as defendants and regardless of their economic circumstances. (Id. at pp. 600, 603.)
The statute "neither states nor implies an exception for damages attributable to the fault of persons who are immune from liability...." (DaFonte, supra, 2 Cal.4th at p. 601.) As DaFonte and Richards illustrate, whether apportionment is proper with respect to an individual or entity immune from suit depends on the nature and character of the immunity.
In DaFonte, the plaintiff was injured at work when his hand was crushed in a mechanical grape harvester. He received benefits from his employer's workers' compensation insurer and sued the manufacturer of the harvester for negligence and product defect. (DaFonte, supra, 2 Cal.4th at p. 596.) His tort action was consolidated with the insurer's subrogation action against the manufacturer, and he subsequently prevailed at trial. (Ibid.) The jury allocated 45 percent of the fault to his employer, and the trial court commensurately reduced the noneconomic damages award against the manufacturer. (Id. at pp. 596-597.) The plaintiff appealed, arguing fault should not have been allocated to his employer because it was immune from tort liability under the workers' compensation law. (Id. at p. 600.)
After analyzing the intent and purpose of Proposition 51, the Supreme Court rejected the plaintiff's argument. (DaFonte, supra, 2 Cal.4th at pp. 601-604.) Under workers' compensation law, an employer is liable for statutory compensation "without regard to negligence," but is immune from "any other liability." (Lab. Code, § 3600, subd. (a).) The court explained that an employer's immunity from suit does not mean it owes no duty of care to its employees and cannot be characterized as being at "fault" for injuries suffered in the workplace for purposes of Proposition 51. (DaFonte, at p. 604, fn. 6.) "No substantial reason is asserted, let alone a `compelling' one, why Proposition 51's manifest policy should not apply" to third party suits by injured workers. (Id. at pp. 603-604.)
In Richards, the plaintiff sued Owens-Illinois for asbestos-related injuries. (Richards, supra, 14 Cal.4th at pp. 989-990.) The plaintiff was a smoker, and Owens asked that tobacco companies be included in the list of entities as to which fault could be allocated pursuant to Proposition 51, regardless of the *268 companies' statutory immunity at the time under former section 1714.45. (Richards, at pp. 990-991.) The trial court did not allow apportionment. (Id. at p. 991.) The Court of Appeal reversed, relying on DaFonte. (Richards, at pp. 991-992.)
The Supreme Court reversed the appellate court, explaining the tobacco companies' immunity was fundamentally different than the employer's immunity at issue in DaFonte. (Richards, supra, 14 Cal.4th at pp. 998-1004.) The tobacco companies' immunity was the result of a legislative decree that the companies' conduct simply was not wrongful, i.e., that the companies did not owe, and therefore could not breach, any duty of care in connection with the sale of cigarettes. (Id. at pp. 999-1002.) The language of the statute and legislative history demonstrated section 1714.45 represented "a legislative judgment that to the extent of the immunity afforded, such companies have no `fault' or responsibility, in the legal sense, for harm caused by their products. To the same extent, such companies are thus not `tortfeasors' to whom comparative `fault' can be assigned for purposes of Proposition 51." (Richards, at p. 989.) "[T]he Legislature has determined, the mere manufacture and sale of such products create no tortious responsibility to individuals who voluntarily consumed them with the community's knowledge that they were unsafe." (Id. at p. 1002.) In short, "when the Immunity Statute was in effect, supplying pure and unadulterated tobacco products to knowing and voluntary consumers of those products was not subject to tort liability because it breached no legal duty and thus constituted no tort." (Myers, supra, 28 Cal.4th at p. 837, italics omitted.)
(2) Thus, under DaFonte and Richards, whether fault can be allocated to an immune individual or entity under Proposition 51 depends on whether the immunity is essentially an immunity from suit, or whether it is based on a predicate determination the conduct in question is not wrongful under the law. Subsequent cases illustrate this distinction.
In Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755 [43 Cal.Rptr.3d 215], for example, the plaintiff fell from a personal watercraft and was severely injured. She sued the operator of the watercraft for negligence and the manufacturer for product liability. (Id. at pp. 758, 764.) The operator successfully moved for summary judgment on the ground use of personal watercraft is an active sport to which primary assumption of risk principles apply. (Ibid.) The manufacturer nevertheless sought to include the operator among those persons or entities to which the jury could allocate fault. (Id. at p. 765.) The trial court denied the request, and the Court of Appeal affirmed. No fault could be apportioned to the operator, explained the court, because under primary assumption of risk principles, she owed no duty of care to the plaintiff and therefore "committed no tort." (Id. at p. 778.) Thus, "Richards, not DaFonte, controls." (Ibid.)
*269 In Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42 [71 Cal.Rptr.3d 415], the plaintiff, who had been convicted of assaulting a police officer based on the perjured testimony of the officers who arrested him, sued his criminal defense lawyer and her employer, Los Angeles County, for legal malpractice and sued the officers and their employer for violating his civil rights. (Id. at pp. 48-51.) The jury not only found the public defender negligent, but apportioned 100 percent of the fault to the lawyer. (Id. at pp. 48-51, 56.) The trial court granted a new trial on the ground the jury's failure to apportion any fault to the police officers was against the weight of the evidence. The court rejected the plaintiff's argument the officers' statutory immunity precluded apportionment, stating the immunity was "irrelevant to the apportionment of fault under [Proposition 51]." (Id. at p. 56.) The Court of Appeal affirmed. "Proposition 51 requires the apportionment of fault to all alleged tortfeasors responsible for Ovando's injuries, including [the police officers], notwithstanding any immunity under Government Code section 821.6." (Id. at pp. 72-73.) The court explained, "[n]either the statutory language, nor the purpose of the statute, nor any other material that has been cited to us suggests that the immunity is based on a legislative determination that a public employee in those circumstances breaches no legal duty and bears no `fault' for any injury caused." (Id. at p. 72.)
B. The Navy's Immunity
With these legal principles in mind, we now examine the nature and character of the Navy's immunity.
(3) "The United States, as sovereign, is immune from suit save as it consents to be sued ...." (United States v. Sherwood (1941) 312 U.S. 584, 586 [85 L.Ed. 1058, 61 S.Ct. 767]; accord, Library of Congress v. Shaw (1986) 478 U.S. 310, 315 [92 L.Ed.2d 250, 106 S.Ct. 2957], superseded by statute on another ground as stated in Landgraf v. USI Film Products (1994) 511 U.S. 244, 251 [128 L.Ed.2d 229, 114 S.Ct. 1483].) The United States has "waived its immunity for a wide range of suits," including those brought under the Federal Tort Claims Act (FTCA) (28 U.S.C. § 2671 et seq.). (Department of Army v. Blue Fox, Inc. (1999) 525 U.S. 255, 260 [142 L.Ed.2d 718, 119 S.Ct. 687].)
(4) The FTCA "provides that, subject to certain exceptions, `[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.'" (Department of Army v. Blue Fox, Inc., supra, 525 U.S. at p. 260, fn. 3, quoting 28 U.S.C. § 2674.) One such exception is for lawsuits "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal *270 agency or an employee of the Government, whether or not the discretion involved be abused." (28 U.S.C. § 2680(a).) To determine whether a lawsuit falls within this "discretionary function exception," the courts employ a twofold test. First, a court must consider whether the challenged conduct involved elements of judgment or choice. (Berkovitz v. United States (1988) 486 U.S. 531, 536 [100 L.Ed.2d 531, 108 S.Ct. 1954].) "[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." (Ibid.) Secondly, a court must determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." (Id. at p. 536.) "[O]nly governmental actions and decisions based on considerations of public policy" fall within the exception. (Id. at p. 537.)
(5) It is undisputed the Navy is immune from liability in this case by virtue of the "discretionary function exception" to the FTCA. This exception has been held to bar actions based on the federal government's alleged negligence in using asbestos on ships, failing to warn of its dangers, and promulgating an inadequate policy or having no policy for asbestos safety in shipyards. (Sea-Land Service, Inc. v. U.S. (3d Cir. 1990) 919 F.2d 888, 892-893; Gordon v. Lykes Bros. S.S. Co., Inc. (5th Cir. 1988) 835 F.2d 96, 99-100; Shuman v. U.S. (1st Cir. 1985) 765 F.2d 283, 290.)
(6) Plant argues the Navy's immunity is essentially one from suit and does not mean the service owes no duty of care as to its enlisted personnel and civilian employees and thus cannot be characterized as a "tortfeasor" for purposes of Proposition 51. Plaintiffs contend sovereign immunity is based on the historical adage "the King can do no wrong" and therefore the Navy's actions cannot be "wrongful" and thus no "fault" can be allocated to the service. We agree with Plant and conclude the Navy is properly included among those entities to which fault may be apportioned in an asbestos case.
The discretionary function exception to the federal government's waiver of its sovereign immunity in the FTCA represents a policy decision by Congress that certain actions of the United States, even if wrongful, are immune from suit. The federal statute states: "The provisions of this chapter ... shall not apply to ... [¶] [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." (28 U.S.C. § 2680(a), italics added.) The plain language of the statute thus acknowledges the federal government can "abuse" its discretionan acknowledgement that would be superfluous absent recognition conduct by the government can, indeed, be wrongful.
*271 In Dalehite v. United States (1953) 346 U.S. 15 [97 L.Ed. 1427, 73 S.Ct. 956],[4] the United States Supreme Court held the discretionary function exception extends to negligent conduct. "One only need read [title 28 United States Code section] 2680 [(containing the exceptions to the FTCA)] in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions." (Dalehite, at p. 32, italics added.) As the court explained, "[t]he exercise of discretion could not be abused [as expressly referenced in the statute] without negligence or a wrongful act." (Id. at p. 33.) The court observed its reading of the statute was further confirmed by the legislative history of the act. (Id. at p. 29, fn. 21.) The judiciary committees of both the Senate and House of Representatives stated: "`The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion.'" (Ibid., quoting H.R.Rep. No. 2245, 77th Cong., 2d Sess., p. 10 (1942); Sen.Rep. No. 1196, 77th Cong., 2d Sess., p. 7 (1942); H.R.Rep. No. 1287, 79th Cong., 1st Sess., pp. 5-6 (1945), italics added; accord, FDIC v. Meyer (1994) 510 U.S. 471, 475 [127 L.Ed.2d 308, 114 S.Ct. 996] [FTCA "waived the sovereign immunity of the United States for certain torts committed by federal employees" (italics added)].)
The federal courts of appeals have likewise consistently stated the discretionary function exception protects the government from suit regardless of negligence. "`[A]t its root, the discretionary function exception is about power, not fairness. The sovereign has, by the exercise of its authority, reserved to itself the right to act without liability for misjudgment and carelessness in the formulation of policy.'" (Walters v. U.S. (8th Cir. 2007) 474 F.3d 1137, 1140, italics added, quoting National Union Fire Ins. v. U.S. (9th Cir. 1997) 115 F.3d 1415, 1422; see, e.g., Grammatico v. U.S. (7th Cir. 1997) 109 F.3d 1198, 1203 ["Once a discretionary function has been identified... the government may not be held liable for its negligence in carrying out the discretionary act...." (italics added)]; Sea-Land Service, Inc. v. U.S., supra, 919 F.2d at p. 892 ["the government may be negligent but nevertheless immune from tort liability" (italics added)]; 14 Wright et al., Federal Practice and Procedure (3d ed. 1998) Jurisdiction, § 3658.1, p. 639 ["once governmental actions have been labeled discretionary, it is immaterial whether those actions have been negligently performed for purposes of determining the applicability of the [discretionary function] exception ...."].)
The discretionary function exception to the FTCA waiver is based on a "desire to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the *272 medium of an action in tort." (United States v. Varig Airlines, supra, 467 U.S. at p. 814.) Thus, the nature of the immunity afforded by the discretionary function exception is not predicated on the notion the federal government owes no duty of care in connection with what it does, but rather is grounded on the determination that, given the myriad considerations that go into a discretionary decision, including economic and political costs, as well as the potential for harm to participants, it is not in the public's best interest to subject these decisions to post hoc examination in the crucible of tort litigation.
The federal government also has adopted an alternative compensation system for federal employees under the Federal Employees' Compensation Act (FECA), akin to the alternative compensation system provided by the California's workers' compensation law. The FECA provides, in part, "The United States shall pay compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty ... [including for] [¶] ... [¶] ... [d]isability or death from a war-risk hazard ...." (5 U.S.C. § 8102(a)-(b).) "In enacting this provision, Congress adopted the principal compromisethe `quid pro quo'commonly found in workers' compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government." (Lockheed Aircraft Corp. v. United States (1983) 460 U.S. 190, 194 [74 L.Ed.2d 911, 103 S.Ct. 1033].) Similarly, the Veterans Benefits Act establishes "as a substitute for tort liability, a statutory `no fault' compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government"; and the disciplinary problems that would result if soldiers could sue their superiors "`for negligent orders given or negligent acts committed in the course of military duty.'" (Stencel Aero Engineering Corp. v. U.S. (1977) 431 U.S. 666, 671-672 [52 L.Ed.2d 665, 97 S.Ct. 2054] (Stencel).)
Plaintiffs argue there is no evidence Collins was a civilian employee of the Navy covered under the FECA or an enlisted servicemember covered by the Veterans Benefits Act. This argument misses the mark. What these alternative compensation schemes reinforce is that federal immunity is immunity from suit, not a legislative decree the federal government can do no wrong and owes no duty of care to its employees and service personnel.
Plaintiffs' reliance on the old maxim the "King can do no wrong" is also misplaced. Although the United States looked to English common law when embracing the doctrine of sovereign immunity, it repudiated the fiction of an infallible monarch. The United States Supreme Court long ago described the maxim plaintiffs invoke as an "ancient and discredited doctrine." (Dalehite v. *273 United States, supra, 346 U.S. at p. 60 (dis. opn. of Jackson, J.).) "We have no king to whom it can be applied. The President ... is the only individual to whom it could possibly have any relation. It cannot apply to him, because the Constitution admits that he may do wrong ...." (Langford v. United States (1879) 101 U.S. 341, 343 [25 L.Ed. 1010].) Thus, "the common-law fiction that `[t]he king ... is not only incapable of doing wrong, but even of thinking wrong,' [citation] was rejected at the birth of the Republic." (Clinton v. Jones (1997) 520 U.S. 681, 697, fn. 24 [137 L.Ed.2d 945, 117 S.Ct. 1636], italics omitted; accord, Feres v. United States (1950) 340 U.S. 135, 139 [95 L.Ed. 152, 71 S.Ct. 153] (Feres) ["the political theory that the King could do no wrong was repudiated in America ..."]; Langford v. United States, supra, 101 U.S. at p. 343 ["We do not understand that either in reference to the government of the United States, or of the several States, or of any of their officers, the English maxim has an existence in this country."].)
Moreover, "the meaning traditionally ascribed to this phrase is an ironic perversion of its original intent: `The maxim merely meant that the King was not privileged to do wrong. If his acts were against the law, they were injuriae (wrongs). Bracton, while ambiguous in his several statements as to the relation between the King and the law, did not intend to convey the idea that he was incapable of committing a legal wrong.'" (Owen v. City of Independence (1980) 445 U.S. 622, 645, fn. 28 [63 L.Ed.2d 673, 100 S.Ct. 1398], quoting Borchard, Government Liability in Tort (1924) 34 Yale L.J. 1, 2, fn. 2.) As Justice Stevens has observed: "the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption." (Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44, 95 [134 L.Ed.2d 252, 116 S.Ct. 1114] (dis. opn. of Stevens, J.).)
Federal sovereign immunity is thus grounded not on the notion the government is infallible and can do no wrong, but on the jurisdictional theory it must consent to suit before it can be sued for its wrongful conduct. (See, e.g., United States v. Navajo Nation (2009) 556 U.S. ___, ___ [173 L.Ed.2d 429, 129 S.Ct. 1547, 1551] [sovereign immunity reflects fundamental principle federal government "cannot be sued without its consent"]; Library of Congress v. Shaw, supra, 478 U.S. at p. 315; United States v. Sherwood, supra, 312 U.S. at p. 586.)
We therefore agree with the decision of our colleagues in Taylor, supra, 113 Cal.App.4th at page 1063, that fault may be allocated to the Navy under Proposition 51. In Taylor, a former Navy serviceman who contracted mesothelioma and his wife sued manufacturers of the asbestos-containing products with which he worked. (Taylor, at p. 1065.) The jury returned a verdict for the plaintiffs and allocated 31 percent of the fault to the defendant, 16 *274 percent to the Navy, and the remaining percentage to other entities. (Id. at pp. 1066-1067.) The plaintiffs appealed, arguing the Navy was "immune from liability" and therefore "it was error to allocate fault to the Navy for purposes of calculating defendant's proportionate share of their noneconomic damages." (Id. at p. 1067.) The defendant argued the Navy was not "immune under either the discretionary immunity exception or the Feres/Stencel rule."[5] (113 Cal.App.4th at p. 1068.)
(7) The Court of Appeal concluded it did not need to decide whether the discretionary function exception or the Feres/Stencel rule applied because "even assuming the Navy was immune, the trial court properly allowed the fault of the Navy to be taken into account in allocating responsibility for plaintiffs' injuries." (Taylor, supra, 113 Cal.App.4th at p. 1068, italics added.) The court explained, "Richards and DaFonte establish that under Proposition 51, fault will be allocated to an entity that is immune from paying for its tortious acts, but will not be allocated to an entity that is not a tortfeasor, that is, one whose actions have been declared not to be tortious. We are aware of no declaration stating the government breaches no duty to military personnel when it exercises its discretion or when a serviceman is injured in the course of military service. Indeed, the cases make clear the government is immune from claims based on such conduct even if it has been negligent." (Id. at p. 1071.) The court therefore affirmed the allocation of fault to the Navy.[6] (113 Cal.App.4th at p. 1071.)
Plaintiffs argue Taylor is inapposite, pointing out "the words `sovereign immunity' appear nowhere in the opinion." They contend Taylor "overlooked the fact that by default the Navy `is not a tortfeasor,'" because "[d]ue to the parties' framing of the issues on appeal, the court in Taylor was not asked to consider, and therefore did not consider, the issue of sovereign immunity." True, the appellate court did not use the specific phrase "sovereign immunity." However, the court plainly was dealing with that issue given its reference to the discretionary function exception and the Feres/Stencel doctrine and its holding that, regardless of whether either of these exceptions to the FTCA applied, apportionment of fault to the Navy was proper. Thus, *275 Taylor did not "overlook" the Navy's sovereign immunity. Rather, it correctly held fault may be apportioned to the Navy under Proposition 51 because, although the Navy is immune from suit, no authority suggests it owes no duty of care to its service personnel and civilian employees. Indeed, all authority is to the contrary.
Plaintiffs also argue Taylor is no longer good law in light of Munoz, supra, 148 Cal.App.4th at page 173. In Munoz, the family of Lucilla Amaya sued the police officer who shot and killed her, and his employer, Union City. The officer had responded to a call Amaya might hurt herself or others because she was under the influence, had a knife, and had previously been committed for psychiatric evaluation. He shot her when she made a movement that "led him to believe she was going to kill her father and daughter." (Id. at p. 176.) The jury found the officer and city liable for battery and negligence and, as to the latter claim, apportioned 50 percent of the fault to the officer, 45 percent to the city and 5 percent to Amaya. (Id. at p. 175.) The Court of Appeal upheld the verdict against the officer for unreasonable use of force and against the city under vicarious liability. However, it reversed the verdict against the city based on its own direct negligence, holding the city could not be liable for direct negligence under the doctrine of sovereign immunity. (Id. at pp. 175, 180.) On remand, the trial court reduced the damages award by 45 percent, the percentage of fault allocated to the City. (Id. at pp. 177-178.)
In a second appeal, the plaintiffs argued the trial court erred in reducing the judgment, rather than increasing the officer's percentage of fault. The Court of Appeal agreed, stating "[s]ince Union City was not a tortfeasor, there was no basis for allocating a portion of the damages [to it] under principles applicable when two or more defendants are legally at fault." (Munoz, supra, 148 Cal.App.4th at p. 182.) "In the absence of duty, there can be no tort liability, and no fault can be allocated to a party that is not a tortfeasor. [Citations.] It necessarily follows that no portion of the fault could be allocated to Union City ...." (Ibid.)
Munoz considered only the immunities created by California's Government Code to shield California "public entities" as defined and specified by the state statute. It did not consider, let alone analyze, the character of the Navy's immunity. Further, it acknowledged Taylor's holding and quoted the Court of Appeal's pivotal statement that it was "`aware of no declaration stating the government breaches no duty to military personnel when it exercises its *276 discretion or when a serviceman is injured in the course of military service. Indeed, the cases make clear the [federal] government is immune from claims based on such conduct even if it has been negligent.'" (Munoz, supra, 148 Cal.App.4th at p. 181, italics omitted, quoting Taylor, supra, 113 Cal.App.4th at p. 1071.)[7]
(8) We thus conclude the trial court erred in excluding the Navy from the list of entities as to which the jury could apportion fault pursuant to Proposition 51. Since the evidence was sufficient to support an apportionment of fault to the Navy, the error was prejudicial, requiring reversal of the judgment.
C. Scope of Retrial
Plaintiffs argue a retrial should be limited to apportionment of fault. Plant maintains there should be a new trial on all issues.
(9) A limited retrial may be ordered if the issue to be tried "`can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial.'" (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 774-776 [63 Cal.Rptr.2d 859, 937 P.2d 290].) In O'Kelly v. Willig Freight Lines (1977) 66 Cal.App.3d 578 [136 Cal.Rptr. 171] (O'Kelly), the Court of Appeal limited retrial to the issue of apportionment. The court explained: "It is true that, in order to make a proper allocation of damage, the jury on the new trial will have to hear, and weigh, anew, all of the evidence dealing with the conduct of the parties, but the jury may, properly, be told, when the case is submitted to them that: (a) as matter of the law of this case, they must find that each party is negligent in some degree; (b) they must proceed on the assumption that the total damage was [the amount found by the first jury]; and (c) their sole function is to apportion that total damage between the parties." (Id. at p. 583.)
There has been no challenge to the jury's liability verdict here, and we agree that, as in O'Kelly, a retrial can properly be limited to the issue of apportionment of fault without causing "confusion or uncertainty."
*277 IV. DISPOSITION
The judgment is reversed and the case remanded for a retrial limited to apportionment of fault among the Navy and defendants already found liable by the jury. Given our disposition, we do not reach the postjudgment interest issue raised by Plant.
Margulies, Acting P. J., and Dondero, J., concurred.
NOTES
[1] All further statutory references are to the Civil Code unless otherwise indicated.
[2] The judgment was actually entered on November 12, 2008.
[3] Richards's holding was subsequently abrogated by amendment of section 1714.45, to eliminate the tobacco companies' immunity from tobacco-related tort claims. (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840 [123 Cal.Rptr.2d 40, 50 P.3d 751] (Myers).)
[4] Overruled on another ground as noted in United States v. Varig Airlines (1984) 467 U.S. 797, 813, footnote 10 [81 L.Ed.2d 660, 104 S.Ct. 2755].
[5] The Feres doctrine is another exception to the waiver of sovereign immunity in the FTCA for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." (Feres, supra, 340 U.S. at p. 146; see Stencel, supra, 431 U.S. 666.)
[6] For the same reason Taylor held there was no need to decide whether an exception to the FTCA applied, there is no merit to plaintiffs' argument that there is "no evidence" an exception applied here, rendering the Navy subject to suit. The issue is not whether there was a "waiver" of the Navy's immunity, but whether the character and nature of its immunity is such to preclude an allocation of fault pursuant to Proposition 51. Like Taylor, we conclude the Navy's immunity does not preclude such an allocation.
[7] We also note trial courts in asbestos cases have routinely used verdict forms listing the Navy as one of the entities among which fault may be apportioned. (See, e.g., Donaldson v. National Marine, Inc. (2005) 35 Cal.4th 503, 507 [25 Cal.Rptr.3d 584, 107 P.3d 254]; Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 714, fn. 5 [99 Cal.Rptr.3d 418].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265348/ | 185 Cal.App.4th 1003 (2010)
RAYMOND GARDNER, Petitioner,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;
COUNTY OF CONTRA COSTA, Real Party in Interest.
No. A125861.
Court of Appeals of California, First District, Division Two.
June 18, 2010.
*1006 Daniel A. Horowitz, under appointment by the Court of Appeal, for Petitioner.
Elias Batchelder for Habeas Corpus Resource Center as Amicus Curiae on behalf of Petitioner.
Robin Lipetzky, Acting Public Defender, and Jonathan Laba, Deputy Public Defender, for Public Defender of Contra Costa County as Amicus Curiae on behalf of Petitioner.
John T. Philipsborn for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioner.
Natasha Minsker for American Civil Liberties Union as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Sharon L. Anderson, County Counsel, Esther Milbury and Rebecca Hooley, Deputy County Counsel, for Real Party in Interest.
Robert J. Kochly, District Attorney, and Doug MacMaster, Deputy District Attorney, for District Attorney of Contra Costa County as Amicus Curiae on behalf of Real Party in Interest.
Edmund G. Brown, Jr., Attorney General, and Gerald A. Engler, Assistant Attorney General, upon the request of the Court of Appeal.
*1007 OPINION
RICHMAN, J.
Penal Code section 987.9 (section 987.9) provides that in "the trial of a capital case ... [an] indigent defendant ... may request the court for funds for ... investigators, experts, and others for the preparation... of the defense." Apparently for years, the Contra Costa County Superior Court entertained section 987.9 requests by indigent defendants charged in special circumstances murders even when the requests were made before the preliminary hearing. Petitioner Raymond Gardner, charged with special circumstances murder, moved in 2009 for section 987.9 funds, a request the court denied solely because the district attorney had not announced that he was seeking the death penalty and, until he did, petitioner's case was not "presently a capital case."
We conclude this was error, as a "capital case" as used in section 987.9 means one where the defendant faces the possibility of the death penalty, where the defendant "actually risks death." (Sand v. Superior Court (1983) 34 Cal.3d 567, 571 [194 Cal.Rptr. 480, 668 P.2d 787] (Sand).) So, unless the district attorney makes an announcement to the contrary, a defendant charged with murder with special circumstances is exposed to that punishment, and a section 987.9 request must be heard on the merits.
BACKGROUND
On April 17, 2009, petitioner Raymond Gardner was charged with a violation of Penal Code section 187, subdivision (a),[1] for the willful, deliberate, and premeditated murder of Bruce King, with two "special circumstances," that the murder was committed during the commission or attempted commission of a robbery and burglary.[2] (§ 190.2, subd. (a)(1).) After arraignment but before the preliminary hearing, petitioner's counsel filed a motion entitled "Request for Investigative Funding (Capital Murder CasePenal Code § 987.9)," requesting funds for a second counsel (under Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108]), a paralegal, and an investigator.[3] The presiding judge of the Contra Costa *1008 County Superior Court denied the motion without reaching the merits, concluding that section 987.9 did not apply because the "[d]efendant's case is not presently a capital case." Specifically, the court said, the prosecution had not made a "final determination" on whether to seek life without possibility of parole (LWOP) or the death penalty and, until such determination is made, petitioner "has an LWOP case."
Petitioner renewed his request, citing Abernathy v. Superior Court (2007) 157 Cal.App.4th 642 [68 Cal.Rptr.3d 726] (Abernathy). The superior court again denied the motion and petitioner filed a petition for writ of mandate. After receiving informal opposition from the Attorney General,[4] we issued an order to show cause and have received the briefing by the parties and, in addition, amicus curiae briefs from California Attorneys for Criminal Justice, American Civil Liberties Union, Habeas Corpus Resource Center, and the Contra Costa County Public Defenders Office. We then heard oral argument.
DISCUSSION
1. The petition is moot, but we decide the issue anyway
In the course of the briefing here petitioner was advised by the District Attorney of Contra Costa County that he would not seek the death penalty in this case. Because of this decision real party in interest and the district attorney argue the petition is moot, relying on the California Supreme Court decision in Sand, supra, 34 Cal.3d 567, which specifically held that section 987.9 does not apply to a murder case in which the prosecution has stated it will not seek the death penalty. (Sand, supra, at pp. 571-572.)
(1) As a general rule "[a] writ of mandate will not issue to enforce an abstract right, when the occurrence of an event subsequent to the commencement of the proceeding makes the issuance of the writ of no practical benefit to the petitioner." (Clementine v. Board of Civ. Ser. Commrs. (1941) 47 Cal.App.2d 112, 114 [117 P.2d 369].) That general rule bends, however, when *1009 the case presents an "important question affecting the public interest that is `"`capable of repetition, yet evading review.'"'" (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190, fn. 6 [86 Cal.Rptr.2d 778, 980 P.2d 337]; see also Peterson v. City of San Diego (1983) 34 Cal.3d 225, 227 [193 Cal.Rptr. 533, 666 P.2d 975] [appellate courts have discretion to consider a case that is technically moot when the issues are of continuing public importance].) This aptly describes the situation here.
Before 2009, the policy of the Contra Costa County Superior Court was to rule on requests for section 987.9 funds on the merits, even when the funds were sought before the preliminary hearing. However, sometime in 2009 the presiding judge apparently instituted a new policy, to deny requests for ancillary funding made prior to an announcement that the district attorney would seek the death penalty. Since then at least two other petitions for mandate have been filed in this court arising from this policy: Burris v. Superior Court (Oct. 23, 2009, A126366) in Division Three, and Miranda v. Superior Court (Dec. 18, 2009, A127054) in Division Five, both of which petitions were denied. While Miranda was uneventful, with no petition for review filed after the denial. Burris was not. In that case, after Division Three denied the petition, the Supreme Court granted defendant's petition for review and transferred the case back to Division Three "with directions to vacate its order denying the writ of mandate and to issue an alternative writ."[5] Division Three issued the alternative writ and later dismissed the petition as moot when the superior court decided the motion on its merits and "granted funds pursuant to Penal Code section 987.9."
While the superior court complied with the alternative writ in Burris, it is far from clear that the issue has gone away: nothing in the record or anything said at oral argument indicates that the superior court has changed its policy. Absent such a policy reversal, the ancillary defense funding in every special circumstance case in Contra Costa County is affected. It is, in short, an important issue. And unquestionably one capable of repetition. And of evading review. The petition here was filed on August 25, 2009, more than a month before the petition in Burris, filed on October 9, 2009. Yet, Burris was able to wend its way through this court, up to the Supreme Court, get transferred back to this court, and then be rendered moot by the superior courtall before our case was even set for oral argument.
*1010 2. The superior court must hear the request on the merits
California law has long provided for imposition of the death penalty. The 1849 Constitution "recognize[d] the existence of capital punishment," a recognition carried over into the 1879 version. (People v. Anderson (1972) 6 Cal.3d 628, 638 [100 Cal.Rptr. 152, 493 P.2d 880].) A brief interruption occurred in early 1972, when our Supreme Court concluded "that capital punishment is impermissibly cruel," and held that the sections of the Penal Code providing for that punishment were, "accordingly, unconstitutional." (Id. at pp. 656-657.) In November of that year the voters amended the Constitution and reinstated the death penalty, which constitutional "amendment was intended to nullify People v. Anderson ...." (3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 410, p. 546.) Thereafter "[a] new death penalty statute was enacted in 1977," which has since been upheld by the California Supreme Court. (Ibid.)
(2) Section 987.9 was part of that 1977 statutory scheme, and provides in pertinent part that in "the trial of a capital case ... the indigent defendant, through the defendant's counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense." (§ 987.9, subd. (a).) These funds are "to supplement preexisting provisions for employment of defense counsel at public expense by making provision for services ancillary to those of counsel." (Keenan v. Superior Court, supra, 31 Cal.3d at p. 430 (Keenan).) The Legislature provided for these extra funds presumably because imposition of the death penalty "is qualitatively different from a sentence of imprisonment." (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed.2d 944, 96 S.Ct. 2978].) "Because life is at stake, courts must be particularly sensitive to insure that every safeguard designed to guarantee defendant a full defense be observed." (Keenan, supra, 31 Cal.3d at p. 430.)
Against this background, the substantive question before us is straightforward: Does section 987.9 apply in a special circumstances murder case where the district attorney has not announced that he or she will seek the death penalty? The superior court answered in the negative and refused to hear the motion on the merits, primarily relying on Sand, supra, 34 Cal.3d 567. We read Sand otherwise, as supporting the conclusion that the superior court has to hear the request on the merits.
Sand is noteworthy as the leading case on eligibility for section 987.9 funding issues, but it dealt with the inverse of the situation here. There, the defense requested section 987.9 funding after the prosecution had elected not to seek the death penaltyin other words, in a setting where Sand was facing a maximum possible sentence of LWOP. The Supreme Court concluded that *1011 because Sand "does not risk capital punishment, his is not a `capital case' within the meaning of section 987.9." (Sand, supra, 34 Cal.3d at p. 572.)
The analysis leading to the conclusion in Sand began with the Supreme Court observing that "capital case" is ambiguous: it "might be understood either to define the nature of the offense chargedi.e., murder with special circumstancesor to describe the permissible punishmenti.e., that the death penalty may be imposed." (Sand, supra, 34 Cal.3d at p. 570.) Because of this "ambiguity," the court sought to "discern [the] legislative intent" behind section 987.9. (Sand, supra, 34 Cal.3d at p. 570.) That legislative history led the court to conclude that section 987.9 was not intended to apply to all special circumstance cases, but rather only those where the death penalty remained a possibility: "Nowhere [in the 1977 statutory scheme] is the term `capital case' defined, and no distinction relevant for purposes of construing section 987.9 is made between death and life imprisonment without parole. However, because the ultimate purpose of the 1977 statute was to reinstate the death penalty, we may reasonably conclude that its companion section 987.9 was intended to insure that in cases in which the defendant actually risks death he or she will be afforded such ancillary defense services as are necessary to a `complete and full defense.'" (Sand, at p. 571.)
Importantly, the court repeatedly used the term "actually risks death" or similar terms in describing a "capital case." For example, in discussing the history of section 987.9, the court observed that "the Legislature has expressed its intention that the defense services funding provision apply in those cases in which death remains a possible punishment." (Sand, supra, 34 Cal.3d at p. 571, italics added.) And in contrasting the provision to differently worded statutes, the court stated that "[s]ection 987.9, in contrast, provides for ancillary defense funds in `capital cases' onlyi.e., only when the death penalty may be imposed." (Id. at pp. 571-572, italics added.) The court also reviewed its prior decision in Keenan, where it "define[d] a `capital case' as one in which the death penalty may be imposed: `In a murder prosecution that is factually and legally complex, the task of effectively preparing for trial places a substantial burden on the defense attorney. This is particularly true of a capital case, since the possibility of a death penalty raises additional factual and legal issues.'" (Sand, supra, at p. 573.)[6]
Like the superior court, real party in interest here also relies on People v. Ward (2005) 36 Cal.4th 186 [30 Cal.Rptr.3d 464, 114 P.3d 717] (Ward). But *1012 Ward merely affirms Sand. Defendant Ward was charged with special circumstances, and a possible death penalty, because he allegedly committed multiple murders. When his motion to sever was granted, the court relieved his second Keenan counsel in the first murder case, for the killing of Stumpf. On appeal, Ward argued it was error to relieve the second counsel. The Supreme Court disagreed, as Ward no longer faced the death penalty: "[O]nce the court granted defendant's severance motion, the trial for the killing of Stumpf was no longer a capital case but simply a first degree murder prosecution. Indeed, following severance, defendant faced the specter of the death penalty only if he were convicted of the first or second degree murder of Stumpf. (See § 190.2, subd. (a)(2); cf. Williams v. Superior Court (1984) 36 Cal.3d 441, 454 [204 Cal.Rptr. 700, 683 P.2d 699].) As such, the court had no authority to maintain ... second counsel ...." (Williams, at pp. 197-198.) Ward provides no support for the proposition that petitioner was not charged in a "capital case." Indeed, Ward seemingly recognizes the limitation of Sand, parenthetically describing it as "holding that the defendant was not entitled to ancillary defense services under [section] 987.9 because he no longer faced the death penalty." (Id. at p. 198, italics added.)
(3) Nonetheless, the superior court held, and real party in interest vigorously argues, that section 987.9 does not apply unless the district attorney makes a formal declaration that he or she is seeking the death penalty. Such vigor is misplaced. Under the 1977 statutory scheme, unless the district attorney declines to pursue the death penalty, the only legal impediment between a defendant in a special circumstance case and a judgment of death is the trier of fact. The Penal Code provides that once special circumstances are alleged, the trier of fact is then to determine whether the defendant should serve LWOP or face death. (§§ 190.3, 190.4, subd. (a).) Put otherwise, when the district attorney has filed a complaint alleging a charge of murder and special circumstances, the district attorney has effectivelyalbeit impliedly "elected" to seek the death penalty, an "election" in force unless and until the district attorney stipulates otherwise. Simply, there is nothing in the Penal Code requiring an express "election" by the district attorney to seek the death penalty, as held in Abernathy, supra, 157 Cal.App.4th 642.
In Abernathy our colleagues in Division One were faced with the issue coincidentally arising out of the same superior court as herewhether a defendant in a special circumstance case was entitled to daily preliminary hearing transcripts under section 190.9, subdivision (a)(1), which provides that in "any case in which a death sentence may be imposed," a court reporter is to "prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing." The magistrate "read subdivision (a)(1) [of section 190.9] to require distribution of daily preliminary hearing transcripts only in those cases in which the prosecutor has announced a decision to seek the death penalty" (Abernathy, supra, 157 Cal.App.4th at p. 645), and, as the *1013 district attorney had not announced that decision, the magistrate denied the motion. The defendant filed a petition for writ of mandate, which the superior court denied, concluding in part that, "absent the prosecutor's decision[,] ... daily preliminary hearing transcripts were not required."[7] (157 Cal.App.4th at pp. 645-646.)
Division One reversed, holding that the requirement for daily preliminary hearing transcripts in a special circumstances case did not hinge on an affirmative act by the prosecutor: "As Abernathy correctly argues, the plain language of subdivision (a)(1) is unambiguous. It makes no mention of the prosecutor's decision to seek the death penalty, nor any requirement of a holding order. (§ 872.) Instead, subdivision (a)(1) expressly requires preparation of a daily preliminary hearing transcript `[i]n any case in which a death sentence may be imposed.' Moreover, no statute or case law requires the prosecutor to give a notice of the intention to seek the death penalty. Nothing in section 190.9 requires a holding order and the setting of a trial date as prerequisites to the requirement of daily preliminary hearing transcripts." (Abernathy, supra, 157 Cal.App.4th at p. 648, fn. omitted & italics added.)
The footnote referenced in the quotation above supports our conclusion. Discussing Sand, the footnote observes that "[s]ection 987.9 (requiring funds for indigent defendants in capital cases), for example, does not require notice from the prosecutor. But the district attorney's voluntary formal notice declining to seek the death penalty precludes authorization of such funds." (Abernathy, supra, 157 Cal.App.4th at p. 648, fn. 5, italics added.)
A 1981 California Attorney General's opinion construing the definition of "capital case" in section 987.9 is also instructive. The question there was whether a minor not eligible for the death penalty was entitled to section 987.9 funds. (64 Ops.Cal.Atty.Gen. 648, 649 (1981).) Answering the question in the negative, the Attorney General first looked to the definition of "capital case" in section 987.9, and concluded it did not apply to minors ineligible for the death penalty, relying on out-of-state authority defining a "capital case" as "`a criminal case punishable with death' ... and `one in which the death penalty may, but need not necessarily, be inflicted.'" (64 Ops.Cal.Atty.Gen., supra, at p. 650, citation omitted, quoting Lee v. State (1943) 31 Ala.App. 91 [13 So.2d 583, 587] & State v. Giberson (1922) 94 N.J. Eq. 25 [119 A. 284].) And, the opinion concludes, "the term `capital case' as used in Penal Code section 987.9 should be given its usual and ordinary meaning, that is, a case in which the death penalty may be inflicted." (64 Ops.Cal.Atty.Gen., supra, at p. 650.)
*1014 (4) The California Code of Regulations also recognizes that a special circumstances case is a "capital case" unless the prosecutor stipulates otherwise. Title 2, division 2, chapter 2, subchapter 2.5, article 5 of that code sets forth guidelines for the controller to reimburse counties under section 987.9, one of which allows for reimbursement in a special circumstances case unless it "no longer involves the death penalty." (Cal. Code of Regs., tit. 2, § 1026.2.) The regulation goes on to define a case as no longer "involving the death penalty" as one "where either the allegations of special circumstances have been dismissed or the prosecution has formally elected not to seek the death penalty." (Ibid.)
Ignoring what had been the procedure in Contra Costa County before 2009, the district attorney argues that criminal defendants are not entitled to seek section 987.9 funds before the preliminary hearing, noting that the section provides for ancillary funding "[i]n the trial of a capital case." (§ 987.9, subd. (a).) From this, the district attorney extrapolates that section 987.9 could not apply before the preliminary hearing because the case is not in trial posture. This argument is myopic. The purpose of section 987.9 is to provide for ancillary funds "for the preparation or presentation of the defense" in a capital case. (§ 987.9, subd. (a); 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 174, p. 272.) Such defense necessarily includes the preliminary hearing.[8]
(5) In sum and in short, a murder case in which special circumstances are alleged is a "capital case" within the meaning of section 987.9, unless and until the prosecution expressly indicates that the death penalty will not be sought. Since it is, the superior court must hear section 987.9 requests on the merits.
Whether an otherwise eligible defendant has made the necessary showing for such ancillary funds is left to the sound discretion of the court. (People v. Box (2000) 23 Cal.4th 1153, 1184 [99 Cal.Rptr.2d 69, 5 P.3d 130], disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10 [105 Cal.Rptr.3d 131, 224 P.3d 877]; People v. Mattson (1990) 50 Cal.3d 826, 847 [268 Cal.Rptr. 802, 789 P.2d 983].) Focusing on this, the county argues that the denial of section 987.9 funds is reviewed under the abuse of discretion standard and that the trial court properly exercised its *1015 discretion here. The record belies this claim, as the trial court never exercised discretion, concluding that petitioner was not entitled to ancillary funds as a matter of law. In any event, and as we have repeatedly noted, "`"Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an `abuse' of discretion."'" (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 833 [112 Cal.Rptr.2d 284]; see Lealao v. Beneficial California, Inc. (2001) 82 Cal.App.4th 19, 25 [97 Cal.Rptr.2d 797].) Acting contrary to specific statutory command, or applying an incorrect legal standard, is accepted as proof of discretion abused. (E.g., DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 890 [4 Cal.Rptr.3d 69, 75 P.3d 1]; Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1134, fn. 18 [26 Cal.Rptr.2d 231, 864 P.2d 502]; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695-696 [84 Cal.Rptr.3d 351].)
Finally, the amici curiae spare no ink arguing how the trial court's discretion should have been exercised hereindeed, how it should be exercised in the future. These issues are not before us, and we decline to issue an advisory opinion on them, especially as the exercise of discretion is based on the particular facts of the individual case, with the trial court to "balance ... the interests of the state and those of the defendant." (Keenan, supra, 31 Cal.3d at p. 431.)
3. Some closing observations
Without conceding a capital defendant is entitled to request section 987.9 funding before the preliminary hearing, the district attorney attempts to narrow the funds the defendant should be entitled to receive at that point in the proceeding. Arguing that a capital defendant "enjoys no constitutional right to chase mitigation, before preliminary hearing and before the People have elected to seek death," the district attorney asserts that such a defendant "enjoys a limited right, pre-prelim and pre-election, for investigators and experts," and should only be allowed funds for "negat[ing] probable cause at preliminary hearing" and not to "chase mitigation." Implicit in the district attorney's argument is that mitigation preparation before the preliminary hearing is a waste of public funds. Such argument ignores the statutory language.
(6) To begin with, section 987.9 does not contain some hidden mandate that preparation must begin after the preliminary hearing, precluding early mitigation investigation. To the contrary, it provides for ancillary funding for "preparation or presentation of the defense" in a capital case. (§ 987.9, subd. (a).) Nor do we agree with the implication that prepreliminary hearing funding is never efficient. Early investigation is key for both sides, including *1016 defense investigation into mitigating factors. Capital defense often includes an attempt to convince the district attorney to forego the death penalty, often accomplished by presenting mitigation evidence as early as possiblea strategy, not incidentally, recognized by objective standards for defense representation in capital cases. The comments to the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases are illustrative, explaining that "[i]nvestigation and planning for both [trial and penalty] phases must begin immediately upon counsel's entry into the case, even before the prosecution has affirmatively indicated that it will seek the death penalty." They also counsel that "[c]omprehensive pretrial investigation is a necessary prerequisite to enable counsel to negotiate a plea that will allow the defendant to serve a lesser sentence, to persuade the prosecution to forego seeking a death sentence at trial, or to uncover facts that will make the client legally ineligible for the death penalty." (American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003) pp. 5-6.)
(7) It is true, as the district attorney counters, that the American Bar Association guidelines are not controlling; they are, after all, just guidelines. But, they also are, as the Supreme Court has noted, "guides" as to what "reasonably diligent attorneys" should do in capital cases. (Bobby v. Van Hook (2009) 558 U.S. ___, ___ [175 L.Ed.2d 255, 130 S.Ct. 13, 17].)
Finally, the district attorney informs us that he is in the process of modifying his internal death penalty review procedures. Previously, the district attorney made a decision on whether to stipulate to LWOP after his own internal investigation into the case and reviewing defense mitigation evidence. The new procedure will be to consider defense mitigation evidence only after he has made a tentative decision whether or not to stipulate to LWOP. In his words, "I will revise my procedures so that I will not consider any mitigating evidence from any defendant or from any defense attorney, privately retained or appointed, until after I have reached my initial tentative decision to seek the death penalty. I will endeavor to make the election, whether or not to seek the death penalty, before or upon invoking the superior court's trial jurisdiction, in every special circumstance case." This change, the district attorney argues, eradicates the need for early mitigation investigation.
This change may or may not have an impact in individual cases. But we decline to make blanket pronouncements based on an untested procedure applied in the hypothetical. Ancillary funding in capital cases is both serious business and one based on the individual request and the individual situation, to be addressed in the exercise of the trial court's discretion. (People v. Box, supra, 23 Cal.4th at p. 1184; People v. Mattson, supra, 50 Cal.3d at p. 847.) We decline the district attorney's invitation to change that.
*1017 CONCLUSION AND DISPOSITION
(8) A special circumstances case is a "capital case" within the meaning of section 987.9 until the district attorney announces he or she will not seek the death penalty. Since it is, the superior court should have decided petitioner's motion on its merits. But because the death penalty is no longer a possibility for petitioner, the court need not do so in this case, and the order to show cause is discharged and the petition is denied.
Kline, P. J., and Lambden, J., concurred.
NOTES
[1] All further statutory references are to the Penal Code.
[2] Petitioner was also charged with six other counts, none of which is relevant to this petition.
[3] We do not know the details of the request, as petitioner has provided only the motion's cover sheet, presumably to maintain its confidentiality. The content of such a requestindeed, the request itselfis confidential by statute. (See § 987.9, subd. (a) ["The fact that an application has been made shall be confidential and the contents of the application shall be confidential."].) In limited circumstances, the Attorney General is allowed access to the otherwise confidential application "when the defendant raises an issue on appeal or collateral review ... [that] relates to the issue raised" in the section 987.9 application. (Id., subd. (d).) This provision is not applicable here.
[4] The petition named the People of the State of California as the real party in interest and at different times the Attorney General and the district attorney have appeared as real party in interest. However, in his informal reply the Attorney General acknowledged that "[t]he People, real party in this matter, do not have an overriding interest in the outcome of this writ proceeding since the issue primarily concerns not the merits of the underlying criminal prosecution, but whether petitioner is entitled to funds from the public fisc." On December 23, 2009, we replaced the People as real party in interest with the County of Contra Costa, because section 987.9 funds are paid by it (see § 987.9, subd. (b)(1)), and thus it is the entity with a "direct interest" in the outcome of the proceeding. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1233 [94 Cal.Rptr.2d 740] [standing requires that the party "obtain some benefit" or "suffer some detriment" from the decision; that "interest must be direct [citations], and it must be substantial."].)
[5] This order directing issuance of an alternative writ "does not stand for the proposition that the Supreme Court has determined that petitioner was correct on the merits, or justified, but merely that extraordinary relief is the only adequate avenue for review." (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1389, fn. 4 [9 Cal.Rptr.2d 709].)
[6] Williams v. Superior Court (1983) 34 Cal.3d 584 [194 Cal.Rptr. 492, 668 P.2d 799], the companion case to Sand, is similar: facing "only life without the possibility of parole" is not a "capital case" under section 987.9. (34 Cal.3d at p. 587.)
[7] The court also concluded that without "`a holding order the superior court does not have jurisdiction to conduct a capital trial.'" (Abernathy, supra, 157 Cal.App.4th at p. 646.)
[8] Case law supports this self-evident maxim. In Anderson v. Justice Court (1979) 99 Cal.App.3d 398 [160 Cal.Rptr. 274], Division Four of this court recognized that section 987.9 applied before the preliminary hearing: "expert or investigative help is necessary to the defense pending the preliminary hearing ..." because the "preliminary hearing is a critical stage of the criminal process ...." (99 Cal.App.3d at p. 401.) Observing that a criminal defendant has the right to counsel and the right to cross-examine witnesses and present evidence at the preliminary hearing, the court further held that "due process" requires funding for "any experts that will assist counsel in preparing a defense." (Ibid.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265354/ | 185 Cal.App.4th 73 (2010)
109 Cal. Rptr. 3d 906
BENITO GARCIA, Plaintiff and Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
No. A126130.
Court of Appeals of California, First District, Division Five.
May 28, 2010.
