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https://www.courtlistener.com/api/rest/v3/opinions/1726214/ | 970 So. 2d 833 (2007)
TRAVNICEK
v.
TRAVNICEK
No. 2D06-5211.
District Court of Appeal of Florida, Second District.
December 19, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743889/ | 286 S.W.3d 674 (2008)
Andre KELLY, Appellant,
v.
Deborah FORD, Appellee.
No. 08-315.
Supreme Court of Arkansas.
September 4, 2008.
Appellant, pro se.
No response.
MOTION FOR RULE ON CLERK
PER CURIAM.
In a per curiam delivered on April 3, 2008, this court remanded this case to the circuit court for proof of compliance with Arkansas Rule of Appellate Procedure Civil 5(b)(1)(C). We asked the court to determine if the rule was complied with at the time a motion for extension of time to file the record was filed and granted by the trial court. See McGahey v. State, 372 Ark. 46, 269 S.W.3d 814 (2007) (per curiam).
In its order on remand, the trial court finds that it did not, at the time the original motion for extension of time was filed and granted, comply with the requirements of Ark. R.App. P.-Civ. 5(b)(1)(C). No hearing was held, and neither Ms. Ford, nor her attorney, was given an opportunity to be heard or even respond to the motion prior to the entry of the order granting the extension.
We have made it clear that there must be strict compliance with the requirements of Rule 5(b). See Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006) (per curiam); White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006) (per curiam). Because the requirements were not met in this case, the motion for rule on clerk filed by the appellant is denied, and the case is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1200035/ | 83 Ga. App. 87 (1950)
62 S.E.2d 660
SUN LIFE ASSURANCE CO. OF CANADA
v.
KIESTER.
33309.
Court of Appeals of Georgia.
Decided December 5, 1950.
Rehearing Denied December 19, 1950.
*88 M. D. McLendon, W. Colquitt Carter, Bryan, Carter & Ansley, for plaintiff in error.
Lokey & Bowden, contra.
TOWNSEND, J.
(After stating the foregoing facts.) The construction of the exclusion clause of a life-insurance policy, "participating, as a passenger or otherwise, in aviation or aeronautics," is of first impression in this State, although this clause and others almost identical with it have received attention from other courts throughout the country. Two fundamental principles of law of force in this State first, that policies of insurance, when susceptible of more than one construction, should be most strictly construed against the insurance company (Atlas Assurance Co. v. Lies, 70 Ga. App. 162, 27 S.E. 2d, 791; Johnson v. Mutual Life Insurance Co., 154 Ga. 653 (2), 115 S.E. 14); and second, that contracts of insurance, like other contracts, should be construed in accordance with the intention of the parties, unambiguous provisions thereof to be given their plain and reasonable intendment (Aetna Life Insurance Co. v. Padgett, 49 Ga. App. 666, 176 S.E. 762; Penn Mutual Life Insurance Co. v. Marshall, 49 Ga. App. 287, 175 S.E. 412) are recognized in all the cases we have examined construing this and similar clauses in insurance policies. Applying these rules of law in connection with the persuasive authority of the decisions construing these or similar words, it is noted that the trend of modern decisions has followed the increase in volume and safety of air travel, with the result that courts generally have in recent years been inclined to give a stricter construction to aviation-exclusion clauses. The first of these policies used the term, "engaged in aviation or aeronautics," "engaged in aeronautics operation," or "engaged in aeronautic expeditions" or "engaged in aeronautical activity." The word "engaged" in such policies has almost uniformly been construed to have an occupational connotation, so *89 that a mere passenger would not be engaged in an aeronautical expedition or anything of the kind. Recovery by the beneficiary under such policies was accordingly allowed in the following cases: Hartol Products Corp. v. Prudential Ins. Co., 290 N.Y. 44 (47 N.E. 2d, 687); Provident Trust Co. of Philadelphia v. Equitable Life Assurance Soc., 316 Pa. 121 (172 A. 701); National Bank of Commerce v. New York Life Insurance Co., 181 Tenn. 299 (181 S.W. 2d, 151); Benefit Assn. of Ry. Employees v. Hayden, 175 Ark. 565 (299 S.W. 995, 57 A.L.R. 622); Masonic Accident Ins. Co. v. Jackson, 200 Ind. 472 (164 N.E. 628, 61 A.L.R. 840); Gits v. New York Life Ins. Co., 32 Fed. 2d, 7; King v. Equitable Life &c. Soc., 232 Iowa 541 (5 N.W. 2d, 845); Provident Trust Co. of Philadelphia v. Equitable Life Assur. Soc. of the U. S., 316 Pa. 121 (supra); Equitable Life Assur. Soc. v. Dyess, 194 Ark. 1023 (109 S.W. 2d, 1263); Day v. Equitable Life Assur. Soc. of U. S., 83 Fed. 2d, 147; Price v. Prudential Ins. Co., 98 Fla. 1044 (124 So. 817). Some of these cases contained the phrase, "as a passenger or otherwise," in the body of the exclusion clause of the insurance policy; others did not. Recovery under similar clauses was denied in Masonic Accident Ins. Co. v. Jackson (Ind. App.) 147 N.E. 156, Ivy v. New York Life Ins. Co., 33 Fed. Supp. 841, and National Exchange Bank &c. Co. v. New York Life Ins. Co., 19 Fed. Supp. 790. The latter case involved one policy containing the words, "engaging in aeronautic operations," and four policies with the words, "Participation in aviation or aeronautics," all the policies also containing the phrase "as a passenger or otherwise"; and the court, in denying recovery, held that the phrase, "as a passenger or otherwise," did away with any ambiguity resulting from the word "engaging," and was intended to cover every person riding in an airplane. It is noted that the remaining four policies involved the same wording as that in the case at bar.
Courts generally, however, while holding that the word "engage" had an occupational connotation, at first pressed a technical distinction as to the word "participate," and generally denied recovery under policies containing the words, "participating as a passenger or otherwise in aeronautic activity," "participating as a passenger or otherwise in aeronautic expeditions," and "participating as a passenger or otherwise in aeronautic *90 operations," following the earlier distinction that "participation" might refer to a single transaction or flight, whereas "engaging" did not do so. See Bew v. Travelers Ins. Co., 95 N. J. Law 533 (112 A. 859, 14 A.L.R. 983); Pittman v. Lamar Life Ins. Co., 17 Fed. 2d, 370; Gibbs v. Equitable Life Assur. Soc. of the U. S., 256 N.Y. 208 (176 N.E. 144); Head v. New York Life Ins. Co., 43 Fed. 2d, 517; First National Bank of Chattanooga v. Phoenix Mutual Life Ins. Co., 62 Fed. 2d, 681; Mayer v. New York Life Ins. Co., 74 Fed. 2d, 118 (99 A.L.R. 155); Goldsmith v. New York Life Ins. Co., supra.
More recent cases, however, have tended to abandon this technical distinction between the words "engage" and "participation", and also a like distinction between the words "aviation" and "aeronautics." In Martin v. Mutual Life Ins. Co., 189 Ark. 291 (71 S.W. 2d, 694), the court held that the words, "participation in aviation or aeronautics," do not cover a mere passenger, stating: "The distinction thought by the courts to exist between `engage in aeronautics' and `participation in aviation' may be apparent to, and approved by, those learned in the niceties of the language and accustomed to its precise use, but it is to be doubted whether these hairsplitting and subtle distinctions would occur to, or be understood by, the majority of the thousands of persons who seek insurance against the many hazards of life and limb. . . Words and phrases used in insurance policies should be construed by their meaning as used in the ordinary speech of the people and not as understood by scholars." Having abandoned this technical distinction, the courts allowed recoveries in Martin v. Mutual Life Ins. Co., supra; Mass. Protective Assn. v. Bayersdorfer, 105 Fed. 2d, 595; Wells v. Kansas City Life Ins. Co., 46 Fed. Supp. 754; Swasey v. Mass. Protective Assn., 96 Fed. 2d, 265; Temmey v. Pheonix Mutual Ins. Co., 72 S. D. 387 (34 N.W. 2d, 833).
Many of the cases just cited do not contain the qualifying clause, "as a passenger or otherwise," which it is argued by the defendant broadens the exclusion and makes it all-inclusive. However, as held in Provident Trust Co. of Philadelphia v. Equitable Life Assur. Soc., supra, and Hartol Products Corp. v. Prudential Ins. Co., supra, the words, "as a passenger or otherwise," mean simply "anybody and everybody," so that, if the *91 insured is not participating in aviation or aeronautics, the question of whether or not he is a passenger is immaterial, and, if he is participating in aviation or aeronautics, then he is neither more nor less excluded by reason of being a passenger. In like manner, as held in Swasey v. Mass, Protective Assn., supra, the words "aviation" and "aeronautics" refer alike to the science or art of flying. Therefore, no valid distinction can be drawn from the use of one rather than the other.
In Phoenix Mutual Life Ins. Co. v. Flynn, 171 Fed. 2d, 982, recovery was allowed under the terms of a policy containing the exclusion clause, "death of the insured resulting directly or indirectly from participating in aeronautics, as a passenger or otherwise . . is a risk not assumed by the company." The court held such a policy was at best ambiguous, and stated: "If the insurance company had meant what it now says it meant, the opportunity was at hand when the policy was issued to express its position in plain words. If, for example, it intended to exclude any death resulting from an airplane flight, words of plain import could have been found so that no question could be raised. In the deliberate use of a word or phrase having a well-recognized technical meaning, it is a fair conclusion that the insurer meant that something more must be shown than the mere use, as a passenger, of the facilities of an aeroplane."
The trial court, in a well-considered opinion in which the leading cases on this subject were discussed, followed the Flynn case and overruled the general demurrer to the petition. This judgment is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364912/ | 72 S.E.2d 869 (1952)
236 N.C. 419
KENNEDY et al.
v.
KENNEDY.
No. 390.
Supreme Court of North Carolina.
November 5, 1952.
*870 Russell J. Lanier, Beulaville, and Grady Mercer, Kenansville, for petitioners appellants.
Henry L. Stevens, III, and E. Walker Stevens, Warsaw, for defendant appellee.
VALENTINE, Justice.
Does the language appearing at the end of the description in each of the three deeds under which Hobart A. Kennedy took title to the lands in question have the effect of creating life estates in the grantors named in said deeds? This question must be answered in the negative.
The recent case of Artis v. Artis, 228 N. C. 754, 47 S.E.2d 228, furnishes abundant authority for the position here taken.
In the deeds now under consideration, the words of the granting clause, the habendum clause, and the warranty are clear and unambiguous and are fully sufficient to pass immediately a fee simple title to Hobart A. Kennedy upon delivery of the deeds. These operative clauses constitute an unrestricted conveyance of the land. Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Artis v. Artis, supra. It is well established that the granting clause, when clear, specific and unequivocal, will generally prevail over other recitals in the conveyance. 16 AJ 575; Mayberry v. Grimsley, 208 N.C. 64, 179 S.E. 7. This is especially true when, as in the present case, all other operative provisions of the deed are consonant with the granting clause.
In the Artis case [228 N.C. 754, 47 S.E.2d 232], Winborne, J., speaking for the Court, said: "Ordinarily the premises and granting clauses designate the grantee and the thing granted,while the habendum clause relates to the quantum of the estate. `The granting clause is the very essence of the contract.' 16 Am.Jur., 567. Bryant v. Shields [220 N.C. 628, 18 S.E.2d 157]. And the habendum, in the present case, is in harmony with the granting clause. Therefore, the clause undertaking to divest or limit the fee simple title which had been conveyed unqualifiedly * * * is repugnant to both the granting clause and the habendum. Hence the granting clause will prevail and the repugnant clause will be rejected." Citing Blackwell v. Blackwell, 124 N.C. 269, 32 S.E. 676; Wilkins v. Norman, 139 N.C. 40, 51 S.E. 797; Bryant v. Shields, supra; McNeill v. Blevins, 222 N. C. 170, 22 S.E.2d 268.
It clearly appears, in the present case, that the language appearing immediately after the description in each deed attempts to cut down or limit the estate conveyed and is therefore inconsistent with and repugnant to all other provisions of the deed, including the granting clause. Consequently, the incompatible recital must yield to the more effective operative clauses, and must be rejected as repugnant.
*871 We therefore conclude that a fee simple title to the lands in question passed to Hobart A. Kennedy immediately upon the delivery of the deeds, and that his widow is entitled to dower in all of the lands described in the pleadings. G.S. § 30-5; Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 1 S.E.2d 853. The court below was fully authorized to proceed with the appointment of jurors for the allotment of the dower. Campbell v. Murphy, 55 N.C. 357; Citizens Bank & Trust Co. v. Watkins, supra; Artis v. Artis, supra.
For the reasons assigned, the judgment below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364920/ | 72 S.E.2d 598 (1952)
236 N.C. 239
SPENCER
v.
McDOWELL MOTOR CO., Inc., et al.
No. 26.
Supreme Court of North Carolina.
October 8, 1952.
*601 Wilson & Wilson, Elizabeth City, for plaintiff appellee.
John H. Hall, Elizabeth City, for defendant Motor Co., appellant.
W. C. Morse, Jr., Elizabeth City, for defendant Ives, appellant.
WINBORNE, Justice.
I. The appellant Motor Company assigns as error, among others, portions of the charge as given by the court in respect to the third issue, that is, the issue as to contributory negligence of plaintiff (assignments of error numbers 9 and 10 based on its exceptions 24 and 26), and to the failure of the court to declare, explain and apply the law arising on the evidence on the third issue, particularly as it concerns or is addressed to the statute requiring pedestrians to walk on the extreme left-hand side of the highway and yield the right of way to approaching traffic, as provided for in G.S. § 20-174(a). (Assignment of error number 13 based on exception 29.) And the appellant Ives also assigns as error the same portions of the charge as so given. (Assignments 3 and 4 based on his exceptions 12 and 13.) These exceptions are well taken.
In this connection it is appropriate to turn to an act passed by the General Assembly, Public Laws 1937, Chap. 407, Article XI, now Part 11 of Chap. 20 of General Statutes, pertaining to rights and duties of pedestrians in respect to streets and highways in this State.
In Sec. 133 of the above Act, now G.S. § 20-172, it is declared that "Pedestrians shall be subject to traffic control signals at intersections as heretofore declared in this article, but at all other places pedestrians shall be accorded the privileges and shall *602 be subject to the restrictions stated in part eleven of this article." Then, after defining in Sec. 134, now G.S. § 20-173, pedestrians' right of way at crosswalks, it is further declared in Sec. 135, now G.S. § 20-174, that "(a) Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right-of-way to all vehicles upon the roadway", and that "(d) It shall be unlawful for pedestrians to walk along the traveled portion of any highway except on the extreme left-hand side thereof, and such pedestrians shall yield the right-of-way to approaching traffic."
The trial court after reading to the jury only the provisions of subsection (a) of Sec. 135, now G.S. § 20-174(a) above quoted, charged as follows: "I instruct you in that respect, gentlemen, that the provisions of that statute do not require a pedestrian on the highway to yield the right of way; the duty is imposed upon him under the terms of that statute to yield the right of way to traffic approaching from the front as they are going down the left side of the highway." This is the portion to which exception 24 relates.
In this connection there is evidence in the record from which it may be inferred that plaintiff was walking north along the highway on her right-hand side. Defendant Ives testified that when he first saw plaintiff she was facing more towards Elizabeth City than she was in the direction from which he was coming. And plaintiff herself testified: "I crossed the highway to the east shoulder; I turned and was walking left facing traffic, going south."
True, plaintiff also testified, "I just saw it (the convertible) coming facing me from the direction of Weeksville, towards Elizabeth City." This testimony is susceptible of the inference, as plaintiff contends, that she was walking south on her left-hand side of the highway.
Thus it was incumbent upon the trial court to give appropriate instruction in the light of both inferencesthat is, (1) the inference that plaintiff was walking on her left-hand side of the highway, and (2) the inference that she was walking on her right-hand side of the highway, as the jury may find the facts to be.
If she were walking on her left-hand side the statute says she "shall yield the right-of-way to approaching traffic". Hence we are constrained to hold that the portion of the charge to which exception is here taken reads into the statute more than it contains, and is calculated to mislead and confuse the jury.
On the other hand, if plaintiff were walking north on her right-hand side of the highway, this was in violation of the statute, G.S. § 20-174(d), and would be evidence of negligence to be considered in connection with surrounding circumstances as to whether she used reasonable care and caution commensurate with visible conditions. See Miller v. Lewis & Holmes Motor Freight Corp., 218 N.C. 464, 11 S.E.2d 300; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; also Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696; Id., 216 N.C. 487, 5 S.E.2d 555.
As to Motor Company's Assignment of Error No. 10: The court, after charging on the burden of proof as to the third issue, stated the contentions of the plaintiff, and of the defendants as to how the issue should be answered in keeping with their respective contentions. Then the court instructed the jury: "If * * * you find by the greater weight of the evidence that at the time and place in question Mrs. Spencer, the plaintiff in this action, failed to exercise that degree of care a person of ordinary prudence would exercise in the position she occupied on the shoulder of the road as the car was approaching her and passed her and that by reason of the position in which she assumed or placed herself she caused the car to collide with and inflicting the injuries sustained about which she complains, or that was the proximate cause, it would be your duty to answer that issue Yes; or if you find by the greater weight and when I say `proximate cause' I mean contributing as a proximate cause or one of the proximate causes of the collision and injury, or (U) if you find by the greater weight of the evidence that at the time and place *603 in question the plaintiff Mrs. Spencer was walking on the right side of the highway in the direction in which she was going, and that in so doing she was acting in violation of the statute which I read to you, and that she was in plain view of the defendant Ives operating the automobile, or where with the exercise of reasonable care, she could have been seen or should have been seen; and that Ives negligently and carelessly failed to exercise that degree of care a person of ordinary prudence would exercise or due care to prevent the automobile from colliding with her, and that such negligence on his part resulted in and proximately caused the collision and injury, it would be your duty to answer that issue No, unless you so find you would answer it Yes. (V)."
The portion between letters U-V is subject of Exception 26.
In respect to this charge, the conduct of the defendant Ives is not the determinative factor as to whether plaintiff violated her duty, and whether such violation was a proximate or contributing cause of her injury. Hence the instruction, as so given, is erroneous.
II. Appellant Motor Company also excepts to portions of the charge in respect to the second issue, as to whether plaintiff was injured by its negligence, as alleged in the complaint, to which portions Assignments of Error 3 to 7, both inclusive, based upon exceptions 18 to 22, both inclusive, relate. These exceptions are untenable. They challenge the ruling of the court that the provisions of Chapter 494 of 1951 Session Laws of North Carolina are applicable to case in hand. This chapter is entitled "An Act to Provide New Rules of Evidence in Regard to the Agency of the Operator of a Motor Vehicle Involved in Any Accident". It is made a new section of Chapter 20 of General Statutes and is designated G.S. § 20-71.1. It provides in Sec. 1 that "(a) In all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose.
"(b) Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action, be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment; Provided, that no person shall be allowed the benefit of this section unless he shall bring his action within one year after his cause of action shall have accrued."
In Sec. 2 it is declared that "The provisions of this Act shall not apply to pending litigation". And in Sec. 4 it specifies that "This Act shall become effective from and after July 1, 1951."
While appellant Motor Company does not contend that the Legislature is without authority to change the rules of evidence in the manner revealed in the language of 1951 Act, as above stated, it contends that under rules of interpretation the Act should not be given retroactive effect, that is, as to existing causes of action, as the trial court did in the case in hand. It seems clear, however, from the language of the Act that the Legislature intended that on and after 1 July, 1951, the only limitation upon the applicability of the Act is that it shall not apply to pending litigation, that is, litigation then pending. It is so expressly provided.
An action is pending from the time it is commenced until its final determination. And a civil action is commenced by the issuance of a summons. See among others the case McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833.
Moreover, the maxim expressio unius est exclusio alterius, that is, that the expression of one thing is the exclusion of another, applies. From the fact that the Legislature expressly provided that the provisions of the Act shall not apply to *604 pending litigation, it may be implied that it should apply in all other cases.
In Tabor v. Ward, 83 N.C. 291, the Court declares that laws which change the rules of evidence relate to the remedy only, and are at all times subject to modification and control by the Legislature, and that changes thus made may be made applicable to existing causes of action. And it is pertinently stated: "Retrospective laws would certainly be in violation of the spirit of the Constitution if they destroyed or impaired vested right," but that "one can have no vested right in a rule of evidence when he could have no such right in the remedy," and that "there is no such thing as a vested right in any particular remedy." See also Byrd v. Johnson, 220 N.C. 184, 16 S.E.2d 843; B-C Remedy Co. v. Unemployment Compensation Commission, 226 N.C. 52, 36 S.E.2d 733, 163 A.L.R. 773; Stansbury's N.C. Evidence Sec. 6; Wallace v. Western N. C. R. Co., 104 N.C. 442, 10 S.E. 552.
Indeed, the case of Lowe v. Harris, 112 N.C. 472, 17 S.E. 539, 22 L.R.A. 379, on which this appellant relies, is distinguishable from case in hand.
III. Appellant Motor Company also assigns as error the failure of the trial court to declare and explain the law arising on the evidence, on the second issue, particularly as it concerns or is addressed to the defendant's documentary evidence, especially the invoice or conditional sales contract, defendants Exhibits 1, 2 and 3. This is Motor Company's Assignment of Error 14 based on its exception 30.
In the recent case of Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484, this Court in opinion by Ervin, J., reviewed decisions of this Court on the application of provisions of the statute G.S. § 1-180. Headnote 1 epitomizes the case as follows: "G.S., 1-180, requires the trial court to instruct the jury as to the law upon all substantial features of the case without request for special instructions, and a general statement of the law is not sufficient, but the court must explain the law as it relates to the various aspects of the evidence adduced and to the particular issues involved." In the light of this interpretation of the statute applied to case in hand, we are of opinion and hold that the point here made by the appellant is well taken.
IV. It may be noted that exceptions to the denial of motions of defendants for judgments of nonsuit are not assigned as error, nor are they brought up for review. Moreover, since there must be a new trial, and the matters to which other assignments of error are directed may not then recur, we deem it unnecessary to give to them express consideration.
For reasons stated, let there be a New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364911/ | 194 Va. 165 (1952)
MAE LAWSON EVANS
v.
ASPHALT ROADS & MATERIALS COMPANY, INCORPORATED, ET ALS.
Record No. 4007.
Supreme Court of Virginia.
September 10, 1952.
Robert Lewis Young and Steingold & Steingold, for the appellant.
for the appellees.
Present, Eggleston, Spratley, Buchanan, Miller and Whittle, JJ.
1. Each state has exclusive control over the marital status of those domiciled within its borders. In divorce proceedings, each state may determine the status of the party domiciled therein, and such determination will be entitled to full faith and credit in every other state.
2. A person may move from one state to the jurisdiction of another for the purpose of procuring a divorce, provided the removal is coupled with the intention of acquiring a bona fide residence in the latter state. The fact of domicile and not the motive for the choice is the controlling question.
3. Domicile of one party to a divorce creates an adequate relationship with the state to justify its exercise of power over the marital relation.
4. Parties to an action or proceeding will not be permitted to attack collaterally the judgment rendered therein, except where such judgment is absolutely void for want of jurisdiction in the court rendering it. This rule applies to judgments or decrees rendered in divorce proceedings.
5. The invalidity of a divorce decree obtained in another state may not be shown on collateral attack by a stranger thereto, unless he shows that the decree deprived him of a right which existed at the time it was rendered. This is an exception to the general rule that a judgment regular on its face cannot be attacked collaterally, and its application is limited to the condition stated.
6. The requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister state where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the state which rendered the decree.
7. Under the common law, the right to collaterally attack the validity of a judgment is restricted to persons having a pre-existing interest at the time the judgment was rendered.
8. The law does not permit wanton or unnecessary attacks upon its judgments, and they will stand as valid against any third person, who fails to show that he has a real and substantial interest in avoiding the judgment, and one which the law is bound to protect. The rule against collateral attacks upon judgments does not apply to such third persons or strangers to the record as would be prejudiced in regard to some pre-existing right if the judgment were given full effect.
9. Appellant, widow of defendant, claimed before the Industrial Commission of Virginia the right to receive compensation as a dependent of deceased. Appellees, one of whom was an infant son of decedent by a former marriage, attacked the validity of a divorce granted decedent in the State of Nevada dissolving that marriage and claimed that the son was the sole dependent. Appellant contended that appellees did not have the right to make a collateral attack on the Nevada decree. That contention was correct for appellees did not show that they would have been permitted to make a collateral attack on the decree in the courts of Nevada, therefore the decree was not susceptible to attack by them in Virginia.
Appeal from an award of the Industrial Commission of Virginia. The opinion states the case.
Rixey & Rixey, Lawson Worrell, Jr. and Williams, Cocke & Tunstall,
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
The major question to be determined in this case is whether, in a hearing before the Industrial Commission of Virginia to *167 ascertain the dependents of a deceased employee, Virginia Workmen's Compensation Act, Code of Virginia, 1950, chapter 7, sections 65-89, et seq., a minor son of a deceased employee, Roy N. Evans, had the right to attack the validity of a divorce granted his father in the State of Nevada. The issue turns on the effect in Virginia of the Full Faith and Credit Clause of the Federal Constitution, Article IV, | 1, and the Act of Congress in pursuance thereof, 28 U.S.C. | 1738, 28 U.S.C.A. | 1738. *
* U.S. Const. Art. IV, | 1: "Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof."
28 U.S.C. | 1738, 28 U.S.C.A. | 1738: "Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken."
If the answer is in the negative we do not reach other questions in the case.
On November 6, 1950, Roy N. Evans, an employee of Asphalt Roads & Materials Company, Incorporated, was killed in an accident arising out of and in the course of his employment. Unable to reach an agreement with his employer, Mae Lawson Evans, claiming compensation as his widow, applied to the Industrial Commission of Virginia for a hearing. Code of Virginia, 1950, | 65-91. A hearing was held before W. F. Robinson, Chairman of the Commission. Appearing at the hearing, as claimants, were the appellant and Sallie G. Evans, on behalf of her son, Kiah Evans, a minor child of the deceased employee, and the employer of the deceased, with its insurance carrier. It was agreed that the only question was that of determining the names of the persons entitled to receive compensation as dependents of the deceased.
There was introduced in evidence a certificate showing the marriage of Sallie G. Evans to the deceased in Texas in February, 1925, and a birth certificate of Kiah Evans, a child born of their marriage on July 28, 1936. It was admitted that two other children of that marriage were over eighteen years of age and not entitled to compensation. It was also admitted that Mrs. Sallie G. Evans obtained an absolute divorce in North Carolina, upon constructive service of process, from Roy N. *168 Evans in June, 1947. The decree gave her the custody and control of the children.
Mae Lawson Evans, being sworn as a witness, presented a certificate of her marriage to Roy N. Evans on October 19, 1946, in the county of Washoe, Nevada, a certified copy of a decree of absolute divorce from her husband Floyd Smith, and a certified copy of a decree of absolute divorce of Roy N. Evans from Sallie Evans, together with authenticated copies of the proceedings in each case. Both divorce decrees were entered on September 11, 1946, by the Second Judicial Court of the State of Nevada, in and for the County of Washoe. Appellant testified that after her marriage to Evans, she lived with him until his death. She then rested her case.
The authenticated copies of the divorce proceedings show that Mae Lawson Smith on June 25, 1946, and Evans on July 8, 1946, filed suits for divorce in the named court, in Reno, Nevada, against their respective spouses. In each case service by publication was had by publication of the summons in a Reno newspaper and by mailing a copy of the summons and complaint to the last known post office address stated in the affidavit for the order of publication and summons. Neither of the defendants entered an appearance, nor were they served with process.
In the Evans' case, the evidence taken by depositions showed that he had been personally present in Reno, Nevada, since August 22, 1945; that he came there with the intention of making Nevada his residence for an indefinite period; that that intention remained with him; and supported the allegations of his complaint entitling him to a divorce. He obtained a decree, the court finding that he was a bona fide resident of Nevada and entitled to an absolute divorce from the defendant "upon the ground of extreme cruelty, mental in character."
In the case of the appellant, the depositions support her allegations as to residence in Nevada, and the allegations of her bill of complaint. The court granted her an absolute decree of divorce upon the ground of separation for more than three consecutive years, and awarded her the custody of her two children.
In the case of Evans, the appellant testified that she personally knew that Roy Evans had resided in Nevada since August *169 22, 1945. In the case of appellant, the testimony as to her residence in Nevada was corroborated by her daughter.
It will be noted that each proceeding was brought ten months after the complainants arrived in Nevada. In Nevada an actual and bona fide residence and domicile of six weeks in the State is required before suit can be maintained for divorce.
In each case it appears from the record of the proceedings therein that the Nevada court, a court of competent authority, had jurisdiction of the respective complainants and the subject matter of the cases. No attack is made upon the form and nature of the substituted service as failing to meet the requirements of due process, nor that there was a failure to follow procedural processes in any respect.
Appellees contended before the hearing Commissioner that the Nevada decrees were void for lack of jurisdiction because of falsity of the testimony of the appellant and Evans as to their residence in Nevada, and by reason of fraud in obtaining orders for publication of service of process. In support, they presented evidence tending to show that the appellant and Evans went to Nevada merely for the purpose of obtaining the decrees, with no intention of making that State their bona fide residence, and that in their respective affidavits for orders of publication of service of process each of them knowingly stated a false last known place of address of each defendant spouse.
After the case was heard by the hearing Commissioner and before his award, appellant filed a petition making certain legal contentions and asked to be permitted to produce further evidence as to the validity of her marriage to Evans, on the ground that she did not anticipate the necessity of producing evidence to meet an attack on its validity at the time of the hearing. The hearing Commissioner, refusing her request, on August 27, 1951, held that the Nevada divorces were null and void because of fraud, in that the complaining parties had not established domicile in that State, and the Nevada court was without jurisdiction. He ruled that the appellant was not the lawful wife of Roy Evans at the time of his accident, and entered an award in favor of Kiah Evans as sole dependent.
Appellant asked for a review before the full Commission. The matter came on for review on September 25, 1951, at which time appellant filed a supplemental petition, accompanied by *170 affidavits, asking the Commission to remand the case to the hearing Commissioner, with leave to introduce evidence as to her status as the lawful widow of Evans and as a person totally dependent on him as a matter of fact. The prayers of the original and supplemental petitions were denied, and on December 19, 1951, the full Commission affirmed the findings of fact and conclusions of law by the hearing Commissioner and the award entered thereon. We awarded this appeal.
As we proceed it is well to note that Sallie G. Evans is not a party to this proceeding. She appeared only in behalf of her son, Kiah Evans, claimant. Her divorce obtained in North Carolina in 1947, bars her from participation in any compensation benefits.
In view of the particular issue under discussion, that is, what effect we must give, under the Full Faith and Credit Clause of the Constitution, to the judicial proceedings of Nevada, it has not been necessary to set out in detail evidence of fraud in matters on which the divorce decrees were rendered. Our primary considerations are: first, whether the divorce decrees are absolutely void or merely voidable; and, second, if merely voidable, whether they are subject to collateral attack by the appellees.
For many years the courts have found the question of what effect is to be given in one state to a divorce decree granted in another a burdensome problem. In the earlier decisions of the Supreme Court of the United States we find a series of divided and discordant opinions, especially where the decree was rendered upon constructive service of process, and where there was no appearance by the defendant spouse. Johnson Muelberger, 340 U.S. 581, 71 S. Ct. 474, 95 L.ed. 552, to which we shall hereafter refer, seems to settle much of the diversity of opinion.
It is well settled that each state has exclusive control over the marital status of those domiciled within its borders. In divorce proceedings, each state may determine the status of the party domiciled therein, and such determination will be entitled to full faith and credit in every other state. Steckel Steckel, 118 Va. 198, 199, 86 S.E. 833; Humphreys Strong,
139 Va. 146, 163, 123 S.E. 554.
In Humphreys Strong, supra, at page 164, we said that a person may move from one state to the jurisdiction of *171 another for the purpose of procuring a divorce, provided the removal is coupled with the intention of acquiring a bona fide residence in the latter state. The fact of domicile and not the motive for the choice is the controlling question. This we reiterated in McFarland McFarland, 179 Va. 418, 427, 19 S.E.(2d) 77. The same rule has been applied in Nevada. Walker Walker,
45 Nev. 105, 198 P. 433.
In two cases, Williams North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L.ed. 279, 143 A.L.R. 1273, and 325 U.S. 226, 65 S. Ct. 1092, 89 L.ed. 1577, 157 A.L.R. 1366, it was held that domicile of one party to a divorce creates an adequate relationship with the state to justify its exercise of power over the martial relation. 317 U.S., at page 298, 63 S. Ct., at page 213, and 325 U.S., at page 235, 65 S. Ct., at page 1097.
In the first Williams' Case, the Supreme Court expressly overruled its former holding in Haddock Haddock, 201 U.S. 562, 26 S. Ct. 525, 50 L.ed. 867, that North Carolina was not required to give full faith and credit to a Nevada decree, 317 U.S. 304, 63 S. Ct. 216.
The contentions of the appellees are particularly directed to an attack upon the validity of the divorce obtained by Roy Evans. They say they "are not especially interested" in the actions of the appellant in obtaining her divorce; but rely on her actions and those of Evans to show a conspiracy to obtain the divorces in such manner that their consorts would not know of the proceedings. We will, therefore, confine ourselves largely to the validity of the decree granted Evans.
The Evans' divorce decree, as we have shown, was entered in a court of general jurisdiction, which under the pleadings, the evidence and the findings of that court, had jurisdiction over the complainant and the subject matter involved. The form and nature of the substituted service met the requirements of procedural due process. The decree upon the record of the proceedings in which it was entered, appears to be valid in every regard. For the purpose of showing its validity, matters which were de hors the record were brought forth.
"It is the well-settled general rule that parties to an action or proceeding will not be permitted to attack collaterally the judgment rendered therein, except where such judgment is absolutely void for want of jurisdiction in the court rendering *172 it. This rule applies to judgments or decrees rendered in divorce proceedings." 17 Am. Jur., Divorce and Separation, | 482, page 393.
In 27 C.J.S., Divorce, | 334, page 1300, this is said:
"After a court has acquired jurisdiction, its findings are conclusive in all collateral proceedings; and the decree cannot be collaterally attacked for a defect, imperfection, irregularity, or insufficiency, whether in the proceedings, pleadings, or evidence, which does not render the decree void, but which renders it at the most, only erroneous."
In McNeir McNeir, 178 Va. 285, 293, 16 S.E.(2d) 632, following the general rule, we said that one who has participated in the obtaining of a fraudulent divorce is estopped to deny its invalidity. The bar of estoppel is as effective as to parties and their privies as that of res judicata when the latter doctrine is applicable.
The Full Faith and Credit Clause of the Federal Constitution places on us the duty to accord prima facie validity to the decree obtained by Evans. Esenwein Commonwealth of Pennsylvania, 325 U.S. 279, 280, 65 S. Ct. 1118, 89 L.ed. 1608, 157 A.L.R. 1396. It was at most voidable only. According to the great weight of authority its invalidity may not be shown on collateral attack by a stranger thereto, unless he shows that the decree deprived him of a right which existed at the time it was rendered. This is an exception to the general rule that a judgment regular on its face cannot be attacked collaterally, and its application is limited to the condition stated.
In Volume 1, Black on Judgments, 2d Ed., page 249, a voidable judgment is defined as "one which, though not a mere nullity, is liable to be made void when a person who has a right to proceed in the matter takes the proper steps to have its invalidity declared. It always contains some defect which may become fatal. It carries within it the means of its own overthrow. But unless and until it is duly annulled, it is attended with all the ordinary consequences of a legal judgment. * * * If no proceedings are ever taken against it, it will continue throughout its life to all intents a valid sentence. If emanating from a court of general jurisdiction, it will be sustained by the ordinary presumptions of regularity, and it is not open to impeachment in any collateral action." *173
In Sherrer Sherrer, 334 U.S. 343, 350, 68 S. Ct. 1087, 1090, 1097, 92 L.ed. 1429, 1 A.L.R.(2d) 1355, this is said:
"This Court has also held that the doctrine of res judicata must be applied to questions of jurisdiction arising in state courts involving the application of the full faith and credit clause, where, under the law of the state in which the original judgment was rendered, such adjudications are not susceptible to collateral attack."
Referring to the case of Davis Davis, 305 U.S. 32, 59 S. Ct. 3, 83 L.ed. 26, 118 A.L.R. 1518, and others in related situation, it was there further said:
"Those cases stand for the proposition that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree." 334 U.S., at pages 351-352, 68 S.Ct. 1090-1091. (Italics supplied.)
The case of Johnson Muelberger, supra, decided March 12, 1951, involved an objection to collateral attack on a divorce decree, and the controlling issue was identical with that here. There the evidence disclosed that E. Bruce Johnson entered into a marriage, his third, with Genevieve Johnson, the appellant, in 1944. He died in 1945, leaving a will in which he gave his entire estate to his daughter, Eleanor J. Muelberger. After probate of the will, the third wife filed before a New York Surrogate notice of her election to take the statutory one-third share of the estate under the New York Decedent Estate Law. The daughter contested the status of the third wife, as surviving spouse, attacking the validity of the third marriage of her father on the ground that his second wife had obtained a divorce from him in Florida, without complying with the jurisdictional ninety-day residence requirement of that State. *
* Florida Stat. Ann., 1943, | 65.02.
In the trial before the Surrogate, the undisputed facts disclosed that the second wife had not resided in Florida the required ninety days preceding the filing of her bill of complaint. The father appeared by attorney in the suit, however, and answered, *174 denying the wrongful acts attributed to him; but he did not question the allegation of complainant as to her residence in Florida. The Surrogate ruled against the daughter. His ruling was appealed, and the case finally reached the Court of Appeals of New York. In re Johnson's Estate, 301 N.Y. 13, 92 N.E.(2d) 44.
As the Court of Appeals read the Florida cases to allow the daughter, "a stranger to the divorce action," to attack the decree collaterally in Florida, it decided she should be equally free to do so in New York. * The Supreme Court reversed because it found that the law of Florida would not permit the defendant to attack the Florida decree in that State; and, therefore, New York could not permit such an attack by reason of the Full Faith and Credit Clause. It cited in support deMarigny deMarigny, (Fla.), 43 So.(2d) 442. In conclusion it said: "When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union. The Full Faith and Credit Clause forbids."
* The New York Court, however, recognized the rule which barred the daughter from making her attack on the decree in New York unless she would be permitted to make a collateral attack in the courts of Florida. 301 N.Y. 13, 17, 92 N.E.(2d) 44, 46.
In deMarigny deMarigny, supra, a second wife sought to have the divorce decree of the defendant's first marriage declared invalid. The Supreme Court of Florida refused, holding that being a stranger, without then existing interest, to the divorce decree, she could not impeach it. It further refused to permit her to represent the estate in an effort to redress an alleged fraud on the court. In its opinion, the court quoted with approval, 1 Freeman on Judgments, 5th Ed., 636, | 319, where the author said:
"It is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment. Being neither parties to the action, nor entitled to manage the cause nor appeal from the judgment, they are by law allowed to impeach it whenever it is attempted to be enforced against them so as to affect rights or interests acquired prior to its rendition."
Under the more recent decisions of the Supreme Court, the *175 effect which must be given, under the Full Faith and Credit Clause of the Federal Constitution, by one state to a divorce decree rendered in another state, may be summarized as follows: (1) Domicile of one party to the divorce proceeding creates an adequate relationship with the state to justify its exercise of power over the marital relation; (2) Where the decree has been rendered upon constructive service of process, and there has been no appearance by or on behalf of the defendant spouse, the question of domicile as basis of the jurisdiction of the court granting the decree may be re-examined at the instance of a person who would be prejudiced in regard to some pre-existing right, if the decree were given full effect; and (3) Where the decree is not susceptible to collateral attack in the courts of the state which granted the decree, it is not subject to such attack in other states. Cf. 17 Am. Jur., Divorce and Separation, | 751.5, Cumulative Supplement, 1951, page 125.
In 50 Columbia Law Review, 833, (1950), under the subject "Standing of Children to Attack their Parents' Divorce Decree," the author decries the wisdom of allowing a child to make a collateral attack upon his parents' divorce as a means of enforcing state policy. He views the wide diversity of opinion in the several jurisdictions as due to subtle distinctions based on makeweight argument. He says that while in New York, under a recently developed rule, "the fact that the parents may not question the decree does not affect the right of a child to do so, [1] the opposite rule, operative in South Carolina, [2] would seem to reach a more desirable result."
Under the common law of England, the right to collaterally attack the validity of a judgment is restricted to persons having a pre-existing interest at the time the judgment was rendered. Upton Basset, Vol. 1, Coke's Rep., Eliz. 445. [3]*176 Nevada, by statute, 4 Nevada Compiled Laws, (1929) Hillyer, section 9021, similar to that of Virginia, Virginia Code, 1950, | 1-10, has adopted the common law. So far as we are advised, the same rule of decision prevails in Nevada as in Virginia.
According to Black on Judgments, Vol. 1, 2d Ed., page 391, | 260, the general rule is as follows:
"The law does not permit wanton or unnecessary attacks upon its judgments, and they will stand as valid against any third person, who fails to show that he has a real and substantial interest in avoiding the judgment, and one which the law is bound to protect. As the cases express it, the rule against collateral attacks upon judgments does not apply to such third persons or strangers to the record as would be prejudiced in regard to some pre-existing right if the judgment were given full effect."