*76 Joseph Morehead for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, William T. Darden and Jennifer G. Perkell, Deputy Attorneys General, for Defendant and Respondent.
OPINION
BRUINIERS, J.
The Department of Motor Vehicles (DMV) suspended Benito Garcia's (Garcia) driving privileges for refusal to submit to, or failure to complete, a chemical test for blood-alcohol content (Veh. Code, § 13353, subd. (a)(1)).[1] Garcia sought an order from the trial court, via petition for writ of administrative mandamus (§ 13559, subd. (a); Code Civ. Proc., § 1094.5), directing the DMV to set aside the suspension. He appeals the trial court's denial of his petition. Garcia argues that he did not refuse a chemical test of his blood-alcohol content. We affirm.
*77 I. FACTUAL AND PROCEDURAL BACKGROUND
A. Arrest[2]
On December 6, 2008, at approximately 12:24 a.m., San Francisco Police Department (SFPD) Officers McNamara and Khan were on duty and driving their patrol car southbound on Mission Street. McNamara observed a black Ford Explorer driving ahead of him that, without any warning or signal, swerved over the center, double yellow line. After the Ford returned to its lane, it slowed from about 20 miles per hour to about seven miles per hour. The Ford then sped back up to about 25 miles per hour. McNamara pulled the vehicle over.
McNamara contacted the driver, later identified as Garcia, and asked him why he was driving as he was. Garcia said that he did not understand. McNamara smelled the strong odor of an alcoholic beverage coming from Garcia's breath and observed that Garcia was chewing something. McNamara told Garcia to remove what he had in his mouth. After asking why and again being ordered to remove it, Garcia eventually removed a piece of gum from his mouth. McNamara asked Garcia if he had been drinking before driving. Garcia said that he had not. However, McNamara observed that Garcia's eyes were bloodshot and that Garcia was sweating, even though it was cold outside. McNamara recognized these as objective signs of alcohol intoxication.
McNamara had Garcia exit his vehicle to perform field sobriety tests. Before beginning the tests, Garcia stated that he was in good health and did not have any physical ailments. Garcia also again stated that he had not consumed any alcohol or other drugs that night. McNamara advised Garcia that each test would be explained and demonstrated and he should let the officer know if he did not understand any instructions. McNamara noticed that Garcia was still chewing gum and again told him to spit it out. Garcia asked "why?" He was told that it was necessary for his mouth to be empty for the tests. When Garcia began to argue, McNamara demanded that he remove the gum. Garcia paused, but then removed the gum from his mouth. After each test was explained and demonstrated, Garcia indicated that he did not understand. After repeated explanations, he eventually attempted to perform each test. Garcia was evasive and repeatedly mentioned that he knew SFPD officers and started listing their names. Garcia also asked if he could *78 just be driven home. Based on observations of Garcia's driving, his symptoms of alcohol intoxication and his performance on the field sobriety tests, McNamara determined that Garcia was driving while under the influence of alcohol and was unable to safely operate a motor vehicle. Garcia was arrested at 12:43 a.m.
While in the patrol car and still at the scene, Garcia was advised that he was required by law to submit to either a blood test or a breath test and that he needed to choose one. Garcia became very evasive and asked McNamara to look in his wallet for a list of SFPD officers he knew. Garcia was asked several more times which test he wanted to take. Garcia asked what the officer recommended. McNamara told Garcia that he could not recommend a test and that Garcia needed to choose. After several minutes passed, Garcia was told that if he did not decide, McNamara would decide for him. Garcia stated that was okay with him. McNamara told Garcia he would be taking a breath test. McNamara also advised Garcia that if he did not cooperate and perform the breath test as ordered, it would be considered a refusal and he would lose his driving privileges for a year. Garcia stated that he understood and would comply with the breath test.
Garcia was transported to county jail where he was first observed for 15 minutes, as required for the breathalyzer test. During those 15 minutes, Garcia did not place anything in his mouth, belch, or vomit. When Garcia was told to sit in the chair in front of the breathalyzer machine, he stated that he wanted to take a blood test. McNamara told Garcia that he believed Garcia was trying to stall the test to reduce his blood-alcohol content and that Garcia needed to comply or his conduct would be considered a refusal and he would lose his driving privileges for a year. Garcia sat down and began the test at 1:15 a.m. McNamara explained that Garcia needed to place his lips on the mouthpiece and blow strongly and steadily until the machine beeped. Garcia said that he did not understand. McNamara again explained that he needed to place his lips on the mouthpiece and blow steadily until the machine beeped. After receiving this explanation at least three more times, Garcia put his lips on the mouthpiece and blew for about one and a half seconds before stopping, without the machine beeping. He was told that he needed to try again and received yet another explanation of what was required. Garcia argued with McNamara for a few minutes and then was again advised that if he did not comply, it would be considered a refusal and he would lose his driving privileges for one year. Garcia said he would comply, but just stared at the mouthpiece. At 1:20 a.m., McNamara deemed Garcia's lack of cooperation a refusal to take a chemical test. McNamara ordered a phlebotomist, who arrived at 1:40 a.m. and obtained blood samples from Garcia at *79 1:50 a.m. The blood test revealed that Garcia's blood-alcohol content at the time of the test was 0.28 percent.
B. Administrative Hearing
Garcia was served with a copy of the order suspending his driver's license for refusing to submit to, or failing to complete, a chemical test. Pursuant to section 13558, Garcia requested an administrative hearing before the DMV. The only contested issue at the hearing was whether Garcia refused to take, or failed to complete, a chemical test.[3] His testimony at the hearing was consistent, in most respects, with McNamara's report. For example, Garcia testified that McNamara informed him, at the time and scene of his arrest, that he had a choice of chemical tests and that if he did not take a chemical test he could lose his license for one year. However, Garcia also testified that when he was seated before the breath machine he felt "[v]ery nauseous" and that he requested a blood test at that time because he "thought [he] was going to throw up a little bit on the machine and [he] didn't think [he] could perform the test." When asked whether he told the officer that he felt nauseous, Garcia stated: "I believe I did." He further testified that he tried to blow three times and that "[he] couldn't make something trigger off, but [he] blew as hard as [he] could as far as the way [he] was feeling." Garcia testified that he signed the blood test request form to indicate his consent to take a blood test.[4] Garcia later testified that he never resisted or intended to refuse the blood test. He also admitted that he had consumed "maybe two or three" beers on the night in question but had not told the officer as much. Garcia later testified that he could not recall what he had told the officer regarding his consumption of alcoholic beverages.
The DMV hearing officer found that Garcia "did refuse or fail to complete the chemical test or tests after being requested to do so by a peace officer." The hearing officer stated: "Officer McNamara did not have a duty to provide a subsequent opportunity for a chemical test. [Garcia] was warned by Officer *80 McNamara, before arriving at jail that if he did not cooperate and perform the breath test as ordered that Officer McNamara would consider it a refusal. [Garcia] had agreed to comply with the breath test. After attempting [the] test and being warned by Officer McNamara again that his noncompliance would be considered a refusal [Garcia] did not complete the chemical breath test. Signing the Blood Test Request by Peace Officer form at phlebotomist's request, for a forced blood draw, does not invalidate respondent's refusal." The hearing officer specifically found that Garcia's testimony was "not credible" because Garcia "testified to a different drinking pattern."
C. Mandamus Proceedings and Ruling
Garcia then filed a petition for writ of administrative mandamus. After reviewing the administrative record and hearing argument, the trial court denied Garcia's petition. The trial court upheld the administrative finding that Garcia refused or failed to complete a chemical test. The court stated: "In exercising its independent judgment, the Court finds that the weight of the evidence does support the decision of the hearing officer. The Court further finds that the weight of the evidence supports the decision of the hearing officer that [Garcia's] testimony at the hearing was not credible. Further, this Court, in exercising its independent judgment in reviewing the record, also independently finds that [Garcia's] testimony at the hearing was not credible." In light of this credibility problem, the court stated that the hearing officer properly rejected Garcia's claim that he was incapable of completing the breath test because of nausea.
With respect to Garcia's argument that he had a right to change his mind and ask for a blood test, the trial court stated: "if a driver elects to take one of the three tests, he must complete the test or he will be deemed to have refused and failed to take it. (Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491 [94 Cal.Rptr. 182]; Quesada v. Orr (1971) 14 Cal.App.3d 866 [92 Cal.Rptr. 640])." The court also observed: "The fact that [Garcia] may have ultimately submitted to a blood test does not save him from the consequences of his earlier behavior. Once the suspect refuses to take one of the required tests, there is no requirement that the officers thereafter give him a test when he decides he is ready. (Zidell v. Bright (1968) 264 Cal.App.2d 867 [71 Cal.Rptr. 111]; Skinner v. Sillas (1976) 58 Cal.App.3d 591, 598 [130 Cal.Rptr. 91].) `"It is the initial refusal which forms the basis for the suspension of the driver's license."' (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1519 [1 Cal.Rptr.2d 528].) `"Simply stated, *81 one offer plus one rejection equals one refusal; and one suspension." [Citations.]' (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1573 [62 Cal.Rptr.3d 234].)" Thereafter, the court entered judgment against Garcia. Garcia filed a timely notice of appeal.[5]
II. DISCUSSION
(1) If a person is lawfully arrested for driving under the influence of alcohol, he or she is deemed to have given his or her consent to chemical testing of his or her blood or breath to determine blood-alcohol content. (§ 23612, subd. (a)(1)(A).) A driver lawfully arrested for driving under the influence of alcohol has the choice of a breath or a blood test, and the arresting officer shall inform the driver of that choice. (§ 23612, subd. (a)(2)(A).) "If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test." (Ibid.) A person who refuses to submit to, or fails to complete, a chemical test under section 23612 is subject to suspension of his or her driving privileges, among other sanctions. (§ 13353, subd. (a)(1).) The officer shall tell the arrestee that his or her failure to submit to, or failure to complete, the required chemical testing will result in a fine and suspension or revocation of driving privileges. (§ 23612, subd. (a)(1)(D).)
Garcia raises two distinct arguments on appeal. Garcia argues that he did not refuse to take the breath test. Garcia also argues that he was entitled to change his mind and that his subsequent submission to a blood test negates his conduct with respect to the breath test. We address each argument in turn.
A. Standard of Review
(2) In ruling on a petition for writ of mandate following a DMV suspension order, the "trial court is required to determine, based on its independent judgment, `"whether the weight of the evidence supported the *82 administrative decision."' [Citation.]" (Lake v. Reed (1997) 16 Cal.4th 448, 456-457 [65 Cal.Rptr.2d 860, 940 P.2d 311]; see Hildebrand v. Department of Motor Vehicles, supra, 152 Cal.App.4th at pp. 1567-1568 (Hildebrand).)[6] "In making that determination, the trial court had to `weigh the evidence and make its own determination as to whether the administrative findings [were] sustained.' [Citation.]" (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638 [39 Cal.Rptr.2d 384], last brackets added.) "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 [85 Cal.Rptr.2d 696, 977 P.2d 693].) "The review shall be on the record of the [administrative] hearing and the court shall not consider other evidence." (§ 13559, subd. (a).)
On appellate review, this court reviews "`the record to determine whether the trial court's findings are supported by substantial evidence.'" (Lake v. Reed, supra, 16 Cal.4th at p. 457, quoting Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10 [93 Cal.Rptr. 234, 481 P.2d 242].) Issues of law are reviewed de novo. (Hildebrand, supra, 152 Cal.App.4th at p. 1568; Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 508 [30 Cal.Rptr.3d 275].)
B. Did Garcia Refuse, or Fail to Complete, a Chemical Test?
(3) We reject Garcia's argument that suspension of his license was improper because he did not refuse a chemical test. "The question whether a driver `refused' a test within the meaning of the statute is a question of fact. [Citation.]" (Cahall v. Department of Motor Vehicles, supra, 16 Cal.App.3d at p. 497 (Cahall).) To comply with the law, a "driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal." (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270 [228 Cal.Rptr. 705].) "In determining whether an arrested driver's conduct amounts to a refusal to *83 submit to a test, the court looks not to the state of mind of the arrested driver, but to `the fair meaning to be given [the driver's] response to the demand he submit to a chemical test.' [Citations.]" (Payne v. Department of Motor Vehicles, supra, 235 Cal.App.3d at p. 1518, last brackets added.)
The trial court found that Garcia failed or refused to complete a chemical test after being requested to do so by McNamara. Garcia attempts to focus this court's attention solely on his conduct at the jail. However, the trial court specifically stated: "viewed in its totality, [Garcia's] conduct amounted to a refusal to submit to a chemical test ...." (Italics added.)
Garcia remained silent and refused to choose a test after McNamara repeatedly asked Garcia which test he wanted at the scene of the arrest. This conduct alone was sufficient to constitute refusal to submit to a chemical test. (Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299 [160 Cal.Rptr. 557] (Buchanan) [evidence of the arrestee's silence when asked whether he wanted blood test, breath test, or urine test supports finding arrestee refused to submit to chemical test].)[7] Furthermore, Garcia also failed to complete the breath test after being repeatedly warned that his failure to do so would constitute a refusal. The record shows that Garcia tried ineffectually to blow once and then refused or declined to try any further. The trial court did not find that Garcia was "incapable, or state[d] that he ... [was] incapable, of completing the chosen test...." (§ 23612, subd. (a)(2)(A).) In fact, the trial court did not find credible Garcia's testimony that he was unable to complete the test because of nausea.
Garcia argues that his failure to complete the breath test was insufficient to justify suspension of his driver's license in the absence of an explicit, verbal refusal or conditional agreement. His point is not well taken. Section 13353, subdivision (a)(1), itself provides: "If a person refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following: [¶] (1) Suspend the person's privilege to operate a motor vehicle for a period of one year." (Italics added; see also Noli v. Department of Motor Vehicles (1981) 125 Cal.App.3d 446, 448-449 [178 Cal.Rptr. 5] [arrestee's lack of cooperation in *84 completing urine test, despite verbal consent, justified officer's conclusion of refusal].) Substantial evidence supports the trial court's findings.
C. Was Garcia's Refusal or Failure to Complete the Breath Test Vitiated by His Belated Compliance with a Blood Test?
(4) Garcia also contends that the trial court erred by holding that Garcia could not change his mind and elect a blood test before attempting the breath test. This is a question of law, which we review de novo. (Brierton v. Department of Motor Vehicles, supra, 130 Cal.App.4th at p. 508.) Garcia cites no authority supporting his argument that an arrestee can refuse any test, then agree to the officer's choice of test, fail to complete that test, and avoid the consequences of his prior conduct by agreeing to take an initially rejected test. In fact, although no published Court of Appeal opinion has addressed these precise factual circumstances, the authority is clear that delayed submission to a chemical test does not allow an arrestee to avoid the consequences of an initial refusal.
In Zidell v. Bright, supra, 264 Cal.App.2d 867 (Zidell), the arrestee initially refused to submit to any chemical test. Thereafter, the arresting officer left the police station to resume other duties. Thirty to 45 minutes after his initial refusal, the arrestee stated that he had changed his mind and would submit to a test. The arresting officer was called, but refused to return to the station. No test was given. (Id. at p. 869.) The reviewing court upheld suspension of the driver's license for refusal to submit to a chemical test. (Id. at pp. 869-870.) The court reasoned: "It would be inconsistent with the purpose of the statute to hold that either [the arresting officer], or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences." (Id. at p. 870.)
In Skinner v. Sillas, supra, 58 Cal.App.3d 591 (Skinner), the arrestee initially elected to take a urine test, but then told the arresting officer to "[t]ake [his] fucking bottle and shove it" when escorted to the urinal. The arresting officers concluded that the arrestee had refused a chemical test. Nonetheless, a urine sample was ultimately taken from Skinner more than four hours later. (Id. at p. 594.) The reviewing court rejected the arrestee's argument that he complied with the implied consent law (§ 13353) because he did in fact perform a urine test. (58 Cal.App.3d at p. 597.) The court observed: "If the driver elects to take one of the three tests, he must complete the test or he will be deemed to have refused and failed to take it. [Citations.] And, too, once the suspect refuses to take one of the three tests, blood, urine, *85 or breath, there is no requirement that the officers thereafter give him a test when he decides he is ready. [Citation.]" (Id. at p. 598.) The court reasoned: "The purpose of the statute is to take the test as soon as possible after arrest and discover the suspect's blood-alcohol content at the time he was arrested for driving under the influence [citation], since alcohol in the blood system dissipates quickly [citation]." (Id. at p. 599.)
Having already concluded that substantial evidence supports the trial court's finding that Garcia refused a chemical test, we reject Garcia's attempts to distinguish Zidell and Skinner on the ground that there were unequivocal refusals by the defendants in those cases. Nor are we persuaded that, because Garcia's delay in providing a blood sample was less than an hour,[8] McNamara, unlike the arresting officers in Skinner and Zidell, was obligated to provide Garcia with another opportunity to comply with the implied consent law. The delay between Garcia's initial refusal and his compliance with a blood test was certainly shorter than the four hours at issue in Skinner, supra, 58 Cal.App.3d at pages 598-599. Nonetheless, "`[i]t is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time. In a matter of a few hours an intoxicated person may "sober up." The efficacy of a blood test depends upon its being made as soon as possible after the time of the offense. To be of any probative value the test must be "near" to the offense in point of time. If it is not taken promptly after the arrest, it proves nothing.' [Citations.]" (Ibid., fn. omitted.) And, contrary to Garcia's suggestion, the delay at issue here was not dissimilar to what he characterizes as a "lengthy time delay" at issue in Zidell (30 to 45 minutes in that case). (Zidell, supra, 264 Cal.App.2d at p. 869.)
The facts here are also similar to those presented in Buchanan, supra, 100 Cal.App.3d 293. In Buchanan, the arrestee was advised of his choice of tests at the time of arrest. The arrestee told the officer that he would select a test when they reached the police station. The officer informed him that he could not wait if he wanted to choose a blood test because the test would be administered at a hospital en route to the police station. The officer explained that if the arrestee did not choose a blood test before the police car reached *86 the hospital, the blood test "`would be out'" because he would not be taken back to the hospital once he reached the police station, which was about three miles beyond the hospital. The arrestee continued to state that he would choose at the police station. (Id. at p. 296.) Once the arrestee arrived at the police station, he was advised that his choices were limited to a breath test or a urine test. The arrestee stated that he wanted a blood test and refused to respond to the officer's inquiries regarding a breath or urine test. (Ibid.)
(5) On appeal, the reviewing court noted that only certain statutorily enumerated persons can withdraw blood,[9] "and they are to be found in a hospital, not at a police station." (Buchanan, supra, 100 Cal.App.3d at p. 298.) The court also emphasized that "the efficacy of a blood test depends on its being made as soon as possible after the time of the offense ...." (Ibid.) Accordingly, the court concluded that the arresting officer had the authority to require the arrestee to choose a blood test before reaching the hospital and to limit the arrestee's choices at the station to a breath test or a urine test. "[T]he arrestee is given the right to choose among the three tests, but he is not given the further right to specify when the test which he has chosen is to be administered." (Ibid.) Finally, the court concluded that the arrestee's silence when asked, first, whether he wanted a blood test, and, later, whether he wanted a breath or a urine test, constituted evidence that he refused a chemical test. "A motorist's silence in the face of a police officer's repeated requests that he submit to a chemical test and that he choose a test to determine the alcohol content of his blood, constitutes a refusal to submit to a chemical test under section 13353. [Citation.]" (Id. at p. 299.)
Here, Garcia's choice was statutorily limited to a blood or a breath test. (§ 23612, subd. (a)(2)(A).) McNamara properly advised Garcia of that choice after his arrest. Garcia remained silent and refused to choose a test. When Garcia agreed to McNamara's selection of a breath test, while seated in the patrol car, McNamara advised Garcia that if he did not cooperate and perform the breath test as ordered, it would be considered a refusal and Garcia would lose his driving privileges for a year. Similar to the arrestee in Buchanan, Garcia did not voice any request for a blood test until he arrived at the county jail.
Buchanan held that the police have the authority to determine when a particular chemical test may be taken, and have no obligation to offer the test *87 again after the arrested person refuses to take it at the offered time. (Buchanan, supra, 100 Cal.App.3d at p. 298.) McNamara had the authority to require Garcia to choose a blood test before the patrol car departed for the jail and to limit Garcia's choice at the jail to a breath test. We reject Garcia's argument that an exception should be made here because a phlebotomist fortuitously happened to be available at the jail within half an hour of Garcia's failure to complete the breath test. Garcia argues that an arrestee should be allowed to change his or her mind if the arresting officer is not required to then take the arrestee to a different location to perform the newly requested test. Any such rule would be unworkable in practice and only encourage gamesmanship like that evidenced in this case. Accordingly, the trial court did not err by concluding that Garcia's change of mind regarding a blood test and his eventual consensual submission to such a test did not obviate the consequences of Garcia's initial refusal and failure to complete the breath test.
Garcia misplaces his reliance on Hildebrand, supra, 152 Cal.App.4th 1562, Cahall, supra, 16 Cal.App.3d 491 and Quesada v. Orr, supra, 14 Cal.App.3d 866 (Quesada). Garcia relies on Hildebrand, Cahall, and Quesada to support his argument that an arrestee can only be deemed to have refused a chemical test when an arrestee, after failing to complete one test, then further refuses to submit to an alternative chemical test. These cases fail to support his position.
In Cahall, supra, 16 Cal.App.3d 491, the defendant consented to a urine test and was informed that two samples of urine would be required to constitute a complete test. He gave the first sample, but later said that he was "unable to furnish the second specimen because he was a diabetic and, as such, did not drink many fluids." (Id. at p. 494.) When the defendant's further attempt to provide a second sample proved unsuccessful, the arresting officer asked him to submit to either a blood or breath test. The arrestee responded by saying "`I'm not even going to give you an answer.'" (Id. at pp. 494-498.) The only issue on appeal was whether there was substantial evidence to sustain the administrative finding that the appellant refused to submit to a chemical test. (Id. at p. 494.)
The court rejected the arrestee's contention that "the giving of one urine specimen was sufficient to comply with the provisions of the law ...." (Cahall, supra, 16 Cal.App.3d at p. 496.) The court observed: "While he may choose the type of test, the driver's obligation does not end when he has expressed such a choice. He must go further and submit to the test.... [¶] ... [¶] ... The giving of a partial urine sample obviously did not satisfy the requirements of the law." (Id. at pp. 495-496.) The court went on to say "Upon [the arrestee's] inability to comply with the requirements of the statute by providing the second urine sample, he was obliged, upon request so to do, to select another with which he could comply. Not having done so, he refused *88 a `request to submit to a chemical test' [citation] and brought upon himself the penalty of the statute. [Citation.]" (Id. at p. 496.)
Quesada, supra, 14 Cal.App.3d 866 is similar. In Quesada, the defendant chose to submit to a urine test, but did not complete the test, claiming he was too modest to produce a urine specimen while the arresting officer and a laboratory attendant stood five or six feet away. After blood and breath tests were again offered, the arrestee refused to take either test. (Id. at pp. 868-869.) The arrestee argued on appeal that "since he was physically unable to take the test of his own choosing, `he should not have to choose another test or be deemed to have refused.'" (Id. at p. 870.) The court rejected this argument, noting "[w]hile he may choose the type of test, the driver's obligation does not end when he has expressed such a choice. He must go further and submit to the test." (Ibid.) Accordingly, the court concluded: "[U]pon [the arrestee's] inability to submit to the type of chemical test chosen by him, he was obliged, upon request so to do, to select another with which he could comply. Not having done so he refused a `request to submit to a chemical test' [citation] and brought upon himself the penalty of the statute." (Id. at p. 871.)
In Hildebrand, supra, 152 Cal.App.4th 1562, an arrestee appealed from the trial court's denial of his petition for writ of mandate, contending that the evidence was insufficient to support the trial court's finding that he had refused to complete a chemical test after admonishment. (Id. at p. 1565.) The arrestee chose a breath test, but was unable to complete all portions of the test because he "puffed out his cheeks while placing his tongue on the end of the mouthpiece, and he would not blow hard enough to make the machine sound for eight to 10 seconds." After numerous attempts, the arrestee said "`I'm blowing as hard as I can. If that's not good enough ... too bad. And I'm not taking any other tests.'" (Id. at p. 1566, original ellipsis.) The officer then told the arrestee he was required to give a blood sample because he did not complete the breath test. The arrestee responded: "`I'm not giving a blood sample. You got what you got now let me go!'" A forced blood draw was later taken. (Id. at pp. 1566-1567.)
The arrestee argued on appeal that he was not properly admonished regarding the consequences of a refusal before the breath test was administered or before any refusal. (Hildebrand, supra, 152 Cal.App.4th at p. 1573.) The court concluded that adequate admonishments were given because the officer told the arrestee he had a choice of tests before the breath test was attempted and, after the failed test, the arresting officer informed the arrestee of the consequences of a refusal. (Id. at pp. 1573-1574.) Hildebrand also argued that the police were obligated to offer him a new choice of tests after he failed to complete the breath test. (Id. at p. 1574.) The court concluded *89 that the officer could have reasonably interpreted the arrestee's statements after the failed breath test and his intentional frustration of the breath test as a refusal to complete any offered tests. Accordingly, the court concluded that substantial evidence supported the trial court's finding that the arrestee refused a chemical test. (Id. at p. 1574.)
(6) The reviewing court observed: "`[T]he law of implied consent mandates that an arrestee is required to submit to and complete one of the three tests upon their first having been offered to him by an arresting officer. [¶] ... [¶] ... It is the initial refusal which forms the basis for suspension of the driver's license under Vehicle Code section 13353. [Citation.] Once the driver refuses to take any one of the three chemical tests, the law does not require that he later be given one when he decides, for whatever reason, that he is ready to submit. [Citations.] [¶] ... Simply stated, one offer plus one rejection equals one refusal; and, one suspension.' [Citations.]" (Hildebrand, supra, 152 Cal.App.4th at p. 1573, last brackets added.)
The defendants in Hildebrand, Cahall, and Quesada were offered alternative tests after they failed to complete an initially selected test. (Hildebrand, supra, 152 Cal.App.4th at p. 1566; Cahall, supra, 16 Cal.App.3d at p. 494; Quesada, supra, 14 Cal.App.3d at p. 869.) In each of those cases, the evidence showed both failure to complete one test, as well as a subsequent refusal to take another. In each case the argument presented by the defendant was that he could not be required to consent to another test after alleged inability to complete a first. That argument was rejected in each instance. (See also § 23612, subd. (a)(2)(A) ["[i]f the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test"].) None of these cases hold, as Garcia urges us to do here, that a defendant is entitled to a second bite at the apple after rejecting the first. To the extent that either Cahall or Quesada can be read to suggest such a result, we disagree.
"`It is the initial refusal which forms the basis for suspension of the driver's license under ... section 13353. [Citation.]'" (Hildebrand, supra, 152 Cal.App.4th at p. 1573, ellipsis added; see Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 283 [202 Cal.Rptr. 729]; Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162 [199 Cal.Rptr. 258].) The same rule applies even if the arrestee quickly changes his or her mind and consents to a test. (Barrie v. Alexis, at p. 1163; Zidell, supra, 264 Cal.App.2d at p. 869.) We agree with the conclusion of Hildebrand that "`one offer plus one rejection equals one refusal; and, one suspension.'" (Hildebrand, at p. 1573.)
(7) Accordingly, Garcia's license was properly suspended.
*90 III. DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
Jones, P. J., and Simons, J., concurred.
NOTES
[1] Unless otherwise noted, all further statutory references are to the Vehicle Code.
[2] Our factual summary of the arrest is taken from the police report, which is part of the administrative record.
[3] Before the DMV may suspend a driver's license for failure to submit to a chemical test, the DMV must make four findings: (1) the officer had reasonable cause to believe the person was driving a vehicle while under the influence of drugs or alcohol; (2) the person was arrested; (3) the person was told that if he or she refused to submit to, or did not complete, a chemical test his or her license would be suspended; and (4) the person refused to submit to, or did not complete, such a test. (§§ 13353, subd. (d), 13557, subd. (b)(1); Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757-758 [1 Cal.Rptr.2d 115].) Garcia stipulated to issues one, two, and three.
[4] The word "Refused" is also handwritten on the form, on the line designated "Signature of Person Being Tested." Garcia testified that this was not his handwriting. The hearing officer accepted that the word "Refused" had been written by an officer.
[5] Garcia originally appealed from the "[j]udgment after court trial," despite the fact that there had been no formal entry of judgment at that time. We later deemed Garcia's notice of appeal augmented "to correctly reflect that [Garcia] is appealing from a `final order ... denying the Petitioner's Writ of Mandate.'" The order denying the mandate petition is appealable as the equivalent of a final judgment because it was a final determination of the rights of the parties and no further action by the trial court was contemplated. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697-699 [107 Cal.Rptr.2d 149, 23 P.3d 43]; Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 540 [33 Cal.Rptr.2d 10]; Code Civ. Proc., § 1064 ["[a] judgment in a special proceeding is the final determination of the rights of the parties therein"].)
[6] If the right affected by an administrative hearing is vested, "the decision is reviewed by means of a limited trial de novo in which the trial court not only examines the record for errors of law but also exercises its independent judgment upon the weight of the evidence produced before the administrative agency together with any further evidence properly admitted by the court. [Citations.]" (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 914 [80 Cal.Rptr. 89, 458 P.2d 33], italics & fns. omitted (Merrill); see Code Civ. Proc., § 1094.5, subd. (c) ["in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence"].) Suspension or revocation of an existing license affects such a "vested" right. (Merrill, at p. 915.)
[7] Although Garcia previously stipulated to having received the proper admonishment, Garcia now argues, in his reply brief, that there was no evidence that McNamara properly admonished Garcia on the consequences of refusal at the arrest scene. However, Garcia's own testimony suggests otherwise. Accordingly, Garcia has failed to preserve this issue for appeal.
[8] Garcia was arrested at 12:43 a.m. and asked to choose a test while still at the scene. Garcia initially refused to choose a test and then agreed to take a breath test only when McNamara selected such a test. However, Garcia waited until he had been transported to the county jail for the breath test and undergone the 15-minute wait necessary for the breath test before he voiced his request for a blood test, at approximately 1:15 a.m. Blood was drawn at 1:50 a.m. Contrary to Garcia's suggestion, the record shows that McNamara summoned a phlebotomist immediately after Garcia failed to complete the breath test, which was approximately five minutes after Garcia requested a blood test. Thus, Garcia's attempt to shift responsibility for the delay is unsuccessful.
[9] Section 23158, subdivision (a), currently provides in relevant part: "only a licensed physician and surgeon, registered nurse, licensed vocational nurse, duly licensed clinical laboratory scientist or clinical laboratory bioanalyst, a person who has been issued a `certified phlebotomy technician' certificate pursuant to Section 1246 of the Business and Professions Code, unlicensed laboratory personnel regulated pursuant to Sections 1242, 1242.5, and 1246 of the Business and Professions Code, or certified paramedic acting at the request of a peace officer may withdraw blood for the purpose of determining the alcoholic content therein." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2424091/ | 18 A.3d 1092 (2011)
Linda TROXELL, as Guardian of the Person and Estate of Ronald Troxell, an Incapacitated Person and in Her Own Right, Petitioner
v.
Mohammed TURKI, M.D., Bethlehem Pulmonary Associates, Inc., and St. Luke's Hospital & Health Network, Respondents.
No. 677 MAL 2010
Supreme Court of Pennsylvania.
April 18, 2011.
ORDER
PER CURIAM.
AND NOW, this 18th day of April, 2011, the Petition for Allowance of Appeal is *1093 DENIED. It is further ORDERED that Petitioner's Application for Leave to Substitute Page 3 of her Petition for Allowance of Appeal, filed under Pa.R.A.P. 123, is DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364602/ | 208 Ga. App. 447 (1993)
431 S.E.2d 126
SELF
v.
THE STATE.
A93A0385.
Court of Appeals of Georgia.
Decided April 5, 1993.
Kenneth D. Kondritzer, for appellant.
C. David Turk III, District Attorney, for appellee.
ANDREWS, Judge.
Steve Self appeals his conviction by a jury on the charge of sexually molesting his 13-year-old daughter by fondling the child's breasts and buttocks. OCGA § 16-6-4 (a).
At trial, Self denied the allegations, and the child testified that *448 she fabricated the allegations to retaliate against her father for refusing to allow her to see her 19-year-old boyfriend. A Department of Family & Children Services caseworker testified that the child told her on two occasions that Self had committed the alleged acts of molestation, and described the acts in detail. The caseworker further testified, based on her experience and training, that the child's behavior, and subsequent denial that the molestation had occurred, was consistent with elements of the child abuse accommodation syndrome, including the characteristic behavior of succumbing to various pressures to recant the allegations. See Rolader v. State, 202 Ga. App. 134, 141-142 (413 SE2d 752) (1991); Hall v. State, 196 Ga. App. 523, 524-526 (396 SE2d 271) (1990); Kelly v. State, 197 Ga. App. 811, 814-815 (399 SE2d 568) (1990). As similar transaction evidence, the State also introduced testimony showing Self had previously fondled the breasts and vagina of a 14-year-old victim, and forced her to have intercourse, and fondled the breasts of a 13-year-old victim.
1. Self's sole argument on appeal with respect to introduction of the similar transaction evidence is that the prior occurrences were not sufficiently similar so that they tended to prove the charged offense. See Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). First, Self failed to raise this objection in the trial court, so there is no basis for considering it on appeal. Annison v. State, 206 Ga. App. 861 (427 SE2d 5) (1993). Secondly, this objection would have had no merit even if it had been raised below. The evidence showed Self had on prior occasions similarly abused victims of the same sex and approximate age. "In a child molestation case, the sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible." (Citations and punctuation omitted.) Rash v. State, 207 Ga. App. 585, 586 (428 SE2d 799) (1993).
2. Since the prior acts were sufficiently similar, the trial court ruled correctly to admit this evidence, and to deny Self's motion for a new trial claiming he was denied effective assistance when his trial counsel failed to object that the prior acts were dissimilar. Abreu v. State, 206 Ga. App. 361, 362-363 (425 SE2d 331) (1992); Brinson v. State, 191 Ga. App. 151, 155 (381 SE2d 292) (1989).
3. "Although the evidence was in conflict and depends largely on . . . [an assessment of the victim's credibility and other testimony regarding the child abuse accommodation syndrome], the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict." (Citations and punctuation omitted.) Hall v. State, 201 Ga. App. 626 (411 SE2d 777) (1991); Daniel v. State, 200 Ga. App. 79, 80 (406 SE2d 806) (1991). The evidence was sufficient for a rational trier of fact to find Self guilty of the charged *449 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. Pope, C. J., and Birdsong, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364610/ | 208 Ga. App. 610 (1993)
431 S.E.2d 417
BRASWELL
v.
WALTON.
A93A0601.
Court of Appeals of Georgia.
Decided May 6, 1993.
Carl A. Veline, Jr., for appellant.
Jones, Cork & Miller, John T. Mitchell, Jr., for appellee.
BEASLEY, Presiding Judge.
Braswell, an employee of a subcontractor, was injured on the job during the construction of a house on a lot owned by Walton. He appeals from the grant of Walton's motion for summary judgment.
Walton contracted orally with Vietor, a local contractor, to build a house on his lot. It is undisputed that during the construction Walton *611 surrendered possession and control of the premises to Vietor, the general contractor. Walton visited the construction site weekly or biweekly to view the progress and pay Vietor.
Vietor hired Fantastic Fans, Inc. to install a fireplace on the second floor of the residence under construction. Braswell was employed by Fantastic Fans as an installer and worked on the fireplace installation at the Walton construction site. He visited the construction site three times before the date of his injury. On each occasion he used a temporary staircase to get to the second floor. On the day he was injured, he noticed that the staircase, which had previously been "toenailed" to the wall to render it more stable, was no longer attached to the wall. Nevertheless, he and a co-worker ascended the stairway. The co-worker led, carrying a pipe. Braswell followed, carrying a toolbox. He noticed that the stairway was shaky and hesitated, but his co-worker assured him that if he had made it, Braswell could, too. Braswell continued his ascent and was almost at the top when the staircase folded and Braswell fell to the floor. Braswell's medical bills were paid by workers' compensation through Fantastic Fans, which also paid disability wages during the time he was out of work.
The trial court granted Walton's motion for summary judgment on the ground that under Modlin v. Swift Textiles, 180 Ga. App. 726 (350 SE2d 273) (1986), Walton's virtually complete surrender of possession and control of the premises to Vietor rendered him not liable for Braswell's safety.
Braswell contends this ruling was erroneous because in Modlin a written contract provided specifically that safety was the responsibility of the general contractor, and this court held only that under those circumstances the owner could not be held responsible. He argues that the silence of the oral contract between Walton and Vietor as to which of them was responsible for worker safety during construction creates a material issue of fact as to their intention on that question.
However, the facts in Modlin represent but an expressly provided-for example of the principle that when an owner makes a complete, albeit temporary, surrender of possession and control of premises to a contractor, the owner cannot reasonably be expected to exercise precautions to protect the contractor's invitees. Butler v. Lewman & Co., 115 Ga. 752, 756-757 (2) (42 S.E. 98) (1902). See Newburn v. Healey Real Estate &c. Co., 17 Ga. App. 217, 224-225 (1) (86 S.E. 429) (1915). Compare Towles v. Cox, 181 Ga. App. 194, 195-198 (1) (351 SE2d 718) (1986) (jury authorized to conclude that full possession and complete control of premises not surrendered by owner of shopping center to contractor during installation of new water and sewer lines).
Where the owner employs a general contractor to construct a residence *612 on his lot, and places the general contractor in temporary exclusive possession and control of the premises, a subcontractor employed by the general contractor to perform certain work in connection with the construction is the invitee of the general contractor, to whom the general contractor owes the duty of ordinary care. Braun v. Wright, 100 Ga. App. 295, 296 (111 SE2d 100) (1959). Thus, Vietor and not Walton had the duty to insure that the premises were safe for Braswell.
As Braswell's statutory employer, Vietor could be held liable under the Workers' Compensation Act. OCGA § 34-9-8. The Act, which provides the exclusive remedy against those within its purview, also provides tort immunity for Vietor. OCGA § 34-9-11 (a). Although Walton, as the owner, is not immune from liability, the record conclusively shows that he breached no duty to Braswell. Braswell's injury occurred while the house was being framed; Walton had surrendered complete control over the premises and visited the site only to observe progress and pay the contractor; it was understood to be the contractor's responsibility to provide workers' compensation for the construction workers; and Walton understood that the contractor would be responsible for worker safety.
The evidence shows without a genuine issue of material fact that Walton had no duty to keep the premises safe for the contractor's invitees, and the court properly granted summary judgment to Walton.
Judgment affirmed. McMurray, P. J., and Cooper, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265152/ | 185 Cal. App. 4th 852 (2010)
In re D.R., a Person Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Appellant,
v.
C.S. et al., Defendants and Respondents.
No. A124573.
Court of Appeals of California, First District, Division Four.
June 15, 2010.
*855 Richard E. Winnie, County Counsel, and Andrew J. Massey, Deputy County Counsel, for Plaintiff and Appellant.
Kerr & Wagstaffe, James M. Wagstaffe and Maria Radwick for Defendants and Respondents.
OPINION
REARDON, J.
In this second of two appeals related to minor D.R., the juvenile court denied appellant Alameda County Social Services Agency's motion to terminate the de facto parent status of respondent C.S. It also granted the application of C.S.'s partnerrespondent K.F.for de facto parent status. The agency appeals both rulings, contending that the juvenile court either committed legal error or abused its discretion by denying the motion to terminate C.S.'s de facto parent status; and that it abused its *856 discretion by granting K.F.'s application for de facto parent status. We affirm the juvenile court's orders.
I. FACTS
D.R.'s Placements
The underlying facts of this juvenile dependency matter are set out in a related appeal.[1] We set out the facts pertinent to the issues raised in the matter now before us.
In June 2008, a supplemental petition was filed after then 12-year-old dependent child D.R. was removed from the home of his uncle, C.S., with whom he had lived since he was an infant. C.S. had been D.R.'s de facto parent since September 1997. The supplemental petition alleged that C.S. had inflicted corporal punishment on D.R., leaving marks on the minor's body. In November 2008, a juvenile court commissioner sitting as a temporary judge found the allegations of physical abuse to be true. Despite this fact, the commissioner sought the ultimate reunification of D.R. with C.S. and K.F.
At the close of the hearing on the supplemental petition, the agency made an oral motion to set aside C.S.'s de facto parent status based on the commissioner's physical abuse findings. The motion was denied without prejudice. In December 2008, the agency filed a written motion to terminate C.S.'s de facto parent status, citing the fact that D.R. was no longer living in his home. C.S. opposed the motion.
While the motion to terminate was pending, D.R.'s placement shifted again. He had displayed anxious, impulsive and aggressive behavior in his foster placement. A November 17, 2008 psychological assessment diagnosed D.R. with attention deficit hyperactivity disorder (ADHD) and child physical abuse. It also noted sexual preoccupations that were unusual for a child of his age, and multiple indications of historic trauma. A group home placement was recommended, to provide more structure and resources than a foster placement could. The psychologist hoped that this setting would help modulate D.R.'s aggressive externalizing behaviors. Neither the juvenile *857 court commissioner nor the agency had this report at the time of the November 21, 2008 findings on the supplemental petition.
On December 24, 2008, D.R. was removed from the foster home in which he had been placed in June 2008. He threatened to assault a new caregiver and was placed temporarily in a group home in Oakland. By the end of the year, D.R. had been moved to a therapeutic group home in Marin that met the requirements of the psychologist's recommendations. The juvenile court approved this placement, subject to later revision, in January 2009. In this placement, D.R. displayed aggressive and sexually provocative behavior.
D.R. had regular supervised visits and telephone calls with C.S. and K.F. C.S. sought additional contact with D.R., but refused agency entreaties to participate in family therapy with the minor. The agency sought to engage C.S. in his own therapeutic exploration of the factors leading to his physical abuse of D.R., which C.S. also resisted. The agency viewed therapy as a fundamental precondition to the safe return of D.R. to C.S.'s care. C.S. continued to deny any abuse of D.R., questioned the need for an out-of-home placement, and challenged the wisdom of the residential treatment placement.
At the group home, D.R. was diagnosed as suffering from ADHD, posttraumatic stress disorder, physical abuse and possible sexual abuse. He participated in numerous therapeutic programs there, including individual and group psychotherapy, anger management and communication skills development. He received a psychiatric consultation in order to identify effective medical treatment for his hyperactivity and aggression. A neuropsychological evaluation was conducted to identify factors that could guide D.R.'s treatment and medication. He expressed his desire to live with C.S. rather than at the group home. D.R. continued to display disruptive and aggressive behavior. A group home worker advised that if reunification with C.S. and K.F. was the ultimate goal, then more contact with them in family therapy was needed.
In March 2009, the agency recommended D.R.'s continued placement in the group home setting, over C.S.'s objections. C.S. complained that the agency did not want to provide him with services. The agency reported that it had been trying to facilitate services, but that C.S. refused to participate in therapy. At the conclusion of that hearing, the juvenile court found that the agency had complied with the case plan and had provided reasonable services. It adopted for D.R. a permanent plan of placement in the group home with a goal of a less restrictive foster placement.
*858 Several hearings on de facto parent status issues were held between January and April 2009. By March 2009, C.S.'s partnerrespondent K.F. sought a court order determining his own de facto parent status. The agency opposed this request.
On April 6, 2009, the agency argued that once the juvenile court found physical abuse had occurred, C.S. automatically forfeited his de facto parent status. Counsel for C.S.,[2] L.H. and D.R. all argued in favor of continued de facto parent status. D.R.'s counsel stated that the juvenile court commissioner knew that excessive physical punishment had occurred but that her primary concern was that the agency not relegate D.R. to an out-of-home placement until he reached age 18.
The agency argued that the law required an automatic termination of C.S.'s de facto parent status. The juvenile court took a more nuanced view of the case law. It found that a psychological bond existed between C.S. and D.R., and that terminating C.S.'s de facto parent status would not be in the minor's best interests. It denied the agency's motion to terminate C.S.'s de facto parent status and granted K.F.'s application for de facto parent status.[3] The agency appeals these two rulings.
II. STANDING
Preliminarily, C.S. and K.F. assert that the agency lacks standing to appeal the juvenile court orders. They argue that the agency is not an aggrieved party because their de facto parent status exists to benefit the juvenile court and does not adversely affect any legally cognizable interest held by the agency.
(1) Any party aggrieved in a civil action may appeal. (Code Civ. Proc., § 902; County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 736 [97 Cal. Rptr. 385, 488 P.2d 953]; see In re Paul W. (2007) 151 Cal. App. 4th 37, 55 [60 Cal. Rptr. 3d 329] [juvenile dependency case].) One has no standing to appeal *859 if one is not aggrieved. Without standing, there is no justiciable controversy for a court to entertain. To have standing, a person must have rights that may suffer actual or threatened injury. (In re P.L. (2005) 134 Cal. App. 4th 1357, 1361 [37 Cal. Rptr. 3d 6]; Clifford S. v. Superior Court (1995) 38 Cal. App. 4th 747, 751 [45 Cal. Rptr. 2d 333]; County of Alameda v. Carleson, supra, 5 Cal.3d at p. 737.) The party must have a legally cognizable interest that is injuriously affected by the juvenile court's decision. (In re Paul W., supra, 151 Cal.App.4th at p. 55; In re Carissa G. (1999) 76 Cal. App. 4th 731, 734 [90 Cal. Rptr. 2d 561].)
(2) By law, a county's social services agency acts as a representative of the state, standing in loco parentis to the minor in a proceeding which has as its primary consideration the welfare of the minor. (In re Jennifer G. (1990) 221 Cal. App. 3d 752, 759 [270 Cal. Rptr. 326].) The agency serves as a special arm of the juvenile court, investigating the status of the child and reporting its findings to the court. (In re Malinda S. (1990) 51 Cal. 3d 368, 377, fn. 8 [272 Cal. Rptr. 787, 795 P.2d 1244].) If it concludes that de facto parent status is no longer appropriate, the agency has the authority to file a noticed motion asking the juvenile court to terminate de facto parent status. (In re Brittany K. (2005) 127 Cal. App. 4th 1497, 1513 [26 Cal. Rptr. 3d 487] (Brittany K.); In re Patricia L. (1992) 9 Cal. App. 4th 61, 67 [11 Cal. Rptr. 2d 631] (Patricia L.).)
Given its status in loco parentis and its authority to oppose or seek termination of de facto parent status, we conclude that the agency has a legally cognizable interest that was injuriously affected by the juvenile court's decisions. (See In re Paul W., supra, 151 Cal.App.4th at p. 55; In re Carissa G., supra, 76 Cal.App.4th at p. 734.) The agency was aggrieved by the juvenile court's denial of its motion to terminate C.S.'s de facto parent status and the grant of K.F.'s application for de facto parent status over its objection. Thus, it has standing to raise challenges to the juvenile court's determinations of de facto parent status by appealing the relevant orders. Having determined that the agency's appeal is properly before us, we turn to the merits of the issues raised in its appeal.
III. C.S.'S DE FACTO PARENT STATUS
A. Was Termination Compelled?
(3) First, the agency contends that the juvenile court refused to follow binding California Supreme Court precedent, thereby committing legal error when denying its motion to terminate C.S.'s de facto parent status. De facto parent status does not terminate automatically or by operation of law, unless *860 the dependency itself is terminated. To formally terminate de facto parent status, the agency has the burden of establishing a change of circumstances that no longer supports the status. (Patricia L., supra, 9 Cal.App.4th at p. 67; see Super. Ct. Alameda County, Local Rules, rule 5.532(e).) Examples of such a change of circumstances are that a psychological bond no longer exists between the de facto parent and the child, or that the de facto parent no longer has reliable or unique information about the child that could be useful to the juvenile court. (Brittany K., supra, 127 Cal.App.4th at pp. 1513-1514; Patricia L., supra, 9 Cal.App.4th at p. 67.)
Typically, we review an order denying a motion to terminate de facto parent status for an abuse of discretion. (See, e.g., Brittany K., supra, 127 Cal.App.4th at pp. 1512-1515 [grant of motion to terminate].) In this matter, the agency argues that a different standard of review should apply. It asserts that as a matter of law, C.S.'s serious physical abuse of D.R. required the juvenile court to grant its motion to terminate his de facto parent status. In essence, it reasons that a juvenile court's finding of serious physical abuse constitutes a change of circumstances warranting automatic termination of de facto parent status.
(4) The California Supreme Court has held that when an adult commits sexual abuse or serious physical abuse against a child, that adult has undermined the child's physical and psychological need for care and affection. (In re Kieshia E. (1993) 6 Cal. 4th 68, 78 [23 Cal. Rptr. 2d 775, 859 P.2d 1290] (Kieshia E.); see In re B.G. (1974) 11 Cal. 3d 679, 692, fn. 18 [114 Cal. Rptr. 444, 523 P.2d 244].) For this reason, one who causes the onset of juvenile dependency proceedings by committing sexual or other serious physical abuse on a child in his or her charge forfeits any opportunity to share in the legal decisions about the victim's future care and welfare that were made necessary by the perpetrator's misconduct. (Kieshia E., supra, 6 Cal.4th at p. 78.) When there is an adjudication that a child is within the jurisdiction of the juvenile court because a nonparent caretaker committed a substantial harm such as sexual or other serious physical abuse,[4] then the perpetrator's interest in the juvenile dependency proceedings are extinguished. As a matter of law, the views and evidence that the perpetrator might offer are insufficiently relevant to justify standing to participate in disposition *861 proceedings. By an intentional act, the perpetrator has rejected the ongoing parent-nurturer function that is crucial to the privilege of participation as a de facto parent. (Kieshia E., supra, at p. 78.)