In Freeman, Law of Judgments, Vol. 2, 4th Ed., page 609, | 335, this is said:
"It must not, however, be understood that all strangers are entitled to impeach a judgment. It is only those strangers who, if the judgment be given full faith and credit, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment."
The rule in Virginia is in accord with the text authority. In Wilcher Robertson, 78 Va. 602, 617, the above statement of Mr. Freeman is quoted with approval.
In Turnbull Mann, 99 Va. 41, 45, 37 S.E. 288, we said:
"While it is true that the plea of res adjudicata can be filed only by the parties to the suit in which the judgment was entered, or their privies, it is equally true that judgments of courts, where they do not undertake to adjudicate the existing rights of persons who are not parties to the suit, cannot be questioned in collateral proceedings, but are binding on the courts and on all persons so far as they affect the rights of those who were parties."
To the same effect see May Penton, 45 Wyo. 82, 16 P.(2d) 35.
With respect to the general rule in divorce cases, this is said in Davis
Mitchell, 27 Tenn.App. 182, 178 S.W.(2d) 889:
"This brings to the fore the further contention that a stranger to a divorce proceeding whose rights were not prejudiced *177 by the entry of the decree at the time it was rendered cannot attack such decree either directly or collaterally. This contention is plausible and may have merit. The general rule is laid down in Magevney Karsch, 167 Tenn. (3 Beeler) 32, 65 S.W.(2d) 562, 568, 92 A.L.R. 343, to be that the assailant in a collateral attack upon a judgment 'must show prejudice to some right of his that accrued prior to the rendition of the judgment.' That case leaves nothing to be said on the subject of collateral attacks on judgments. True, the judgment there under consideration was not one of divorce, but there is, it seems, no substantial difference in the applicable rule, at least in the absence of overriding considerations of public policy. Freeman on Judgments, Sec. 1203."
An instructive note entitled "The Dilemma of Third Party Attacks upon Foreign Divorces," may be found in the Brooklyn Law Review, Vol. 17, page 70, wherein it is said on page 92: "It is further submitted that the only rule consonant with a functional public policy is that a divorce decree ought not to be collaterally attacked by a stranger thereto unless he demonstrates that the decree deprived him of a then extant right."
No Nevada case has been called to our attention holding that a child may contest in Nevada its parents' divorce, where the parent was barred from contesting, as here, by estoppel. However, in the case of In re Manse Spring and Its Tributaries, 60 Nev. 280, 108 P.(2d) 311, 317, it was said that "a stranger to the title" having no right under the estate is in no position to question the regularity of "proceedings" adjudicating the status of title to lands. Furthermore, it has been held in Nevada that fraud in alleging or establishing required residence in a divorce action is a jurisdictional fact and not available as a ground to annul the decree. Confer Second Judicial Dist. Court, 49 Nev. 18, 234 P. 688, 236 P. 1097.
It seems clear that none of the appellees had any extant right that was prejudiced in the proceedings of Roy Evans to obtain a divorce, or in the rendition of the decree. Kiah Evans was not a party to the proceedings. There is no evidence that Evans was an "employee" within the contemplation of any Workmen's Compensation Act when he obtained his decree of divorce.
The appellees, upon whom the burden rested, have not shown that they, or either of them, would be permitted to make *178 a collateral attack on the decree in the courts of Nevada. In that situation, the decree is not susceptible to attack by them in the State of Virginia. Johnson Muelberger, supra, 340 U.S. 589, 71 S. Ct. 474.
Virginia Code, 1950, | 8-271, provides:
"Authentication of records of courts of United States or other states. -- The records and judicial proceedings of any court of the United States, or of any state, or of any country subject to the jurisdiction of the United States, attested by the clerk thereof, with the seal of the court annexed, if there be a seal, and certified by the judge, chief justice, or presiding magistrate of such court, to be attested in due form, shall have such faith and credit given to them in every court within this State, as they have in the courts of the state, territory, or district whence such records come. (Code 1919, | 6205.)"
The award is reversed to the extent that it denies compensation to the appellant, and the case is remanded to the Industrial Commission, with direction to amend its award to include the appellant as the widow of the deceased, and to divide the compensation between her and the dependent child by his first marriage as provided by law.
Reversed and remanded.
NOTES
[1] In re Lindgren's Estate, 293 N.Y. 18, 55 N.E.(2d) 849, 153 A.L.R. 936, Urquhart Urquhart, 272 A.D. 60, 69 N.Y.S.(2d) 57, affirmed 297 N.Y. 689, 77 N.E.(2d) 7.
[2] Watson Watson, 172 S. Ct. 362, 174 S.E. 33.
[3] Commenting on this case, this is said in Twyne's Case, 3 Coke's Rep. 80b, 83a: "For first it was agreed, that by the common law an estate made by fraud should be avoided only by him who had a former right, title, interest, debt or demand (a 1), as 33 H. 6. a sale in open (e) market by covin shall not bar a right which is more ancient; nor a covinous gift shall not defeat execution in respect of a former debt, as it is agreed in 22 Ass. 72, but he who hath right, title, interest, debt or demand, more puisne, shall not avoid a gift or estate precedent by fraud by the common law." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1364934/ | 72 S.E.2d 520 (1952)
FARLEY et al.
v.
AMERICAN AUTO. INS. CO.
No. CC793.
Supreme Court of Appeals of West Virginia.
October 7, 1952.
Scherer, Bowers & File, W. H. File, Jr., Douglas Bowers, Beckley, for plaintiffs.
Fletcher W. Mann, Beckley, for defendants.
LOVINS, Judge.
This is an action in assumpsit instituted in the Circuit Court of Raleigh County by Earl Farley and Harry Wallace, plaintiffs, against the American Automobile Insurance Company, a corporation, defendant, to recover the sum of $1500, upon an automobile liability insurance policy. A demurrer to the declaration was overruled and the trial court of its own motion certified its ruling to this court.
The policy above mentioned was issued on December 5, 1950, in the names of "Earl Farley and Harry Wallace", to cover specifically a vehicle described as a 1950 model, 1½ ton Ford truck, motor number F-698, M-103 441.
Paragraph IV(3), provided for coverage of a vehicle temporarily substituted for the described vehicle in the following words: "An automobile, not owned by the named Insured, while temporarily used as a substitute for the described automobile while withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction".
On February 1, 1951, Earl Farley had an accident while driving a 1948 Ford truck, owned by Harry Wallace, one of the insured, while the described vehicle was being repaired.
*521 An action for damages was brought against the plaintiffs in the instant action, and the insurance company was requested to defend that action under the terms of the above mentioned insurance policy, coverage being claimed under the provision relative to the use of a substituted vehicle.
Plaintiffs alleged that they have expended $1053.10 in court costs and attorneys' fees in defense of the action for damages, and that they have employed attorneys to institute the present action, paying an additional sum of $400.
Defendants demurred to the declaration, on the grounds (a) that the plaintiffs had not stated a cause of action; (b) and that the substituted vehicle which Earl Farley was using at the time of the accident was owned by Harry Wallace; and therefore such vehicle was not covered by the insurance policy.
The trial court overruled the demurrer, and on its own motion certified its ruling to this court.
The sole and controlling question presented on this certification is: Was the 1948 model Ford truck, which was being operated when the accident occurred, owned by the named insured? If such motor vehicle was so owned, defendant is not liable. If it was not owned by the insured, liability is alleged in the declaration and the same is good on demurrer.
The provision of the insurance policy here considered is for the insured's benefit. Such provision, together with all of the other provisions of the policy, are to be construed liberally in favor of the insured, if any construction is necessary. Thompson v. State Automobile Mutual Insurance Co., 122 W.Va. 551, 11 S.E.2d 849. See Employers' Mutual Liability Insurance Company v. Tollefsen, 219 Wis. 434, 263 N.W. 376; 5 Am.Jur., Automobiles, § 507.
Though we advert to the rule relative to the construction of the provisions of insurance policies, the language of the provision here considered is clear in its meaning, requires no construction, and it only remains to be applied to the facts disclosed by this record. In the case of Adkins v. Insurance Company, 124 W.Va. 388, 20 S.E.2d 471, this court held that the phrase "named insured" in the absence of any qualification thereof, applies only to the person named as the insured. See Madison v. Steller, 226 Wis. 86, 275 N.W. 703; 7 Appleman, Insurance Law and Practice, § 4354.
It is thus seen that the unqualified phrase "named insured" has a restricted meaning and does not apply to any persons other than those named in the policy.
Stating the requirements of the provision relative to the substitute vehicle conversely: if the vehicle substituted for the one being repaired is owned by the named insured, in that event it is not covered by the policy. Bearing in mind the restrictive meaning of the phrase "named insured", we think it would be illogical and untrue to say that Wallace and Farley, being the named insured, owned the substituted vehicle when it is admitted that Wallace was the sole owner thereof. We think that the substituted vehicle, in view of the foregoing, was not owned by the "named insured" and therefore, according to the plain terms of the policy provisions permitting such substitution, the declaration states a cause of action and is good on demurrer.
Of course, we do not mean to treat a partnership as an entity. We are of the opinion, however, that if the allegations of the declaration are established by sufficient proof, the defendant is liable on its policy of insurance.
Therefore, the ruling of the trial court is affirmed.
Ruling affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2213515/ | 166 Ill. App.3d 249 (1987)
521 N.E.2d 98
LOWELL J. MYERS, Plaintiff-Appellee and Cross-Appellant,
v.
RICHARD M. DALEY, State's Attorney of Cook County, Defendant-Appellant and Cross-Appellee.
No. 86-0321.
Illinois Appellate Court First District (4th Division).
Opinion filed December 3, 1987.
Modified on denial of rehearing March 17, 1988.
*250 Richard M. Daley, State's Attorney, of Chicago (Henry A. Hauser, Susan Condon, and Daniel Cannon, Assistant State's Attorneys, of counsel), for appellant.
Lowell J. Myers, of Chicago, appellee pro se.
Judgment affirmed.
PRESIDING JUSTICE McMORROW delivered the opinion of the court:
Lowell J. Myers (Myers) filed a complaint requesting that the court order the State's Attorney of Cook County (State's Attorney) to advise Myers of the status of the State's Attorney's investigation into an incident in which Myers alleged he was the victim of a violent crime. The complaint was made pursuant to the Bill of Rights for Victims and Witnesses of Violent Crime Act (Victim's Rights Act) (Ill. Rev. Stat. 1985, ch. 38, par. 1401 et seq.), which mandates that upon request by the victim of a violent crime, the State's Attorney must inform the victim of the status of the State's Attorney's investigation of the case. Ill. Rev. Stat. 1985, ch. 38, par. 1404(1).
After Myers' complaint was filed, the State's Attorney informed him of the investigation's status. The trial court dismissed the complaint and ordered the State's Attorney to pay Myers' court costs. The State's Attorney appeals and Myers cross-appeals. We affirm.
*251 BACKGROUND
In May 1984, Myers sent a letter by registered mail to the State's Attorney in which he claimed that a certain individual had taken an item of his property and threatened to hit him. After receiving no response from the State's Attorney to this letter or two subsequent letters, Myers sent a final letter requesting information on the status of the investigation of his complaint in May 1985, specifically invoking the Victim's Rights Act. When he failed to receive a response to this final letter, he filed this action in July 1985.
Subsequently, the State's Attorney informed Myers that the State's Attorney's office had declined to initiate a criminal prosecution with respect to Myers' claimed theft. The State's Attorney also requested that Myers voluntarily dismiss his action. Myers responded that he would agree to voluntarily dismiss the action if the State's Attorney would pay the court costs. The State's Attorney filed a motion to dismiss the complaint while Myers filed a motion requesting a dismissal and an award of court costs.
The trial court dismissed the complaint and entered judgment against the State's Attorney in the amount of $92.32 for court costs. The State's Attorney appeals from the order insofar as it granted court costs to Myers. Myers cross-appeals from that portion of the order which assessed costs against Richard M. Daley, not individually, but as State's Attorney of Cook County.
OPINION
1 Generally a plaintiff may not recover costs upon the dismissal of his action. However, where proof of the facts stated in his complaint would entitle him to the relief requested, and the defendant's actions subsequent to the filing of the complaint render such proof and relief unnecessary, the trial court may award plaintiff court costs. See Cicero Lumber Co. v. Town of Cicero (1898), 176 Ill. 9, 33, 51 N.E. 758; Chicago Telephone Co. v. Wolf (1913), 178 Ill. App. 289, 291; Booth v. Gaither (1895), 58 Ill. App. 263, 265; see also Salvador v. Popaa (1974), 56 Ha. 111, 114, 530 P.2d 7, 10; Newport News Firefighters Association Local 794, International Association of Firefighters v. City of Newport News (E.D. Va. 1972), 339 F. Supp. 13, 17-18; Rosenthal v. Shepard Broadcasting Service, Inc. (1938), 299 Mass. 286, 291, 12 N.E.2d 819, 822; 20 C.J.S. Costs § 68(a) (1940).
2 Here, proof of the facts alleged in Myers' complaint would have entitled him to the relief he requested. Myers' complaint alleged that he was the victim of a violent crime which he had reported to the State's Attorney. (See Ill. Rev. Stat. 1985, ch. 38, pars. 1403(a)(4), (c).) *252 Therefore, upon Myers' request the State's Attorney had a legal duty to inform Myers of the status of his case. (See Ill. Rev. Stat. 1985, ch. 38, par. 1404(1).) Myers made repeated requests to be informed of the status of the investigation, but received no reply. Instead, the State's Attorney advised Myers of the status of his case only after Myers had filed suit against the State's Attorney pursuant to the Victim's Rights Act. Under these circumstances, the trial court properly exercised its discretion when it awarded to Myers the costs of suit. Indeed, the purpose of the Act would be frustrated if a victim were forced to file suit to learn the status of his case and were also burdened with the costs of that suit.
3 In his cross-appeal, Myers asserts that the court incorrectly levied costs against Richard M. Daley as State's Attorney of Cook County rather than Richard M. Daley personally. However, Myers raised no objection when the trial court added to Myers' draft order that costs were to be levied against Richard M. Daley, "not individually, but as State's Attorney of Cook County." Argument not raised in the trial court is deemed waived and may not be presented for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill.2d 486, 475 N.E.2d 872; Harbor Insurance Co. v. Arthur Andersen & Co. (1986), 149 Ill. App.3d 235, 240, 500 N.E.2d 707.) As a result, we need not and do not address Myers' claim on appeal that costs were not properly levied against the State's Attorney in his official capacity. We note, however, that because Richard M. Daley as State's Attorney of Cook County appeared and consented to the trial court's jurisdiction, the court acted with personal jurisdiction over him. See generally In re Robertson (1986), 151 Ill. App.3d 214, 221, 502 N.E.2d 1279; National Equipment Rental, Ltd. v. Polyphasic Health Systems, Inc. (1986), 141 Ill. App.3d 343, 347, 490 N.E.2d 42.
For the above reasons the judgment of the circuit court of Cook County is affirmed.
Affirmed.
JIGANTI, P.J., and JOHNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267611/ | 999 F.Supp. 252 (1998)
Arthur HOLLANDER, Plaintiff,
v.
AMERICAN CYANAMID COMPANY, Defendant.
No. CIV. B-85-481 (WWE).
United States District Court, D. Connecticut.
March 10, 1998.
*253 Patrick J. Monaghan, Jr. and Mark F. Heinze of Monaghan, Rem and Zeller, P.C., Hackensack, NJ, for Plaintiff.
Albert Zakarian of Day, Berry and Howard, Hartford, CT, for Defendant.
RULING ON PENDING MOTIONS
EGINTON, Senior District Judge.
Plaintiff, Arthur Hollander, brought this action against his former employer, defendant American Cyanamid Company ("Cyanamid"), asserting claims for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., retaliation and tortious interference with a business expectancy. On March 23, 1989, this court granted summary judgment in favor of defendant as to plaintiff's claims for age discrimination and retaliation. On appeal, the Second Circuit vacated that ruling in part, on the narrow finding that this court erred in not permitting plaintiff to discover information regarding management-level Cyanamid employees who were over the age of 40 when their employment with Cyanamid terminated. The appellate court affirmed this court's conclusion as to plaintiff's retaliation claim, and did not preclude a later finding of summary judgment for defendant once the additional discovery had been completed. Hollander v. American Cyanamid, 895 F.2d 80 (2d Cir.1990).
Discovery now being complete, defendant again moves this court for summary judgment as to plaintiff's remaining claims.[1] Defendant also court to strike certain portions of the Affidavit of Arthur Hollander, which was submitted in support of plaintiff's Memorandum in Opposition to Defendant's Motion For Summary Judgment.
For the reasons set forth below, defendant's Motion to Strike will be granted in part and denied in part. Defendant's Motion for Summary Judgment will be granted as to plaintiff's ADEA claim, and plaintiff's pendent claim for tortious interference with a business expectancy will be dismissed.
I. BACKGROUND
Plaintiff began his employment with Cyanamid in 1956, but left the company in 1960 to *254 pursue other employment. In 1973, at the age of 47, plaintiff returned to Cyanamid, and was appointed Manager of Management Engineering for Cyanamid's Lederle facility in Pearl River, New York. Upon his reemployment with defendant, plaintiff entered into an Employment Agreement which prohibited him from removing or disclosing Cyanamid's confidential material without Cyanamid's consent.
Cyanamid appears to have been satisfied, and even impressed, with plaintiff's intellectual and creative abilities as Manager of Management Engineering. From 1973 to 1980 plaintiff regularly received salary increases, bonuses and stock options. In addition, Cyanamid's yearly progress reviews of plaintiff almost consistently gave him an overall rating of "excels in several major areas." Cyanamid often lauded plaintiff for his superior creativity, and noted as much in his performance reviews and in letters to plaintiff.
Starting as early as 1974, however, defendant began to chronicle certain alleged weaknesses in plaintiff's interpersonal skills. For instance, in a progress review dated November 15, 1974 Cyanamid noted that plaintiff had "created some antagonism by `shooting from the hip.'" In plaintiff's October 26, 1976 progress review, Cyanamid stated that "improvement is needed in establishing a higher confidence with middle management and communicating on a level which they understand."
Plaintiff's November 1, 1977 review rated him as "needs improvement" in the category of communication. In that review, Cyanamid also noted that plaintiff needed to be "less antagonistic." On November 30, 1978 defendant again rated plaintiff as "needs improvement" in communication and human relations. His reviewer further noted that plaintiff still needed to improve "in following communications lines." That review also commented that "[t]he tendency to go over anyone who does not immediately respond must be changed."
In 1980 Cyanamid's perception of plaintiff's interpersonal skills seemed to temporarily improve. In plaintiff's January 9, 1980 review Cyanamid rated plaintiff as "consistently acceptable" in the categories of communication and human relations. Then, in 1981 Cyanamid transferred plaintiff to its Davis & Geck facility in Danbury, Connecticut, and appointed him Manager of Medical Devices.
On October 28, 1981 Cyanamid reverted to rating plaintiff as "needs improvement" in the category of human relations. In October, 1982 Cyanamid again rated plaintiff as "needs improvement" in communications and human relations. That review also noted that plaintiff needed to "overcome human relations problems," "improve written and verbal communications" and limit his communication to "normal channels."
Finally, in October, 1983 plaintiff received a particularly scathing review. Plaintiff's supervisor, Robert Duckett, rated plaintiff as "needs improvement" in the areas of communication, human relations, personnel development, leadership and organizing/staffing.[2] Moreover, Duckett commented:
His major problem is a total lack of comprehension of the vital necessity of properly considering all of the appropriate functional groups which must be involved for successful completion and execution of complex projects. He leaves a "trail of wreckage" of interpersonal and interdepartmental relationships which eventually inhibit the success of the projects. He seems to ignore the vital "people function" almost completely, and doesn't comprehend this effect. He operates like a "one man gang" which is not acceptable in a complex, multi-functional team oriented business.
On January 30, 1984 Cyanamid terminated plaintiff, giving him six month's severance pay. Plaintiff was 57 years old. There is some dispute between the parties as to who replaced plaintiff at Cyanamid. Defendant claims that it replaced Hollander with Richard Augsbach, who is only eight months younger than plaintiff. Plaintiff claims that Augsbach was only a temporary "floating" replacement, and that Cyanamid actually replaced *255 him with Felix Esposito, whom Cyanamid appointed as Manager, Device Manufacturing one year after terminating plaintiff, and who was eleven years younger than plaintiff. It is undisputed, however, that Cyanamid did not eliminate plaintiff's job after his termination.
In October, 1984 plaintiff contacted Ethicon, Inc., one of defendant's competitors, seeking employment. Plaintiff offered to show Ethicon a film demonstrating the application of automation to suture manufacturing. The parties dispute whether this film contained propriety information belonging to Cyanamid. After interviewing plaintiff, Ethicon contacted Robert Duckett, plaintiff's former supervisor at Cyanamid, and reported plaintiff's proffer of the film. On October 22, 1984 Ethicon wrote to plaintiff stating that it would not offer him a position. On October 26, 1984 Cyanamid sent a letter to Hollander stating that his proffer of the film to Ethicon was violative of a non-competition clause in the Employment Agreement he had signed in 1973, and that Cyanamid intended to enforce that agreement.
Plaintiff brought this action on August 23, 1985, alleging an array of claims against Cyanamid. As noted, plaintiff's remaining claims are for violation of the ADEA and tortious interference with a business expectancy. On April 1, 1997, defendants filed the motion for summary judgment which is now before the court.
II. ANALYSIS
A. Standards for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In deciding whether there are any factual issues to be tried, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Donahue v. Windsor Locks Bd. of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987).
A dispute over a material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The initial burden is thus on the moving party to establish that no relevant facts are in dispute. The burden then shifts to the nonmoving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for the fact-finder to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50.
B. Motion to Strike
Plaintiff has submitted an affidavit in an attempt to establish the existence of a genuine issue for trial. Defendants have moved to strike portions of plaintiff's affidavit as not in compliance with Rule 56(e).
Rule 56(e), partially entitled "Form of Affidavits," requires that "[s]upporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence ...."
Accordingly, when portions of an affidavit do not comply with Rule 56(e), the trial judge is "free to disregard the inadmissible paragraphs and consider the rest of the affidavit." United States v. Alessi, 599 F.2d 513, 515 (2d Cir.1979). A court may therefore strike portions of affidavits which are not made upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements. See, e.g., United States v. Private Sanitation Industry Ass'n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir.), cert. denied, Ferrante v. United States, 516 U.S. 806, 116 S.Ct. 50, 133 L.Ed.2d 15 (1995) (affidavit not made on personal knowledge will not suffice to create issue of fact precluding summary judgment); H. Sand & Co. v. Airtemp Corp., 934 F.2d *256 450, 454-55 (2d Cir.1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in the Rule 56(e) affidavit); Weeks v. ARA Services, 869 F.Supp. 194, 196 (S.D.N.Y.1994) (generalized and conclusory affidavits are insufficient to withstand defendant's motion for summary judgment). To the extent that a Rule 56(e) affidavit contains inadmissible hearsay which references other evidence that is properly before the court, the court may disregard the hearsay but separately consider the admissible evidence. John Hancock Property and Casualty Insurance Co. v. Universale Reinsurance Co., Ltd., 147 F.R.D. 40, 45 (S.D.N.Y.1993).
Plaintiff's affidavit flagrantly disregards the requirements of Rule 56(e). This 30 page document is riddled with inadmissible hearsay, conclusory statements and arguments, and information clearly not made on the affiant's personal knowledge. Plaintiff's affidavit more resembles an adversarial memorandum than a bona fide affidavit. Plaintiff, without citing law, has abused Rule 56(e) in an attempt to reiterate his legal and philosophical position. The court has been obliged to devote significant resources and time combing through plaintiff's voluminous affidavit to strike numerous offending portions.
The court will hereby strike the following portions of the "Affidavit of Arthur Hollander" because they contain inadmissible hearsay, generalized conclusory and argumentative statements, and/or information which could not be attributed to plaintiff's personal knowledge: the second sentence of paragraph 3; paragraph 4(a) beginning with "without pressure ..."; paragraph 4(b)(iii) beginning with "which Cyanamid would ..."; paragraph 4(b)(iv) beginning with "which belie ..."; paragraphs 5 & 9; paragraph 11 beginning with "Cyanamid's working records ..."; paragraph 18; paragraph 19 beginning with "[t]his claim is false ..."; paragraphs 20 & 22; paragraph 23 up to "first hand knowledge"; paragraph 24; the first sentence of paragraph 25; the first sentence of paragraph 27; the third sentence of paragraph 28; paragraph 29 through "hiring practices" and beginning again with "perhaps ..."; the second sentence of paragraph 32; paragraphs 33 & 34; paragraph 35 beginning with "[a]lthough I ..."; paragraph 36 up to "Cyanamid's defense ..."; the first sentence in paragraph 38; the second sentence in paragraph 39; paragraph 40 through "my response ..." and again beginning "and most importantly ..."; paragraphs 42 & 43; the last sentence in paragraph 45; the last sentence in paragraph 46; paragraph 54; the third sentence in paragraph 55; paragraph 56; the first and third sentences in paragraph 59; the last sentence in paragraph 60; the first and last sentences in paragraph 61; paragraph 62 not including the information in parenthesis; paragraphs 63 68, and 74 80.
The court has not stricken all of the portions that defendant requested to be stricken. To the extent that the court has stricken portions of plaintiff's affidavit which quote or paraphrase other evidence properly before the court, the court will separately consider that evidence.
C. Age Discrimination
1. Legal Standards
Plaintiff claims that Cyanamid violated the ADEA when it terminated his employment. Because plaintiff does not claim to have direct evidence that defendant discriminated against him because of his age, plaintiff must establish his claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Accordingly, plaintiff must initially establish a prima facie case of age discrimination. Plaintiff must establish his prima facie case by showing that (1) he was within the protected age group; (2) he was qualified for the job; (3) he was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of age discrimination. Hollander, 895 F.2d at 83. The burden of establishing a prima facie case is not an onerous one. Sweeney v. Research Foundation of State University of New York, 711 F.2d 1179, 1184 (2d Cir.1983).
If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, clear and specific nondiscriminatory *257 reason for discharging plaintiff. Dister v. Continental Group Inc., 859 F.2d 1108, 1115 (2d Cir.1988). At this juncture, however, defendant need not prove the existence of a non-discriminatory reason for its action. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
If defendant successfully articulates a legitimate, non-discriminatory reason for discharging plaintiff, then plaintiff must establish both that defendant's articulated reason was false, and that discrimination was the real reason for its action. It is not enough for plaintiff to show that defendant's legitimate, non-discriminatory reason for its employment decision is pretextual. Plaintiff must also prove by a preponderance of the evidence that defendant's stated reason is a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515-17, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
2. Plaintiff's Prima Facie Case
Cyanamid argues that the court should grant its motion for summary judgment because plaintiff has failed to establish a prima facie case. Specifically, Cyanamid asserts that it did not discharge plaintiff under circumstances giving rise to an inference of age discrimination. In support of its position, Cyanamid contends that it replaced plaintiff with Richard Augsbach, who is only eight months younger than plaintiff. Plaintiff alleges, however, that his real replacement was Felix Esposito, who was 11 years his junior, and who eventually replaced Augsbach.
This court has held before, and the Second Circuit has agreed, that "for purposes of ruling on the motion for summary judgment, Hollander has established his prima facie case." Hollander, 895 F.2d at 83. This court will therefore not revisit that issue.
3. Defendant's Legitimate, Non-discriminatory Reason
Plaintiff argues that summary judgment should not be entered as to his ADEA claim because defendant has failed to articulate with adequate specificity a legitimate, non-discriminatory reason for terminating him. Plaintiff contends that defendant is merely hurling epithets at plaintiff, and cannot cite specific examples of plaintiff's alleged interpersonal problems.
The Second Circuit has already held in this case that "the district court correctly found that American Cyanamid's burden of producing a legitimate, non-discriminatory explanation for the discharge was satisfied by its contention that Hollander's interpersonal difficulties necessitated his discharge." Hollander, supra, at 83.
Defendant has cited several progress reviews of plaintiff which chronicle Cyanamid's perception that plaintiff had interpersonal difficulties. Those reviews even allude to a specific interpersonal problem that defendant claims plaintiff displayed, which is his alleged failure to communicate through proper channels.
In addition, Cyanamid claims that plaintiff had such poor relationships with certain workers whom he supervised that he almost caused those workers to unionize. Cyanamid also claims that it had to remove plaintiff from a "skin stapler" project because of his alleged poor interpersonal skills. Certainly, at this stage, defendant has articulated with adequate specificity a legitimate, non-discriminatory reason for terminating plaintiff.
4. Pretext
At the heart of this case is whether, after being allowed to conduct protracted and vast discovery, plaintiff has provided evidence from which a reasonable jury could find in his favor. Such an inquiry is especially delicate because "employers rarely leave a paper trail or `smoking gun' attesting to discriminatory intent." Accordingly, "disparate treatment plaintiffs often must build their cases with pieces of circumstantial evidence which cumulatively undercut the credibility of the various explanations offered by the employer." Hollander, 895 F.2d at 85. After a careful review of the evidence plaintiff has proffered, however, the court finds that as a matter of law no reasonable jury could *258 conclude that Cyanamid intentionally discriminated against Hollander because of his age.
a. Plaintiff's Evidence of Pretext
In essence, plaintiff's evidence falls into two categories. First, plaintiff attempts to undercut defendant's articulated non-discriminatory reason for discharging him by adducing evidence which he claims shows that Cyanamid's explanation is unworthy of belief, and therefore, a pretext for discrimination. Plaintiff essentially contends that there is a question of fact as to whether he actually had difficulties with interpersonal relationships, and whether the defendant's critiques of him were part of a plan to discriminate against him because of his age.
In support of his position, plaintiff has compiled affidavits of former co-workers who attest that he was, in fact, quite affable. Additionally, plaintiff presents to the court affidavits which indicate that plaintiff may not have been actually responsible for the alleged "union incident" or for an alleged "safety incident" for which defendant blames him. Plaintiff also points to evidence already in the record, such as his overall good track record with Cyanamid which included bonuses, raises, and overall positive reviews.
Plaintiff stresses the fact that Robert Duckett, when asked in his deposition to recount specific events leading to his scathing October, 1983 review of plaintiff, cannot remember a single occurrence. Plaintiff also complains that a good deal of defendant's defense is based on inadmissible hearsay, name-calling, innuendo and reputation evidence. As plaintiff puts it, "defendant does not contend that plaintiff was terminated because he had a bad reputation." Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment at 12.
This court agrees with plaintiff that his evidence may in fact raise some doubt as to whether defendant's articulated reason for discharging him is believable. Certainly, in some situations,
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.
St. Mary's Honor Center, 509 U.S. at 511 (emphasis added).
In an important Second Circuit en banc decision the appellate court explained, however, that "a finding of pretext, together with the evidence comprising a prima facie case, is not always sufficient to sustain an ultimate finding of intentional discrimination." Fisher v. Vassar College, 114 F.3d 1332, 1338 (2d Cir.1997) (en banc) (emphasis added) (hereinafter "Fisher II"); cert. denied, ___ U.S. ___, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998); affirming Fisher v. Vassar College, 70 F.3d 1420, 1437 (2d Cir.1995) (hereinafter "Fisher I").
In that case, Fisher asserted claims for Title VII and age discrimination after having been denied tenure by her former employer, Vassar College. Fisher attempted to show that Vassar's reason for not granting her tenure was actually a pretext for discrimination. Specifically, Fisher adduced evidence which indicated that her scholarship, teaching, service and leadership were actually better than Vassar had claimed. Fisher II at 1334. She buttressed this assertion with, inter alia, previous favorable reviews, some of which contradicted certain of Vassar's reasons for denying her tenure. Fisher I at 1434-36.
Notwithstanding this evidence, the Second Circuit affirmed en banc a Second Circuit panel decision holding that it was clear error for the fact finder to conclude that Vassar had discriminated against Fisher. Fisher II at 1345. The en banc majority opinion noted that
discrimination does not lurk behind every inaccurate statement. Individual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminatory but unbecoming or small minded .... In short, the fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff.
Fisher II at 1337-38. Accordingly, plaintiff may prevail only if he shows that Cyanamid's proffered reasons are a pretext for discrimination, *259 "either because the pretext finding itself points to discrimination or because other evidence in the record points in that direction or both." Fisher II at 1339.
The court finds under the circumstances of this case that of the many possible reasons for Cyanamid's inconsistencies, illegal discrimination is no more likely a reason than any other. Moreover, as the court will discuss in Section II.C.4.b. infra, plaintiff cannot point to any other evidence which would support a finding of discrimination. The court thus finds that although plaintiff's evidence may cast some doubt on defendant's proffered reason, it does not permit the inference that defendant discriminated against plaintiff because of his age.[3]See, Fisher II at 1338.
b. Plaintiff's Statistical Evidence
The second category of plaintiff's evidence is comprised of statistics from which plaintiff argues a reasonable jury could infer that Cyanamid discriminated against him because of his age. Plaintiff first offers statistical evidence which analyzes whether age was a factor in Cyanamid's decisions to eliminate the jobs of certain management-level employees. These statistics were compiled by Dr. Marie Gaudard, Ph.D., who is a professor of statistics at the University of New Hampshire. Professor Gaudard's study concludes that "the pattern of `job eliminated' terminations, while facially age neutral, disproportionately impacted older workers. To a high degree of statistical certainty, age had to be a determining factor in the `job eliminated' terminations." Plaintiff's Appendix in Opposition to Defendants Motion for Summary Judgment, Vol. II at 190.
Plaintiff also offers his own independent statistical study of Cyanamid's "job eliminated" category, which concludes that in 26 instances, the jobs in question were not actually eliminated. Rather, plaintiff asserts, a number of those whom Cyanamid classified as "job eliminated" were actually terminated because of their age and replaced by younger workers.
Plaintiff argues that his statistical evidence is "relevant in establishing the company-wide context for [his] termination, defeats the inference that his discharge was a mere error of business judgment, and establishes Cyanamid's practice of falsifying the reasons for large numbers of termination [sic]." Plaintiff's Memorandum In Opposition to Defendant's Motion for Summary Judgment at 9.
The theory plaintiff pursues in this case is one validated by the Second Circuit in Fisher I, 70 F.3d at 1442. Statistics may be a part of a plaintiff's efforts to establish discrimination under a theory of disparate treatment. Indeed, the appellate court vacated this court's original grant of summary judgment in order to afford plaintiff the opportunity to compile statistical evidence. The Second Circuit stated:
Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer's offered explanation for an employment decision regarding a particular individual masks a discriminatory motive .... It is possible that Hollander's discovery request might uncover a pattern of older management employees leaving American Cyanamid under unexplained circumstances, which might help prove his claim that American Cyanamid's explanation for his discharge was pretextual.
Hollander, 895 F.2d at 84.
The appellate court's reasoning in Hollander, however, cannot be construed to mean that a proffer of any statistical evidence, no matter how unreliable, can defeat summary judgment in an age discrimination *260 case. In fact, that same court held in Fisher I that certain statistics are so flawed and unreliable that it is clear error for a fact finder to rely on them to infer discrimination. Fisher I at 1442-43.
For example, a plaintiff may not gerrymander data in order to achieve his desired results. Id. at 1443. See also, Khan v. Grotnes Metalforming Systems, Inc., 679 F.Supp. 751, 760 (N.D.Ill.1988). A plaintiff in a disparate treatment case must also take into account nondiscriminatory explanations for numerical disparities. See, e.g., Doan v. Seagate Technology, Inc., 82 F.3d 974, 979 (10th Cir.1996). Perhaps of greatest importance to a disparate treatment case, however, is the notion that plaintiff's statistics must be sufficient to prove that the particular plaintiff was among the individuals who were not treated neutrally. Zahorik v. Cornell University, 729 F.2d 85, 95 (2d Cir.1984).
Plaintiff's statistical evidence runs afoul of all of these requirements. Professor Gaudard's study, for instance, deals only with Cyanamid's management-level employees whom Cyanamid categorized as "job eliminated." Yet Cyanamid neither eliminated plaintiff's job nor categorized him as "job eliminated." Since plaintiff is not among the individuals Professor Gaudard included in her study, that study cannot provide the kind of particularized evidence relating to the individual plaintiff which is necessary to show discriminatory treatment. Id. at 95.
The fact that Gaudard confined her study to the category of those Cyanamid employees who were "job-eliminated" also prevents those statistics from revealing the type of "company-wide" practice that the Second Circuit contemplated. Hollander at 84. Accordingly, no reasonable jury could conclude from this gerrymandered data that Cyanamid discriminated against plaintiff because of his age. See, e.g., Fisher I at 1445-46 (clear error for fact-finder not to have considered university-wide statistics, in concluding that defendant had discriminated against plaintiff); Khan, 679 F.Supp. at 760 (any relevant statistics must be based upon the entire workforce).
Moreover, plaintiff's own independent study of the "job eliminated" category falls short of evidence from which a reasonable jury could infer that Cyanamid engaged in a company-wide practice of terminating older employees because of their age.
In conducting his study, plaintiff observed that in 26 instances, job titles identical or similar to those which Cyanamid claims it eliminated can still be found in Cyanamid's personnel directory. Plaintiff alleges that those surviving job titles appear to be within the same reporting structure as the supposedly eliminated jobs. Plaintiff also asserts that in roughly half of those 26 instances, significantly younger employees "replaced" those who were supposedly "job eliminated."
Yet plaintiff offers no evidence tending to show that what he deems "replacements" were, in fact, replacements. For instance, plaintiff does not proffer any evidence which would show that the so-called "replacements" actually preform the same functions and have the same responsibilities as the individuals whom Cyanamid allegedly mischaracterized as "job eliminated."
Moreover, plaintiff's study fails to account for the fact that of those 26, roughly half of the so-called "replacements" were aged forty or older. See, e.g., O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996) (inference of discrimination cannot be drawn from the replacement of one worker with another insignificantly younger). Finally, plaintiff's study does not consider the possibility that even if Cyanamid did not eliminate those 26 jobs, it may have terminated those employees for non-discriminatory reasons. See, Fisher I at 1437-1438.
As plaintiff's survey stands, a jury would be left to speculate whether the 26 individuals were categorized as "job eliminated" because their jobs really were eliminated, because their jobs were not eliminated but they were terminated for nondiscriminatory reasons, or because Cyanamid discriminated against them because of their ages. Because speculation cannot suffice for evidence, the court finds that no reasonable jury could conclude from plaintiff's statistical evidence *261 that Cyanamid discriminated against plaintiff because of his age. See, Doan at 977.
III. CONCLUSION
Plaintiff's Motion to Strike [doc. # 333] is GRANTED in part and DENIED in part, as set forth above in section II.B. Defendant's Motion for Summary Judgment [doc. # 315] is hereby GRANTED as to plaintiff's age discrimination claim. Because there is no remaining federal claim, plaintiff's pendent state claim for tortious interference with a business expectancy, is DISMISSED. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
NOTES
[1] Discovery in this case has been copious. For instance, after the Second Circuit ruling in this case, plaintiff was permitted to serve defendant with several additional interrogatories and requests for production. In addition, after defendants filed the instant motion for summary judgment, plaintiff was permitted to conduct additional company-wide discovery, not limited to terminated employees.
[2] Even in this review, plaintiff received a rating of "superior" for his creativity.
[3] The court also notes that plaintiff's evidence with regard to the veracity of defendant's proffered reason for his termination is actually less probative than certain evidence proffered by Fisher. For instance, although Hollander points out that his reviews were generally good, he can only point to one review in nearly a decade of employment which rates his interpersonal skills as acceptable. Furthermore, Hollander's affidavit evidence of individuals who did not find him to be difficult to work with are not relevant to the issue of whether his supervisors believed him to have had poor interpersonal skills. Hollander can point to no evidence which would permit the inference that those supervisors who gave him poor evaluations regarding his interpersonal skills ever believed that his interpersonal skills were adequate. See, Fisher I at 1434-36. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/763921/ | 176 F.3d 491
Johnsonv.Moore*
NO. 96-4962
United States Court of Appeals,Eleventh Circuit.
March 04, 1999
Appeal From: S.D.Fla. , No.96-06093-CIV-FAM
Remanded.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3 | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1365270/ | 266 P.2d 436 (1953)
BEWLEY
v.
BEWLEY.
No. 35851.
Supreme Court of Oklahoma.
December 22, 1953.
Rehearing Denied February 2, 1954.
T. Austin Gavin, Tulsa, for plaintiff in error.
Poe, Murdock & Langford, Tulsa, for defendant in error.
ARNOLD, Justice.
This is an appeal from a judgment and decree of the District Court of Tulsa County granting Leone W. Bewley, plaintiff, a divorce from J.K. Bewley and making a property settlement between the parties. Plaintiff brings this appeal on the sole ground that the property settlement is inequitable and contrary to law.
Pertinent to the issues here involved, plaintiff's evidence tends to show that plaintiff and defendant were married originally on April 15, 1928, and lived together as husband and wife until August 30, 1946, on which date plaintiff obtained a divorce from defendant; that in the decree of divorce plaintiff was awarded the home of the parties and thereafter defendant executed a quitclaim deed to the property to plaintiff; that some sixteen months later, on December 24, 1947, the parties remarried; that the present action for divorce was commenced on May 6, 1952; that the lot on which the home of the parties was built cost $1,500, $1,250 of which was paid by plaintiff's father and the balance by defendant; that after the home was built defendant made payments on the mortgage for several years; that then plaintiff's father paid off the balance due on the mortgage, $5,100; that the house was nicely furnished; that almost all of the furniture in the home had been given to plaintiff by her father; that defendant had evaluated these furnishings at $12,000 but plaintiff did not think they could be sold for that; that plaintiff had *437 had the house appraised and the appraisers had set a value of $27,500 on it; that defendant had not paid any taxes on the property since their remarriage and at the time of the trial there was approximately $1,000 due in back taxes; that in 1948 defendant had an income in excess of $12,000, in 1949 in excess of $7,000, in 1950 in excess of $12,000, and in 1951 in excess of $9,000; that at the time of trial plaintiff was 41 years of age and defendant was 57; that she had no gainful trade or profession; that she was in ill health from high blood pressure and nervous tension; that she was unable to work.