On appeal, the agency asserts that Kieshia E. compelled the juvenile court to grant its motion to terminate de facto parent status. The juvenile court heard this argument and rejected it, finding that it was entitled to determine whether the serious physical abuse inflicted rose to the level of that which would trigger application of Kieshia E. We agree that the juvenile court was not required to automatically terminate C.S.'s de facto parent status, for several reasons.
(5) Kieshia E. is distinguishable from the case before us for two reasons. In Kieshia E., the juvenile court was faced with an initial application for de facto parent status. (See Kieshia E., supra, 6 Cal.4th at pp. 73-74.) The California Supreme Court held that a nonparent may not obtain de facto parent status if the juvenile court has determined that the minor is a dependent child because of sexual abuse or serious physical abuse committed by the nonparent. (Id. at p. 78; In re Leticia S., supra, 92 Cal.App.4th at p. 382.) In D.R.'s case, the juvenile court was not asked to grant de facto parent status, but to revoke a status already given. C.S. has been D.R.'s de facto parent since he was 18 months old. The juvenile court was not entertaining an initial application, but considering a motion to terminate an official recognition of an ongoing relationship.
(6) An initial application for de facto parent status raises different concerns than does a motion to terminate that status. On an initial application, the applicant bears the burden of proof that he or she can assist the juvenile court by providing information about the minor. In order to provide the juvenile court with such information, de facto parent status is liberally granted. (In re Michael R. (1998) 67 Cal. App. 4th 150, 155 [78 Cal. Rptr. 2d 842] (Michael R.); Patricia L., supra, 9 Cal.App.4th at p. 67.) By contrast, when a motion for termination of de facto parent status is made, the agency bears the burden of proving a change of circumstances to demonstrate the merit of such termination. (See Brittany K., supra, 127 Cal.App.4th at pp. 1513-1514; Patricia L., supra, 9 Cal.App.4th at p. 67.) The matter before us illustrates the significance of this distinction. To terminate de facto parent status after having given judicial approval to a lifelong relationship between D.R. and C.S. without demonstrating that the depth of that relationshiphowever flawedis unchanged implicates the minor's interests to a greater degree than it would to have precluded that relationship from the onset.
*862 (7) Second, the stage of the dependency proceedings is also a key difference. The dependency in Kieshia E. resulted from sexual abuse by the proposed de facto parent. (See Kieshia E., supra, 6 Cal.4th at p. 78.) When a juvenile court finds that a nonparent has committed such abuse and has deemed it necessary to make the child a dependent of the court, our Supreme Court bars the abuser from intervening in the same proceeding as a de facto parent. (Id. at pp. 79-80; In re Merrick V., supra, 122 Cal.App.4th at p. 257; In re Leticia S., supra, 92 Cal.App.4th at pp. 382-383; In re Jonique W. (1994) 26 Cal. App. 4th 685, 696 [31 Cal. Rptr. 2d 601].) An applicant for de facto parent status is automatically disqualified if he or she caused harm to the minor. (In re Merrick V., supra, 122 Cal.App.4th at p. 257.) The abuser forfeits the opportunity to appear as a party, to be represented, and to give evidence about an appropriate disposition in a dependency proceeding caused by that person's misconduct. (Kieshia E., supra, 6 Cal.4th at p. 80; see In re Leticia S., supra, 92 Cal.App.4th at pp. 382-383.)
By contrast, D.R.'s dependency did not result from C.S.'s corporal punishment, but from L.H.'s failure to provide for him many years earlier. From the time the minor was an infant, C.S. took responsibility for D.R., offering him a home and providing for his care. The uncle continued to do so for 12 years, often under trying circumstances, until D.R. was removed from C.S.'s home in June 2008. In November 2008, the juvenile court found true an allegation that C.S. had administered corporal punishment on D.R. When it did so, it continued D.R.'s dependencyit did not institute dependency proceedings. Given D.R.'s many challenges, it is apparent that his dependency would have continued beyond the time of the June 2008 incident, even if the commissioner had not found that C.S. had inflicted corporal punishment on the minor.
(8) These distinctions suggest to us that Kieshia E. may not apply at all to the case before us. However, even if we assume arguendo that Kieshia E. does apply and that the force of that decision would automatically disqualify C.S. from becoming a de facto parent if he were found to have committed serious physical abuse, we conclude the juvenile court was required to make a threshold determination whether C.S.'s misconduct was the type of serious physical abuse contemplated by our state's high court in order to trigger automatic termination. In the case before us, the juvenile court found that C.S.'s conduct constituted serious physical abuse, but concluded that the single incident of misconduct found to have occurred did not rise to the level warranting termination of his de facto parent status.[5] In *863 our view, this threshold determination was necessarily within the juvenile court's authority to make. Thus, assuming arguendo that Kieshia E. applied at all to the motion to terminate C.S.'s de facto parent status, the juvenile court committed no legal error by concluding that his misconduct did not trigger mandatory loss of that status. (See In re Leticia S., supra, 92 Cal.App.4th at p. 381 [arbitrary, capricious or patently absurd determination constitutes legal error and abuse of discretion].)
B. Abuse of Discretion
Alternatively, the agency argues that the juvenile court abused its discretion in denying the motion to terminate C.S.'s de facto parent status. In this matter, the juvenile court found thatdespite the fact that D.R. had been removed from C.S.'s home for nearly 10 monthsthere was still a psychological bond between the two. It also noted that C.S. had begun to engage in rehabilitative work to change his parenting behaviorprogress that the juvenile court made clear that he would be required to continue to display in order to regain custody of the minor. It concluded that continuing C.S.'s de facto parent status was in D.R.'s best interests.
On a motion to terminate de facto parent status, the agency must establish a change of circumstances warranting termination. (Brittany K., supra, 127 Cal.App.4th at pp. 1513-1514; Patricia L., supra, 9 Cal.App.4th at p. 67.) On appeal from the juvenile court's order denying a motion to terminate, we review the order for an abuse of that court's discretion. (See Brittany K., supra, 127 Cal.App.4th at pp. 1512-1515; Michael R., supra, 67 Cal.App.4th at p. 156 [initial application case].) In most cases, the juvenile court will not abuse its discretion if substantial evidence supports its underlying factual findings. (See Michael R., supra, at p. 156.)
The juvenile court found that D.R. retained his psychological bond with C.S., despite the fact that they have lived apart for many months. Implicit in the juvenile court's denial of the agency's motion is the finding that even the physical abuse that C.S. inflicted on D.R. has not lessened that bond. Given the lifelong relationship between the minor and his uncle, it is likely that C.S. still has information about D.R. that could be useful to the juvenile court. Thus, the juvenile court impliedly found that the agency's showing of a change of circumstances was insufficient to warrant termination. Substantial evidence supports these findings. (See Michael R., supra, 67 Cal.App.4th at p. 156.) On these facts, we conclude that the juvenile court did not abuse its discretion in denying the motion to terminate C.S.'s de facto parent status.
*864 IV. K.F.'S DE FACTO PARENT STATUS
(9) The agency also contends that the juvenile court abused its discretion in granting K.F.'s application for de facto parent status. A finding of de facto parent status turns on the unique circumstances of each case. (Brittany K., supra, 127 Cal.App.4th at p. 1513; Michael R., supra, 67 Cal.App.4th at p. 155.) The juvenile court applies a preponderance of evidence standard to make the necessary factual findings related to a de facto parent application. K.F. bore the burden of proof on this issue. (See Michael R., supra, 67 Cal.App.4th at p. 155; Patricia L., supra, 9 Cal.App.4th at p. 67.) Normally, because a juvenile court can only benefit from information known about the child from sources beyond the natural parents, an application for de facto parent status is often granted. (Michael R., supra, 67 Cal.App.4th at p. 155; Patricia L., supra, 9 Cal.App.4th at p. 67.)
On appeal, the agency assertson a vicarious disqualification theory that K.F.'s application for de facto parent status should have been automatically denied for many of the same reasons that C.S.'s de facto parent status should have been terminated. Having rejected the agency's premise in C.S.'s case, we necessarily reject it when evaluating the order granting K.F. similar status. Instead, on appeal, we defer to the juvenile court's factual findings, if there is substantial evidence to support those underlying findings. As the ultimate question of whether an application for de facto parent status should be granted or denied is one for the discretion of the juvenile court, we apply an abuse of discretion standard of review. (See Michael R., supra, 67 Cal.App.4th at p. 156 [de facto parent status denied].)
(10) When considering an application for de facto parent status, the juvenile court considers such factors as the degree to which the child is psychologically bonded to the applicant; whether the applicant has assumed the role of a parent on a day-to-day basis for a substantial period of time; whether the applicant has unique knowledge about the child; whether the applicant attends juvenile court hearings; and whether the juvenile proceedings could result in an order permanently foreclosing future contact between the child and the applicant. (Brittany K., supra, 127 Cal.App.4th at p. 1513; Michael R., supra, 67 Cal.App.4th at p. 155; Patricia L., supra, 9 Cal.App.4th at pp. 66-67; see Cal. Rules of Court, rule 5.502(10).) The court should also consider whether the applicant has committed substantial harm against the child. (Michael R., supra, 67 Cal.App.4th at p. 155; see In re Vincent C. (1997) 53 Cal. App. 4th 1347, 1357-1358 [62 Cal. Rptr. 2d 224].)
*865 In the case before us, the juvenile court found that K.F. had actively served in a parenting role for D.R.'s benefit. It found no evidence that K.F. condoned C.S.'s physical abuse of D.R. There was also evidence that K.F. attended juvenile court hearings and that he had information about D.R. particularly related to the medications that the minor had takenthat could be useful to the juvenile court in determining how best to provide for the minor's needs. Under these circumstances, the juvenile court acted within its discretion to grant K.F. de facto parent status.
The juvenile court orders are affirmed.
Ruvolo, P. J., and Rivera, J., concurred.
NOTES
[1] We take judicial notice of the record on appeal in a recent matter involving the same minor. (In re D.R. (June 15, 2010, A123778) [nonpub. opn.].) D.R.'s mother, L.H., and C.S. assert that the agency's appeal of the de facto parent rulings that are the subject of the present appeal are grounded in the juvenile court's ruling on the supplemental petition, which is at issue in the related appeal.
[2] At this hearing, C.S. also advised the court that he was seeing a therapist on a weekly basis and that he had completed a parenting program with an emphasis on teen parenting. The agency objected that C.S. was doing this on his own and was not working with the agency. It protested that no reunification was likely to occur if C.S. refused to work with the agency.
[3] In the related appeal, we granted C.S. and L.H.'s request to take judicial notice of two transcripts and an April 6, 2009 minute order. At that time, we deferred a determination of the relevance of those three items. The transcripts are already part of the record on appeal in the related matter, of which we have taken judicial notice in this matter, as well. (See fn. 1, ante.) As the April 2009 minute order is the order from which the agency appeals in the matter now before us, we find that it is relevant to the present appeal. (See Evid. Code, §§ 210, 350.)
[4] Some courts have interpreted Kieshia E. more broadly, applying it in circumstances beyond sexual abuse or serious physical abuse. (See, e.g., In re Merrick V. (2004) 122 Cal. App. 4th 235, 257 [19 Cal. Rptr. 3d 490] [grandmother indirectly caused minor to be at risk of neglect because of parent's drug abuse]; In re Leticia S. (2001) 92 Cal. App. 4th 378, 382 [111 Cal. Rptr. 2d 810] [methamphetamine left within minor's reach].)
[5] We note that the juvenile court advised C.S. that if he engaged in any further abuse, it would terminate his de facto parent status sua sponte. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265155/ | 185 Cal. App. 4th 554 (2010)
HOME BUILDERS ASSOCIATION OF TULARE/KINGS COUNTIES, INC., Plaintiff and Appellant,
v.
CITY OF LEMOORE et al., Defendants and Respondents.
No. F057671.
Court of Appeals of California, Fifth District.
June 9, 2010.
*558 Law Offices of Walter P. McNeill and Walter P. McNeill for Plaintiff and Appellant.
Dowling, Aaron & Keeler and Daniel O. Jamison for Defendants and Respondents.
*559 OPINION
LEVY, J.
In late 2005, respondents, the City of Lemoore and the Lemoore City Council (City), engaged Colgan Consulting Corporation and Joseph Colgan (Colgan) to conduct a development fee impact study and prepare a report (Colgan Report). In late 2006 and early 2007 the City adopted various development impact fees based on the Colgan Report. Appellant, Home Builders Association of Tulare/Kings Counties, Inc. (HBA), challenged certain of these fees as being invalid under the Mitigation Fee Act (Gov. Code,[1] § 66000 et seq.).
The trial court upheld the majority of the disputed impact fees. HBA contends the trial court erred in that it applied an incorrect and excessively deferential "quantum of proof." HBA further argues that the various fees violate certain Mitigation Fee Act requirements. HBA also contends that some of these fees are preempted by the fees imposed for neighborhood and community parks that serve a subdivision under the Quimby Act (§ 66477).
As discussed below, the fire protection impact fee for the east side of the city is invalid in that it is not reasonably related to the burden created by the development project. However, the balance of the judgment upholding the remaining disputed fees will be affirmed.
BACKGROUND
Between October and December 2006, the City received Colgan's findings on the development impact fee study. Based on this report, the City held public hearings on the adoption of various impact fees. In December 2006 and January and February 2007, the City adopted 13 impact fees for new housing in Lemoore.
In May 2007, HBA filed and served its first amended petition for writ of mandate and complaint. HBA challenged seven of the impact fees adopted pursuant to the Colgan Report. According to HBA, the Colgan Report incorporated and applied a variety of accounting methods that are unlawful under the Mitigation Fee Act. Specifically, HBA objected to development impact fees for law enforcement, parkland acquisition and improvement, refuse vehicles and containers, fire protection, general municipal facilities, and community/recreational facilities. HBA also challenged the process by which the City accounts for and spends the impact fees collected.
*560 The City initially demurred to the first amended petition/complaint and moved to strike all allegations that the fees were special taxes, proceeds of taxes, were excessive as such, and violated the California Constitution. The trial court overruled the demurrer but granted the motion to strike. HBA did not amend. Accordingly, all constitutional issues were removed and the case proceeded on the statutory claims raised by HBA as to the City's alleged noncompliance with the Mitigation Fee Act.
Thereafter, the City moved for summary judgment/summary adjudication. The trial court granted summary adjudication in the City's favor on the causes of action regarding the fire protection impact fees, police impact fees, municipal facilities impact fees, and the administration of the impact fees. The court concluded that the City had adequately demonstrated that it complied with the Mitigation Fee Act and that its determination of the amount of these disputed fees was neither arbitrary nor capricious. However, the court found that triable issues of material fact existed with respect to the causes of action regarding the parkland acquisition, parkland improvement, community/recreation, and refuse vehicle and container impact fees.
Following a trial on the remaining causes of action, the trial court ruled in favor of the City on the validity of those fees with one exception. The court invalidated the parkland improvement impact fee as applied to subdivisions subject to the Quimby Act.
DISCUSSION
1. The Mitigation Fee Act.
(1) At issue in this appeal is whether, in adopting the disputed impact fees, the City complied with the Mitigation Fee Act. This act embodies a statutory standard against which monetary exactions by local governments subject to its provisions are measured. (Ehrlich v. City of Culver City (1996) 12 Cal. 4th 854, 865 [50 Cal. Rptr. 2d 242, 911 P.2d 429].) It was passed by the Legislature "`in response to concerns among developers that local agencies were imposing development fees for purposes unrelated to development projects.'" (Id. at p. 864.)
The Mitigation Fee Act requires the local agency to identify the purpose of the fee and the use to which the fee will be put. (§ 66001, subd. (a)(1) & (2).) The local agency must also determine that both "the fee's use" and "the need for the public facility" are reasonably related to the type of development project on which the fee is imposed. (§ 66001, subd. (a)(3) & (4).) In *561 addition, the local agency must "determine how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion of the public facility attributable to the development on which the fee is imposed." (§ 66001, subd. (b).) "Public facilities" are defined as including "public improvements, public services, and community amenities." (§ 66000, subd. (d).)
2. The standard of review and burden of proof.
The City's adoption of the development impact fees under the Mitigation Fee Act involved a quasi-legislative action. (Cf. Warmington Old Town Associates v. Tustin Unified School Dist. (2002) 101 Cal. App. 4th 840, 849 [124 Cal. Rptr. 2d 744].) Thus, the City's action is reviewed under the narrower standards of ordinary mandate. (Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal. App. 4th 320, 328 [4 Cal. Rptr. 2d 897].) Accordingly, judicial review is limited to an examination of the proceedings before the City to determine whether its action was arbitrary, capricious, or entirely lacking in evidentiary support. (San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal. 4th 653, 667 [42 Cal. Rptr. 3d 868, 133 P.3d 1028].) The action will be upheld if the City adequately considered all relevant factors and demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute. (Shapell Industries, Inc. v. Governing Board (1991) 1 Cal. App. 4th 218, 232 [1 Cal. Rptr. 2d 818].) This issue, i.e., whether the City's action was arbitrary or capriciousness, is a question of law. (Id. at p. 233.) "The inquiry into arbitrariness or capriciousness is like substantial evidence review in that both require a reasonable basis for the decision." (Garrick Development Co. v. Hayward Unified School Dist., supra, 3 Cal.App.4th at p. 328.)
(2) As noted above, before imposing a fee under the Mitigation Fee Act, the local agency is charged with determining that the amount of the fee and the need for the public facility are reasonably related to the burden created by the development project. If such a fee is challenged, the local agency has the burden of producing evidence in support of its determination. (Garrick Development Co. v. Hayward Unified School Dist., supra, 3 Cal.App.4th at p. 329.) The local agency must show that a valid method was used for imposing the fee in question, one that established a reasonable relationship between the fee charged and the burden posed by the development. (Shapell Industries, Inc. v. Governing Board, supra, 1 Cal.App.4th at p. 235.) In other words, the action was not arbitrary or capricious.
*562 However, this burden of producing evidence is not equivalent to the burden of proof. In general, the imposition of various monetary exactions, such as special assessments, user fees, and impact fees, is accorded substantial judicial deference. (San Remo Hotel v. City and County of San Francisco (2002) 27 Cal. 4th 643, 671 [117 Cal. Rptr. 2d 269, 41 P.3d 87].) In the absence of a legislative shifting of the burden of proof, a plaintiff challenging an impact fee has to show that the record before the local agency clearly did not support the underlying determinations regarding the reasonableness of the relationship between the fee and the development. (Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal. 4th 431, 444 [79 Cal. Rptr. 3d 312, 187 P.3d 37].)
There have been occasional comments from Courts of Appeal that the burden of proof in a fee case falls on the local agency. These cases cite Beaumont Investors v. Beaumont-Cherry Valley Water Dist. (1985) 165 Cal. App. 3d 227 [211 Cal. Rptr. 567] as support for this shift. However, in Beaumont Investors, the local agency failed to produce any evidence to support its calculation of the disputed fee. Thus, it was a failure to meet the burden of production, not the burden of proof. In ruling that the facilities fee was invalid because the local agency failed to develop a record from which costs reasonably related to the development could be determined, Beaumont Investors conflated the two concepts. In contrast here, the City produced a record to support the disputed fees. Thus, Beaumont Investors and its progeny are distinguishable.
Here, the standard applicable to ordinary mandate applies and there is no basis for shifting the parties' burdens. Thus, the City had the initial burden of producing evidence of the reasonableness of the relationship between the fee charged and the burden posed by the development. However, HBA had the burden of proving that the record before the City did not support the City's underlying determinations.
3. Community/Recreational Facility Impact Fee (Resolution No. 2007-01).
The City relied on the Colgan Report in adopting the various development impact fees. Colgan proposed the community/recreational facility impact fee to fund the cost of adding community and recreational facilities that will be needed to maintain the current level of service as the city grows. Colgan calculated these fees based on the existing ratio of community and recreational facility asset value to population, the rationale being that the need for such facilities is based on the size of the population to be served. Colgan determined that the City had invested $5,477,160 in existing community *563 recreational facilities and then divided that number by the current population to arrive at the per capita cost. That cost was then multiplied times the population per unit of development type to arrive at the fee per unit. This calculation is known as the standard-based method.
Regarding future needs, Colgan noted that the existing community and recreational facilities are unique and will not be duplicated. These facilities include the civic auditorium, a youth plaza skate park, a teen center, the train depot complex, and a golf course. Rather, the City intends to expand the range of recreational choices by constructing other types of facilities including a municipal aquatic center, a municipal gymnasium and fitness center, and a naval air museum. These facilities are expected to cost in excess of $5 million while the impact fee is projected to yield approximately $3.2 million.
HBA objects to the community/recreational facility impact fee on two grounds. HBA argues that the fee violates the Mitigation Fee Act's requirement that the public facilities be identified and that the fee is preempted by the Quimby Act.
a. The City adequately identified the public facilities.
(3) Section 66001, subdivision (a)(1) and (2), require the City to "[i]dentify the purpose of the fee" and "[i]dentify the use to which the fee is to be put." If the use is financing public facilities, the facilities must be identified. However, the statute provides flexibility regarding how that identification may be made. It may, but need not, "be made by reference to a capital improvement plan as specified in Section 65403 or 66002, may be made in applicable general or specific plan requirements, or may be made in other public documents that identify the public facilities for which the fee is charged." (§ 66001, subd. (a)(2).) Similarly, Lemoore City Code, section 8-10-3, requires that impact fee resolutions shall be adopted in accordance with the provisions of the Mitigation Fee Act. Regarding the content of such resolutions, Lemoore City Code, section 8-10-2, requires the city council to "list the specific public improvements to be financed."
HBA contends the City disregarded these provisions in establishing the community/recreational facility impact fee in that no specific public improvements were identified. Rather, reference was made to examples of future facilities without any actual plan or commitment. The crux of HBA's complaint is the City's use of the standard-based method to calculate the fees to maintain the current level of service, i.e., the ratio of the value of existing facilities divided by the current population to arrive at the per capita cost. HBA argues the Mitigation Fee Act requires the identification of a specific *564 improvement plan and its attendant costs, not simply a type or category of future public facilities. In other words, the City must use a plan-based approach.
(4) Contrary to HBA's position, section 66001 is not so limiting. Rather, it is acceptable for the local agency to identify the facilities via general plan requirements. In fact, a "fee" may be "established for a broad class of projects by legislation of general applicability." (§ 66000, subd. (b).) It would be unreasonable to demand the specificity urged by HBA and require local agencies to make a concrete showing of all projected construction when initially adopting a resolution. Such a resolution might be in effect for decades. (Cf. Garrick Development Co. v. Hayward Unified School Dist., supra, 3 Cal.App.4th at p. 332.)
(5) Moreover, HBA's concern that the standard-based fiiee "is a spinning turnstile for the collection of money" is unwarranted. Section 66001, subdivisions (c) through (e) require that collected fees be kept segregated from other funds; unexpended funds be accounted for yearly; and if a use for the collected fees cannot be shown, they are refunded pro rata with interest. (Garrick Development Co. v. Hayward Unified School Dist., supra, 3 Cal.App.4th at p. 332.) Thus, there is a mechanism in place to guard against unjustified fee retention. (Ibid.)
Further, the standard-based method of calculating fees does not prevent there being a reasonable relationship between the fee charged and the burden posed by the development. There is no question that increased population due to new development will place additional burdens on the citywide community and recreational facilities. Thus, to maintain a similar level of service to the population, new facilities will be required. It is logical to not duplicate the existing facilities, but rather, to expand the recreational opportunities. To this end, the City intends to construct an aquatic center, a gymnasium and fitness center, and a naval air museum. Since the facilities are intended for citywide use, it is reasonable to base the fee on the existing ratio of community and recreational facility asset value to population. The fact that specific construction plans are not in place does not render the fee unreasonable. The public improvements are generally identified. The record, here the Colgan Report, need only provide a reasonable basis overall for the City's action. (Garrick Development Co. v. Hayward Unified School Dist., supra, 3 Cal.App.4th at p. 333.)
The community/recreational facility impact fee also meets the identification requirements of the Lemoore City Code. Under section 8-10-3 of the Lemoore City Code, the Mitigation Fee Act controls the adoption of such fees.
*565 HBA additionally argues that the existence of a carryover balance of approximately $1,486,000 in the City's recreation capital impact fee fund invalidates the community/recreational facility impact fee. According to HBA, the failure of the City to credit that carryover balance to the calculation of the new development impact fee causes the resulting fees to be in excess of the reasonable cost of the public facilities for which the fees are imposed; be levied, collected and imposed for general revenue purposes; and fail the reasonable relationship requirement.
However, as explained by Colgan, the development that paid those fees and created the balance is now existing development and those funds must be used to pay for facilities that serve that existing development. Colgan further noted that if, as suggested by HBA, the City were credited with that account balance as existing facilities, the impact fees would be higher. Moreover, under section 66001, subdivision (e), if the carryover balance is not expended on the public improvements for which the fees were collected, the unexpended fees are to be refunded pro rata to the owners of the lots of the development project that paid the fees. Thus, it would be contrary to the statute to credit refunds that are due to existing development to new development.
(6) In sum, the City adequately considered all relevant factors and demonstrated a rational connection between those factors and the community/recreational facility impact fee. (Shapell Industries, Inc. v. Governing Board, supra, 1 Cal.App.4th at p. 232.) The City's action was not arbitrary, capricious, or entirely lacking in evidentiary support. (San Francisco Fire Fighters Local 798 v. City and County of San Francisco, supra, 38 Cal.4th at p. 667.)[2]
b. The community/recreational facility impact fee is not preempted by the Quimby Act.
(7) Section 66477 (the Quimby Act) permits a city or county to enact an ordinance requiring the dedication of land, or the payment of fees in lieu thereof, for park and recreational purposes as a condition of the approval of a subdivision so long as certain requirements are met. The ordinance must include definite standards for determining the proportion of a subdivision to *566 be dedicated and the amount of any fee to be paid in lieu thereof. However, this dedication or payment cannot "exceed the proportionate amount necessary to provide three acres of park area per 1,000 persons residing within a subdivision subject to this section, unless the amount of existing neighborhood and community park area ... exceeds that limit, in which case the legislative body may adopt the calculated amount as a higher standard not to exceed five acres per 1,000 persons residing within a subdivision subject to this section." (§ 66477, subd. (a)(2).) Further, "[t]he land, fees, or combination thereof are to be used only for the purpose of developing new or rehabilitating existing neighborhood or community park or recreational facilities to serve the subdivision." (§ 66477, subd. (a)(3), italics added.) Also, "[t]he amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision." (§ 66477, subd. (a)(5), italics added.)
HBA contends that, because the community/recreational facility impact fee and the Quimby Act both pertain to "recreation," the Quimby Act preempts the community/recreational facility impact fee. According to HBA, any impact fee imposed on subdivisions for recreational facilities would overlap and duplicate exactions for recreational facilities imposed under the local Quimby Act ordinance, causing builders to pay twice for such recreational facilities.
(8) However, the Quimby Act is designed to maintain and preserve open space for the recreational use of the residents of new subdivisions, not the city at large. (Associated Homebuilders etc., Inc. v. City of Walnut Creek (1971) 4 Cal. 3d 633, 637 [94 Cal. Rptr. 630, 484 P.2d 606].) Accordingly, under this scheme, the park must be in sufficient proximity to the subdivision to serve those future residents. (Ibid.) The statute specifically states that the land or fees are to be used for neighborhood or community parks or recreational facilities. Although nonsubdivision residents are not excluded, the recreational facilities required by the Quimby Act ordinance are for the new residents whose presence creates the need for additional parkland near the subdivision, as distinguished from a more general or diffuse need for areawide services. (4 Cal.3d at p. 642.)
In contrast, the community/recreational facility impact fees are to be used to build unique facilities intended to serve the entire population of the city. Thus, there is no duplication of fees. Rather, the Quimby Act fees and the community/recreational facility impact fees pertain to entirely separate categories of "recreation."
(9) Moreover, the Mitigation Fee Act authorizes fees for recreational facilities independent of the Quimby Act. Quimby Act fees are expressly *567 excluded from the fees authorized to be collected under the Mitigation Fee Act. (§ 66000, subd. (b).) Nevertheless, the Mitigation Fee Act permits fees to be adopted for "[p]arks and recreation facilities." (§ 66002, subd. (c)(7).)
In sum, the community/recreational facility impact fees address needs other than "neighborhood or community park or recreational facilities to serve the subdivision." Accordingly, those fees are not preempted by the Quimby Act.
4. Parkland Impact Fee.
The City adopted two separate parkland impact fee resolutions. Resolution No. 2007-04 set fees in lieu of parkland dedication under the Quimby Act. Resolution No. 2006-46 set such fees for residential development not involving a subdivision of land, i.e., development not subject to the Quimby Act.
HBA contends the resolution No. 2007-04 parkland impact fee is invalid for three reasons. According to HBA, this impact fee is preempted by the Quimby Act, is calculated using the invalid "standard-based method," and is inconsistent with the City's general plan. In support of the first two reasons, HBA merely references its arguments regarding the community/recreational facility impact fee. However, this parkland impact fee cannot be preempted by the Quimby Act because it was adopted pursuant to that act. If HBA meant this argument to pertain to resolution No. 2006-46 parkland fees, it is also without merit because those fees are expressly limited to residential development outside of the Quimby Act. HBA's contention that the fees are invalid due to the use of the standard-based calculation method is also unavailing for the reasons stated above.
The parkland impact fee standard is not inconsistent with the City's general plan.
The Quimby Act provides that the dedication of land, or the payment of fees, or both shall not exceed the proportionate amount necessary to provide three acres of park per 1,000 residents of the subdivision. However, if the amount of existing neighborhood and community park area exceeds that limit, the legislative body may adopt the calculated amount as a higher standard not to exceed five-acres per 1,000 residents. (§ 66477, subd. (a)(2).)
The Colgan Report calculated the ratio of existing park acreage to population as exceeding five acres per 1,000 persons. Accordingly, the City adopted the five acre standard as authorized by the Quimby Act.
HBA argues that this standard of five acres per 1,000 residents is inconsistent with the City's general plan. The 1990 general plan, relied on by HBA, *568 established a standard of three acres as the basis for requiring land dedications and/or fees as authorized by the state Subdivision Map Act (§ 66410 et seq.).
In enacting the park land fee ordinance and resolutions, the City concluded that the standard of five acres per 1,000 residents was consistent with the City's general plan. This conclusion carries a strong presumption of regularity that can only be overcome by a showing of abuse of discretion. (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal. App. 4th 807, 816 [65 Cal. Rptr. 3d 251].) "`An abuse of discretion is established only if the city council has not proceeded in a manner required by law, its decision is not supported by findings, or the findings are not supported by substantial evidence.'" (Ibid.) Appellate review is highly deferential to the local agency," `recognizing that "the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity. [Citations.]"'" (Ibid.)
(10) An action is consistent with the general plan if, considering all of its aspects, it will further the objectives and policies of the general plan. (Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal. App. 4th 985, 994 [21 Cal. Rptr. 2d 803].) State law does not require perfect conformity between the action and the general plan. (Friends of Lagoon Valley v. City of Vacaville, supra, 154 Cal.App.4th at p. 817.) Rather, to be consistent, the action simply must be compatible with the objectives, policies, general land uses and programs specified in the general plan. (Ibid.)
Here, the City's general plan reflects the City's commitment as a matter of policy and priority to parks and recreation for its citizens. The plan proposes the acreage standards as "policies" and expressly recognizes that circumstances could change. The reference to the acreage standard being as authorized by the Subdivision Map Act indicates that the general plan was intended to be consistent with that act.
Under these circumstances, it must be concluded that the City did not abuse its discretion in finding that the five-acre standard was not inconsistent with the general plan. The general plan references the Subdivision Map Act, which authorizes the five-acre standard in section 66477, i.e., the Quimby Act. This is an officially approved statewide goal that the Legislature intended the City to be guided by in its planning process. (§ 65030.1.) Moreover, this standard furthers the objectives and policies of the general plan to promote access to parks and recreation. In sum, the five-acre standard is compatible with the general plan.
*569 5. Police Impact Fee (Resolution No. 2006-46).
The City adopted the police impact fee to maintain its current level of service for police facilities, vehicles, and equipment as the city grows. The Colgan Report calculated the impact fees based on the cost of maintaining existing ratios of facilities, vehicles, and officer safety equipment to calls for service. Colgan used a random sample of all calls logged for 2005 classified by development type, i.e., single-family residential, multifamily residential, etc., and the number of existing units per development type to arrive at the average police calls per existing unit of development type. Colgan then used the estimated replacement cost of existing facilities and assets divided by the total number of service calls to arrive at an average cost per call. To arrive at the capital cost per unit of development type, Colgan multiplied the calls per unit of development type times the cost per call. The Colgan Report also found that the existing police headquarters building was nearing capacity and additional space would be needed to accommodate the city's growth.
HBA again objects to the City's use of a standard-based method to arrive at the impact fee. According to HBA, this standard has no nexus to new housing that pays the fees and fails to identify public facilities required to serve new development. HBA additionally argues that the standard improperly includes operational expenses that are not "public facilities" such as radios, weapons, protective clothing, and vehicles.
Contrary to HBA's position, the Colgan Report provides a reasonable basis overall for the police impact fee. There is no question that increased population due to new development will place additional demands on the police department. To maintain the current level of service, the department will need to be expanded. Since the fee calculation standard classifies the cost of service by development type, there is a nexus between the development that pays the fee and the burden on the police department caused by that development.
HBA's objection to the fee calculation including the capital cost of police vehicles and equipment is also without merit. Section 66000, subdivision (d), defines "public facilities" as including public improvements and public services. Vehicles and officer safety equipment are necessary to provide the public service of police protection. The fees are to be used for the initial capital costs of these items, not for the costs of operation and maintenance.
Finally, the public facilities to be financed by the police impact fees are adequately identified. The Colgan Report refers to expanding the current headquarters, constructing a substation, and adding the necessary police vehicles and officer safety equipment.
*570 In sum, the police impact fee is valid. The City adequately considered all relevant factors and demonstrated a rational connection between those factors and the fee. (Shapell Industries, Inc. v. Governing Board, supra, 1 Cal.App.4th at p. 232.)
6. Municipal Facilities Impact Fee (Resolution No. 2006-49).
The City adopted the municipal facilities impact fee to maintain the city's existing level of service for municipal facilities, vehicles and equipment as the city grows. To calculate this fee, Colgan valued the existing municipal facilities, vehicles and equipment and calculated a per capita cost based on the current relationship between municipal facility costs and functional population.
As with the community/recreational facility impact fee and the police impact fee, HBA objects to the City's use of a standard-based method to arrive at this fee. According to HBA, this standard has no nexus to new housing that pays the fees and fails to identify public facilities required to serve new development.
Contrary to HBA's position, the Colgan Report provides a reasonable basis overall for the municipal facilities impact fee. Increased population due to new development will place additional demands on the existing complement of municipal facilities, vehicles and equipment. To maintain the current level of service, this complement will inevitably need to be expanded. Colgan noted that some city services are impacted only indirectly by residential development and thus allocated costs between residential and nonresidential development. This specific allocation of costs among different types of development provides a nexus between the development that pays the fee and the burden on municipal facilities posed by that development.
The Colgan Report acknowledges that specific plans for future municipal facilities and equipment are not currently available. The report further notes that "[t]he existing municipal complex contains large areas that are currently unfinished and unused. It is likely that some of the City's future space needs will be accommodated by finishing additional space in that building, which currently houses offices, maintenance facilities, and storage. Other space may be acquired or developed downtown."
Nevertheless, as discussed above, it is acceptable for the local agency to identify the facilities via general plan requirements. Moreover, contrary to HBA's position, Colgan considered the capacity of the existing facilities noting that such areas could be finished to provide for future municipal needs. Further, the section 66001, subdivisions (c) through (e) requirements that the *571 collected fees be segregated, accounted for yearly, and refunded if a use cannot be shown guard against unjustified fee retention. (Garrick Development Co. v. Hayward Unified School Dist., supra, 3 Cal.App.4th at p. 332.)
The City adequately considered all relevant factors and demonstrated a rational connection between those factors and the municipal facilities impact fee. (Shapell Industries, Inc. v. Governing Board, supra, 1 Cal.App.4th at p. 232.) The City's action was not arbitrary, capricious, or entirely lacking in evidentiary support. (San Francisco Fire Fighters Local 798 v. City and County of San Francisco, supra, 38 Cal.4th at p. 667.) Accordingly, this fee is valid.
7. Fire Protection Impact Fee (Resolution No. 2006-49).
For purposes of calculating fire protection impact fees, the Colgan Report divided the city into two service areas, the older established east side and the newer west side. Regarding the east side, the Colgan Report states that "the facilities and equipment needed to serve future development are already in place, so impact fees for that area are intended to recover new development's proportionate share of the cost of the fire protection assets serving the area. The revenue from those fees will be used to offset a portion of the City's recent investments in facility improvements and new equipment, which were funded in part with general fund money." In contrast, the west side will need a new fire station and equipment to serve that area as it develops.
a. The east side impact fees are invalid.
As discussed above, the Mitigation Fee Act requires the local agency to determine that the amount of the fee and the need for the public facility are reasonably related to the burden created by the development project. Further, the local agency must identify the facilities to be financed by the fee.
HBA objects to the east side fees on the ground that they are being imposed for general revenue purposes. Since there is no need for additional fire protection facilities in that part of the city to serve new development, HBA contends that no nexus exists between the fees and the burden posed by new housing.
(11) HBA is correct. While a fee may be imposed to cover costs attributable to increased demand for public facilities reasonably related to the development project in order to (1) refurbish existing facilities to maintain the existing level of service or (2) achieve an adopted level of service that is consistent with the general plan (§ 66001, subd. (g)), the existing east side fire protection facilities are already adequate to continue to provide the same *572 level of service. In other words, the new development will not burden the current facilities. The Colgan Report's proposal to reimburse the City for its prior general fund money investments is not authorized by the Mitigation Fee Act. Rather, such a fee would constitute general revenue to the City in violation of section 66008, and therefore is invalid.
b. The west side impact fees are valid.
The Colgan Report concludes that, due to the barrier created by Highway 41 between the east side and the west side of the city, a new fire station will be required to serve the west side as it develops. In calculating the cost per capita for the west side, Colgan included the forecasted population of a 476-acre area that may be annexed to the city in the future. This addition resulted in reducing the west side fire protection impact fees by approximately 28 percent.
HBA objects to the calculation including this potential annexation area as opposed to using the existing legal boundaries of the city. HBA posits that a new fire station might not be needed if the hypothetical annexation does not occur.
Contrary to HBA's position, the Colgan Report provides a reasonable basis for the City's adoption of the west side impact fee. There is no indication that, without the potential annexation, additional fire protection facilities would be unnecessary to serve new development. Rather, it can be inferred from the relatively low percentage of fee reduction, i.e., 28 percent, that fire protection facilities would be required with or without the annexation. The City considered the potential population to be served for the purpose of reducing the fee that would otherwise be charged and spreading the costs more equitably. This action was not arbitrary or capricious.
8. Refuse Vehicle and Container Impact Fees (Resolution No. 2006-46).
To calculate the refuse vehicle impact fees for single-family residences, Colgan used the existing relationship between the number of side-loading trucks and the number of dwelling units in the city. These fees are intended to provide for additional vehicles as the number of customers increases. The analysis assumes the need for additional vehicles will increase in proportion to the number of additional dwelling units. The impact fee calculated for refuse containers is based on the cost of the three containers provided to each new single-family residence.
HBA contends this standard improperly includes operational expenses in violation of section 65913.8. According to HBA, the refuse containers and *573 rapidly depreciating refuse vehicles are not public facilities that may be funded by development impact fees. Rather, HBA argues, the containers and replacement vehicles should be paid for by the monthly garbage collection service fees.
Section 66000, subdivision (d), defines "public facilities" as including public improvements and public services. Refuse vehicles and containers are necessary to provide the public service of garbage collection. The fees are to be used for the initial capital costs of these items, not for the costs of operation and maintenance. Accordingly, these fees are valid.
9. City's collection and administration practices comply with the Mitigation Fee Act.
(12) Fees collected under the Mitigation Fee Act must be administered pursuant to the Act's statutory requirements. In general, the local agency must deposit the fee collected "with the other fees for the improvement in a separate capital facilities account or fund in a manner to avoid any commingling of the fees with other revenues and funds of the local agency ...." (§ 66006, subd. (a).) Thereafter, within 180 days of the end of each fiscal year, the local agency must provide certain information to the public for each separate account or fund. This information includes a brief description of the type of fee; the amount of the fee; the beginning and ending balance; the amount of the fees collected and interest earned; an identification of each public improvement on which fees were expended and the amount of the expenditures on each improvement; and an approximate date by which the construction of the public improvement will commence if the local agency determines that sufficient funds have been collected. (§ 66006, subd. (b).)
(13) A fee may be established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis. (§ 66000, subd. (b).) At the time the local agency imposes a fee for public improvements on a specific development project, it must identify the public improvement that the fee will be used to finance (§ 66006, subd. (f)) and must expend the fee solely and exclusively for the purpose or purposes so identified (§ 66008).
HBA objects to the City's administration of the development fees on the ground that the City did not adequately identify the public facilities and improvements to be financed as part of enacting the fee resolutions. HBA further argues that the City's annual reporting does not identify each public improvement on which funds were expended and does not show the total percentage of the cost of public improvement that was funded by fees as required by section 66006, subdivision (b)(1)(E). HBA additionally contends *574 that, when the City imposes and collects a fee payment, it does not identify the public improvements that the fee will be used to finance in violation of section 66006, subdivision (f).
As discussed above, the City adequately identified the public facilities and improvements when it enacted the development impact fees.
Further, the City's annual reporting meets the statutory requirements. HBA objects to the City segregating the funds by facility category, rather than by a specifically identified project. However, fees may be established, as they were here, for a broad class of projects as opposed to a specific improvement. (§ 66000, subd. (b).) Moreover, under section 66006, subdivision (a), all that is required is that the fees be deposited into "a separate capital facilities account" to avoid commingling with the local agency's other revenues and funds. Further, contrary to HBA's position, the City's annual accountings for fiscal year 2006-2007 do identify the specific projects on which the fees were expended and the percentage of the cost that was funded by the fees in compliance with section 66006, subdivision (b).
HBA's claim that the City violated section 66006, subdivision (f), is also without merit. That section pertains to imposition of "a fee for public improvements on a specific development project." (Italics added.) As noted by the trial court, HBA has neither alleged nor shown that a development fee has been imposed directly on it or one of its members. Accordingly, section 66006, subdivision (f), cannot provide HBA with a basis for relief.
DISPOSITION
The portion of the judgment upholding the fire protection impact fee for the east side of the City is reversed. In all other respects, the judgment is affirmed. Each party will bear its own costs on appeal.
Dawson, J., concurred.
ARDAIZ, P. J., Concurring.
I concur in the result. I write separately to express my view regarding the assessment of a community/recreational facility impact fee. In the instant case, the City of Lemoore imposed a fee pursuant to Government Code section 66000 et seq., regarding a category of desired potential municipal improvements such as a municipal aquatic center, a municipal gymnasium and fitness center and a naval air museum. Appellant objects that the specific facility is not clearly identified and therefore complains that it must be specifically identified. As noted in the majority opinion "reference was made to examples of future facilities without any actual plan or commitment." (Maj. opn., ante, at p. 563.)
*575 I agree with the majority that a class of projects may be identified as opposed to a specific project. However, that resolution does not address my concern regarding the nature of the class of projects in terms of relationship to the specific development. Government Code section 66000 specifically provides within its definition of a "fee" that it is a monetary exaction "imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project ...." (§ 66000, subd. (b), italics added.)
Government Code section 66001 addresses the duties of the local agency in regard to the fee and provides in pertinent part, "Determine how there is a reasonable relationship between the fee's use and the type of development project on which the fee is imposed." (§ 66001, subd. (a)(3), italics added.)
Specifically, my concern is the category of municipal improvements designated as justification for the fee in question. Using general rules of construction, there are two that have bearing here. Noscitur a sociis, it is known from its associates, means that a word may be defined by an accompanying word. Ejusdem generis, of the same kind, means that general words are construed to embrace only objects similar in nature to those objects enumerated by the specific word. (2A Singer & Singer, Sutherland Statutes and Statutory Construction (2007 new ed.) §§ 47:16 to 47:17). In the context of this case, I would conclude that the specific facilities identified such as a municipal aquatic center and a naval air museum identify the class of projects referred to. Or, to be specific, the class of projects referred to would be reasonably identified as communitywide projects, which is precisely how they were described.
This brings me to the specific concern that I raise. Government Code sections 66000 and 66001 refer to a fee related to the development project. The term "related" would in its normal usage mean associated with or having a close connection to. (Webster's New World Dict. (2d college ed. 1982) p. 1198.) I would infer from this that the proposed specific project or class of projects must be a consequence of or have a direct relationship to the proposed development.
I have no argument that the proposed class of municipal projects herein is not desirable or beneficial. However, I have great difficulty concluding that their desirability or need are a consequence of or have a direct relationship to the proposed project herein. That a community may be desirous of celebrating its military heritage is laudable. However, it is a community benefit that springs from an expression of the nature of the community atmosphere and culture. Likewise, an aquatic center is a desirable and useful thing but it is difficult to infer how its need springs from the project herein.
*576 Clearly as population expands or shifts, more and different infrastructure facilities are required. New population centers require building new elementary schools and new roads, etc. However, there is a significant difference between building a new elementary school or a new high school that may service more than just the development and a facility that services the entire community. That a community grows and the nature of the population changes relates to policy decisions that fall upon the entire community as opposed to one aspect of the community. In other words, the fact that a new development may increase traffic on a central roadway does not mean that the new development should be responsible for building a freeway. Such responsibilities should fall equally within the community, and in my view to link it to a specific development is a tenuous thread. Utilizing that type of reasoning justifies a development fee for almost anything and I do not glean that type of result from the words of this statute.
Appellant argues, as it did before the trial court, that failure to identify a specific project violates the provision of Government Code section 66001, subdivision (a)(2) that the "facilities shall be identified," likewise the provisions of Government Code section 66006, subdivision (b)(1)(E) requiring "[a]n identification of each public improvement" as well as related statutes with similar language. While I do not read the statute so narrowly, I would contend that the failure to identify a specific project could deprive the developer of any reasonable ability to determine if the specific project is reasonably related to the proposed fee. On the other hand, a listing of projects that clearly would relate to the development such as increased sewage, schools, water, et cetera, does define projects that on the surface do bear a reasonable relationship to the normal infrastructure facilities generated by a new development.
The impact of allowing general community municipal improvements without any realistic showing as to how they bear a direct or reasonable relationship to the proposed development raises serious issues as to whether the statute herein does justify the fees imposed for the proposed improvements. I do not accept that simply concluding a particular general municipal improvement benefits the community as a whole and necessarily a specific development within that community somehow supports the conclusion that it is related to a specific development.
The majority concludes by footnote that the specific nature of the facility was not argued as opposed to the contention that the specific identity of the project must be specified. In other words that the specific issue was not preserved for appeal. (See maj. opn., ante, at p. 565, fn. 2.) In my view the issue is at best ambiguous as to whether the general argument subsumes the *577 specific but I do agree that the specific argument directed toward my concern was not raised. I write separately to ensure no implication that inferentially I accept the conclusion that the projects indicated herein are justified under the statute. In my view, absent some showing of a more direct and specific relationship between the municipal improvement and the proposed development, such fees are seriously subject to question.
NOTES
[1] All further statutory references are to the Government Code.
[2] The concurring opinion questions the validity of this community/recreational facility impact fee on the ground that the proposed citywide municipal projects are not adequately related to the specific development project. The concurring justice opines that the relationship between the development and the need for the improvement must be direct to be reasonable. However, HBA did not argue, either in the trial court or on appeal, that this reasonable relationship requirement was not met. Rather, HBA limited its argument to the specificity requirement. Accordingly, we express no opinion on this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265115/ | 657 F. Supp. 433 (1987)
UNITED STATES of America, ex rel. SCARINCIO, Mark, Petitioner,
v.
COUGHLIN, Thomas A. III, Commr. of Correctional Services, Respondent.
No. 85 Civ. 4353(PNL).
United States District Court, S.D. New York.
April 7, 1987.
*434 Slotnick & Cutler, P.C., New York City (Barry Slotnick and Richard A. Medina, of counsel), for petitioner.
Robert Abrams, Atty. Gen. of N.Y., New York City (Tyrone Mark Powell, Asst. Atty. Gen.), for respondent.
OPINION AND ORDER
LEVAL, District Judge.
Mark Scarincio, serving a five to fifteen year sentence for the sale of cocaine at Downstate Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims entitlement to a new trial based on the discovery of an exculpatory eyewitness who he contends was not available to him at trial because of prosecutorial misconduct. The petition was referred to Magistrate Francis, who recommended that it be denied on the basis of factual determinations made by the state coram nobis court, including determinations that the exculpatory witness was not believable and that the alleged misconduct was not shown.
Petitioner filed objections to the Magistrate's Report and Recommendation. I find fair support in the record for the state courts' factual determinations and therefore deny the petition.
Background
Petitioner Scarincio was convicted of one count of criminal sale of a controlled substance in the third degree on October 23, 1981 after a jury trial in the Warren County Court of the State of New York.
Only two witnesses testified at trial, a chemist and an undercover police officer. The officer stated that, on June 4, 1980 at petitioner's home, he purchased two grams of cocaine from Vicki Macero, petitioner's girlfriend, and that just prior to the sale, petitioner told Macero either "You go sell it to him" or "You go get it for him." (T.Tr. 50, 82.)[1] The officer further testified that after paying Macero $200, Macero handed the money to petitioner. (T.Tr. 51.)