Defendant's evidence tends to show that in building the house, making repairs and improving the grounds he had invested a total of $5,285.21 since the original marriage of the parties; that at the time of the original marriage he purchased furniture in the amount of $4,000; that in his opinion the fair cash market value of the house is $40,000; that since the second marriage of the parties he had been forced to sell some property which he owned and to borrow money; that on the date of the separation of the parties he was indebted in the amount of $7,773.70; that at the time of trial he was indebted in the amount of $5,003.68; that he had used all his income and the proceeds from the sale of his property for the use and benefit of plaintiff and their son, who at the time of trial was 23 years of age; that the only property owned by the parties at the time of trial was the home of the parties, a Hudson automobile valued at $800, and a Chevrolet automobile valued at $850 which had been a gift to their son, who is now in the army; that he had paid the expenses of his son's college education during the years of the second marriage of the parties.
At the close of all the evidence the court granted plaintiff a divorce; gave plaintiff all the household goods and defendant the Hudson automobile; gave each of the parties one-half interest in the home subject to a lien in favor of plaintiff in the sum of $5,100, the past due taxes thereon to be paid equally by plaintiff and defendant; plaintiff was given a judgment for alimony in the sum of $3,000 to be paid at the rate of $50 per month and $150 attorney's fee; defendant was ordered to pay all outstanding bills and obligations incurred during the latter married life of the parties in the sum of $5,003.68.
Plaintiff contends that under 12 O.S. 1951 § 1278, she was entitled to be restored to all the property owned by her before her marriage or acquired by her in her own right after marriage; that the first divorce decree in 1946 and defendant's quitclaim deed to her in conformance to that decree vested the entire title to the real property here involved in her; that this was a final adjudication which could not thereafter be disturbed; that at the time of her remarriage to defendant this property was her separate property and under the statute the court should have set it apart to her free of any claim of defendant.
With this contention we must agree. In Dunlap v. Dunlap, 88 Okl. 200, 212 P. 608, we said:
"An award of property to plaintiff as her portion of the property acquired by the parties during coverture became effective at the time of the decree and should not be vacated on motion filed some months later showing a remarriage of the parties."
See also Privett v. Privett, 93 Okl. 171, 220 P. 348; Dorrance v. Dorrance, 196 Okl. 195, 163 P.2d 973.
Because of the incompleteness of the record, however, it is impractical for us to determine here the equities involved in a property settlement between the parties in view of our decision that the home place was the independent property of plaintiff. For instance, the record does not disclose whether during the second marriage defendant made substantial improvements on the property or how much taxes he may have paid on the property for which he should be given a lien on plaintiff's separate property; defendant was obligated to provide a home for plaintiff and the record shows they lived in plaintiff's separate property. We do not know what the rental value of the home was and whether under all the circumstances the rental value of the home would offset any such advances defendant *438 may have made. For this reason we feel the cause should be reversed for further hearing so that an equitable division may be made of the property in view of our decision here.
The cause is reversed with instructions to proceed not inconsistent with the views herein expressed.
HALLEY, C.J., and CORN, DAVISON, WILLIAMS and BLACKBIRD, JJ., concur.
JOHNSON, V.C.J., and WELCH and O'NEAL, JJ., dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267102/ | 174 Cal.App.4th 1479 (2009)
UNITED RENTALS NORTHWEST, INC., Plaintiff and Appellant,
v.
SNIDER LUMBER PRODUCTS, INC., et al., Defendants and Respondents.
No. F055855.
Court of Appeals of California, Fifth District.
June 18, 2009.
*1481 Urtnowski & Associates, J. Brian Urtnowski and William P. Warden for Plaintiff and Appellant.
Dun & Martinek and Randall H. Davis for Defendants and Respondents.
OPINION
WISEMAN, Acting P. J.
In this action to foreclose on a mechanic's lien on land, the trial court granted the landowner's motion to remove the lien, holding that the work done did not constitute a "work of improvement" and therefore did not give rise to a lien under the mechanic's lien statutes. The work, however, was a removal of buildings, which is included in the statutory definition of a "work of improvement." We reverse the judgment and publish due to the lack of case law applying the statutes to removals of buildings.
*1482 FACTUAL AND PROCEDURAL HISTORIES
Defendants Snider Lumber Products, Inc., and Sierra Pacific Industries (Snider and Sierra) owned a sawmill at Chinese Camp in Tuolumne County. In 2006, the sawmill was retooled and some of its facilities became unnecessary, including 10 lumber drying kilns.
The 10 kilns were divided into two groups, called upper and lower. The upper kilns were each 68 feet long and 20 feet high. Each was 16 feet wide and they stood side by sidea total width of 80 feeton a concrete slab to which they were bolted. They were constructed with steel frames and aluminum walls with foam insulation. Railroad tracks were set into the concrete foundation so that lumber could be moved into the kilns on carts.
Each kiln had four large doors for the lumber to roll in through and four small doors for workers. The kilns were each supplied with electricity to power fan motors and lights. Each also was supplied with sprinklers. Four feet from the kilns was a control room 10 feet long, seven feet wide, and 40 feet high, made of wood. This was also supplied with electricity and housed a computer from which an operator controlled the kilns. It had windows and doors. Running the 80-foot width of the five kilns was a valve room, 12 feet wide and nine feet high, made of wood and steel. It also had windows and doors. The valves in the valve room controlled the supply of steam to the kilns. The control room and valve room, like the kilns, were attached to the concrete slab. Stairs and catwalks provided workers with access to various parts of the structure. The five lower kilns were similar to the upper kilns, except that they were 120 feet long instead of 68 feet. They also had a control room and a valve room.
When the kilns were installed, they were deemed improvements on the land for property tax purposes. The upper kilns were erected in 1985. Four of the lower kilns were erected in 1996 and the fifth in 1998.
Snider and Sierra hired a company called Midway United to remove the kilns and oversee their sale to a group of buyers. Midway United subcontracted the job of removing the kilns to a firm called John Stuart Mechanical. The scope of work, for which John Stuart Mechanical was to be paid $270,600, included dismantling the structures and breaking down their usable parts into pieces small enough to be packed into shipping containers for transportation to the buyer. John Stuart Mechanical entered into a series of agreements with plaintiff United Rentals Northwest, Inc. (United Rentals), to rent equipment for use in removing the kilns. Using the United Rentals equipment, John Stuart Mechanical carried out some of the dismantling of the kilns and control houses. A dispute then developed between Midway United *1483 and John Stuart Mechanical, and John Stuart Mechanical either was fired by Midway United or abandoned the job. The United Rentals equipment was removed and a new subcontractor was hired to finish the job using its own equipment.
United Rentals was never paid for the rentals. On February 12, 2007, it recorded a mechanic's lien against Snider and Sierra's land in the amount of $60,602.99. Civil Code section 3110 provides that "lessors of equipment ... leasing equipment to be used ... in ... contributing to a work of improvement shall have a lien upon the property upon which they have ... leased equipment ... for the value of the use of such ... equipment ... whether ... furnished at the instance of the owner or of any person acting by his authority or under him as contractor or otherwise."[1] The following month, United Rentals filed its complaint in this case, asserting contractual claims against John Stuart Mechanical and John Stuart individually and seeking to foreclose on the mechanic's lien against Snider and Sierra. A default judgment was later entered against John Stuart Mechanical and John Stuart.
Snider and Sierra filed a motion to remove the mechanic's lien. Despite section 3106which provides that "`[w]ork of improvement' includes ... the demolition of buildings, and the removal of buildings"defendants argued that removal of the kilns was not a work of improvement. They contended that the structures removed were personal property, not buildings, and that in any event their removal was not an improvement because it did not benefit the property.
The trial court granted the motion and ordered the lien removed, stating in its written order that "the dismantling of the drying kiln is not a work of improvement within the meaning of Civil Code § 3106." It did not issue a detailed statement of its reasoning, but at the hearing it said:
"For methe question for me was whether or not this is really aa demolition of a building. Certainly the dismantling of a building for purposes of resale. And that's where I am. That's where I have some real problems.
"And I don't seeI don't see how this work, however you describe it, really is a benefit to the defendant's property."
United Rentals moved for reconsideration. The court denied the motion. On the basis of the conclusion that there was no valid lien, the court entered judgment in favor of Snider and Sierra and ordered United Rentals to pay their costs.
*1484 DISCUSSION
The relevant facts are not in dispute: Snider and Sierra hired a contractor to remove the kilns (which are undisputedly as we described them); the contractor hired a subcontractor to carry out the removal; the subcontractor rented United Rentals's equipment and used it to do part of the job. The only question is whether, under the Civil Code, these facts give rise to a mechanic's lien in favor of United Rentals. This is a question of law, so we review it de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [35 Cal.Rptr.2d 418, 883 P.2d 960]; Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780 [127 Cal.Rptr.2d 104].)
(1) A lease of equipment to contribute to a work of improvement on property gives rise to a mechanic's lien on the property in favor of the lessor. (§ 3110.) Section 3106 defines a "work of improvement" as follows: "`Work of improvement' includes but is not restricted to the construction, alteration, addition to, or repair, in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, or road, the seeding, sodding, or planting of any lot or tract of land for landscaping purposes, the filling, leveling, or grading of any lot or tract of land, the demolition of buildings, and the removal of buildings. Except as otherwise provided in this title, `work of improvement' means the entire structure or scheme of improvement as a whole."
The removal of the kilns falls within this definition. We can see no reason for doubting that metal structures that were two stories tall, were attached to concrete foundations, enclosed thousands of square feet of space, had windows and doors and staircases and places for people to work, were supplied with electricity, stood for between eight and 21 years, and whose removal cost nearly $300,000, were buildings. In Snider and Sierra's appellate brief, unlike their motion brief, they do not argue that the structures at issue were not buildings. Further, it is undisputed that United Rentals's equipment was leased to contribute to the removal of these buildings and did contribute to it. Since section 3106 defines a work of improvement as including a removal of buildingsand section 3110 provides for a mechanic's lien in favor of a lessor of equipment that contributes to a work of improvementthis is the end of the analysis.
It has been held that a work of improvement must result in a permanent improvement to give rise to a mechanic's lien. (See, e.g., Howard A. Deason & Co. v. Costa Tierra Ltd. (1969) 2 Cal.App.3d 742, 753 [83 Cal.Rptr. 105] ["permanency of improvement is an essential characteristic of work giving rise to a lien"]; Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 324-325 [130 Cal.Rptr.2d 641] [considering *1485 whether installation of equipment was sufficiently permanent to support mechanic's lien].) This requirement cannot have much significance where the improvement is the removal or demolition of a building, however. There is no requirement that the land remain vacant permanently after the removal or demolition. Logically, the permanency doctrine must be satisfied in this context by the fact that the removed or demolished building is removed or demolished.
(2) Snider and Sierra argue that removal and demolition of buildings can constitute works of improvement only if followed or accompanied by "work that actually improves the real property." Here, they say, there was no work of improvement because, after the buildings were removed, "the land was left in a state of cluttered disrepair." This argument ignores the statutory definition of the term "work of improvement," which includes the removal of buildings, says nothing about whether the land must be left in an orderly state, and does not say anything else must be done after the removal to confer benefits on the land. "Work of improvement" is a term of art and must be construed according to its technical definition. (Schwetz v. Minnerly (1990) 220 Cal.App.3d 296, 307 [269 Cal.Rptr. 417].) In any event, when owners hire contractors to remove buildings, they presumably want the buildings removed, so the removal is an improvement and a benefit from the owners' perspective. We have no authority to add a requirement that, after the work is done, the land must be better off in some other sense.
Snider and Sierra's appellate brief contains a string citation two pages long in which it is pointed out that each cited case involved the building of something, not the removal or just the removal of buildings. It is not surprising that there are many mechanic's lien cases involving construction. Their existence does not negate the statutory inclusion of demolition and removal of buildings in the definition of a work of improvement, nor does it add a requirement that demolition or removal must be followed by some kind of bettering of the land. True, like the parties, we found no published California cases applying the mechanics' lien statutes to facts involving only demolition or removal of buildings. Snider and Sierra think this amounts to lack of support for United Rentals's position, but they are mistaken, for the statute is not ambiguous and carries the point.
(3) The sentence at the end of section 3106 regarding "the entire structure or scheme of improvement as a whole" also does not mean that the removal or demolition of buildings is not a work of improvement unless it is part of a larger project leading to an outcome beyond the mere removal or demolition, as the trial court appears to have thought. It asked United Rentals's counsel, "Isn't the improvement and the benefit to the property itself [required to be] part of a total scheme of improvement like a development of a project, for *1486 example, on a property?" Plaintiff's counsel correctly replied: "No, no. The Court is mistaken on that." The sentence about a "scheme" only says that the term "work of improvement" refers to the entirety of a work of improvement. Since "work of improvement" is defined to include demolition and removal of buildings, the entirety of a work of improvement can consist of the demolition or removal of a building. There is no basis for the view that removal of a buildingor anything else included in the definitiononly counts if something else is done to the land in addition.
Further, the sentence does not mean a claimant is entitled to a lien only if the claimant carried out the entire work, since section 3110 says activity "contributing to" a work of improvement is what gives rise to a lien. Were it otherwise, no contractor on a job involving multiple contractors would ever have a mechanic's lien. The significance of the sentence has to do with the extent of the property the lien attaches to, not with whether it attaches in the first place. (See, e.g., Insul-Acoustics, Inc. v. Lee (1982) 136 Cal.App.3d 552, 555 [186 Cal.Rptr. 324] [scheme of improvement was limited to job at one shop in mall; it did not extend to other jobs at same mall by same claimant, so lien related only to the one shop and work done in it].) The scope of the lien is not a matter we are called upon to address in this appeal.
Finally, Snider and Sierra claim that the imposition of the lien is an "unconstitutional `taking' ... in the absence of any benefit to the real property in question." Since they offer no arguments or citations of authority in support of this contention, we will treat the issue as waived.[2] (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2 [87 Cal.Rptr.2d 654, 981 P.2d 499].)
(4) In sum, Snider and Sierra's agent rented United Rentals's equipment and used it to help remove buildings from Snider and Sierra's land. Therefore, United Rentals has a mechanic's lien on the property.[3]
*1487 DISPOSITION
The order removing the lien and the judgment in favor of Snider and Sierra are reversed. The case is remanded to the superior court for further proceedings. United Rentals is awarded its costs on appeal.
Gomes, J., and Kane, J., concurred.
NOTES
[1] Subsequent statutory references are to the Civil Code.
[2] Snider and Sierra's suggestionwithout a record citationthat we "[s]ee [their] earlier briefs regarding the criteria for a constitutional `taking' of real property" does not cure their failure to brief the issue on appeal. In any event, the only authorities cited in the discussion of this issue that we could find in Snider and Sierra's earlier briefs are Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803 [132 Cal.Rptr. 477, 553 P.2d 637] and Corbett v. Chambers (1895) 109 Cal. 178 [41 P. 873]. Neither case says anything supporting Snider and Sierra's theory that a mechanic's lien arising from demolition or removal of buildings is unconstitutional unless some benefit other than the benefit of the demolition or removal itself is proven.
[3] We need not address the separate questions of whether the work performed here constituted "alteration" of a "building" or "machinery" within the meaning of section 3106, or a "site improvement" giving rise to a lien under section 3102. We also need not address United Rentals's contention that the court improperly considered a certain declaration at the hearing on the motion for reconsideration. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365132/ | 123 Cal. App. 2d 289 (1954)
Estate of ABRAHAM LAPIDUS, Deceased. LEE LAPIDUS, Appellant,
v.
SAMUEL L. FENDEL, as Executor, etc., et al., Respondents.
Civ. No. 15908.
California Court of Appeals. First Dist., Div. Two.
Feb. 17, 1954.
Aaron N. Cohen, Allen M. Singer and Dinkelspiel & Dinkelspiel for Appellant.
Samuel L. Fendel and Steiner, Goldstein & Brann for Respondents.
NOURSE, P. J.
This is an appeal by Lee Lapidus, surviving widow of decedent Abraham Lapidus, from an order and judgment denying and dismissing her contest of the premarital will of said decedent based on section 70 of the Probate Code which reads: "If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received."
The facts are undisputed. The contested will was executed on February 11, 1952. It provides in part: "I hereby declare that I intend to be married to Lee Friedman on or about the 16th day of February, 1952; that this instrument is made in contemplation of my said marriage; that my said marriage shall not revoke or affect this will in any respect." It disposes of his property in behalf of close relatives, without any provision for Lee Friedman, testator's wife. The last provision of the will reads in part: "I have purposely made no provision for any other person, whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this will or not mentioned herein, shall contest this will or object to any of the provisions hereof, I give to such person so contesting or objecting the sum of one dollar ($1.00) and no more, in lieu of the provision which I have made or which I might have made herein for such person so contesting or objecting." Decedent married Lee Lapidus, the contestant, then known as Lee Friedman, on February 16, 1952, and he died on June 29, 1952, contestant surviving him.
The court found that the will mentions the contestant, surviving spouse, in such a way as to show an intention not to make provision for her.
[1] Appellant's only contention is that the will "does not indicate the essential intention not to provide for the future wife." The contention is devoid of all merit. "All the parts of a will are to be construed in relation to each other, *291 and so as, if possible, to form one consistent whole ..." (Prob. Code, 103.) If this rule of construction is applied to the stated provisions of the will they demonstrate on their face that decedent, in contemplation of his marriage with contestant on a named date (on which it thereafter actually took place), excluded her from all participation in his estate, expressly declaring that he did so on purpose. No clearer showing of an intention not to make provision for her is conceivable.
In Estate of Duke, 41 Cal. 2d 509 [261 P.2d 235], the latest expression of our Supreme Court on this subject, it was held that the intention not to provide for the surviving spouse which excludes revocation under section 70, Probate Code, can even be expressed by an exclusionary clause referring to a future spouse in general terms. In our case there is an express mention of the future wife and the contemplated marriage. The ruling of the trial court was sound.
Order and judgment affirmed.
Dooling, J., and Kaufman, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365129/ | 123 Cal. App. 2d 226 (1954)
THE PEOPLE, Respondent,
v.
NOAH PAUL WILLIAMS et al., Appellants.
Crim. No. 796.
California Court of Appeals. Fourth Dist.
Feb. 16, 1954.
Alpha L. Montgomery, under appointment by the District Court of Appeal, Clifford L. Duke, Jr., Myron Kaminar and Augustine, Bryans, Ragen & O'Connor for Appellants.
Edmund G. Brown, Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Respondent.
BARNARD, P. J.
These defendants were jointly charged with robbery. In the first count it was charged that on April 9, 1953, they took $90 from Jesus Carrillo by force and fear. The second count charged them with taking $50.50 from Demetrio Avina by force and fear. As to each count it was charged that they were armed with a deadly weapon, a .22 rifle and a 20-gauge shotgun. A jury found each defendant guilty of first degree robbery on each count, and further found that two of them had been armed with a deadly weapon. A motion for a new trial was denied and all five defendants have appealed from that order and from the judgment.
The five defendants were represented by four attorneys at the trial, and the one who represented the defendant Leon was appointed by this court to represent him on this appeal. While some of the appellants raise points which are not raised by others, it will be unnecessary to differentiate between them in this regard. *228
It appears from the evidence that Carrillo and Avina, with a number of other Mexicans, were employed on a ranch in the Borrego Valley. On April 8, 1953, all of the appellants except Leon talked of going to Borrego Valley to see if they could pick up some "wetbacks." On April 9, they started out in a car, having a .22 rifle and a 20-gauge shotgun, and on the way they picked up Leon. About 7 p. m. on that day, they drove to a certain point near this ranch where Kretlow, Krom and Villareal got out. Krom had the .22 rifle and Villareal the shotgun. Williams and Leon then drove to the ranch where they picked up Carrillo and five other Mexican aliens, promising to take them to Los Angeles and collecting $10 from each of them for the trip. They then drove to the point where Kretlow, Krom and Villareal were waiting, and stopped the car. The defendants then took such money as they had left from the aliens and told them to run, firing a shot or shots for the purpose of frightening them and holding them together. They then drove to another point near the ranch where Krom, Kretlow and Villareal again got out of the car. Williams and Leon then drove to the ranch, picked up Avina and four other aliens and returned to the point where the other three were waiting. They then went through the same procedure as with the first group, robbing the aliens, firing a shot, and telling them to run.
On April 10, a deputy sheriff went to the location pointed out by Carrillo as the scene of the first robbery and there found a .22 caliber cartridge. Later, the officers found a .22 rifle which Krom admitted was the one he had used on the night of the robberies. A ballistics expert compared six cartridges fired from this gun with the one found by the officers, and testified that all seven were fired from the same gun. A jacket with peculiar markings, testified to as having been worn by one of the robbers, was found in the possession of Williams and admitted by him to be his. Shortly after the robberies an officer, Isbell, talked to all five of the appellants. Leon denied knowing anything about the robberies. The other four told in detail how the robberies were planned and executed, their statements corresponding fully with the statements made by the victims with respect to how the robberies were committed. None of the appellants took the witness stand, except on voir dire on the one issue as to whether or not their statements had been given voluntarily. *229
Carrillo and two of the other victims testified at the trial but Avina was not present, and the transcript of his testimony at the preliminary hearing was read into evidence. Appellants' first contention is that it was error to admit the testimony of this absent witness since no sufficient showing was made of due diligence to secure the presence of Avina. In this connection it appears that at the time of the preliminary hearing the district attorney had stated that he had every reason to believe that all of these witnesses would be available for the trial, since they had placed a "hold" on the immigration service and arrangements were made to keep them in this country for the trial; that on May 27, the case was set for trial on July 8; that on May 27, all the victims were under a "hold" of the immigration department and had been placed at various farms in the county to remain pending trial; and that those special arrangements were made for the purpose of keeping them here for trial. [1] It was stipulated that a deputy sheriff, if called, would testify that he received a subpoena on June 20 and went to the ranch of a Mr. Nichols where Avina was employed; that Nichols told him that on June 15, Avina had received a telegram from Mexico City saying that his mother was dying, that arrangements were made to fly Avina from Tijuana on June 16, that Avina was presently in Mexico City, that Avina said he would probably be back in time for the trial and would try to do so, and that he had not yet arrived. The showing of diligence was sufficient under the circumstances, and no abuse of discretion appears in this connection (People v. Cavazos, 25 Cal. 2d 198 [153 P.2d 177]; People v. Dunn, 29 Cal. 2d 654 [177 P.2d 553].) Moreover, no prejudice appears, as the record shows that at the preliminary hearing Avina was cross-examined separately by three attorneys.
[2] Some of the appellants further contend that the court erred in admitting into evidence the testimony of the officer Isbell, as to the admissions or confessions made by four of the appellants, since it was not sufficiently shown that these admissions were voluntarily made; that the direct testimony of the appellants showing that promises of reward and immunity were made were not denied; and that the only evidence to the contrary was the conclusions and opinions of the officer. Isbell first testified, with respect to his talk with the individual appellants, that no threats were made and that *230 no promises or grants of immunity were made by him, or by anyone else in his presence. In several of the instances counsel put his client on the stand, on voir dire, and the client testified to the effect that Isbell had said that if the individual would cooperate with the police it would go much easier with him; that by cooperating with the police it would be much better for him and go much easier with respect to probation; and that because of these promises he answered the questions asked but otherwise would not have made any statements as to the robbery. Thereafter, Isbell testified in detail as to the respective conversations, telling what was said, and that this was all of the conversation. In effect, Isbell thus denied the statements made by the individual appellants, and the evidence was sufficient to support the court's ruling in this regard. The evidence, while conflicting, supports the judge's determination on the initial question as to whether the confessions were admissible and the jurors were instructed that it was for them to determine whether the confessions were made and whether they were voluntary, and that they must disregard them unless it was found that they were voluntarily made. (People v. Logan, 41 Cal. 2d 279 [260 P.2d 20].)
[3] In connection with these confessions several other contentions are made. One appellant argues that the court erred in not permitting his counsel to lay a foundation for, and to examine, the notes which Isbell said he had made while taking the confessions of the appellants. Isbell had admitted that in one instance he had been confused and had said that a certain statement was made by one of the appellants when it was actually made by another. Counsel tried to bring in these notes which had not been used by Isbell in his testimony, and an objection was sustained. Counsel said he would like to make an offer of proof and the judge told him he could make this offer in the absence of the jury, and he would then permit counsel to reopen if the offer of proof appeared to be material. It does not appear that any such offer of proof was ever made. Not only was the offer of proof not followed through but no error appears since the witness had not used these notes on the stand. (People v. Gallardo, 41 Cal. 2d 57 [257 P.2d 29].) This same appellant also urges that the court erred in excluding any reference to the penalty as being immaterial. While this appellant was being examined on voir dire, with respect to the voluntariness of the confession, the court insisted that no mention of what had been said regarding the penalty be brought out unless it was *231 contended that the penalty stated by the officer was greater than it would actually be. [4] It is argued that this was error under the rule that where a part of a conversation is given in evidence the whole of it may be brought out by the other side. This rule is subject to the qualification that the portion of the conversation which is not relevant to the matter in question may be excluded. (People v. Hymer, 118 Cal. App. 2d 28 [257 P.2d 63].) Ordinarily, the subject of penalty is not the jury's concern and no prejudice appears. Another appellant contends that the district attorney was guilty of prejudicial misconduct in asking him one question. [5] This appellant took the stand on voir dire for the purpose of showing that his confession was not free and voluntary. On cross-examination he was asked "Did they induce you to tell the truth about the case or induce you to lie about it?" An objection was overruled and he answered, "I would say I was induced to lie about it." It is argued that the question was improper as going to the merits of the action. This question had a direct bearing on the testimony given by this witness on his direct examination (People v. Kynette, 15 Cal. 2d 731 [104 P.2d 794]), a part of which could well be considered as bearing on the merits of the action. In any event, no prejudice appears.
[6] Error is assigned in the refusal to instruct the jury that if it found from the evidence that the officers had told one of the defendants that if he would cooperate and answer their questions things would be better for him and it would go easier on him, and if it found that this defendant relied on said promises and by reason thereof made a confession, that as a matter of law said confession was not free and voluntary and must be disregarded. This instruction was refused as covered. Neither error nor prejudice appears as the matter was fully and adequately covered in the written instructions given.
It is further contended that the court misdirected the jury and erred in giving several instructions, as hereafter noted. At the beginning of his instructions the court said: "Now, I want to make a preliminary statement before I give you the actual instructions in this case which are in writing. ... What I say at this time as to this offense, and so forth, I want you consider that in the light of the instructions which I will give you and it is given to conform" therewith. The court then went on to make a long statement pointing out *232 that this was an unusual case, with five defendants and four attorneys, commenting on a number of matters which had been talked about during the trial, and making some general observations with respect to those matters. At the conclusion of that statement the judge went on to read the written instructions, which were very complete and which thoroughly covered every point of law involved in the case. The matters here complained of were all matters appearing in the preliminary statement thus made by the judge, and no complaint is made with respect to the real instructions which followed.
1. The first four relate to the finding of a knife. The appellants were charged with armed robbery in that they were armed with a rifle and shotgun. There was some evidence that they also had a knife but, while the rifle and shotgun were found and produced in evidence, no knife was found. In commenting on this phase of the case the judge stated that if the jury found that none of these articles were found this would be no reason for finding that the defendants were not armed "if you believe that the defendants were present at the time and place in question." He also stated that the mere fact that a weapon was not found does not make any difference "so long as there is proof that the weapon such as has been described was used"; that the mere fact that a knife was not produced would make no difference "if you feel from the evidence in this case that the knife was used"; and "If you find that there was a robbery perpetrated down there you will have to find whether or not these defendants, or any of them, were present at the time of the robbery. If they were, you will find them guilty, and if they weren't, you will find them not guilty." It is argued that the use of the words "think" and "feel" in some of these statements were improper because proof must be "beyond a reasonable doubt"; that the presence of a defendant at the scene of the crime would not be sufficient proof of guilt; and that erroneous statements of law thus clearly appear. [7a] Obviously, these were erroneous statements of law but they were made in connection with the discussion of certain incidents and in connection with other portions of the same general discussion showing that other things were necessary, the entire discussion being preceded by a statement that this was a preliminary discussion and was to be considered in the light of the specific instructions which were to be later given. While the matters complained of appear serious when taken out of the context, a reading of the entire preliminary *233 statement strongly indicates that the jury could not have been misled and must have understood that what was there being said was intended for a limited purpose, was confined to a part of one issue, and was to be modified and controlled by the regular instructions which followed.
2. In connection with the long discussion of another matter which the judge thought might mislead the jury the judge said: "Your only purpose is to determine what the facts are in this case and if you think they are innocent under the evidence you will acquit them and if you think any or all of them are guilty, you will find them guilty." The complaint here made is that the word "think" was used rather than language to the effect that there must be a finding beyond a reasonable doubt. This was thoroughly covered in other instructions. Some suggestion is also made that a part of this portion of the statement would tend to indicate to the jury the judge's own view as to the matter of guilt or innocence. No such expression of opinion appears, and the judge fully instructed the jurors that they should disregard any expression he might have used which might seem to indicate any opinion held by him with respect to the facts, or which might have suggested that he was inclined to favor the claims of either party.
[8] 3. It is contended that the court trespassed on the province of the jury during this preliminary statement by saying that the appellants were not deceived by what Isbell told them about the punishment; that the only respect in which Isbell did not tell them the truth was what he told them with reference to probation, in that he made it worse than it was and that this was done through inadvertence; that it was up to them to determine whether Isbell had told the truth; and that if there was any material discrepancy between the testimony at the preliminary hearing and at the trial, the jury should, of course, consider it. It is argued that these remarks showed the court's approbation of the officer's testimony, and was an interference with the jury's exclusive province to determine the matter of Isbell's credibility. These statements were made during the course of a long explanation of why the court had endeavored to keep the matter of what the penalty would be out of the testimony given by the appellants while being examined on voir dire, with respect to whether or not the confessions were voluntary or not. The statements objected to could hardly be prejudicial when taken in connection with the context, and were *234 not necessarily improper under the circumstances. (People v. Gosden, 6 Cal. 2d 14 [56 P.2d 211].) Moreover, the court instructed the jury that "with the questions of fact, the weight of the evidence and the credit you should give to any witness sworn in the case, the court has nothing to do. These are matters entirely within your province which you, as jurors, must determine for yourselves."
[7b] 4. Complaint is also made of the part of the preliminary statement in which the court told the jury that whether the appellants were represented by counsel at the time they made the confessions or whether they were in custody at the time would not, of itself, make their confessions voluntary or involuntary; that the mere fact that an officer tells a defendant in a particular case that they have the goods on him would not make it involuntary; and that regardless of the fact that Mr. Isbell may have told the appellants that he had certain information would not make a confession involuntary if, in fact, he did not have that information. It is argued that the court thus emphasized the various items that would make a confession voluntary, but refused to instruct the jury as to items which would make the confession involuntary. The jury was instructed fully and at great length on that element. Among other things, the jury was instructed that "A confession is involuntary when it is obtained by any sort of violence or threats, or by any direct or implied promises of immunity or benefit, or by any improper influence which might induce in the mind of the defendant the belief or hope that he would gain or benefit or be better off by making a statement. ..."
While some of the expressions used in this preliminary statement are erroneous, and while they should not have been used, it cannot reasonably be believed that the jury may have been misled thereby. The jury was clearly told in the beginning that this preliminary discussion was to be considered in the light of the specific instructions which followed, and it was then given full and definite instructions covering every element of the case, the correctness of which is not questioned. This is not a close case, the evidence of guilt was clear and convincing, and it would be unreasonable to believe that these errors could have affected the result. No miscarriage of justice appears, and the provisions of section 4 1/2 of article VI of the Constitution are applicable.
Griffin, J., and Mussell, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365126/ | 200 Or. 291 (1954)
266 P.2d 414
BURNETT ET AL.
v.
HATCH
Supreme Court of Oregon.
Argued November 18, 1953.
Reversed and remanded January 27, 1954.
*292 Bruce J. Manley, of Medford, argued the cause for appellant. With him on the brief were Hanley & Manley and Edward B. Hanley, Jr., of Medford.
Stanley C. Jones, Jr., of Medford, filed a brief for respondents.
REVERSED AND REMANDED.
PERRY, J.
This is a suit brought by the plaintiffs to quiet their title in and to certain real property described as follows:
"Lots Twelve (12), Thirteen (13), Fourteen (14), Fifteen (15), and Sixteen (16), Block 7 of Central Point, Jackson County, Oregon."
*293 The defendant appeared, alleging an interest in the real property above described, and the trial court determined upon plaintiffs' motion for a judgment on the pleadings that the defendant had no interest in or to the said real property, thereupon quieting the title in the plaintiffs free and clear of defendant's claims. From this adverse ruling the defendant has appealed.
The plaintiffs' complaint is in the customary form, alleging that they are the owners in fee simple of the real property described therein, and in sole possession thereof, subject to a mortgage executed by the plaintiffs to C.E. Gilkey and Grace Gilkey, husband and wife, on the 27th day of June, 1951, and duly recorded, and calling upon defendant to set up any claim, or claims, she may have in or to the real property.
The defendant answered, denying the plaintiffs' ownership, admitting the mortgage to C.E. Gilkey and wife, and by what she terms an "answer and counterclaim" (but which in fact is no more than an answer), sets forth the following facts: That she was prior to March 31, 1952, the wife of one Hugh Rae Hatch, also known as H.R. Hatch, having obtained a divorce from the said Hatch on that date; that the decree of divorce awarded to her, as her separate property, the property described in plaintiffs' complaint; that her husband had conspired with one Morris Bailey to convey the property to the said Morris Bailey to defraud the defendant of her rights in the property, and that in accordance with the conspiracy, conveyance was made on April 28, 1946, and duly recorded; "that at the special instance and request of Hugh Rae Hatch a portion of the purchase price of said premises was paid from the personal funds of Eva M. Hatch"; that after the conveyance to Bailey, defendant's husband left the state *294 of Oregon and has since evaded service of process and attempts to contact him; that the plaintiffs and their predecessors in title took the conveyance to the property with full knowledge of the defendant's rights; that on September 15, 1945, a judgment was entered in the divorce suit in favor of the defendant for the sum of $200 as temporary support money, and for the further sum of $100 as attorney's fees, that had not been paid or satisfied.
The plaintiffs filed an answer to the so-called counterclaim (which in fact is a reply to the defendant's answer), and admitted that Hugh Rae Hatch and the defendant had been husband and wife, and for a portion of the time that this relationship existed Hugh Rae Hatch had been the owner of the land in question, in which defendant had a dower right; that Hugh Rae Hatch had commenced a suit for divorce against the defendant Eva M. Hatch, and that subsequent to the commencement of the divorce suit the husband had conveyed the property to Morris Bailey, and subsequently through other hands to these plaintiffs; and admitted that there had been entered a judgment in favor of Eva M. Hatch in the sum of $200 as temporary support money, and the sum of $100 as attorney's fees, on September 15, 1945. Plaintiff also admitted that in the final divorce decree of March 31, 1952, the trial court had awarded to the defendant as her separate property the property in question. By way of a further answer, plaintiffs alleged that the complaint as filed by the defendant's husband, Hugh Rae Hatch, in the divorce suit did not describe any of the real property, and particularly the property in question, nor did the answer in the divorce suit as filed by the defendant describe the real property or pray for an award of such real property as alimony (a copy of plaintiff's complaint *295 and of defendant's answer in the divorce suit is incorporated by reference in the answer of the plaintiffs' in the suit before us); that on the 31st day of March, 1952, the date of the trial of the divorce suit, by leave of the trial court an amendment was made in the defendant's answer describing the real property in question, and on that date a decree was entered granting the defendant a divorce from Hugh Rae Hatch and setting off to her as her sole property the property in question (all of which is shown by the decree, a copy of which was incorporated by reference and made a part of the plaintiffs' so-called answer to the counterclaim).
Subsequent to the filing of the plaintiffs' so-called answer to the counterclaim, the defendant filed a so-called "reply to answer to the counterclaim" (which in fact, if allowed by the Code of this state, should have been designated as a "rejoinder"). By this pleading defendant admitted all of the pleadings in the divorce case, including the allegation that the real property in question was not described in the original pleadings in the divorce suit until defendant's cross-complaint was amended by interlineation at the time of trial thereof.
The defendant contends that, having denied plaintiffs' title, it was incumbent upon plaintiffs to offer proof sufficient to sustain their title. However, the defendant, as shown above, admitted that the legal title had been in her husband and was transferred by him to one of plaintiffs' predecessors in title and through them to the plaintiffs. Having admitted the existence of the legal title in the plaintiffs, the burden of showing a superior right and title to the property rested with the defendant, and if her pleadings fail to show such lawful right, she cannot complain. Durkin v. *296 Ward, 66 Or 335, 133 P. 345; 44 Am Jur 68, Quieting Title, § 83.
1. The defendant also contends that by reason of her advancing, at the request of her husband, some funds which were used in the purchase of the real property, and the husband having later "fraudulently transferred" this property, a resulting trust was created therein for her benefit. The allegation upon which the defendant relies reads as follows:
"That this defendant was the wife of Hugh Rae Hatch, also known as H.R. Hatch; that during the marriage of said parties, said Hugh Rae Hatch took title in his name to the lots set forth in paragraph one of the plaintiffs' complaint; namely, Lots 12 through 16, Block 7, to Central Point, Jackson County, Oregon, and that at the special instance and request of Hugh Rae Hatch, a portion of purchase price of said premises was paid from the personal funds of Eva M. Hatch."
This court is committed to the proposition "that, where the purchase price is furnished by the wife and title to the property taken in the name of the husband, a resulting trust is presumed in favor of the wife." Rhodes v. Peery, 142 Or 165, 173, 19 P2d 418. The plaintiffs contend that this does not describe "an aliquot share or specific portion" of the property or that payment has been made out of "commingled or indistinguishable" trust funds. However, the pleading was not attacked either by demurrer or by a request that it be made more specific, definite and certain. So whether or not a trust in the property did in fact exist is a question to be determined by the trial court from the facts disclosed upon a trial of this matter.
The defendant also contends that the trial court was in error because the transfer of the real property *297 by defendant's husband to one Morris Bailey was made pending the divorce case for the purpose of defrauding her and was accepted by the grantee with knowledge of that purpose. The pleadings of the divorce suit (admitted by all parties) show that at the commencement of the suit the defendant was asking solely for a money judgment, and if any fraud was committed upon her it would be the prevention of the enforcement of such money judgment as she might receive by way of the decree. However, no money as alimony in gross was recovered in a judgment by her, and in such a situation the cases of Griffith v. Griffith, 74 Or 225, 145 P. 270; Weber v. Rothchild, 15 Or 385, 15 P. 650; and Barrett v. Barrett, 5 Or 411, are not applicable.
2. We need not determine at this time whether or not the doctrine of lis pendens is applicable in divorce cases [see 166 A.L.R. 406] as we are of the opinion that if the doctrine is to apply the better rule requires that it is incumbent upon a party to fully describe in a pleading the real property claimed and request that the property, or an interest therein, be set apart to the claimant.
There is also another issue of fact raised by the pleadings in paragraph IV of defendant's affirmative answer which reads as follows:
"That Eva M. Hatch on the 31st day of March, 1952, secured a decree of divorce on her cross complaint against Hugh Rae Hatch, which decree awarded to her as her separate property the above described Lots 12 through 16, Block 7, of the City of Central Point, Jackson County, Oregon."
This allegation in effect charges that Hugh Rae Hatch was the owner of the real property on March 31, 1952, and that his interest therein, if any, was by the decree of the court transferred to the defendant. Therefore, *298 if the plaintiffs are in fact the holders of only the legal title, and the equitable title rested in Hugh Rae Hatch at the time of the divorce decree, the defendant by the decree became the owner of that equitable interest.
The plaintiffs contend, however, that the decree of the divorce court was void by reason of the fact that no notice was given to Hugh Rae Hatch, the plaintiff in the divorce suit, of the proposed amendment as allowed by the court.
3, 4. While it is true that divorce suits are commenced in a court of general jurisdiction, a circuit court when acting in such matters is "exercising a special power conferred upon it by statute, and not according to the course of the common law", and is "a court of special and inferior jurisdiction, such jurisdiction being limited by the terms of the statute conferring the power. Northcut v. Lemery, 8 Or 316, 322". Garner v. Garner, 182 Or 549, 555, 189 P2d 397. When, however, the necessary jurisdictional facts are established, the force and effect of such a judgment is that of a valid judgment established in a court of general jurisdiction. 49 CJS 851, Judgments § 428; Steiwer v. Steiwer, 112 Or 485, 230 P. 359; Shaveland v. Shaveland, 112 Or 173, 228 P. 1090.
5. Generally, the existing elements of a court's jurisdiction are, (1) that the court has been granted the authority to exercise its powers in relation to the nature of the relief sought, (2) that the proper parties are, in contemplation of law, present in court, and (3) that if a particular thing is to be effected by the court's action, this thing must be within the territorial limits of the court. Dippold v. Cathlamet Timber Co., 98 Or 183, 189, 193 P. 909.
*299 It must be conceded that the circuit court of Jackson county was granted the power to hear and determine the matter of a change in the marital status of Hugh Rae Hatch and Eva M. Hatch, the defendant in the case before us, and as incidental thereto, to provide a money judgment for the support of the defendant (§ 9-914, OCLA, as amended by Oregon Laws 1947, ch 228), and, also, to provide for a change of interest in the real property of the party in fault (§ 9-912, OCLA as amended by Oregon Laws 1947, ch 557). The pleadings show that both Hugh Rae Hatch and the defendant herein personally appeared in the divorce suit, and that the property involved by the decree was in Jackson county, Oregon; thus all of the necessary jurisdictional facts appear. The contention of the plaintiffs then resolves itself into whether or not the failure to give notice of the proposed amendment to the other party before the amendment was made in the divorce suit is jurisdictional so that that portion of the decree is void not merely voidable. Section 1-1006, OCLA, reads as follows:
"The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceedings to be amended by adding the name of a party, or other allegation material to the cause; and in like manner and for like reasons, it may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by 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 when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved."
and § 9-107, OCLA, provides that this statute shall be applicable to suits in equity.
*300 6. From the above it is seen that the matter of allowing amendments and the terms upon which they may be proper, before submission of the cause, insofar as the amendment "does not substantially change the cause of action or defense", rests in the sound discretion of the trial court, and it is only upon an abuse of this discretion that this court will reverse. Klingbeck v. Mendiola, 138 Or 234, 6 P2d 237; Filkins v. Portland Lumber Co., 71 Or 249, 251, 142 P. 578.
7. It is unquestionably an abuse of discretion for a court to permit a material amendment without notice to and in the absence of an adverse party. "It can hardly be said that a material amendment of a pleading, made in the absence of an adverse party and without notice to him, would be in furtherance of justice." Avery v. Jayhawker Gasoline Co., 101 Okla 286, 225 P. 544, 546. And the abuses of discretion of the trial court, if it should be considered such under the facts as set forth in the pleadings in this case, could be corrected only in a direct proceeding on appeal. Ulrich v. Lincoln Realty Co., 175 Or 296, 304, 152 P2d 255; Ralston v. Stone et al., 113 Or 506, 519, 232 P. 631.
The plaintiffs herein were not parties to the divorce suit, and they could not be injuriously affected by the judgment in that case, it being their contention that prior to the decree being entered therein Hugh Rae Hatch had parted with all of his right, title and interest in and to the real property in question. The only party affected would be Hugh Rae Hatch, if, as the answer alleges, he is in fact still the owner of an interest in the real property. Ulrich v. Lincoln Realty Co., supra.
Hugh Rae Hatch was cognizant of the fact that he had commenced a divorce proceeding in the circuit *301 court to which an answer and cross complaint had been filed alleging that he was the owner of real property in Jackson county, Oregon; that the trial of the issues would be heard on a day certain; and a duty was imposed upon him to keep apprised of this fact. 52 Am Jur 32, Trial, § 10. He also knew that the trial court had power to permit amendments at the time of the trial so that an inadequate description could be made more definite and certain. Justice LORD, speaking in Wright and Jones v. Edwards, 10 Or 298, 305, said:
"* * * It is true that vagueness, inaccuracy, or mistake in the description of lands will not vitiate the proceeding and render the sale a nullity when collaterally assailed, and rights of property have attached. The courts very properly hold, when jurisdiction has attached by the statement of proper facts, although defectively alleged, and by some inadvertence the lands are imperfectly described, the sale cannot be collaterally attacked * * *."
The case of Henderson v. Henderson, 85 Cal App 2d 476, 193 P2d 135, appears to be very closely in point. This was a collateral attack on a decree in an annulment suit which awarded certain real property to the wife. The description of the real property in the complaint was as follows: "Equity in real and personal property, situated in Shasta County, California, and standing in the joint names of the plaintiff and defendant herein." It was urged that the judgment was void because all description of the real property was different from that in the complaint. The court said that the description was sufficient to enable an officer upon execution to identify it and sufficiently certain to give the court jurisdiction over it. The court continued:
"Counsel for appellant cites cases such as Flores v. Smith, 47 Cal. App. 2d 253, 117 P.2d 712, holding that where a default judgment describes real property *302 differently than it is described in the complaint the judgment is erroneous and will be reversed on appeal or other direct attack. These cases are not in point where the attack is collateral. `A mere erroneous decision on a question of law * * * does not make the judgment void, if the court had jurisdiction of the subject matter and of the person of the defendant.' Wells Fargo & Co. v. City and County of San Francisco, supra, 25 Cal. 2d 37, 40, 152 P.2d 625, 627. Nor are such cases as Petition of Furness, 62 Cal. App. 753, 218 P. 61, where the description in the complaint and the description in the judgment on their face refer to different parcels, in point. Here the judgment refers to the same property described in the complaint, real property in Shasta County held in joint tenancy by the parties. The presumptions are in favor of the validity of the judgment and any facts consistent with its validity will be presumed. Wells Fargo & Co. v. City and County of San Francisco, supra, 25 Cal. 2d 37, 40, 152 P.2d 625. As said in Scarf v. Aldrich, supra, 97 Cal. 360, 368, 32 P. 324, 327, `the defective description in the petition and order to show cause did not affect the jurisdiction of the court, or the validity of the sale by the correct description * * *." (193 P2d 138)
See also Annotations, 111 A.L.R. 1200.
Our decision in Mumper v. Matthes, 186 Or 357, 206 P2d 86, bears on the question. The case involves an administrator's sale in which the description of the land to be sold omitted the fourth boundary line and the description of the easterly boundary line was unintelligible, (p. 370). The sale was held to be void on collateral attack, but the opinion points out on page 370 that "No attempt was made to correct the error, either in the petition, the order for sale, the published notice of sale, or the order confirming the sale." The case is, therefore, distinguishable.
*303 Also, the evidence in the divorce case as disclosed by the pleadings in this suit shows that Hugh Rae Hatch owned but this one piece of property in Jackson county.
8. We are of the opinion, under the alleged and submitted circumstances as shown by the exhibits of the proceedings in the divorce case, that if the divorce court abused its discretion in the matter of allowing the amendment, the judgment was at most voidable and not void.
In passing, we feel that we should note that the answer of the defendant alleges a judgment of temporary suit money and attorney's fees recovered and unpaid in the divorce suit prior to the transfer of title of the real property by Hugh Rae Hatch, which allegation is admitted by the plaintiffs. This judgment became a lien upon the real property by reason of subd (4), § 9-913, OCLA, (now subd (5) as set out and amended by ch 142 § 1, Oregon Laws 1945), passed subsequent to our decision in the case of State ex rel. v. Tolls, 160 Or 217, 85 P2d 366, 119 A.L.R. 1370.
The above cause will be reversed and remanded that the trial court may determine the interest, if any, of the defendant in the real property arising out of any interest Hugh Rae Hatch may have had therein on the 31st day of March, 1952, and for such other proceedings as are not inconsistent with this opinion.
LATOURETTE, C.J., specially concurring.
The principal question involved on the appeal is the validity of the decree of divorce awarding defendant the real property involved.
It is a general rule that where a court has jurisdiction *304 of the subject matter and of the parties its judgment cannot be collaterally attacked. The reason for this rule is well stated in 31 Am Jur 177, Judgments, § 577:
"The observance of the general rule denying the right collaterally to attack a judgment is required by a due regard for the repute of the courts and for the solemnity of judicial proceedings. The rule has been adopted as the result of weighing, on the one hand, the desire of the courts to avoid results which effect positive injustice to individuals, and on the other hand, considerations affecting public policy and convenience, especially in regard to the maintenance of the integrity of property rights acquired on the faith of judicial proceedings. In other words, the rule is based upon public interest in the final adjudication of controversies, or upon the conclusiveness which the law extends to judgments. The fact that a party has an opportunity for redress in a direct proceeding is also sometimes stated as an additional reason for the application of the rule."
In 49 CJS 815, Judgments, § 428, we find:
"When jurisdiction has once attached, the court has a right to decide every question arising in the case, and errors of judgment or irregularities, however gross, which do not render the judgment absolutely void, are not available on collateral attack, and, moreover, this rule as to the nonavailability on collateral attack has been held to be applicable even where such errors or irregularities appear on the face of the record. This rule applies to the orders and judgments of probate courts. A judgment cannot be collaterally impeached merely because it was based on a mistake of fact or a mistake of law."
The above rule is adhered to in Shaveland v. Shaveland, 112 Or 173, 178, 228 P. 1090; Travelers Ins. Co. v. *305 Staiger, 157 Or 143, 148, 69 P2d 1069; and Ulrich v. Lincoln Realty Co., 175 Or 296, 304, 153 P2d 255.
See Annotation, 111 A.L.R. 1200; Mumper v. Matthes, 186 Or 357, 206 P2d 82.
In the case at bar the trial court in the divorce suit had jurisdiction of the parties and of the subject matter. The cause of suit fell within a class over which the court could rightfully exercise jurisdiction. The court had jurisdiction to award defendant a divorce and to award to her the real property in question. § 9-912, OCLA, as amended by Oregon Laws 1947, ch 557. Her answer alleged that her husband was possessed of real property in Jackson county, Oregon, and was attempting to dispose of the same. The prayer of her answer, inter alia, called for general relief. At the trial the defendant testified that her husband owned the real property specifically described and the decree of the court corresponded therewith. Whether or not her pleading was amended, it seems to me, is immaterial at this stage of the proceedings.
It is asserted that since the complaint did not specifically describe the real property the same was insufficient, which would not warrant the entering of the decree. We have held in several instances that failure of the complaint to specifically describe the real property renders void the judgment based thereon. These cases must be distinguished from the instant case because the questions there considered were raised in direct proceedings rather than collaterally.
In Altman v. School District, 35 Or 85, 56 P. 291, and Horn v. United States Mining Co., 47 Or 124, 81 P. 1009, we held that the sufficiency of the complaint cannot be collaterally attacked. Of course this would not be true if the defect were a jurisdictional defect.
*306 To the same effect is 1 Freeman on Judgments, 5th ed, 761, where the following language is employed.
"In a previous section it was observed that pleadings bear a direct relation to jurisdiction. They present the controversy to the court and empower it to proceed in the cause. Regarded in that light, their office is a jurisdictional one and it is through them and by virtue of them that the court is put in control of the subject matter over which its general powers extend under the law. The parties are brought before the court by appropriate process, the subject matter is presented by some form of petition, bill, complaint, declaration or other application. It is apparent, then, that if the pleading satisfies this requirement and discloses a subject matter within a class over which the court's powers extend, it will suffice when made the basis of a collateral objection, irrespective of the completeness or quality of the allegations or their adequacy to justify the relief sought, or of any defects, irregularities or imperfections of form or substance. It is sufficient that the allegations challenge a judicial inquiry. For jurisdiction does not depend upon the sufficiency or fullness of the statement of the cause of action pleaded, nor is it of any importance collaterally whether the pleading does or does not state a cause of action, providing it sets forth a case within the court's powers. If a cause is pleaded belonging to a general class over which the court's authority extends, then jurisdiction attaches and the court has the power to determine whether the pleading is good or bad, and to decide upon its sufficiency as a statement of a cause of action. As in case of the power to decide any other legal proposition, jurisdiction does not depend upon the correctness of such decision, for though erroneous it is binding until corrected in some direct proceeding, and this notwithstanding the judgment is taken by default or emanates from the inferior tribunal, as, for instance, a justice's court."
*307 In arriving at a proper solution of this matter care must be taken in considering the cases to distinguish between collateral and direct attacks. Oftentimes, in a direct attack the courts have loosely and inadvertently used the words "void," "without authority," or "invalid" when the word "voidable" would have been more appropriate.
The cases cited in the dissenting opinion are distinguishable from the case at bar in that in the cases enumerated where a defective description in the complaint was voided, direct attacks on the decrees were employed. Of course, where a jurisdictional defective description is used, such as in the sale of property in an estate where the statute requires a description in the petition, the decree may be attacked collaterally.
BRAND, J., specially concurring.
Plaintiff instituted suit for divorce against his wife. The original answer of the defendant referred to "all of his [plaintiff's] belongings including the real and personal property * * * in which defendant herein had an interest * * *." It also alleged that "plaintiff is possessed of real and personal property in Jackson County." The plaintiff was thereby put on notice that his real property might be subjected to orders of the court. The only real property shown by the evidence to have belonged to the plaintiff in the divorce case was Lots 12 through 16, Block 7, Central Point, Jackson County, Oregon. At the trial of the divorce case the answer was amended to describe the real property as above set forth. In my opinion the trial court erred in entering a decree based upon the amendment which had not been served as required by OCLA, § 1-708. Under the circumstances of this particular case, *308 the error was not jurisdictional and the decree was not subject to collateral attack.
WARNER, J., dissenting.
I am compelled to dissent on the ground that the majority opinion avoids answering the most important issue advanced by this appeal. The opinion correctly states it as follows: "The plaintiffs contend * * * that the decree of the divorce court was void by reason of the fact that no notice was given to Hugh Rae Hatch, the plaintiff in the divorce suit, of the proposed amendment [i.e., to paragraph IV of Mrs. Hatch's cross complaint] as allowed by the court." A very important corollary thereto is whether or not such a decree is vulnerable to collateral attack. It requires clear answer if this appeal is to be correctly resolved.
Moreover, nothing is said in or solved by the majority opinion concerning the necessity or want of necessity of service of the amendment upon Mr. Hatch as a condition precedent to vesting the court with authority to make a decree predicated upon the new matter contained therein. To the contrary, the majority opinion detours the problem of service projected by § 1-708, OCLA (ORS 16.430) and rests its conclusion upon a premise not raised by either party and in a manner not decisive of the cardinal question before us. Instead, the majority rests its final conclusion upon a gratuitous holding in these words:
"We are of the opinion, under the alleged and admitted circumstances as shown by the exhibits of the proceedings in the divorce case, that if the divorce court abused its discretion in the matter of allowing the amendment, the judgment was at most voidable and not void." (Italics mine.)
*309 I cannot and, I venture to say, no one will seriously challenge the right of the court in the Hatch suit to have authorized the amendment which it approved in that matter. Whether the court abused its discretion in so doing is not the issue determining the void or voidable character of the decree which subsequently followed. The majority opinion does not travel far enough. It pauses midway in its quest for the solution and rests its ultimate conclusion upon a relatively unimportant and indecisive matter.
Neither Mr. Hatch nor his counsel had notice of the challenged amendment nor an opportunity to traverse the new allegation, for immediately thereafter the court proceeded to hear the matter and on the same day the trial judge entered a decree of divorce in favor of Mrs. Hatch with the following provision:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said Eva M. Hatch have as her separate property the following, to-wit:
"Lots 12, 13, 14, 15, and 16, Block 7, to the City of Central Point, Jackson County, Oregon * * *."
The defendant in this matter relies upon that decree to support her claim of title in the property which is the subject of this suit.
My position is (1) that the so-called amendment to Mrs. Hatch's cross complaint is a nullity because of the failure to serve it upon her husband and, therefore, it did not supersede the original cross complaint; (2) that the cross complaint was devoid of any specific description of real property owned by Mr. Hatch and that as a result of this pleading status the court never acquired jurisdiction of the subject matter, i.e., the real property described in the decree; and (3) that such a *310 jurisdictional defect rendered the decree void and subject to collateral attack insofar as it attempted to decree an interest therein to Mrs. Hatch.
I shall consider these several matters in the order presented above.
Failure to follow the directions of § 1-708, OCLA, rendered the so-called amendment inoperative to supersede Mrs. Hatch's original pleading in cross complaint. That section reads:
"In all actions at law and suits in equity wherein an amended pleading is filed, such amended pleading shall be served upon all parties to said action or suit who are not in default, but as to all parties to said actions or suits who are in default or against whom a default previously has been entered judgment may be rendered in accordance with the prayer of the original pleading served upon them and neither the amended pleadings nor the process thereon need be served upon such parties in default unless such amended pleading asks for additional relief against such parties in default."
That statute is plain and unambiguous. It places a premium upon notice. Its effect is to toll further action on the amended pleading until the record reveals that such service was accomplished or was waived. It is mandatory in character and no amendment, even though authorized, becomes efficient or effective unless it is apparent that there has been a complete and satisfactory compliance with § 1-708. If the record is silent in this respect, then the tendered amendment, even though filed, does not operate to supersede the pleading it is designed to amend and is functus officio, conferring no new authority on the court and leaving the party who offers it dependent upon his original pleading for relief.
*311 In Cram v. Tippery, 175 Or 575, 584, 155 P2d 558, we held, under authority of § 1-708, that where an amended complaint was filed but not served on all the parties defendant, the court was without authority to render judgment against any unserved defendant. Also see Alery v. Alery, Jr., et ux., 193 Or 336, 341, 238 P2d 771. I make no claim for the cases cited beyond the fact that they are authority for the proposition that an amendment of a pleading without service upon the adverse party is, under § 1-708, ineffective against that party and does not supersede the original pleading sought to be amended and that the pleader's relief against such adversary is, by reason thereof, limited in scope and extent to the allegations of the original pleading.
The amendment was tendered and authorized on the day set for trial (March 31, 1952). Mrs. Hatch was in court in person and with counsel. The record indicates no service of the amendment upon Mr. Hatch, as required by § 1-708, nor waiver of such service. No contention to the contrary is made. It follows that Mrs. Hatch's tendered amendment was inoperative and the only controlling pleading was her original cross complaint.
Our next point of interest is the scope of the original cross complaint.
I pause to note that jurisdiction of the subject matter must appear from the pleadings and does not depend upon the existence of a suitable cause of action or the evidence subsequently adduced. E. Henry Wemme Co. v. Selling et al., 123 Or 406, 417, 262 P. 833; Dippold v. Cathlamet Timber Co., 98 Or 183, 189, 190, 193 P. 909, and authorities there cited; Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 7, 137 P. 766. It is true, as *312 stated in the majority opinion, that it is essential to the jurisdiction that the res against which relief is sought must be within the territorial limits of the court; but that fact alone does not vest the court with power to accord any specific relief with reference thereto, unless the res is subjected by constructive seizure to the exercise of the court's power by being properly impleaded.
A divorce suit, insofar as it involves the disposition of any interest in real property, is in the nature of a proceeding in rem. In Ross v. Ross et al., 21 Or 9, 13, 26 P. 1007, consideration was given to the sufficiency of the pleadings in a divorce suit which failed to describe the real property of the adverse party, and the court there said:
"* * * according to well-settled principles of chancery practice, a decree which is to operate on the title to real property by divesting the title out of one of the parties and transferring it to the other, operates upon the thing itself in the nature of a proceeding in rem, and it is not perceived how the court can properly act upon such a subject when the thing to be affected is undescribed and unknown to the court, and the record is entirely silent in relation to every fact which, in ordinary cases, gives the court jurisdiction and enables it to act." (Italics mine.)
Concerning the necessity for a seizure of the res as a condition precedent to the exercise of the court's power with reference thereto, we find in Frederick v. Douglas Co. et al., 176 Or 54, 65, 155 P2d 925, this statement by Mr. Justice BRAND:
"In proceedings in rem there are two essential requirements. The first is that the res must be put under control by seizure or some equivalent act *313 such as attachment, institutions of a suit in equity, or proceedings to foreclose tax liens. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565; Baillie v. Columbia Gold Mining Co., 86 Or. 1, 166 P. 965, 167 P. 1167; Willamette Real Estate Co. v. Hendrix, 28 Or. 485, 42 P. 514, 52 Am. St. Rep. 800; 21 C.J.S., Courts, § 84, p. 126.
"By constructive seizure of the property within its territorial jurisdiction the court exerts its power to subject the property seized to judgment. * * *"
In 3 Bancroft, Code Pleading, 2205, § 1353, under the caption of "Divorce and Separation", it is said:
"Although the statute authorizes the court to make disposition of the property of the parties, this can be done only where the property is brought before the court by the pleadings. To authorize the court to partition or otherwise dispose of the property of the spouses there must be appropriate allegations in the pleadings either of the plaintiff or the defendant. The ownership of the property and its description must be alleged with such certainty as to identify it. Property not referred to in the pleadings cannot be included in a decree of divorce adjudicating rights in property, since it is not within the jurisdiction of the court. * * *"
To bring the res, that is, the real property, within the jurisdiction of the court in a divorce suit, this court has long ago adopted and since followed an exacting rule of pleading. We find it well and clearly expounded in Senkler v. Berry, 52 Or 212, 215, 96 P. 1070, in these words:
"It is now the settled law of this State, that in divorce proceedings the title to real property authorized to be awarded to the successful party by Section 511, B. & C. Comp., is not transferred by force of the statute, but by force of the decree; that to enable the court to act judicially on the subject of property in such cases, and to make a decree that *314 shall have the effect of divesting the title to real property out of one of the parties to the suit and transferring it to another, it must appear in the pleadings, not only that such party from whom it is proposed that the title shall be taken is the owner of the property, but also of what that property consists; and that, as the decree has the effect of transferring the title, it must be one of the muniments of the title and should identify the parcel or parcels intended to be transferred or affected thereby with as great certainty as is required in ordinary conveyances. * * *"
Also see Schafer v. Schafer, 122 Or 620, 639, 260 P. 206, 59 A.L.R. 707; Perkins v. Perkins, 72 Or 302, 306, 143 P. 995; Ross v. Ross et al., supra, at page 11; Hall v. Hall, 9 Or 452, 456; Bamford v. Bamford, 4 Or 30, 35.
From the foregoing we learn that the pleading must not only specifically describe the real property in which title is sought "with as great certainty as is required in ordinary conveyances" (Senkler v. Berry, supra) but the pleader must allege that the party to be divested is the owner thereof. More is required of the pleader, however, than a sufficient legal description. To give the pleading the quality of completeness there must be a claim for an investment of title in the pleader by a proper allegation or prayer. In short, an averment with reference to the real property, to be effective as a basis for the acquisition of title, must have as its pleaded objective a prospective ownership therein; otherwise, the pleading of the description is ineffectual to lay the basis for a disposition of the title by decree. Perkins v. Perkins, supra, at page 306; Hall v. Hall, supra, at page 456.
With these long established rules before us, let us now examine the contents of the original cross complaint *315 in Hatch v. Hatch. The nearest approach to the subject of real property is in paragraph XI reading:
"That the defendant is the owner of a yacht which he claims to be worth $48,000.00 now in a Seattle harbor, and is possessed of a Packard automobile in storage in Sacramento, California, which he claims to be of the value of $5,000.00. That in addition thereto the plaintiff is possessed of real and personal property in Jackson County, Oregon, of the probable value of $5,000.00 and did on or about July 25, 1945, from the proceeds of an auction sale conducted by him receive the approximate sum of $10,000.00 in cash."
There is no claim or prayer for any interest therein and, of course, reference to any real property possessed or owned by Mr. Hatch is in the baldest generality. It is plainly patent that the purpose of this allegation was to lay a foundation for the only relief prayed for by Mrs. Hatch, aside from a decree of divorce, and that is for "judgment against the plaintiff for the sum of $5,000.00 in lieu of alimony".
Even had the amendment been properly made, it would not have availed the pleader of any advantage which would have warranted a decree of an interest in any particularly described real property, for the amendment as tendered and attempted to be made effectual by interlineation did not amend paragraph XI above quoted but was an addition to a subparagraph of paragraph IV (the paragraph of the cross complaint devoted exclusively to a recital of the various items of alleged marital misconduct, made in support of the charge of cruel and inhuman treatment). I illustrate by setting out paragraph IV as it appeared after the tendered amendment:
"That immediately thereafter he conducted a sale attempting to dispose of all of his belongings *316 including the real and personal property (said real property is legally described as Lots 12, 13, 14, 15, and 16, Block 7, of the City of Central Point, Jackson County, Oregon * * *) in which defendant herein had an interest and including some personal belongings of the defendant." (Italics mine.)
The italicized language of the foregoing quotation represents the matter included by interlineation. The significant thing is that neither before nor after the abortive amendment did the cross complaint by allegation or prayer make a claim or ask for a decree of any interest in the subject real property, a further fatal defect in pleading matters of this kind. Perkins v. Perkins, supra; Hall v. Hall, supra.
It has been earnestly suggested (though not reflected in the majority opinion) that that part of paragraph XI reading "That * * * the plaintiff is possessed of real and personal property in Jackson County, Oregon" is sufficient to vest the court with jurisdiction over the subject matter. Whatever may be the rule in other proceedings relating to the disposition of an interest in real property, it is clear that in a divorce suit in Oregon such an allegation is palpably insufficient to give the court power to make any disposition of title to such real property. Here the rule is unusually strict, as manifested by a study of Perkins v. Perkins, supra.
In the Perkins case the defendant wife, in a cross complaint to a divorce suit instituted by her husband, as shown by the record here, specifically described certain real property owned by the husband in these words: "* * * Six Hundred (600) acres of land of first class farm and grazing land, described as follows to-wit * * * [then follows a particular description *317 to parcels totaling 540 acres as situated in Coos county, Oregon]." (Italics mine.) Thereafter, in granting a decree of divorce to the wife, the court vested her with an undivided one-third interest in and to the 540 acres specifically described in her cross complaint and also added a parcel of 80 acres situated in a different section of the same township and range wherein the 540 acres were situated. On appeal this court held, with reference to the additional 80 acres:
"* * * This land was not described in the answer, and it was not mentioned in the evidence. The rule is well established in this state that where a party to a divorce suit asks for a decree of divorce, and desires, also, to obtain a decree for one third of the real property owned in fee by the adverse party, it is incumbent on him to set forth in his pleading a description of such property and to ask for a decree for an undivided one third thereof, and, if he fails to do so, he waives all right thereto, and the court has no power to grant him any part of such property * * * [citing cases]. The decree of the court below, in so far as it attempted to grant to the defendant a part of the west half of the northwest quarter of section 27 in township 29 south, range 14 west of the Willamette meridian, is invalid, and said decree will be so modified as to omit all reference to said parcel of land." (Italics mine.)
It will be observed that in the Perkins case the rejected description was far more complete than found in the cross complaint in Hatch v. Hatch.
Tested by the foregoing rules the original cross complaint, by reason of the absence of an adequate description of the instant real property, conferred no jurisdiction of the property upon the court and, therefore, the resultant decree in Hatch v. Hatch transferred no title to Mrs. Hatch.
*318 With the foregoing results in mind, I now approach the paramount matter for consideration: Is a decree which makes a disposition of an interest in real property, not warranted by the pleadings, vulnerable to a collateral attack such as is here made against the decree in Hatch v. Hatch?
It is a well established principle of law that a decree or judgment on a matter outside an issue raised by the pleadings is a nullity and is nowhere entitled to the least respect as a judicial sentence. McLean v. Porter, 148 Or 262, 271, 35 P2d 664; State ex rel. Dean v. Dean, 136 Or 694, 697, 300 P. 1027, 86 A.L.R. 79; May v. Roberts, 133 Or 643, 657, 286 P. 546; Reed v. Hollister, 106 Or 407, 415, 212 P. 367.
This court has heretofore held in divorce suits that an excessive grant by decree of an interest in real property not supported by proper pleading is jurisdictional and beyond the court's powers. This being so, it is subject to collateral attack. Note the language employed by this court in Perkins v. Perkins, supra: "* * * the court has no power to grant him any part of such property * * *." (Italics mine.)
This court has defined a want of jurisdiction as a loss of power to act. Marsters v. Ashton, 165 Or 507, 512, 107 P2d 981. The court, speaking through Mr. Justice RAND in Reed v. Hollister, supra, said, at page 414:
"* * * Jurisdiction is said to be the right to adjudicate concerning the subject matter in a given case, and includes not only the power to hear and determine, but also the power to render the particular judgment in the particular case, as well as the power to enforce the judgment when rendered, and jurisdiction of the subject matter means jurisdiction, *319 not only over the particular case, but over the class of cases to which a particular case belongs * * *."
Also see State ex rel. v. Crawford, 159 Or 377, 388, 80 P2d 873; Walker v. Fireman's Fund Ins. Co., 122 Or 179, 191, 257 P. 701; Harney Valley Irr. Dist. v. Bolton, 109 Or 486, 491, 221 P. 171; Ralston v. Bennett, 93 Or 519, 523, 183 P. 766; In re McCormick's Estate, 72 Or 608, 616, 143 P. 915, 144 P. 425.
Northwestern Clearance Co. v. Jennings, 106 Or 291, 209 P. 875, 210 P. 884, was a suit involving a collateral attack upon a previously rendered judgment wherein the court cited with approval Sache v. Wallace, 101 Minn 169, 112 N.W. 386, 118 Am St Rep 612, 11 Ann Cas 348, 11 LRA NS 803, as follows:
"`When the court goes beyond and outside the issues made by the pleadings, and in the absence of one of the parties determines property rights against him which he has not submitted to it, the authority of the court is exceeded, even though it had jurisdiction of the general subject of the matters adjudicated. Such a departure cannot be held a mere irregularity. * * *'"
Later, at page 310 this court holds:
"A judgment of a court acting without jurisdiction or in excess of its jurisdiction is void and subject to collateral attack: 11 Cyc. 702; 23 Cyc. 681, 1074; Wright v. Edwards, 10 Or. 298, 302; Hoover v. King, 43 Or. 285 (72 P. 880, 99 Am. St. Rep. 754, 65 L.R.A. 790)."
I submit that if the court had no power to act judicially, it is equivalent to a want of jurisdiction rendering such a decree subject to collateral attack. 49 CJS 822, Judgments § 421.
*320 The foregoing conclusions and definitions find support in the following statement from 1 Freeman, Judgments 5th ed, 733, § 354:
"* * * in the actual rendition of the judgment, the court must remain within its jurisdiction and powers. For it is the power or authority behind a judgment, rather than the mere result reached, which determines its validity and immunity from collateral attack. A wrong decision made within the limits of the court's authority is error correctable on appeal or other direct review, but a wrong, or for that matter a correct, decision where the court in rendering it oversteps its jurisdiction and power is void and may be set aside either directly or collaterally. Such excess of authority or power is akin to a want of jurisdiction over the subject matter * * *.
"Whether the court lacked power to act in the first instance by reason of its failure to acquire jurisdiction over the subject matter of the parties, or having been invested with such power, proceeded to make a determination outside or beyond the legitimate scope thereof, the result is the same. * * *" (Italics mine.)
For the foregoing reasons the decree in Hatch v. Hatch is insufficient to support a claim of fee simple ownership in Mrs. Hatch and the decree in the instant suit should be affirmed insofar as it decrees the plaintiffs Burnett to be the owners in fee simple of the subject property but modified (for the causes assigned in the majority opinion) by subjecting the same to the lien of that certain judgment obtained by Mrs. Hatch in the divorce suit dated September 15, 1945, for $200 support money and the further sum of $100 as attorney's fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365134/ | 239 Ga. 316 (1977)
236 S.E.2d 655
WAY
v.
THE STATE.
32316.
Supreme Court of Georgia.
Submitted May 13, 1977.
Decided June 28, 1977.
Folk & Neal, Joseph R. Neal, for appellant.
Richard E. Allen, District Attorney, Stephen E. Curry, Assistant District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee.
BOWLES, Justice.
The appellant, Anthony Way, was charged with committing the armed robbery of a convenience store in Richmond County, Georgia. He was tried along with co-defendants Harris and Oliphant, found guilty, and sentenced to ten years in prison. He comes here complaining that the verdict rendered was contrary to the law and evidence; was against the weight of the evidence; that the trial court refused to grant a co-defendant's motion for severance; that the trial court erred in admitting illegal evidence to the jury; and that the trial court erred in finding that the statement given to the investigators was freely and voluntarily made.
After reviewing the record, we affirm.
1. In his brief appellant has failed to support his enumerations of error 1, 2, 3 and 6 with citation of authority or argument. Therefore, pursuant to Rule 18 (c) (2) of the Supreme Court of Georgia, they are deemed abandoned. Ezzard v. State, 229 Ga. 465 (192 SE2d 374) (1972).
2. Appellant argues that it was error for the trial court to refuse to grant a co-defendant's motion for severance. The appellant made no motion for severance on his own behalf. Appellant cites no examples of prejudice or other injury to him resulting from the court's ruling. Code Ann. § 27-2101 provides in part "When two or more defendants are jointly indicted for a capital offense, any defendant so electing shall be separately tried..." (Emphasis supplied.) The appellant in this case did not elect to sever. There is no authority, under the statute, to require the court to sever the trial of a defendant who has made no motion to sever. "The right to a severance under both the Georgia law and the American Bar Association Standards Relating to the Administration of Criminal Justice arises only upon an appropriate motion. No motion to sever having been made in the trial court, the contention is without merit." Coachman v. State, 236 Ga. 473 (224 SE2d 36) (1976). It is too late after an adverse verdict to raise the issue for the first time. Strickland v. State, 226 Ga. 750 (177 SE2d 238) (1970).
*317 The appellant will not be heard to complain of the trial court's denial of a co-defendant's motion to sever. His enumeration of error No. 4 is without merit.
3. Appellant complains of the admission over his objection of identification testimony by an eyewitness who had been shown a photographic line-up, and admission of testimony relating to confessions of co-defendants.
The state's eyewitness testified that, approximately one hour after the crime, she was shown a photographic line-up, from which she was able to positively identify appellant as one of the men who had robbed her. Appellant objected on hearsay grounds, contending that the eyewitness was testifying based on knowledge gained through an unidentified third party and that this tainted the line-up, making it impermissibly suggestive so as to contribute to misidentification. This set of circumstances was not shown by the record. The eyewitness was the cashier at the store which was robbed; she was the person from whom the money was taken; she identified appellant from a series of photographs shown to her soon after the occurrence; and she testified at trial that appellant was the man she identified in the photographic line-up. We find no hearsay issue.
Appellant has not established that the photographic display shown to the eyewitness was impermissibly suggestive. Absent such a showing, there is no basis upon which to consider the question of whether the alleged suggestiveness contributed to misidentification. Payne v. State, 233 Ga. 294 (210 SE2d 775) (1974); Simmons v. United States, 390 U.S. 377 (88 SC 967, 19 LE2d 1247) (1968). We find no error in admitting the identification testimony.
4. Appellant also complains that the confessions of co-defendants made during the investigative period and read into evidence, over objection, were inadmissible. We disagree. Investigator Wright testified at trial that each of the three co-defendants had made statements to him, confessing their guilt and implicating the other co-defendants. Following a hearing outside the presence of the jury, the trial court ruled each of the statements admissible. The witness was allowed to read each of the *318 statements before the jury, but was instructed to mention only the name of the person making the statement. This procedure was followed and appellant made no objection.
Under the decision of this court in Munsford v. State, 235 Ga. 38 (218 SE2d 792) (1975), the testimony relating to each of the statements was admissible against the co-defendant making the statement, and in the absence of a request to charge, it was not error to fail to limit the admissibility of such testimony to the co-defendant against whom it was admissible, citing Posten v. State, 233 Ga. 828 (213 SE2d 686). Appellant made no request to charge that the jury was not to infer any guilt to other co-defendants from a statement made by a co-defendant. Indeed, the statements as read were made to be as neutral as possible by deleting any reference to other co-defendants.
In any event, objections to the admission of evidence may not be raised for the first time on appeal. Clenney v. State, 229 Ga. 561 (3) (192 SE2d 907) (1972). "A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." Joyner v. State, 208 Ga. 435 (67 SE2d 221) (1951).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365529/ | 236 S.E.2d 393 (1977)
33 N.C. App. 654
STATE of North Carolina
v.
Ronnie Louis CONYERS.
No. 7618SC1016.
Court of Appeals of North Carolina.
July 20, 1977.
Certiorari Allowed October 4, 1977.
*395 Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas H. Davis, Jr., Raleigh, for the State.
Asst. Public Defender D. Lamar Dowda, Greensboro, for defendant appellant.
Certiorari Allowed by Supreme Court October 4, 1977.
PARKER, Judge.
Defendant assigns error to the admission of the in-court identification testimony of the State's witnesses, Robertson and Fuller. He contends this testimony should have been excluded because of impermissibly suggestive out-of-court photographic identification procedures. In support of this contention, defendant points out that a border on two of the group of eight photographs which were shown separately to each witness was tinged with yellow; that one of the photographs with a yellow tinge on the border was that of the defendant; and that the other photograph with a yellow tinge on the border was that of one of the other men accused of participating in the same robbery. Defendant contends that because of the distinctive yellow borders on these two critical photographs, the photographic identification procedure in this case was "patently suggestive as a matter of law." From this he argues that reversible error occurred when the court admitted the in-court identification testimony of Robertson and Fuller. We do not agree.
Prior to admitting the in-court identification testimony of these two witnesses, the court in each case conducted a voir dire examination. After the voir dire examination held to determine the admissibility of Fuller's in-court identification testimony, the court made full findings of fact, both concerning the out-of-court photographic identification procedure which had been followed and concerning the opportunity which Fuller had had to observe the two men who had come to the back of the store on the night of the robbery. In this latter connection Fuller testified at the voir dire hearing that the back area of the store was well lighted with fluorescent lights, which he described as "bright daylight lights," that the two men were in the back of the store with him for approximately three to five minutes, and that for much of that time "the man with the knife," whom he identified as the defendant, was facing him. The court found on this evidence that the store was well illuminated; that Fuller had had an opportunity to observe the man who held the knife at his throat; and that Fuller did observe that man. The court further found as a fact "that Fuller's impression that the defendant resembles the man who put the knife to his throat as aforesaid is based upon his recollection of the appearance of the man who put the knife to his throat as aforesaid, and that it is in nowise based upon his viewing of photographs exhibited to him by Greensboro police officers, as aforesaid." Since these findings are fully supported by the evidence, they are binding on this appeal. State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Harmon, 21 N.C.App. 508, 204 S.E.2d 883 (1974). Thus, even if the use of a photograph having a yellow tinged border which made it distinctive from the other photographs should be considered by itself to be impermissibly suggestive, the court's finding, which is supported by clear and convincing evidence, that Fuller's identification testimony was of independent origin supports the court's ruling that his testimony was admissible.
The situation in connection with the identification testimony of the witness, Burnetta Robertson, is somewhat different. Following the voir dire hearing held to determine the admissibility of her in-court identification testimony, the court made no finding that her identification of the defendant was of independent origin. The court did find that "none of the photographs exhibited to Mrs. Robertson by the detective, K. W. Brady, bore any markings other than markings and shows (sic) and *396 color placed on the photographic paper at the time of the development of the photographs." The court further found that Detective Brady exhibited all of the photographs shown Mrs. Robertson without comment regarding any photograph. On these findings the court concluded "that no impermissible thing was said or done to or in the presence of (sic) hearing of Mrs. Robertson as the aforesaid photographs were exhibited to her." Defendant now contends that this conclusion was erroneous as a matter of law solely because of the yellow tinge, which the evidence shows resulted from the photographic developmental process and not from any action of the police, which appeared on the border of the photograph of the defendant and which made it distinctive from the other photographs. Defendant's contention presents a serious problem. Obviously, any marking or coloring on a particular photograph, whether placed there deliberately or as a result of accident, which sets it apart from others shown in a photographic lineup, presents the danger that the attention of the person viewing the lineup might be focused unduly upon that photograph and thus lead to the danger of misidentification. Obviously, also, fairness requires that every precaution should be exercised to avoid that danger. Nevertheless, the admission over defendant's objection at trial of eyewitness identification testimony following a pretrial identification by photograph will be held reversible error only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Knight, 282 N.C. 200, 192 S.E.2d 283 (1972). The only feature of the photographic identification procedure in the present case which was even remotely suggestive was the fact of the tinged yellow border on defendant's photograph. We do not believe that this fact alone made the photographic identification procedure followed in this case "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Moreover, Mrs. Robertson's in-court identification testimony before the jury in this case was so weakshe testified only that defendant "resembles one of the guys who went to the back"and the other evidence of defendant's guilt, including his signed confessions was so overwhelming, that the admission of her testimony, if error at all, was harmless beyond any reasonable doubt. We find no reversible error resulted from the court's ruling allowing Mrs. Robertson to testify that defendant resembled one of the robbers.
Defendant assigns error to the admission in evidence of his signed confession. Prior to admitting this evidence, the court conducted another voir dire hearing. At this hearing defendant testified and admitted he signed the confession after signing a waiver of his rights. He testified that he did so only because the officers promised that his bail would be reduced and that he would be placed on probation in return for his testimony against Ben Haith. The officers who took the confession denied making any such promises. At the conclusion of the voir dire hearing, the court made full findings of fact. These are fully supported by competent evidence. They are therefore binding on this appeal. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). These findings in turn fully support the court's conclusion that the defendant "knowingly, intelligently, and intentionally waived his said rights and freely, voluntarily, intelligently, and intentionally" made his confession. There was no error in admitting the confession in evidence.
Defendant has made a number of assignments of error dealing with portions of the court's charge to the jury. For example, defendant assigns error because at one point the court instructed the jury that reasonable doubt "is intended to imply a possibility of innocence." The use of the phrase "possibility of innocence" as synonymous with "reasonable doubt" has been expressly disapproved by our Supreme Court and by this Court. State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974); State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972); State v. Chaney, 15 N.C.App. 166, 189 S.E.2d 594 (1972). However, no prejudice *397 resulted to the defendant, since the instruction was more favorable to the defendant than that to which he was entitled.
Defendant has also assigned error to other portions of the charge dealing with reasonable doubt. The charge, when read contextually, fairly and clearly stated the law; therefore, the isolated portions to which defendant excepted will not be held prejudicial. State v. Quick, 20 N.C.App. 589, 202 S.E.2d 299 (1974).