A police informant, Jennifer DeSantis, had accompanied the undercover officer to petitioner's home, where the sale took place. According to petitioner's trial counsel, when he spoke with DeSantis prior to trial, she said she was unable to recall anything of significance concerning the events at petitioner's home. Defense counsel tried unsuccessfully to contact her to arrange a subsequent interview. Defense counsel finally obtained the assistance of the prosecutor in contacting DeSantis. The next day, DeSantis called defense counsel and gave an inculpatory account of petitioner's role in the sale. Counsel thereupon entered into a stipulation that neither party would call DeSantis as a witness and that defendant would not request an adverse charge with respect to the failure of the prosecution to produce DeSantis at trial. *435 Petitioner was subsequently convicted on the testimony of the undercover officer.
Nearly two years later, petitioner's family contacted DeSantis and she agreed to be interviewed by petitioner's counsel. Based on her statements, petitioner moved in the Warren County Court for a writ of error coram nobis. N.Y.Crim.Proc.Law § 440.10(1).
On August 16 and 17, 1983, the county court judge who had presided at Scarincio's trial held a hearing to evaluate the new evidence. At the hearing, DeSantis testified that Macero alone had been involved with the sale of the cocaine to the undercover officer, that Macero did not hand any money to Scarincio, and that Scarincio first spoke only after the sale, when he ordered DeSantis and the undercover officer out of his house. (H.Tr. 17-21). DeSantis further testified that the incriminating version she had given in her second conversation with petitioner's counsel had been prompted by cues from Investigator Teddy Rehm of the New York State Police Department. (H.Tr. 33-34, 48-49.)
Just prior to the hearing, the prosecution disclosed certain undisputed facts regarding the second conversation between DeSantis and Scarincio's counsel. After DeSantis was told by District Attorney to call Scarincio's attorney, Investigator Rehm arranged to have DeSantis make the call from his parents' house. Rehm then taped the phone conversation with DeSantis' written consent but without the knowledge of Scarincio's counsel. Rehm informed the District Attorney during Scarincio's trial that the conversation had been taped. Scarincio's counsel, however, was not told of the tape recording until one day before the coram nobis hearing. (H.Tr. 150.)
On the basis of this information, petitioner argued that a new trial was required because of the new exculpatory testimony of DeSantis, N.Y.Crim.Proc.Law § 440.10(1)(g), and because of the prosecutorial misconduct involved both in the alleged coaching of DeSantis as to her conversation with petitioner's counsel and in the failure to disclose to counsel the fact of the taping. Id. §§ 440.10(1)(b), 440.10(1)(h).
The county court denied petitioner's motion to vacate the conviction, explaining its ruling as follows:
After carefully considering all the facts and circumstances attendant to the belated appearance of this witness at a post-conviction hearing, and upon this court's personal evaluation of the witness's demeanor during the hearing, as well as the quality and substance of her testimony, this court remains wholly unconvinced that the subject testimony is of such a character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant....
In addition to the matter of newly discovered evidence, the defendant contends that there is sufficient misconduct chargeable to the prosecution, such that the defendant was denied the due process of law.... While it is alleged and admitted that Investigator Rehm did in fact tape a certain telephone conversation between Ms. DeSantis and defense counsel, there is no convincing proof presented to support the claimed impropriety, or substantial interference with a possible defense witness.... While this court does acknowledge the fact that Ms. DeSantis claims that Investigator Rehm was coaching her in her responses, once again the court is constrained to find against the defendant on this issue of proof due to its evaluation of the credibility of Ms. DeSantis as a witness.
Order of February 27, 1984, at 4-5 (Warren County Ct.), Petitioner's Appendix, Exhibit 2-E.
The Appellate Division affirmed the denial of petitioner's motion on March 7, 1985, and on April 1, 1985, leave to appeal to the New York State Court of Appeals was denied. Having exhausted his state remedies as required by 28 U.S.C. § 2254(b), Scarincio filed the instant petition on June 6, 1985, asserting the same grounds previously raised in his state motions.
In his Report and Recommendation, Magistrate Francis found it unnecessary to reach the constitutional issues raised by petitioner. The Magistrate explained that, *436 given the fair support in the record for the coram nobis court's finding that DeSantis was not a credible witness, her failure to testify at trial must be considered nonprejudicial. Petitioner objects to this conclusion, arguing that nondisclosure of exculpatory evidence directly contradicting the sole substantive witness at trial is inherently prejudicial.
Discussion
Petitioner asserts that he must be granted a new trial first, because of newly discovered evidence and second, because of prosecutorial misconduct which caused the absence of exculpatory evidence from his trial.
The first contention is insufficient as a matter of law. "[N]ewly discovered evidence only warrants habeas relief where it bears on `the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state petitioner is not a ground for relief on federal habeas corpus.'" Mapp v. Clement, 451 F. Supp. 505, 511 (S.D.N.Y.) (quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S. Ct. 745, 759, 9 L. Ed. 2d 770 (1963)), aff'd without op. 591 F.2d 1330 (2d Cir.1978), cert. denied, 440 U.S. 948, 99 S. Ct. 1428, 59 L. Ed. 2d 637 (1979).[2] Thus, petitioner here must show that the exculpatory evidence was suppressed through prosecutorial misconduct depriving him of his right to a fair trial. Welcome v. Vincent, 418 F. Supp. 1088, 1093 (S.D.N.Y.1976) (Weinfeld, J.), rev'd on other grounds, 549 F.2d 853 (2d Cir.), cert. denied, 432 U.S. 911, 97 S. Ct. 2960, 53 L. Ed. 2d 1084 (1977).
Whether Investigator Rehm coached Ms. DeSantis into providing an inculpatory account of petitioner's role to his counsel is a factual one. There being no challenge to the procedures employed by the state courts, their factual determination is accepted as correct unless it is not fairly supported by the record. 28 U.S.C. § 2254(d)(8).[3]
The coram nobis court found against petitioner on the issue of coaching due to its "personal evaluation of [Ms. DeSantis'] demeanor during the hearing, as well as the quality and substance of her testimony" and the circumstances surrounding that testimony. Habeas review, of course, confers "no license to redetermine the credibility of witnesses whose demeanor has been observed by the state court," but not by the federal court. Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843, 851, 74 L. Ed. 2d 646 (1983).
Moreover, the finding that DeSantis was not credible is amply supported by the *437 record. She gave at least three contradictory accounts of the events at petitioner's home. Her testimony at the coram nobis proceeding, nearly two years after the trial, was not credible.
Petitioner argues that DeSantis had a motive to lie while a government informant but not at the coram nobis proceeding. The state appellate court observed, however, that
DeSantis was flown from Indiana back to New York in the company of one of defendant's relatives and with funds provided by them. Though she previously complained of threats made against her and her boyfriend by defendant, DeSantis gave as a reason for her willingness to testify now that by truly describing her involvement in the sale she would thereby presumably avoid further harassment.
Order of March 5, 1985, at 1-2 (3d Dep't), Petitioner's Appendix, Exhibit 2-F. These circumstances support the discrediting of DeSantis' testimony at the coram nobis proceeding. Indeed, "such recantations are justly regarded with great suspicion." Welcome v. Vincent, 418 F. Supp. 1088, 1093 (S.D.N.Y.1976) (Weinfeld, J.) (citing United States ex rel. Rice v. Vincent, 491 F.2d 1326, 1332 (2d Cir.), cert. denied, 419 U.S. 880, 95 S. Ct. 144, 42 L. Ed. 2d 120 (1974)), rev'd on other grounds, 549 F.2d 853 (2d Cir.), cert. denied, 432 U.S. 911, 97 S. Ct. 2960, 53 L. Ed. 2d 1084 (1977).
I find that the state court's factual determination that Rehm did not coach DeSantis is fully supported by the record.
Petitioner also contends that the taping of DeSantis' conversation without his attorney's knowledge was improper even though DeSantis consented to the taping. There is no merit to this contention, nor was petitioner harmed by the taping of the conversation.
There is no showing that the state in any way deprived petitioner of a fair trial.[4]
Petitioner's application is denied.
SO ORDERED.
NOTES
[1] "T.Tr." refers to the transcript of the criminal trial held on October 21 and 22, 1981. Petitioner's Appendix, Volume One, Exhibit 1. "H.Tr." refers to the transcript of the coram nobis hearing held on August 16 and 17, 1983. Petitioner's Appendix, Volume Two, Exhibit 3. Petitioner takes no issue with the Magistrate's clear and concise statement of the facts.
[2] The Second Circuit applied a more lenient standard to an instance of witness recantation in United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1315 (2d Cir.), cert. denied, 423 U.S. 841, 96 S. Ct. 72, 46 L. Ed. 2d 60 (1975). In Sostre, however, both parties assented to the standard. The Court then affirmed the denial of the habeas petition because the district court's finding that the recanting witness lacked credibility was not clearly erroneous. Id. at 1317-18.
Sostre relied on cases which suggested that the lenient new trial standard is indeed limited to cases involving allegations of prosecutorial misconduct. U.S. ex rel. Rice v. Vincent, 491 F.2d 1326, 1331-32 & n. 4 (2d Cir.) (citing United States v. DeSapio, 435 F.2d 272, 286 n. 14 (2d Cir.1970), cert. denied, 402 U.S. 999, 91 S. Ct. 2170, 29 L. Ed. 2d 166 (1971)), cert. denied, 419 U.S. 880, 95 S. Ct. 144, 42 L. Ed. 2d 120 (1974); Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928). See also Drake v. Francis, 727 F.2d 990, 994-95 (11th Cir.1984) (confirming that Townsend allows habeas relief where a witness recants his trial testimony only upon a further showing of prosecutorial misconduct), modified in part on other grounds on rehearing en banc sub nom. Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985), cert. denied, ___ U.S. ___, 106 S. Ct. 3333, 92 L. Ed. 2d 739 (1986). Rice also indicates that the requirements of due process applicable to the states may be less stringent than the Larrison standard, which was advanced under the supervisory powers of the federal courts. 491 F.2d at 1332.
The New York standard for granting a new trial requires a showing that the newly discovered evidence, if it had been introduced at trial, would probable have resulted in a verdict more favorable to the defendants. N.Y.Crim. Proc.Law § 440.10(1)(g). Even if it were the province of a habeas court to review the application of this state law, the coram nobis court's determination that Ms. DeSantis' testimony was not credible and would not be likely to change the verdict is fully supported by the record.
[3] The presumption adheres to the factual findings of state appellate courts as well as to those of state trial courts. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S. Ct. 764, 769, 66 L. Ed. 2d 722 (1981).
[4] Because I find that no constitutional error occurred, I need not make an independent examination of the record to determine whether Ms. DeSantis' testimony would "in any reasonable likelihood have affected the judgment of the jury." Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972). See also United States ex rel. Washington v. Vincent, 525 F.2d 262, 267 (2d Cir.1975) (granting habeas petition despite state appellate court's finding that use of perjured testimony bearing on prosecution witness' testimony was harmless), cert. denied, 424 U.S. 934, 96 S. Ct. 1147, 47 L. Ed. 2d 341 (1976); Taylor v. Lombard, 606 F.2d 371, 375 (2d Cir.1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980); Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 1178, 3 L. Ed. 2d 1217 (1959). I note, however, that if DeSantis had testified at petitioner's trial, in all likelihood her testimony would have been the original inculpatory version rather than the subsequently concocted exculpation which was found to be false at the coram nobis proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265118/ | 657 F. Supp. 2d 43 (2009)
Richard JEFFERSON, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS et al., Defendants.
Civil Action No. 08-1473 (HHK).
United States District Court, District of Columbia.
September 25, 2009.
*44 Richard Selvis Jefferson, Beaver, WV, pro se.
Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
HENRY H. KENNEDY, JR., District Judge.
By this action, Richard Selvis Jefferson, a prisoner confined pursuant to a federal sentence, seeks to hold the Federal Bureau of Prisons ("BOP") and the United States Probation Office ("USPO") for the District of New Jersey liable for monetary damages alleging that these entities violated his rights under the Privacy Act, 5 U.S.C. § 552a, the Fifth Amendment, and the Eighth Amendment. Jefferson proceeds pro se.
Before the Court are defendants' motion to dismiss or in the alternative for summary judgment, Jefferson's cross-motion for summary judgment and his motion for appointment of counsel. As is explained below, Jefferson's claims must be dismissed. Therefore, the defendants' motion to dismiss will be granted, and all other pending motions will be denied as moot.
I. FACTUAL BACKGROUND
Jefferson was convicted by both federal and state authorities pursuant to plea agreements after an interstate crime spree involving stealing a car, robbing banks, a high-speed chase and a shoot out with police. Part of the bargain he struck in his state plea agreement was that his state sentence would run concurrently with his federal sentence, which was imposed first. It has not turned out that way. In fact, Jefferson served his state sentence in Rahway State Prison first, and was then paroled to the federal authorities, who take the position that Jefferson's federal sentence commenced only after he was paroled from the state sentence. The difference to Jefferson is approximately eleven years of imprisonment. Jefferson has filed several suits, all aimed at attempting to realize the benefit of his bargain or to be *45 compensated for being deprived of it.[1] This suit falls into the latter category and seeks damages for constitutional violations and, under the Privacy Act, for the BOP's adverse decision based on an allegedly inaccurate document relating to Jefferson.
The complaint alleges that a federal probation officer created a factually incorrect document in response to an inquiry from the BOP. See Compl. at 16-18, 21.[2] The BOP allegedly relied upon that document when it denied Jefferson's request to designate, nunc pro tunc, Rahway State Prison as the place for serving his federal sentence. Id. at 21-22. The BOP has the discretion to make such a designation, and if it did so, it would have the effect, retroactively, of making Jefferson's state sentence run concurrently with his federal sentence. See Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment ("Defs.' Mem.") at 1 n. 1 (citing 18 U.S.C. § 3621(b) and United States v. Evans, 159 F.3d 908, 911-12 (4th Cir.1998)). In addition to his Privacy Act claims, Jefferson alleges that the BOP's refusal to make the nunc pro tunc designation in his case constitutes a violation of his due process rights under the Fifth Amendment and has the effect of imposing cruel and unusual punishment in violation of the Eighth Amendment.
The defendants argue that as federal defendants they are immune from suits for damages for constitutional violations, and that therefore this court lacks subject matter jurisdiction over Jefferson's constitutional claims. In addition, they contend that the rule in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), bars this action for damages. They also argue that Jefferson's complaint fails to state a claim under the Privacy Act upon which relief may be granted, because the USPO is not subject to the Privacy Act, and because the BOP is exempt from suit under the Privacy Act for any damages arising from the records at issue. The Court does not consider other arguments made by the defendants because it is not necessary to do so.
II. DISCUSSION
The plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). On a motion to dismiss for lack of subject matter jurisdiction, a court accepts as true all factual allegations in the complaint, but must also scrutinize them closely to satisfy itself that it has the power to hear the claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003).
On a motion to dismiss for failure to state a claim upon which relief may be granted, a pro se complaint must be liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). In determining whether a complaint fails to *46 state a claim upon which relief may be granted, a court "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007), and "grant plaintiffs the benefit of all inferences that can be derived from the facts alleged," Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994). There are limits and exceptions, however. A court need not accept either a plaintiff's legal conclusions, or inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint. Id. "[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Fed. R.Civ.P. 8). It requires a "showing" and not just a blanket assertion of a right to relief. Id. at 555 n. 3, 127 S. Ct. 1955.
Sovereign immunity bars the constitutional claims against the BOP. The United States enjoys sovereign immunity from suit except where it has expressly waived immunity and consented to suit. Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996); Lehman v. Nakshian, 453 U.S. 156, 160, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981). The United States has not waived its immunity from a suit for damages for constitutional violations. F.D.I.C. v. Meyer, 510 U.S. 471, 486, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994). Because a suit for damages against the BOP is essentially a suit against the United States, it is barred by the doctrine of sovereign immunity. Therefore, this court has no subject matter jurisdiction over a suit for damages against the BOP arising from alleged constitutional violations. Accordingly, the damages claims against the BOP for constitutional violations will be dismissed for lack of subject matter jurisdiction.[3]
The Supreme Court's rule in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, bars the constitutional claims against the USPO. In Heck, the Court stated that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments," id. at 486, 114 S. Ct. 2364, and held that
in order to recover damages for allegedly unconstitutional . . . imprisonment,. . . a plaintiff must [first] prove that the conviction or sentence has been reversed in direct appeal, expunged by executive order, declared invalid by a . . . tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.
Id. at 486-87, 114 S. Ct. 2364; see also White v. U.S. Probation Office, 148 F.3d 1124 (D.C.Cir.1998) (per curiam) (holding that Heck v. Humphrey barred plaintiff's damages claim for the content of his presentence report). In short, because no court has found that Jefferson's current imprisonment is unlawful, he is prohibited *47 from seeking damages on the premise that it is unlawful.[4] Therefore, the damages claims against the USPO for constitutional violations will be dismissed, but without prejudice to renew in the event that Jefferson obtains an order from a proper authority that satisfies the rule in Heck.
Jefferson's Privacy Act claims against the USPO cannot survive because the USPO is not an agency of the federal government subject to the terms of the Act. The USPO is a component of the Administrative Office of the United States Courts, part of the judicial branch of government. For purposes of the Privacy Act, the term "agency" is defined as "any Executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the [federal] Government . . . or any independent regulatory agency." 5 U.S.C. § 552(f)(1); see 5 U.S.C. §§ 551(1), 552a(a)(1). Courts of the United States are expressly excluded from the definition of "agency" under the Privacy Act. 5 U.S.C. § 551(1)(B); see Washington Legal Foundation v. United States Sentencing Commission, 17 F.3d 1446, 1449 (D.C.Cir. 1994) ("courts of the United States" is interpreted such that this exemption applies to the entire judicial branch of government); see Cobell v. Norton, 157 F. Supp. 2d 82, 86 n. 6 (D.D.C.2001); see also Callwood v. Dep't of Probation, 982 F. Supp. 341, 342 (D.Vi.1997) (determining that the USPO is not subject to the Privacy Act). Plaintiff thus fails to state a claim against the USPO upon which relief may be granted.
Jefferson's Privacy Act claims against the BOP must also be dismissed. While the BOP is an executive branch agency and governed by the Privacy Act, it has exercised its lawful option to exempt certain of its records from the provisions of the Act and to exempt itself from suit arising from errors in those records. See 28 C.F.R. 16.97(a)(4). The records at issue here are maintained by the BOP in its Inmate Central Records System and in its Judgment and Commitment File, which is part of the Custodial and Security Record Systems. Defs.' Mem. at 11. Both of these records systems are exempted by regulation from the provisions of the Privacy Act. 28 C.F.R. 16.97(a)(4). This exemption serves in effect to bar suits for damages arising from errors contained in these records. See id. (expressly exempting these record systems from the provisions of § 522a(g) (the civil damages provision)). Accordingly, the Privacy Act claim against the BOP will also be dismissed.
III. CONCLUSION
For the reasons stated, the defendants' motion to dismiss will be granted, all other pending motions will be denied, and this case will be dismissed. A final, appealable order accompanies this memorandum opinion.
NOTES
[1] Jefferson has a habeas case currently pending before the Hon. Thomas E. Johnston, United States District Court for the Southern District of West Virginia. See Jefferson v. Berkebile, Civil Action No. 07-941 (S.D.W.Va.), into which another of Jefferson's complaints has been subsumed. Judge Johnston has appointed counsel to represent Jefferson in those proceedings. The details of the bargain struck, and the cause of and appropriate remedy for the unrealized benefit are properly under consideration by that court and are not at issue here.
[2] Although the plaintiff included a copy of the letter at issue with his complaint, it is most easily located at Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment, at Exhibit 1, Attachment B.
[3] The defendants assume, without discussion, that the USPO is also an agency of the Federal Government entitled to sovereign immunity, but the Court is not convinced. Sovereign immunity extends to executive branch functions, while legislative immunity and judicial immunity extend to the actors in the coordinate branches of government. Given that the USPO is a unit of the Administrative Office of the United States Courts and a part of the judicial branch of government, it is not clear that sovereign immunity extends to the USPO. The factual record is not sufficiently developed to determine, using the required functional analysis, whether the probation officer who wrote the challenged document clarifying the court's intention at sentencing was acting in a quasi-judicial capacity and is protected by judicial immunity, and the parties have not addressed the issue. The Court makes no finding or determination on this issue.
[4] This is, in fact, the question before the court in Jefferson's pending habeas case in the United States District Court for the Southern District of West Virginia. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743882/ | 436 So. 2d 434 (1983)
Donnie FUSSELL, Appellant,
v.
The STATE of Florida, Appellee.
No. 82-1898.
District Court of Appeal of Florida, Third District.
August 30, 1983.
*435 Bennett H. Brummer, Public Defender, and Kathleen G. Gallagher, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Penny Hershoff Brill, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
PER CURIAM.
During voir dire examination, the prosecutor asked a prospective juror, "Does it bother you that a 14 year old girl is going to be the victim in this case, it is going to be her word against his word?" While the question generally represented the projected evidence in the case, (which consisted of the victim's testimony pitted against that of the defendant's admissible confession) the question nonetheless constituted a comment upon the defendant's failure to testify in his own behalf. Smith v. State, 358 So. 2d 1137 (Fla. 3d DCA), dismissed, 364 So. 2d 892 (Fla. 1978).
For this reason, the defendant's conviction of attempted sexual battery is reversed and remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364857/ | 222 S.C. 226 (1952)
72 S.E.2d 453
HERRING
v.
LAWRENCE WAREHOUSE CO.
16660
Supreme Court of South Carolina.
August 19, 1952.
September 26, 1952.
*227 Messrs. Irvine F. Belser, Irvine F. Belser, Jr., and Walter J. Bristow, Jr., of Columbia, for Appellant.
*230 Messrs. Wise, Whaley and McCutchen, of Columbia, for Respondent.
*232 Messrs. Irvine F. Belser, Irvine F. Belser, Jr., and Walter J. Bristow, Jr., all of Columbia, for Appellant, in reply.
August 19, 1952.
On Petition for Rehearing
September 26, 1952.
FISHBURNE, Justice.
The appellant was employed as warehouse manager by the respondent in the City of Columbia, and as such it was his special duty to have the custody and control of certain farm machinery and other property. He was discharged on or about September 30, 1947. Following his discharge, he served an amended complaint containing two causes of action: (1) That the respondent had libeled and slandered him by written communications and by oral charges as being *233 "short" with reference to certain farm machinery which had been entrusted to his care; and (2) That the respondent through its agent, Mr. Payne, had committed an assault and battery upon him at the time of his dismissal by grasping his arm in an angry manner when demanding the keys to the warehouse in which the machinery had been kept.
To the first cause of action the respondent pleaded (1) a general denial, and (2) qualified privilege. A third defense was set up. As to this defense, respondent construes it as being one of justification, and the defendant as merely mitigation. The answer also alleged two defenses to the second cause of action (assault and battery): (1) a general denial, and (2) the plea that the cause of action came exclusively within the terms of the South Carolina Workmen's Compensation Act.
Numerous exceptions have been filed by appellant assigning error to the trial court in the instructions given to the jury. In his initial charge to the jury, the trial judge charged:
"The plaintiff must satisfy the jury by the greater weight of the evidence that such statement was false. If the statement was true, why the case falls down. He must prove that the statement was false."
Several times during the remainder of the charge, the trial judge instructed the jury to the same effect, that is, to establish a case of libel and slander, the plaintiff must prove that the statement was false.
The record shows that Mr. Payne, who was employed by respondent as auditor, had made an inventory of the machinery in respondent's warehouse, and immediately after so doing summoned appellant and accused him of being short three mowers and one harrow. This accusation was repeated more than once in the presence of various persons, and was followed immediately, as stated, by appellant's discharge and the demand for the warehouse keys. Payne not only directly charged appellant with this shortage in the machinery which *234 had been entrusted to his care as warehouse manager, but at the same time, he told other persons that he had made an audit and that the shortage as claimed existed. He repeated, "Mr. Herring is short."
It is well settled in South Carolina that statements which are actionable per se are presumed false. White v. Southern Oil Stores, 198 S.C. 173, 17 S.E. (2d) 150; Lily v. Belk's Department Store, 178 S.C. 278, 182 S.E. 889.
Appellant contends that the defamatory statements uttered by respondent's agent, Mr. Payne, were slanderous per se, and for this reason no burden was cast upon appellant to prove their falsity. Respondent on the other hand, argues that the words are susceptible of two meanings: one, actionable per se; the other innocent.
We stated in Smith v. Smith, 194 S.C. 247, 9 S.E. (2d) 584, 589:
"If words are susceptible of two meanings, one imputing a crime, and the other innocence, the latter is not to be adopted, and the other rejected, as a matter of course. In such a case, it must be left to the jury to decide in what sense defendant used them. Their conclusion must be formed from the whole of the circumstances attending the publication, including the sense in which the witnesses understood the words."
The Court went on to say in the Smith case:
"The rule for which appellant contends is applicable where the meaning of the words used are doubtful and ambiguous and are susceptible of two meanings. In the case at bar, the words are plain and unambiguous, and the principle announced in Milam v. Railway Express Agency, 185 S.C. 194, 193 S.E. 324, 113 A.L.R. 667, applies." Williamson v. Askin & Marine Co., 138 S.C. 47, 136 S.E. 21.
In our opinion, the defamatory remarks made by Mr. Payne concerning appellant are unambiguous, and actionable per se.
*235 When considered in connection with the fact that appellant was immediately discharged and the keys of the warehouse demanded, it is clear that appellant was charged with the commission of a crime. Since such statements were slanderous per se and therefore presumed false, there was no burden upon the appellant in the first instance to prove their falsity. Appellant had the right to rely on the legal presumption of the falsity of the defamatory matter until such presumption was overcome by testimony. White v. Southern Oil Stores, 198 S.C. 173, 17 S.E. (2d) 150; Pierce v. Inter-Ocean Casualty Co., 148 S.C. 8, 145 S.E. 541.
It is conceded by respondent that a plaintiff had the right to rely on the falsity of the alleged slanderous words, but such right exists only until evidence is presented to rebut such presumption, and such presumption is rebutted by evidence of qualified privilege. However, even where the defenses of qualified privilege and justification are pleaded, the burden of establishing such defenses rests upon the respondent.
As shown, the trial judge in charging the jury, placed upon appellant, this initial burden of proving that the alleged slanderous statements were false. In our opinion, this constituted prejudicial error.
We will not unduly lengthen this opinion by passing upon the exceptions assigning error to other portions of the charge given to the jury. It is unlikely that these questions will arise in another trial.
Respondent seeks to support the judgment in its favor upon several additional sustaining grounds. It is first argued that the trial court should have granted the motions made by the respondent for a nonsuit and directed verdict as to the first cause of action, that is, libel and slander.
In the Transcript of Record, this statement is contained in the "Agreed Statement": "At this trial, both plaintiff and defendant offered considerable evidence *236 in support of the allegations contained in their pleadings."
We have given the most careful consideration to the testimony in this case which is voluminous , and we find no error in the action of the court in overruling the motions above referred to. There was ample evidence to go to the jury on all of the issues raised, including the defenses of qualified privilege and justification, which evidence, of course, must be viewed in the light most favorable to the appellant.
It is next argued by respondent that the Workmen's Compensation Act is the exclusive remedy of appellant under the allegations and proof of assault and battery as set forth by the second cause of action in the complaint. This issue is raised under respondent's additional sustaining grounds. When the motion for directed verdict was made upon the ground stated, it was denied by the trial judge, who held that appellant had the right to bring his common law action.
The Workmen's Compensation Act of South Carolina, original Section 11, now Code Section 7035-11, provides in part:
"The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this article respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employees * * * as against employer at common law, or otherwise, on account of such injury, loss of service, or death * * *."
Respondent was presumptively excluded from the provisions of the Act; it had only two employees in South Carolina, and thus came within the terms of Section 7035-16 (b) of the Act, which states that this article shall not apply "* * * to any person that has regularly employed in service less than fifteen employees in the same business within this State."
*237 Respondent, as shown by the record, elected to come under the provisions of the Act, but there is no testimony showing that it ever gave the plaintiff notice that it was covered by the Act. Nor were any signs posted by respondent to the effect that the business was operated under the provisions of the Act as required by Rule 7 of the Industrial Commission. 1942 Code, Sec. 7035-57, Rule 7.
A vital question arises: should the appellant be bound to proceed under the Workmen's Compensation Act even though the Act did not ordinarily apply to his employer, and appellant had no notice that his employer had elected to come under the Act?
Respondent contends that whether appellant knew that it was operating under the Workmen's Compensation Act, or whether respondent posted notices of such operation under the Act, is immaterial in determining whether the Workmen's Compensation Act is the exclusive remedy of appellant. To support this argument, the case of Samuel v. Appleton Co., 214 S.C. 157, 51 S.E. (2d) 508, is cited and relied upon. We do not think this case sustains the position taken by respondent.
Differing from the case at bar, the plaintiff in the Samuel case was suing under the Workmen's Compensation Act, and in the Samuel case the employer was not presumptively excluded from the provisions of the Act, but was included. In that suit, it was held that the employee was bound by the provisions of the Workmen's Compensation Act, even though the signs required by the Act had not been posted around the place of business of the employer. Regardless of this, it was held that the plaintiff in the Samuel case was charged with constructive knowledge of the requirements necessary to obtain compensation.
We think a wide distinction exists between the Samuel case and the case at bar. When the respondent here, who was presumptively excluded from the provisions of the Act, elected to come under its terms, it was *238 incumbent upon respondent to give appellant notice that it had so elected, so that the plaintiff, if he so desired, could file his notice of election not to come under the terms of the Act. The plaintiff in the Samuel case was held to have constructive notice of the substantive law, because there the employer was not presumptively excluded. But in the instant case, it was the duty of the respondent, when it elected to come under the Act, to notify appellant and to post notices as required by the Act. Until this was done and it was never done , it cannot reasonably be held that the Workmen's Compensation Act, on the cause of action for assault and battery, constituted appellant's exclusive remedy. For the purpose of this discussion, we are assuming without deciding, that the assault and battery alleged would, under the testimony, come within the provisions of the Act.
Three other cases cited by respondent, Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E. (2d) 712; Yeomans v. Anheuser-Busch, Inc., 198 S.C. 65, 15 S.E. (2d) 833, 136 A.L.R. 894; and Kennerly v. Ocmulgee Lumber Co., 206 S.C. 481, 34 S.E. (2d) 792, have no controlling application to the case at bar, because the facts easily differentiate them.
The trial judge in his order settling the case on appeal, required appellant to print the entire trial proceedings, testimony and evidence. It is submitted by appellant that this constituted error, in that none of the exceptions raise any questions as to the evidence.
It is argued that none of the exceptions relate to any matter other than the judge's charge to the jury, and raises only questions of law not in anywise dependent upon the evidence. And it is said that the fact that some of respondent's additional sustaining grounds raise questions which may be in part dependent upon the evidence should not place upon appellant the burden of printing such testimony. Appellant places reliance upon Code Section 29, which provides:
"* * * Only the necessary and pertinent testimony to which one or more exceptions relate shall be printed, and *239 in case more than the necessary testimony is printed, then the court shall tax the cost of all testimony unnecessarily printed against the offending party."
Rule 1 of this court puts the burden on the appellant to file the Transcript of Record. Section 7 of Rule 4 provides that the respondent may note any additional grounds upon which the judgment will be asked to be sustained. While the rules are silent as to which party shall have the burden of including in the Transcript of Record the necessary evidence and exhibits upon which the additional sustaining grounds are based, it seems to us that inasmuch as respondent is permitted to set forth additional sustaining grounds, and as appellant is required to prepare and file the Transcript of Record, which includes the additional sustaining grounds, a reasonable construction of the rules should be that appellant is required to include not only that portion of the record which he desires, but also such portions thereof as are made necessary by the additional sustaining grounds.
This court could not have considered in the preparation of this opinion, several issues raised under the additional sustaining grounds of respondent, without the benefit of the testimony taken on the trial. In our opinion, the lower court committed no error in directing that the entire record be included as the Transcript of Record.
In view of the error committed by the trial court as determined by us, in placing upon the appellant the burden of proving the alleged defamatory statements false, a new trial must be granted; and it is so ordered.
Judgment reversed.
BAKER, C.J., and STUKES, TAYLOR and OXNER, JJ., concur.
Order on Petition for Rehearing
PER CURIAM.
The petition for rehearing filed in this case by the respondent, points out:
*240 "That the opinion of this Court sets forth that an error was committed by the trial court with respect to its charge concerning only the cause of action for libel and slander, and on the basis of such erroneous charge, reversed the case and granted a new trial; that the opinion of this Court, however, does not set forth or contain an allegation of error on the part of the court below, or otherwise, with respect to the separate and distinct cause of action for assault and battery, and in the absence of error by the court below with respect to the assault and battery cause of action, the judgment of the court below with respect to this separate and distinct cause of action for assault and battery should have been affirmed."
The appellant by his exceptions raised the issue that the trial court committed error in its charge to the jury with reference to the law of assault and battery. The failure of this Court to pass upon the question was entirely inadvertent.
Upon due consideration, it is ordered that the following be added to the opinion heretofore filed.
The trial judge charged the jury as follows, upon request of the defendant (respondent here):
"I charge you that the intent to inflict injury is a necessary element of assault and battery, and that unless you find from the evidence that the defendant intended to inflict injury upon the plaintiff, the plaintiff has failed to prove that an assault and battery was committed, and in this connection your verdict must be for the defendant."
It is argued that the foregoing charge was erroneous, in that an intent to inflict injury is not a necessary element in a civil action of assault and battery.
The appellant testified that the respondent, through its agent, Mr. Payne, committed an assault and battery upon him at the time of his dismissal by grasping his arm in a rude and angry manner when demanding the keys to the warehouse in which the machinery was kept.
*241 There is a well recognized distinction between criminal assault and a civil action for an assault and battery. In civil actions, the intent, while pertinent and relevant, is not an essential element. The rule, supported by the weight of authority, is that the defendant's intention does not enter into the case, for, if reasonable fear of bodily harm has been caused by the conduct of the defendant, this is an assault. "So it has been held that, even if an assault be unintentional, yet if it is recklessly committed defendant may be liable for the resulting damages." 6 C.J.S., Assault and Battery, § 4, page 798. "It is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree, which constitutes the battery; and it is unnecessary that the contact be affected by a blow, as any forcible contact is sufficient * * *." 6 C.J.S., Assault and Battery, § 9.
The same principle is stated in 4 Am. Jur., Sec. 5, Page 128: "Where, however, the basis of an action is assault and battery, the intention with which the injury was done is immaterial so far as the maintenance of the action is concerned, provided the act causing the injury was wrongful, for if the act was wrongful, the intent must necessarily have been wrongful * * *."
In our opinion, the trial judge committed prejudicial error in charging the jury that the intent to inflict injury is a necessary element in a civil action of assault and battery.
Other grounds stated in the petition for rehearing are without merit, and the petition is hereby denied.
Judgment reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364866/ | 209 Ga. 330 (1952)
72 S.E.2d 298
CITIZENS BANK OF FORSYTH
v.
MIDDLEBROOKS, administrator, et al.
17922.
Supreme Court of Georgia.
Argued July 14, 1952.
Decided September 2, 1952.
*331 Williams & Freeman, for plaintiff in error.
Hall & Bloch, Joseph W. Popper and Jones, Sparks, Benton & Cork, contra.
HEAD, Justice.
"Whenever a person shall be possessed of property or funds, or owe a debt or duty, to which more than one person shall lay claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead." Code, § 37-1503. The sole question for determination in the present case is whether or not the bank would have been authorized to pay the check drawn by the administrator, and would have been fully protected under the law in doing so.
*332 The defendant alleges that it is a mere stakeholder, and desires to pay the fund to the rightful owner. "A stakeholder is not entitled to protection by a court of equity to the extent of being saved from all shadow of risk; and so where he is in possession of all the facts and there is no question of law which is reasonably debatable, his petition for interpleader should be denied." Lassiter v. Bank of Dawson, 191 Ga. 208, 221 (11 S. E. 2d, 910), and cases cited. Under our statutory law and the decisions of this court, the petition for interpleader by the defendant fails to show any "question of law which is reasonably debatable" when applied to the facts alleged.
In Tattnall Bank v. Harvey, 186 Ga. 752, 753 (198 S. E. 724), it is said in part: "While it is the rule that `if a bank has notice or knowledge that a breach of trust is being committed by the improper withdrawal of funds, it incurs liability, becomes responsible for the wrong done, and may be made to replace the funds which it has been instrumental in diverting' (American National Bank v. Fidelity Co., 129 Ga. 126, 129, 58 S. E. 867, 12 Ann. Cas. 666), it is the general rule that every person is presumed to have the intention of discharging whatever duty the law may cast upon him (Truluck v. Peeples, 1 Ga. 3, 5), and that a trustee will faithfully administer the trust. American Trust & Banking Co. v. Boone, 102 Ga. 202, 204 (79 S. E. 182, 40 L. R. A. 250, 66 Am. St. R. 167); Munnerlyn v. Augusta Bank, 88 Ga. 333 (4, 5), 337 (14 S. E. 554, 30 Am. St. R. 159); s.c. 94 Ga. 356, 358 (21 S. E. 575). This constitutes the underlying principle of the statute (Code, § 13-2042), which is as follows: `Whenever any agent, . . guardian, trustee, either express or implied, or other fiduciary whether bona fide or mala fide shall deposit any money in any bank to his credit as an individual, or as such agent, trustee, or other fiduciary, whether the name of the person or corporation for whom he is acting or purporting to act be given or not, such bank shall be authorized to pay the amount of such deposit or any part thereof, upon the check of such agent, . . trustee, or other fiduciary, signed with the name in which such deposit was entered, without being accountable in any way to the principal, cestui que trust, or other person or corporation who may be entitled to or interested in the amount so deposited.' In accordance *333 with the general principle thus given expression, and in view of the multitudinous transactions in the ordinary daily course of banking, such institutions are not to be hampered and the conduct of their business, in which the public has a vital interest, clogged and slackened by unreasonable restrictions and overburdens. Therefore it is the rule, supported by the overwhelming weight of authority, that the mere fact that a fiduciary deposits in a bank to his individual account a check drawn by him in his fiduciary capacity, or transfers funds by a check from an account in the bank in his name as a fiduciary to his personal account in the bank, will not of itself charge the bank with knowledge or notice that he is misappropriating or will misappropriate such funds." See also Munnerlyn v. Augusta Savings Bank, 88 Ga. 333 (14 S. E. 554, 30 Am. St. R. 159); American National Bank v. Fidelity & Deposit Co., 129 Ga. 126, 129 (58 S. E. 867); Bank of Sharon v. Powell, 30 Ga. App. 235, 236 (117 S. E. 264); Farmers & Merchants Bank v. Willie, 33 Ga. App. 520 (126 S. E. 899).
The trial judge in a most thorough and complete opinion arrived at the conclusion that the petition for interpleader could not be sustained. No error is shown in this judgment of the trial court.
Judgment affirmed. All the Justices concur, except Atkinson, P.J., and Almand, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364867/ | 194 Va. 103 (1952)
H. P. BURNETT
v.
JAMES H. BROWN AND HON. JOHN S. DRAPER, JUDGE OF THE CIRCUIT COURT OF GRAYSON COUNTY, VIRGINIA.
Supreme Court of Virginia.
September 10, 1952.
Present, All the Justices.
Petitioner was attorney for the Commonwealth for Grayson county but was not a candidate to succeed himself for the term beginning on January 1, 1952. The duly elected attorney for the Commonwealth for that term died prior to the beginning of his term of office and before he had qualified for office. On January 1, 1952 the circuit court declared a vacancy in the office of attorney for the Commonwealth and appointed the respondent to that office for the four year term commencing on that date. The respondent duly qualified for office and performed his duties. Petitioner made application in the Supreme Court of Appeals for a writ of mandamus requiring respondent and the circuit court to restore and admit him to the office of attorney for the Commonwealth. Petitioner contended that since the elected attorney for the Commonwealth failed to qualify there was no vacancy for the circuit court to fill and that he, as incumbent of that office, was automatically entitled to hold over for the ensuing four year term. That contention was without merit for section 15-475 of the Code of 1950 provided that every county officer elected by the people should, unless otherwise provided by law, qualify for office on or before the day on which his term began, and section 15-477 of the Code of 1950 provided that if any such officer failed to qualify his office should be deemed vacant.
Upon a petition for a writ of mandamus.
J. L. Dillow, H. E. Widener and George M. Warren, for the petitioner.
Campbell & Campbell, for the respondents.
SMITH
SMITH, J., delivered the opinion of the court.
This is an original proceeding in this court whereby the petitioner, H. P. Burnett, makes application for a writ of mandamus to be directed to the respondents commanding and compelling them to restore and admit the said petitioner to the office of attorney for the Commonwealth of Grayson county. *104
The respondents have conceded at the bar of this court that mandamus is a proper remedy to try title to the office herein involved.
The following question is presented for decision: The duly elected attorney for the Commonwealth of Grayson county having died prior to January 1, 1952, the beginning of his term of office, and before he had qualified, did the Circuit Court of Grayson county have the authority to declare the office vacant on January 1, 1952, and make an appointment for the full term ending December 31, 1955?
We are of the opinion that the question should be answered in the affirmative.
The petitioner was elected attorney for the Commonwealth of Grayson county on November 4, 1947. He thereafter qualified and entered upon the discharge of the official duties of his office, but he was not a candidate in the election of November 6, 1951. The two candidates for the office at that time were E. Sam Burnett, Jr., nephew of the petitioner, and James H. Brown, one of the respondents in this proceeding. E. Sam Burnett, Jr., received a majority of the votes in this election and was duly declared elected, but he died on November 21, 1951, as the result of a tragic hunting accident, before he had qualified for office.
On January 1, 1952, the circuit court, by an order properly entered, declared a vacancy in the office of the attorney for the Commonwealth of Grayson county and appointed the respondent, James H. Brown, to that office for the four-year term commencing January 1, 1952. Later on that same day, Brown qualified by taking the prescribed oath of office and he has since occupied and performed the duties of that office.
The petitioner contends that the circuit court's order of January 1, 1952, is void, because E. Sam Burnett, Jr., had no term of office, since he died before he had qualified. It follows, says the petitioner, that there was no vacancy for the circuit court to fill, consequently the petitioner prays that he be restored to the office of attorney for the Commonwealth of Grayson county on the ground that as the incumbent of that office for the term ending December 31, 1951, he was automatically entitled to hold over for the ensuing four-year term commencing January 1, 1952. *105
Attorneys for the Commonwealth are constitutional officers. Section 110, Art. VII, of the Constitution states that "There shall be elected by the qualified voters of each county * * *, an attorney for the Commonwealth, * * *." The term of office is fixed by section 112, Art. VII, of the Constitution which provides that "* * * such officers shall enter upon the duties of their offices on the first day of January next succeeding their election, and shall hold their respective offices for the term of four years, * * *." It is further provided, by section 33, Art. II, of the Constitution that "* * * All officers elected or appointed, shall continue to discharge the duties of their offices after their terms of service have expired until their successors have qualified."
The possibility of a vacancy was foreseen and provided for by section 56, Art. IV, of the Constitution, which confides to the General Assembly the manner "* * * of filling vacancies in office, in cases not specially provided for by this Constitution, * * * and the General Assembly may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in this Constitution."
The General Assembly has provided in Code section 15-475 that "Every county and district officer elected by the people, * * * unless otherwise provided by law, * * * shall, on or before the day on which his term of office begins, qualify by taking the oath prescribed by | 49-1 and give the bond, if any, required by law, * * *." Code section 15-477 states that "If any such officer"
fail to qualify and give bond, as required by the preceding section, on or before the day on which his term begins, his office shall be deemed vacant; * * *.""
Pursuant to the constitutional authority above noted, the General Assembly has also provided in Code section 24-145 that "When a vacancy occurs in any county * * * office, and no other provision is made for filling the same, it shall be filled by the circuit court of the county * * * in which it occurs, or the judge thereof in vacation; * * *."
Code section 24-145, above referred to, was first enacted by the Acts of 1874-75, chap. 153, p. 133. In 1938, a new provision, section 24-147.1, was added to the Code. While we are not herein directly concerned with this new section, it does give some indication of the legislative interpretation of Code section 24-145 *106 with which we are vitally concerned. Code section 24-147.1 provides that "When any person elected at a regular election as a member of the board of supervisors or other governing body of any county shall die, resign or be legally incapacitated to hold such office, prior to qualifying as such officer, then the judge of the circuit court of the county shall, in lieu of appointing a successor for the term for which such person did not qualify, issue a writ of election as provided in | 24-139 to fill such vacancy. * * *"
It is to be noted that Code section 24-147.1 takes away from the court or the judge the authority to appoint a member of the board of supervisors or other governing body of the county when the vacancy has been occasioned by the death, resignation or legal incapacity to hold office prior to qualifying as such. The language of Code section 24-147.1 is a strong indication that the General Assembly recognized that except for its enactment, the court or judge thereof in vacation would be charged with the responsibility for the appointment of a successor in a case like that now before us.
This analysis of the constitutional and statutory law gives great weight to the contention of the respondents that the failure of the attorney for the Commonwealth-elect to qualify for his office by reason of his death, either on or before the date on which his term of office would have begun, created a vacancy in that office and authorized the circuit court to appoint a successor.
To buttress our analysis of the constitutional and statutory law governing this case we now turn to an examination of the decided cases on this subject. In Johnson Mann, 77 Va. 265, decided in 1883, a question arose in the city of Petersburg over the right of a treasurer to hold office. Johnson was the retiring treasurer, a situation comparable to that of the petitioner in the case at bar. Couch was elected to succeed Johnson, but Couch failed to qualify before the beginning of the first day of his term of office as he was required to do. Johnson there contended, just as the petitioner does here, that there was no vacancy in the office of treasurer and that he, Johnson, was entitled to hold the office of treasurer for the succeeding term of three years. However, the court held that the elected officer's failure to qualify before the commencement of his term created *107 a vacancy in the office which this hustings court was authorized to fill and that the incumbent was not entitled to hold over until the next election but only until his successor had been appointed and had qualified. This conclusion was based on a construction of the Constitution of 1870. We quote from the opinion in the Johnson Case, 77 Va., at page 271, as follows:
"The provision of the constitution mainly, if not solely, relied on by counsel for the petitioner, is the twenty-fifth section of the sixth article [which is substantially the same as section 33 of the Constitution of 1902 hereinbefore referred to]. It simply provides for the holding over by the incumbent after the expiration of his term, until his successor shall qualify. The plain unequivocal import of this section of the constitution is, that when the regular term expires, the office becomes, in the eye of the constitution, vacant, but with authority to the incumbent, already qualified, to continue by virtue of such previous qualification, made effective for the purpose by the constitution, to discharge the functions of the office until he is succeeded in the way preferred by the people, as pointed out in the constitution made by them, and in the laws made in pursuance of that instrument. The petitioner filled out his regular term; and under the constitutional provision being considered is, to prevent the evils which would flow from either an accidental or designed failure to qualify on the part of the person elected to succeed him, enabled to go on in the discharge of the duties appertaining to the office, not his office, so far into the succeeding regular term, as the time when his successor, legally selected, shall be fully equipped as an officer to take charge of the office and perform its functions."
At the risk of being repetitious, it must here be noted again that the Virginia Constitution, | 112, in fixing the term of office does not say either expressly or impliedly that an attorney for the Commonwealth shall hold his office for a period of four years "and until his successor qualifies." To the contrary, it proclaims that he shall enter upon the duties of his office on the first day of January next succeeding his election and that he shall hold his office for a term of four years. In order to prevent a hiatus it is provided in | 33, in the public interest, that all officers "shall continue to discharge the duties of their offices after *108 their terms of service have expired until their successors have qualified."
The law in Virginia, as set forth in the Johnson Case, would clearly support the right of the circuit court to make the appointment in the situation now before us and would control were it not for certain language in the later decision of Chadduck Burke, 103 Va. 694, 49 S.E. 976. There it is said, 103 Va., at page 699, that:
"The case of Johnson Mann, 77 Va. 265, is cited for the proposition that a vacancy exists which can be supplied by the appointing power for filling vacancies, when the incumbent of an office is holding over, by authority of law, until his successor qualified. In that case Judge Richardson does employ language justifying this contention; but its use does not appear to have been necessary to the decision of the question there involved, and the dictum is not sound, is contrary to the current of authority, and cannot be followed as a precedent."
The facts of the Johnson Case justified the use of the language employed and what was said there was not dictum. There was before the court a question demanding a construction of the Constitution upon which the decision depended. We shall hereafter deal with the question of whether it was sound.
The Chadduck Case arose under our 1902 Constitution and dealt with sections 11 and 17 of the Schedule to the Constitution, which were adopted to provide for the change-over from the old to the new Constitution.
Chadduck had been superintendent of the poor for several terms immediately preceding the litigation. Under the old Constitution his term of office began on the 1st day of July and ended on the 30th day of June, four years thereafter, and his last term under the old Constitution ended on June 30, 1903. Under the new Constitution the term of his office was changed and made to begin on the 1st day of January instead of the 1st day of July.
Section 11 of the Schedule extended the term from June 30, 1903, to January 1, 1904. Section 17 of the Schedule provided that each officer whose term was extended by the Schedule should give bond for the faithful discharge of his duties for the extended term and "until his successor shall have been duly chosen, and shall have qualified according to law." Chadduck *109 executed the required bond and his regular term was extended to January 1, 1904, and until his successor had been duly chosen and had qualified according to law.
The law in effect on January 1, 1904, authorized the county judge, upon the recommendation of the board of supervisors, to appoint a new superintendent of the poor at any time between the date of the act and January 1, 1904. On January 11, 1904, the judge disregarded the recommendation of the board of supervisors and undertook to appoint Chadduck to the office for a four-year term. This appointment was void, because the judge failed to comply with the provisions of the act which authorized the appointment upon the recommendation of the board.
On April 19, 1904, the circuit court (which had superseded the county court) upon the recommendation of the board of supervisors entered an order appointing Burke as superintendent of the poor. The statute in effect on that date directed the circuit court to appoint a superintendent of the poor in November, 1907, for the four-year term beginning January 1, 1908, and it further empowered the court to fill vacancies that might thereafter occur in the office.
This court held that there was no vacancy on April 19, 1904, and that the order naming Burke was void and Chadduck was continued in office by virtue of the provisions of section 17 of the Schedule. It is to be noted that the language of the Schedule with which the court was concerned in the Chadduck Case was different from that of section 33 of the Constitution which controls this case now before us.
The petitioner bases his claim to the office of attorney for the Commonwealth of Grayson county squarely on the rule of the Chadduck Case, which case it is contended is approved by certain language in Frantz Davis, 144 Va. 320, 131 S.E. 784; Owen Reynolds, 172 Va. 304, 1 S.E.(2d) 316; and Fleming Anderson, 187 Va. 788, 48 S.E.(2d) 269. Let us turn to those cases and examine the language used therein with reference to the Chadduck Case.
Frantz Davis, supra, was a contest between Frantz, the appointee to the treasurer's office, and Davis, the incumbent. Frantz had been elected to the office, but his election was held to be void. Later, Frantz was appointed by the city council pursuant to a charter provision. Davis contended that there *110 was no vacancy and that by virtue of section 33 of the Constitution and the decision in the Chadduck Case he was entitled to hold the office until it could be filled by a regular election.
The majority of the court held that the decision was governed by Code section 267 (section 24-438 of the 1950 Code) and that Chadduck Burke did not control. Judge Burks dissented on the ground that the case was ruled by the Chadduck Case. However, the majority opinion quoted from the Chadduck Case, 144 Va., at page 324, to the effect that an office "'* * * cannot become vacant at the end of a term where the incumbent is authorized to hold over, * * *'" and it was said that "This construction has been quite generally approved." The majority opinion also used this language, 144 Va., at page 325, "Upon this [the construction of the Chadduck Case ] the respondent, Davis, bases his claim to hold the office, notwithstanding the expiration of the term for which he was elected. If this were all, our task would be simple, and we should be bound to hold that Davis is entitled to the office. This case, however, required the construction of different statutes from those which were construed in Chadduck Burke, supra." Since the
Frantz Case was decided squarely on section 267 of the Code, the quoted portions were unnecessary to the decision of the case and are not binding on us.
Owen Reynolds, supra, involved the appointment of a school trustee under a statute which provided that "Any vacancy in the county school board shall be filled by appointment by the trustee electoral board." The trustee electoral board had been regularly appointed and had served for a four-year term which ended on August 1, 1930. On July 24, 1930, they were re-appointed for another four-year term. None of the board members qualified under this re-appointment, although they continued to discharge the duties of their office until January 10, 1938, at which time the judge of the circuit court, in vacation, appointed a new board for the unexpired term ending August 1, 1938, and these appointees duly qualified.
On December 2, 1937, the old board named Owen to fill a vacancy on the school board caused by the death of a member. Subsequently, Reynolds was elected by the new board to fill the office to which Owen had been elected by the old board. The statute law provided that "The present trustee electoral board *111 and county school boards now in office, shall continue to hold office until their sucessors have been elected and qualified."
It was held that the old board continued to hold office until their successors had been elected and had qualified and that the old board was authorized to elect a member of the school board and that Owen was regularly elected.
However, this language is used in the Owen Case, 172 Va., at page 308: "The period between the expiration of an incumbent's term and the qualification of his successor is a part of the term itself. Chadduck Burke, 103 Va. 694, 49 S.E. 976." This we understand to be true because of the express language of the statute fixing the terms of trustee electoral boards and it was also true in the Chadduck Case because of the language of section 17 of the Schedule to the Constitution.
Fleming Anderson, supra, (which involved two cases) were actions at law by a former treasurer and a former sheriff against the officers elected to succeed them to those offices, who had been removed from office for fraud in their election after they had served in office about two years. The basis of the actions was that the prior incumbents had been reinstated as de jure officers and were entitled under section 33 of the Constitution to discharge the duties of their offices and, therefore, were entitled to the salaries and emoluments of office during the time the defendants held the offices under color of title.
The purpose and object for which section 33 of the Constitution was enacted was discussed as follows, 187 Va., at page 800:
"As is said in 43 Am. Jur., Public Officers, section 164, p. 21, 'The purpose of provisions authorizing public officers to hold over is to prevent a hiatus in the government pending the time when a successor may be chosen and inducted into office.'"
"'The extension is for the public benefit, and not to confer on the incumbent the right to continue.' Wardwell Leggat, 291 Mass. 428, 197 N.E. 164, 165."
"The right to hold over is a contingent right designed to meet a public necessity. It becomes operative only when the necessity arises -- that is, when there is no one with the present better right to occupy the office."
The Chadduck and Frantz Cases were discussed in the Fleming Case without express approval or disapproval of the doctrine of the Chadduck Case. The Fleming Case is authority only *112 for the proposition that under the facts of that case the incumbents did not hold over beyond their term.
We will briefly examine some of the authorities cited by the petitioner upholding what is described as the majority view in order to determine the language of the constitutions or statutes under consideration.
In addition to the Chadduck Case the petitioner relies on Branham
Long, 78 Va. 352; Pittman Ingram, 184 Ga. 255, 190 S.E. 794; Kimberlin State, 130 Ind. 120, 29 N.E. 773, 14 L.R.A. 858, 30 Am.St.Rep. 208; People Lord, 9 Mich. 227; State Metcalfe, 80 Ohio St. 244, 88 N.E. 738; Commonwealth Lomas, 302 Pa. 97, 153 A. 124, 74 A.L.R. 481; Commonwealth Sheatz, 228 Pa. 301, 77 A. 547, 50 L.R.A.(N.S.) 374, 21 Ann.Cas. 54; and Commonwealth Hanley, 9 Pa. 513.
Beginning with the Chadduck Case each and every case cited by the petitioner is based on constitutional or statutory language fixing a definite term "and until his successor shall be elected and qualified" or similar language. The Chadduck Case, as already pointed out, dealt with the provision in section 17 of the Schedule to the Constitution which provided for "* * * the extended term herein provided for, and until his successor shall have been duly chosen, and shall have qualified according to law." The statute under consideration in Branham Long, supra, was for a two-year term of office and "until his successor shall be elected and qualified." In Commonwealth Hanley, supra, the term of office was fixed at three years "and until their successors shall be duly qualified." This case was reviewed in the Johnson Case and the distinction between the Pennsylvania Constitution and the Virginia Constitution was made clear. The Kimberlin Case (the case most frequently cited for the so-called majority view) was based on the Hanley Case and was decided under the Indiana Constitution which provided that "such officer shall hold his office for such term, and until his successor shall have been elected and qualified."
In all of these cases the term of office was fixed at a definite period plus an indefinite period -- until his successor shall have been legally selected and qualified. This language is quite dissimilar to the provision of our Constitution which fixes the term of attorneys for the Commonwealth at four years with the added provision that they continue to discharge the duties of *113 their offices after their terms have expired until their successors have qualified. The cases cited by the petitioner are thus easily distinguished.
In a note to Commonwealth Lomas, supra, found in 74 A.L.R., at page 486, it is stated that in a majority of jurisdictions the rule obtains that the death or disability of an officer-elect, before qualifying, does not create a vacancy in the office which the appointing power may fill, since the officer-elect never occupied the office; and where it is provided that the incumbent shall hold his office until his successor is elected and qualified, the prior incumbent is entitled to continue in the office until his successor has been duly elected and has qualified. However, this rule is expressly made to depend upon the provision that an incumbent shall hold his office until his successor is elected or appointed and qualified. The note shows that whether the death of an officer-elect, before qualification or entry upon his duties, creates a vacancy is a problem which depends for its solution on the constitutional and statutory provisions of each jurisdiction.
A typical illustration of the necessity for carefully following the mandates of applicable constitutional and statutory provisions in the case of Commonwealth Sheatz, supra, which affirmed the doctrine of the Hanley Case, but held that where a treasurer died without qualifying before his term of office began, there was a vacancy in the office which must be filled by appointment, because a constitutional provision stated that a treasurer could not succeed himself.
The petitioner insists that there is no real legal distinction between the language used in our Constitution and the constitutions and statutes of other States and in support of this proposition he cites the Chadduck Case. However, the Johnson Case, Kilpatrick Smith, 77 Va. 347, Owen Reynolds, supra, and Commonwealth Sheatz, supra, make such distinction clear. In 1883 the Kilpatrick Case had this to say on that subject, 77 Va., at page 359:
"In support of the claim that no vacancies existed which could be supplied by the board of education, the appellees rely upon the cases of Commonwealth"
Hanley, 9 Pa. 513; State Lusk, 48 Mo. 242; and People Tilton, 37 Cal. 614; and like cases, none of which have any application to cases arising under our constitution and statutes. They all turn upon language *114 which expressly extends the term of office by the words, 'and until his successor shall duly qualify'; or, 'and until his successor shall be elected and qualified.'
"The clause in question, in our constitution, does not extend the term, but simply enables the incumbent to hold over until his successor, whether elected or appointed, is chosen in the way prescribed by law."
Judge Holt in Owen Reynolds, supra, points out the difference in phraseology between "merely continuing to discharge the duty" and "extending the term of office until the qualification of a successor" in this language, 172 Va., at page 308:
"The trustee electoral board and its members are not merely authorized to continue to discharge the duties of their office but by the very language of the statute which gives this board being continue to hold office until their successors have been appointed and qualified; moreover, section 33 of our Constitution declares that 'all officers, elected or appointed, shall continue to discharge the duties of their offices after their terms of service have expired until their successors have qualified.' Plainly under legislative mandate, the members remain in office, and under constitutional mandate, they are not merely empowered but are directed to discharge its duties after their terms of service have expired and until their successors have qualified."
Another instructive case is that of State Murphy, 32 Fla. 138, 13 So. 705. The opinion contains an exhaustive review of the cases decided by the various courts and points out that each of them depends upon the language of the particular constitution or statute under consideration and adverts to the further fact that some decisions are influenced by a supposed policy against appointments. The same opinion also points out the significance of the language of the Constitution for a holding over, "after the expiration of their official terms." This language is similar to that of section 33 of the Virginia Constitution, relied upon by the petitioner as extending his term of office for four years. In this connection the Florida court said, 32 Fla., at page 160:
"The use of the words, 'after the expiration of their official term,' is a recognition of a distinction in the nature of the tenure during that time and the subsequent time. The language implies and means that his regular or permanent tenure has expired, and that it is now both temporary and a part of another term. *115 It is different from that used in the Pennsylvania and other cases cited supra, where he is to hold his office or their offices for a stated time and until his successor or their successors shall be qualified, or duly qualified, or elected and duly qualified."
In the light of the foregoing, we find no difficulty in concluding that the decision in Johnson Mann is sound and that it correctly construed the applicable provisions of our Constitution and statutes.
We do not feel that it is necessary to discuss or distinguish all the cases from other jurisdictions which deal with the question which is before us for decision. What has been said is sufficient to point out the law of this State as set forth in our Constitution and statutes. Code section 15-475 provides that every county officer elected by the people shall, unless otherwise provided by law, qualify for office on or before the day on which his term begins and Code section 15-477 provides that if any such officer fails to qualify according to law, his office shall be deemed vacant. The Code provisions are authorized by section 56, Art. IV, of the Constitution. The younger Burnett was a county officer elected by the people within the provisions of Code section 15-475. He failed to qualify on or before the day his term of office would have begun. The law makes no exceptions or distinctions, but in the plainest language provides that if there is not a qualification, there is a vacancy. It is conceded that if there is a vacancy, the method of filling the office by appointment under Code section 24-145 is correct.
Accordingly, the prayer of the petition for a writ of mandamus is denied.
Writ refused. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592785/ | 453 So.2d 259 (1984)
STATE of Louisiana
v.
George VIETO.
No. 84-K-129.
Court of Appeal of Louisiana, Fifth Circuit.
May 30, 1984.
As Corrected August 13, 1984.
Writ Denied June 25, 1984.
*260 Mark McTernan, McTernan, Parr & Rumage, New Orleans, for relator George Vieto.
William C. Credo, III, Asst. Dist. Atty., Gretna, for respondent State of La.
Before BOUTALL, KLIEBERT and GAUDIN, JJ.
ON APPLICATION FOR SUPERVISORY WRITS
BOUTALL, Judge.
George Vieto has applied to this court for supervisory writs directed to the First Parish Court for the Parish of Jefferson, State of Louisiana complaining of his denial of a jury trial under a bill of information in which he was charged with violation of LRS 14:98, driving a motor vehicle while under the influence of an intoxicating liquor, and LRS 14:99, reckless operation of a motor vehicle. The nature of the writs sought is not specified, but presumably he seeks a writ of certiorari to determine the correctness of the judge's ruling and the writ of mandamus ordering a jury trial.
The procedural posture under which this matter comes before us is that Vieto was charged in a single bill of information with two counts, one violation of LRS 14:98 (DWI), and the other on the 14:99 (ROMV). After entry of a plea of not guilty and various pre-trial motions being disposed of, the matter was set for trial on February 23, 1984, and on the day of trial, Vieto filed a motion for jury trial which, after argument, was denied by the presiding judge. Vieto then notified the court of his intention to apply to this court for supervisory writs, whereupon the trial judge stayed further proceedings in the case until this court should act upon the application. Vieto has now applied to this court raising two issues: (1) Is the defendant entitled by law to be tried by a jury of his peers?; and (2) Are Article 1, Section 17 of the Louisiana Constitution of 1974 and the Code of Criminal Procedure Article 493.1 unconstitutional insofar as they denied defendant the right to a jury trial? These issues were presented below and are presented here purely on a legal question.
We have considered this matter on the basis on which it has been presented, and we find no error in the ruling of the trial court. In reaching this conclusion, we have considered the legal history expounded in our judicial system and in the statutory and constitutional laws of this state. Because of the importance of this issue and the numerous cases pending in the courts under our jurisdiction, we set forth the basis of our reasons.
The Louisiana system of criminal offenses, prosecution and punishment has been altered in past years to bring the system into consistency with generally accepted federal and state guidelines relating to the applicability of jury trials. The foundation principle is that expressed in the Sixth Amendment to the Constitution of the United States which provides in pertinent part:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, * * * *"
Is the interpretation of this amendment and its application to the right of jury trial consistent with the balance of the rights of an individual accused of a crime and the necessity of governmental imposition of a fair and equitable system of justice in an orderly and efficient manner? In this regard we note the case of Smith v. State of Alabama, 124 U.S. 465, 8 S.Ct. 564, 569, 31 *261 L.Ed.2d 508, 512 (1888) in which the Supreme Court observed:
"There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
Accordingly, in ascertaining the meaning of the phrase, "In all criminal prosecutions, [emphasis added) the accused shall enjoy the right to a ... trial, by ... jury...." taken from the Bill of Rights, reference must be made to the common law from which it was taken.
As noted in United States v. Wong Kim Ark., 169 U.S. 649, 654, 18 S.Ct. 456, 459, 42 L.Ed. 890, 892 (1898):
"In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. [Citations omitted]"
In Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 827, 49 L.Ed. 99 (1904), the Supreme Court utilized the definition from Blackstone's Commentaries to define "crimes" noting that "Blackstones Commentaries are accepted as the most satisfactory exposition of the common law of England."
The following definition is stated in Schick, supra, 24 S.Ct. at page 827:
"A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; which, properly speaking, are mere synonymous terms; though in common usage the word `crimes' is made to denote such offenses as are of a deeper and more atrocious dye; while smaller faults and omissions of less consequence are comprised under the gentler name of the `misdemeanors' only."
The opinion continues:
"In the light of this definition we can appreciate the action of the convention which framed the Constitution. In the draft of that instrument, as reported by the committee of five, the language was "the trial of all criminal offenses ... shall be by jury, `but by unanimous vote it was amended so as to read `the trial of all crimes.' The significance of this change cannot be misunderstood. If the language had remained `criminal offenses,' it might have been contended that it meant all offenses of a criminal nature, petty as well as serious; but when the change was made from `criminal offenses' to `crimes,' and made in the light of the popular understanding of the meaning of the word `crimes,' as stated by Blackstone, it is obvious that the intent was to exclude from the constitutional requirement of a jury the trial of petty criminal offenses." Schick, supra, 24 S.Ct. at page 827.
By so holding, the court in Schick, supra, confirmed the ruling in Callan v. Wilson, 127 U.S. 540, 555, 8 S.Ct. 1301, 1306, 32 L.Ed. 223 (1888) which conceded "that there is a class of petty minor offenses not usually embraced in public criminal statutes, and not of the class or grade triable at common law by a jury...."
In District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 662, 81 L.Ed. 843 (1937), the court recognized as "well settled" the principle "that the right of trial by jury, ... does not extend to every criminal proceeding." To distinguish which offenses were to be deemed "petty", the court considered the severity of the penalty as an element to be assessed in determining whether a statutory offense entitled an accused to a jury trial. The court concluded, after examining the standards which prevailed at the time of the adoption of the Constitution, that a possible penalty of ninety days was insufficient to invoke the right to a jury trial. We note the court's approach to and solution of the problem:
"We are aware that those standards of action and of policy which find expression in the common and statute law may *262 vary from generation to generation. Such change has led to the abandonment of the lash and the stocks, and we may assume, for present purposes, the commonly accepted views of the severity of punishment by imprisonment may become so modified that a penalty once thought to be mild may come to be regarded as so harsh as to call for the jury trial, which the Constitution prescribes, in some cases which were triable without a jury when the Constitution was adopted. [Citations omitted]. But we may doubt whether summary trial with punishment of more than six months' imprisonment, prescribed by some pre-Revolutionary statutes, [Footnote omitted] is admissible, without concluding that a penalty of ninety days is too much. Doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments." District of Columbia v. Clawans, supra, at 300 U.S. 627-628, 57 S.Ct. 663.
Citing 18 U.S.C. Section 1 (1964 ed)[1]; the Supreme Court in Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) held "in the exercise of the Court's supervisory power ... we rule... that sentences exceeding six months... may not be imposed by federal courts absent a jury trial or waiver thereof." Distinguishing the Cheff, supra, case as uniquely applying to contempt proceedings, the Supreme Court in Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) declined to adopt the federal standard as controlling in a state case but decided "that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense. [Footnote omitted]" Ibid at 391 U.S. 162, 88 S.Ct. 1454. However, the decision in Duncan, supra, recognized that the Sixth Amendment right to a jury trial in a serious case extended to the states and squarely addressed the issue of whether it was the sentence authorized for a particular offense or the penalty actually imposed which determined the seriousness of the crime charged. Citing District of Columbia v. Clawans, supra, the court noted at 391 U.S. 160, 88 S.Ct. 1453 "[t]he penalty authorized by the law of the locality may be taken `as a gauge of its social and ethical judgments.' (Citations omitted]"
But the court observed:
"[T]he boundaries of the petty offense category have always been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little. Duncan, supra at 391 U.S. 160-161, 88 S.Ct. 1453.
In Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the line was drawn. After surveying the laws of the federal system and of the states, the court noted that the City of New York was alone in denying to an accused a jury trial where the authorized sentence exceeded six months' imprisonment. The court states some of its consideration of the problem:
"This near-uniform judgment of the Nation furnishes us with the only objective criterion by which a line could ever be drawnon the basis of the possible penalty alonebetween offenses that are and that are not regarded as `serious' for *263 purposes of trial by jury. [Footnote omitted]
"Of necessity, the task of drawing a line `requires attaching different consequences to events which, when they lie near the line, actually differ very little.' Duncan v. Louisiana, supra, [391 U.S.] at 161, 88 S.Ct., at 1453. One who is threatened with the possibility of imprisonment for six months may find little difference between the potential consequences that face him, and the consequences that faced appellant here. Indeed, the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or `petty' matter and may well result in quite serious repercussions affecting his career and his reputation. Where the accused cannot possibly face more than six months' imprisonment, we have held that these disadvantages, onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive non-jury adjudications. We cannot, however, conclude that these administrative conveniences, in light of the practices that now exist in every one of the 50 States as well as in the federal courts, can similarly justify denying an accused the important right to trial by jury where the possible penalty exceeds six months' imprisonment. [Footnote omitted]" Baldwin v. New York, supra, at 399 U.S. 71-72, 90 S.Ct. 1890-1891.
In this context, the Louisiana Constitution was adopted in 1974. L.S.A. Const. Art. 1, Sect. 17 provides in pertinent part:
"A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, ...."
Similarly, a number of criminal statutes were changed as to severity of penalty in order to conform with the principle of a legislatively imposed recognition of sentence as a basis for determination of the petty offense exempt from jury trial. The applicant in this case has demonstrated no other basis.
But until 1976, the aggregation of punishments on charges joined for trial posed no problem as regards the right to a jury trial. In City of Monroe v. Wilhite, 233 So.2d 535, 536 (La.1970), cert. denied 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1960), the court held:
"No justification can be found in the constitutional and statutory authority for aggregating the penalties authorized for two or more separate offenses to determine the right to a jury trial. The right to a jury trial is tested by the punishment authorized for the particular offense. The consolidation of the cases for trial does not alter this rule. Consolidation is a procedural devise to conserve trial time.
See also State v. Robertson, 310 So.2d 619 (La.1975).
However, during 1974, the United States Supreme Court rendered Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). The defendants, Dominick Codispoti and Herbert Langnes, were charged with multiple counts of contempt of court, which allegedly occurred during a criminal trial. After hearing, the defendants were adjudged guilty and sentenced summarily. But the sentences, although individually within the six month limitation set by Baldwin, supra, were ordered served consecutively, resulting in an aggregated penalty of longer than six months. The defendants argued successfully that the trial judge wrongly denied the defense motion for a jury trial in the light of the punishment received.
The Codispoti court reversed the trial court's ruling that the defendants were not entitled to a jury trial because no term of imprisonment in excess of six months was imposed for any one offense, holding:
"In the case before us, the original trial judge filed the contempt charges against these petitioners, while another judge tried them and imposed the sentences. Because the latter had the power to impose consecutive sentences, as he did here, guilt or innocence on the individual charges bore heavily on the ultimate sentence *264 and was of critical importance. Here the contempts against each petitioner was tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codispoti was sentenced to three years and three months for his seven contemptuous acts, Langnes to two years and eight months for his six contempts. In terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense and was entitled to a jury trial.
"We find unavailing respondent's contrary argument that petitioners' contempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondents' characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired." Supra, at 418 U.S. 516-517, 94 S.Ct. 2693-2694.
The Louisiana Supreme Court determined Codispoti, supra, and the Louisiana Constitution, Article 1, Section 17, quoted supra, to require a jury trial in each case where the punishment which could be imposed exceeded six months' imprisonment and held in State v. McCarroll, 337 So.2d 475, 480 (La.1976), "where two or more charges are joined for trial the right to a jury must be determined by the total punishment which may be imposed in that case."
The result of McCarroll, supra, was that whenever two or more charges were either joined by bill of information as by C.Cr.P. Article 493 or consolidated for trial as by C.Cr.P. 706, the defendant was entitled to a trial by jury if the potential aggregate imprisonment exceeded six months (or if a fine in excess of $500 could be imposed). See State v. Nettleton, 367 So.2d 755 (La.1979), State v. Jones, 396 So.2d 1272 (La.1981), and State v. Williams, 404 So.2d 954 (La.1981).
The jurisprudence developed a few caveats for the exercise of the defendant's constitutional right to a trial by jury. If the state joined counts pursuant to C.Cr.P. Article 493, they could not later request a severance merely to defeat a jury trial request. See State v. Jones, supra. Nor if the state proceeded with separate bills could a consolidation be opposed merely because the resultant "case" would entitle a defendant to a jury trial. See State v. Nettleton, 367 So.2d 755 (La.1979), but also see State v. Comeaux, 408 So.2d 1099 (La. 1981). Additionally, in cases where a jury is mandated, the Constitution requires that any waiver be "knowingly and intelligently" made and every reasonable presumption against a waiver of the right must be indulged. See McCarroll, supra; Williams, supra. Where the record does not reflect an informed waiver, a reversal is unavoidable. See State v. Williams, supra; State v. Laurendine, 439 So.2d 398 (La.1983).
In State v. Grimble, 397 So.2d 1254 (La. 1980), a solution was suggested. Curtis Grimble, the defendant, was charged by a two-count information with D.W.I. (R.S. 14:98) and negligent injuring (R.S. 14:39), each of which is punishable by a maximum of six months' imprisonment and a fine of either $400 (R.S. 14:98) or $500 (R.S. 14:39). In arguing a motion to sever, the defense noted that he was entitled to a trial by jury. The trial judge acknowledged the correctness of the assertion, and to overcome the dilemma presented, he acceded to the state's request and agreed to instruct himself that the accused's punishment would *265 not exceed six months' imprisonment even in the event of a conviction of both counts. Since the defendant's exposure to a "non-petty" term of imprisonment was thus ended, the trial court ruled there was no entitlement to a jury.
A majority of the Supreme Court disagreed and ruled as follows:
"The state's contention that the trial court might effectively curtail an accused's right to jury trial by agreeing in advance to a limitation of sentence in the event of conviction was impliedly rejected in both McCarroll and in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). [Footnote omitted]. In placing emphasis upon maximum sentence exposure, McCarroll emphasizes that it is the legislative determination of an offense's seriousness which entitles an accused to jury trial and not the possibly arbitrary decision-making of the trial court." Grimble, supra, at 1256. See also State v. Jones, supra.
Grimble apparently forms the basis for the contested statute, C.Cr.P. Article 493.1, which provides:
"[w]henever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than five hundred dollars, or both."
The thrust of the argument against the solution proposed by the trial judge in Grimble, supra, is as noted previously, that the decision of the trial court not to aggregate penalties may be exercised arbitrarily by the judge instead of being legislatively determined. See Grimble, supra, at 1256.
It is the fear of arbitrary action by the judiciary which initiated the jury system. As the Supreme Court observed in Duncan v. Louisiana, at 391 U.S. 156, 88 S.Ct. 1451:
"Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official powera reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States."
Likewise, the court in Codispoti, supra, at 418 U.S. 515-516, 94 S.Ct. 2693 observed:
"Moreover, it is normally the trial judge who, in retrospect, determines which and how many acts of contempt the citation will cover. It is also he or, as is the case here, another judge who will determine guilt or innocence absent a jury, who will impose the sentences and who will determine whether they will run consecutively or concurrently. In the context of the post-verdict adjudication of various acts of contempt, it appears to us that there is posed the very likelihood of arbitrary action that the requirement of jury trial *266 was intended to avoid or alleviate." [Citation omitted]
With the intervention of the legislature, the result is no longer arbitrary or offensive to due process. The contested codal provision ensures that similarly situated defendants will be treated similarly and that none will be exposed to severity of sentence beyond that legislatively provided.
Accordingly, we find the ruling of the trial court denying jury trial is correct. The stay order staying the proceedings is cancelled and annulled, and this case is remanded to the trial court for further proceedings consistent with the opinion expressed herein.
NOTES
[1] "Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500.00, or both, is a petty offense." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364830/ | 222 S.C. 194 (1952)
72 S.E.2d 451
STATE
v.
McCRAE.
16657
Supreme Court of South Carolina.
August 11, 1952.
*195 Messrs. W.E. Jenkinson, of Kingstree, and McEachin, Townsend & Zeigler, of Florence, for Appellant.
Messrs. Frank A. McLeod, of Sumter, and Shuler & Harrell, of Kingstree, for Respondent.
*196 August 11, 1952.
TAYLOR, Justice.
The appellant was indicted in the Court of General Sessions for Williamsburg County, June 1, 1951, on three counts:
The first count alleges that appellant:
"On the 15th day of May, in the year of our Lord one thousand nine hundred and fifty-one, and divers other days both since and before the taking of this inquisition, with force of arms, at Kingstree, in the County and State aforesaid, did unlawfully sell, barter, exchange, store and keep in his possession in his place of business on the Kingstree-Hemingway public highway, spirituous, malt, vinous, fermented, brewed alcoholic liquors and beverages and did thereby maintain and keep a common nuisance against the form of the statute in such cases made or provided and against the beliefs and dignity of the State."
The second count alleges a nuisance under section 1881, South Carolina Code of 1942.
The third count alleges that appellant:
"On the 15th day of May (April written in in ink) in the year of our Lord one thousand nine hundred and fifty-one, with force of arms, at Kingstree in the County and State aforesaid, did willfully and unlawfully exchange, barter, sell and deliver to one Roswell Scott (written in in ink) alcoholic liquors without having first obtained a license to do so, against the form of the Statute in such cases made and provided and against the beliefs and dignity of the State."
The case was tried before the Honorable G. Duncan Bellinger, Presiding Judge, and a jury at the September, 1951, term of said Court.
After direct and cross-examination, during both of which one of the State's witnesses testified that the date of the crime was May 15th as charged in the indictment, the State *197 moved to amend by changing the date from May 15th to April 15th which amendment was allowed before re-direct examination of the witness. The appellant pleaded surprise due to the change, but the court allowed the amendment.
At the close of the State's case, appellant made a motion for a directed verdict of not guilty on all counts. The court granted the motion on the second count, but refused it as to the first and third counts and appellant was found guilty upon these counts. Motion for a new trial was duly made and refused and the court imposed a sentence generally of three years in prison upon the two counts.
Section 1880 of the 1942 Code, the statute upon which the first count in the indictment is founded, reads as follows:
"The unlawful sale, barter, exchange, storage and keeping in possession in this State of any spirituous, malt, vinous, fermented, brewed (whether lager or rice beer), or other liquors and beverages, or any compound or mixture thereof which contains alcohol and is used as beverage, is hereby declared a common nuisance."
Appellant contends that the 1945 ABC Act, South Carolina Statutes 1945, 44 St. at Large, page 337, which carries a provision that all acts or parts of acts inconsistent therewith are repealed, operates to repeal by implication Section 1880 heretofore referred to in that Subsection section c of Section 14 deals with the wrongful keeping and storing of alcoholic liquor in a place of business and Subsection i (2) of Section 14 provides the punishment for violation thereof. Subsection b makes it unlawful to have in possession unstamped liquor in any place with the punishment not to exceed $100.00 fine or 15 days imprisonment, while Section 1880 makes no distinction where the liquor in possession is situated. He further contends that Section 1880 of the 1942 Code is vague and indefinite while Section 14 of the 1945 Act particularizes the various offenses set forth and the varying degrees of punishment for violation thereof. He further contends that Section 1880 is void for *198 uncertainty and inoperative. A study of Section 1880 shows that it carries no penalty of itself but the doing of such acts as set forth therein are declared a common nuisance. This Section of the Code relates back to 1893, and has since been brought up to date in subsequent Codes and appears in its present form in Volume 26, Statutes of South Carolina 1910, Page 572. As heretofore stated, no penalty is provided in Section 1880, but the possession and sale of such liquors are declared to be a common nuisance, then Section 1882 provides authority for proceeding against such persons and places. The history of the act shows it to be independent of other acts, except the penalty which is provided in Section 1894, State v. Tooley, 107 S.C. 408, 93 S.E. 132. This section which is a portion of the same article headed "Provisions Relating to Sale of Alcohol, Nuisances, Seizures, etc." provides that:
"Upon conviction of any person for the violation of any provisions of this article, where punishment is not provided for, such persons shall be fined, or imprisoned at hard labor, in the discretion of the court: provided, the fine shall not be less than one hundred dollars, and the imprisonment not less than three months."
Section 26 of the ABC Act of 1945, section 1853, 1946 Code, supplement p. 57, limits the express repeal to former Code Sections 1829 to 1856. We are therefore of the opinion that Section 1880 is not void for uncertainty, that it clearly denominates the doing of these acts as unlawful with the penalty being provided in Section 1894, that the General Assembly did not expressly revoke Section 1880 and did not intend to do so by implication.
We see no error in appellant's conviction upon the third count and all exceptions thereto are dismissed.
Upon trial of the cause, the State produced testimony to the effect that May 15th, the date charged in the indictment, was the date upon which the offense occurred. However, later on in the trial it was ascertained that *199 the date was April 15th. The State's request to be permitted to amend the indictment to conform was granted over the objection of the appellant who pled surprise. Section 1005 of the South Carolina Code of 1942 provides:
"If there be any defect in form in any indictment it shall be competent for the court before which the case is tried to amend the said indictment: provided, such amendment does not change the nature of the offense charged; that if on the trial of any case there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof, it shall be competent for the court before which the trial shall be had to amend the said indictment according to the proof: provided, such amendment does not change the nature of the offense charged; and after such amendment the trial shall proceed in all respects and with the same consequences as if no variance had occurred, unless such amendment shall operate as a surprise to the defendant, in which case the defendant shall be entitled, upon demand, to a continuance of the cause."
This amendment did not change the nature of the offense charged. Appellant had demanded and received a preliminary hearing prior to the trial and he made no showing whatever in the record to substantiate his position that he was taken by surprise. We find there is no merit in this contention. State v. Richey, 88 S.C. 239, 70 S.E. 729; State v. Rush, 129 S.C. 43, 123 S.E. 765.
For the foregoing reasons, we are of the opinion that all exceptions should be overruled and it is so ordered. Affirmed.
BAKER, C.J., and FISHBURNE, STUKES and OXNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364932/ | 856 P.2d 1023 (1993)
317 Or. 406
Lon T. MABON, Petitioner,
v.
Phil KEISLING, Secretary of State, Respondent, and
Peggy Norman and Liz Kaufman, Intervenors.
Peggy NORMAN and Liz Kaufman, Petitioners,
v.
Phil KEISLING, Secretary of State of the State of Oregon, Respondent.
SC S40331; S40316.
Supreme Court of Oregon, In Banc.
Argued and Submitted July 27, 1993.
Decided August 19, 1993.
Reconsideraton Denied September 3, 1993.
Melanie E. Mansell, Salem, argued the cause and filed the petition for petitioner, Lon T. Mabon.
Thomas A. Balmer, Deputy Atty. Gen., Salem, argued the cause for respondent. With him on the memorandum in response were Theodore R. Kulongoski, Atty. Gen., Virginia Linder, Sol. Gen., and Richard D. Wasserman, Asst. Atty. Gen., Salem.
*1024 Charles F. Hinkle, ACLU Foundation of Oregon, Inc., Portland, argued the cause and filed the petition and memorandum in opposition for petitioners and intervenors, Peggy Norman and Liz Kaufman.
GILLETTE, Justice.
This original proceeding consolidates two challenges to a ballot title certified by the Attorney General for a proposed initiative measure that would add a new section to Article I of the Oregon Constitution. Pursuant to ORS 250.067(1), the challenging parties submitted to the Secretary of State timely written comments on the earlier, proposed ballot title. Consequently, they are entitled to bring these challenges to the certified ballot title. ORS 250.085(2) and (5). On review, we modify the ballot title and certify it as modified.
The text of the proposed initiative measure provides as follows:
"The Constitution of the State of Oregon is amended by creating a new section to be added to and made a part of Article 1. The new section shall be known as `The Minority Status and Child Protection Act' and will read as follows:
"Section 41: MINORITY STATUS BASED ON HOMOSEXUALITY PROHIBITED.
"(1) In the State of Oregon, including all political subdivisions and government units, minority status shall not apply to homosexuality; therefore, affirmative action, quotas, special class status or special classifications such as `sexual orientation,' `domestic partnerships' or similar designations shall not be established on the basis of homosexuality.
"(2) Children, students and employees shall not be advised, instructed or taught by any government agency, department or political unit in the State of Oregon that homosexuality is the legal or social equivalent of race, color, religion, gender, age or national origin; nor shall public funds be expended in a manner that has the purpose or effect of promoting or expressing approval of homosexuality.
"(a) The State of Oregon, political subdivisions and all units of state and local government shall not grant marital status or spousal benefits on the basis of homosexuality.
"(b) The State of Oregon, political subdivisions and all units of state and local government, with regard to public employees, shall generally consider private lawful sexual behaviors as non-job related factors, provided such factors do not disrupt the work place and that such consideration does not violate subsections (1) and (2).
"(c) Though subsections (1) and (2) are established and in effect, no unit of state or local government shall deny to private persons business licenses, permits or services otherwise due under existing statutes; nor deprive, nullify, or diminish the holding or exercise of any rights guaranteed by the Constitution of the State of Oregon or the Constitution of the United States of America.
"(d) Though subsections (1) and (2) are established and in effect, this section shall not limit the availability in public libraries of books and materials written for adults which address homosexuality, provided access to such materials is limited to adults and meets local standards as established through the existing library review process.
"(3) The PEOPLE INTEND, that if any part of this enactment be found unconstitutional, the remaining parts shall survive in full force and effect. This Section shall be in all parts self-executing."
The Attorney General certified the following ballot title to the Secretary of State for the proposed initiative measure:
"AMENDS CONSTITUTION: GOVERNMENTS CANNOT BAR DISCRIMINATION AGAINST HOMOSEXUALS, APPROVE HOMOSEXUALITY
"QUESTION: Shall constitution bar laws forbidding discrimination against homosexuals, prohibit spending public *1025 funds in manner promoting or expressing approval of homosexuality?
"SUMMARY: Amends state Constitution. Governments cannot:
" bar discrimination against homosexuals;
" advise or teach children, students, employees that homosexuality equates legally or socially with race, other protected classifications;
" spend public funds in manner promoting or expressing approval of homosexuality;
" grant spousal benefits, marital status based on homosexuality.
"Measure nonetheless allows adult library books addressing homosexuality with adult-only access. Government also cannot deny constitutional rights, services due under existing statutes. Public employees' private lawful sexual behaviors considered non-job related if workplace undisrupted, consideration complies with measure."
Under ORS 250.085(4), we review ballot titles for substantial compliance with ORS 250.035 and 250.039.[1] Petitioner Mabon, one of the chief petitioners for the proposed initiative measure, challenges portions of the caption, the question, and the summary. Petitioners Norman and Kaufman challenge only the final sentence of the summary. We address the parties' arguments in that order.
THE CAPTION
ORS 250.035(1)(a) requires a caption of not more than ten words that "reasonably identifies the subject of the measure." In this case, Mabon objects to the portion of the caption that reads "GOVERNMENTS CANNOT BAR DISCRIMINATION AGAINST HOMOSEXUALS." Mabon contends that, with that portion of the caption, the Attorney General has not reasonably identified the subject of the measure, but rather has speculated about a potential effect of the measure.
This court has held that "[t]he Caption requires only identification of the subject matter of the measure; it should not be * * * a vehicle for conclusions about how a measure may affect legal rights and duties." Bauman v. Roberts, 309 Or. 490, 494, 789 P.2d 258 (1990) (emphasis in original). In this case, we do not agree that the Attorney General has engaged in "speculation" in describing the measure as one that will prevent governments from barring discrimination against homosexuals. As discussed more fully below, there can be no question that that will be one of the effects of the measure. Nevertheless, as noted, the role of the caption is reasonably to identify the measure's subject. We are not convinced that the Attorney General's caption, which emphasizes one particular effect of the measure, accomplishes that purpose. See Ransom v. Roberts, 309 Or. 654, 662, 791 P.2d 489 (1990) (noting that a proposed caption focused inappropriately on the measure's "perceived effects," rather than on its subject).
If enacted, the impact of this measure would be broader than the effect that the Attorney General has chosen to emphasize in the caption. The measure would not simply prevent governments from extending the protection of anti-discrimination laws to homosexuals; it would prevent governments from creating any classifications based on homosexuality. (For further discussion of this point, see infra, 317 Or. at ___ - ____, 856 P.2d at 1027.) The certified *1026 caption is phrased too narrowly to communicate this broad impact of the measure. See Baker v. Keisling, 312 Or. 385, 391-92, 822 P.2d 1162 (1991) (narrow phrasing of caption would cause voters to be informed inaccurately of the scope and coverage of the measure; court certified alternative caption).
Mabon contends that "[t]he subject of the measure, from its own language, is a restriction on government from granting minority status based upon homosexuality." Thus, he asks this court to certify a caption that reads: "AMENDS CONSTITUTION, GOVERNMENT CANNOT APPROVE, GRANT MINORITY STATUS FOR HOMOSEXUALITY." However, the concept of government "granting minority status" to homosexuals has no recognized meaning outside of this measure, the phrase is not self-defining, and the measure does not itself define the phrase except as it is defined by the words of the measure following the clause, "minority status shall not apply to homosexuality." Thus, use of the term "minority status" in the caption would do little to inform the voters of the measure's subject.
That said, we nonetheless could include the phrase in the caption, albeit partially undefined, by putting it in quotation marks. See, e.g., Baker v. Keisling, supra (words "behaviors," "abnormal, wrong, unnatural and perverse," "sexual orientation," "sexual preference," and "quotas, minority status, affirmative action, or similar concepts," found in proposed measure, included in ballot title). That is not a desirable course. Circumstances occasionally may compel the Attorney General (or this court) to use quotation marks around a word or a phrase from a proposed measure, but doing so runs the risk of creating a negative impression of the measuresome voters may interpret such a choice to suggest that the writer of the ballot title is at a loss to figure out what the measure means. If we can avoid the use of quotation marks and still keep faith with our statutory task, we shall do so. In this case, we believe that it is possible. The proposed measure's subject is the relationship between governments and homosexuality.
We conclude that the following caption substantially complies with the requirement that the caption reasonably identify the "subject" of the measure:
AMENDS CONSTITUTION: GOVERNMENTS CANNOT APPROVE, CREATE CLASSIFICATIONS BASED ON, HOMOSEXUALITY[2]
THE QUESTION
ORS 250.035(1)(b) requires a question of not more than 20 words that "plainly phrases the chief purpose of the measure." The chief purpose is "the most significant aim or end which a measure is designed to bring about." Glerum v. Roberts, 308 Or. 22, 28, 774 P.2d 1093 (1989). In this case, Mabon objects to the Attorney General's question because, according to Mabon, "the phrase, `bar laws forbidding discrimination against homosexuals,' reaches beyond the unambiguous language of the measure and assumes secondary effects." As with the caption, Mabon asks this court to certify a question employing the term "minority status."
As we noted above (and as we explain more fully below), we do not agree with Mabon's contention that the Attorney General has engaged in speculation in concluding that one effect of the measure will be to prevent governments from barring discrimination against homosexuals. That effect is certain. Nor do we agree with Mabon that any such effect will be "secondary."
Nevertheless, we are not convinced that that effect, which the Attorney General has chosen to emphasize in the question, is the "most significant aim or end which [the] measure is designed to bring about." As *1027 noted above and discussed below, the impact of the measure is broader than preventing the government from extending the coverage of anti-discrimination laws to homosexuals; it prohibits government from creating any classifications based on homosexuality. Moreover, as we previously have noted, "[t]o be of most help to the voter, the question should build on, and be consistent with, the caption." Baker v. Keisling, supra, 312 Or. at 392, 822 P.2d 1162. Therefore, we certify the following question:
QUESTION: Shall constitution bar governments from creating classifications based on homosexuality or spending public funds in manner expressing approval of homosexuality?
THE SUMMARY
ORS 250.035(1)(c) requires "[a] concise and impartial statement of not more than 85 words summarizing the measure and its major effect." In this case, Mabon objects to use of the phrase "bar discrimination against homosexuals" in the summary. He contends that, "[i]n predicting a secondary effect, the Attorney General has departed from the strict impartiality required." Again, Mabon asks this court to use the phrase "minority status," arguing that "the proper approach is to confine the analysis, as much as possible, to the words actually employed in the text of the measure."
This court has held that "[s]peculation about potential secondary effects has no place in any part of [a] ballot title." Bauman v. Roberts, supra, 309 Or. at 495, 789 P.2d 258. However, as we have noted already, the Attorney General's description of the measure as one that will prevent governments from barring discrimination against homosexuals is not based on speculation. Neither is such an effect "secondary." On the contrary, the idea expressed in the challenged sentence flows directly from the wording of the measure itself and describes one of the major effects of the measure.
The measure in this case provides that "minority status shall not apply to homosexuality." Although, as noted above, the concept of "granting minority status" to homosexuals does not have a recognized meaning outside of this particular measure, the measure itself undertakes to define the concept. Specifically, the measure provides that "minority status shall not apply to homosexuality; therefore, affirmative action, quotas, special class status or special classifications such as `sexual orientation,' `domestic partnerships' or similar designations shall not be established on the basis of homosexuality." (Emphasis supplied.) By inclusion of the clause following the word "therefore," the measure defines, at least in part, the meaning of the reference in the antecedent clause to "minority status." Thus, the measure itself gives meaning to the concept of "applying" or "granting minority status" to homosexuals.
One meaning of that concept, as provided for in the measure, is a prohibition against establishing "special class status or special classifications such as `sexual orientation,' `domestic partnerships' or similar designations * * * on the basis of homosexuality." Under the terms of the measure, then, if a government body were to establish a classification of "sexual orientation" based on homosexuality, that action would constitute the forbidden practice of granting or applying "minority status" to homosexuals. There can be no question that an anti-discrimination law that included within its protected classifications "sexual orientation," defined to include homosexuality, would fall within the scope of the measure.
Based on the foregoing analysis, we conclude that the Attorney General has not "[s]peculat[ed] about potential secondary effects" of the measure in describing the measure as barring laws that prohibit discrimination against homosexuals. There remains, however, Mabon's contention that the words of the measure should control.
This court has held that, "[i]n general and absent a compelling reason to the contrarythe Attorney General should use the actual language of the measure in the Summary." Sampson v. Roberts, 309 Or. 335, *1028 340, 788 P.2d 421 (1990). It also has been said that, "[w]hen the language in the measure is unambiguous, it is not the job of the Attorney General or of this court to substitute its interpretation of the measure for the language of the measure itself." Oregon Citizen's Alliance v. Roberts, 308 Or. 599, 606-07, 783 P.2d 1001 (1989) (Carson, J., dissenting).
In this case, Mabon advocates use of the term "minority status," because that term appears in the measure itself. However, as we noted above, the concept of government "granting minority status" has no recognized meaning outside of this measure. Thus, use of the term "minority status" in the summary would not help the voters understand one of the major effects of the measurethe ban on laws prohibiting discrimination against homosexuals. Helping the voters understand that effect is a "compelling reason" for the Attorney General's divergence from the language of the measure itself. We decline Mabon's invitation to certify the alternative ballot title that he has proposed.[3]
Our rejection of Mabon's specific arguments does not end our discussion, however. There are at least two different things wrong with the four-word statement, "bar discrimination against homosexuals." The first lies in the use of a chain of three words, "bar discrimination against," that have the combined effect of creating a triple negative. All three, "bar," "discrimination," and "against," include the idea of opposition. Such awkward phrasing should be avoided where possible. Likewise, the use of the word "discrimination," while accurate, is better avoided (if possible), because of the negative context in which that word normally is used. While surely not intended that way by the Attorney General, saying that governments cannot oppose discrimination can be a "loaded" description. The same ideas are communicated in a less pejorative manner by deleting the challenged four-word description and substituting the following: "create classifications based on homosexuality."[4]
Finally, we consider the challenge brought by petitioners Norman and Kaufman to the final sentence of the summary. That sentence reads: "Public employees' private lawful sexual behaviors considered non-job related if workplace undisrupted, consideration complies with measure." Norman and Kaufman contend that "the last four words make the sentence so awkward and obscure that most voters will have no idea what it means." They have proposed the following alternative: "Public employees' private lawful sexual behaviors may be cause for discharge, if those behaviors disrupt workplace."
The final sentence of the summary attempts to summarize the following portion of the measure:
"The State of Oregon, political subdivisions and all units of state and local government, with regard to public employees shall generally consider private lawful sexual behaviors as non-job related factors, provided such factors do not disrupt the work place and that such consideration does not violate subsections (1) and (2)."
We agree that the Attorney General's attempt to summarize this provision is too unclear to be left in the summary of the measure. The Attorney General admits that the sentence is "difficult to read" and does not oppose the alternative proposed by Norman and Kaufman, providing that one further change is made: the Attorney General contends that the alternative sentence "would be more accurate and neutral if it used the term `personnel action' rather than discharge." Petitioners agreed to that change at oral argument. We, too, agree. Therefore, we incorporate the alternative sentence, with the Attorney General's *1029 change, into the summary that we certify.
We make one other adjustment in the final paragraph. The second sentence, which begins with the phrase, "[g]overnment also cannot," should, for consistency, be moved up to the compendium of other things that government is forbidden by the proposed measure to do. Thus, there will be added, after the "Governments cannot" phrase, the following item: "deny constitutional rights, services due to existing statutes." The last paragraph of the ballot title is rewritten to provide: "Measure nonetheless allows adult library books addressing homosexuality with adult-only access. Public employees' private lawful sexual behaviors may be cause for personnel action, if those behaviors disrupt workplace."
CONCLUSION
The following ballot title is certified for the proposed initiative measure:
AMENDS CONSTITUTION: GOVERNMENTS CANNOT APPROVE, CREATE CLASSIFICATIONS BASED ON, HOMOSEXUALITY
QUESTION: Shall constitution bar governments from creating classifications based on homosexuality or spending public funds in manner expressing approval of homosexuality?
SUMMARY: Amends state Constitution. Governments cannot:
create classifications based on homosexuality;
advise or teach children, students, employees that homosexuality equates legally or socially with race, other protected classifications;
spend public funds in manner promoting or expressing approval of homosexuality;
grant spousal benefits, marital status based on homosexuality;
deny constitutional rights, services due under existing statutes.
Measure nonetheless allows adult library books addressing homosexuality with adult-only access. Public employees' private lawful sexual behaviors may be cause for personnel action, if those behaviors disrupt workplace.