Defendant has also assigned error to the failure of the court to define the doctrine of aiding and abetting and to apply it to the facts of this case. We find no error. "A person who actually commits the offense or is present with another and does some act which forms a part thereof, although not doing all of the acts necessary to constitute the crime, is a principal in the first degree." State v. Mitchell, 24 N.C. App. 484, 486, 211 S.E.2d 645, 646 (1975). Where the defendant is present with another and with a common purpose does some act which forms a part of the offense charged, the judge must then explain and apply the law of "acting in concert." Id. Here, defendant was indicted as an active participant for the crime of armed robbery. All the State's evidence tended to show that defendant was present and with a common purpose did some act forming a part of the offense charged by helping accost one employee in the back of the store while Ben Haith was robbing the other employee in the front of the store. The court properly instructed the jury on "acting in concert" and was under no duty to instruct on aiding and abetting. Defendant's assignment of error is without merit.
Defendant's assignments of error to the denial of his motion for nonsuit and to the denial of his motion to set aside the verdict are also overruled. There was plenary evidence to send the case to the jury. Since the motion to set aside the verdict is discretionary, the refusal to grant said motion is not reviewable on appeal, absent an abuse of discretion. State v. Dull, 289 N.C. 55, 220 S.E.2d 344 (1975). Defendant has failed to show an abuse of discretion.
Defendant received a fair trial free from prejudicial error.
No Error.
BRITT and MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365548/ | 239 Ga. 146 (1977)
236 S.E.2d 47
BELL
v.
THE STATE. ELLERBEE
v.
THE STATE. GANTT
v.
THE STATE.
32067, 32136, 32186.
Supreme Court of Georgia.
Submitted February 25, 1977.
Argued April 11, 1977.
Submitted April 8, 1977.
Decided May 12, 1977.
Rehearing Denied June 7, 1977.
R. Allen Hunt, for Bell.
Cohen, Traub & Mackin, Dennis S. Mackin, for Ellerbee.
Luman C. Earle, L. Paul Cobb, Jr., for Gantt.
Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, Arthur K. Bolton, Attorney General, Harrison Kohler, Assistant Attorney General, for appellee.
UNDERCOFLER, Presiding Justice.
Appellants Bell, Ellerbee and Gantt were convicted in Fulton Superior Court in a joint trial for the armed robbery and murder of James Edmondson, Sr., professionally known as Professor Backwards. A fourth indictee, Michelle Sipp, housekeeper for Edmondson, testified for the state. Bell and Ellerbee pleaded not guilty and did not testify at trial. Gantt pleaded not guilty by reason of delusional insanity and testified.
Each defendant was sentenced to life imprisonment for murder and to twenty years for armed robbery, the sentences to run concurrently. These appeals followed. We affirm. The principal attack by all appellants seeks to invoke the rule in Bruton v. United States, 391 U.S. 123 (88 SC 1620, 20 LE2d 476) (1968) alleging error in denying severance and then permitting the introduction of the content of out-of-court statements by co-defendants containing inculpatory references to a defendant on trial.
The evidence in the case shows Michelle Sipp was a live-in housekeeper for James Edmondson, Sr. She testified she was injured by Edmondson's son and during *147 treatment at a local hospital met Michael Gantt. Later, Gantt visited her several times at the Edmondson residence. Ms. Sipp had access to Edmondson's checkbook and, on one occasion, Gantt cashed one of Edmondson's checks for $175 which was later returned as a forgery. Before the return of this check, Gantt and Ms. Sipp were talking on the telephone and Edmondson overheard Gantt asking Sipp for another check. Edmondson cursed Gantt and hung up. Later, Gantt testified, Sipp called him and asked him to come over because she feared for her life. Gantt then testified he contacted appellants Ellerbee and Bell, whom he identified only as "Tony" and "Slim" and asked them to accompany him "to a party" at Edmondson's house. Gantt asked Bell where they could get a gun. Bell secured a .32 caliber pistol and the three co-defendants went to Edmondson's house by taxi. Ms. Sipp testified she heard Edmondson go to the front door; heard voices asking to use the telephone and soon afterwards Edmondson asking someone not to hurt him. Gantt, producing the pistol, demanded $5,000. Edmondson said he did not have that much and Gantt told him to produce it or he would be killed. Edmondson eventually gave Gantt a check for $300, and appellants waited in the house with Edmondson and Ms. Sipp throughout the night for the banks to open the next morning. While waiting, the co-defendants alternated in holding the gun on Edmondson, and two of them, Ellerbee and Bell sexually assaulted Ms. Sipp and attempted to rape her, but Gantt stopped them. Around 8:30 a. m. the next morning, the three co-defendants and Edmondson left the house in Edmondson's 1973 brown Cadillac, telling Sipp to stay in bed and not to call police or they would be back for her. With Bell at the wheel and Edmondson next to him in the front seat and Ellerbee and Gantt in the back seat, the parties drove around for over an hour. Then, the car was stopped at Gantt's instruction on Watts Road, a gravel road near Bankhead Highway, where Gantt, Ellerbee and Edmondson got out of the car. Bell drove the car away, turned it around and stopped. Gantt shot Edmondson above the left eye, and after he fell to the ground, Gantt shot Edmondson two more times above the left ear, killing him. Gantt and Ellerbee re-entered the car *148 and Gantt attempted to cash the $300 check at a local convenience store without success. The three appellants abandoned the car and dispersed to their homes, Bell taking the pistol from Gantt and hiding it under his bed at home.
After Edmondson's body was found, Ms. Sipp went to the College Park police and reported the incidents of Edmondson's kidnapping. She later identified Gantt as one of those involved. He was arrested, given the Miranda warnings and he signed a waiver of counsel form prior to making a statement. In his first statement, he denied the slaying but identified his other two companions as "Tony" and "Slim." Ellerbee, later identified as "Tony" and Bell identified as "Slim," were arrested early the next morning. They were advised of their Miranda rights, signed waiver of counsel forms and gave corroborating statements identifying Gantt as the slayer of Edmondson.
The following afternoon, the three men were jointly interrogated following a reminder of the Miranda warnings to clear up "certain discrepancies" in their statements. Ellerbee and Bell voluntarily participated in this discussion. Gantt at first refused to participate until after the interview was well under way but later he waived the presence of counsel and freely participated in the discussion. Gantt made several conflicting statements during the investigative phase of the case, however, he finally admitted the killing stating "voices" told him to kill Edmondson because he had issued a "cassette-type" contract to have Gantt killed. A Jackson-Denno hearing was held during trial and the judge determined all statements were freely and voluntarily made by the three defendants.
1. Bell, Ellerbee and Gantt raise the Bruton issue claiming that during trial the out-of-court statements of the other co-defendants, inculpating them, were substantially introduced through the testimony of police officers investigating the case, thus violating the holding of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, supra, prohibiting such testimony because it denies co-defendants of the right of confrontation under the Sixth and Fourteenth Amendments *149 to the U. S. Constitution.
This enumeration of error was considered recently under similar circumstances in Baker v. State, 238 Ga. 389 (233 SE2d 347) (1977). The convictions in that case were affirmed on the basis of harmless error.
A careful review of the written statements contained in this record and of the voluminous transcript of trial shows that the rule in Bruton was violated. However, as we held in Baker, the introduction of these statements was harmless error under Schneble v. Florida, 405 U.S. 427 (92 SC 1056, 31 LE2d 340) (1972). In that case, the U. S. Supreme Court held that "Any violation of Bruton that might have occurred was harmless beyond a reasonable doubt in view of the overwhelming evidence of petitioner's guilt as manifested by his confession, which completely comported with the objective evidence, and the comparatively insignificant effect of the co-defendant's admission." Schneble v. Florida, supra, at p. 427.
Gantt pleaded not guilty by reason of delusional insanity, thus admitting the crime but resting his case upon the absence of the requisite intent to murder. His confession was substantially introduced through testimony of investigating officers and upon taking the stand under cross examination, Gantt stated his admission of guilt was true as was the rest of the content of his final statement admitting the crime. He acknowledged that he alone killed Edmondson. Bell and Ellerbee's statements were merely cumulative as to the events during the criminal conspiracy. Under these circumstances, Bruton does not require a reversal of Gantt's conviction.
Bell's statement was the most detailed of those given to investigating officers. He admitted going with Gantt and Ellerbee, getting the pistol for Gantt, going to Edmondson's house, participating in the night-long attempt to get $5,000 and of attempting to subdue Ms. Sipp. Further, he admitted leaving the house in Edmondson's Cadillac and driving to a secluded spot where he let Ellerbee and Gantt out of the car with Edmondson. He stated he saw the men together, heard the three shots, saw Gantt and Ellerbee run toward the car and that he picked them up. He stated he asked for and Gantt gave *150 him the pistol and he took it home with him. He told of driving to a convenience store where Gantt tried unsuccessfully to cash the $300 check. He told of abandoning the car and later going back to it and using it to drive over to his girlfriend's home where he abandoned it nearby. He raised the Bruton issue, seeking reversal because the substance of Gantt's and Ellerbee's statements, related to the jury by Gantt and investigative officers, implicated him. The references to Bell by Gantt and Ellerbee were merely cumulative of Bell's own confession, and in view of Gantt's confession to the murder, no material prejudice can be shown by Bell under the holdings in Schneble and Baker.
Ellerbee also argues the Bruton rule, but his confession, like that of Bell's, was cumulative as to minor details of the criminal conspiracy. The only difference between Bell's and Ellerbee's statements was in Ellerbee's statement that he did not get out of the car on Watt's road with Gantt and Edmondson, but from inside the car saw Gantt shoot Edmondson "at least twice in the head." Since Gantt admitted killing Edmondson, and Ellerbee and Bell both confessed to being at the scene, it was immaterial from what position either of them saw the killing.
There was no prejudice to any of these defendants under the ruling in Schneble and the violation of Bruton was harmless error. Baker v. State, supra; Schneble v. Florida, supra.
2. Ellerbee and Gantt argue that severance should have been granted them because their defenses were antagonistic and that the court knew that statements made by the co-defendants containing inculpatory references to them would be tendered during a joint trial. There is no merit to these contentions under the facts and holding in Division 1. "Where the death penalty is waived ... defendants may be tried jointly or separately in the discretion of the court." Code Ann. § 27-2101. Woodruff v. State, 233 Ga. 840, 843 (213 SE2d 689) (1975). "The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal." Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975) and cits.
3. Gantt and Ellerbee argue for the first time on *151 appeal that the court below erred in charging the jury in regard to confessions and admissions without defining admissions and confessions. We find no error. The record here shows there was no objection by either counsel following the charge on this issue, and the charge given on confession was verbatim as that requested by Ellerbee. Thomas v. State, 233 Ga. 237, 241 (210 SE2d 675) (1974); Patterson v. State, 233 Ga. 724, 731 (213 SE2d 612) (1975).
4. Ellerbee and Gantt also argue their convictions for armed robbery are erroneous because the murder was a probable consequence of the armed robbery. There is no merit to this contention under the facts of this case.
5. We have reviewed the other enumerations of error and find them without merit. The evidence supports the verdicts.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365849/ | 595 P.2d 1302 (1979)
Roger K. BALLARD, Plaintiff and Appellant,
v.
STATE of Utah, MOTOR VEHICLE DIVISION, Licensing Department, Defendant and Respondent.
No. 15863.
Supreme Court of Utah.
May 2, 1979.
*1304 Larry N. Long, Salt Lake City, for plaintiff and appellant.
Robert B. Hansen, Atty. Gen., Bruce M. Hale, Asst. Atty. Gen., Salt Lake City, for defendant and respondent.
MAUGHAN, Justice:
Plaintiff appeals from a trial de novo in the district court in which the court affirmed the revocation of plaintiff's driving privileges by defendant Utah State Motor Vehicle Division. Plaintiff contends before us that the revocation proceedings are quasi-criminal in nature, and that protections afforded a defendant in a criminal prosecution were lacking here. Plaintiff also asserts the implied consent statute[1] constitutes an unconstitutional denial of due process. We affirm the district court. All statutory references are to Utah Code Ann., 1953 as amended.
On September 19, 1977, Officer Bruce Walker came upon an automobile which had been driven into a borrow pit along a Salt Lake County road. After observing and questioning plaintiff and talking with several witnesses at the scene, Officer Walker determined that plaintiff had been driving the car in an intoxicated condition, and placed him under arrest. At the police station Officer Walker explained to plaintiff the implied consent law and requested plaintiff to submit to a test to determine the level of alcohol in his blood. After plaintiff refused, Officer Walker read to him the implied consent law and again asked him to submit to a test. Plaintiff again refused, and his operator's license was thereafter revoked pursuant to Sec. 41-6-44.10(b).
Plaintiff petitioned the district court for a trial de novo on the matter, and trial was held on March 7, 1978. The district court concluded that plaintiff's license had been properly revoked, and denied plaintiff's petition to change the Driver's License Division's order revoking plaintiff's license.
While we agree with plaintiff that the right to drive is a valuable right or privilege[2] and it cannot be taken away without procedural due process,[3] we do not agree that revocation proceedings are therefore necessarily criminal or quasi-criminal in nature. We also cannot agree with plaintiff's contention that the license revocation procedure as outlined in our statute was enacted to "redress a public wrong." Plaintiff has cited no case holding that a statutory revocation procedure similar to ours is criminal in nature, and indeed the case law appears unanimous in holding that such a proceeding is civil and administrative, the purpose of which is for the protection of the public.[4]
*1305 The reasoning for the conclusion reached by the courts in these cases is generally similar: the revocation proceeding is separate and distinct from a criminal action on a charge of driving under the influence, and a different burden of proof applies.[5] A person refusing a chemical test is not required to post bond for his appearance,[6] nor is he under any legal duty to appear at the administrative hearing in which the determination may be made to revoke the operator's license. He cannot be fined or imprisoned either for his refusal to submit to a test or for his failure to appear at the hearing. If he fails to appear or if the Division of Motor Vehicles determines the person was granted the right to submit to a chemical test and refused, the Division's authority is limited to revocation of the license for one year.
The purpose of this administrative procedure is not to punish the inebriated drivers; such persons are subject to separate criminal prosecution for the purpose of punishment. The administrative revocation proceedings are to protect the public, not to punish individual drivers. In Fritts v. Department of Motor Vehicles, 6 Wash. App. 233, 492 P.2d 558, 562 (1971), the Washington court stated:
The revocation of drivers' licenses for refusal to submit to the implied consent provisions of RCW 46.20.308 is a function of the Department of Motor Vehicles flowing from the police power of the state to regulate driving in the interest of the public welfare and safety. The proceeding to review that revocation is a civil and administrative proceeding, entirely separate and distinct from the criminal charge for which the driver was arrested.
We agree with the jurisdictions which have addressed this issue that the statutory proceeding for revocation of an operator's license and review of that revocation is administrative and civil in nature, and not criminal or quasi-criminal.
The proceeding not being criminal in nature, plaintiff is not entitled to the application of the rule that the corpus delicti of the crime must be established by evidence independent of the accused's confession. The cases cited by plaintiff in support of his claim that the state did not independently establish that he was driving or in actual control of the car without his admission all involve criminal actions and are not relevant. The record before us indicates Officer Walker ascertained, from admissions by plaintiff and from questioning witnesses at the scene, that plaintiff was the driver of the car, and this evidence was before the district court in the trial de novo. Substantial evidence exists to support the findings of the district court.
Finally, plaintiff contends Sec. 41-6-44.10(a) fails the requirements of due process because it provides the chemical test shall be given to a consenting person by a "... peace officer having grounds to believe such person to have been driving or in actual physical control of a motor vehicle while under the influence of alcohol ..." Plaintiff contends this language is not "susceptible of uniform enforcement and application by those charged with the responsibility of applying and enforcing it,[7] because the officer's grounds do not even have to be reasonable.
We believe the above-quoted portion of the statute necessarily implies *1306 that the officer's grounds must be reasonable. The determination by a peace officer that a person has been driving under the influence of alcohol is often the essence of evidence justifying the revocation of the person's driving privilege; the state cannot arbitrarily revoke such a valuable privilege[8] and statutory steps in revocation proceedings must therefore be tempered with the standard of reasonableness. Thus, the officer must have a reasonable basis for his belief[9] that the person requested to submit to a chemical test was driving or in actual physical control of the motor vehicle while under the influence of alcohol. "Reasonable grounds" exist where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that the situation exists.[10]
Here, the record indicates reasonable grounds justifying the officer's actions. Officer Walker testified he smelled a strong odor of an alcoholic beverage about plaintiff's person, and noticed plaintiff "weave" as he walked. Plaintiff almost fell as he got out of the automobile, and had to steady himself with his hand on the car. Sufficient evidence presents itself in the record indicating compliance by the officer with the statute as construed above.
CROCKETT, C.J., and HALL, WILKINS and STEWART, JJ., concur.
NOTES
[1] Utah Code Ann., § 41-6-44.10.
[2] Almeida v. Tucey, 372 F. Supp. 109 (D.C. Mass. 1974); Aiken v. Malloy, Vt., 315 A.2d 488 (1974).
[3] Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).
[4] Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); Mills v. Bridges, 93 Idaho 679, 471 P.2d 66 (1970); People v. Brown, Colo., 485 P.2d 500 (1971); Fritts v. Department of Motor Vehicles, 6 Wash. App. 233, 492 P.2d 558 (1971); Burbage v. Department of Motor Vehicles, Or., 450 P.2d 775 (1969); Severson v. Sueppel, 260 Iowa 1169, 152 N.W.2d 281 (1967); Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969).
[5] In fact, acquittal of the defendant under the criminal proceeding is not a bar to revocation of the operator's license. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961); Fritts v. Department of Motor Vehicles, supra note 4.
[6] The record indicates plaintiff did obtain an order granting plaintiff "bail" in the amount of $500, however, neither the state nor plaintiff mentions this curious procedure in their briefs. Our statute makes no such requirement, and we perceive no need for such.
[7] State v. Packard, 122 Utah 369, 250 P.2d 561 (1952).
[8] Bell v. Burson, supra, note 3.
[9] "Grounds" is defined as "a basis for belief or action." Webster's New Collegiate Dictionary, 507 (1976).
[10] Glass v. People, Colo., 493 P.2d 1347 (1972); Saunders v. Commissioner of Public Safety, Iowa, 226 N.W.2d 19 (1975); 36 Words and Phrases, "Reasonable Grounds." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267526/ | 999 F. Supp. 987 (1998)
Linda SPIVEY, et al., Plaintiffs,
v.
STATE OF OHIO, Defendant,
Tanya MIXON, et al., Plaintiffs,
v.
STATE OF OHIO, et al., Defendants.
Nos. 1:97CV2308, 1:97CV2309.
United States District Court, N.D. Ohio, Eastern Division.
March 6, 1998.
*988 *989 *990 Joyce Goldstein, Bryan P. O'Connor, James A. Ciocia, Cleveland, OH, for Plaintiffs in 197CV2308.
Roger F. Carroll, James G. Tassie, Christopher M. Culley, Office of the Attorney General, Columbus, OH, for Defendants in 197CV2308.
Scott H. Schooler, George L. Forges, Mark A. McClain, Cleveland, OH, for Plaintiffs in 197CV2309.
*991 Roger F. Carroll, James G. Tassie, Christopher M. Culley, Office of the Attorney General, Columbus, OH, Frederick R. Nance, Brenda M. Johnson, Stegen A. Friedman, Cleveland, OH, for Defendants in 197CV2309.
MEMORANDUM AND ORDER
WHITE, Chief Judge.
These two consolidated actions arise under the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging violations of the Fourteenth Amendment to the United States Constitution, the Voting Rights Act, 42 U.S.C. § 1971 et seq. and the Constitution of the State of Ohio. The Plaintiffs are taxpayers, registered voters who either have children attending the Cleveland Public Schools or are employed by the Cleveland School District and the National Association for the Advancement of Colored People, Cleveland Branch. They are seeking declaratory relief to prevent implementation of Substitute House Bill No. 269 (H.B.269) passed by the General Assembly of the State of Ohio for the purpose of creating the classification of "municipal school district," changing the number of members and organization of the Cleveland School District Board of Education, placing the Mayor of the City of Cleveland in charge of the Cleveland School District and eliminating all licensing, experimental and educational requirements for appointees employed in positions with responsibilities similar to those of superintendent, treasurer and business manager in all other school districts in the State of Ohio. This matter is before the Court upon cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure filed in both cases.
With regard to the standard to be applied, Rule 12(c) provides:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
In determining whether H.B. 269 violates the United States and Ohio Constitutions, the Court will have to consider whether a rational basis exists for its enactment. Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786 (1982). The Plaintiffs argue that consideration of justification for enactment of H.B. 269 involves matters outside the pleadings requiring the 12(c) motion to be treated as a motion for summary judgment.
In Morgan v. Church's Fried Chicken, 829 F.2d 10 (6th Cir.1987), the defendant filed a motion for judgment on the pleadings but requested relief pursuant to Rule 12(b)(6). The Sixth Circuit ruled that where a 12(b)(6) defense is raised in a 12(c) motion for judgment on the pleadings, the standard for deciding a 12(b)(6) motion is used. Id. at 11. A complaint may be dismissed if it is clear that no relief could be granted under any set of facts. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The facts pleaded by the plaintiff must be accepted as true and the complaint must be construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Legal conclusions or unwarranted factual inferences may not be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d at 12.
Rule 12(b) also provides that, on a motion under Rule 12(b)(6), if matters outside the pleadings are considered, the motion shall be treated as one for summary judgment. However, a court may go outside the pleadings when ruling on a motion to dismiss for failure to state a claim in determining whether a statute bears a rational relationship to a legitimate state purpose. Mahone v. Addicks Utility District of Harris County, 836 F.2d 921, 936 (5th Cir.1988). The Court in Mahone explained that going outside the complaint to hypothesize reasons for enacting a statute will not conflict with the requirement that the pleaded facts be accepted as true. Id. Truth is not the issue in such case and using discovery procedures to develop *992 facts showing the state's true reasons for its actions could be inefficient and unnecessary. Id.
The Seventh Circuit allows an equal protection action requiring a rational basis review to be dismissed pursuant to Rule 12(b)(6). In order "to survive a motion to dismiss for failure to state a claim, a plaintiff must allege facts sufficient to overcome the presumption of rationality that applies to governmental classifications." Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir.1992). A conclusory assertion that the state's enactment of the statute is without rational bases is insufficient to overcome the presumption of rationality when justification is readily apparent. Id. See, Shanks v. Forsyth County Park Authority, 869 F. Supp. 1231, 1236 (M.D.N.C.1994).
The justification for H.B. 269 is readily apparent. There is no dispute that the Cleveland City School District has been financially and operationally troubled. In 1996, the "Cleveland Summit on Education" was convened to find a solution to this problem. The Summit created the Cleveland City Schools Advisory Committee (Advisory Committee) to examine government systems for urban school districts throughout the country and to recommend a better system for the Cleveland City School District. The Advisory Committee found that elected boards of education had very high turnover ratios and often did not consist of qualified individuals. Because of success in implementing appointed boards of education in Boston, Baltimore and Chicago, the Advisory Committee recommended that the Cleveland City School District be governed by an appointed board instead of an elected board of education. The Ohio General Assembly accepted the Advisory Committee's recommendation, and on July 22, 1997, passed H.B. 269 thereby enacting Ohio Revised Code §§ 3311.71-.77, and amending O.R.C. §§ 102.02, 3313.02, 3313.04, 3313.11, 3313.70, 3315.15 and 3329.08.
H.B. 269 created a new classification of school district known as a "municipal school district." A municipal school district is defined as "a school district that is or has ever been under a federal court order requiring supervision and operational, fiscal and personnel management of the district by the state superintendent of public instruction." O.R.C. § 3311.71(A)(1).
Upon the release of a municipal school district from a federal court supervision order, the management and control of the municipal school district is immediately assumed by a new nine-member board of education whose members are appointed by the mayor of the municipal corporation having the greatest portion of territory in the municipal school district. The Cleveland City School District is composed of the Villages of Bratenahl, Linndale and Newburgh Heights, a portion of Garfield Heights and the City of Cleveland. Because the City of Cleveland has the greatest portion of territory in the Cleveland City School District, the Mayor of Cleveland would appoint the new board members if the Court finds that H.B. 269 is constitutional. The nine board members are selected from a slate of at least 18 candidates nominated by a "municipal school district nominating panel." O.R.C. § 3311.71(B)(C). The panel consists of three parents or guardians of children attending the schools in the municipal school district, appointed by the district's parent-teacher organization or similar organization selected by the state superintendent; three persons appointed by the mayor; one person appointed by the president of the legislative body of the municipal corporation containing the greatest portion of territory in the municipal school district; a school teacher, appointed by the collective bargaining representative of the school district's teachers; a school principal, selected by a vote of the school district's principals; a representative of the business community, appointed by an organized collective business entity selected by the mayor; and a president of a public or private institution of higher education located within the municipal school district, appointed by the state superintendent. O.R.C. § 3311.71(C). The nominees must reside within the municipal school district and at least one member must reside in the municipal school district but not in the municipal corporation containing the greatest portion of the district's territory. *993 O.R.C. § 3311.71(D). Four of the nine members shall have displayed, prior to appointment, significant expertise in either education, finance or business management. Id. In addition to the nine members appointed by the mayor, the president of a state university or community college located within the municipal school district shall serve as a nonvoting ex officio member. O.R.C. § 3311.71(G).
For the first thirty months after appointment of the board, the mayor also appoints the chief executive officer and fills any vacancies in that position. O.R.C. § 3311.72(B)(1). Subsequent action with respect to the chief executive officer requires the concurrence of the board. O.R.C. § 3311.72(B)(2).
The members of the board serve until a mandatory referendum is held to determine whether the mayor shall continue to appoint the members of the board. O.R.C. § 3311.73(A). The referendum must take place in the general election held in the first even-numbered year occurring at least four years after the date the new board assumes control of the municipal school district. Id. If the voters elect to continue the mayoral appointment system, the mayor must appoint a new board on the immediately following first day of July. O.R.C. § 3311.73(C). In the event that the voters disapprove of the mayoral appointment system, a new seven member board of education shall be elected at the next regular election occurring in November of an odd-numbered year. O.R.C. § 3311.73(D).
Within 60 days after the initial convening of the municipal school district nominating panel, the state superintendent must establish an oversight committee to review and evaluate the progress of the board. Thereafter, the community oversight committee, after consultation with the board, is required to submit an annual report to specific members of the General Assembly addressing the financial, operational, academic, community and other issues involving the school district as a result of the municipal school district mayoral appointment system. O.R.C. § 3311.77(A). Members of the community oversight committee are appointed by the state superintendent and must reside in and be a parent or guardian of a child attending a public school in the municipal school district. O.R.C. § 3311.73(B).
At this time, the Cleveland City School District is the only Ohio school district that qualifies as a municipal school district under O.R.C. § 3311.71(A). On March 3, 1995, in Reed v. Rhodes, Case No. 1:73CV1300, the United States District Court for the Northern District of Ohio directed the state superintendent to assume immediate supervision and operational, fiscal and personnel management of the Cleveland City School District. In its March 3 Order, the Court was concerned with the Cleveland Board of Education's ability to administer its educational agenda, the municipal school district's critical financial condition, the absence of effective fiscal and management controls that had exacerbated the district's operational shortcomings and materially eroded its efforts and its ability to fulfil its educational responsibilities. Under the terms of H.B. 269, when the federal court releases the Cleveland City School District from state supervision under the March 3, 1995 Order, the provisions of H.B. 269 will apply to the Cleveland City School District.
The Plaintiffs allege that H.B. 269 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution.[1] The Fourteenth Amendment and Article I, Section 2 of the Ohio Constitution provide that a citizen of a state is entitled to equal protection of the laws. The State of Ohio has adopted federal standards in interpreting Ohio's Equal Protection Clause. Keaton v. Ribbeck, 58 Ohio St. 2d 443, 391 N.E.2d 307, 308 (1979).
When a classification neither involves a suspect class nor a fundamental right, there is a strong presumption of validity. Plyler v. Doe, 457 U.S. at 216, 102 S. Ct. at 2394-95. In such case, state action allegedly violating the Equal Protection Clause is *994 reviewed to determine whether there is a rational basis for the inequality. Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257 (1993). Rawls v. Sundquist, 929 F. Supp. 284, 289 (M.D.Tenn. 1996), aff. 113 F.3d 1235 (6th Cir.1997). The right to vote, per se, is not a constitutionally protected right. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35, n. 78, 93 S. Ct. 1279, 1298 n. 78, 36 L. Ed. 2d 16 (1973). In Welch v. Board of Education of Baltimore County, 477 F. Supp. 959, 964 (D.Md.1979), the Court held that a Maryland statute providing for appointment of the school board in some of Maryland's counties did not authorize a suspect classification nor did it interfere with the exercise of fundamental rights. The judge in that case used the rationality test in making his decision. Since H.B. 269 does not violate a fundamental right, the court will evaluate the Plaintiffs' equal protection claims to determine whether the statute is rationally related to a legitimate state interest. Rawls v. Sundquist, 929 F.Supp. at 289-90.
The Plaintiffs allege that H.B. 269 violates the Equal Protection Clause of the Fourteenth Amendment and Article I, Section 2 of the Ohio Constitution because the Cleveland City School District residents living outside the City of Cleveland cannot vote for the mayor; the person who will control their school system.
The nine members of the board of education are selected by the mayor from a panel of eighteen nominees chosen by the municipal school district nominating panel. Of the eighteen nominees, three must reside outside the City of Cleveland. One of the three must be chosen to sit on the board. O.R.C. § 3311.71(C). This procedure deprives the mayor of complete autonomy in choosing the individual who will become a member of the board. Thus, those persons residing outside of the City of Cleveland are ensured of being represented. This was not the case when the board members were elected.
In Searcy v. Williams, 656 F.2d 1003, 1009 (5th Cir.1981), aff. 455 U.S. 984, 102 S. Ct. 1605, 71 L. Ed. 2d 844 (1982), the Court stated: "Appointed school board systems are permissible under the Constitution so long as the appointments are not made in a manner that systematically excludes an element of the population from consideration." Under H.B. 269 those residents living outside the City of Cleveland but in the municipal school district are assured of having one member on the board representing them.
Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978), is analogous. In Holt, an Alabama statute extended the City of Tuscaloosa's police sanitary regulations, its criminal jurisdiction of the city's courts and the city's power to license businesses to residents of a community located outside the city. The Court, applying a rational basis test, held that the Equal Protection Clause was not violated by the city exercising governmental powers over individuals living outside the municipal borders even though they could not participate in municipal elections. The state legislature had a legitimate interest in ensuring that residents of the areas adjoining the city be provided basic municipal services. Id. 439 U.S. at 74, 99 S. Ct. at 392.
Defendants point out that although the residents living outside of the City of Cleveland cannot vote for mayor, they can vote for their state legislators. The state legislators passed H.B. 269, not the mayor. The state legislators are responsible for H.B. 269 and are accountable to voters if they disagree with the Act. Also, H.B. 269 was signed into law by the Governor of Ohio who is elected by the citizens of this state and accountable to them.
The governance structure implemented by the General Assembly by H.B. 269 wherein board members are nominated by members of the municipal school district to serve free from the political constraints inherent in an elected position and apparent in the Cleveland City School District, is rationally related to the purpose of supervising the municipal school district. H.B. 269 is not unconstitutional although residents of the municipal school district living outside the City of *995 Cleveland cannot vote for the mayor who ultimately chooses the members of the board.
The Plaintiffs allege H.B. 269 deprives them of the right to vote on the governance structure of the school system for a minimum of five years and for members of the school board for a minimum of six years, while voters in other school districts within the State of Ohio retain the right to vote on those issues.
In Sailors v. Board of Education of the County of Kent, 387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967), a Michigan statute provided for the appointment of a county board of education by delegates from the elected local boards. The Court held that no election was required for members of a board of education which performed essentially administrative functions and such procedure did not violate the Equal Protection Clause of the Fourteenth Amendment. The Court stated:
We find no constitutional reason why state or local officers of the non-legislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman (Gray v. Sanders [372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821], supra; Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481) or for state officers (Gray v. Sanders, supra) or for state legislators. Reynolds v. Sims [377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506], supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2d 568; Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609; Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2d 620; Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632; Marshall v. Hare, 378 U.S. 561, 84 S. Ct. 1912, 12 L. Ed. 2d 1036.
387 U.S. at 108, 87 S. Ct. at 1552. A state legislature has constitutional authority to experiment. Id. 387 U.S. at 109, 87 S. Ct. at 1552. The Court realized that local governments need many innovations and great flexibility in municipal arrangements to meet changing conditions. A state can appoint local officials, elect them or combine elective and appointive systems. Id. 387 U.S. at 110, 87 S. Ct. at 1553. See Welch v. Board of Education of Baltimore County, 477 F.Supp. at 965.
The school board's functions are essentially administrative. Appointed school boards are beneficial in that they facilitate the operation of the municipal school district. Appointed school boards have provided an advantage over elected school boards by:
(1) insulating school governance matters from direct political pressures;
(2) promoting stable school board membership;
(3) encouraging the service of individuals who would not seek elective office;
(4) promoting diversity in viewpoints which otherwise may not achieve representation on an elected school board;
(5) avoiding the division of fiscal authority among multiple elected bodies;
(6) avoiding the fragmentation of local political authority; and
(7) avoiding the problem of single issue campaigns which frequently occur with elected school boards.
Irby v. Virginia State Board of Elections, 889 F.2d 1352, 1355 (4th cir.1989), cert. denied, 496 U.S. 906, 110 S. Ct. 2589, 110 L. Ed. 2d 270 (1990). H.B. 269 does not violate the Equal Protection Clause in allowing appointment of local school board members in some areas while school board members are elected elsewhere in the State of Ohio.
The Plaintiffs allege in their third cause of action that H.B. 269 violates the Equal Protection Clause of the Fourteenth Amendment and Article I, Section 2 of the Ohio Constitution by eliminating all licensing, educational and experiential requirements for appointees with responsibilities of superintendent, treasurer and business manager in a municipal school district while these requirements are retained in all other school districts in the state. There is no rational basis for elimination of these requirements for superintendent, *996 treasurer and business manager.
Ohio Revised Code Section 3311.72(F) provides:
Notwithstanding section 3301.074 and Chapter 3319. of the Revised Code, no person appointed under this section shall be required to hold any license, certificate, or permit.
A statutory classification will be upheld as long as it bears some fair relationship to a legitimate public purpose. Plyler v. Doe, 457 U.S. at 216, 102 S. Ct. at 2394. The General Assembly has determined that a school district experiencing operational and financial difficulties may benefit from a more flexible hiring plan. For example, an individual experienced in business may be beneficial to a school district with financial problems. The less restrictive hiring criteria may result in the hiring of individuals with diverse backgrounds and experience who may have the ability to better handle the difficult problems arising in a municipal school district to which H.B. 269 applies. Ohio Revised Code Section 3311.72(F) bears a rational relationship to the state's interest in regenerating a municipal school district and ultimately benefitting the children attending the schools in the district.
Furthermore, the licensing requirement for superintendent of a school district in the State of Ohio has been relaxed. Ohio Revised Code Section 3319.225 authorizes the State Board of Education to issue a temporary educator license to any person a local school district desires to employ as a superintendent or administrator as long as the individual is of good moral character and has a degree from an accredited institution of higher education in a field related to finance or administration or has five years of recent work experience in education, management or administration. The temporary license may be renewed annually upon the request of the employing district. Therefore, the Court finds that elimination of certain licensing requirements in a municipal school district does not violate the Equal Protection Clause of the Fourteenth Amendment or Article I, Section 2 of the Ohio Constitution.
The Plaintiffs asserted in their complaint that H.B. 269 violates the Voting Rights Act, 42 U.S.C. § 1971, because it has a discriminatory impact on African-Americans. 42 U.S.C. § 1971(a)(1) provides in pertinent part:
All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.
42 U.S.C. § 1971(c) provides in pertinent part:
Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order.
The terms of § 1971(c) specifically state that the Attorney General may institute a civil action to remedy a violation of the Voting Rights Act. An individual does not have a private right of action under § 1971. Willing v. Lake Orion Community Schools Board of Trustees, 924 F. Supp. 815, 820 (E.D.Mich.1996).
A private cause of action may be available under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. In African-American Citizens for Change v. St. Louis Board of Police Commissioners, 24 F.3d 1052 (8th Cir.1994), a citizens action group challenged Missouri's method of appointing members to the city board of police commissioners. The Court quoted Chisom v. Roemer, 501 U.S. 380, 397, 111 S. Ct. 2354, 2365, 115 L. Ed. 2d 348 (1991): "Section 2(a) of the *997 Voting Rights Act `covers every application of a qualification standard, practice or procedure that results in a denial or abridgment of the right to vote.'" 24 F.3d at 1053. Chisom held that § 2 applied to judicial elections and that the State of Louisiana could exclude its judiciary from the Voting Rights Act by changing to an appointed system. 501 U.S. at 401, 111 S.Ct. at 2367, African-American Citizens for Change, 24 F.3d at 1053. Section 2 does not apply to appointive offices. Irby v. Virginia State Board of Elections, 889 F.2d 1352, 1357 (4th Cir. 1989); Searcy v. Williams, 656 F.2d at 1010. Chisom allows Ohio to have municipal school district boards appointed or to change from an elected to an appointed system without violating the Voting Rights Act.
In African-American Citizens for Change, four out five city police board members were chosen by the governor. Plaintiffs alleged that this procedure unlawfully diluted African-American voting power as African-Americans were a much higher proportion of the city electorate than the statewide electorate. By granting controlling power to officials elected statewide, the power of African-Americans to influence and control the local police department would be diluted. All St. Louis voters, including African-Americans, would have less influence over local police affairs, but Section 2 of the Voting Rights Act is expressly limited to the political processes leading to nomination or election of state and local officials. Extending Section 2 to cover appointed state and local officials would "work an unconstrained expansion" of that statute that could only be authorized by Congress. Id. 24 F.3d at 1054.
Plaintiffs allegations under this cause of action are somewhat analogous to the facts in African-Americans for Change, i.e., the appointive system has a discriminatory impact on African-Americans. The Court finds that the Plaintiffs do not have a private cause of action under 42 U.S.C. § 1971 and that the Voting Rights Act does not apply to appointed officials.
Article VI, Section 3 of the Ohio Constitution provides that "each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education ..." The Plaintiffs claim that H.B. 269 deprives them of their right to determine by referendum vote the number of members and the organization of the Cleveland School District Board of Education for a minimum of five years. Thus, H.B. 269 violates Article VI, Section 3 of the Ohio Constitution.[2]
Article VI, Sections 1, 2 and 3 of the Ohio Constitution grants the General Assembly the powers to provide for an efficient system of schools by taxation and for their organization, administration and control. State ex rel. Core v. Green, 160 Ohio St. 175, 180, 115 N.E.2d 157 (1953). The General Assembly has the authority to provide for the creation of school districts, for changes and modifications thereto and for the methods by which changes and modifications may be made. Id. Under Article VI, Section 3, provision is to be made by law for the organization, administration and control of the public school system and each school district must have the power by referendum vote to determine for itself the number of members and the organization of the district board of education. No language in Article VI, Section 3 requires that the voters pre-approve of any changes in the school board. The Ohio Supreme Court stated in State ex rel. Ach v. Evans, 90 Ohio St. 243, 249, 107 N.E. 537 (1914):
It is obvious that this provision of the constitution does not require that, before any change shall be made in the old board, a referendum shall be provided determining what change shall be made. The change in membership is provided under the general exercise of legislative power, while the referendum is provided for under the new constitutional amendment and the new Jung school-board act passed pursuant to such new constitutional provision.
The Plaintiffs agree that the Evans case is the only relevant Ohio Supreme Court case interpreting the referendum provision of Article *998 VI, Section 3 and they argue that it establishes a two year delay as the outside time limit for holding the referendum.
The Evans case involved the question of whether the Jung Act conflicted with Article VI, Section 3 because it could delay the vote until two years after the organizational changes occurred. Section 4705 of the bill in question provided that plans had to be submitted to the voters at the next general school election, if one occurred not less than 120 days after the passage of this resolution, otherwise at the second general school election. Because of the enactment date of the Bill, together with the 120 day limitation, the referendum could not occur until more than two years after the implementation of the new classification and the Plaintiffs contended that the 120 day limitation within which a referendum could not be held rendered the Bill unconstitutional. The Court recognized that the legislature has the power to determine when the act or part of it shall go into effect. The legislature is presumed to act in good faith. The fact that somebody disagrees with the legislature as to the time at which an act should take effect cannot cause it to be unconstitutional. Id. 90 Ohio St. at 247, 248, 107 N.E. 537. Article VI, Section 3 "granted the legislature the power to provide by law for the exercise of the referendum power." Id. at 249, 107 N.E. 537. The lengthy period was held to be constitutional.
Article XVIII, Section 5 of the Ohio Constitution was adopted on the same day as Article VI, Section 3. It provides:
Any municipality proceeding to acquire, construct, own, lease or operate a public utility, or to contract with any person or company therefor, shall act by ordinance and no such ordinance shall take effect until after thirty days from its passage. If within said thirty days a petition signed by ten per centum of the electors of the municipality shall be filed with the executive authority thereof demanding a referendum on such ordinance it shall not take effect until submitted to the electors and approved by a majority of those voting thereon.
In Article XVIII, Section 5, the legislature placed a limit on the municipality's authority to regulate the referendum. The General Assembly has the power to delay or modify the procedure for the referendum vote. Article VI, Section 3 could have been limited in the same way but the legislature chose not to do so. The conclusion is that the legislature can regulate the referendum vote in an appropriate manner.