Ballot title certified as modified. This decision shall become effective pursuant to ORAP 11.30(10).
NOTES
[1] ORS 250.035(1) provides:
"The ballot title of any measure to be initiated or referred shall consist of:
"(a) A caption of not more than 10 words which reasonably identifies the subject of the measure;
"(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and
"(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect."
ORS 250.039 requires ballot titles to comply with a minimum standard of readability. No party challenging the ballot title in this case raises any issue under that statute to this court. We therefore do not address it further.
[2] Future legislatures should consider requiring that ballot title captions begin with a two-word statement, such as "AMENDS CONSTITUTION," that tells voters where the proposed measure would be placed in Oregon law, and then expanding the total number of words in the caption to twelve, in order to accommodate this important aspect of ballot titles.
[3] Mabon's proposed ballot title contains several other minor changes not related to the issues discussed above. However, neither in his petition nor at oral argument did Mabon raise any specific arguments related to those changes. Consequently, we decline to discuss them.
[4] We derive this wording substantially from that used by the Attorney General in his original draft ballot title. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365081/ | 222 S.C. 326 (1952)
72 S.E.2d 647
De LOACH
v.
GRIGGS ET AL.
16673
Supreme Court of South Carolina.
September 30, 1952.
*327 Messrs. Butler B. Hare, of Saluda, and Nicholson & Nicholson, of Greenwood, for Appellant.
Messrs. Grier, McDonald, Todd & Burns, of Greenwood, for Respondents.
*328 September 30, 1952.
FISHBURNE, Justice.
The appeal involves two actions arising out of the death of appellant's intestate, Caleb DeLoach, from injuries sustained on April 29, 1950 in an automobile collision in the State of North Carolina. One of the actions is for wrongful death and the other for conscious pain and suffering. The two causes of action were jointly heard in the court below upon a demurrer interposed by the respondents. The issues presented there and here are the same, and by agreement the cases were consolidated for the purpose of this appeal. We will, therefore, discuss only the questions presented in the case for wrongful death.
The appellant in her complaint makes the necessary formal allegations and then sets out the facts relating to the accident. It is specifically alleged that the injury and death were sustained near Lincolnton, in the State of North Carolina, and were due to the careless and grossly negligent operation of a tractor-truck driven at the time and place by the agent, servant or employee of the T.G. Griggs Trucking Company, which collided with the Chevrolet automobile driven by appellant's intestate, or in which he was a passenger. The various particulars of negligence and carelessness are alleged in detail.
*329 In May, 1951, prior to trial, respondents interposed a demurrer to the complaint upon the primary ground that the complaint does not state facts sufficient to constitute a cause of action, in that although the action is brought in South Carolina, appellant's alleged cause of action is under the laws of the State of North Carolina, and that the laws of that state with respect to wrongful death and actions therefor, are not pleaded, as required by the laws of South Carolina.
When the demurrer came up for hearing before the circuit court in August, 1951, counsel for appellant took the position that the complaint was in substantial conformity with the law of North Carolina, and that the inadvertent failure to allege the applicable law should be corrected by the allowance of an amendment.
The North Carolina law, G.S. § 28-173, gives the right of action for wrongful death, which action must be brought within one year after such death by the administrator of the decedent.
There is no question raised here that the action was not brought within one year after the accidental death alleged in the complaint. But respondents argue that the omission of any allegation in the complaint of the applicable North Carolina law puts the appellant out of court; that the complaint, failing to make such allegation, is not amendable because it states no cause of action; and, further, that when the demurrer was heard, more than twelve months had expired from the date of the collision and the death of appellant's intestate.
The circuit judge in sustaining the demurrer and denying the appellant the right to amend, stated that the question he was called upon to decide arose out of appellant's request for leave to amend by alleging the North Carolina statute, and said:
"I have reluctantly reached the conclusion that the request for leave to amend must be denied by reason of controlling *330 authority. The case of Sellers v. Lewis & Holmes Motor Freight Corporation, et al., 215 S.C. 256 [54 S.E. 806], is, I think absolutely controlling. Plaintiff takes the position that the omission of the allegation is a mere formal defect in pleading and does not go to the merits of plaintiff's cause of action. But it is sufficient to say that the Sellers case holds otherwise."
The judge went on to say:
"In this case it seems clear to me that plaintiff is denied her day in Court by an inadvertent omission, and that defendants would not be prejudiced by correcting it; for the defendant knew the cause of action that was attempted to be alleged."
The Court clearly indicated that the motion to amend would have been granted except for want of power. The Sellers case will be later adverted to in this opinion.
Our statute, section 494 of the 1942 Code provides:
"The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved."
The foregoing statutory provision, giving the court the power to permit amendments in furtherance of justice has received a very liberal interpretation by the courts of this state. Our decisions are, almost without exception, in accord with the modern theory of code pleading which permits amendments before trial, introducing a new cause of action or substantially changing the cause of action alleged. J.B. Colt Co. v. Kyzer, 131 S.C. 78, 126 S.E. 520; Braudie v. Richland County, 217 S.C. 57, 59 S.E. (2d) 548; Vernon v. Atlantic Coast Line R. Co., *331 218 S.C. 402, 63 S.E. (2d) 53; Mack v. Plowden, 217 S.C. 112, 60 S.E. (2d) 57. And see 71 C.J.S., Pleading, § 290 (b), pp. 645, 646, where various South Carolina cases are annotated and differentiated.
In Vernon v. Atlantic Coast Line R. Co., supra [218 S.C. 402, 63 S.E. (2d) 55], it is stated:
"The court will, as a matter of course, allow any party to shape his own pleadings to suit himself, and, for this purpose, will permit him at any time before trial to amend his pleadings so as to present his own views on the question to be litigated, upon such terms as may be deemed equitable. There is no restriction on the power of the court to allow such amendments, even though their effect be to change entirely the whole cause of action, or the grounds of defense. Coral Gables v. Palmetto Brick Co., 183 S.C. 478, 191 S.E. 337; Taylor v. Atlantic Coast Line R. Co., 81 S.C. 574, 62 S.E. 1113; 2 Wait's Practice, pages 506, 507."
The statute of limitations was not involved in the foregoing Vernon case.
But it has been held in cases too numerous to cite that if the amendment merely expanded and amplified what was alleged in support of the cause of action, it related back to the commencement of the action and was not affected by the intervening lapse of time. By reference to our statute, it must be noted that the power of amendment conferred is by its very terms left to the discretion of the court. No inflexible rule applicable to all cases can be laid down. Necessarily, each case must be to some extent decided upon its own particular facts. The power of the court, however, to allow amendments is subject to recognized limitations, among which is the rule that a litigant may not set up by amendment a wholly different cause of action, one which does not arise out of or connect itself in a material aspect with the transaction set out in the original complaint, when the cause of action attempted to be set up by the amendment is barred by the statute of limitations.
*332 In 41 Am. Jur., Sec. 308, Pages 503, 504 Pleading it is said:
"Technical considerations or ancient formulae are not controlling; the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant, or set up another cause of controversy. * * * A test generally laid down for a departure is whether proof of the existence of additional facts will be required."
In this state, and we think in all jurisdictions, the common law rule that pleadings are to be construed most strongly against the pleader, has long been abrogated. In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.
"Much latitude of amendment is properly allowed to save the cause of action, if possible, from the bar of limitations * * *." 34 Am. Jur., Sec. 261, Page 214. And it has been many times suggested that courts should be inclined to disregard subleties and technical objections to the sufficiency of a pleading in an effort to determine the real issues on their merits and to try to do substantial justice to the litigants before them.
It is also stated in 34 Am. Jur., Sec. 263, Page 217, that "* * * there is a large and respectable body of authorities * * * to the effect that an amended pleading which supplies a missing allegation without the presence of which in plea and proof there could be no recovery relates back, and is unaffected by the statute of limitations expiring after the suit was begun and before the amendment was made."
In Koennecke v. Seaboard Air Line Ry., 1915, 101 S.C. 86, 85 S.E. 374, 375, so far as appears, the Statute of Limitations was not involved, but in taking the view that an amendment in an action for death of a railway employee *333 so as to bring the case specifically within the Federal statute, the complaint having originally stated a cause of action under a state statute did not introduce a new cause of action, the court said:
"Strictly and very technically speaking, it may be that the amendment substituted one cause of action for another, though it would, perhaps, be more nearly correct to say that the cause of action is the same, whether the action be brought and tried under the state or the federal law; and, since the principal differences between an action under the state and federal law lie in the authority by which the right of action is given and in some of the rules of law applicable in the determination of the rights of the parties, they relate to form and procedure rather than to substance. So that it could rarely happen that a shifting from one to the other would work prejudicial surprise."
The decision is affirmed in 239 U.S. 352, 36 S. Ct. 126, 60 L. Ed. 324, 11 N.C.C.A. 165.
The North Carolina case of Lassiter v. Norfolk & C.R. R. Co., 136 N.C. 89, 48 S.E. 642, 643, appears to be directly in point with the issue presented in the case at bar, and we are in accord with the conclusions therein stated. The opinion in the Lassiter case states:
"The complaint is a sufficient statement of the facts constituting a cause of action (if the death had occurred in this state) for negligently causing the death of plaintiff's intestate by ordering him to go between cars not equipped with improved couplers to uncouple said cars, in obeying which order he was run over and killed. The defendant demurred on the ground that the complaint disclosed that `the intestate came to his death in the state of Virginia by reason of the aleged wrongful acts of the defendant, but does not allege that an action for wrongful death may be maintained in that state.' Thereupon the plaintiff asked leave to amend the complaint by pleading the `statute law of Virginia, which gives a right of action for negligently causing death,' which motion *334 was refused on the ground that `the court had no power or discretion to allow the same, and, but for such want of power, the amendment would be allowed.' The court further gave as a reason why it did not have such power to grant the motion: `(1) Such an amendment would introduce a new cause of action, and not enlarge or amplify the cause of action pleaded. (2) Such an amendment would deprive the defendant of the benefit of the statute of limitations embraced in the statute law of Virginia'."
Up to this point the facts, circumstances and procedure in the two cases parallel each other. The Court continued:
"An entirely different question is before us; i.e., whether the trial court has power to permit an amendment to allege the nature of the law in the state where the transaction took place, and prove it, when, by inadvertence, such allegation has been omitted in the complaint. Such allegation does not add to or change the `cause of action,' which by the Code, § 233 (2), is a `statement of the facts.' Those facts the death and the wrongful negligence are already fully stated. `In such cases the law of the place where the right was acquired or the liability was incurred will govern as to the right of action.' [Northern Pac.] Railroad [Co.] v. Babcock, 154 U. S. [190] 197, 14 S. Ct. 978, 38 L. Ed. 958. The failure to allege this foreign law is merely a defective statement of a good cause of action. But, even if there were a failure to allege an essential fact to constitute the cause of action, Code, § 273, expressly gives power to amend `by inserting other allegations material to the case.' The rounding out of the complaint to cure a defective complaint, even in material matters, is not changing a cause of action, nor adding a new cause, but merely making a good cause out of that which was a defective statement of a cause of action because of the omission of `material allegations' which the Code. § 273, authorizes to be inserted by amendment. If the cause of action were not defectively stated, there would be no need of amendment."
*335 In overruling the decision of the lower court, the North Carolina Court quoted approvingly Tiffany on Death by Wrongful Act, Par. 202, as follows:
"* * * if the plaintiff's right of action arises under a foreign statute, he should allege and prove it; but, if the complaint `fails to allege the foreign statute, an amendment alleging it is not open to the objection that it sets up a new cause of action, although the period of limitation prescribed by the foreign statute has elapsed.'"
In the case at bar, the circuit judge frankly stated that the defendants knew the cause of action that was attempted to be alleged. As stated in 54 C.J.S., Limitations of Actions, § 280, p. 328:
"* * * It has been asserted that courts should be liberal in allowing amendments to save a case from the statute of limitations when the cause of action is not totally changed, and that especially should a liberal rule be applied in respect of amendments when a defendant has had notice from the beginning that plaintiff is setting up and trying to enforce a claim against him because of specified conduct, since the reasons for the statute of limitations do not exist in such a case."
The question whether a new cause of action is introduced by an amended pleading, as respects limitations, generally is held to depend on whether a recovery on one would bar recovery on the other, whether the same evidence would support both, whether the measure of damages is the same, and whether the pleadings are subject to the same defenses. 54 C.J.S., Limitations of Actions, § 279c, p. 322. We do not think the amendment prayed for here would make a new cause of action. The parties and interests, and the essential elements of the controversy would remain the same; the identity of the transaction forming the cause of action originally declared on would be adhered to, and the facts alleged would show the same wrong with respect to the same transaction.
*336 Appellant insists that the complaint as drawn constitutes a defective statement of a good cause of action, and the amendment by which it is sought to allege the North Carolina statute, would not inject new matter, but would merely amplify and give greater precision to the allegations in support of the cause originally presented. It will be recalled that the complaint specifically alleged that the collision and death occurred in North Carolina, and inferentially that the right of action arose in that state. In our opinion, appellant's contention is sound and should be sustained.
Respondents rely upon the case of Sellers v. Lewis & Holmes Motor Freight Corp., 215 S.C. 256, 54 S.E. (2d) 806, 807, which, however, we think can be differentiated.
The Sellers case was an action for damages for wrongful death under the Lord Campbell's Act of South Carolina, Code 1942, §§ 411, 412, and was so alleged. Upon trial of the cause, it was disclosed that the accident resulting in death occurred within the state of North Carolina, whereupon at the conclusion of plaintiff's case, a motion was made by defendant for a nonsuit. Plaintiff then moved to amend the complaint in order to allege the North Carolina law, and this motion to amend was granted. Upon appeal, it was held that the complaint did not state a cause of action because of failure to allege the North Carolina law. And failing to state a cause of action, the statute of limitations having run, the court overruled the lower court and reversed its judgment in allowing the amendment.
In the Sellers case, the court stated:
"* * * We are of the opinion that the proposed amendment would not simply supplement a faulty statement of a cause of action by adding or striking out the name of a party, or correcting a mistake in the name of a party etc., or by inserting other allegations material to the case, but would amount to substituting a cause of action where none existed by reason of the fact that plaintiff had no cause of action in South Carolina. * * *"
*337 In reaching this conclusion, the court recognized that on this question the authorities in other jurisdictions are in conflict but that the trend is toward more leniency in allowing amendments. The opinion states, "However, we are governed by our own decisions which might appear rather technical and harsh * * *."
There are certain facts which distinguish the case at bar from the Sellers case. They are similar, in that both actions arose in the State of North Carolina and were instituted in the courts of this state; and neither complaint alleged the North Carolina statute pertaining to damages for wrongful death.
The two cases are unlike in the following respects: In the Sellers case, the complaint not only failed to allege the statute, but it contained no allegation that the wrongful death occurred in North Carolina, and hence no inference could arise that the cause of action had its origin in that state. In the case at bar, it was plainly alleged that the collision and death occurred in North Carolina, and no other reasonable inference can be drawn but that the right of action arose in that state. Furthermore, in the case at bar the motion to amend was made prior to trial, when far more liberality is allowed in granting amendments. In the Sellers case, the case had gone to trial and all of plaintiff's testimony had been offered, when the defendant moved for a nonsuit on the ground that the complaint failed to plead the North Carolina statute. When this motion was made, the plaintiff then moved to amend his complaint.
By granting the amendment, the respondents will not be required to answer a different legal liability from that originally stated in the complaint. Nor will the amendment have the effect, in our opinion, of adding a new cause of action. We think its allowance is in furtherance of justice, and such amendment will relate back to the commencement of the action. The appellant is hereby given twenty days from the filing of the remittitur to serve her amended complaint, and *338 the respondents are allowed twenty days thereafter to serve their answer.
Judgment reversed.
BAKER, C.J., and STUKES, TAYLOR and OXNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364894/ | 72 S.E.2d 33 (1952)
236 N.C. 83
LEE
v.
H. L. GREEN & CO., Inc.
No. 671.
Supreme Court of North Carolina.
August 22, 1952.
*34 H. L. Koontz and Clyde A. Shreve, Greensboro, for plaintiff-appellant.
Smith, Sapp, Moore & Smith, Greensboro, for defendant-appellee.
JOHNSON, Justice.
The evidence in this case when analyzed in the light of the controlling principles of law is sufficient, we think, to make out a prima facie case of actionable negligence for the jury.
Those entering a store during business hours to purchase or look at goods do so at the implied invitation of the proprietor, upon whom the law imposes the duty of exercising ordinary care (1) to keep the aisles and passageways where customers *35 are expected to go in a reasonably safe condition, so as not unnecessarily to expose the customer to danger, and (2) to give warning of hidden dangers or unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know. Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64; Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E.2d 199; Parker v. Great Atlantic & Pacific Tea Co., 201 N.C. 691, 161 S.E. 209; Bowden v. S. H. Kress & Co., 198 N.C. 559, 152 S.E. 625.
However, such proprietor is not an insurer of the safety of customers and invitees who may enter the premises, and he is liable only for injuries resulting from negligence on his part. Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; Bowden v. S. H. Kress & Co., supra.
Moreover, the doctrine of res ipsa loquitur does not apply to injuries resulting from slipping or falling on the floor of a store which has been oiled. Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E.2d 536; Parker v. Great Atlantic & Pacific Tea Co., supra; Bowden v. S. H. Kress & Co., supra.
Therefore, it is not negligence per se to have an oiled floor in a store, or to apply oil to a floor, if it is applied in a reasonably prudent manner. The standard of care which the law requires of a storekeeper in oiling floors is that degree of care which persons of ordinary care and prudence are accustomed to use in oiling floors, having due regard both for the objects to be accomplished and the rights of those who are expected to frequent the store. Thus, in order for an injured person to recover in such a case, ordinarily there must be evidence sufficient to support the inference that from want of ordinary care on the part of the proprietor thte floor was improperly oiled and left in an unsafe condition. Parker v. Great Atlantic & Pacific Tea Co., supra; Bowden v. S. H. Kress & Co., supra. See also: 38 Am.Jur., Negligence, Sec. 136, p. 798; 65 C.J.S., Negligence, § 81, p. 589.
We think the evidence here, when viewed with the degree of liberality required on motion for nonsuit, was sufficient to sustain, though not necessarily to impel, a jury finding of all the essential elements of actionable negligence: (1) That prior to the plaintiff's fall the defendant had applied or caused to be applied upon and allowed to remain on its basement floor an oily floor dressing or covering of some type which was of a slick and slippery nature, and respecting which the defendant failed to exercise ordinary care by permitting it to be applied and to accumulate and remain on the floor in such quantities and condition, more in some places than in others and dry in some places and wet in others, so as to render unsafe passage along and about the aisles and display counters where customers and invitees were expected to go, thus creating a danger which in the exercise of ordinary care was not observable by the plaintiff but of which the defendant was chargeable with notice and failed to exercise due care to give plaintiff warning; and (2) that the plaintiff slipped and fell at a place in the aisle where, from want of due care on the part of the defendant, the oily substance had been applied in excessive quantity or left wet upon the floor without timely notice, and that the plaintiff's fall and injuries resulted from the unsafe condition so created and existing, and were proximately caused by the improper and negligent manner in which the oily floor dressing was so applied or left by the defendant on the floor without notice to the plaintiff.
That the evidence offered below is sufficient to carry the case to the jury is supported by well-considered decisions of this Court, among which these seem to be closely in point: Bowden v. S. H. Kress & Co., supra; Parker v. Tea Co., supra; Anderson v. Reidsville Amusement Co., 213 N.C. 130, 195 S.E. 386. Also, for numerous supporting decisions from other jurisdictions, see Annotations: 33 A.L.R. 181; 43 A.L.R. 866; 46 A.L.R. 1111; 100 A.L.R. 710; 162 A.L.R. 949.
*36 In Parker v. Tea Co., supra [201 N.C. 691, 161 S.E. 209], the controlling facts are strikingly similar to those shown by the evidence in the instant case. In the Parker case, the plaintiff slipped and fell in a grocery store as she was walking toward the meat counter. The fall occurred on Monday morning after the floor had been oiled the previous Saturday night. The gist of plaintiff's narrative of the occurrence is as follows: " `Both feet slipped out from under me. * * * There was a damp place on the floor, looked like oil. It appeared to be oil and had dried more in some places than in others. Where I stepped was one of the damp places. Some of the planks at this place looked practically dry, and then there were streaks on them that looked damp as if it was damp with oil and it was more so in the place where I walked. * * * There seemed to be on part of the boards little streaks that didn't seem to be perfectly dry. I could detect the exact point where I slipped and at that point there was a greater accumulation of oil * * * My hose had a big spot of oil on them.'" The evidence offered was held sufficient to support the inference that the floor was improperly oiled, and Bowden v. S. H. Kress & Co., supra, was cited as controlling authority.
The defendant seeks to distinguish the instant case from Parker v. Tea Co., supra, on the ground that here there is no direct evidence, as in the Parker case, that the defendant had caused the floor to be oiled. True, in the instant case, the plaintiff offered no direct testimony respecting when or by whom the alleged oily dressing was applied to the floor, or concerning the exact descriptive character of the substance found on the floor. Nor did anyone testify concerning the mode of procedure followed in applying the oil.
However, where, as here, a complaining party offers evidence tending to show a slick, oily floor condition, existing under circumstances pointing to some general type of previous oil treatment, showing fresh oil in some places and dry in others, thus indicating the application or accumulation of more oil in some places than others, we think the case may not be withdrawn from the jury simply because the plaintiff or her witnesses did not see the oil applied or know when or by whom it was applied or relate the precise details respecting the kind and quantities of oil applied or the mode of procedure followed in applying it. Where the facts in respect to these things are reasonably inferable from the plaintiff's evidence, as in the present case, it is not imperative, under pain of suffering a nonsuit, that the plaintiff go further and indulge in the exploratory procedure of looking for bystanders who were present when the floor was oiled, or calling to the stand employees of the defendant who may have first hand knowledge of the method followed in applying the oil. The essentials of a prima facie case do not require any such intensity of proofs nor precision as to details. 38 Am. Jur., Negligence, Sec. 333; 65 C.J.S., Negligence, § 243, pp. 1068 and 1074; Hulett v. Great Atlantic & P. Tea Co., 299 Mich. 59, 299 N.W. 807; Bennesch & Sons v. Ferkler, 153 Md. 680, 139 A. 557, cited in Bowden v. Kress & Co., supra.
In the instant case the existence of these elements of actionable negligence are reasonably inferable from the whole of the evidence. Pertinent as bearing thereon are these portions of the testimony of the plaintiff's husband, who said he examined the floor: "I looked all over it * * * all the way across it was greasy. * * * In some places grease and smudges on the floor were heavier * * * than in others. * * * In some places the oil or grease on the floor appeared to be dry. * * * It appeared to be fresh at some spots and dry at others. * * * The place where I observed my wife had fallen was slick."
Also, an examination of the facts in Parker v. Tea Co., supra, discloses that the direct evidence that the floor was oiled, as well as the details of the procedure followed in applying the oil, was introduced by the defendant after the plaintiff had offered her evidence and rested her case, and it is apparent that the evidence so offered by the *37 defendant was not of controlling or decisive importance on the question of nonsuit in the Parker case.
Factually distinguishable are the cases relied on by the defendant, chiefly among which are: Pratt v. Tea Co., supra; Fanelty v. Rogers Jewelers, Inc., 230 N.C. 694, 55 S.E.2d 493; Barnes v. Hotel O. Henry Corp., 299 N.C. 730, 51 S.E.2d 180, 181.
In Pratt v. Tea Co., supra, the evidence disclosed a greasy, dirty looking spot about 10 inches long and 7 or 8 inches wide. There was no evidence tending to show that the store floor had been oiled or that the spot was a part of or had its origin in any general type of oil treatment of the floor. Therefore, nothing else appearing, it was not inferable that the greasy spot was either (1) created by the defendant, or (2) had been there long enough for the defendant, in the exercise of ordinary care, to have discovered and removed it, or given warning of its existence. Thus, for want of these crucial proofs, the nonsuit below was affirmed.
Similarly, in Fanelty v. Rogers Jewelers, Inc., supra, the evidence disclosed that the plaintiff slipped on a slick spot or place on the terrazzo entryway outside the defendant's store door. There was no evidence to show who, if anyone, had placed a foreign substance of any kind on the floor of the entryway. It was not disclosed how long the slick spot had been there, nor did it appear to be part of a general type of oil, wax, or like treatment. Hence, in the absence of evidence as to how long the slick spot had been present, no inference of negligence on the part of the defendant was deducible from the single fact of a slippery spot on the terrazzo floor outside the defendant's door.
In Barnes v. Hotel Corp., supra, the plaintiff slipped on the marble floor in the hall entryway to the elevators on the third floor of the O. Henry Hotel in Greensboro. There, the nonsuit below was sustained for want of any evidence, direct or circumstantial, tending to show that "any unusual material had been used in cleaning or polishing the floor or that such material had been applied in an improper, unusual or negligent manner." It also appeared that the plaintiff had been a regular guest of the hotel for about 12 years, and she testified that she came out of her room to the elevator entrance "she looked at the whole area and saw nothing out of the ordinary."
A number of decisions relied on by the defendant involve hazardous conditions which reasonably may have been produced by the act of a third party or weather conditions, or by other causes over which the storekeeper had no direct controllike puddles of loose oil or spots made by other foreign substancesunder circumstances requiring the plaintiff to prove that the defendant proprietor was chargeable with notice of the dangerous condition. See Fanelty v. Rogers Jewelers, Inc., supra; Pratt v. Tea Co., supra; and cases cited.
In the instant case, however, there is no such factual background. Here, the evidence is sufficient to support the inference that the hazardous condition complained of was created by or under the direction or sufferance of the defendant in connection with a general application of floor oil; therefore if such permissive inference should be drawn by the jury, then it follows as a necessary corollary that knowledge of the hazardous condition so created by the defendant would be inferred. In such circumstances, it would be far afield to say that a defendant might by his own act create a hazardous condition and then demand that one injured thereby should be required to prove the defendant's knowledge of such condition. It is elementary in the trial of negligence cases that where the alleged dangerous condition is shown to have been created by the person claimed to be liable, no further notice to him is necessary. No one needs notice of that which he knows. 65 C.J.S., Negligence, § 5, p. 354; Hulett v. Great Atlantic & Pacific Tea Co., supra; Bury v. F. W. Woolworth Co., 129 Kan. 514, 283 P. 917. What is here said is in accord with the rule of liability defined and applied in Pratt v. Great Atlantic & Pacific Tea Co., supra.
For the reasons stated, the judgment below is
Reversed.
*38 BARNHILL, Justice (dissenting).
There is ample evidence in the record tending to show that the defendant's basement floor was oily at the place where plaintiff says she fell, and that the oil proximately caused her fall. But how long had the oil been on the floor at the time of the accident? This the record does not disclose. Who put the oil on the floor? As to this the record is silent. Plaintiff did not undertake to show who put the oil on the floor or how long it had been there. Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242.
All agree that, to establish negligence on the part of the defendant, plaintiff must offer some evidence tending to show either that one of defendant's employees oiled the floor in such a careless and negligent manner that it created an unnecessary and additional hazard to customers entering the building, or that the additional hazard, being created by a third party, had existed for such a length of time that the owner knew or by the exercise of ordinary care should have known of its existence. Such proof is essential to plaintiff's cause of action. As I read the record she has failed in this respect to make out a case for the jury.
The majority opinion is not sustained by the authorities cited. In Parker v. Great Atlantic & Pacific Tea Co., 201 N.C. 691, 161 S.E. 209, and Anderson v. Reidsville Amusement Co., 213 N.C. 130, 195 S.E. 386, there was evidence that the slippery substance was applied by one of defendant's employees. In Bowden v. S. H. Kress & Co., 198 N.C. 559, 152 S.E. 625, there was evidence that the unsafe condition had existed for more than a weeka time within which the defendant in the exercise of ordinary care should have discovered and eliminated the hazard. The numerous cases listed in the A.L.R. annotations cited in the majority opinion likewise follow the same rule; that is, the plaintiff must show that the hazard was created by the defendant or had existed for such a length of time that he knew, or in the exercise of ordinary care should have known of its existence.
This case takes us a bowshot beyond any decision we have heretofore rendered. It holds, in effect, that when plaintiff proves there was oil or some other slippery substance on the floor where she fell the jury may, from this fact alone infer that it was placed there by the owner or one of his employees. To this I cannot agree. I therefore vote to affirm.
WINBORNE and DENNY, JJ., concur in dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2218450/ | 126 Ill. App. 2d 165 (1970)
261 N.E.2d 525
People of the State of Illinois, Plaintiff-Appellee,
v.
Andrew Johnson, Defendant-Appellant.
Gen. No. 54,176.
Illinois Appellate Court First District, Second Division.
June 2, 1970.
Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos, Assistant Public Defender, of counsel), for appellant.
Edward V. Hanrahan, State's Attorney of Cook County, of Chicago (Elmer C. Kissane, Paul P. Biebel, Jr., and John F. Glenville, Assistant State's Attorneys, of counsel), for appellee.
(Abstract of Decision.)
Opinion by JUSTICE BURKE.
Judgment affirmed.
Not to be published in full. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2429261/ | 204 F. Supp. 2d 270 (2002)
LATIN AMERICAN MECHANICAL RIGHTS COLLECTION AGENCY, INC., Plaintiff,
v.
MARTI, FLORES, PRIETO & WACHTEL ADVERTISING, INC., et al., Defendants.
Civil No. 98-1534 (JAG).
United States District Court, D. Puerto Rico.
May 9, 2002.
*271 Edgardo R. Jimenez-Calderin, Luis E. Palacios, Jimenez Calderin & Carrasquillo, San Juan, PR, for Plaintiffs.
Arturo J. Garcia-Sola, Roberto C. Quinones-Rivera, McConnell Valdes, San Juan, PR, for Defendants.
OPINION AND ORDER
GARCIA-GREGORY, District Judge.
The Court has before it defendant Martí, Flores, Prieto & Wachtel Advertising, Inc.'s ("Martí") objections to Magistrate-Judge Aida Delgado's March 27, 2002 report and recommendation. Since Martí prevailed on its request for dismissal as to Counts Two and Three of the Complaint, it has confined its objections solely as to the Magistrate-Judge's recommendation regarding Count One of the Complaint.[1] (Docket No. 54 at 3.) The Magistrate-Judge recommended dismissal of Count One without prejudice, and further recommended that the Court afford plaintiff Latin American Rights Collection Agency, Inc. ("LAMRICA") an opportunity to amend the Complaint "should it so desire." (Docket No. 48 at 19.) Upon a review of the record, the Court will adopt the report and recommendation, but will modify the recommendation to dismiss Count One with prejudice.
FACTUAL BACKGROUND
Since the Court has already adopted the Magistrate-Judge's report and recommendation as to Counts Two and Three, the factual recitation will focus solely on those facts underpinning Count One.[2] Simply stated, Count One alleges that defendants are liable for copyright infringement, pursuant to 17 U.S.C. § 101 et seq., as a result of their allegedly unauthorized use of the song "Represento." Martí moved for dismissal, inter alia, on jurisdictional grounds, claiming that LAMRICA lacked standing to bring its claim, since it had allegedly failed to establish ownership of a proprietary right, through a chain of title, to the copyright of the song. Moreover, Martí argued that LAMRICA's copyright claim was fatally flawed because LAMRICA had not established exclusive rights to the song, and was therefore precluded from seeking relief on those grounds.
Initially, LAMRICA had alleged that it was the author and sole owner of the song. (Docket No. 1.) Shortly after Martí filed its dispositive motion (which first raised the chain-of-title issue), however, LAMRICA sought and obtained leave to file a First Amended Complaint, purportedly to correct the error. (Docket Nos. 12, 21, 22.) Accordingly, the First Amended Complaint alleged that Lou Briel Music, Inc. was the owner of the song, and that LAMRICA had become the beneficial owner of the song in April, 1993, through written contract with Lou Briel Music. (Docket No. 22.) LAMRICA expressly argued that the First Amended Complaint had disposed of the chain-of-title problem. (Docket No. 13 at 1-2.)
Martí, however, believed otherwise. On November 25, 1998, it filed a supplemental *272 memorandum to its motion to dismiss (Docket No. 25), again contending that LAMRICA had failed to establish ownership of the song through chain of title. On January 11, 1999, LAMRICA opposed Martí's motion, claiming that "[t]here [were] no flaws in the [amended] complaint as to the chain of title." (Docket No. 28 at 2.) As a result, LAMRICA stood on the chain of title allegation made in the Complaint as sufficient to endow it with standing to sue.
The Magistrate-Judge essentially agreed with Martí. (Docket No. 48 at 11-12.) The Complaint's allegations, she said, "[did] not clearly trace the chain of title." (Id. at 11.) Other than establishing the song's author (José Loubriel Díaz), the Magistrate-Judge found the rest of the chain of title claim to be "murky" and unclear. Id. As a result, she recommended that the Court dismiss Count One without prejudice.[3]Id. at 12.
Martí timely filed objections to the report and recommendation on April 29, 2002. (Docket Nos. 51, 52, 54, 57.)
STANDARD OF REVIEW
A district court may, on its own motion, refer a pending matter to a United States Magistrate-Judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Rule 503, Local Rules, District of Puerto Rico. Pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 510.2, the adversely affected party may contest the report and recommendation by filing written objections "[w]ithin ten days of being served" with a copy of the order. 28 U.S.C. § 636(b)(1). The Court must then make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. See United States v. Raddatz, 447 U.S. 667, 673, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Lopez v. Chater, 8 F. Supp. 2d 152, 154 (D.P.R. 1998). The Court may accept, reject or modify, in whole or in part, the Magistrate-Judge's recommendations. "Failure to raise objections to the Report and Recommendation waives [that] party's right to review in the district court and those claims not preserved by such objection are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992) (citations omitted).
DISCUSSION
The main issue here is whether the Court should dismiss Count One without prejudice and afford LAMRICA yet another opportunity to amend its Complaint.[4] Based on its review of the record, the Court is not inclined to do so. As an initial matter, the Court concurs with the Magistrate-Judge's assessment regarding LAMRICA's chain of title claim: it is murky and unclear at best, and it does not establish LAMRICA's chain of title to an exclusive right under the copyright at issue. Had LAMRICA not received a prior opportunity to cure any alleged deficiencies in the chain of title, the Court might be more favorably disposed to dismiss Count One without prejudice. Here, however, LAMRICA received an opportunity to amend its Complaint, and, when challenged, it expressly stood on its allegations as sufficient to establish chain of title. See Docket No. 28 at 2 (claiming that "[t]here are no flaws in the [amended] complaint as to the chain of title").
*273 The deficiencies in the chain of title could not have come as a surprise to LAMRICA, since Martí detailed them extensively in its Court filings on this score. Despite having ample opportunity to amend its Complaint to properly establish its chain of title, LAMRICA chose to do nothing, insisting that it had pled chain of title appropriately. The Court believes that it would serve no useful purpose to allow LAMRICA to amend its Complaint at this juncture.
"While leave to amend shall be freely given when justice so requires ... the liberal amendment policy prescribed by Rule 15(a) does not mean that leave will be granted in all cases." Rivera Velez v. PREPA, 201 F.R.D. 289, 290-91 (D.P.R. 2001) (citing Invest Almaz v. Temple-Inland Forest Products Corp., 243 F.3d 57, 71 (1st Cir.2001)). LAMRICA clearly has no right to a second amended Complaint, see Fed.R.Civ.P. 15(a), and this is not a case "where justice so requires," id., even apart from the Court's previously expressed doubts whether a second amended Complaint would cure the defects of the first. Since LAMRICA was allowed to amend its Complaint once already, the Court declines to exercise its discretion to allow LAMRICA to do so again, particularly when its own filings show that further amendments would prove futile. See Acosta-Mestre v. Hilton Int'l of Puerto Rico, Inc., 156 F.3d 49, 51 (1st Cir.1998); Matter of Corland Corp., 967 F.2d 1069, 1079 (5th Cir.1992); Littlefield v. City of Afton, 785 F.2d 596, 609 (8th Cir.1986); Fidelity Fin. Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir.1986); Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir.1980); Denny v. Barber, 576 F.2d 465, 471 (2d Cir.1978); McGovern v. American Airlines, Inc., 511 F.2d 653, 654 (5th Cir.1975).
Here, plaintiff has shown through its actions "no inclination to cure the jurisdictional defect even though on notice of the defect...." McGovern, 511 F.2d at 654. LAMRICA had sufficient opportunity to state a claim, but failed to do so. See Acosta-Mestre, 156 F.3d at 51 (listing "undue delay" as one of the grounds for declining to allow leave to amend). Accordingly, the Court will grant Martí's motion for to dismiss as to Count One, and will dismiss the claim with prejudice.
CONCLUSION
For the foregoing reasons, the Court adopts the Magistrate-Judge's report and recommendation of dismissal as to Count One. Dismissal of Count One, however, shall be with prejudice. The report and recommendation shall be so modified. Judgment will enter accordingly.
IT IS SO ORDERED.
NOTES
[1] On April 25, 2002, the Court adopted the Magistrate-Judge's report and recommendation as to Counts Two and Three of the Complaint. (Docket No. 55.) The Court entered partial judgment on that same date. (Docket No. 56.)
[2] The report and recommendation, Docket No. 48, contains a more detailed factual background section at pages 1-7.
[3] In doing so, the Magistrate-Judge deferred Martí's argument regarding LAMRICA's alleged lack of exclusive rights.
[4] Given its ruling, the Court does not reach Martí's argument regarding LAMRICA's lack of exclusive rights to the song at issue here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265261/ | 185 Cal. App. 4th 1235 (2010)
ARCHIE WILLIAM SCHAFFER, JR., Petitioner,
v.
THE SUPERIOR COURT OF VENTURA COUNTY, Respondent;
THE PEOPLE, Real Party in Interest.
No. B217743.
Court of Appeals of California, Second District, Division Six.
June 23, 2010.
*1237 Law Office of Anthony D. Zinnanti and Anthony D. Zinnanti for Petitioner.
No appearance for Respondent.
Gregory Totten, District Attorney, and Michelle J. Contois, Deputy District Attorney, for Real Party in Interest.
OPINION
COFFEE, J.
Penal Code section 1054.1 requires the prosecution to disclose certain types of evidence and information to the defendant or to his or her attorney.[1] Here, a defendant who has retained counsel demands that the prosecution furnish him copies of these discoverable items free of charge. We conclude that section 1054.1 imposes no such duty on the prosecution. The People comply with section 1054.1 by affording the defendant an opportunity *1238 to examine, inspect, or copy the discoverable items. A nonindigent defendant may receive at his or her own expense copies of discovery made available by the People.
Archie William Schaffer, Jr., seeks extraordinary relief to set aside an order of the superior court denying his motion to compel the People to provide copies of discovery mandated by section 1054.1 free of charge. We deny his petition.
PROCEDURAL BACKGROUND
Schaffer was charged in a felony complaint with making criminal threats (§ 422), reckless driving (Veh. Code, § 23103, subd. (a)), and street terrorism (§ 186.22, subd. (a)). As to the first count, the People alleged that he committed the act for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), the Hells Angels Motorcycle Club, and personally used a firearm (§ 12022.5, subd. (a)). Schaffer is represented by privately retained counsel.
In May 2009, two days prior to the preliminary hearing, the prosecution informed Shaffer's counsel that 70 pages of telephone records and information were available as items for discovery. According to a written policy of the district attorney's office, photocopies of documents produced as part of the People's statutory discovery obligations are provided to the public defender and conflict defense attorneys at 3 cents per page. The office charges privately retained counsel a duplication fee of 15 cents per page. Defense counsel declining to purchase a copy may make arrangements to view discovery at the district attorney's office. In that event, the district attorney's office supervises the inspection of the materials disclosed to protect against fraud or theft. Alternatively, defendants or their counsel may bring photocopy or scanning equipment to the district attorney's office to photocopy or digitally scan the documents produced, or have a licensed photocopy service make copies. The district attorney's office charges $1.65 for duplication of cassette tapes and $5 for each "CD" or "DVD." Initial discovery packets in misdemeanor cases are provided at no charge, but copies of subsequent discovery materials are charged at the rates indicated above.
On May 15, 2009, the date set for the preliminary hearing, Schaffer's counsel filed, among other things, a motion to abate discovery costs. Schaffer moved to continue the preliminary hearing to permit his counsel time to *1239 examine the discovery. His motion for a continuance was denied, but his counsel was permitted 20 minutes to review the discovery. Schaffer's counsel went to the district attorney's office to retrieve the discovery and was given an invoice in the amount of $10. Counsel declined to pay the bill and told the staff he had filed a motion to abate discovery costs. The district attorney's staff informed counsel that the discovery could be viewed in the lobby in the presence of an investigator, but the items could not be taken absent payment.
To avoid being tardy for the preliminary hearing, Schaffer's counsel returned to the courtroom without reviewing the discovery. Thereafter, Schaffer's counsel informed the trial court that, although the People did not intend to introduce at the preliminary hearing items included in the discovery packet, Schaffer was prejudiced because counsel had no choice but to proceed with the preliminary hearing without knowing whether or not there was exculpatory information in the discovery packet which could be introduced at the preliminary hearing. The prosecutor responded, "We're intending to provide discovery to the defense. Our obligation is to provide it, not necessarily copy it and send them copies. They can come and review it. Our policy is . . . to send copies of all the discovery, including audio CD's and the like, for the nominal fee of producing the discovery. It's not being used as a sword in any way."
The trial court deferred ruling on Schaffer's motion to abate the costs of discovery and, following the preliminary hearing, bound Schaffer over for trial. Schaffer's counsel states that he had no opportunity to cross-examine prosecution witnesses with respect to what was included in the discovery packet.
On June 24, 2009, the trial court conducted a hearing on Schaffer's motion to abate discovery costs. Schaffer's counsel argued that, to date, he had been billed a total of $185 in two matters ($40 in Schaffer's case). He noted that it was not practical for him to sit in the district attorney's office with his client, in the presence of the People's investigator, and review discovery documents. He stated, "If I had to interview my client in the course of reviewing the discovery, or if I had to talk to an expert . . . clearly any such conversation is going to be audible to any investigator for the People who's sitting there in the presence of reviewing the discovery. [¶] . . . I don't see how I can maintain an attorney-client privilege or generate . . . attorney-client work product while I have one of the People's investigators looking over me . . . ." Schaffer's counsel argued that the district attorney's policy of requiring the *1240 defendant to pay for duplication of discovery depletes the resources needed to furnish a defense.
Schaffer's counsel further argued that if the trial court condoned the policy of the district attorney's office it would result in a plethora of discovery disputes the courts would have to resolve. He questioned whether the court would require the district attorney's office to come to his office and pay for duplication costs. He inquired how much the court would allow him to charge the People for duplication costs.
In opposition, the prosecutor argued, "We have a duty to disclose, not a duty to deliver. And the fees that are charged . . . are nominal. In dispute currently in this case is approximately $45 to $50 worth of discovery costs."
In denying the motion the trial court stated, "I don't see any deprivation of any significant rights of the defendant in the policy in general or in this case in particular based on what I've heard so far. [¶] And although there's no express statutory authority to do what the D.A.'s doing, I don't see any authority saying they can't do it either."
Schaffer's counsel then questioned the court as to whether he could charge the People for 400 pages of discovery he would be turning over. The court declined to answer his question, stating that "to ripen this issue, you need to tender the discovery and the D.A. needs to make a motion if they feel you're not tendering it properly."
In July 2009, petitioner filed the instant petition for a writ of mandate. On July 30, 2009, we summarily denied his petition. Thereafter, petitioner sought review of our order denying his petition in the California Supreme Court.
In September 2009, Schafer was tried by a jury and acquitted of three felony counts. The remaining counts were dismissed.
On October 16, 2009, the Supreme Court granted Schaffer's petition for review and transferred this matter back to us with instructions to issue an order to show cause as to why the imposition of a fee for cost of duplicating discovery materials subject to mandatory disclosure is permissible pursuant to section 1054 et seq.
DISCUSSION
Schaeffer contends the trial court erred in refusing to compel the district attorney's office to provide copies of discovery mandated by section 1054.1. He argues that "[p]roduction of discovery is a fundamental duty of both sides *1241 in a criminal prosecution," and that no case or statute authorizes billing of costs associated with discovery in a criminal case. He contends the People's statutory obligation to disclose is only meaningful if the prosecutor provides copies of the documents to the defendant.
Schaffer disputes the People's contention that making the documents "available for review" satisfies the People's statutory obligation. "Availability" of the material for review here, he argues, entailed the full view of the prosecution's investigator. He suggests that permitting the prosecution to condition production of discovery on payment of costs or otherwise limiting review absent payment, "opens a proverbial `Pandora's box,' which will ultimately serve to frustrate exchange of information and mire the courts in discovery cost disputes, all of which have nothing to do with the business of criminal courts." He argues that imposition of prosecution costs upon a defendant in other contexts has been disallowed. (See, e.g., In re Sean R. (1989) 214 Cal. App. 3d 662 [262 Cal. Rptr. 884] [trial court has no authority to condition grant of continuance on payment of prosecution's witness fees].)
Preliminarily, the People assert that the issue raised in this petition is moot because Schaffer has since been acquitted of the criminal charges. Because the issue is a matter of public interest and may likely recur, we will resolve the issue. (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal. 3d 858, 868-869, fn. 8 [239 Cal. Rptr. 626, 741 P.2d 124]; Beilenson v. Superior Court (1996) 44 Cal. App. 4th 944, 948-949 [52 Cal. Rptr. 2d 357].)
The district attorney's office contends it may charge reasonable reproduction costs associated with the production of mandated discovery. The 15-cent duplication fee is the same fee charged by Ventura County for copies provided in response to California Public Records Act (Gov. Code, § 6250 et seq.) requests. The People state that at least 35 counties in California currently charge either a nominal fee for duplication of documents or digital media, or have an exchange program in place whereby defendants provide paper or digital media in exchange for copies reproduced on the same.[2] The People state that prosecutors' offices in several other states engage in similar cash or kind reimbursement for duplication of discovery items.[3]*1242 Federal prosecutors also charge a fee for duplication of discoverable materials. (See Fed. Rules Crim.Proc., rule 16(a)(1)(C), 18 U.S.C.A.; U.S. v. Freedman (11th Cir. 1982) 688 F.2d 1364, 1366-1367 [trial court abused its discretion in granting the defendants' discovery motion and requiring the government to supply at its expense copies of discovery documents for nonindigent defendants].)
(1) In 1990, the voters of California adopted Proposition 115, the "Crime Victims Justice Reform Act." Proposition 115 added constitutional and statutory language authorizing reciprocal discovery in criminal cases and a new chapter in the Penal Code on the subject (§ 1054 et seq.). As a result of Proposition 115, discovery in criminal cases is now governed primarily by statutory law. (In re Littlefield (1993) 5 Cal. 4th 122, 129-130 [19 Cal. Rptr. 2d 248, 851 P.2d 42].) Section 1054 provides, in part, that the chapter shall be interpreted to promote the ascertainment of truth in trials by requiring timely pretrial discovery, to save court time by requiring that discovery be conducted informally between the parties before judicial enforcement is requested, and "[t]o provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States."
Section 1054.1 provides that the prosecuting attorney "shall disclose" to the defendant certain materials and information listed in subdivisions (a) through (f) of that section. Section 1054.3 provides reciprocal discovery obligations for the defense. These statutes do not specify the means by which the parties must "disclose" discoverable information to each other, or specify that the party making disclosure must produce a copy of the discoverable item for the benefit of the opposing party. No court has interpreted the prosecutor's duty to disclose under section 1054.1 to include the responsibility of furnishing photocopies or other materials to a defendant at taxpayer expense. The ordinary meaning of the word "disclose" is to "divulge," "open up," "expose to view," or to "make known." (Webster's 3d New Internat. Dict. (1993) p. 645, capitalization omitted.)
Prior to the enactment of Proposition 115 and section 1054.1, criminal discovery was governed primarily by case authority. Two statutes that did govern discovery, former sections 859 (amended by Stats. 1985, ch. 877, § 1, p. 2820) and 1102.5 (repealed by 1990 legislative Prop. 115), both specified that the prosecution's discovery obligation could be fulfilled by making the information available "for inspection and copying." (See, e.g., the 1986 version of § 859 ["[t]he prosecuting attorney shall deliver to, or make accessible for inspection and copying by, the defendant or counsel, copies of the police, arrest, and crime reports, upon the first court appearance of counsel . . ."]; the 1986 version of § 1102.5 ["[t]he prosecution shall make *1243 available to the defendant, as soon as practicable, all evidence, including the names, addresses and statements of witnesses, which was obtained or prepared as a consequence of obtaining any discovery or information pursuant to this section"].) Numerous cases discussing the prosecution's duty to disclose under former sections 859 and 1102.5 referred only to the duty to allow defendants to view, inspect, and copy the materials. (Hill v. Superior Court (1974) 10 Cal. 3d 812, 817 [112 Cal. Rptr. 257, 518 P.2d 1353] [inspect]; People v. Garner (1961) 57 Cal. 2d 135, 142 [18 Cal. Rptr. 40, 367 P.2d 680] [defense counsel entitled to "inspect, view, hear, or copy" statements made by defendant].) Enactment of the current discovery statutes, section 1054 et seq., did not alter the prosecution's duty to make discovery available.
(2) Both the United States and California Supreme Courts have held that a criminal defendant does not possess a general constitutional right to discovery. "There is no general constitutional right to discovery in a criminal case, and Brady did not create one . . . ." (Weatherford v. Bursey (1977) 429 U.S. 545, 559 [51 L. Ed. 2d 30, 97 S. Ct. 837]; see Gray v. Netherland (1996) 518 U.S. 152, 168 [135 L. Ed. 2d 457, 116 S. Ct. 2074]; Alvarado v. Superior Court (2000) 23 Cal. 4th 1121, 1135 [99 Cal. Rptr. 2d 149, 5 P.3d 203].) Instead, the Fourteenth Amendment compels "disclosure" of material evidence favorable to the defendant. (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L. Ed. 2d 215, 83 S. Ct. 1194]; District Attorney's Office for Third Judicial Dist. v. Osborne (2009) 557 U.S. ___, ___ [174 L. Ed. 2d 38, 129 S. Ct. 2308, 2319] ["[In Brady], we held that due process requires a prosecutor to disclose material exculpatory evidence to the defendant before trial."].) This principle is illustrated by cases approving "open file" discovery policies.
For example, in People v. Zambrano (2007) 41 Cal. 4th 1082 [63 Cal. Rptr. 3d 297, 163 P.3d 4], the defendant, in a death penalty case, contended he was prejudiced by the prosecutor's delay in disclosing a letter sent by his sister to the prosecutor expressing fear of the defendant, claiming he had been born insane, that he was incurable and untreatable, and he would kill again. The letter was discovered by the defense before the end of the guilt phase, but was not introduced at trial. The defendant was convicted of murder and sentenced to death.
(3) On appeal, the defendant contended the prosecution's failure to disclose the letter constituted both a Brady violation and a violation of the criminal discovery statutes. The Supreme Court rejected the contention, noting that the letter to the prosecutor had been placed in the prosecutor's file and the prosecutor had invited the defense attorney to go through all the prosecutor's files to make sure that everything had been turned over to the defense. The court concluded that the prosecutor's open file policy complied with the prosecution's duty to disclose exculpatory evidence under the Brady *1244 rule and also under the criminal discovery statute. "[T]he prosecutor's Brady obligation may, under proper circumstances, be satisfied by an `open file' policy, under which defense counsel are free to examine all materials regarding the case that are in the prosecutor's possession. [Citations.] . . . [¶] . . . For all that appears, the letter was in the prosecutor's files, and would have been revealed by a timely, practicable examination of those files pursuant to the prosecutor's multiple invitations. Accordingly, defendant fails to demonstrate a Brady violation. Because we see no reason to assume the reciprocal discovery statute imposed greater burdens on the prosecutor, we reach a similar conclusion as to defendant's claim of a statutory violation."[4] (People v. Zambrano, supra, 41 Cal.4th at pp. 1134-1135, overruled on another point in People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22 [87 Cal. Rptr. 3d 209, 198 P.3d 11].)
So who pays for the costs of producing copies of discoverable materials when the prosecutor elects to provide access to the defense to inspect and read? The Attorney General recently concluded that unless the prosecutor voluntarily provides copies of discoverable materials without any agreement with the defendant as to payment of costs for producing those copies, the prosecutor is not under an obligation to provide copies, and payment for providing copies would require the mutual agreement of the parties. (85 Ops.Cal.Atty.Gen. 123 (2002).) The Attorney General reasoned that "[s]ection 1054.1 omits any duty by the prosecution to furnish copies of discoverable materials. It has long been held that the prosecution satisfies its burden of disclosure if the defense may inspect, view, hear, or copy discoverable materials. (See People v. Garner (1961) 57 Cal. 2d 135, 142-143 [18 Cal. Rptr. 40, 367 P.2d 680]; see also Joe Z. v. Superior Court (1970) 3 Cal. 3d 797, 803 [91 Cal. Rptr. 594, 478 P.2d 26] [defense may inspect and copy].) . . . It is sufficient, therefore, that the prosecution affords the defense the opportunity to inspect the materials, allowing the defense to make its own copies if it chooses." (85 Ops.Cal.Atty.Gen., supra, at p. 127.) The Attorney General opined that "[t]he prosecution and defense are free to negotiate and agree upon the payment of a fee for copies of discoverable materials. Nothing in the discovery statutes would prevent the prosecution and defense from reaching an agreement, reimbursing the prosecution for its costs of copying the materials." (Id. at p. 128.)
(4) Section 987 authorizes the appointment of counsel for indigents in criminal cases. The responsibility for bearing the costs of providing legal services to indigent criminal defendants rests upon the county, either through the public defender, through its conflicts panel, or through its general fund. *1245 (§ 987.2, subd. (a) [cost of appointed counsel to be paid out of the general fund of the county].) The county is entitled to recoup those costs from indigent defendants who are later determined to have the ability to pay some or all of the costs of their defense. (§ 987.8.) Section 987.8 reflects a strong legislative policy of preserving scarce financial resources by shifting the costs of trial from the county taxpayers to the defendant when the defendant has the financial ability to pay some or all of those costs. (People v. Smith (2000) 81 Cal. App. 4th 630, 641 [96 Cal. Rptr. 2d 856].)
A criminal defendant who has established his indigent status is constitutionally entitled to those defense services for which he demonstrates a need. (People v. Worthy (1980) 109 Cal. App. 3d 514, 520 [167 Cal. Rptr. 402].) Necessary expenses for a criminal defense can include discovery costs, investigative costs, transcript costs, expert fees, etc. (See § 987.8, subd. (g)(1) ["`[l]egal assistance' means legal counsel and supportive services including, but not limited to, medical and psychiatric examinations, investigative services, expert testimony, or any other form of services provided to assist the defendant in the preparation and presentation of defendant's case"].)
Just as a nonindigent criminal defendant can be required to pay for the costs associated with his defense, including attorney's fees, we conclude it does not offend the Constitution to require a nonindigent defendant to pay reasonable fees for duplicating discovery materials disclosed by the district attorney pursuant to section 1054.1.
In the event a defendant or his counsel chooses not to pay reasonable duplication fees, the district attorney must make reasonable accommodations for the defense to view the discoverable items in a manner that will protect attorney-client privileges and work product. There are many ways to achieve this. By way of example, the district attorney could allow the defendant and his counsel to view the items in private or in a discrete location where their conversation would not be overheard by the district attorney's staff but precautions could be made to protect against theft or destruction. We assume the parties and their counsel will conduct themselves according to the high standards the legal profession demands. Should any dispute arise over the accommodations, we are confident the trial court will know how to resolve it.
(5) Here, Schaffer is represented by retained counsel. He moved the trial court to "abate" the discovery charges, but did not contend or demonstrate that he was indigent or otherwise entitled to have the county pay for the costs associated with his defense. The trial court did not err or abuse its discretion in denying his motion.
*1246 DISPOSITION
The petition for a writ of mandate is denied. The order to show cause, having served its purpose, is discharged.
Gilbert, P. J., and Perren, J., concurred.
NOTES
[1] All statutory references are to the Penal Code unless otherwise stated.
[2] According to the People, these counties include Alpine, Amador, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Imperial, Kern, Kings, Marin, Mendocino, Merced, Modoc, Mono, Monterey, Napa, Orange, Placer, Plumas, Riverside, Sacramento, San Diego, San Francisco, San Joaquin, San Luis Obispo, Santa Barbara, Santa Cruz, Sierra, Siskiyou, Sutter, Trinity, Tulare, Ventura, Yolo, and Yuba.
[3] According to the People, these states include Alabama, Alaska, Arizona, California, Colorado, Florida, Illinois, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, Montana, New York, North Dakota, Oklahoma, Oregon, Texas, and Wisconsin.
[4] The court noted the result might be different if the prosecutor had used the policy to impose impracticable or unduly oppressive self-discovery burdens on the defense. (People v. Zambrano, supra, 41 Cal.4th at p. 1134.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266797/ | 4 F.Supp. 613 (1933)
HAT CORPORATION OF AMERICA
v.
D. L. DAVIS CORPORATION.
No. 2263.
District Court, D. Connecticut.
June 23, 1933.
*614 *615 *616 *617 *618 Parmelee & Thompson (by Henry F. Parmelee), of New Haven, Conn., and Briesen & Schrenk (by Hans v. Briesen), and Karl Pohl, all of New York City, for complainant.
Lind, Shlivek, Marks & Brin (by Max Shlivek), of New York City, and Cummings & Lockwood, of Stamford, Conn., for defendant.
HINCKS, District Judge (after stating the facts as above).
Although I have separately stated the facts of this case and my controlling conclusions, the importance of the case, and, even more, the importance of the principles of law involved, seem to me to justify a fuller discussion.
The first glimpse of the facts discloses that Wm. H. Dobbs has no part in the corporate organization of the defendant. Yet, the defendant is distributing its product under his name. Such use by the defendant of the name of one not a part of its organization, in view of its close similarity to the name "Dobbs," so long used by the plaintiff and its predecessors and so thoroughly established as indicating the plaintiff's product, clearly gives rise to an inference of fraud. This inference must stand unless rebutted or explained. In an apparent effort to offset this inference, the defendant has introduced much evidence to show that precautions were taken not only by itself but also by Wm. H. Dobbs and Bert Pope, Inc., to prevent confusion amongst the purchasing public between the plaintiff's product under the name "Dobbs" and the defendant's product under the name "Wm. H. Dobbs." But since on the evidence it is clear that confusion has resulted, irrespective of the bona fides of these efforts (which the plaintiff disputes), these facts at most attest an effort to minimize the damages resulting from the tort, and standing alone do not constitute a defense to the plaintiff's right of action, at least against the defendant herein.
Nor do the other facts exonerate the defendant from this imputation of fraud. On the contrary, the evidence furnishes clear and convincing confirmation of that imputation. It is wholly clear that Wm. H. Dobbs personally had never acquired any particular reputation in the hat trade in New York City, to which his activities up to the time of his association with the defendant had been almost wholly confined; outside of New York he was wholly unknown. The fact that the defendant, whose president had had a long experience in the hat business, was ready to split its earnings with Wm. H. Dobbs either directly or indirectly through interposed corporations can only be attributed to a desire to acquire the name for its propensity to mislead and confuse the public to the defendant's gain and the plaintiff's hurt. There is nothing here to show that the name had any legitimate "residual advantage" to Wm. H. Dobbs, within the meaning of the opinion in Waterman Co. v. Modern Pen Co., 235 U. S. 88, 35 S. Ct. 91, 59 L. Ed. 142.
The form of the relations between Wm. H. Dobbs and the defendant and their subsequent history serve but to confirm this conclusion. The interposition of Bert Pope, Inc., a corporation in which, to be sure, Wm. H. Dobbs had a stock interest, as the "distributor" of the defendant's product, cannot disguise the fact that the defendant itself under the name "Wm. H. Dobbs" sold the hats which it manufactured. To be sure, Bert Pope hired and directed the salesmen; he may have "approved" the design of the product. But Bert Pope, Inc., including Wm. H. Dobbs, its officer and employee, did nothing in connection with the distribution of the product that is not ordinarily performed by a sales manager of the manufacturer. That the defendant manufacturer had a right to employ Bert Pope, Inc., and Wm. H. Dobbs to assist in its sales I have no doubt. That it could compensate *619 them for their services on a contingent basis I have no doubt. But all this the defendant could do and can still do without poaching on the plaintiff's good will.
The fraudulent character of the defendant's conduct is further manifested by the calculated deliberation with which it subordinated its own name in the merchandising of its product to the name which it had attempted to hire. Instead of emphasizing its product as its own, it has consistently and deliberately designated it, and encouraged others to designate it, by the name of "Wm. H. Dobbs" alone. On the women's hats of its manufacture, it has imprinted the Wm. H. Dobbs facsimile on the sweatband; its own name nowhere appears on the product. On the men's hats, the Wm. H. Dobbs name and crest are conspicuously printed on the sweatband or lining, and its own name is relegated to a paper size-label pasted to the felt beneath the sweatband. The hatboxes, though they bear no resemblance to those of the plaintiff or its predecessors, are conspicuously marked with the Wm. H. Dobbs name and crest; the defendant's name nowhere appears thereon. The defendant's shipping labels, salesmen's cards, invoices, and stationery, to be sure, show the defendant's name. But such papers are not normally seen by the ultimate consumer. And even these papers stress the legend, "Sole Manufacturers of Wm. H. Dobbs Hats." And in the advertising of the product, most of which is done by the defendant's retailers but with the defendant's acquiescence, the defendant's name is wholly absent. The conclusion is irresistible that the use of the name by the defendant was an act deliberately intended to enable the defendant to reap the plaintiff's harvest by indirect imposition upon the purchasing public.
And so the defendant in its answer seeks to justify the use of the name under a claim of right derived from the contract in evidence as "Exhibit R."
It may be noted at the outset that Exhibit R purports to license the defendant to use the name "Wm. H. Dobbs" in the manufacture only of men's felt hats. It contains no authority to use the name in connection with ladies' hats. The defense of a special license is therefore at most a defense pro tanto. However that may be, it is apparent that the defendant's use of the name is with the full consent of Wm. H. Dobbs, and it makes no difference for present purposes whether the license upon which the defendant relies for its justification is a special license such as set forth in Exhibit R or a license implied from the underlying facts.
In any event, this license, according to the plaintiff, is at most an attempted assignment of a trade-name in gross, and such an assignment, plaintiff contends, is illegal and ineffective. The plaintiff cites many cases in support of this contention but makes no effort to reconcile the doctrine of these cases with the remark of Justice Holmes in Waterman Co. v. Modern Pen Co., supra, at page 96 of 235 U. S., 35 S. Ct. 91, 93, 59 L. Ed. 142, where it was said: "While it very well may be true that the transfer of a name without a business is not enough to entitle the transferee to prevent others from using it, it still is a license that may be sufficient to put the licensee on the footing of the licensor as against the plaintiff."
Does this mean that any man who has no business, but who happens to have a name which others have made valuable as a trade-name, may license another to use the name in competition with the proprietor of a trade-name? I think not. Such a holding, impliedly authorizing one to capitalize the nuisance value of his name, would be an invitation to blackmail and deception.
The language quoted must rather be given such scope as the underlying facts require, and the opinion on its face shows that the learned justice had before him the case of "a man who for years has been trying to do business," "who has established himself in the business," and who assigns to a partnership of which he becomes a member at least to the extent that "he had pecuniary reasons for wishing to see [it] succeed" "his name and whatever good will he has." By such an assignment, it was said, the transferee derived the immunity which the transferor enjoyed as against a plaintiff of the same family name who was first in the field of competition.
This decision, I think, does not reach the facts of the case at bar, and so its authority cannot sustain the validity of the purported license here; for at the time of the attempted transfer, the only pecuniary value of this name to Wm. H. Dobbs or any one else was its nuisance value. Nor did Wm. H. Dobbs, like Waterman, couple the assignment of his trade-name with the transfer of his business and its good will. Cf. Kidd v. Johnson, 100 U. S. 617, 25 L. Ed. 769.
But it is not necessary to base my decision upon the sole ground of the invalidity of the attempted license of the name; for even if the license were held valid, under the Waterman Case it would pass only such immunity *620 as the licensor theretofore enjoyed. And I am satisfied that at the time the "license" was given, the licensor, Wm. H. Dobbs, as against the plaintiff, had no right himself to use his name as the defendant herein has subsequently used it. Thus by the license the defendant, as against the plaintiff, acquired exactly nothing.
This conclusion depends upon the limitations which attach to a man's right to use his own name in his own business, a subject upon which there is much uncertainty in the law.
One of the earliest cases on this point in England seems to have been that of Burgess v. Burgess, 3 DeG. M. & G. 896, decided in 1853. There the bill and affidavits in support thereof show that the plaintiff's predecessor had first adopted the name of "Burgess's Essence of Anchovies" long prior to its use by the defendant, and that large quantities of the product had been sold by the plaintiff and his predecessor under a label which to a certain extent the defendant had imitated. But the published report of the case, at least, does not show any allegation or evidence that the plaintiff's name had acquired a secondary meaning with the public or that the public had been in fact confused or deceived as a result of the defendant's product. Yet portions of the defendant's shop sign and label which were calculated to mislead were finally enjoined; but the Court of Appeals declined to enjoin all use of the defendant's name in connection with the sale of his product because, in essence, such use of the name did not serve to mislead the public. And that this was the gist of the holding was emphasized in the case of Massam v. Thorley's Cattle Food Co., 14 Ch. Div. 748.
But then came the case of Turton v. Turton, 42 Ch. Div. 128 (1888). There the plaintiff corporation, Thos. Turton & Sons, and its predecessors had been in the steel business in Sheffield for upwards of forty years. The defendant, John Turton, had been engaged in a similar business, also in Sheffield, only a mile away from the plaintiff's works, first under his own name, then under the partnership name of Turton & Lawton, and then under the firm name of John Turton & Co., in all for some twenty years. Apparently, in this litigation it was conceded that his right to do business under the name John Turton & Co. had been established beyond restraint. But at that stage he took into his partnership two sons, and changed the firm name to John Turton & Sons. That name the plaintiff sought unsuccessfully to enjoin. Lord Justice Esher, Master of Rolls, said, a man "may rightly use his own name." And again, "He is doing what he has an absolute right by the law of England to do." And so the case is frequently cited for the proposition that a man has an absolute right to use his name in business, even though its use result in the deception of the public to the hurt of a plaintiff who had earlier established the name with a secondary meaning. But a careful analysis of the several opinions on the appeal will leave one in considerable doubt as to whether such was the essence of the decision. For Esher, L. J., in an effort to bring his opinion into harmony with that of Burgess v. Burgess, emphasizes the fact that the defendant Turton in the use of his name made no false representation. According to Lord Esher, the defendant, who it must be remembered had already established his right to use the name "Turton" in one firm name, had, by changing from Turton & Co. to Turton & Sons, merely announced to the trade, as he properly might, that he had taken his sons into partnership. It is quite consistent, even with Lord Esher's opinion, that if there had been evidence showing that the change had the effect of a false representation to the public, the decision might have been otherwise. And that the decision was predicated upon a complete absence of actual confusion on the part of the purchasing public even more clearly appears in the opinion of the other justices who participated in the appeal. There, unlike the case at bar, the defendant was not marking its name on its product and engaging in extensive advertising. And there was no evidence whatever tending to show that the course of business of the parties was such that any misunderstanding on the part of the customers could not and would not promptly be rectified. At most, the plaintiff was subjected to the possibility of inconsequential inconvenience, but to no real damage.
In short, I am unable to find any English case that refuses relief to a plaintiff whose name has been so established in the trade that its mere application to the product of a newcomer in the business of the same name will operate to confuse and deceive the public to the plaintiff's damage.
In the United States the courts have frequently used general language to the effect that a man has an absolute right to the use of his own name. See Handler & Pickett, 30 Col. L. R. 196 et seq. But a careful reading of such cases will disclose that often the language used is broader than the facts require, and that the cases were ones in which confusion could effectively be averted if the newcomer *621 were required only to qualify his use of the name by prefix, suffix or explanation. Some of the earlier cases, such as Meneely v. Meneely, 62 N. Y. 427, 20 Am. Rep. 489, failed to recognize that the mere use of the name, even though the use were literally truthful, might convey a false impression to the public. But more recently in such a case the same court has sustained an injunction wholly precluding the use of the surname on the product. Westphal v. Westphal's World's Best Corp'n, 216 App. Div. 53, 215 N. Y. S. 4, affirmed 243 N. Y. 639, 154 N. E. 638.
The extent to which a man may be precluded from the use of his name on account of its prior use by another has never been clearly defined by the Supreme Court. In the case of Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 25 S. Ct. 609, 614, 49 L. Ed. 972, the court declined to enjoin the use of the name "Remington" in combination with the corporate name of "Remington-Sholes." In commenting upon the plaintiff's claim that the defendant's trade-name had been adopted because of a family reputation in the typewriter business, the court said: "That does not in itself justify the assumption that their purpose was to confuse their machines with complainant's; or that the use of that name was in itself calculated to deceive." An analysis of the case will disclose that the decision was predicated upon what the court there deemed to be the fact of the case, namely, that the use of the name in question was not "in itself calculated to deceive." Any doubt on this point, however, is resolved by the opinion in the Waterman Case, where it was said with particular reference to the Howe Scale Case: "But, whatever generality of expression there may have been in the earlier cases, it now is established that when the use of his own name upon his goods by a later competitor will and does lead the public to understand that those goods are the product of a concern already established and well known under that name, and when the profit of the confusion is known to, and, if that be material, is intended by, the later man, the law will require him to take reasonable precautions to prevent the mistake." How far one may be required to go to prevent such mistakes, that court did not indicate.
The case of Herring-Hall-Marvin Safe Co. v. Hall's Safe Co., 208 U. S. 554, 28 S. Ct. 350, 52 L. Ed. 616, also requires analysis. There the trial court enjoined the newcomer from "carrying on a safe and vault business in the name of `Hall Safe & Lock Company,' or any name of which the name `Hall' is a part, and from marking their safes with any name of which the name `Hall' is a part, or from advertising, or from offering for sale safes or vaults as `Hall's Safe,' or by any name of which the name `Hall' is a part, etc., etc." This injunction was sustained by the Circuit Court of Appeals for the Seventh Circuit (143 F. 231) on the ground that the newcomer there involved was by contract estopped from the use of the family name in the business and on this ground expressly distinguished the case from that of the Howe Scale Company. And while the Court of Appeals also found in the Hall Case deception and confusion, which was absent in the Howe Case, the statement of facts shows only that the confusion was such as resulted from misleading signs used by the newcomer and its agents. Quite clearly, the factual situation was such as not to warrant the conclusion that the use of the name "Hall" on the safes or in advertising would necessarily operate to confuse and deceive. In the Supreme Court, the decree below was reversed because of error in finding the defendants estopped by contract from the use of their name. The right of the newcomer to use the name "Hall" in its corporate name was not involved in the appeal, because theretofore it had "accepted a decree forbidding it to go on under the above name." And the court, notwithstanding the reversal of the decree below as too broad, concluded by the observation that "the confusion produced * * * through his use of signs and advertisements calculated * * * to mislead * * * must be stopped." But, under the facts, it was felt that an injunction "against using any name, mark or advertisement indicating that" "the newcomer is the successor of the original company or that its goods are the product of that company or its successors, or interfering with the good will bought from him," would sufficiently protect the plaintiff.
But where the plaintiff's name is so associated with its product that the use of a surname on the defendant's goods will deceive the ordinary purchaser, such use of the name will be wholly enjoined even as against a corporate defendant deriving the name from one of its incorporators and stockholders. Westphal v. Westphal's World's Best Corp'n, supra; De Nobili Cigar Co. v. Nobile Cigar Co. (C. C. A.) 56 F.(2d) 324; Vick Medicine Co. v. Vick Chemical Co. (C. C. A.) 11 F.(2d) 33; Garrett v. T. H. Garrett & Co. (C. C. A.) 78 F. 472. See, also, L. Martin Co. v. Martin & Wilckes Co., 75 N. J. Eq. 39, 71 A. 409, affirmed *622 75 N. J. Eq. 257, 72 A. 294, 21 L. R. A. (N. S.) 526, 20 Ann. Cas. 57. And the Waterman Case holds that, in measuring the rights of a defendant to the use of its name, there is no valid distinction between corporations and individuals.
In the case of Jergens Co. v. Bonded Products Corp. (C. C. A.) 21 F.(2d) 419, 424, it was recognized that even the use of his proper name by one might operate as a misrepresentation that his goods were those of another. It was also stated that "if any relief is to be given against unfair trading, it should be such as will be effective." But under the precise facts there involved the court, apparently upon a finding that confusion would in fact be thereby avoided, limited the injunction so as to allow the defendant to show the proper name on the side (but not the top) of the wrapper, but wholly prohibited the defendant from the use of the proper name as a part of the title or designation under which its product was marketed. Chickering v. Chickering & Sons (C. C. A.) 215 F. 490, and Royal Baking Powder Co. v. Royal (C. C. A.) 122 F. 337, also are cases in which limitations on the use of the name were found sufficient without its complete expurgation.
The facts of the case at bar are such that Wm. H. Dobbs himself could not use the name "Dobbs" in the marking of hats publicly offered for sale or in advertising hats for sale, without deceiving and confusing the public to the plaintiff's damage. That such deceit and damage have resulted from his operations as heretofore conducted in conjunction with Bert Pope, Inc., and the defendant, is only too clear on the evidence. More doubtful, perhaps, is the task of determining now whether any explanatory suffix to the name, such as "not connected with the original Dobbs," would suffice to avoid the confusion.
The efficacy of such prefixes obviously is affected by psychological considerations, a surer understanding of which is much to be desired. The field seems not to have been yet cultivated by the scientific psychologist. Cf. Isaac on Traffic in Trade-Symbols, 44 Harv. L. R. 1210. But surely a reading of the long and widespread litigation that has grown out of the use of such names as "Baker" and "Rogers" (for a convenient review of which see Nims on Trade Marks, p. 125 et seq.) leads one to question the efficacy of such limitations. And, obviously, halfway limitations inadequate to prevent confusion, propagate litigation, devastating uncertainty in business, and a cynical reaction to the administration of law. Such results cannot be justified by a false tenderness for the rights of the individual. To be sure, he is entitled to protection in all proper use of his name, but not to a use which, though true to the few fully informed, is false to the many who are only partially informed.
Since the only purpose of an explanatory suffix is to prevent confusion between the impressions conveyed by the defendant's use of the name and those conveyed by the plaintiff's use of the name, the efficacy of such a suffix will largely depend upon the connotations which the public has become habituated to attach to the plaintiff's use of the name. Since this name has acquired its secondary meaning largely by advertising, that fact and the content of such advertising will indicate the association of ideas which attaches in the public mind to the name. The evidence shows that the plaintiff's advertising has emphasized the surname only. It is a fair inference that the public has long since forgotten, if it ever knew, De Witt Dobbs, the man, and Dobbs & Co., the plaintiff's predecessor of which he was the president. The surname alone remains in the public mind as an identification mark about which cluster associated ideas such as quality and style in headgear. The name has become a purely impersonal symbol. It no longer signifies anything as to the place of manufacture, or the personal identity of the manufacturer.
This, the evidence fairly indicates, is the meaning of "Dobbs" to the public. Precisely the same images are evoked by the sight or sound of "Wm. H. Dobbs," and the effect is no different if followed by such a phrase as "not connected with the original Dobbs." For the eye of the purchaser, long taught to identify the product by the name Dobbs alone, promptly registers the identity as complete upon catching the surname without noticing and pondering the significance of initials or suffix. And even the occasional purchaser who notices the suffix is not enlightened. For one who has known of one Dobbs only, suddenly confronted with the suggestion that there are in existence varieties of the species, is not informed which Dobbs is "his" Dobbs. Confusion is created by the very explanation intended to avert confusion. The purchaser whose impressions have been gradually acquired through continuous advertising cannot himself mentally locate the origin of his impressions as to time or place. And it is not to be expected that a hat clerk who chances to wait on him can accurately trace his impressions.
*623 And so here, I conclude, Wm. H. Dobbs was precluded by the combination of the public interest and the plaintiff's right from using even his own name on the product or in advertising or elsewhere as the designation or as a part of the designation of the product. This conclusion has equal application to the use of the name on the hat box. For the public knows the product by the name, not by the box. Subject to these limitations, however, he had the right to manufacture and sell hats under his own name. He could lease or buy factories or stores, he could hire help, and could carry on a thousand other incidents of business under his own name, without causing any confusion.
Such limitations of the right as I have indicated above, nowadays, involve no real hardship, for a corporate franchise now is easily within the reach of all. Nor, nowadays, does the adoption of a trade-name other than the family name involve the reproach of doing business under false colors nor, in the usual case, impede the development of a legitimate good will. That this is so is indicated by the general run of names of newly organized corporations. In an age when by corporate activity, mass production, and national distribution, the truly personal element has been so largely squeezed out of business, there is naturally less legitimate pecuniary value in a family name. Any other name is as valuable and as available for all legitimate purposes. Formerly, before the age of advertising, when good will in business was slowly developed from personal contacts, the situation may have been otherwise.
But in advertising hats of his manufacture or distribution, more delicate questions arise. There is a reasonably clear distinction between "display" advertising and "reading matter." In general, the name used in connection with display advertising, where it is seen principally by casual observers, will, under the facts of this case, produce confusion. If used in matter of a recitative or informative set-up, its tendency to confuse can only be determined on a full consideration of all the facts. The question would involve the substantial accuracy of the reading matter, both literally and as the purchasing public would interpret it.
Now, obviously, a court cannot pass upon the misleading propensities of advertising matter not yet formulated. And especially since the fairness of the impression conveyed by advertising depends on such delicate factors as stress of voice, emphasis, and arrangement of type, as well as subject-matter, it is not practicable to lay down any rule more definite than that the advertising matter must be truthful, both in fact and in the impression conveyed, in view of the existing background. Any injunction, therefore, which would issue on the facts of this case against Wm. H. Dobbs if he were a party, should wholly enjoin all use of the word "Dobbs" on the product and its containers, and in the designation of the product, and should further prevent use of the name in advertising any product so as to cause confusion between the product of Wm. H. Dobbs and of the plaintiff, or otherwise to mislead the public to the plaintiff's hurt. Such a decree would, I think, be effective to prevent such a spread of litigation as attended the use of the Baker name, for example. And if by the generality of the provisions last above set forth, uncertainty should result, at least it would be such as could promptly be settled by application of the one party to amend the decree so as to authorize the use of a specific advertisement, or by the other party on a motion for contempt. Indeed, quite possibly many such details could be satisfactorily settled by conference in chambers without the need for formal motion and ruling.
And further, as against Wm. H. Dobbs, any injunction to which the plaintiff would be entitled, would need to be carefully restricted in its scope to the territory in which the plaintiff had clearly proved the currency of its name in its secondary meaning.
Such then, as I see it, are the mutual rights and liabilities between Wm. H. Dobbs and the plaintiff. If I felt that these rights of Wm. H. Dobbs were transferable by Exhibit R, or otherwise, I should grant an injunction against the defendant transferee along the lines indicated above. But, holding as I have above indicated, that under the particular facts as shown in this case, such rights as Wm. H. Dobbs had were wholly personal to him, and transferable neither to the defendant nor any one else, I hold that an injunction may issue against this defendant, without the limitations to which Wm. H. Dobbs would be entitled, wholly restraining it from all use whatsoever of the name "Dobbs," whether prefixed by initials or given names, or suffixed by explanations, either imprinted on any hats which it manufactures or sells or offers for sale, or on the containers thereof, or in advertising the same or otherwise in connection with its operations in the manufacture, distribution, and sale of hats.
I should perhaps make it plain that my reason for attempting to define the rights of *624 Wm. H. Dobbs, notwithstanding my holding that his rights were not transferable, was to facilitate a final settlement of this troublesome and important litigation by a single appeal in case my own efforts prove unavailing to compose the peace between the parties.
The plaintiff is entitled to a decree, with costs, providing for the ascertainment of damages, and an injunction which, in the absence of defendant's consent as to form, may be settled in chambers in New Haven on five days' notice, or otherwise by agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070754/ | THE THIRTEENTH COURT OF APPEALS
13-14-00202-CR
Paul Michael Lopez
v.
The State of Texas
On Appeal from the
370th District Court of Hidalgo County, Texas
Trial Cause No. CR-892-12-G
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion.
We further order this decision certified below for observance.
May 28, 2015 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1365100/ | 609 F.3d 450 (2010)
CRUISE CONNECTIONS CHARTER MANAGEMENT 1, LP and Cruise Connections Charter Management GP, Inc., Appellants
v.
ATTORNEY GENERAL OF CANADA, representing the Royal Canadian Mounted Police, et al., Appellees.
No. 09-7060.
United States Court of Appeals, District of Columbia Circuit.
June 21, 2010.
Jack M. Strauch, Esquire, Strauch & Fitzgerald, Winston-Salem, NC, Cathy A. Hinger, Deborah J. Israel, Womble Carlyle Sandridge & Rice, PLLC, Washington, DC, for Appellants.
Scott H. Christensen, John M. Townsend, Hughes Hubbard & Reed LLP, Washington, DC, for Appellees.
Before TATEL, Circuit Judge, and SILBERMAN[*] and WILLIAMS, Senior Circuit Judges.
ORDER
PER CURIAM.
Upon consideration of appellees' petition for panel rehearing filed on May 6, 2010, and the response thereto, it is
ORDERED that the petition be denied.
SILBERMAN, Senior Circuit Judge, concurring in the denial of rehearing:
I continue to believe the panel's opinion is correct and write only to refer to an alternative argument raised by Cruise Connections which we did not reach. I think this argument also supports our decision and thus makes this case even less deserving of rehearing.
Besides claiming that the loss of business under the charter party agreements qualified as a "direct effect" in the United States under the FSIA, Cruise Connections also contended that were it not for Canada's breach, money would have been deposited in a bank account in the United States, and, under Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 112 S. Ct. 2160, 119 L. Ed. 2d 394 (1992), this also constitutes a direct effect. Cruise Connections pointed out that the contract required it to send the Canadian government an invoice which was to include "financial codes." According to it, financial codes refer to the communication format that is used to identify a bank to which money is to be wired. So, it was argued, that by directing it to provide financial codes, the contract gave Cruise Connections an option to direct payment to a bank of its choosing. Evidence in the record shows it opened a bank account in Winston-Salem, North Carolina and would have requested that payment be made there.
I agree with Cruise Connections that the reference to financial codes is most naturally read to give it an option to direct payment to the bank of its choosing. While Canada argued that the financial codes were to identify the Canadian government account from which the money would be taken, it seems implausible to me that the contract would require Cruise Connections to choose the account from which payment would comehow would it know such codes and why would it care where payment came from?
Once it is established that the contract gave Cruise Connections an option to direct payment to the place of its choosing, *451 there is very little difference between this case and Weltover. It will be recalled that in Weltover, the plaintiff-bondholders had the option to designate payment to any one of four cities. When the bonds matured and the Argentinian government attempted to unilaterally extend the time for payment, several bondholders[1] refused to accept the rescheduling and, subsequent to the alleged breach, asked for full payment in New York. Id. at 610, 112 S. Ct. 2160. The alleged breach of contract, the Supreme Court found, caused a direct effect in the United States because, "[m]oney that was supposed to have been delivered to a New York bank was not forthcoming." Id. at 619. Similarly, had the contract in this case not been terminated, Cruise Connections would have requested and received payment at its bank in North Carolina. Under Weltover, I believe this meets the direct effect exception and is thus an alternative ground for our decision.
NOTES
[*] A statement by Senior Circuit Judge Silberman concurring in the denial of rehearing is attached.
[1] The plaintiff-bondholders in Weltover were, unlike Cruise Connections, not even American entities. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365781/ | 609 F.3d 111 (2010)
EXPORT-IMPORT BANK OF the UNITED STATES, Plaintiff-Appellant,
v.
ASIA PULP & PAPER COMPANY, LTD., PT Indah Kiat Pulp & Paper TBK, PT Pabrik Kertas Tjiwi Kimia TBK, PT Pindo Deli Pulp & Paper Mills, Defendants-Appellees.
Docket No. 09-2254-cv.
United States Court of Appeals, Second Circuit.
Argued: September 16, 2009.
Last Supplemental Briefs Filed: November 25, 2009.
Decided: June 22, 2010.
*112 Li Yu, Assistant United States Attorney for the Southern District of New York (Preet Bharara, United States Attorney, and Sarah S. Normand, Assistant United States Attorney, of counsel) New York, NY, for Plaintiff-Appellant.
Benjamin P. Deutsche (Kenneth R. Puhala, on the brief) Schnader, Harrison, Segal & Lewis LLP, New York, NY, for Defendants-Appellees.
Bruce E. Clark (H. Rodgin Cohen, Michael M. Wiseman, and Laurent S. Wiesel, of counsel) Sullivan & Cromwell LLP, New York, NY, for Amicus Curiae The Clearing House Association L.L.C.
*113 Before STRAUB and WESLEY, Circuit Judges, GARDEPHE, District Judge.[1]
STRAUB, Circuit Judge:
Plaintiff Export-Import Bank of the United States ("ExIm") appeals from a May 27, 2009 order of the United States District Court for the Southern District of New York (Donald C. Pogue, Judge, United States Court of International Trade, sitting by designation) quashing two writs of garnishment in connection with ExIm's efforts to collect a $144 million judgment against defendants pursuant to the Federal Debt Collection Procedures Act ("FDCPA"), 28 U.S.C. § 3205 et seq. The District Court quashed the writs of garnishment to the extent they restrained electronic fund transfer ("EFT") credits at intermediary banks. For the reasons set forth below, we affirm the District Court's order and hold that an EFT temporarily in the possession of an intermediary bank in New York may not be garnished under the FDCPA to satisfy judgment debts owed by the originator or intended beneficiary of that EFT.
BACKGROUND
I. The Parties
ExIm, a government corporation organized and existing under federal law as the official export credit agency of the United States, 12 U.S.C. § 635 et seq., is the holder of over $100 million of debt owed by defendants. ExIm is an agency of the United States and has a mandate to maintain and increase U.S. employment and to promote the export of domestic products by providing financial support for export sales to overseas buyers. 12 U.S.C. § 635. In carrying out its mandate, ExIm offers direct loans, loan guarantees, working capital guarantees, and insurance. Id. When ExIm guarantees a loan and the borrower defaults on payment obligations, ExIm pays the lender an amount up to the outstanding principal and interest on the loan. In return, ExIm is assigned the lender's rights to the debt and any associated security interests.
Defendants together form one of the largest paper manufacturers in the world. Defendant Asia Pulp & Paper Company, Ltd. ("APP") is the former parent company of the three other defendants in this case: PT Indah Kiat Pulp and Paper TBK; PT Pabrik Kertas Tjiwi Kimia TBK ("Tjiwi Kimia"); and PT Pindo Deli Pulp & Paper Mills ("Pindo Deli") (collectively known as the Principal Indonesian Operating Companies ("PIOCs")). The PIOCs are Indonesian companies, while APP is based in Singapore.
II. Loan Default
The PIOCs borrowed over $100 million via thirteen different loans issued through ExIm's direct loan and loan guarantee programs. Of these thirteen loans, twelve were private loans that ExIm guaranteed and one was issued directly to defendants by ExIm. Three of the thirteen notes also included a separate guarantee signed by APP that obligated APP as guarantor to repay the loans.
In March 2001, defendants announced a worldwide "standstill" on the repayment of over $7 billion of debt, including the thirteen loans relevant to this appeal. Upon defendants' default, ExIm fully paid the private lenders on the twelve private loans and, in return, the private lenders assigned ExIm their respective rights, title, and interest in the loans.
*114 III. The District Court Proceedings
Following defendants' default, ExIm sued for breach of contract, breach of promissory notes, and breach of guarantee and sought relief pursuant to the FDCPA. On February 6, 2008, the District Court granted ExIm's motion for summary judgment, finding that there was no dispute that defendants had defaulted on their loans and that defendants had failed to raise an issue of fact about whether their default should be excused. Export-Import Bank of U.S. v. Asia Pulp & Paper Co., Ltd., No. 03-8554, 2008 WL 465169, at *8 (S.D.N.Y. Feb. 6, 2008). On May 28, 2008, the District Court entered a judgment in excess of $144 million in favor of ExIm against defendants, which we subsequently affirmed. Export-Import Bank of U.S. v. Asia Pulp & Paper Co., Ltd., 347 Fed.Appx. 672 (2d Cir. Sept. 30, 2009) (unpublished disposition).
On February 3, 2009, seeking to collect on the judgment, ExIm applied pursuant to the FDCPA for the issuance of writs of garnishment to retain property in which several defendants purportedly had a nonexempt interest. The following day, the District Court granted ExIm's applications, and ExIm promptly served the writs on Deutsche Bank Trust Company Americas ("Deutsche Bank") and Bank of New York Mellon Corporation ("BONY"), directing them to withhold all property in their possession, custody or control in which defendants Tjiwi Kimia and Pindo Deli, respectively, had a "substantial nonexempt interest."
On March 6, 2009, Deutsche Bank answered the writ of garnishment it had received, noting that Tjiwi Kimia did not maintain any accounts at Deutsche Bank, but that Deutsche Bank nevertheless had in its "custody, possession and control" seven EFTs "belonging to or in the name of Tjiwi Kimia," which Deutsche Bank had "intercepted and restrained" as an intermediary bank. The seven EFTs intercepted and restrained by Deutsche Bank, totaling $160,337.97, include three transfers for which Tjiwi Kimia is listed as "Originator" and four transfers for which Tjiwi Kimia is listed as "Beneficiary."
On March 27, 2009, BONY answered the writ of garnishment that it had received, stating that the only property it possessed in which Pindo Deli "may have a property interest" consisted of EFTs for which BONY "was the intermediary bank." Specifically, between February 10, 2009, and March 19, 2009, BONY received thirty-two EFT payment orders either to or from Pindo Deli. In total, BONY had in its possession $1,174,889.91 in bank credits for Pindo Deli-related EFTs.
Defendants Tjiwi Kimia and Pindo Deli objected to the answers of Deutsche Bank and BONY, respectively, arguing that (1) New York law prohibits the restraint of EFTs at intermediary banks and (2) as originator or intended beneficiary of the EFTs, neither Tjiwi Kimia nor Pindo Deli had any property interest in the EFTs restrained by Deutsche Bank and BONY. On April 17, 2009, the District Court quashed the writs of garnishment "insofar as they may have been interpreted to permit garnishment of EFTs between intermediary banks." Export-Import Bank of U.S. v. Asia Pulp & Paper Co., Ltd., No. 0308554, 2009 WL 1033389, at *2 (S.D.N.Y. April 17, 2009) ("Export-Import II").
DISCUSSION
The present appeal requires us to determine whether an EFT temporarily in the possession of an intermediary bank in New Yorki.e., a midstream EFTmay be garnished under the FDCPA to satisfy judgment debts owed by either the originator or the intended beneficiary of the *115 EFT. To answer this question we first look to New York law to determine the scope and contours of the relationship between the midstream EFT and the originator or intended beneficiary; in other words, we look to New York law to determine the interests and rights, if any, that an originator or intended beneficiary has with regard to an EFT temporarily in the possession of an intermediary bank. We then must determine as a matter of federal law whether those state-delineated interests and rights, if any, are sufficient to trigger application of the FDCPA, a federal statute that authorizes the garnishment of property in which a debtor has a "substantial... interest." 28 U.S.C. § 3205(a). We review these legal questions de novo. Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 66-67 (2d Cir.2009) (reviewing de novo the "threshold issue of whether EFTs are indeed `defendant's' property"), cert, denied, ___ U.S. ___, 130 S. Ct. 1896, 176 L. Ed. 2d 402 (2010); see also Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991) (holding that "a court of appeals should review de novo a district court's determination of state law").
I. The Attachment of Midstream EFTs under Various Federal Statutes
In addressing whether EFTs may be subject to garnishment or attachment in various contexts, we consider both the nature of EFTs and the legal provisions that regulate them. As we have previously observed:
An EFT is nothing other than an instruction to transfer funds from one account to another. When the originator and the beneficiary each have accounts in the same bank[,] that bank simply debits the originator's account and credits the beneficiary's account. When the originator and beneficiary have accounts in different banks, the method for transferring funds depends on whether the banks are members of the same wire transfer consortium. If the banks are in the same consortium, the originator's bank debits the originator's account and sends instructions directly to the beneficiary's bank[,] upon which the beneficiary's bank credits the beneficiary's account. If the banks are not in the same consortiumas is often true in international transactionsthen the banks must use an intermediary bank. To use an intermediary bank to complete the transfer, the banks must each have an account at the intermediary bank (or at different banks in the same consortium). After the originator directs its bank to commence an EFT, the originator's bank would instruct the intermediary to begin the transfer of funds. The intermediary bank would then debit the account of the bank where the originator has an account and credit the account of the bank where the beneficiary has an account. The originator's bank and the beneficiary's bank would then adjust the accounts of their respective clients.
Jaldhi, 585 F.3d at 60 n. 1.
After making these observations about the nature of EFTs, we recently held that EFTs in the temporary possession of an intermediary bank cannot be subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure ("Rule B"). Id. at 71. We arrived at this conclusion because Rule B authorizes the attachment only of "defendant's ... property" and because midstream EFTs are the property of neither the originator nor the beneficiary of the EFT under New York *116 law.[2]Id.
We note that our holding and analysis in Jaldhi was based firmly on the specific wording and provisions of Rule B that limit attachment to property owned by the defendant. As we recognized in Jaldhi, EFTs that are temporarily in the possession of an intermediary bank may be seized pursuant to other federal statutes, such as 21 U.S.C. § 881, because the language and purpose of those provisions differ significantly from Rule B. Id. at 68-69. In contrast to Rule B, we noted that the forfeiture provisions of 21 U.S.C. § 881 require only that the EFTs "be traceable to ... illegal activities" and do not require any "inquiry into the identity of the owner of the EFTs." Id. at 69. In sum, Jaldhi instructs that whether or not midstream EFTs may be attached or seized depends upon the nature and wording of the statute pursuant to which attachment or seizure is sought.
Here, ExIm sought writs of garnishment pursuant to the FDCPA. In line with Jaldhi, we therefore look to the FDCPA's language to determine whether the District Court properly quashed ExIm's writs of garnishment to the extent those writs restrained EFTs at intermediary banks.
II. The FDCPA
The FDCPA "provides the exclusive civil procedures for the United States to recover a judgment on a debt." 28 U.S.C. § 3001(a)(1). The statute was enacted "to create a comprehensive statutory framework for the collection of debts owed to the United States government" and "to improve the efficiency and speed in collecting those debts." N.L.R.B. v. E.D.P. Med. Computer Sys., Inc., 6 F.3d 951, 954 (2d Cir.1993). In contrast to Rule B, which requires that funds be the "defendant's... property" in order to be attached, the FDCPA authorizes the issuance of writs of garnishment to any person in "possession, custody or control" of property "in which the debtor has a substantial nonexempt interest."[3] 28 U.S.C. § 3205(a) (emphasis added). Subject to several exceptions not relevant here, the FDCPA broadly defines "property" to "include[] any present or future interest, whether legal or equitable, in real, personal (including choses in action), or mixed property, tangible or intangible, vested or contingent, wherever located and however held. ..."[4]Id. § 3002(12).
Although the FDCPA specifically defines the types of "property" potentially subject to garnishment, the FDCPA does not identify who has a right or interest in that property. This is unsurprising: the *117 FDCPAthe Federal Debt Collection Procedures Actis a procedural statute enacted "to give the Justice Department uniform Federal procedures ... to collect debts owed the United States nationwide." H.R.Rep. No. 103-883, at 81 (1995) (emphasis added) (explaining change from pre-FDCPA scheme of reliance on diverse state procedural rules); see also H.R.Rep. No. 101-736 (1990) (noting that "the purported goal of creating federal legislation regarding debt collection is simply to establish uniform procedural standards"). There is no evidence, either from the statute's language or legislative history, that the FDCPA creates any interests or rights in property. In the absence of a superseding federal statute or regulation, state law generally governs the nature of any interests in or rights to property that an entity may have. E.g., Barnhill v. Johnson, 503 U.S. 393, 398, 112 S. Ct. 1386, 118 L. Ed. 2d 39 (1992). Accordingly, although the FDCPA expressly "preempt[s] State Law to the extent such law is inconsistent with a provision of [the FDCPA]," 28 U.S.C. § 3003(d), there appears to be no inconsistency between the FDCPA's procedural framework and New York state laws that govern the scope and contours of an entity's interests and rights in property. Cf. Franks Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir.2010) (en banc) (noting a "presumption against preemption" in "areas of law traditionally reserved to the states, like police powers and property law"). This results because the FDCPA "itself `creates no property rights but merely attaches consequences, federally defined, to rights created under state law.'" United States v. Craft, 535 U.S. 274, 278, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002) (quoting United States v. Bess, 357 U.S. 51, 55, 78 S. Ct. 1054, 2 L. Ed. 2d 1135 (1958)) (in reference to federal tax lien statute, 26 U.S.C. § 6321).
Our analysis heremuch like the analysis of the federal tax lien statute, 26 U.S.C. § 6321, another federal statute that, like the FDCPA, "creates no property rights but merely attaches consequences, federally defined, to rights created under state law," id.therefore proceeds in two steps. First, we "look initially to state law to determine what rights the [judgment debtor] has in the property the Government seeks to reach."[5]Id. (quoting Drye v. United States, 528 U.S. 49, 58, 120 S. Ct. 474, 145 L. Ed. 2d 466 (1999)). Second, we "then [look] to federal law to determine whether the [judgment debtor's] state-delineated rights," id. (quoting Drye, 528 U.S. at 58, 120 S. Ct. 474), constitute a "substantial ... interest" in property sufficient to trigger application of the FDCPA. Although "[t]he answer to this federal question .. . largely depends upon state law," it is "ultimately a question of federal law" whether or not the FDCPA applies and authorizes garnishment of the judgment debtor's state-delineated property rights and interests. See id. Drawing upon the well known "bundle of sticks" analogy to describe property rights, "[s]tate law determines only what sticks are in a person's bundle"; federal law then dictates what may be done with that state-given bundle. Id. at 278-79.
It is important to highlight that the two steps of this analysis, although related, *118 are distinct. "In looking to state law, we must be careful to consider the substance of the rights state law provides, not merely the labels the State gives these rights or the conclusions it draws from them. Such state law labels are irrelevant to the federal question of which bundles of rights" amount to a substantial interest so as to be attachable under the FDCPA. Id. at 279. Our initial inquiry in this case is thus whether and to what extent an originator or an intended beneficiary has any interest in or right to a midstream EFT under New York law, not whether New York shields any such interest or right from garnishment. If at step one of our analysis we determine that an interest or right exists under state law, and if at step two we determine that interest or right to be a "substantial ... interest" in property under the FDCPA, state law would be impotent to shield that interest or right from garnishment under the FDCPA. The FDCPA preempts state law "to the extent such law is inconsistent with a provision of this chapter," 28 U.S.C. § 3003(d), and a state law provision that shields a state-created interest or right from collection would be inconsistent with the FDCPA provisions that authorize garnishment of property in which the defendant has a "substantial ... interest," 28 U.S.C. § 3205(a).[6]
III. Whether an Originator or Intended Beneficiary Has a "Substantial ... Interest" in a Midstream EFT under the FDCPA
Applying the two-step framework outlined above, we conclude that whatever interest or right an originator or intended beneficiary has in a midstream EFT under New York law, if any, it is insufficient to constitute a "substantial ... interest" under the FDCPA.