The seventh cause of action is related to the claim involving Article VI, Section 3 previously discussed. Article I, Section 20 of the Ohio Constitution states in part that "all powers not herein delegated, remain with the people." Article VI, Section 3 reserve to voters in a school district, the right to determine by referendum vote the number and organization of their board of education. The Plaintiffs assert that H.B. 269 deprives them of the powers reserved to them by Article VI, Section 3 and therefore, violates Article I, Section 20. In view of the Court's determination that H.B. 260 does not violate Article VI, Section 3, it follows that Article, I, Section 20 is not violated.
Article II, Section 26 of the Ohio Constitution requires that all laws of a general nature have a uniform operation throughout the state. Plaintiffs allege that H.B. 269 does not operate uniformly throughout the state because the definition of "municipal school district" is so restrictive as to apply solely and exclusively to the Cleveland City School District.
The Ohio Supreme Court explained the definition of general nature and uniformity in State ex rel. Zupancic v. Limbach, 58 Ohio St. 3d 130, 568 N.E.2d 1206 (1991). A statute is of a general nature if it affects the people of every county in the state. Id. 58 Ohio St.3d at 137, 138, 568 N.E.2d at 1212. If the subject matter of a statute is of a general nature it can be regulated by general laws having a uniform operation throughout the state. Id. 58 Ohio St.3d at 138, 568 N.E.2d at 1212, 1213. A statute not of a general nature cannot be regulated by general law because the law cannot operate where there is no subject matter on which to operate. Id. 58 Ohio St.3d at 138, 568 N.E.2d at 1213.
*999 A law may not be rendered invalid by Article II, Section 26 even though it does not operate upon all persons, property or political subdivisions within the state. Id. However, the law must operate upon every person included within its operative provisions as long as its operative provisions are not arbitrarily and unnecessarily restrictive. Id. And a law will be valid if its provisions allow it to operate upon every locality where its specified conditions occur. Id. The court in Limbach stated: "[A] statute is deemed to be uniform despite applying to only one case so long as it may apply to cases similarly situated in the future." Id. Citing Core, State ex rel., v. Green, 160 Ohio St. at 183, 115 N.E.2d at 161-162.
H.B. 269's operative provisions apply to a "school district that is or has ever been under a federal court order requiring supervision and operational, fiscal, and personnel management of the district by the state superintendent of public instruction." O.R.C. 3311.71(A)(1). At the present time, the Cleveland City School District is the only school district to which H.B. 269 applies. However, nothing in H.B. 269 restricts it to the Cleveland City School District nor does any provision preclude other school districts from meeting the criteria of H.B. 269 in the future. H.B. 269 satisfies Ohio's requirement that all laws of a general nature operate uniformly throughout the state.
In their final cause of action, the Plaintiffs allege that allowing the same individual to act as the Mayor of Cleveland and to have control over the Cleveland City School District pursuant to H.B. 269 creates an inherent conflict of interest.
H.B 269 does not vest a mayor with actual control over the municipal school district. Pursuant to H.B. 269, a mayor appoints a chief executive officer as previously discussed in this opinion and nine members to serve on the board of education from a list of eighteen candidates nominated by a municipal school district nominating committee. Thereafter, the board and the chief executive officer assume control over the management and administration of the district. There is no conflict between a mayor's fiduciary duty to the city and his appointment authority under H.B. 269.
This cause of action is not premised on violation of the either the U.S. Constitution or the Ohio Constitution. A statute must be enforced unless it is in clear and irreconcilable conflict with some express provision of the constitution. State ex rel. Price v. Huwe, 105 Ohio St. 304, 306, 137 N.E. 167 (1922). No express provision in either of the constitutions conflicts with the mayor's responsibility under H.B. 269 to appoint board members.
The General Assembly has enacted a statute whereby the mayor, in certain circumstances, appoints school board members. If some conflict did exist under previous laws, the General Assembly's more recent, more specific statute takes precedence over earlier general legislation. O.R.C. § 1.52. State ex rel. Brown v. Rockside Reclamation, Inc., 47 Ohio St. 2d 76, 351 N.E.2d 448, 453 (1976). The Plaintiffs have not shown any incompatibility or conflict with any other law of Ohio.
Accordingly, for the reasons discussed above, the Court finds that the Plaintiffs have not stated a claim upon which relief can be granted. The Plaintiffs' motion for judgment on the pleadings is denied. The Defendants' motion for judgment on the pleadings is granted. The Court further finds that H.B. 269 is constitutional and will take effect when this Court releases the Cleveland City School District from state supervision under its Order of March 3, 1995 in Reed v. Rhodes, Case No. 1:73CV1300.
IT IS SO ORDERED.
NOTES
[1] The Spivey complaint contains seven causes of action while the Mixon complaint has included eight claims. The complaints are similar. References will be to the Mixon complaint but the following discussion applies to both.
[2] Plaintiffs' motion for judgment on the pleadings concerns this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1072364/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 27, 2001 Session
DEBORAH STINNETT DAVIS v. JERRY CLINT DAVIS
Appeal from the Circuit Court for Hamilton County
No. 91-DR-1047, Samuel H. Payne, Judge
FILED SEPTEMBER 25, 2001
No. E1999-02737-COA-R3-CV
This appeal from the Hamilton County Circuit Court questions whether the Trial Court erred in
failing to approve Ms. Davis’s Statement of the Evidence, in retroactively modifying child support,
in determining the amount of Mr. Davis’s mortgage obligation to Ms. Davis, and in determining the
amount of attorney’s fees Mr. Davis was ordered to pay Ms. Davis. We affirm the judgment of the
Trial Court as modified and remand with directions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
Modified; Cause Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
and D. MICHAEL SWINEY, JJ., joined.
Leslie D. McWilliams, Chattanooga, Tennessee, for the Appellant, Deborah Stinnett Davis.
Sherry B. Paty, Chattanooga, Tennessee, for the Appellee, Jerry Clint Davis.
OPINION
This appeal arises from a Petition for Contempt and Modification filed by Deborah Stinnett
Davis, the Appellant, on December 16, 1998. Ms. Davis appeals the decision of the Hamilton
County Circuit Court and presents for our review four issues which we restate:
I. Whether the Trial Court erred in failing to approve Ms. Davis’s Statement of the
Evidence.
II. Whether the Trial Court erred in retroactively modifying Mr. Davis’s child
support obligation thereby denying Ms. Davis’s request for a judgment of child
support arrearage.
III. Whether the Trial Court erred in determining the amount of Mr. Davis’s unpaid
balance on his mortgage obligation to Ms. Davis.
IV. Whether the Trial Court erred in determining the amount of attorney’s fees Mr.
Davis was ordered to pay Ms. Davis.
We affirm the judgment of the Trial Court as modified and remand for further proceedings,
consistent with this opinion.
Mr. and Ms. Davis were married July 12, 1975. There were two children born of that
marriage, Whitney L. Davis and Jennifer R. Davis. Both children were minors at the time the
divorce complaint was filed but have since reached eighteen years of age. Ms. Davis filed for
divorce on April 15, 1991. A final decree was entered on August 26, 1991. The Trial Court ordered
Mr. Davis to pay one half of the mortgage payment “until such time as the residence is sold.”
Additionally, Ms. Davis was awarded custody of the minor children and Mr. Davis was ordered to
pay child support in the amount of $200 per week.
On May 27, 1992, Mr. Davis filed a Complaint for Modification attempting to reduce his
child support obligation. According to the record, an answer and counter complaint were filed on
July 27, 1992, by Ms. Davis. An order dismissing the action was entered on May 21, 1993.
On December 16, 1998, a Petition for Contempt and Modification was filed by Ms. Davis.
At the hearing on this matter on May 3, 1999, the Trial Court determined the following:
1. The child support shall continue at the rate of $130.00 per week
until May 31, 1999 at which time said child support obligation shall
end.
2. Plaintiff is awarded a judgment against the defendant in the
amount $2,800.00 as reimbursement for the mortgage payments made
by her. Said judgment shall be paid at the rate of $50.00 per week
directly to the plaintiff beginning June, 1999 and continuing each
week thereafter until paid in full.
3. There is no child support arrearage in this matter and the
defendant’s petition for contempt is dismissed.
4. Plaintiff’s attorney may submit an itemized time statement for the
Court to consider an award of attorney fees.
5. The court cost of this cause is adjudged against the defendant,
Jerry Clint Davis, for which execution shall issue if necessary. Atty
fees of 500.00 to Deborah Davis.
-2-
Mr. Davis, through his attorney, hired a court reporter for the hearing. Apparently, Mr. Davis chose
not to make the transcript available to Ms. Davis or to this Court.
We review the Trial Court’s findings of fact de novo upon the record of the proceedings
below, with a presumption of correctness “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). There is no
presumption of correctness with regard to the trial court’s conclusion of law, and those conclusions
are reviewed de novo. Jahn v. Jahn, 932 S.W.2d 939 (Tenn. Ct. App. 1996).
I.
Ms. Davis’s first issue on appeal questions whether the Trial Court erred in approving Mr.
Davis’s Statement of the Evidence. Ms. Davis argues that because the Trial Court failed to approve
a statement of evidence within 30 days after the expiration of the 15 day period to file objections,
the appellate rules require that the Appellant’s Statement of the Evidence and exhibits1 from the trial
be approved and considered by this Court.
Mr. Davis argues that counsel for Ms. Davis did not participate in the hearing below on this
matter and therefore cannot accurately represent the evidence of the hearing to this Court.2
Additionally, Mr. Davis refutes Ms. Davis’s argument that there was a problem with the time period
in which the Trial Court approved a Statement of the Evidence.
We disagree with Ms. Davis and believe she is misinterpreting the order of events regarding
this matter. The record reflects that the Notice of Appeal was filed by Ms. Davis on December 13,
1999. Ms. Davis filed her Statement of the Evidence on May 9, 2000. Ms. Davis argues that Mr.
Davis did not submit his objections in a timely manner, however, the record reflects that Mr. Davis
filed his objections to Ms. Davis’s Statement of the Evidence on May 22, 2000, which is within the
15 day period set forth in the Tennessee Rules of Appellate Procedure. On June 23, 2000, Ms. Davis
filed a second Statement of the Evidence and on July 11, 2000, Mr. Davis filed a Statement of the
Evidence. The Trial Court approved the Statement of the Evidence submitted by Mr. Davis on
1
The record indicates that exhibits were admitted at trial regarding the payments of child support by M r. Davis,
and mortgage payments by Mr. Davis. However, those exhibits were not included in the technical record, or otherwise
properly made a part of the record on appeal. Instead, it appears that the original exhibits from the trial were attached
to a Statement of the Evidence prepared by Ms. Davis, which was not adopted by the Trial Court, and therefore not a
part of the record on appeal. The documents attached to Ms. Davis’s Statement of the Evidence have exhibit stickers
placed on them in a manner consistent with that which a court reporter normally does to exhibits before they are entered
into evidence a t trial. Neither pa rty specifically argu es the fact that these exhibits should have been included in the record
on appeal. Furthermore, the appropriate time to have raised such an issue was before oral argument on this case. The
Tennessee Rules of Ap pellate Procedure provide for the method by which one would have trial exhibits included in the
record when they have been inadvertently omitted. Attaching them to a Statement of the Evidenc e is not one of those
methods. There fore, this Court is not able to consider those exhibits.
2
While the attorney of record for Ms. Davis did not perso nally appear at the hearing below on this matter, Ms.
Davis was r epresented by an attorne y from the law firm of her attorne y of record .
-3-
January 23, 2001. Rule 24(c) of the Tennessee Rules of Appellate Procedure provides in pertinent
part:
If no stenographic report, substantially verbatim recital or transcript
of the evidence or proceedings is available, the appellant shall prepare
a statement of the evidence or proceedings from the best available
means, including the appellant’s recollection. The statement should
convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal. The statement,
certified by the appellant or the appellant’s counsel as an accurate
account of the proceedings, shall be filed with the clerk of the trial
court within 90 days after filing the notice of appeal. . . . If the
appellee has objections to the statement as filed, the appellee shall file
objections thereto with the clerk of the trial court within fifteen days
after service of the declaration and notice of the filing of the
statement. Any differences regarding the statement shall be settled as
set forth in subdivision (e) of this rule.
Rule 24(e) of the Tennessee Rules of Appellate Procedure states in pertinent part:
If any matter properly includable is omitted from the record, is
improperly included, or is misstated therein, the record may be
corrected or modified to conform to the truth. Any differences
regarding whether the record accurately discloses what occurred in
the trial court shall be submitted to and settled by the trial court
regardless of whether the record has been transmitted to the appellate
court. Absent extraordinary circumstances, the determination of the
trial court is conclusive. If necessary, the appellate or trial court may
direct that a supplemental record be certified and transmitted.
According to Tenn. R. App. P. 24(c), “any differences regarding the statement shall be settled as set
forth in subdivision (e) of this rule.” Further, subdivision (e) states, “the determination of the trial
court is conclusive.” Mr. Davis filed his objections in a timely manner. While the Trial Court may
not have complied with the time limitations set forth in Tenn. R. App. P. 24(f), it did approve the
Statement of the Evidence submitted by Mr. Davis. Tenn. R. App. P. 24(f) states:
The trial judge shall approve the transcript or statement of the
evidence and shall authenticate the exhibits as soon as practicable
after the filing thereof or after the expiration of the 15-day period for
objections by appellee, as the case may be, but in all events within 30
days after the expiration of said period for filing objections.
Otherwise the transcript or statement of the evidence and the exhibits
shall be deemed to have been approved and shall be so considered by
-4-
the appellate court, except in cases where such approval did not occur
by reason of the death or inability to act of the trial judge. In the
event of such death or inability to act, a successor or replacement
judge of the court in which the case was tried shall perform the duties
of the trial judge, including approval of the record or the granting of
any other appropriate relief, or the ordering of a new trial.
Authentication of a deposition authenticates all exhibits to the
deposition. The trial court clerk shall send the trial judge transcripts
of evidence and statements of evidence.
The purpose of the record on appeal is “to convey a fair, accurate and complete account of
what transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(a).
The Rules provide a procedural process by which either party may rectify an inadequacy. Tenn. R.
App. P. 24(a). Additionally, Rule 1 provides that the purpose of the Tennessee Rules of Appellate
Procedure is “to secure the just, speedy, and inexpensive determination of every proceeding on its
merits.” Tenn. R. App. P. 1. In order to achieve the aforementioned, the rules expressly provide that
an appellate court, in its discretion, may suspend the requirements or provisions of any of the rules,
except those governing the time for taking an appeal as of right, applying for permission to appeal
from an intermediate appellate court to the Supreme Court, and for petitioning for review in cases
in which the Court of Appeals directly review orders of an administrative agency. Tenn. R. App. P.
2.
Because the Trial Judge did approve one of the statements submitted, and because the Trial
Judge is in the best position to determine which Statement of the Evidence most accurately reflects
what transpired at the Trial Court level, we suspend the time limit placed on the Trial Court as
required by Rule 24(f) resulting in the determination of the trial court becoming conclusive regarding
which Statement of the Evidence it deems most accurate.
II.
Ms. Davis’s second issue on appeal questions whether the Trial Court erred in retroactively
modifying Mr. Davis’s child support obligation thereby denying her request for a judgment of child
support arrearage. Ms. Davis argues that Mr. Davis unilaterally reduced his child support obligation
from $200.00 per week to $130.00 per week in November 1992, and that he has an arrearage of
$23,633.99 plus interest.
Mr. Davis contends that he did not unilaterally reduce his child support. He argues that he
filed a complaint for the modification of his child support on May 27, 1992, and that Ms. Davis filed
an answer and counter-complaint. He further argues that Ms. Davis agreed to a reduction in child
support at that time. Additionally, Mr. Davis argues that he paid $130.00 per week in child support
consistently from November, 1992, through May, 1999, when his youngest daughter reached the age
of majority and that for a period of approximately two years he continued to pay child support at
-5-
$130.00 per week even though his oldest daughter had reached the age of majority. Therefore, he
argues he has actually paid more child support than what was owed.
According to the record before this Court, Mr. Davis filed a Complaint for Modification on
May 27, 1992, seeking a reduction in child support. Ms. Davis filed an Answer and Counter
Complaint on July 27, 1992. On May 21, 1993, an Order Dismissing Complaint for Modification
was filed which states the following:
The foregoing case came on to be heard before the Court on
December 7, 1992 on a Complaint for Modification, when the
attorneys announced to the Court that an agreed order would be
submitted, but never submitted an order, and taking into consideration
these facts, it is, therefore ORDERED by the Court that said
Complaint for Modification is hereby dismissed, without prejudice,
with costs taxed against the petitioner for which execution may issue.
It appears from this Order that an agreement was reached by the parties on the day of the hearing and
that the agreement was to be reduced to writing and submitted to the Court in the form of an agreed
order. Unfortunately for Mr. Davis, that never occurred, and he is therefore left without a court order
modifying child support. It also appears from the record that Mr. Davis paid child support to Ms.
Davis from December 1992 until the youngest child turned 18 years old in the amount of $130 per
week, and that Ms. Davis accepted that payment until December 16, 1998, when Ms. Davis filed a
Petition for Contempt and Modification.
According to the Statement of the Evidence submitted to this Court, Ms. Davis testified at
the hearing on this matter on July 11, 2000, that in November, 1992, Mr. and Ms. Davis had a
conversation in which both parties agreed to reduce Mr. Davis’s child support obligation from $200
per week to $130 per week as Mr. Davis was unemployed at that time. Ms. Davis also testified that
Mr. Davis sought the reduction in child support through the judicial process, but that she asked him
not to pursue his Complaint for Modification as she could not afford an attorney, and that she would
agree that his child support obligation would be reduced to $130 per week. Mr. Davis testified to
the same set of facts regarding the agreed reduction in his child support obligation, according to the
Statement of the Evidence.
It is obvious to this Court that both parties believed an agreement was reached as to a
reduction in child support. However, because neither party submitted the agreed order to the Trial
Court that agreement is ineffective. Parties cannot alter or amend a child support order by private
agreement once it has been entered. State of Tennessee v. Goode, 968 S.W.2d 834 (Tenn. Ct. App.
1998), Rasnic v. Wynn, 625 S.W.2d 278 (Tenn. Ct. App. 1981). Mr. Davis did much more than
simply obtain a private agreement from Ms. Davis. Unfortunately, the fact that the agreement was
never reduced to an order from the Trial Court renders it ineffective pursuant to T.C.A. 36-5-
101(a)(5), which states in pertinent part:
-6-
Any order for child support shall be a judgment entitled to be
enforced as any other judgment of a court of this state and shall be
entitled to full faith and credit in this state and in any other state. Such
judgment shall not be subject to modification as to any time period or
any amounts due prior to the date that an action for modification is
filed and notice of the action has been mailed to the last known
address of the opposing parties.
Additionally, there are no equitable defenses available to Mr. Davis. Rutledge v. Barrett, 802
S.W.2d 604, (Tenn. 1991). While denying Mr. Davis the opportunity to raise equitable defenses in
this situation does seem harsh, it was the intent of the General Assembly and the Tennessee Supreme
Court to require all obligor parents to comply fully with lawful child support orders, which
outweighs the seemingly unfair results in cases such as the one before us. State of Tennessee v.
Goode, 968 S.W.2d 834 (Tenn Ct. App. 1998).
Therefore, we find that the Trial Court was in error in determining that no child support
arrearage was owed by Mr. Davis. We remand to the Trial Court for the taking of testimony by both
parties on the issue of child support paid by Mr. Davis and a determination of the arrearage owed
and method of payment. The record before this Court is incomplete with respect to evidence of
payments of child support.3
III.
The third issue on appeal questions whether the Trial Court erred in determining the amount
of Mr. Davis’s unpaid balance on his mortgage obligation to Ms. Davis. Ms. Davis argues that Mr.
Davis was required to pay one half of the mortgage payment until the marital residence sold. Ms.
Davis further argues that Mr. Davis did not comply fully with the court-ordered obligation and
therefore owes her $4,333.99 instead of the amount of $2,800.00 which the Trial Court ordered him
to pay. Ms. Davis bases her argument on documentation presented at trial which this Court does not
have before it for review.
Mr. Davis argues that Ms. Davis’s claim as to any money owed for the mortgage is barred
by the statute of limitations for contract actions. The Statement of the Evidence submitted to this
Court does not reflect that Mr. Davis raised the issue of statute of limitations at trial. Furthermore,
Mr. Davis retained the court reporter for the Trial and has access to the trial transcript, but refused
to have it submitted for this appeal. Without an indication that Mr. Davis argued that recovery by
Ms. Davis as to any mortgage payments owed to her was barred by the statute of limitations at trial,
we cannot address that issue here. An issue not raised at trial cannot be raised for the first time on
appeal. Mitts v. Mitts, 39 S.W.3d 142 (Tenn. Ct. App. 2001); Sparks v. Metropolitan Gov’t of
Nashville and Davidson County, 771 S.W.2d 430 (Tenn. Ct. App. 1989).
3
As previously mentioned, it appears from the record that exhibits were introduced at trial but are not part of
the record before this co urt.
-7-
As for Ms. Davis’s argument, the Statement of the Evidence states that Ms. Davis testified
she did not receive any payments on the mortgage from Mr. Davis after January, 1992. Additionally,
it reflects that Ms. Davis testified that the residence was sold in November, 1992, and that she
introduced a payment history of mortgage payments Mr. Davis had made to her regarding this
matter4. Finally, the Statement of the Evidence states that Ms. Davis testified that Mr. Davis owes
her $4,381.00.5
With respect to Mr. Davis, the Statement of the Evidence only states that he acknowledged
making payments on his portion of the mortgage to Ms. Davis and that he does not believe there is
any arrearage owed.
The Trial Court ordered the following:
Plaintiff is awarded a judgment against the defendant in the amount
$2,800.00 as reimbursement for the mortgage payments made by her.
Said judgment shall be paid at the rate of $50.00 per week directly to
the plaintiff beginning June, 1999 and continuing each week
thereafter until paid in full.
Based on the information available to this Court, we cannot find that the evidence
preponderate against the finding of the Trial Court in determining that Mr. Davis owed Ms. Davis
an amount of $2,800.00. Therefore, we affirm the decision of the Trial Court.
IV.
The fourth issue on appeal questions whether the Trial Court erred in determining the amount
of attorney’s fees Mr. Davis was ordered to pay Ms. Davis. Ms. Davis argues that pursuant to T.C.A.
36-5-103(c) she is entitled to attorney’s fees incurred at trial and that Mr. Davis should pay the
attorney’s fees incurred on appeal.
Mr. Davis argues that the Trial Court erred in awarding Ms. Davis $500.00 in attorney’s fees
and that he is entitled to recover his costs in attorney’s fees for this appeal from Ms. Davis.
At the hearing on this matter on May 3, 1999, the Trial Court ordered that “Plaintiff’s
attorney may submit an itemized time statement for the Court to consider an award of attorney fees.”
The order then set forth an amount of $500.00 awarded to Ms. Davis in attorney’s fees. Ms. Davis
is not satisfied with the amount awarded to her at trial. The issue of attorney’s fees is addressed at
T.C.A. 36-5-103(c), which states:
4
As previously stated, the exhibits introduced at trial were not made a part of the record on a ppeal. As a
consequence, this Co urt cannot consider those ex hibits.
5
Ms. Davis argues that Mr. Davis owes her $4,333.99 at some places in her brief and $4,381.00 at other places
in her brief.
-8-
The plaintiff spouse may recover from the defendant spouse, and the
spouse or other person to whom the custody of the child, or children,
is awarded may recover from the other spouse reasonable attorney
fees incurred in enforcing any decree for alimony and/or child
support, or in regard to any suit or action concerning the adjudication
of the custody or the change of custody of any child, or children, of
the parties, both upon the original divorce hearing and at any
subsequent hearing, which fees may be fixed and allowed by the
court, before whom such action or proceeding is pending, in the
discretion of such court.
The award of attorney's fees is a matter of wide discretion for the trial court and absent an
abuse of discretion we will not overturn that decision. Marmino v. Marmino, 238 S.W.2d 105 (Tenn.
Ct. App. 1950) We conclude the Trial Court acted within its discretion in awarding Ms. Davis
$500.00 in attorney’s fees.
The award of attorney’s fees on appeal is discretionary. T.C.A. 36-5-103(c). In child support
cases where one parent must litigate or appeal a case on behalf of the minor children in order to
secure their financial well being it is appropriate. Graham v. Graham, 204 S.W. 987 (Tenn. 1918);
Deas v. Deas, 774 S.W.2d 167 (Tenn. 1989); Ragan v. Ragan, 858 S.W.2d 332 (Tenn. Ct. App.
1993). Based on the facts presented to the Court in this matter, we conclude that the parties should
pay their own attorneys’ fees on appeal.
For the foregoing reasons the judgment of the Trial Court is affirmed as modified and the
case remanded for proceedings not inconsistent with this opinion. Costs of appeal are adjudged
equally against the Appellant, Deborah Stinnett Davis and her surety and Appellee, Jerry Clint Davis.
__________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
-9- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1072369/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 16, 2003
VERNON ELKINS, JR. v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Cannon County
No. F01-44 James K. Clayton, Jr., Judge
No. M2002-00117-CCA-R3-PC - Filed August 15, 2003
The petitioner appeals the denial of post-conviction relief after his second degree murder conviction
and argues his trial counsel (1) deprived him of his right to testify, and (2) failed to effectively
represent him at trial. We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.
Dale W. Peterson, Woodbury, Tennessee, for the appellant, Vernon Elkins, Jr.
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.
OPINION
The facts presented at the petitioner’s trial for first degree murder were as follows:
Prior to June 26, 1996, [the petitioner], his mother, grandmother, and aunt (the
victim) peacefully shared a home in Cannon County. On that date, nothing unusual
had occurred between [the petitioner] and the victim. They neither fought nor argued.
However, [the petitioner] entered the house, passed by his mother,
grandmother, and aunt in the living room, and went to a nearby hall closet. In the
closet, he retrieved his 30-30 lever-action deer rifle. From the hallway, [the
petitioner] fired the rifle at least three times. One of the shots hit and killed his aunt.
[The petitioner’s] mother ran away from the house as soon as she heard
gunshots. His grandmother, splattered with the victim’s blood, went to a neighbor’s
house to get help. Law enforcement arrived shortly thereafter and found [the petitioner]
standing in the front yard. Without any prompting, [the petitioner] stated, “I did it”
and “I shot her.” Officers immediately took [the petitioner] into custody without
further incident.
The [petitioner] did not testify at trial and no defense proof was offered.
State v. Vernon Elkins, Jr., No. M1999-00107-CCA-R3-CD, 1999 Tenn. Crim. App. LEXIS 1231,
at **1-2 (Tenn. Crim. App. Dec. 15, 1999, at Nashville), perm. to app. denied (Tenn. 2000).
The jury convicted the petitioner of second degree murder, and the trial court sentenced him
to twenty-three years incarceration. His conviction was upheld on direct appeal. Id. The petitioner
then sought post-conviction relief on the grounds that his trial attorney deprived him of his right to
testify and failed to introduce exculpatory evidence.
POST-CONVICTION HEARING
At the post-conviction hearing, the petitioner testified he and his trial counsel did not discuss
trial preparations, although his attorney did advise him of the state’s plea offers. The petitioner said
his sole recollection of the day of the offense was standing in the yard. He stated he saw his
grandmother, who did not have any blood on her, also standing in the yard talking to a preacher.
According to the petitioner, he smoked a cigarette and waited for the preacher to leave, and he
recalled nothing further until his arrest. The petitioner said that if he had testified at trial, he would
have testified he did not commit the murder and had no reason to kill his aunt. The petitioner stated
he told his attorney he wanted to testify at trial. At the post-conviction hearing, the petitioner said
he would have been the only defense witness at trial because his mother was incompetent and his
grandmother was deceased.
At trial, the local police chief testified the petitioner admitted shooting his aunt. The
petitioner testified at post-conviction that he advised trial counsel he did not make such a statement.
He stated he also told trial counsel that the murder weapon did not belong to him. He said he did
not know where the gun came from, and his fingerprints were not on it. According to the petitioner,
he asked trial counsel to investigate the origin of the gun.
The petitioner’s trial counsel testified he did not recall the petitioner saying he wanted to
testify. Trial counsel stated the petitioner repeatedly advised him that he had no recollection of the
events in question. Trial counsel also recounted the petitioner’s statements indicating he had no
reason to shoot his family. The attorney said he and the petitioner discussed “the fact that since he
claimed to have no recollection of the events of that day, there would basically be nothing he could
say if he did testify.” Trial counsel testified he did not feel the petitioner’s testimony would have
been beneficial at trial, and, therefore, “the decision was made that he wouldn’t testify.”
Trial counsel stated he, his investigator, and the petitioner discussed the facts and
circumstances surrounding the crime and the results of their investigation. Trial counsel stated the
petitioner never told him he had not made the incriminating statement to the police. Further, trial
-2-
counsel did not recall discussing ownership of the murder weapon. He said the petitioner indicated
he exercised control over the guns in the home.
According to trial counsel, the facts of the petitioner’s case did not lend themselves to a
defense theory that someone other than the petitioner was responsible for the shooting. Although
he tried to suggest to the jury that the shooting might have been accidental, the defense theory was
that the petitioner was responsible but not to the degree charged in the indictment.
The post-conviction court denied the post-conviction relief petition after finding trial counsel
provided effective representation.
STANDARD OF REVIEW
The post-conviction judge’s findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). Those findings of fact are afforded the weight of a jury verdict, and this court is bound by
the findings unless the evidence in the record preponderates against those findings. Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997).
This court may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn
by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the
post-conviction court’s conclusions of law are reviewed under a purely de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
WRITTEN FINDINGS
We note the trial court did not reduce its findings and conclusions to writing as part of its
order; instead, it pronounced them from the bench. The trial court is required to set forth written
findings of fact and conclusions of law for each claim raised in a post-conviction relief petition.
Tenn. Code Ann. § 40-30-211(b). Although this requirement is mandatory, reversal is not always
warranted when a trial judge fails to include written findings of fact and conclusions of law in the
order dismissing a post-conviction petition. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim.
App. 1984). The legislative intent of the statute is to aid the appellate court’s review of post-
conviction proceedings. Id.; George v. State, 533 S.W.2d 322, 326 (Tenn. Crim. App. 1975).
Where the court orally pronounces its findings from the bench, failure to state findings of fact and
conclusions of law in the final order may be harmless error. State v. Higgins, 729 S.W.2d 288, 290-
91 (Tenn. Crim. App. 1987). For reasons hereinafter stated, we conclude the failure to file written
findings was harmless.
RIGHT TO TESTIFY
The petitioner’s first contention is that the post-conviction court erred in not finding trial
counsel deprived him of his right to testify. The petitioner testified at the post-conviction hearing
that he advised his trial attorney that he wished to testify at trial. Trial counsel testified that the
petitioner did not tell him that he wanted to testify. He further testified it was decided that the
petitioner would not testify at trial because trial counsel did not feel it would be beneficial. It is
-3-
unclear from this testimony whether the petitioner made the decision that he would not testify at
trial. The trial transcript is also silent as to whether it was the petitioner’s decision not to testify. The
post-conviction court failed to make a finding as to whether the petitioner decided not to testify.
Instead, the court merely found it would not have been in the petitioner’s best interest to testify, and
that the petitioner failed to prove his trial counsel was ineffective for failing to present his testimony.
Both the state and federal constitutions grant the criminal accused the fundamental right to
testify in his own defense. Momon v. State, 18 S.W.3d 152, 157 (Tenn. 1999). The decision to
exercise or waive this right rests solely with the accused, not his attorney. Id. at 161. Therefore,
when the petitioner raised the issue of whether his trial counsel deprived him of his right to testify,
the proper question before the post-conviction court was whether the petitioner knowingly,
voluntarily, and intelligently waived his right to testify rather than whether trial counsel was
ineffective in failing to present the petitioner’s testimony. A waiver of the right to testify may not
be presumed from a silent record. Id. at 162.
We note the petitioner’s trial was held prior to the Tennessee Supreme Court’s publication
of the Momon decision, which established specific procedures for ensuring that a defendant’s waiver
of his right to testify is made knowingly, voluntarily, and intelligently. Id. The procedures
mandated in Momon apply only to cases tried after it was decided, and, therefore, there was no
requirement that petitioner’s trial counsel comply with them. Id. at 163. Yet, even prior to the
publication of Momon, it was necessary for trial counsel to allow the petitioner to make his own
decision as to whether or not to testify at trial. Id. It is unclear from the record, in the absence of
a finding of fact, whether or not the petitioner personally waived his right to testify. Under most
circumstances, we would be forced to remand this matter to the post-conviction court for further
findings of fact regarding this issue. However, based on the record before us, we conclude that even
if the petitioner were deprived of his right to testify, it was not prejudicial to the petitioner.
If a defendant is deprived of his right to testify by counsel’s unilateral decision, the state
bears the burden of establishing that denial of this constitutional right was harmless beyond a
reasonable doubt. Id. at 169. In making this determination, a court should consider: “(1) the
importance of the defendant’s testimony to the defense case; (2) the cumulative nature of the
testimony; (3) the presence or absence of evidence corroborating or contradicting the defendant on
material points; [and] (4) the overall strength of the prosecution’s case.” Id. at 168.
In the instant case, the testimony of both the petitioner and trial counsel indicated that if the
petitioner testified at trial, his testimony would have been that he had no recollection of the events
in question, that he was not guilty of the crime, and that he had no reason to shoot his aunt. This
evidence would not have been beneficial to his case in light of the strong proof offered by the state
that he walked into his home, took a firearm from the closet, shot the victim while firing multiple
shots, and admitted to the police chief that he shot the victim. The petitioner’s mother testified at
trial that she was present when the petitioner went to the closet and fired the shots. Further, there
was proof that immediately after the shooting, the petitioner’s grandmother, covered in the victim’s
blood, fled to a neighbor’s home, where she reported the petitioner had shot the victim. We conclude
the record, under these circumstances, established that if the petitioner were deprived of his right
-4-
to testify, the error was harmless beyond a reasonable doubt. Thus, the petitioner is not entitled to
relief.
INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner also argues trial counsel was ineffective for (1) failing to explore the theory
that the petitioner’s mother shot the victim; (2) failing to question the state’s witness as to whether
there were fingerprints found on the murder weapon; and (3) conceding the petitioner shot the
victim. We conclude the trial court did not err in finding the petitioner failed to establish that he did
not receive the effective assistance of counsel.
Since the petitioner alleged ineffective assistance of counsel, it was petitioner’s burden in
the post-conviction court to prove the allegations by clear and convincing evidence in order to get
relief. Tenn. Code Ann. § 40-30-210(f). We are required to affirm the post-conviction court’s
findings of fact unless the petitioner proves that the evidence preponderates against those findings.
Burns, 6 S.W.3d at 461.
In order to prove ineffective assistance of counsel, the petitioner must prove (1) that
counsel’s performance was deficient, and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the proceedings were
fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674 (1984). The Tennessee Supreme Court has also applied this standard to the right to trial
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417,
419 n.2 (Tenn. 1989).
A. Failure to Explore Theory that Petitioner’s Mother Shot the Victim
The petitioner contends trial counsel was ineffective for failing to develop a defense theory
that the petitioner’s mother shot the victim. During the post-conviction hearing, the petitioner
questioned trial counsel as to whether there was a plausible theory that the petitioner’s mother had
a motive to kill the victim. Trial counsel’s response indicated such a theory was not plausible, and
he explained that there was no evidence to dispute the state’s proof that the petitioner shot the
victim. He stated both the petitioner’s grandmother and mother, the only two witnesses to the crime,
had given statements to the effect that the petitioner walked into the house, went to the closet,
brought out a gun, and began shooting.
The petitioner presented no proof that trial counsel had access to evidence that anyone other
than the petitioner fired the weapon. There is no support for the petitioner’s contention that trial
counsel’s performance was deficient for failing to present a defense theory not supported by the
evidence.
B. Lack of Fingerprints on the Murder Weapon
The petitioner also contends trial counsel was ineffective for failing to elicit evidence during
cross-examination of the state’s ballistics expert that there were no fingerprints on the murder
-5-
weapon. However, the petitioner failed to present any proof at the post-conviction hearing that if
trial counsel had pursued such a line of questioning, it would have resulted in testimony to the effect
that no fingerprints were found on the weapon. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). The petitioner has failed to show prejudice.
C. Trial Counsel’s Concession that Petitioner Shot the Victim
Finally, the petitioner maintains his trial counsel was ineffective for conceding that the
petitioner fired the fatal shot and seeking a lesser conviction. The petitioner may not second-guess
a reasonably based trial strategy and may not criticize a sound, but unsuccessful, tactical decision
made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.
App. 1994); Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). We further note that
trial counsel was successful in getting a conviction of second degree murder, a lesser offense of first
degree murder. Further, trial counsel’s testimony at the post-conviction hearing indicated there was
no proof available to dispute the state’s evidence that the petitioner was the shooter. The petitioner
failed to establish trial counsel’s trial strategy was the result of inadequate preparation or was
unreasonable given the facts and circumstances of the petitioner’s case. The evidence supported the
post-conviction court’s determination that trial counsel provided the petitioner with competent,
effective representation.
CONCLUSION
Although the post-conviction court erred in failing to make a determination as to whether
the petitioner waived his right to testify at trial, we conclude that even if the petitioner were deprived
of his right to testify, the error would have been harmless beyond a reasonable doubt under the
circumstances of this case. Further, we conclude the petitioner failed to establish he was denied the
effective assistance of counsel. Accordingly, we affirm the judgment of the post-conviction court.
____________________________________
JOE G. RILEY, JUDGE
-6- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365149/ | 239 Ga. 312 (1977)
236 S.E.2d 652
GORMAN
v.
GORMAN.
32309.
Supreme Court of Georgia.
Argued May 11, 1977.
Decided June 28, 1977.
John C. Tyler, for appellant.
J. B. Gorman, pro se.
BOWLES, Justice.
The case originated by the filing of a complaint for a divorce and permanent alimony by the appellant, Marcelle Gorman, in the Superior Court of Cobb County. In her complaint she petitioned for a divorce on grounds of adultery and prayed that she "be awarded temporary and permanent alimony and support for herself and the said minor children," and that "she be awarded such other and further relief as the court deems proper under the circumstances."
The appellee, husband, answered and counterclaimed, praying that he be granted a total divorce on the ground that the marriage was irretrievably broken and upon the statutory ground of cruel treatment. In answering the complaint, appellee stated that in contemplation of their separation he had entered into an agreement with the appellant on January 1, 1976, and had executed several warranty deeds to the appellant conveying to her an undivided one-half interest in several pieces of real property owned by him. He further prayed that he "be awarded the permanent use and title in fee simple of all property standing in his name or in the names of the plaintiff and defendant as co-tenants," and that he "have such other and further relief as the court deems just and proper..."
Prior to a hearing on the merits, the parties filed a stipulation concerning their real and personal properties. This stipulation set out both the husband's and wife's interests, any secured indebtedness, and payments due on each piece of real property jointly owned and the opinion of each on values. The parties further stipulated that this document was to be used for the purpose of being introduced into evidence in the case. Each party also filed with the court their proposed recommendations for the settlement of property, alimony and child support. Appellant's proposal for settlement of property, alimony and child support asked that she be awarded the family home but that all other real estate be retained in the joint names of the parties. The appellee's proposed recommendation for settlement of property contemplated *313 an equitable division so as to divide the property equally between the parties but granting to the wife title to the family home. Both recommendations referred separately to division of property and alimony as being different awards by the court.
The final judgment and decree was entered in July, 1976. It also referred to alimony and division of real property in separate captions. In its award of "alimony" the court ordered appellee to pay attorney fees in the amount of $400.00. No award of money other than child support was granted to the appellant although she received certain personal properties. The court's "division of property," however, granted permanent use, control and title in certain real properties, held by the parties jointly, to the wife while at the same time, granted the husband title to certain others. More specifically, the court granted the wife two parcels of real estate; the first being the family home, the equitable interest of the parties as declared being between $27,000 according to the wife's stipulation and $47,000 per the husband's; the second being a house and garage apartment, the equitable interest of the parties being $22,000 as stipulated by both. The husband was granted title to the real estate which comprised his business, the equitable interest of the parties being between $27,000 per the husband and $52,000 per the wife, and was given title to a vacant lot next to the family home, the equitable interest of the parties in this property being between $3,500 (wife's value) and $5,000 (husband's value). Each party was also ordered to make all monthly payments including taxes, assessments, and other fees as an obligation payable by the new owner of each parcel.
Thus the wife received equities in real estate in fee, valued at $49,000 (wife's value) and $69,000 (husband's value). The husband received equities of $55,000 (wife's value) and $32,000 (husband's value).
Appellant filed notice of appeal from this Final Judgment and Decree alleging that the court had violated Code Ann. § 30-201 in awarding property owned by her to her husband. She also contended that the court had no legal authority to require her to make payments respecting the property which was awarded to her. We *314 find her enumerations of error to be without merit and affirm.
1. The appellant contends that the court's division of property, granting the appellee title to two pieces of real estate that had been jointly held by the parties, is tantamount to an award of alimony to the husband and is therefore illegal under Code Ann. § 30-201. She argues that the present case is controlled by our decisions in Byrd v. Byrd, 238 Ga. 569 (233 SE2d 799) (1977); Scales v. Scales, 235 Ga. 509 (220 SE2d 267) (1975); and Barnes v. Barnes, 230 Ga. 226 (196 SE2d 390) (1973). We disagree.