Article 4-A of New York's Uniform Commercial Code ("Article 4-A") governs EFTs, N.Y. U.C.C. § 4-A-102, and was enacted to provide a "comprehensive body of law that defines the rights and obligations that arise from wire transfers," Banque Worms v. BankAmerica Int'l, 77 N.Y.2d 362, 369, 568 N.Y.S.2d 541, 570 N.E.2d 189 (1991). The system Article 4-A establishes is not intuitive. As various provisions of Article 4-A make clear, wire transfers, which include EFTs, are a unique type of transaction to which ordinary rules do not necessarily apply. See, e.g., N.Y. U.C.C. § 4-A-102 cmt. (stating that the provisions of Article 4-A "are intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties" to covered EFT transactions); Banque Worms, 77 N.Y.2d at 369, 568 N.Y.S.2d 541, 570 N.E.2d 189 (noting that "attempts to define rights and *119 obligations in funds transfers by general principles or by analogy to rights and obligations in [other more traditional areas of law] have not been satisfactory").
Pursuant to Article 4-A, "[a] receiving bank is not the agent of the sender or beneficiary of the payment order it accepts, or of any other party to the funds transfer, and the bank owes no duty to any other party to the funds transfer except as provided in this article or by express agreement." N.Y. U.C.C. § 4-A-212. An authoritative comment accompanying Article 4-A further states that a creditor of an originator may serve process on an originator's bank before a funds transfer is initiated, but not afterwards, because "no property of the originator is being transferred" during the funds transfer process. N.Y. U.C.C. § 4-A-502 cmt. 4; see Jaldhi, 585 F.3d at 71 (describing the above comment as "authoritative"). Likewise, "until the funds transfer is completed by acceptance by the beneficiary's bank of a payment order for the benefit of the beneficiary, the beneficiary has no property interest in the funds transfer which the beneficiary's creditor can reach." N.Y. U.C.C. § 4-A-502 cmt. 4.[7]
Recent commentary of the Permanent Editorial Board for the Uniform Commercial Code ("PEB"), which drafted the U.C.C.,[8] notes:
Under Article 4A ... the originator does not have any claim against the intermediary bank for return of the value in the event the funds transfer is not completed. Rather, the only party with a claim against the intermediary bank is the sender to that bank, which is typically *120 the originator's bank. ... The originator's bank must refund to the originator even if it cannot recover from the intermediary bank. The beneficiary likewise has no claim to any payment from the intermediary bank.
PEB Commentary No. 16, §§ 4A-502(d) and 4A-503, at 3 (2009). According to the PEB, this is so because
[t]he intermediary bank has no contractual obligation to the originator or to the beneficiary, and neither the originator nor the beneficiary has any contractual obligation to or rights flowing from the intermediary bank. Thus, credits in an intermediary bank are credits in favor of the originator's bank, and are not property of either the originator or the beneficiary.
Id. at 2 (emphasis omitted). All of this is just to say that, according to the PEB,
under the Article 4A structure, the issuance and acceptance of payment orders creates rights and obligations only as between the sender of the payment order and its receiving bank (e.g., between originator and originator's bank as to the originator's payment order), between the originator's bank and an intermediary bank as to the originator's bank's payment order, between the intermediary bank and the beneficiary bank as to the intermediary bank's payment order, and finally, as between the beneficiary bank that has accepted a payment order and that beneficiary.
Id.
We have readily determined that these various provisions and commentary "establish that EFTs are neither the property of the originator nor the beneficiary while briefly in the possession of an intermediary bank." Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 71 (2d Cir.2009), cert, denied ___ U.S. ___, 130 S. Ct. 1896, 176 L. Ed. 2d 402 (2010). Resolution of the "ownership" issue, however, does not definitively answer our threshold question concerning the existence and scope of an originator or intended beneficiary's right or interest, if any, in a midstream EFT. An "interest" in property is not necessarily synonymous with "title to" or "ownership of property. See, e.g., BLACK'S LAW DICTIONARY 149 (7th ed.1999) (defining a "beneficial interest" as "[a] right or expectancy in something ..., as opposed to legal title in that thing"). Indeed, we have recognized that it would be reasonable for a court to hold that an individual has an interest in property, even when he does not own that property, so long as the property benefitted him as if he had received the property directly. United States v. Coluccio, 51 F.3d 337, 341 (2d Cir.1995).
Noting that "[t]he terms `interest' and `title' are clearly not synonymous," the Appellate Division of the New York Supreme Court has stated that, although Article 4-A establishes that neither an originator nor a beneficiary owns or has title to a midstream EFT, Article 4-A does not address the separate issue of who has an "interest" in an EFT. Bank of N.Y. v. Nickel, 14 A.D.3d 140, 145-47, 789 N.Y.S.2d 95 (N.Y.App. Div. 1st Dep't 2004). The Nickel court found no conflict between Article 4-Awhich, it says, governs only passage of "title"and a different federal statute that authorized the blocking or freezing of certain entities' "interests" in property. Id. at 147, 789 N.Y.S.2d 95. According to the Nickel court, Article 4-A and the federal statute that authorized the freezing of certain entities' EFTs "simply addressed different issues."[9]Id.
*121 Even though, according to Nickel, Article 4-A does not directly or explicitly address whether an originator or intended beneficiary has an "interest" in a midstream EFT, Article 4-A undoubtedly addresses some related issues and imposes significant limitations on the rights and expected benefits associated with such EFTs. First, as already noted, an intermediary bank is the legal agent of neither the originator nor the intended beneficiary. N.Y. U.C.C. § 4-A-212. Second, an originator and intended beneficiary have no legal claim or contractual rights against an intermediary bank in the event that a funds transfer is not completed. See Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 101-02 (2d Cir.1998); PEB Commentary No. 16, §§ 4A-502(d) and 4A-503, at 3. Finally, although an originator or intended beneficiary's lack of "ownership" is not dispositive of whether they have an interest in a midstream EFT, it nevertheless suggests that whatever interests or rights exist, if any, are limited.
Based on these limitations, we conclude that whatever interest or right an originator or intended beneficiary has in a midstream EFT under New York law, it is insufficient to constitute a "substantial . . . interest" under the FDCPA. Because neither the statutory language nor the legislative history of the FDCPA defines the phrase "substantial . . . interest," we look to the common, ordinary definition of the words. See generally Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979) ("A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning."). Some of the common definitions of "substantial" include "essential," "material," "firmly or solidly established," and "weighty." 17 OXFORD ENGLISH DICTIONARY 67 (2d ed.1989). Our analysis of whether a right or interest in property constitutes a "substantial . . . interest" is further guided by how "direct and tangible" an originator or beneficiary's benefit from the property appears. See Coluccio, 51 F.3d at 341 (noting that the benefit the judgment debtor received from the property was significantly less "direct and tangible" than the benefit involved in other cases and remanding to the district court for further findings).
Although originators and intended beneficiaries presumably derive some benefit from midstream EFTsas EFTs are frequently *122 used and destined to satisfy debts owed by the originator to the intended beneficiarythis benefit is insufficient to qualify as a "substantial . . . interest" under the FDCPA. We have recognized that it would be reasonable for a court to hold that a judgment debtor has an interest in funds, even though he never acquired "physical possession" of those funds, if the funds "benefitted him as if he had received the money directly." Coluccio, 51 F.3d at 341. While an EFT is temporarily in the possession of an intermediary bank, however, that EFT clearly does not benefit the originator or intended beneficiary in the same way as if they had received the money directly. As noted earlier, neither an originator nor an intended beneficiary own an EFT while it is temporarily in the possession of an intermediary bank; they cannot seek a refund from the intermediary bank if the funds transfer is not completed; and an intermediary bank is not the agent of either the originator or the intended beneficiary. For these reasons, we conclude that an originator or intended beneficiary's interests and rights in a midstream EFT, if any, are not sufficiently "essential," "material," "firmly or solidly established," "weighty," or "direct and tangible," to constitute a "substantial . . . interest" under the FDCPA. Accordingly, we hold that an EFT temporarily in the possession of an intermediary bank may not be garnished under the FDCPA to satisfy judgment debts owed by the beneficiary or originator of that EFT.
CONCLUSION
For the reasons stated above, the order of the District Court is AFFIRMED.
NOTES
[1] The Honorable Paul G. Gardephe, District Judge, United States District Court for the Southern District of New York, sitting by designation.
[2] The issue in Jaldhi was "whether EFTs of which a defendant is beneficiary are attachable property" under Rule B. Id. at 64. Thus Jaldh's holding technically only addresses whether Rule B may be used to attach an EFT of which defendant is the beneficiary. The reasoning in Jaldhi, however, applies with equal force to EFTs of which a defendant is the originator because, as noted above, Jaldhi reasoned that "EFTs are neither the property of the originator nor the beneficiary while briefly in the possession of an intermediary bank" and Rule B authorizes the attachment only of "defendant's . . . property." Id. at 71 (emphasis added).
[3] Defendants do not argue that any interests they may have in the midstream EFTs are "exempt," and accordingly, we assume that the "nonexempt" limitation is not an issue and focus on the question of whether defendants have a sufficiently substantial interest in the funds to allow attachment under the FDCPA.
[4] Though not pertinent to this appeal, the FDCPA's definition of property "excludes (A) property held in trust by the United States for the benefit of an Indian tribe or individual Indian; and (B) Indian lands subject to restrictions against alienation imposed by the United States." 28 U.S.C. § 3002(12).
[5] This approach is in accord with previous FDCPA cases. Without explicitly holding that state law is the appropriate source for determining whether and to what extent a defendant has a right or interest in property sufficient to constitute a "substantial ... interest" in property under the FDCPA, several cases have analyzed state law and state cases when attempting to resolve the first issue. See United States v. Santee Sioux Tribe of Neb., 254 F.3d 728, 735 (8th Cir.2001); United States v. Coluccio, 51 F.3d 337, 341 (2d Cir.1995).
[6] Although as a general matter the FDCPA preempts inconsistent state law, see 28 § 3003(d), it nevertheless preserves state law restrictions on garnishment to the extent that they pertain to "co-owned property," see id. § 3205(a) ("co-owned property" may be garnished only "to the same extent as .. . under the law of the State in which such property is located"). After reasoning that an EFT temporarily in the possession of an intermediary bank is "co-owned" by both the originator and the intended beneficiary, the District Court quashed the writs of garnishment in the present case because of New York law's prohibition on the attachment of midstream EFTs. Export-Import II, 2009 WL 1033389, at *2. Subsequently, however, we held that neither an originator nor a beneficiary owns an EFT while it is temporarily in the possession of an intermediary bank. Jaldhi, 585 F.3d at 69 ("For maritime attachments under Rule B. . . the question of ownership is critical"); id. at 71 ("Taken together, these provisions of New York law establish that EFTs are neither the property of the originator nor the beneficiary while briefly in the possession of an intermediary bank."). Accordingly, the District Court's reasoning is no longer persuasive.
[7] New York is not unique in its adoption of Article 4-A. In fact, Article 4-A has been adopted by every state, as well as by the Board of Governors of the Federal Reserve System. See PEB Commentary No. 16 at 3-4. Article 4-A, and its intent to shield EFTs from midstream attachment, thus governs funds transfers made via the Federal Reserve's Fedwire system. See 12 C.F.R. § 210.25. Such transfers, however, are not at issue here. Fedwire is one of several wire payment systems; one of the other payment systems is the Clearing House Interbank Payments System ("CHIPS"), which is owned and operated by the New York Clearing House Association. Banque Worms, 77 N.Y.2d at 370 & n. 2, 568 N.Y.S.2d 541, 570 N.E.2d 189. Of the two, CHIPS is more frequently used for international transactions. See id. at 370, 568 N.Y.S.2d 541, 570 N.E.2d 189.
ExIm asserts in its opening brief that all of the EFTs restrained in this case were international fund transfers made via CHIPS. By contrast, amicus curiae, the Clearing House Association L.L.C., suggests that three of the thirty-two EFTs restrained by BONY were in fact made through Fedwire. Defendants, however, have never so argued, either to us or below; to the contrary, defendants affirmatively assert that "[t]he funds at issue on this appeal were transferred through the CHIPS network." Brief of Defendants at 6. Accordingly, defendants have waived any potential argument that these three EFTs should be shielded from garnishment by virtue of having been transferred via Fedwire.
[8] The PEB is a joint committee of the American Law Institute and the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws) that "assists in attaining and maintaining uniformity in state statutes governing commercial transactions by discouraging non-uniform amendments to the Uniform Commercial Code by the states, and by approving and promulgating amendments to the UCC when necessary." http://www.ali.org (follow "Projects" hyperlink; then follow "Permanent Editorial Board for the UCC" hyperlink) (last visited June 21, 2010); PEB Commentary No. 16, at preface. As the New York Court of Appeals has noted, it was "the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) [that] undertook to develop ... [A]rticle 4A of the Uniform Commercial Code," which was then "adopted ... and incorporated . . . into the New York Uniform Commercial Code." Banque Worms, 77 N.Y.2d at 371, 568 N.Y.S.2d 541, 570 N.E.2d 189.
[9] We pause to reiterate that we look to state law only to determine whether and to what extent an entity has an interest or a right in a midstream EFT and that we look to federal law to determine whether that state-delineated interest or right, if any, constitutes a "substantial. . . interest" under the FDCPA. To the extent the Nickel court was simply stating that Article 4-A does not address the federal law issue of whether an entity has an "interest" in property, as that term is defined by a federal statute, we understand the Nickel court to be addressing a different issue from our present inquiry. Our threshold inquiry is not whether Article 4-A addresses the federal law issue of whether an originator or beneficiary has a "substantial . . . interest" in a midstream EFT under the FDCPA; our threshold inquiry is whether an originator or intended beneficiary has any interest or right in a midstream EFT under state law.
In addition, we express no opinion about whether the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. § 1701 et seq., and its accompanying regulations the statute and regulations at issue in Nickelsupersede state law governing substantive property rights. The IEEPA empowers the President to block the property and interests in property of nationals of countries that are involved in "any unusual and extraordinary threat . . . to the national security, foreign policy, or economy of the United States." 50 U.S.C. §§ 1701(a), 1702(a)(1)(B). Regulations that accompany the IEEPA often specifically define the terms "property" and "interest" in property, see, e.g., 31 CFR §§ 585.303, 585.304, and the IEEPA's purpose differs considerably from the procedural nature and purpose of the FDCPA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2613020/ | 14 Cal. 2d 690 (1939)
THE PEOPLE, Respondent,
v.
ARTHUR J. BECKHARD, Appellant.
Crim. No. 4261.
Supreme Court of California. In Bank.
November 30, 1939.
S. Ward Sullivan and Jerry Giesler for Appellant.
Earl Warren, Attorney-General, Eugene M. Elson, Deputy Attorney-General, Buron Fitts, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.
SHENK, Acting C.J.
In this case, as in the case of People v. Pociask, Crim. No. 4241, this day decided (ante, p. 679 [96 PaCal.2d 788]), the question for determination was the propriety of the instructions given by the court defining the word "negligent" as used in section 500 of the Vehicle Code making the crime of negligent homicide a felony. A hearing was granted in this case after decision by the District Court of Appeal, Second District, Division Two, for the reason that the question involved herein was also presented in People v. Pociask, supra, a case then pending and undetermined in this court. Our decision in the Pociask case follows the reasoning and conclusions of the District Court of Appeal in the present case and is determinative of the contentions of the parties herein. The following portion of the opinion of the District Court of Appeal in this case, prepared by Mr. Acting Presiding Justice Wood, is adopted as our opinion herein:
"Defendant was charged in count I of the information with the crime of negligent homicide, in violation of section 500 of the Vehicle Code, in that he caused the death of Frank Coleman Joyce, while negligently driving an automobile. In count II the same charge was made except that defendant was accused of causing the death of Patricia Marian Kelly. Verdicts of guilty were returned on both counts and defendant appeals from the order denying his motion for a new trial."
"It was established at the trial that on August 27, 1938, defendant was driving an automobile on Sunset Boulevard in Los Angeles and struck the two decedents when they were walking across the boulevard in the pedestrian's marked *692 crosswalk. Two or three cars were ahead of the car driven by defendant and the two pedestrians stopped to let them pass and as they proceeded defendant's car struck them. Since no claim is made that the evidence is insufficient to support the verdict finding defendant guilty of the offense set forth in section 500 of the Vehicle Code it will be unnecessary to set forth the circumstances in detail."
"Defendant contends that the court erred in giving to the jury the following instruction: 'Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, actuated by those considerations which ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of one's property or person.' At the request of defendant the court gave to the jury a number of instructions defining criminal negligence, among them the following: 'Criminal negligence in degree goes so far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence for which the party guilty of it may be held criminally liable. In other words, in order to constitute criminal negligence there must enter into the act some measure of wantonness or flagrant or reckless disregard of the safety of others, or wilful indifference, and if no one of these elements enters into the act the person charged cannot be held guilty of criminal negligence.' It is argued that these instructions are conflicting, that the instruction given at the request of defendant states the rule applicable correctly and that a reversal should be ordered since it cannot be determined which instruction the jury followed."
[1] "The section of the Vehicle Code under which defendant was convicted provides: 'When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle in a negligent manner or in the commission of an unlawful act not amounting to felony, the person so operating such vehicle shall be guilty of negligent homicide, ...' By the enactment of this section the legislature defined a crime different from any of the crimes which had been defined in any of the various provisions of the Penal Code. ..."
[2] "Defendant is not in position to complain of the fact that the instructions actually given may have been conflicting, *693 for the condition was brought about by his own request. [3] Moreover, he did not suffer prejudice by reason of the giving of any of the instructions, some of which were more favorable to him than he could legally demand. (People v. Suesser, 142 Cal. 354 [75 P. 1093].)"
The order is affirmed.
Curtis, J., Knight, J., pro tem., Spence, J., pro tem., Pullen, J., pro tem., Edmonds, J., and Houser, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364874/ | 222 S.C. 165 (1952)
72 S.E.2d 66
TALBOT
v.
MYRTLE BEACH BOARD OF ADJUSTMENT ET AL.
16659
Supreme Court of South Carolina.
August 12, 1952.
*166 Messrs. Epps & Hoffman and J. Reuben Long, of Conway, for Appellants.
*167 Messrs. Long, Long & Thames, of Myrtle Beach, for Respondents.
Aug. 12, 1952.
STUKES, Justice.
The municipality of Myrtle Beach enacted in 1947 a zoning ordinance under the authority of Sections 7390 et seq. of the Code of 1942. At that time the appellants, who are husband and wife, owned and operated (and now do) a motor court at the northwest corner of 38th Avenue and U.S. Highway 17, commonly called the King's Highway and the principal thoroughfare of the town. The wife, the appellant Lula E. Talbot, owned vacant contiguous lots across 38th Avenue from the motor court which included, as described in the pleadings, lot No. 2 of block 11-K of King's Highway Extension and is the southwest corner of 38th Avenue and the highway. Record, folio 1072. The latter property, with which this litigation is concerned, was acquired in 1946 by deed containing a restrictive covenant limiting the use of it to residential, clubhouse or boarding house purposes. This proceeding is not to construe or enforce the covenant but the fact of it was in evidence. "It is worthy of notice that a zoning law cannot constitutionally relieve land within the district covered by it from lawful restrictions affecting its use, imposed by covenants." 58 Am. Jur. 942, Zoning, sec. 4.
The area which included the motor court was zoned by the ordinance as R-4, in which motor courts are expressly permitted; but the lots across 38th Avenue and thence South to 31st Avenue, on both sides of the King's Highway, were placed in Zone R-1, which is the most restricted residential zone. In this restricted residential area a public restaurant or dining room is not permitted. It was for the latter purpose that appellants sought a "variance" from the terms of the ordinance. Such is authorized *168 by Sec. 7396(3), quoting, "as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." It is well-settled elsewhere, and there can hardly be contrary contention, that a restaurant is a business and as such is properly excluded from residential zones. State ex rel. Szodomka v. Gruber, 201 La. 1068, 10 So. (2d) 899; City of Lincoln v. Foss, 119 Neb. 666, 230 N.W. 592; People on Complaint of Fullam v. Milray Corp., 225 A.D. 860, 233 N.Y.S. 860. Moreover, it is obvious that a public restaurant presents more features that are objectionable to neighboring residents than does a motor court. However, a motor court is not allowed in Zone R-1, under the ordinance.
The city authorities rejected appellants' application and the action was reviewed by the Court of Common Pleas by certiorari. The matter was referred to the Master as special referee who took testimony and recommended favorably to appellants, but the city's exceptions to the Master's report were sustained by the court, whence this appeal. The procedure followed is prescribed by the cited statue Code sec. 7396(3).
The appeal is upon the broad ground that enforcement of the ordinance with respect to the lot in question (the failure of the municipal authorities to grant a variance as to it) amounts to an unconstitutional deprivation of property, and is therefore invalid. Particularly, it is urged that the questioned regulation of the use of the subject property does not comply with the provision of Code sec. 7392, which follows: "Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."
*169 The regulation of the uses of property within municipalities, which is called zoning, began relatively late in this country, having had its beginning in France about a century ago under Napoleon III: Lewis, City Planning. Other European countries followed, and finally ours. The enabling statute of this State, which has been cited, has been in force since 1924 and several cases which arose under ordinances enacted pursuant to the authority of it have reached this court. They are conveniently collected and digested in 14 South Carolina Digest, Municipal Corporations, Key 601, page 30. The subject is well treated under the topic. Zoning, in 58 Am. Jur. 935, et seq. and in the footnotes there are references to several A.L.R. annotations in which many relevant decisions are digested.
From the cited text the following presently applicable generalizations are taken:
"One of the most firmly established principles in the field of constitutional law is that the wisdom of legislation is a matter exclusively for legislative determination. This principle has been applied to zoning laws, and courts have been declared to have nothing to do with the question of the wisdom, expediency, propriety, or good policy thereof. The courts may not interfere with the enactment or enforcement of zoning provisions for the sole reason that they may be considered unwise, as long as their requirements may not be classified as unreasonable, or as long as there is an apparent legal reason for the enacted requirements." 58 Am. Jur. 954, sec. 23.
"The matter is largely within the discretion of the legislative authority, which is presumed to have investigated and found conditions such that the legislation which it enacted was appropriate, so that if the facts do not clearly show that the bounds of that discretion have been exceeded, the courts must hold that the action of the legislative body is valid. In this respect, it has been declared that the municipal governing bodies are better qualified because of their knowledge of the situation to act upon those matters than *170 are the courts, which will not substitute their judgment for that of the legislative body." 58 Am. Jur. 956, 957, sec. 26.
"Zoning enabling statutes frequently authorize the division of municipalities into districts of such number, shape and areas as may be deemed suited for the purposes of the act. Under such a provision, the number and nature of districts created, as well as the boundaries thereof, are matters which lie within the discretion of the municipal legislative body, and the courts will not substitute their judgment for that of the legislature where there is a possible reason in support of the legislative zoning lines." 58 Am. Jur. 960, sec. 32.
"However, the fact that property in a restricted area adjoins or is close to property in a nonrestricted area does not necessarily render the ordinance invalid, since, if there is to be zoning at all, the dividing line must be somewhere, with the result that certain desirable neighborhoods adjoin others less desirable. It is also a general principle that the courts will not substitute their judgment for that of the legislature where there is a possible reason in support of the legislative zoning lines." 58 Am. Jur. 968, sec. 42.
"Under terms of particular zoning laws, restaurants are permitted in some specified zones, and prohibited in others. The validity of such a restriction or prohibition has been sustained." 58 Am. Jur. 1001, sec. 105.
"Judicial relief from the action of a zoning board of appeals, review, or adjustment may be secured in a proper case, whether such action consists of the denial or grant of an exception or variation in the application of zoning restrictions. However, the authority of the zoning board in this respect is a discretionary one, and its decision is generally upheld, whether the application for the variation is granted or refused." 58 Am. Jur. 1062, sec. 229.
A late and useful textbook is Yokley's Zoning Law and Practice, Michie, 1948. State and federal decisions are critically and succinctly reviewed. At pages 30, 31, the following *171 is approvingly quoted from American Wood Products Co. v. City of Minneapolis, 8 Cir., 35 F. (2d) 657; "Governing bodies of municipalities clothed with authority to determine residential and industrial districts being better qualified by their knowledge of the situation to act upon such matters than are the Courts, they will not be interfered with in the exercise of their police power to accomplish the desired end unless there is a plain violation of the constitutional rights of citizens."
Illustrative of the fact that lines between zones must be fixed somewhere and there will always be nearby properties subject only to different uses, because in practice there is no "no man's land", is Wilkins v. City of San Bernardino, Cal. App., 162 P. (2d) 711, 717. In this case the creation of small business zones entirely within residential sections was declared valid and within the reasonable exercise of the police power of the City of San Bernardino, the court holding that the line between business and residential property must be drawn somewhere and that the mere fact that business property is located across the street from residential property, or even adjoining the residential property involved, does not determine that the ordinance is invalid or discriminatory.
The following is quoted from the opinion of the court: "The power to declare zoning ordinances (here, application of the ordinance interpolated) unconstitutional only should be exercised where no substantial reason exists to support the determination of the city council. If the reasonableness of the ordinance is reasonably debatable the ordinance must be upheld."
A recent Kentucky decision is to the effect that the fact that property within a few feet of the plaintiff's lot was placed in a commercial zone while plaintiff's property was zoned for residential purposes would not establish that the plaintiff had been discriminated against. Schloemer v. City of Louisville, 298 Ky. 286, 182 S.W. (2d) 782.
*172 Mr. Yokley concludes at pages 46, 47, from his review of the decisions, as follows: "Thus it may be seen that the courts have adopted a liberal attitude in permitting municipalities to restrict within proper limits the right of the individual to use his property as he pleases. If the limitations upon the use of property imposed by a zoning ordinance apply reasonably and fairly to all, they are vaild; and the individual hardship and loss must be borne in order to make possible the greater advantage to the community as a whole. The depreciation of property value by zoning does not render an ordinance void since the general welfare is superior in importance to the pecuniary profits of an individual."
Typical of the cases upon which the foregoing conclusion is founded and peculiarly applicable to the case sub judice is City of Des Moines v. Manhatten Oil Co., 193 Iowa 1096, 184 N.W. 823, 828, 188 N.W. 921, 23 A.L.R. 1322, in which it was said, in many instances residential property owners could derive much larger incomes if they were permitted to devote the same to commercial purposes. The right, however, to restrict such areas has become the law in this and practically every jurisdiction of the United States. While such regulations frequently result in financial loss to property owners, they are based upon the idea that "the interests of the individual are subordinate to the public good." It was likewise held in O'Rourke v. Teeters, Cal. App., 146 P. (2d) 983, that a party makes a large investment in a city lot, which, at the time of purchase is free of restrictions, with the intent to use it for business purposes, does not invalidate a zoning ordinance subsequently adopted restricting the use of the property to residential purposes. The reasoning employed followed the earlier, leading case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016. The police power, of the exercise of which zoning is, cannot be thereby impaired. Douglass v. City Council of Greenville, 92 S.C. 374, 75 S.E. 687, 49 *173 L.R.A., N.S., 958. The present appellants testified that they bought the subject property before enactment of the zoning ordinance with the intention of later erecting on it an eating place which they would now lease to another for public operation; but they purchased it subject to an inconsistent covenant, as has been seen.
At the foot of page 53 of Yokley there are cited numerous state and federal decisions to the point that there is a strong presumption in favor of the validity of municipal zoning ordinances, when within the municipal power as here; and, we add, in favor of the validity of the application of them and the refusal by the municipal authorities to vary them upon the intercessions of landowners. The latter flows from the presumption of validity with which any ordinance is ordinarily clothed, 37 Am. Jur. 810, Municipal Corporations, sec. 177; Annotation, Ann. Cas. 1916B, p. 502, which is, in turn, product of the like presumption which follows a legislative enactment.
Footnotes to pages 322, 323, of Yokley, are replete with citations of authorities to sustain the following: "The law recognizes that there is a presumption that administrative boards, such as a zoning board, will act fairly and with proper motives and upon valid reasons upon an application for a change in the use of premises or in connection with the granting of a variance. However, this presumption of fairness and correctness will fall and if favorable to a variance, the same will be set aside where there is a clear abuse of discretion by the board. It is a well settled proposition of zoning law that a court will not substitute its judgment for the judgment of the board. The court may not feel that the decision of the board was the best that could have been rendered under the circumstances. It may thoroughly disagree with the reasoning by which the board reached its decision. It may feel that the decision of the board was a substandard piece of logic and thinking. None the less, the court will not set aside the board's view of the matter just to inject its own ideas into the picture of things" And at *174 pages 324, 325, likewise with respect to the following: "This, then, brings us to the general consideration of cases holding that the decision of a board of appeals will not be set aside unless its acts are arbitrary or illegal or in excess of the jurisdiction lawfully conferred on the board by statute. Zoning boards are given a wide discretion, but its actions are subject to review in case of an abuse of that discretion. Where the board of adjustment or appeals has acted after considering all the facts and circumstances of a particular case, the court should not disturb the findings of the board unless the board has acted arbitrarily or in the obvious abuse of its discretion or unless the board has acted illegally and in excess of its lawfully delegated authority. To support this proposition, the cases are legion."
In point is the following excerpt from the opinion in the recent case of De Treville v. Groover, Mayor, 219 S.C. 313, 329, 65 S.E. (2d) 232, 240: "It should be added that the power to declare an ordinance invalid because it is so unreasonable as to impair or destroy constitutional rights is one which will be exercised carefully and cautiously, as it is not the function of the courts to pass upon the wisdom or expediency of municipal ordinances or regulations."
Of course, the finding of the circuit court in the case in hand that there has been no unlawful discrimination against appellants by refusal of the application for a variance of the zoning ordinance and, therefore, no deprivation of them of their property, cannot be affirmed on account of the reluctance last referred to or on the presumption of valid municipal action alone; and we have carefully reviewed the voluminous evidence and considered the arguments of appellants. It would serve no useful purpose to fully state them. They have not convinced us of error by the trial court, whose decree will be affirmed.
Appellants have earnestly contended that the Myrtle Beach ordinance and map, which are in evidence constitute objectionable "spot" zoning. 58 Am. Jur. 965, *175 sec. 39. Yokley, Art. 3, p. 152. On the contrary, we think that this might be the result if the variance which appellants have sought were permitted; it would allow a single business establishment in a residential zone of considerable area which now contains no "spot". Courts cannot become city planners but can only correct injustices when they are clearly shown to result from the municipal action, which is not the case here. The decisions relating to spot zoning are rather against appellants than in their favor. Annotations, 128 A. L.R. 741 and 149 A.L.R. 292. Summary of them is stated in 149 A.L.R. 293, as follows: "So, generally speaking, it has been held that where an ordinance establishes a small area within the limits of a zone in which are permitted uses different from or inconsistent with those permitted within the larger, such `spot zoning' is invalid where the ordinance does not form a part of a comprehensive plan of zoning or is for mere private gain as distinguished from the good of the common welfare."
Reliance is also had by appellants upon the comparatively early case of Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842, which however is inapplicable under its facts. There the zoning, which was held invalid by the Supreme Court, attempted to subdivide singly owned vacant property, placing a portion only of the owner's lot in a restricted residential zone, with adjoining property unrestricted and actually used for industry.
The exceptions are overruled.
Affirmed.
BAKER, C.J., and FISHBURNE, TAYLOR, and OXNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2580224/ | 115 F. Supp. 2d 1157 (2000)
HIGHLANDER GOLF, INC. and Sun Mountain Sports, Inc., Plaintiffs,
v.
WAL-MART STORES, INC. d/b/a Sam's Club, Defendant.
No. Civ. 00-4024.
United States District Court, D. South Dakota, Southern Division.
September 27, 2000.
*1158 Lee A. Magnuson, R. Alan Peterson, Lynn, Jackson, Shultz & Lebrun, Sioux Falls, SD, for plaintiff.
Kristine L. Kreiter, Woods, Fuller, Shultz & Smith, Sioux Falls, SD, Todd P. Guthrie, Wal-Mart Stores, Inc., Bentonville, AR, for defendant.
MEMORANDUM OPINION AND ORDER
PIERSOL, Chief Judge.
Defendant Wal-Mart Stores, Inc. d/b/a Sam's Club ("Defendant") filed a Motion to Dismiss for Improper Venue. Plaintiffs Highlander Golf, Inc. and Sun Mountain Sports, Inc., opposed the motion and filed a Motion for Limited Discovery on Forum Selection Issue and an Alternative Motion to Transfer the Matter to the Arkansas Federal District Court.
BACKGROUND
Plaintiffs commenced this action in state court in South Dakota on January 13, 2000. Defendant filed a Notice of Removal on February 14, 2000, based on diversity jurisdiction under 28 U.S.C. § 1332. The facts of the case are drawn from Plaintiffs' Complaint, the motion papers, and assertions made by counsel at oral argument.
Highlander Golf, Inc. ("Highlander") sells golf related equipment. Highlander was previously a division of Sun Mountain Sports, Inc. ("Sun Mountain") which operated in South Dakota. In September 1999 Highlander purchased certain accounts receivable *1159 from Sun Mountain, including the account receivable allegedly due from Defendant.
According to Plaintiffs, in about March and April 1998, Sun Mountain received purchase orders from Defendant for golf bag dual strap systems. (Compl. ¶ 5; Pl. Opp. at 2.) Defendant allegedly ordered 57,984 of these dual strap systems for a total of $866,860.80. (Compl.¶ 5.) Sun Mountain delivered the goods to Defendant and Defendant paid the full contract price for these goods in May or June 1998. (Compl. ¶¶ 6 & 7; Pl.Opp. at 2; Affidavit of William R. Madson ("Madson Aff.") ¶ 5.) According to Plaintiffs, in the summer of 1998 Defendant became concerned with the sales of the dual strap system and brought their concerns to the Plaintiffs. Plaintiffs did not agree to any concessions. (Pl.Opp. at 2.)
In the fall of 1998, Defendant ordered approximately $850,000 worth of golf bags from Sun Mountain. (Compl. ¶ 8; Pl.Opp. at 2; Madson Aff. ¶ 12.) Plaintiffs claim that these golf bags were delivered to Defendant but that Defendant took a "mark down or set off of $303,231.00 against its previous payment to Sun Mountain for the [dual strap systems it had previously purchased]." (Compl.¶ 8.) Plaintiffs claim Sun Mountain did not consent to such a set off.
Defendant claims that at the time Defendant purchased the golf bags the parties were operating under a written Vendor Agreement dated August 12, 1998 ("Vendor Agreement"). (Pl.Mem. at 1; Pl. Motion, Ex. A.) That agreement contains a forum selection clause which states:
THIS AGREEMENT AND ALL DISPUTES ARISING HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARKANSAS. THE PARTIES AGREE THAT THE EXCLUSIVE JURISDICTION OF ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY DISPUTE RELATING TO THE SERVICES OR GOODS PROVIDED HEREUNDER SHALL BE IN THE STATE AND FEDERAL COURTS OF THE COUNTIES OF BENTON OR WASHINGTON, STATE OF ARKANSAS.
(Pl. Motion, Ex. A. at 3.)
The Vendor Agreement is signed by the CFO of Highlander at that time, Brad Whitsell. (Def. Motion, Ex. A at 4; Madson Aff. ¶ 9.) The Vendor Agreement is not executed by Defendant and Plaintiffs claim they do not have a copy of such agreement in their files. Plaintiffs also claim that Defendant sent a sample Vendor Agreement contained in a "SAM'S Vendor Information Manual" which was received only a day before the August 12, 1998 Vendor Agreement was received and executed by Plaintiffs.
In addition, Defendant attached to its Reply a 1994 Vendor Agreement containing a forum selection clause which is virtually identical to the forum selection clause in the 1998 Vendor Agreement.
DISCUSSION
A. Validity and Applicability of the Vendor Agreement
Plaintiffs argue that the Vendor Agreement is not applicable because Defendant did not execute the agreement and because the Vendor Agreement was not in effect at the time of the sale of the dual strap systems upon which the Complaint is based. However, an examination of contract law from several states in the Eighth Circuit, including South Dakota and Arkansas, indicates that the Vendor Agreement is likely to be valid.[1]
*1160 First, the Vendor Agreement is applicable. Plaintiffs appear to admit that the Vendor Agreement, if applicable, covered the sale of the golf bags. However, Plaintiffs argue, and the language of the Complaint indicates, that their claims are based on the first contract for the sale of the dual strap systems which was not governed by the Vendor Agreement. Plaintiffs, however, admit in their Complaint, motion papers and accompanying affidavit, that Defendant performed fully under the contract for the dual strap systems. It is hornbook law that when "a duty is fully performed, it is discharged." Farnsworth, Contracts § 8.8 (2nd ed.1990). Thus, Plaintiffs could not sue Defendant for breach of the first contract. Since Defendant has only moved to dismiss for improper venue, the Court cannot dismiss Plaintiffs' claims on the merits. However, as argued by Defendant, the facts as stated actually allege a breach of the second contract for the sale of the golf bags which may be governed by the Vendor Agreement. Plaintiffs cannot escape the forum selection clause by artful pleading. See Terra International, Inc. v. Mississippi Chemical Corp., 119 F.3d 688, 695 (8th Cir.1997) (holding plaintiff could not escape forum selection clause by alleging fraud claims which "involve[d] the same operative facts as would a parallel claim for breach of contract"). Thus, the Court will construe the Complaint in accordance with the facts alleged to state claims for breach of the second contract and therefore finds the Vendor Agreement to be applicable to Plaintiffs' claims.[2]
The Vendor Agreement is also valid. Iowa and Arkansas courts have held that absent a requirement that the contract be signed or an agreement between the parties that the contract will not be binding until it is signed, a contract is valid if signed by one of the parties and accepted by the other. See Fields Engineering & Equipment, Inc. v. Cargill, Inc., 651 F.2d 589, 592 (8th Cir.1981); Service Employees Int'l Local No. 55 v. Cedar Rapids Community School Dist., 222 N.W.2d 403, 407 (Iowa 1974); Southern Wooden Box v. Ozark Hardwood Mnf'g Co., 226 Ark. 899, 294 S.W.2d 761, 763 (1956). It is the "manifestation of mutual expressions of assent" that is essential. Service Employees, 222 N.W.2d at 407. Similarly, the Supreme Court of South Dakota has found that a contract is valid if "executed and delivered by one of them only, but accepted, retained, and acted upon by the other." Reed v. Coughran, 21 S.D. 257, 111 N.W. 559, 560 (1907).
The Vendor Agreement meets these requirements. Plaintiffs admit that it was signed by the CFO of Highlander at the time, Brad Whitsell. Since the Vendor Agreement was put forth by Defendant, it is reasonable to find that the Agreement was delivered, accepted and retained by Defendant. In addition, the actions of the parties following the signing of this agreement shows their mutual assent to it: after the agreement was signed Defendant placed orders for the golf bags and Highlander delivered the bags. Therefore, the Vendor Agreement is a valid contract.
*1161 B. Enforceability of the Vendor Agreement
The forum selection clause is also valid and enforceable. "Forum selection clauses are prima facie valid and are enforced unless they are unjust or unreasonable or invalid for reasons such as fraud or overreaching." M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 752 (8th Cir.1999); see also Green v. Clinic Masters, Inc., 272 N.W.2d 813, 815 (S.D. 1978) (holding that forum selection clauses are enforceable unless unreasonable); Nelms v. Morgan Portable Bld'g Corp., 305 Ark. 284, 808 S.W.2d 314, 316-18 (1991) (holding forum selection clause enforceable unless unreasonable or unfair and applying "minimum contacts" test to determine reasonableness).[3] The South Dakota Supreme Court has relied on a four-factor test to determine the reasonableness of a forum selection clause: "(1) the law which governs the formation and construction of the contract; (2) the residency of the parties; (3) the place of execution and/or performance of the contract; and (4) the location of the parties and witnesses involved in the litigation." Baldwin v. Heinold Commodities, Inc., 363 N.W.2d 191, 194 (S.D.1985).
In Baldwin, the court found that a forum selection clause giving jurisdiction to Illinois courts was reasonable because, while the plaintiff lived in South Dakota, the contract was governed by Illinois law, the defendant's principal place of business was in Illinois, the contract was performed in Illinois and most of the witnesses were in Illinois. Id. at 194-95. Though the case at hand does not present a similarly clear cut set of facts, these four factors on the balance weigh in favor of Defendant. Pursuant to the parties' choice of law clause, the contract is governed by Arkansas law. Highlander resides in South Dakota and Defendant in Arkansas. The contract was to be performed in both these states, with Defendant issuing purchase orders from Arkansas and Highlander shipping the goods from South Dakota. Many of the key witnesses appear to live and work in the parties' respective states. Thus, on balance, Arkansas is just as reasonable a forum as South Dakota. Further, the Plaintiffs do not appear to dispute this and in fact admit that the case may properly be transferred to Arkansas through their alternative motion for transfer. Therefore, the forum selection clause is reasonable. Were it not for the forum selection clause, however, the litigation would remain where it is.
Plaintiffs still claim, however, that the clause is unconscionable and fraudulent. Plaintiffs claim that the clause is unconscionable because Highlander was provided with a sample contract in a "SAM'S Vendor Information Manual" only one day before the Vendor Agreement was signed by Highlander. Plaintiffs note various differences in the appearance of the sample contract as compared to the executed contract. For example, Plaintiffs argue that parts of the sample are illegible, that the length of the two contracts differs, and that the signature lines in the sample appear directly under the forum selection clause while the signature lines appear on the page following the forum selection clause in the executed Vendor Agreement. Plaintiffs also claim that Highlander had never entered into a similar contract and imply that Highlander was forced into signing the contract because it was told by Defendant that it must be executed to complete the deal Plaintiffs claim was already in place.
Even if these allegations are true it does not make the forum selection clause unconscionable. *1162 The forum selection clause in the sample may not be as clear as it is in the Vendor Agreement but it is not illegible. The other differences in the appearance of the contracts complained of by Defendant are obvious enough that Highlander might have noticed them before signing the Vendor Agreement. Further, the fact that the forum selection clause is on the page before the signature lines is also of no consequence. Highlander is a corporation that has done business before and is responsible for and "capable of understanding and intending the agreements" it makes. See Green, 272 N.W.2d at 816. Further, Plaintiffs have not alleged that there was no opportunity for negotiating the provisions of the agreement, that they might not have taken more time before signing the agreement or that there was any disparity in the bargaining power between the parties. In addition, Defendant has produced a Vendor Agreement from 1994 which appears to have been signed by Highlander's former President Bill Madson and which contains a very similar forum selection clause. Therefore, Plaintiffs have not shown that the forum selection clause is unconscionable.
Plaintiffs also claim that the clause should not be enforced because it was procured by fraud. Fraud, however, must be plead with particularity, and Plaintiffs must allege that the forum selection clause itself was procured by fraud. See M.B. Restaurants, 183 F.3d at 752; see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S. Ct. 1522, 1528, 113 L. Ed. 2d 622 (1991) (noting that there was no evidence that plaintiffs' "accession to the forum selection clause" was procured by defendant's fraud). Plaintiffs have not satisfied this standard. Their claims go to the role they assert the Vendor Agreement played in Defendant's alleged fraudulent scheme and do not plead nor show the fraudulent procurement of the forum selection clause in particular. As a result, the forum selection clause will not be invalidated on the basis of fraud.
C. Motion to Transfer
Defendant asks that the Court enforce the forum selection clause by dismissing Plaintiffs' claims. However, Plaintiffs have moved in the alternative to transfer the case to Arkansas. The Court's ability to transfer the case to Arkansas is governed by 28 U.S.C. § 1404(a) which reads: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a) (1993); see also Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S. Ct. 2239, 2245, 101 L. Ed. 2d 22 (holding "federal law, specifically 28 U.S.C. § 1404(a), governs the District Court's decision whether to give effect to the parties' forum selection clause and transfer this case"). Before deciding if the case should be transferred under section 1404, a court "first must decide whether the clause applies to the type of claims asserted in the lawsuit." Terra International, 119 F.3d at 692. Plaintiffs are suing for breach of contract, unjust enrichment and fraud. All of Plaintiffs' claims fall within the forum selection clause. Plaintiffs' argument that the forum selection clause does not apply to their claims is based solely on the assertion that the Vendor Agreement did not govern the transaction which they claim is the basis of their claims. However, Plaintiffs never argue that any of their claims would fall outside the scope of the forum selection clause if the forum selection clause was applicable.[4] Further, in moving for a transfer of this case to Arkansas, the Plaintiffs have not argued that only some of their claims should be transferred but have asked that all claims be transferred. As a result, the *1163 Court will assume, for purpose of transfer, that all Plaintiffs' claims are subject to the forum selection clause.
Mirroring the statutory language of section 1404, the Eighth Circuit has noted three factors courts must consider in deciding whether to transfer a case: "(1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice." Terra International, 119 F.3d at 691. A court's examination, however, is not limited to these factors and a determination must be made on a case-by-case basis. Id. (citations omitted). Further, a "valid and applicable forum selection clause" is properly considered a "`significant factor that figures centrally'" in the court's decision. Id. quoting Stewart, 487 U.S. at 29, 108 S. Ct. at 2244.
Neither party has put forth any arguments or facts that would allow this Court to properly weigh the factors for transfer set forth by the Eighth Circuit. The only fact in evidence, the valid and enforceable forum selection clause, weighs in favor of transfer. Further, Plaintiffs, whose choice of forum is generally given some deference, see Terra International, 119 F.3d at 695, have moved for the transfer. At oral argument, Defendant took no position on the motion to transfer. In its motion papers Defendant, while arguing that Plaintiffs should be required to "commence" their action in the proper court in Arkansas, also recognized the Court's discretion to transfer the case. Indeed, Defendant moved to dismiss under 28 U.S.C. § 1406(a) which allows the district court to dismiss a case for improper venue "or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Therefore, the Court finds that it is appropriate to transfer the case to a Federal District Court in Arkansas in accordance with the forum selection clause.
D. Motion for Limited Discovery
Plaintiffs also filed a motion seeking limited discovery on the issue of the enforceability of the forum selection clause. Plaintiffs suggest that the discovery would consist of a deposition of Defendant's buyer, Gary Fratto. Defendant opposes the motion and seeks its own discovery if the motion is granted.
It appears to the Court that it has all the facts necessary to determine the enforceability of the forum selection clause. Plaintiffs have not shown why more discovery is necessary on this issue. Moreover, Plaintiffs have cited Gary Fratto as a participant in the general fraud it alleges. Mr. Fratto has not been mentioned in connection with the negotiation of the Vendor Agreement or the forum selection clause. Therefore, a deposition of Mr. Fratto might only serve as discovery for Plaintiffs case in general. Accordingly,
IT IS ORDERED:
(1) That Defendant's Motion to Dismiss for Improper Venue is denied;
(2) That Plaintiffs' Motion for Limited Discovery on Forum Selection Issue is denied;
(3) That Plaintiffs' Alternative Motion to Transfer the Matter to the Arkansas Federal District Court is granted; and
(4) That this action should be transferred in accordance with the forum selection clause to the Fayetteville Division of the Federal District Court in the Western District of Arkansas which covers Benton and Washington counties.
NOTES
[1] According to the Second Restatement of Conflict of Laws, the validity of a contract is determined by the law selected by the parties. See Restatement (Second) of Conflict of Laws § 200 cmt. b (1969). In addition, it is the law in South Dakota that a contract is "`construed in accordance with the law of the place where made unless it is shown that it was the intention of the parties to be bound by the law of some other place.'" Green v. Clinic Masters, Inc., 272 N.W.2d 813, 816 (S.D.1978) (citation omitted). As noted above, the Vendor Agreement includes a choice of law provision stating that Arkansas law will govern the contract. Therefore, it would seem that the Court's analysis should rely on Arkansas law. However, the parties fail to address the choice of law issue in their discussion of the applicability of the forum selection clause and instead, rely solely on law from South Dakota and the Eighth Circuit. As a result, the Court will also rely on law from South Dakota and the Eighth Circuit. Moreover, there does not appear to be a significant difference between the law of South Dakota and Arkansas on these issues.
[2] In addition, the Court notes, without deciding, that the sale of the dual straps may have been covered by the forum selection clause in the 1994 Vendor Agreement. At oral argument, Defendant claimed that it operated under the belief that a vendor agreement remained in effect until revoked or superceded by another vendor agreement. As a result, Defendant argues that the sale of the dual strap systems was covered by the 1994 forum selection clause. Plaintiffs argue, however, that the 1994 Vendor Agreement could not have remained in effect because the parties had no dealings between 1994 and 1997.
[3] As noted above, the Vendor Agreement states that the contract is governed by Arkansas law. The Eighth Circuit has not yet determined whether the enforcement of a forum selection clause is a procedural or substantive question. See M.B. Restaurants, 183 F.3d at 752 n. 4. Thus, it is not clear if South Dakota or Arkansas law should be relied on. As noted above, the law in the two states does not differ greatly. However, each party has relied entirely on South Dakota and Eighth Circuit law. As a result, so does this Court. Id.
[4] And if they did the argument would fail. The fraud claim is a tort claim. However, the fraud claim does "`ultimately depend on the existence of the contractual relationship' between the parties," so that claim is also covered by the forum selection clause. Terra International, 119 F.3d at 694 (citations omitted). | 01-03-2023 | 10-30-2013 |
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