In Byrd, supra, Scales, supra, and Barnes, supra, this court stated that Code Ann. § 30-201 is violated when a jury's verdict awards a wife's interest in certain real property to her husband. These cases, however, are distinguishable from the present case. Here the parties were tenants in common to several parcels of real estate which they asked the court to divide and each prayed for general relief. In addition, in the present case the division and award of properties was made by the court and not, as in the previous cases, by the jury.
"Proceedings for a divorce and for alimony have always, under the practice in this state, been regarded as equitable." Holloway v. Holloway, 233 Ga. 631, 632 (212 SE2d 809) (1975); Flournoy v. Flournoy, 228 Ga. 224 (184 SE2d 822) (1971); Hendrix v. Hendrix, 224 Ga. 662 (163 SE2d 917) (1968); Moss v. Moss, 196 Ga. 340, 345 (26 SE2d 628) (1943); Rogers v. Rogers, 103 Ga. 763, 765 (30 SE 659) (1898). One commonly recognized maxim of equity states that equity seeks to do complete justice, and "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." See Code Ann. § 37-105. Further, in equity, "a superior court shall have full power to mold its decree so as to meet the exigencies in each case." Code Ann. § 37-1203.
In the present case, both parties had, in their pleadings, prayed for "further relief as the court deems just and proper." (Emphasis supplied.) The court had the pleadings before it, stipulations as to value of the jointly held properties, and each party's proposed division. A *315 superior court which has general equitable powers has jurisdiction to partition property under Code Ann. § 85-1501. Therefore, instead of awarding a wife and husband an undivided one-half interest in all property which they already had, and requiring a subsequent partitioning suit to divide, equity and judicial convenience demands that a trial judge have the power, where requested by the parties, to equitably divide property between the husband and wife to avoid further litigation and to do complete justice. In light of this, we find that the court's award of the wife's joint interest in two pieces of the commonly owned property to the husband was not an award of alimony in violation of Code Ann. § 30-201 but an equitable partition of properties held by the two as tenants in common, thus affording general relief as prayed. The division made was well within the range of the evidence.
2. Appellant enumerates as error the court's order making her responsible for the payment of all monthly indebtedness, taxes, insurance premiums and other fees and assessments relative to the real estate awarded to her.
"Where equity acquires jurisdiction for any purpose it will retain jurisdiction to give full and complete relief, whether legal or equitable, as to all purposes relating to the subject matter." Fuller v. Dillon, 220 Ga. 36 (1f) (136 SE2d 733) (1964); Code Ann. § 37-105. The court in making an equitable division of the properties had the power to award the fee simple interest to the wife and require her to pay any outstanding indebtedness on the properties, including taxes, insurance, and other fees and assessments. Thus appellant's enumeration of error No. 2 is without merit.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750693/ | 269 S.W.3d 460 (2008)
Elizabeth PETERS, Plaintiff/Appellant,
v.
M & M FREIGHT TRANSPORT, INC., and
Paul David Morgan, Defendants, and
Memorial Hospitals Association, Defendant/Respondent.
No. ED 90432.
Missouri Court of Appeals, Eastern District, Division Four.
September 23, 2008.
Motion for Rehearing and/or Transfer to Supreme Court Denied November 3, 2008.
Application for Transfer Denied December 16, 2008.
Dale M. Weppner, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, Daniel M. Czamanske, Jr., Chapman, Lewis & Swan, Clarksdale, MS, for appellant.
Joseph R. Swift, T. Michael Ward, Teresa M. Young, Brown & James, P.C., St. Louis, MO, for respondent.
Victor T. Avellino, Boggs, Boggs & Bates, L.L.C., Clayton, MO, for defendants.
Before BOOKER T. SHAW, P.J., KATHIANNE KNAUP CRANE, J., and MARY K. HOFF, J.
Prior report: 2007 WL 5446590.
ORDER
PER CURIAM.
Plaintiff appeals from an adverse judgment in a declaratory judgment action. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.
We affirm the judgment pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265177/ | 657 F.Supp. 1547 (1987)
Chan KENDRICK, Reverend Robert E. Vaughn, Reverend Lawrence W. Buxton, Dr. Emmett W. Cocke, Jr., Shirley Pedler, Reverend Homer A. Goddard, Joyce Armstrong, John Roberts and the American Jewish Congress, Plaintiffs,
v.
Dr. Otis R. BOWEN, Jr., Secretary of the Department of Health and Human Services, Defendant,
and
Sammie J. Bradley, Katherine K. Warner and United Families of America, Defendant-Intervenors.
Civ. A. No. 83-3175.
United States District Court, District of Columbia.
April 15, 1987.
As Modified May 15, 1987.
*1548 *1549 *1550 Janet Benshoof, Nan D. Hunter, Lynn M. Paltrow, Suzanne M. Lynn and Verna C. Sanchez, American Civil Liberties Union, New York City, and Bruce J. Ennis, Washington, D.C., for plaintiffs.
Theodore C. Hirt, Thomas Millet, Charles Sorenson and Jeffrey Paulson, Dept. of Justice, Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Brook Hedge, Branch Director, Lewis K. Wise, Asst. Branch Director, Dept. of Health and Human Services, Joel Mangel, Deputy Asst. Gen. Counsel for Public Health, Carol Conrad, Sr.Atty. and Susan K. Ruby, Public Health Service, Washington, D.C., for defendant.
Edward R. Grant, Chicago, Ill., and Paul Arneson, Washington, D.C., for defendant-intervenors.
Wilfred R. Caron, Gen. Counsel, and Mark E. Chopko, Asst. Gen. Counsel, Washington, D.C., for amicus curiae U.S. Catholic Conference.
Patricia Hennessey, New York City and David B. Hopkins, Washington, D.C., for the amici curiae United Church of Christ Board of Homeland Ministries, Catholics for a Free Choice, Unitarian Universalist Ass'n, Union of American Hebrew Congregations and American Ethical Union.
Mari Anne T. Hamilton, Silver Spring, Md., Edward R. Grant, Maura K. Quinlan and Thomas Balch, Americans United for Life Legal Defense Fund, Chicago, Ill., for amicus curiae Americans United for Life.
TABLE OF CONTENTS
Page
I. INTRODUCTION 1551
II. BACKGROUND 1552
III. BECAUSE THE MATERIAL FACTS ARE NOT IN DISPUTE, SUMMARY JUDGMENT
IS APPROPRIATE IN THIS CASE. 1553
IV. THE FEDERAL TAXPAYER PLAINTIFFS HAVE STANDING TO BRING THIS ACTION
BECAUSE THEY RAISE AN ESTABLISHMENT CLAUSE CHALLENGE TO THE
*1551
AFLA, WHICH WAS ENACTED PURSUANT TO THE TAXING AND SPENDING
CLAUSE. 1554
V. BECAUSE THE AFLA DOES NOT MAKE EXPLICIT AND DELIBERATE DISTINCTIONS
AMONG RELIGIONS, THE COURT MUST USE THE TRIPARTITE TEST SET
FORTH IN LEMON V. KURTZMAN TO EVALUATE THE STATUTE. 1556
VI. ALTHOUGH THE AFLA HAS A VALID SECULAR PURPOSE, IT IS UNCONSTITUTIONAL
ON ITS FACE BECAUSE IT HAS THE PRIMARY EFFECT OF ADVANCING
RELIGION AND FOSTERS AN EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT
AND RELIGION, AND IT IS UNCONSTITUTIONAL AS APPLIED BECAUSE IT
HAS THE PRIMARY EFFECT OF ADVANCING RELIGION. 1557
A. The AFLA Has a Valid Secular Purpose of Combating Teenage Pregnancy and
Associated Ills. 1558
B. On Its Face and As Applied, the AFLA Has the Primary Effect of Advancing Religion
Because of Its Use of Religious Organizations for Education and Counseling of
Teenagers on Matters Relating to Religious Doctrine. 1560
1. The legal standard of primary effect 1560
2. On its Face, the AFLA has the primary effect of advancing religion because it funds
teaching and counseling of adolescents by religious organizations on matters
related to religious doctrine. 1562
3. As applied, the AFLA has the primary effect of advancing religion. 1564
C. Because Organizations Funded by the AFLA Have a Religious Character and Purpose,
and the AFLA Programs Concentrate on Counseling and Education, the Degree of
Government Monitoring Necessary to Prevent Grantees From Advancing Religion
Would Necessarily Rise to the Level of Excessive Entanglement. 1567
D. Because the AFLA Funds Religious Organizations to Provide Services Intrinsically
Related to Fundamental Beliefs Upon Which Religions and Politicians Strongly
Disagree, the AFLA Is Likely to Incite Political Division. 1569
VII. CONCLUSION 1569
CHARLES R. RICHEY, District Judge.
I. INTRODUCTION
The plaintiffs challenge the constitutionality of the Adolescent Family Life Act ("AFLA"), 42 U.S.C. §§ 300z300z-10 (1981), on the ground that on its face and as applied the statute violates the Establishment Clause of the First Amendment.[1] The fundamental question in this case is the constitutionality of a statute that allows religious organizations to use government funds for, inter alia, the counseling and teaching of adolescents on matters related to premarital sexual relations and teenage pregnancy. Although the Court finds that the AFLA has a valid secular purpose, it also finds that the AFLA, on its face, has the primary effect of advancing religion and fosters an excessive entanglement between government and religion. Moreover, the undisputed facts show that AFLA grants awarded to religious organizations have the primary effect of advancing religion. Therefore, the Court must hold that the AFLA is unconstitutional both on its face and as applied.[2] Accordingly, *1552 the Court will grant plaintiffs' motion for summary judgment and will deny defendant's and defendant-intervenors' cross-motions for summary judgment by Order of even date herewith.
The Court is sensitive to the fact that its Opinion discusses particular beliefs and also discusses practices in which particular religious organizations have engaged. The Court intends nothing in this Opinion to reflect adversely on any religion. The Court notes that it is apparent from the party plaintiffs, defendant, and defendant-intervenors in this case that members of the same religious groups do disagree about the validity of the AFLA and hold differing, religiously based, beliefs about the program's goals. The Court also notes that this division obtains among Protestants, Catholics, Jews and others, and wishes to be quite clear that it discusses particular religions only insofar as is absolutely necessary for this Opinion.
No judge enjoys deciding a constitutional challenge to a United States statute. Because federal laws are enacted by Congress and approved by the Chief Executive, courts rightly employ a variety of doctrines in order to avoid overruling our co-equal branches of government. In deference to the considered judgments of the other branches, a court must strive, if possible, to avoid the constitutional issue altogether. See Pennsylvania v. Ritchie, ___ U.S. ___, 107 S.Ct. 989, 1011, 94 L.Ed.2d 40 (1987) (Stevens, J., dissenting). As this case raises only constitutional issues, however, the Court does not have that option.
A second principle of judicial abstention is that a Court must avoid, if possible, finding that a statute does not conform to the requirements of the Constitution. See Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568, 67 S.Ct. 1409, 1419, 91 L.Ed.2d 1666 (1947). Equally fundamental, if compelled to find a statute unconstitutional, a Court's decision should be so circumscribed as to wreak the least havoc on the law. As such, courts ought not leap to declare a statute invalid where they can merely proscribe a practice under that law. See Erznoznik v. Jacksonville, 422 U.S. 205, 215-16, 95 S.Ct. 2268, 2275-76, 45 L.Ed.2d 125 (1975); Rescue Army, 331 U.S. at 569, 67 S.Ct. at 1419. But, after careful study, the Court has concluded that these principles, which the Court wholeheartedly accepts, are somewhat at odds with Establishment Clause case law.
While little else is clear in Establishment Clause case law, it is obvious that the distinction between a challenge to a statute on its face and as applied has not been clearly delineated. The precedents take as their form of analysis a consideration of the possible applications of a particular statute, see, e.g., Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 779-83, 93 S.Ct. 2955, 2968-70, 37 L.Ed.2d 948 (1973), then analyze the statute's actual application, see, e.g., id.; Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 479-82, 93 S.Ct. 2814, 2818-20, 37 L.Ed.2d 736 (1973), and finally, even if the application is the only constitutionally offensive element to which the court has pointed, strike down the statute on its face. See, e.g., Wolman v. Walter, 433 U.S. 229, 255, 97 S.Ct. 2593, 2609, 53 L.Ed.2d 714 (1977); Roemer v. Board of Public Works, 426 U.S. 736, 767, 96 S.Ct. 2337, 2354, 49 L.Ed.2d 179 (1976).
This method of analysis, so different from that usually employed when considering constitutional claims, leaves this Court only one alternative if it is to abide by the teachings of the Supreme Court, which trial judges must. Accordingly, even though the Court does not relish the task, it has no alternative but to consider the statute both on its face and as applied. In the end, however, this double duty matters little because the AFLA is unconstitutional both on its face and as applied.
II. BACKGROUND
The AFLA is a Congressional response to the severe and manifold problems resulting from teenage pregnancy and associated problems. See 42 U.S.C. § 300z(a). The *1553 Act was designed to prevent adolescent pregnancy by promoting self-discipline, and to mitigate or eviscerate the severe economic, social and health problems that often result from premarital sexual relations and teenage pregnancy. See 42 U.S.C. § 300z(b).
While the AFLA has three general program categories care, prevention and research, see 42 U.S.C. §§ 300z-2 & 300z-7, the plaintiffs contest the constitutionality only of the care and prevention services.
"Care services" include pregnancy testing, maternity counseling, adoption and referral services, and primary and preventive health services. See 42 U.S.C. § 300z-1(a)(7).
"Prevention services" are services to discourage adolescent sexual relations, referral services for the treatment of venereal disease, counseling and family planning services. See 42 U.S.C. § 300z-1(a)(8).
With the exception of pregnancy testing, child care and transportation services, all of the care and prevention services involve some form of referral, teaching or counseling services. See 42 U.S.C. 300z-1(a)(4). Seven of the seventeen listed services explicitly involve education and counseling, and two involve activities intimately related to counseling outreach and planning services. See id. All of these programs are targeted to help pregnant adolescents, particularly children of high school age. See 42 U.S.C. §§ 300z(b)(3) & 300z-1(a)(9).
Although the Court must consider the AFLA as a whole, two sections are particularly relevant to the Court's decision. First, the AFLA requires applicants to describe how they
will, as appropriate in the provision of services ... involve ... religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives....
42 U.S.C. § 300z-5(a)(21) (emphasis added). Secondly, the AFLA limits funding
to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion.
42 U.S.C. § 300z-10(a).[3]
The plaintiffs contend that these two sections, when read together, not only permit religious organizations to use government funds to provide counseling-type services, but restrict AFLA funding of religious organizations to those that oppose abortion. See Amended Complaint ¶¶ 2-4 (filed Dec. 29, 1983). Moreover, the plaintiffs assert that religious organizations have received AFLA funds, either directly as grant recipients or indirectly through their affiliation with secular grantees, to provide such services. For these reasons, the plaintiffs claim that the AFLA, both on its face and as applied, violates the Establishment Clause of the First Amendment.
The defendants argue that the Establishment Clause does not absolutely prohibit religious organizations from receiving government funding. The defendants contend that the AFLA permits religious organizations to provide services that are secular in purpose, and that the provision of these services does not have the primary effect of advancing religion and does not foster an excessive entanglement between government and religion.
III. BECAUSE THE MATERIAL FACTS ARE NOT IN DISPUTE, SUMMARY JUDGMENT IS APPROPRIATE IN THIS CASE.
Pending before the Court are three cross motions for summary judgment and a motion *1554 for judgment on the pleadings. It is evident from the extent of the record in this case and from the motions themselves that the parties have had more than ample opportunity to submit all material pertinent to a motion for summary judgment. Therefore, the Court will treat the motion for a judgment on the pleadings under Rule 12(c) as a motion for summary judgment pursuant to Rule 56. See Fed.R. Civ.P. 12(c); Public Citizen v. Lockheed Aircraft Corporation, 565 F.2d 708, 711 n. 5 (D.C.Cir.1977). After carefully and exhaustively considering the motions, the statements of material fact not in dispute, the allegations of disputed facts, the golconda of documents submitted to the Court, and the case law, the Court finds that the material facts are not in dispute and that summary judgment is appropriate. See Fed.R.Civ.P. 56(c); Celotex Corporation v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
IV. THE FEDERAL TAXPAYER PLAINTIFFS HAVE STANDING TO BRING THIS ACTION BECAUSE THEY RAISE AN ESTABLISHMENT CLAUSE CHALLENGE TO THE AFLA, WHICH WAS ENACTED PURSUANT TO THE TAXING AND SPENDING CLAUSE.
Article III of the Constitution demands that plaintiffs who bring a lawsuit have standing to pursue the claims that they raise. See, e.g., Flast v. Cohen, 392 U.S. 83, 94-99, 88 S.Ct. 1942, 1949-52, 20 L.Ed.2d 947 (1968). The defendants and defendant-intervenors do not contest plaintiffs' standing to challenge the constitutionality of the AFLA on its face. They argue instead that the plaintiffs do not have standing to challenge the Act as applied and, therefore, this Court may not even consider the actual AFLA grantees and programs. The Court disagrees. Because the federal taxpayer plaintiffs raise an Establishment Clause challenge to an enactment pursuant to the taxing and spending clause, they satisfy the test for taxpayer standing set forth in Flast, 392 U.S. at 102-03, 88 S.Ct. at 1953-54.[4] Accordingly, they have standing to challenge the AFLA both on its face and as applied.
In Flast, the Supreme Court held that federal taxpayers have standing to challenge the constitutionality of 1) an exercise of congressional power under the taxing and spending clause[5] if 2) the basis for the challenge is that the statute violates the Establishment Clause. See id. at 102-03, 88 S.Ct. at 1953-54. Because the AFLA was enacted pursuant to the taxing and spending clause, see Plaintiffs' Statement of Material Facts ("Plaintiffs' Facts") ¶ 1, and the plaintiffs allege that the AFLA violates the Establishment Clause, see Amended Complaint ¶¶ 1, 49 & 50, the only question with regard to plaintiffs' standing to challenge the AFLA as applied is whether they contest an "exercise of congressional power."
This is what the defendant and defendant-intervenors deny. They argue that because the AFLA is administered by the Department of Health and Human Services ("HHS"), the plaintiffs' challenge to the AFLA as applied contests executive, rather than congressional, action. Careful consideration of the facts in the Flast case shows why defendants are in error.
In Flast v. Cohen the plaintiffs challenged the constitutionality of government funding of educational services and materials to private, largely parochial schools under the Elementary and Secondary Education *1555 Act of 1965 ("Education Act"). See 392 U.S. at 85-88, 88 S.Ct. at 1944-46. The Education Act delegated to the Department of Health, Education and Welfare ("HEW," now HHS) the task of disbursing the funds appropriated under the Education Act in a manner consistent with the standards and restrictions established by the Act. See id. at 86-88, 88 S.Ct. at 1945-46. The Court held that, notwithstanding HEW's role in disbursing the appropriated funds, the funds were disbursed in accordance with congressional standards and therefore plaintiffs challenged an exercise of congressional power. See id. at 87, 88 S.Ct. at 1945. Accordingly, the Court also held that the logical nexus between plaintiffs' status as taxpayers and their challenge to an appropriation under the taxing and spending clause was sufficient to give plaintiffs standing. See id. at 102-03, 88 S.Ct. at 1953-54.
The scheme upheld in Flast is precisely analogous to the AFLA. Just as in the statute at issue in Flast, in the AFLA Congress delegated to HHS the task of disbursing the appropriated funds in a manner consistent with the standards and restrictions established by the AFLA. See 42 U.S.C. § 300z-2; Plaintiffs' Facts ¶ 2. By disbursing funds appropriated for the AFLA, HHS merely executes congressional power pursuant to the standards set by Congress, just as its predecessor agency did under the law upheld in Flast. Accordingly, Flast, never having been overruled, dictates a finding that the federal taxpayer plaintiffs here have challenged an exercise of congressional power despite HHS's role in disbursing the appropriated funds.
Notwithstanding the similarities between this case and Flast, the defendant and defendant-intervenors claim that this case is controlled by the Supreme Court's more recent decision in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The Valley Forge case involved the Federal Property and Administrative Services Act of 1949 ("Property Act"), which pursuant to the property clause[6] gave HEW the power to sell the federal government's surplus real property. See id. at 466-67, 102 S.Ct. at 755. Under the Property Act, HEW had broad discretion to grant public benefit allowances, which effectively decreased the price of the property. See id. at 467, 102 S.Ct. at 755. The plaintiffs in the Valley Forge case challenged HEW's decision to transfer a parcel of federal property to Valley Forge Christian College and to offset the entire price of the property with a 100% public benefit allowance. See id. at 468, 102 S.Ct. at 756.
There is an essential difference between the executive action at issue in Flast and that at issue in Valley Forge. Unlike HEW's actions in Flast and unlike HHS's actions with respect to the AFLAHEW was not carrying out an exercise of congressional power when it gave Valley Forge Christian College a free parcel of property. See id. at 479 & n. 15, 102 S.Ct. at 762 & n. 15. Instead, pursuant to its broad statutory discretion, the executive agency itself decided whether and how much to offset the price of surplus federal property with a public benefit allowance. See id. at 468, 102 S.Ct. at 756. Unlike the plaintiffs in Flast, the Valley Forge plaintiffs could not point to a close, logical connection between their standing as taxpayers and HEW's action. Moreover, the action at issue in Valley Forge was not related to the taxing and spending clause but proceeded under the Property Clause of the Constitution. Consequently, the Supreme Court found that these plaintiffs did not have standing to sue. See id. at 479-80 & n. 17, 102 S.Ct. at 763 & n. 17.
Thus Valley Forge does not prevent the federal taxpayer plaintiffs in the instant case from having standing to sue. There is a sufficiently close nexus between the individual plaintiffs' standing as federal taxpayers and their challenge to the AFLA. In contrast to Valley Forge, but as in Flast, the federal taxpayer plaintiffs here maintain that an exercise of congressional power under the taxing and spending clause violates the Establishment Clause. *1556 Again, unlike Valley Forge, but as in Flast, the nexus between the plaintiffs' status as federal taxpayers and Congress' appropriation of AFLA funds under the taxing and spending clause is not significantly weakened by HHS's disbursement of those funds. Therefore, the federal taxpayer plaintiffs have standing to challenge the AFLA both on its face and as applied.[7]
V. BECAUSE THE AFLA DOES NOT MAKE EXPLICIT AND DELIBERATE DISTINCTIONS AMONG RELIGIONS, THE COURT MUST USE THE TRIPARTITE TEST SET FORTH IN LEMON V. KURTZMAN TO EVALUATE THE STATUTE.
Having found that the plaintiffs have standing, the Court must now consider whether the AFLA comports with the Establishment Clause. Until recently, it seemed evident that a Court would use the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), when called upon to determine whether a statute comports with the Establishment Clause. In Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), however, the Supreme Court held that a statute that explicitly and deliberately discriminates among religious denominations is suspect and must be reviewed with "strict scutiny." See id. at 246-47, 102 S.Ct. at 1684-85. The plaintiffs here argue that the AFLA must be reviewed under a strict scrutiny standard because it contains a denominational preference to the extent that it restricts funding to those religious organizations that oppose abortion. The Court cannot agree.
The Minnesota statute at issue in Larson explicitly exempted from certain state requirements any religious organization that received more than 50% of its contributions from its own members. See id. at 231-32, 102 S.Ct. at 1676-77. Because this "fifty percent rule" made "explicit and deliberate distinctions" between well-established churches and "new churches" that largely depend on public solicitation, the Court tested the rule under a standard of strict scrutiny. Id. at 246-47 & n. 23, 102 S.Ct. at 1684 & n. 23.
Larson's strict scrutiny analysis, however, applies only in limited circumstances. This is clear from the Court's discussion in Larson of the case of Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). Gillette involved an Establishment Clause challenge to the Military Selective Service Act ("MSSA") of 1967, which afforded conscientious objector status to any person who, "by reason of religious training and belief ... was conscientiously opposed to participation in war in any form." Id. at 441, 91 S.Ct. at 831 (emphasis added). Thus, Quakers could object because they opposed all wars, whereas Catholics could not because they opposed only unjust wars. The Catholic plaintiff challenging the MSSA argued that strict scrutiny should apply because differences in religious beliefs only permitted members of select religions to benefit from the conscientious objector status. In Larson, the Supreme Court noted that, apart from the difference in religious beliefs concerning war, the Gillette statute did "not discriminate on the basis of religious affiliation;" the conscientious objector status was available on an equal basis to members of all religions. Larson, 456 U.S. at 246 n. 23, 102 S.Ct. at 1684 n. 23. As such, the Larson court found that the MSSA did not "explicitly and deliberately" discriminate against Catholics and, therefore, the tripartite Lemon test not the strict scrutiny analysis remained the proper method for analyzing the MSSA. See id. The Lemon test is the equally proper analytic tool in the case at bar.
If anything, the AFLA makes even fewer distinctions among religions than did the statute at issue in Gillette. By prohibiting *1557 a grant recipient from advocating abortion in an AFLA program or project, the AFLA does not condition a "benefit" on a particular religious belief but merely restricts a program or project from using federal tax dollars to advocate a particular course of action. See 42 U.S.C. § 300z-10. Although the prohibition against advocating abortion, like opposition to war in any form, may coincide or conflict with religious precepts, that fact does not require the Court to analyze the AFLA pursuant to a strict scrutiny analysis. See Larson, 456 U.S. at 246 n. 23, 102 S.Ct. at 1684 n. 23; Gillette, 401 U.S. at 441, 91 S.Ct. at 831; see also, Bob Jones University v. United States, 461 U.S. 574, 604 n. 30, 103 S.Ct. 2017, 2035 n. 30, 76 L.Ed.2d 157 (1983) (regulation does not violate the Establishment Clause merely because it coincides or harmonizes with the tenets of some or all religions); Harris v. McRae, 448 U.S. 297, 319-20, 100 S.Ct. 2671, 2689, 65 L.Ed.2d 784 (1980) (same); McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113, 6 L.Ed.2d 393 (1961) (same); Crowley v. Smithsonian Institution, 636 F.2d 738, 742-43 (D.C.Cir.1980) (same). As such, because the AFLA does not discriminate on the basis of religious affiliation or belief, the strict scutiny test applied in Larson is not the proper standard by which to construe the AFLA;[8] rather, the AFLA must be tested under the three-part test set forth in Lemon v. Kurtzman.
VI. ALTHOUGH THE AFLA HAS A VALID SECULAR PURPOSE, IT IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT HAS THE PRIMARY EFFECT OF ADVANCING RELIGION AND FOSTERS AN EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION, AND IT IS UNCONSTITUTIONAL AS APPLIED BECAUSE IT HAS THE PRIMARY EFFECT OF ADVANCING RELIGION.
The appropriate test for determining whether the AFLA violates the Establishment Clause is set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). To withstand scrutiny under the Lemon test the AFLA 1) must have a valid secular purpose, 2) must not have the primary effect of advancing or inhibiting religion, and 3) must not foster excessive entanglement between government and religion. See id. at 612-13, 91 S.Ct. at 2111. If the AFLA fails any one of these three parts of the Lemon test, then the Court must declare the statute unconstitutional.
In addition, political divisiveness, while never the only ground for holding a statute unconstitutional, is a fourth factor often considered by courts. A statute that causes political division along religious lines is more likely to offend the Establishment Clause than one that does not. See Meek v. Pittenger, 421 U.S. 349, 365 n. 15, 372, 95 S.Ct. 1753, 1763 n. 15, 1766-67, 44 L.Ed.2d 217 (1975); Lemon, 403 U.S. at 622-25, 91 S.Ct. at 2115-17; Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 794-98, 93 S.Ct. 2955, 2976-78, 37 L.Ed.2d 948 (1973); Tilton v. Richardson, 403 U.S. 672, 688-89, 91 S.Ct. 2091, 2100-01, 29 L.Ed.2d 790 (1971); Walz v. Tax Commission, 397 U.S. 664, 698-700, 90 S.Ct. 1409, 1426-27, 25 L.Ed.2d 697 (1970) (Harlan, J., concurring); Board of Education v. Allen, 392 U.S. 236, 249, 88 S.Ct. 1923, 1929, 20 L.Ed.2d 1060 (1968) (Harlan, J., concurring); see also Lynch v. Donnelly, 465 U.S. 668, 689, 104 S.Ct. 1355, 1367, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring) (political divisiveness is not an independent test of constitutionality). Therefore, the Court will assess whether the AFLA may, or has, caused political division along religious lines, even though this factor has never been held to be dispositive.
The Court will now consider each of these four factors in turn.
*1558 A. The AFLA Has a Valid Secular Purpose of Combating Teenage Pregnancy and Associated Ills.[9]
Courts invalidate legislation or governmental action on the ground that it lacks a valid secular purpose only when the statute or activity involved is motivated wholly by religious considerations. See Lynch, 465 U.S. at 680, 104 S.Ct. at 1362; Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1980) (per curiam); Epperson v. Arkansas, 393 U.S. 97, 107-09, 89 S.Ct. 266, 272-73, 21 L.Ed.2d 228 (1968); Abington School District v. Schempp, 374 U.S. 203, 223-24, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 424-25, 82 S.Ct. 1261, 1263-64, 8 L.Ed.2d 601 (1962). Even when the benefits to religion are substantial, and motivation to advance or benefit religion is apparent, courts have found no conflict with the Establishment Clause as long as they can discern some intended and valid secular purpose. See Lynch, 465 U.S. at 680, 104 S.Ct. at 1362. Contrary to the plaintiffs' claim that the asserted purpose of the statute is pretextual, the Court finds that the AFLA has a valid secular purpose and its purpose therefore does not offend the Establishment Clause.
As mentioned on pages 8-9, above, the AFLA was motivated by Congress' concern that teenage pregnancy and premarital sexual relations are very damaging to society and, particularly, to adolescents.[10] The AFLA funds care, prevention and research projects intended to alleviate the causes and consequences of these problems. See 42 U.S.C. §§ 300z(b). Specifically, the AFLA encourages parents and family members to provide guidance and support to adolescents by promoting prudent approaches, such as self-discipline, to the problem of premarital sexual relations. Id. It promotes adoption, establishes innovative, comprehensive and integrated care services for pregnant adolescents, and supports research and demonstration projects concerning the causes and consequences of adolescent premarital sexual relations, contraceptive use, pregnancy and child rearing. See id. The statute also funds research on alleviating the negative consequences of adolescent premarital sexual relations and pregnancy, and it provides funds for disseminating the results and findings of these programs. See 42 U.S.C. § 300z(b)(4)-(b)(6).
The Court can only conclude from the indisputable language of the AFLA that the statute's purpose was to solve the problems *1559 caused by teenage pregnancy and premarital sexual relations. This is a valid secular purpose.[11] This conclusion is buttressed by the uncontroverted fact that a significant amount of AFLA grants have been awarded to non-sectarian grantees to provide care and counseling services to adolescents. That these secular purposes coincide or conflict with religious tenets does not transform them into sectarian purposes motivated wholly by religious considerations. Cf. Bob Jones University v. United States, 461 U.S. 574, 604 n. 30, 103 S.Ct. 2017, 2035 n. 30, 76 L.Ed.2d 157 (1983); Harris v. McRae, 448 U.S. 297, 319-20, 100 S.Ct. 2671, 2689, 65 L.Ed.2d 784 (1980); McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113, 6 L.Ed.2d 393 (1961); Crowley v. Smithsonian Institution, 636 F.2d 738, 742-43 (D.C.Cir.1980). The Court must therefore find that the AFLA, both on its face and as applied, was not motivated wholly by religious considerations but has a valid secular purpose.
The plaintiffs admit that the AFLA incorporates some secular values, see Plaintiffs' Motion for Summary Judgment at 33 n. 57, but they argue that the real purpose of the AFLA can properly be determined only in light of the AFLA's predecessor statute Title VI of the Public Health Service Act. The plaintiffs contend that a comparison of the AFLA and Title VI demonstrates that the AFLA was motivated wholly by religious considerations. The critical fact, argue the plaintiffs, is that Title VI was specifically amended to involve religious organizations. Title VI required applicants to describe how they will involve public and private agencies, see Title VI § 605(a)(7), whereas the AFLA explicitly requires applicants to describe how they
will ... involve families, ... religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives....
42 U.S.C. § 300z-5(a)(21).
Even admitting this difference between Title VI and the AFLA, the Court cannot find that the AFLA was motivated wholly by religious considerations. First, Title VI was amended not only to add religious organizations to the list of entities that may participate in AFLA programs, but also to add families, charitable organizations, voluntary associations and other groups. See 42 U.S.C. § 300z-5(a)(21)(B). Religious organizations are only one of five types of entities that may be involved in an AFLA program. Secondly, at most, only the language permitting the involvement of religious organizations was motivated by religious considerations. This, however, does not mean that the entire AFLA was motivated wholly by religious considerations, as it would have to be in order to find that the AFLA has no valid secular purpose. Other reasons, such as the need for greater resources, more programs, and earlier intervention also motivated Congress to amend Title VI. See S.Rep. No. 97-161, 97th Cong. 1st Sess. 7-9 (1981). Finally, and most important, religious organizations can play a vital role in furthering secular values, a fact that even plaintiffs admit.[12]*1560 Accordingly, notwithstanding that Title VI was amended to permit religious organizations to be involved in AFLA programs, the Court finds that the AFLA was not motivated wholly by religious considerations but has a valid secular purpose. This does not save the AFLA, however, as it fails the other elements of the nexus text. See subsections B & C, infra pp. 26-26.
B. On Its Face and As Applied, the AFLA Has the Primary Effect of Advancing Religion Because of Its Use of Religious Organizations for Education and Counseling of Teenagers on Matters Relating to Religious Doctrine.
1. The legal standard of primary effect
As noted above, a particular statute is not immunized from further scrutiny merely because it has a valid secular purpose. See, e.g., Grand Rapids School District v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 3223, 87 L.Ed.2d 267 (1985). A Court must then proceed to consider whether that statute comports with the remaining elements of the guidelines synthesized in Lemon v. Kurtzman, namely, whether it has a primary effect of advancing religion and whether it fosters excessive entanglement between government and religion. See, e.g., id.
The second prong of the Lemon test requires this Court to determine whether the AFLA's "primary effect [is] one that neither advances nor inhibits religion." 403 U.S. at 612, 91 S.Ct. at 2111. The Court finds that the AFLA both on its face and as applied has the primary effect of advancing religion and, therefore, violates the Establishment Clause. Because the same legal principles apply both to a facial and an "as applied" inquiry, the Court will begin by setting forth the applicable law.
First, the test does not require a Court to determine which effects of the AFLA are "primary" and which less so. While comparisons are inherent in the primary effect inquiry, these need not, and should not, rise to the level of "metaphysical judgments" about the paramountcy of a statute's alleged religious effect. See Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 783 n. 39, 93 S.Ct. 2955, 2971 n. 39, 37 L.Ed.2d 948 (1973). As the Supreme Court has made clear,
a law found to have a `primary' effect [of] promot[ing] some legitimate end under the State's police power is [not] immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion.
Id. (emphasis added).
Subsequent decisions have illuminated the role that consideration of "direct and immediate effect" must play in the "primary effect" inquiry. Where the connection between a statute and religion is apparent from the face of the statute, and the benefit conferred upon religion is not an historical fact but a recent innovation, the Supreme Court instructs us to examine whether the statute has a "direct and immediate" effect, or a "remote and incidental" effect, of advancing or inhibiting religion. See, e.g., Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710, 105 S.Ct. 2914, 2918, 86 L.Ed.2d 557 (1985) (state law requiring employers to give employees' Sabbath off "goes well beyond having an `incidental or remote' effect of advancing religion"); Lynch v. Donnelly, 465 U.S. 668, 683, 104 S.Ct. 1355, 1364, 79 L.Ed.2d 604 (1984) (endorsement of religion effected by creche "indirect, remote, and incidental"); Larkin v. Grendel's Den, Inc., 459 U.S. 116, 125-26, 103 S.Ct. 505, 511, 74 L.Ed.2d 297 (1982) (statute had direct effect of advancing religion by giving churches "veto" over location of bar within 100 yards of church); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. at 783-85, 93 S.Ct. at 2970-71 (use of state *1561 tax dollars for maintenance and repair of non-public school buildings had direct and immediate effect of advancing religion). Thus, if the AFLA is such a statute, and it "directly and immediately," as opposed to "remotely and incidentally," advances religion, this Court must find that it is unconstitutional.
In contrast, where the connection to religion is not apparent on the face of the statute or from the nature of the government act itself, a court must consider whether the intended or actual beneficiary of government favor is "an institution in which religion is so pervasive that a substantial portion of its functions are [sic] subsumed in the religious mission." Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973). If not, a court must go on to consider whether the statute "funds a religious activity in an otherwise substantially secular setting." Id. Thus, if the entities benefitting from AFLA funds are either "pervasively sectarian," or if the funds are not entirely segregated from religious activity, the government plan impermissibly advances religion and is unconstitutional. See, e.g., id. (revenue bonds issued by state for religiously affiliated college constitutional because college not pervasively sectarian and state-supplied money entirely segregable from religious activity).
In sum, if the connection between religion and the challenged government statute or practice is clear from the face of the statute, the Court must determine whether that statute has the "direct and immediate" effect of advancing religion. Where the connection is less obvious, the Court must consider whether the government has benefitted or burdened a pervasively sectarian institution or has funded religious activity.
To be sure, this analysis is put more neatly than the many decisions that form its base. See supra pp. 1560-61. Particularly important for this Court's analysis of the AFLA, those decisions often mention other "sub-criteria" that pertain to both of these broad analytic constructs. First, the AFLA may not allow participants in a government-funded program to "intentionally or inadvertently inculcat[e] particular religious tenets or beliefs." Grand Rapids School District v. Ball, 105 S.Ct. at 3223; see also Stone v. Graham, 449 U.S. 39, 41-43, 101 S.Ct. 192, 193-94, 66 L.Ed.2d 199 (1980) (per curiam); Meek v. Pittenger, 421 U.S. 349, 370-71, 95 S.Ct. 1753, 1765-66, 44 L.Ed.2d 217 (1975); Lemon, 403 U.S. at 619, 91 S.Ct. at 2114. Such government-sponsored indoctrination is "absolutely prohibited" by the Establishment Clause. Grand Rapids, 105 S.Ct. at 3224; see also, Wolman v. Walter, 433 U.S. 229, 250, 97 S.Ct. 2593, 2606, 53 L.Ed.2d 714 (1977); Board of Education v. Allen, 392 U.S. 236, 245, 88 S.Ct. 1923, 1927, 20 L.Ed.2d 1060 (1968).
Nor may AFLA programs, which involve "impressionable youngsters," such as adolescents, "provide a crucial symbolic link between government and religion, thereby enlisting, at least in the eyes of [those] youngsters, the powers of government to the support of the religious denomination" that provides educational services. Grand Rapids, 105 S.Ct. at 3223-34; see also Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977). This symbolic link is impermissible even absent attempts to inculcate religious belief. Government funding of educational services, and the resulting identification of government with religion, violates a core purpose of the Establishment Clause if it conveys a message of government endorsement of religion in general or of a particular religion that benefits from government largesse. Grand Rapids, 105 S.Ct. at 3226; see also, Lynch v. Donnelly, 465 U.S. at 692, 104 S.Ct. at 1369 (O'Connor, J., concurring).
Finally, and perhaps most obviously, AFLA money cannot impermissibly subsidize "the primary religious mission" of the institutions that receive public funds. Grand Rapids, 105 S.Ct. at 3226; see also, Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 657, 100 S.Ct. 840, 848, 63 L.Ed.2d 94 (1980); Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. at 472, 93 S.Ct. at 2814; Committee for Public Education and Religious Liberty v. *1562 Nyquist, 413 U.S. at 774-81, 93 S.Ct. at 2966-69. While indirect aid of a religious mission is not per se impermissible, where the aid amounts to a subsidy of the religious organization, and that subsidy cannot be segregated from religious activity, the courts have declared the subsidy unconstitutional without hesitation. Grand Rapids, 105 S.Ct. at 3225 (state-funded "remedial" and "enrichment" programs for students in sectarian schools and on "state-leased" classrooms in sectarian schools not segregated from religious activity); see also Wolman v. Walter, 433 U.S. at 248-51, 97 S.Ct. at 2605-07 (state funding of unsupervised field trips and instructional material and equipment for sectarian schools not segregated from religious activity); Meek v. Pittenger, 421 U.S. at 366, 95 S.Ct. at 1763 (state funding of instructional material for sectarian schools not segregated from religious activity).
These several related principles are the guideposts for this Court to use in considering whether the AFLA has the primary effect of advancing or inhibiting religion. It is to the AFLA itself that the Court must now turn.
2. On its face, the AFLA has the primary effect of advancing religion because it funds teaching and counseling of adolescents by religious organizations on matters related to religious doctrine.
The Adolescent Family Life Act is based in part on a finding of Congress that the problems of adolescent premarital sexual relations and pregnancy "are best approached through a variety of integrated and essential services provided to adolescents and their families by ... religious ... organizations." 42 U.S.C. § 300z(a)(8)(B). Accordingly, applicants for grants under that program must describe how they
will, as appropriate in the provision of services ... (B) involve religious ... organizations."
42 U.S.C. § 300z-5(a)(21)(B) (emphasis added). The "services" that these organizations must provide are the "necessary services" defined by the Act. See id. at § 300z-1(a)(4). Seven of the seventeen listed services explicitly involve "education" or "counseling." Id. at §§ 300z-1(a)(4)(A), (B), (D), (G), (H), (L) & (M). Two others involve activities intimately related to education and counseling, "outreach services to families of adolescents to discourage sexual relations among unemancipated minors" and "family planning services." Id. at § 300z-1(a)(4)(O) & (P).
Certain conclusions are immediately obvious from a reading of these provisions. First, the statute does not state that "religious organizations" shall receive AFLA grants; indeed, it is conceivable that a grantee could convince a religious organization to participate without remuneration. To intepret the religious organization's involvement in such a light is, however, to ignore both Congressional intent and the import of the statute as a whole.
The legislative history of these provisions shows without doubt that Congress intended religious organizations to participate in these programs as grantees and as paid or unpaid participants in grants awarded to other organizations. See S.Rep. 161, 97th Cong., 1st Sess., 15-16 (1981). Even more important, the statute, taken as a whole, explicitly permits religious organizations to be grantees and envisions a direct role for those organizations in the education and counseling components of AFLA grants. See especially 42 U.S.C. § 300z-5(a)(21)(B). Thus, the Court can only conclude that this clear connection between religious organizations and the federally funded AFLA programs dictates use of the "direct and immediate" effect analysis.
Second, the statute's "direct and immediate" effect of advancing religion is easy to see from the statute's emphasis on "education" and "counseling." Put plain, these functions amount to teaching by grant recipients and subcontractors, including religious organizations, about the harm of premarital sexual relations and the factors supporting a choice of adoption rather than abortion, and these matters are fundamental elements of religious doctrine. Moreover, the AFLA contains no restriction whatsoever against the teaching of religion qua religion or any attempt to use the *1563 education and counseling process to "intentionally or inadvertently" inculcate religious belief.[13]
This may best be shown by a related, and at least equally important, section of the AFLA. That provision reads in full:
Grants or payments may be made only to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion.
Id. at § 300z-10.
It is a fundamental tenet of many religions that premarital sex and abortion are wrong, even sinful. See United States v. Dykema, 666 F.2d 1096, 1104 (7th Cir. 1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2257, 72 L.Ed.2d 861 (1982) (judicial notice taken of religious beliefs); United States v. Kahane, 396 F.Supp. 687, 692 (E.D.N. Y.), aff'd and modified on other grounds, 527 F.2d 492 (2d Cir.1985) (same); see also Memorandum in Support of Plaintiff's Motion for Summary Judgment, at 22. The AFLA does not prohibit these religions from receiving AFLA grants. Thus, by contemplating the provision of aid to organizations affiliated with these religions aid for the purpose of encouraging abstinence and adoption the AFLA contemplates subsidizing a fundamental religious mission of those organizations.
To presume that AFLA counselors from religious organizations can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic. See, e.g., Grand Rapids, 105 S.Ct. at 3225. Even if it were possible, government would tread impermissibly on religious liberty merely by suggesting that religious organizations instruct on doctrinal matters without any conscious or unconscious reference to that doctrine. Moreover, the statutory scheme is fraught with the possibility that religious beliefs might infuse instruction and never be detected by the impressionable and unlearned adolescent to whom the instruction is directed. This possibility alone amounts to an impermissible advancement of religion. Grand Rapids, 105 S.Ct. at 3225. And the danger here is far greater than in Grand Rapids, which involved classroom education, as the AFLA contemplates one-on-one counseling, a situation in which there are few discernable constraints. The possibility that religious organizations will exert pressure on "matters sacred to conscience" is inherent in this counseling, and it renders the program invalid. See McCollum v. Board of Education, 333 U.S. 203, 227, 68 S.Ct. 461, 473, 92 L.Ed. 649 (1948) (Frankfurter, J., concurring); see also Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962).
Similarly, the involvement of religious organizations in counseling and education *1564 on premarital sex, abstinence, and the preferability of adoption to abortion creates a "crucial symbolic link" between government and religion when the counseling is funded by the public fisc. This symbolic link is quite strong where the education is directed at adolescents, especially pregnant adolescents who may be in a delicate and more than ordinarily receptive state of mind. And it is particularly strong where, as here, the subjects taught are, in the hands of a "religious organization," inescapably infused with religious beliefs. See, e.g., Grand Rapids, 105 S.Ct. at 3226; McCollum v. Board of Education, 333 U.S. at 227, 68 S.Ct. at 473; Felton v. Secretary of Education, 739 F.2d 48, 67-68 (2d Cir.1984), aff'd sub nom., Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985).
In short, the AFLA on its face has the primary effect of advancing religion. This alone would force the Court to declare the law constitutionally infirm. But, as noted above, because Establishment Clause case law has not always neatly demarcated a facial challenge from a challenge to a law as applied, this Court will consider whether the AFLA, as applied, has the primary effect of advancing or inhibiting religion.
3. As applied, the AFLA has the primary effect of advancing religion.
The undisputed record before the Court transforms the inherent conflicts between the AFLA and the Constitution into reality.[14] These facts reveal that AFLA grantees and subgrantees have included several organizations with institutional ties to religious denominations and corporate requirements that the organizations abide by and not contradict religious doctrines. In addition, other recipients of AFLA funds, while not explicitly affiliated with a religious denomination, are religiously inspired and dedicated to teaching the dogma that inspired them. While the Court will not engage in an exhaustive recitation of the record, references to representative portions of the record reveal the extent to which the AFLA has in fact "directly and immediately" advanced religion, funded "pervasively sectarian" institutions, or permitted the use of federal tax dollars for education and counseling that amounts to the teaching of religion.
Consider first St. Margaret's Hospital, a self-described "Christian institution" committed to acting "in harmony with the teaching of the Catholic Church." Plaintiffs' Facts, Volume 3, St. Margaret's, ¶ 7. At least one AFLA-funded employee of St. *1565 Margaret's was told that she must follow the directives set forth in "Ethical and Religious Directives of Catholic Facilities." Id. at ¶¶ 7, 10. Similarly, subgrantees of St. Ann's Infant and Maternity Home, which are affiliated with the Catholic Archdiocese of Washington, may not counsel or refer patients for abortions; nor do they encourage any method of birth control not permitted by Catholic doctrine. Id. at Volume 1, St. Ann's, ¶¶ 11, 33. Significantly, these subgrantees are solely responsible for the family planning component of St. Ann's AFLA program, so the church-directed restrictions on counseling are highly pertinent. Id. at ¶ 24. Moreover, the projects are directed by members of religious orders, which base their curriculum on materials with explicitly religious content.[15]Id. at ¶¶ 76-77.
Similarly, among the "purposes" listed in the Articles of Incorporation of Lutheran Family Services is:
To promote the extension of the kingdom of God through compassionate Christian love and to aid the Lutheran Churches in Iowa to fulfill their responsibilities of compassion and love.... To promote the general welfare of children, families and individuals within the realistic resources of the corporation, ... and the teachings of the Lutheran Church.
Id. at Lutheran Family Services, ¶ 3 (emphasis added).
All told, the record reveals that at least ten AFLA grantees or subgrantees were themselves "religious organizations" in the sense that they have explicit corporate ties to a particular religious faith and by-laws or policies that prohibit any deviation from religious doctrine.[16] The religious character of other AFLA grantees or subgrantees is not as explicit but is nonetheless indisputable.
Family of the Americas Foundation ("FAF"), for instance, is an affiliate of "WOOMB-International," an organization without discernable religious ties. But WOOMB's "Aims and Objectives" states that the organization was "inspired by the Encyclical Humane Vitae," id. at FAF ¶ 8, the papal encyclical setting forth Catholic dogma on birth control and abortion. Publications used by, published by, and conferences sponsored by the Family of the Americas Foundation have largely been devoted to explicating the doctrine set forth by the Humane Vitae as well as other religious precepts. Plaintiff's Facts, Volume 2, FAF, ¶¶ 36-51, 66-75, 85, 88-96, 103, 109. Indeed, FAF's Executive Director has stated that she "reports" to the Pope on behalf of the organization. Id. at ¶ 13. Other documents buttress this connection between FAF and the Catholic Church. Id. at ¶¶ 16-17.
These explicit or implicit corporate policies might give less pause with respect to a federal program that did not implicate religious tenets. But the situation here is quite different. Because these religious organizations use federal funds to educate or counsel on matters inseparable from religious dogma, the constitutional implications of the grants are clear and clearly troubling: the inescapable conclusion is that federal funds have been used by pervasively sectarian institutions to teach matters inherently tied to religion.
The record demonstrates that some grantees have included explicitly religious materials, or a curriculum that indicates an intent to teach theological and secular views on sexual conduct, in their HHS-approved grant proposals. E.g., Plaintiff's Facts, Volume 2, Catholic Charities of the Diocese of Arlington, ¶ 17; Id., Search Institute, *1566 ¶¶ 24, 32; Id. at Volume 3, St. Margaret's, ¶¶ 29, 86-90, 113. One such application, which was funded for one year, included a program designed, inter alia, "to communicate the Catholic diocese, Mormon (Church of Jesus Christ of Latter Day Saints) and Young Buddhist Association's approaches to sex education." Id., Maternal and Child Health Department of Health [sic] ¶ 2.
Nor do the facts suggest that the programs in operation cured the First Amendment problems evident from these approved grant applications. At least one grantee actually included "spiritual counseling" in its AFLA program. Id., SUMA, ¶ 16. Other AFLA programs used curricula with explicitly religious materials. E.g., id., St. Margaret's ¶¶ 86-90; Camden County ¶¶ 8, 15. In addition, a very large number of AFLA programs took place on sites adorned with religious symbolsprecisely the "crucial symbolic link" between religion and government that Establishment Clause jurisprudence has cautioned against, particularly where youngsters are involved. E.g., id. at Volume 2, Catholic Charities of Arlington, ¶¶ 43-45, 49; CASI, ¶¶ 22-23, 28-30; Volume 3, St. Margaret's, ¶ 24; Lyon County, ¶¶ 23-24.[17]
Similarly, the record reveals that some grantees attempted to evade restrictions they perceived on AFLA-funded religious teaching by establishing programs in which an AFLA-funded staffer's presentations would be immediately followed, in the same room and in the staffer's presence, by a program presented by a member of a religious order and dedicated to presentation of religious views on the subject covered by the AFLA staffer. E.g., id. at Volume 2, Catholic Charities of the Diocese of Arlington, ¶¶ 102-119, 132-40. This transparent attempt to isolate the sectarian from the secular is unconvincing; indeed, the joint presence of denominational personnel and federally funded employees reinforces the impermissible symbolic tie, if not an actual tie, between government and religion. See, e.g., Grand Rapids, 105 S.Ct. at 3226; Larkin v. Grendel's Den, Inc., 459 U.S. at 125-26, 103 S.Ct. at 511.
Equally disturbing, the overwhelming number of comments shows that program participants believed that these federally funded programs were also sponsored by the religious denomination. E.g., Plaintiff's Facts, Volume 3, Lutheran Family Services, ¶ 21; Northwest Louisiana Adolescent Family Life Project, ¶¶ 6-8. This appearance of joint action provides a significant symbolic benefit to religion altogether at odds with the First Amendment's demand of scrupulous neutrality between religion and non-religion. E.g., Larkin, 459 U.S. at 125-26, 103 S.Ct. at 511; Everson v. Board of Education, 330 U.S. 1, 8-13, 67 S.Ct. 504, 507-10, 91 L.Ed. 711 (1947).
In sum, the facts demonstrate beyond peradventure the effect of the Adolescent Family Life Act programs. The Act creates an explicit connection between a state-sponsored program, a religiously identified organization, and either a religious-inspired curriculum or a classroom replete with religious symbols. See supra pp. 1563-65. Such a relationship inescapably amounts to the "significant symbolic benefit to religion" that government may not bestow. Larkin, 459 U.S. at 125-26, 103 S.Ct. at 511. Moreover, to the extent that AFLA grantees were religious organizations that used AFLA grants to "educate" or "counsel" on the basis of a religious or religiously inspired curriculum, see supra pp. 1565-66, the funds went to sectarian institutions for purposes indistinguishable from their religious aims.
In short, defendant has approved AFLA grants and distributed AFLA funds in a manner that advances religion, regardless *1567 of whether one looks for a "direct and immediate effect" of advancing religion, a benefit to a "pervasively sectarian" institution, or the use of tax dollars to "teach" religion. Accordingly, the Court has no choice but to find that the Adolescent Family Life Act, on its face and as applied, has the effect of impermissibly advancing religion and thereby violates the First Amendment of the Constitution.
C. Because Organizations Funded by the AFLA Have a Religious Character and Purpose, and the AFLA Programs Concentrate on Counseling and Education, the Degree of Government Monitoring Necessary to Prevent Grantees From Advancing Religion Would Necessarily Rise to the Level of Excessive Entanglement.
Although the AFLA's primary effect of advancing religion renders it unconstitutional both on its face and as applied, the Court will also consider the statute's proclivity for fostering excessive entanglement between church and state. On that ground alone, the AFLA is unconstitutional on its face.
To determine whether a statute fosters excessive entanglement, the Court must examine three factors: 1) the character and purpose of the institutions benefitted; 2) the nature of the aid; and 3) the nature of the relationship between the governmental and religious organization. See Lemon v. Kurtzman, 403 U.S. 602, 614-15, 622, 91 S.Ct. 2105, 2112, 2115, 29 L.Ed.2d 745 (1971). Each of these factors is indicative, but not dispositive, of the relationship between government and religion. See Lemon, 403 U.S. at 614-15, 622, 91 S.Ct. at 2112, 2115. Because the entanglement analysis looks at this relationship as a whole, no one factor is controlling. See Tilton v. Richardson, 403 U.S. 672, 688, 91 S.Ct. 2091, 2100, 29 L.Ed.2d 790 (1971). Thus, the Court will consider each of these factors in order to examine the AFLA's potential for excessive entanglement between government and religion.
Looking only at the AFLA's definition of "eligible grant recipient," which is a "public or nonprofit private organization or agency," 42 U.S.C. § 300z-1(a)(3), that section of the AFLA, standing alone, does not seem to offend the Establishment Clause. Section 300z-5(a)(21)(B) of the AFLA, however, further defines what types of institutions the AFLA benefits by explicitly requiring applicants to describe how they will involve "religious organizations" in their programs. 42 U.S.C. § 300z-5(a)(21)(B) (emphasis added). Moreover, it is not disputed that a number of religious organizations are not only involved in AFLA programs but are grant recipients. See supra pp. 1562-67. Thus, the AFLA permits the involvement of religious organizations and has, in fact, involved such organizations. See id.
The character and purpose of "religious organizations" is self-evident. The definition of "religious organizations" so clearly means organizations with a religious character and purpose that "one would necessarily need to consult a lawyer to effectively misconstrue it." Logan v. United States, 518 F.2d 143, 152 (6th Cir. 1975). Even if the Court were to go beyond the face of the statute and examine the organizations that have in fact received AFLA funding, the Court would have to conclude, as would be expected, that the "religious organizations" that have received AFLA funding have a religious character and purpose. See supra pp. 1562-67. Because these organizations have a religious character and purpose, the risk that AFLA funds will be used to transmit religious doctrine can be overcome only by government monitoring so continuous that it rises to the level of excessive entanglement. See Lemon, 403 U.S. at 615-16, 91 S.Ct. at 2112-13.
The AFLA provides monetary grants that are used largely for broadly described counseling-type services. See 42 U.S.C. § 300z-1(a)(4); supra p. 1553. Such services "have a substantially different ideological character" from "secular, neutral, or nonideological services, facilities, or materials." Lemon, 403 U.S. at 616-17, 91 S.Ct. at 2113. The opportunity and potential for furthering religion by giving religious organizations money to provide counseling-related services is great, particularly *1568 since this counseling involves teenagers. Cf. Lemon, 403 U.S. at 617, 91 S.Ct. at 2113. As the Supreme Court noted in Lemon:
A textbook's content is ascertainable, but a [counselor's] handling of a subject is not. We cannot ignore the danger that a [counselor] under religious control and discipline poses to the separation of the religious from the purely secular. ... The conflict of the functions inheres in the situation.
403 U.S. at 617, 91 S.Ct. at 2113. Thus, considering the AFLA as a whole, the nature of the aid creates the danger that AFLA funds flowing to religious organizations will inescapably advance religion absent continual government monitoring, which the Establishment Clause forbids.
The final factor for the Court to consider in determining whether the AFLA fosters an excessive entanglement between government and religion is the nature of the relationship between the government and the AFLA-funded religious organization. See Lemon, 403 U.S. at 615, 91 S.Ct. at 2112. Because AFLA funds are used largely for counseling, to ensure that religion is not advanced would require extensive and continuous monitoring and direct oversight of every counseling session.
While extensive and continuous monitoring might prevent AFLA grantees from advancing religion, such monitoring would be impermissible in this case. See Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985); Lemon, 403 U.S. at 619, 91 S.Ct. at 2114. Wherever state-funded teaching by religious organizations is involved,
a comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that ... the First Amendment ... is respected. Unlike a book, [however,] a [counselor] cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylatic contacts will involve excessive and enduring entanglement between state and church.
E.g., Lemon, 403 U.S. at 619, 91 S.Ct. at 2114; Aguilar, 473 U.S. at 410, 105 S.Ct. at 3237; Meek v. Pittenger, 421 U.S. 349, 352-53, 95 S.Ct. 1753, 1756-57, 44 L.Ed.2d 217 (1975); Tilton, 403 U.S. at 672, 91 S.Ct. at 2091; Hunt v. McNair, 413 U.S. 734, 746-49, 93 S.Ct. 2868, 2875-77, 37 L.Ed.2d 923 (1973).
By virtue of the foregoing, it is impossible to comprehend entanglement more extensive and continuous than that necessitated by the AFLA. Therefore, the Court can only conclude that such entanglement would be excessive.
In sum, a consideration of the institutions benefitted, the nature of the aid, and the nature of the relationship between government and AFLA-funded religious organizations forces the Court to conclude that the AFLA, on its face, fosters excessive entanglement between government and religion. The AFLA funds counseling-type services whose specific content may be determined by the religious organization itself. Counseling inherently involves teaching and, therefore, implicates the Court's concerns about the inability to segregate the religious from the secular without an impermissible entanglement between church and state. Indeed, because counseling is often done one-on-one, it is even more susceptible than teaching to the intentional or inadvertant advancement of religion. Although continual monitoring might make it appear that religion is not advanced, such monitoring would surely rise to the level of excessive entanglement between government and religion.
Moreover, AFLA grantees can be and are organized with express ties to religion. The religious character and purpose of the organizations funded makes them "a powerful vehicle for transmitting" religion. Lemon, 403 U.S. at 616, 91 S.Ct. at 2113. This potential for inculcating religious doctrine in the provision of counseling services is enhanced by the impressionable age of the adolescents to be helped by AFLA programs. See id. Therefore, the Court finds that the AFLA fosters excessive entanglement that is impermissible under the Constitution and is detrimental to government and religion.
*1569 D. Because the AFLA Funds Religious Organizations to Provide Services Intrinsically Related to Fundamental Beliefs Upon Which Religions and Politicians Strongly Disagree, the AFLA Is Likely to Incite Political Division.
Although political divisiveness has never been the only ground for holding a statute unconstitutional, a statute that creates political division along religious lines is more likely to offend the Establishment Clause than one that does not. See, e.g., Lynch, 465 U.S. at 689, 104 S.Ct. at 1367 (O'Connor, J., concurring); Meek, 421 U.S. at 370-73, 95 S.Ct. at 1765-67; Lemon, 403 U.S. at 622-24, 91 S.Ct. at 2115-16; Nyquist, 413 U.S. at 796-99, 93 S.Ct. at 2977-78. The AFLA addresses very sensitive problems on which religions have important, even central, doctrines. For instance, the AFLA prohibits mention of abortion and encourages abstinence from premarital sex. The AFLA permits religious organizations to use government funds to provide care and counseling services related to these sensitive issues upon which religions' fundamental beliefs differ. See supra p. 1563. Such differences on fundamental beliefs tend to incite political division along religious lines. "[M]any people confronted with issues of this kind will find their votes aligned with their faith." Lemon, 403 U.S. at 622, 91 S.Ct. at 2115. Political division along religious lines was one of the evils against which the Establishment Clause was intended to protect. Id. Moreover, because AFLA funds are appropriated on an annual basis, the political fragmentation and divisiveness caused by the AFLA will be recurring and intensified. See id. at 623, 91 S.Ct. at 2116. Although the political division caused by the AFLA may not be sufficient to invalidate it, it is indicative of the problems caused when religion is involved in programs of this nature.
VII. CONCLUSION
This Court is certain that the Adolescent Family Life Act emanates from well-founded and benign intentions. It is equally convinced that much of the AFLA has a laudable purpose. But the purposes of the statute are not the only issue before the Court. The critical issue is whether the AFLA, and the manner in which it is implemented by HHS, violates the Establishment Clause of the First Amendment.
The Establishment Clause, in the words of Thomas Jefferson, erects a "wall of separation" between church and state. See Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). This wall exists not specifically to bar programs such as the AFLA but for a larger purpose: to protect the sanctity and freedom of all religions, regardless of their beliefs and practices. Although cooperation between government and religion to further mutually agreeable objectives may seem harmless, such cooperation may take on an intrusive and unwelcome color when conflicts arise between government directives and religious beliefs. History shows the necessity of protecting religion from government.
There will always be some who see no harm in utilizing the Executive branch to monitor religious organizations and some whose own religious beliefs are more likely than not to coincide with the beliefs given a governmental imprimatur. But there will always be others in our pluralistic society whose religious beliefs are out of harmony with the government-approved view and who may not be able to hold fast to their beliefs in the face of government involvement. For, as the Supreme Court noted, "when the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962). Equally plain, a society is only truly free when individuals are left free from direct or indirect pressure to abandon their own cherished religious beliefs for whatever set of beliefs currently holds government favor. As a result, it is essential that we scrupulously adhere to Jefferson's vision and protect religion from government intrusion, whether the intrusion *1570 is obviously malignant or seemingly benign.
Upon examination of the language of the Adolescent Family Life Act, the Court finds that on its face the AFLA has the primary effect of advancing religion and fosters excessive entanglement between government and religion. Moreover, the uncontroverted facts show, without a doubt, that as applied the AFLA has the primary effect of advancing religion. Accordingly, this Court has no choice but to find the AFLA unconstitutional on its face and as applied.
By virtue of the foregoing, the Court will issue an Order, of even date herewith, declaring that the Adolescent Family Life Act is unconstitutional both on its face and as applied, at least insofar as the statute involves "religious organizations" in AFLA programs. As a result of this determination, the Court will in that Order enjoin all funding of "religious organizations" under the AFLA. In light of the Court's decision, the Court has also ordered the parties to provide the Court with additional briefing and guidance as to whether, in light of Alaska Airlines, Inc. v. Brock, ___ U.S. ___, 107 S.Ct. 1476, 94 L.Ed.2d ___ (Mar. 25, 1987), the constitutionally infirm sections of the Act pertaining to "religious organizations" are severable from the Act as a whole. Upon receipt of those briefs, the Court will determine whether a hearing is necessary on the issue of severability and whether there are remaining issues relating to remedies for the Court to consider.
ORDER
In accordance with the Opinion in the above-captioned case, issued of even date herewith, and for the reasons set forth therein, it is this 15th day of April, 1987,
ORDERED that plaintiffs' motion for a declaratory judgment that the Adolescent Family Life Act is unconstitutional on its face and as applied only insofar as religious organizations are involved in carrying out the programs and purposes of the Act, shall be, and hereby is, granted; and, it is
FURTHER ORDERED that plaintiffs' motion for an injunction prohibiting all funding be, and hereby is, granted only as it pertains to "religious organizations" under the Adolescent Family Life Act; and, it is
FURTHER ORDERED that defendant's and defendant-intervenors' motions shall be, and hereby are, denied consistent with this Order and the Opinion of even date herewith; and, it is
FURTHER ORDERED that the parties shall submit additional briefs addressing only whether the constitutionally infirm language pertaining to the use of "religious organizations" under the Adolescent Family Life Act is severable in light of Alaska Airlines, Inv. v. Brock, ___ U.S. ___, 107 S.Ct. 1476, 94 L.Ed.2d ___ (Mar. 25, 1987) and cases cited therein to the effect that absent a severability (separable) clause, apparently not present here, there is no presumption against severability, as well as the rule of law that
"[A] court should refrain from invalidating more of the statute than is necessary.... [`W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act insofar as it is valid.'" Regan v. Time, Inc., 468 U.S. 641, 652 [104 S.Ct. 3262, 3268, 82 L.Ed.2d 487] (1984) (plurality opinion), quoting El Paso & Northeastern R. Co. v. Gutierrez, 215 U.S. 87, 96 [30 S.Ct. 21, 24, 54 L.Ed. 106] (1909).
and the principle of law that
... "`Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'" Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (per curiam), quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932). Accord: Regan v. Time, Inc., 468 U.S., 641, at 653, 104 S.Ct. at 3268; INS v. Chadha, 462 U.S., 919, at *1571 931-932, 103 S.Ct. at 2773-74; United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968). Id. at ___ U.S. at ___, 107 S.Ct. at 1480; and, it is
FURTHER ORDERED that any such briefs must be submitted to the Clerk of this Court within thirty business days of the date of this Order and any replies thereto shall be due within ten business days after such briefs are filed; and, it is
FURTHER ORDERED that, upon receipt of these briefs, the Clerk of the Court shall notify the parties if oral argument on the issue of severability is required.
NOTES
[1] The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I.
[2] Notwithstanding anything to the contrary herein, and with knowledge of plaintiffs' vigorous arguments in favor of a declaration that the entire AFLA is unconstitutional, the Court today only decides that the AFLA is unconstitutional insofar as it involves religious organizations in carrying out the purposes of the Act and declares that the involvement of religious organizations as AFLA grantees or subgrantees is unconstitutional. The Court specifically reserves judgment as to whether the plaintiffs are correct in arguing that the constitutionally infirm language is not severable, pending further briefing in view of Alaska Airlines v. Brock, ___ U.S. ___, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987).
[3] The Court notes that it does not decide any issue relating to abortion. The only issue decided by the Court is whether the AFLA violates the Establishment Clause of the First Amendment. And the Court holds that the AFLA violates the Establishment Clause solely because the statute impermissibly involves religious organizations in the provision of education and counseling services provided under the Act.
[4] The Court is aware that Flast predates more recent Supreme Court decisions that have in part changed the law of standing. Indeed, the Court discusses at length the most important of these more recent opinions, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). See infra pp. 1555-56. But neither Valley Forge nor any other decision has expressly overruled Flast, which continues to have vitality at least insofar as subsequent decisions have not expressly contradicted its holding.
[5] The taxing and spending clause provides: "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States...." U.S. Const. art. I, § 8.
[6] The property clause states: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...." U.S. Const. art. IV, § 3.
[7] Since the "case or controversy" requirement of Article III is satisfied by the standing of the federal taxpayer plaintiffs, the Court need not decide whether the clergy and the American Jewish Congress have standing. See, e.g., Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 562, & n. 9, 50 L.Ed.2d 450 (1977); Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976) (per curiam); ACLU v. City of St. Charles, 794 F.2d 265, 269 (7th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986).
[8] Even if strict scrutiny were the appropriate test, the Court's holding would likely be no different. Under strict scrutiny, a law is invalid unless it serves a compelling governmental interest and is narrowly tailored to further that interest a test that is, if anything, more stringent than the tripartite Lemon test. See Larson, 456 U.S. at 246-47, 102 S.Ct. at 1684-85.
[9] However, as explained in section VI, subsections B and C, see infra pp. 1560-68, the statute is unconstitutional, despite its valid purposes, because of its primary effect of advancing religion and its excessive entanglement of government and religion.
[10] Congress found that:
(1) in 1978, an estimated one million one hundred thousand teenagers became pregnant; more than five hundred thousand teenagers carried their babies to term, and over one-half of the babies born to such teenagers were born out of wedlock;
(2) adolescents aged seventeen and younger accounted for more than one-half of the out of wedlock births to teenagers;
(3) in a high proportion of cases, the pregnant adolescent is herself the product of an unmarried parenthood during adolescence and is continuing the pattern in her own lifestyle;
(4) it is estimated that approximately 80 per centum of unmarried teenagers who carry their pregnancies to term live with their families before and during their pregnancy and remain with their families after the birth of the child;
(5) pregnancy and childbirth among unmarried adolescents, particularly young adolescents, often results in severe adverse health, social and economic consequences, including: a higher percentage of pregnancy and childbirth complications; a higher incidence of low birth weight babies; a higher frequency of developmental disabilities; higher infant mortality and morbidity; a decreased likelihood of completing schooling; a greater likelihood that an adolescent marriage will end in divorce; and higher risks of unemployment and welfare dependency;
....
(7) an unmarried adolescent who becomes pregnant once is likely to experience recurrent pregnancies and childbearing, with increased risks;
....
(8)(A) the problems of adolescent premarital sexual relations, pregnancy and parenthood are multiple and complex and are frequently associated with or are a cause of other troublesome situations in the family....
42 U.S.C. § 300z(a).
[11] The plaintiffs rely on Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1981), to support their argument that an "avowed secular purpose" is not sufficient to avoid conflict with the First Amendment if it is merely a pretext for a purpose that is actually religious. Plaintiffs' legal theory is correct, but it is not applicable to the facts of this case. The "secular" purpose declared pretextual in Stone was a self-serving notation, in small print at the bottom of copies of the Ten Commandments, that the Ten Commandments have a secular application. See id. at 41, 101 S.Ct. at 193. The AFLA is clearly devoid of the religious overtones associated with the Ten Commandments.
Amici Curiae argue that the AFLA does not have a valid secular purpose because it involves religious organizations in a program whose objectives could equally be met without those groups. To support this argument, amici rely on Larkin v. Grendel's Den, Inc., 459 U.S. 116, 123-24, 103 S.Ct. 505, 510, 74 L.Ed.2d 297 (1982). See Amici Curiae Memorandum in Support of Plaintiffs' Motion for Summary Judgment at 5 (Feb. 25, 1985). Larkin, however, does not support this contention. Although in Larkin the Supreme Court noted that the statute's secular objectives could be accomplished by other means, the secular purpose of that statute was not challenged. See Larkin, 459 U.S. at 119, 124, 103 S.Ct. at 510. Indeed, the Court stated that "[t]here can be little doubt that this [statute] embraces valid secular purposes." Id. at 124, 103 S.Ct. at 510. Thus, Larkin does not affect the Court's decision that the AFLA has a valid secular purpose.
[12] The plaintiffs state that "there is no doubt that religion can play an important role in advancing secular values of mental health, transmitting ethical values, thoughtful decision making about sexual behavior, and decreasing teenage pregnancy rates...." Plaintiffs' Motion for Summary Judgment at 33. As the Senate Committee stated: "Charitable organizations with religious affiliations historically have provided social services with the support of communities and without controversy." S.Rep. No. 496, 98th Cong., 2d Sess. 10 (1984).
[13] This absence of any statutory prohibition on inculcation of religious belief puts the AFLA in a class by itself. The Court knows of no other statutory scheme that expressly contemplates religious involvement in a government-funded program and does not attempt to segregate inculcation of religious belief from public financial support. Nor can the Court assume that such a condition exists: "where Congress intends to impose a condition on the grant of federal funds, `it must do so unambiguously.'" School Board of Nassau County v. Arline, ___ U.S. ___, 107 S.Ct. 1123, 1132, 94 L.Ed.2d 307 (1987) (Rehnquist, C.J., dissenting) (quoting Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981)). While the Court is aware that HHS's "Notice of Grant Award" specifies that grants may not be used to "teach or promote religion," this is neither a statutory prohibition nor an official administrative regulation. It is merely an unpublished administrative warning that was written at agency discretion and can be revoked by agency fiat. No case permits a Court to find that such a discretionary statement adequately protects against sectarian use of public funds. The Court is also aware that defendant claims that HHS officials verbally advised grantees that they may not use AFLA funds to teach religion. Even if true, the fact that HHS warnings may undo some of the statute's damage does not solve the problem with the statute itself, and it is with the statute alone that a facial inquiry is concerned.
[14] To support their summary judgment motion, plaintiffs prepared a three-volume, four-hundred page "Statement of Undisputed Material Facts" that quoted extensively from the exceptionally large record in this case and cited to the exact place in the record where each quotation could be found. Such a statement is precisely what our local rules and the more generally applicable federal rules of summary judgment law require. Defendant's response to plaintiffs' submission was also lengthy, but the difference in content was significant. Most of defendant's "disputes" of plaintiffs' facts were unsupported disagreements, complaints that a quote had been taken out of context, or the word "dispute" with a reference to the page in the multi-volume record at which the Court could look up an undescribed disagreement and decide for itself whether the effort was worthwhile. Defendant also "controverts" some of plaintiffs' facts with "declarations to be supplied later." The Court knows of no such later-filed declarations, and the docket sheets retained by the Clerk of the Court do not show that these declarations were supplied. It should go without saying that such a "response" does not comport with the command of Local Rule 108(h), formerly Local Rule 1-9(h), which states that an opposition to a summary judgment motion "shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated...." (emphasis added). The Rule adds that a fact is to be taken as admitted unless properly controverted. The Court has done precisely that. It regards as "disputed" all facts pointed to by plaintiff and disputed on the basis of identified evidence in the record that actually makes the point claimed by defendant. As Rule 108(h) requires, the Court takes as uncontroverted all other facts pointed to by plaintiffs. See, e.g., Catrett v. Johns-Manville Sales Corp., 756 F.2d 181, 190 (D.C.Cir.1985) (Bork, J., dissenting) ("So long as the plaintiff has even one iota of weak inferential evidence, defendants will have the burden of affirmatively attacking that evidence to prove that there is no factual dispute suitable for trial."), rev'd sub nom. on other grounds Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
[15] The Court understands that there is a dispute as to whether this religious material was taught, but there is no dispute that the cirriculum that was taught was at least based on these materials, which spoke in terms of Church teachings on sexual matters and contained several references to God. See Volume 1, St. Ann's, ¶¶ 76-77.
[16] These organizations are: (Plaintiff's Facts, Volume 1): St. Ann's Infant and Maternity Home; Center for Life of Providence Hospital, Washington, D.C.; Catholic Charities of Washington, D.C.; (Plaintiff's Facts, Volume 2): Family Life Bureau of the Diocese of St. Cloud, Mn.; Catholic Charities of the Diocese of Arlington, Va.; Catholic Family Services of Amarillo, Tx.; Catholic Family Services of Wayne County, Mich; (Plaintiff's Facts, Volume 3:) St. Margaret's Hospital; Catholic Social Services of SW Ohio; Lutheran Family Services.
[17] Throughout its "Statements" in response to plaintiffs' Rule 108(h) submissions, defendant terms "irrelevant" the fact that AFLA programs were held in rooms full of religious symbols. Defendant is quite wrong: nothing could be clearer than the Establishment Clause's prohibition against locating publicly funded classes in rooms with religious symbols and other religious decorations. See, e.g., Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985); Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365177/ | 142 Ga. App. 565 (1977)
236 S.E.2d 549
JACKSON
v.
THE STATE.
53973.
Court of Appeals of Georgia.
Submitted June 6, 1977.
Decided June 15, 1977.
*567 Beauchamp & Hedrick, William H. Hedrick, for appellant.
William S. Lee, District Attorney, Hobart M. Hind, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
1. "`If the sentence of the court is within the limits prescribed by law for the offense charged, this court has no jurisdiction to review the sentence or the court's refusal to reduce it.'" Anderson v. State, 129 Ga. App. 1 (198 SE2d 329).
2. The remaining enumerations of error go only to *566 the general grounds of the motion for new trial. The evidence is uncontested that the victim was shot at close range by her husband, the bullet lodging in her spine and rendering her a paraplegic. She was approximately five months pregnant at the time, and delivery of the dead fetus was subsequently induced. The medical witness was unwilling to state whether the fetus was alive at the time of the shot or whether it was dead on the following day. The jury returned a verdict on the two-count indictment of guilty of aggravated battery on the mother, and not guilty of felony murder of the fetus.
The only defense urged was that of accident. The defendant testified that he had gotten the pistol to give to a companion, that it was cocked and went off. The state's evidence indicated a heated quarrel had developed between the defendant and his wife and another girl whom he had struck just before producing the gun. The circumstances do not demand a finding that the shot was accidentally fired; accordingly the jury was authorized to disbelieve this explanation and find the defendant guilty of aggravated battery. "A person commits aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, or by rendering a member of his body useless..." The trior of fact may accept a portion of the testimony of a witness and reject another portion. State v. Smith, 134 Ga. App. 602 (215 SE2d 345). And it may consider the credibility of the witness as affected by his interest in the case. Harp v. State, 136 Ga. App. 897 (222 SE2d 623). The state's case presented evidence that the defendant had struck another woman and was about to strike his wife when a third person said not to hit her because she was pregnant, and that he had then taken out a pistol and discharged it at her. He did not deny these facts but contended that the pistol was cocked and that it was discharged accidentally while he was holding it. This created a jury question as to the intent with which the defendant acted, and a guilty verdict was authorized.
Judgment affirmed. Webb and Marshall, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365142/ | 239 Ga. 195 (1977)
236 S.E.2d 491
HOLLOWAY
v.
GIDDENS.
32203.
Supreme Court of Georgia.
Argued April 13, 1977.
Decided June 8, 1977.
*198 Katz, Paller & Land, G. Roger Land, John E. Robinson, for appellant.
Smith & Jones, William E. Smith, for appellee.
HALL, Justice.
Holloway, the proposed buyer, sought specific performance of his alleged contract with Giddens for the sale of land. The trial court entered summary judgment for Giddens, and Holloway appeals.
It is generally true that on appeal the burden lies on appellant to show error; but where summary judgment has been granted the record must be adequate to show affirmatively that no substantial question of fact remained, or else the entry of the judgment will be reversed on appeal. 6 Moore's Federal Practice, 56-1554 et seq. (1976).
The order appealed from stated that it was based upon (1) the pleadings and exhibits, (2) the testimony of Holloway given under oath, and (3) the depositions of the parties given in another case. Items numbered 2 and 3 were not a part of the record before us, and we requested the clerk of this court to enquire of the court below whether these items existed in the record there. See Code Ann. § 6-809 (b); Interstate Financial Corp. v. Appel, 233 Ga. 649 (212 SE2d 821) (1975). They did, and the record has now been supplemented with these items.
The record shows that Holloway planned to purchase land from Giddens. The sales contract was dated April 16, *196 1975, and called for closing on or before April 25, 1975. It said time was of the essence. It is undisputed that closing never occurred. Holloway alleges that a May 12, 1975 oral amendment extended the closing to and through May 12, 1975, and that a written amendment dated the same day governed their splitting certain profits on corn and peanuts. After repeated failures of the parties to close on various subsequent days, Giddens returned Holloway's $5,000 earnest money, which Holloway then spent.
Giddens denied that the closing date was extended and moved for summary judgment. The trial court found (1) the earnest money check had been returned and cashed by Holloway, constituting a rescission; (2) the contract was not extended by a writing supported by consideration and therefore terminated on April 25, 1975, before Holloway was able to close; (3) the contract language that "the $5,000 earnest money is paid subject purchaser getti [sic] financing from Southwest Production Credit Association" is unenforceable for vagueness.
It is apparent from reading the record that both Holloway and Giddens are accustomed to handling their business affairs in an extremely off-hand, verbal-agreement manner. Such casualness necessarily works to the disadvantage of the one who later seeks specific performance of an "agreement" which cannot then be established.
Without reference to what the status of this on-again, off-again contract might have been prior to Giddens' giving Holloway a refund of his $5,000 earnest money, the fact remains that when the refund check came Holloway cashed it right away: "I took this check and cashed it as soon as I could get my hands on it, about 12 days after Harvey refused to close that contract because he had already got me for 50 [thousand] and he sho' wasn't going to get me for no more." Holloway now contends that he cashed the check to mitigate damages, but there is absolutely nothing in the record even to suggest this as a motive. The $50,000 that Giddens had allegedly "got" him for, pertained to a wholly separate deal on another piece of land. The record shows no damages to be mitigated on this deal, nor any intent to mitigate them.
The circumstances surrounding the sending and *197 cashing of the refund check are adequate to show that both parties intended to walk away from this contract, which was thereby rescinded. Holloway cannot be awarded specific performance of this contract assuming without deciding that it was still in existence when his acts showed that he failed to affirm its continuing existence. Allen Housemovers v. Allen, 135 Ga. App. 837 (219 SE2d 489) (1975). Cf. Kirk v. First Ga. Invest. Corp., 239 Ga. 171 (1977).
"`Parties may by mutual consent abandon an existing contract between them so as to make it not thereafter binding and the contract may be rescinded by conduct as well as by words. Hennessy v. Woodruff, 210 Ga. 742 (82 SE2d 859); Shoup v. Elliott, 192 Ga. 858, 861 (16 SE2d 857).' Dowling v. Southwell, 95 Ga. App. 29 (1) (96 SE2d 903). Seaboard C. L. R. Co. v. Metzger, 126 Ga. App. 178 (1) (190 SE2d 156) (1972).
"This court in Crutchfield v. Dailey, 98 Ga. 462, 463 (25 S.E. 526), quoted with approval the following statement from 21 Am. & Eng. Enc. of Law: `While a valid executed contract cannot be discharged by a simple agreement, but only by performance, by release under seal, or by an accord and satisfaction, one that is executory, that is, one that has not been acted upon, may be discharged by an agreement of the parties that it shall no longer bind either of them. The consideration on the part of each is the other's renunciation.' In Pope v. Thompson, 157 Ga. 891 (122 S.E. 604), it was held that an executory contract for the sale of land, evidenced in writing, may be rescinded by mutual consent of the parties, either by novation or simple agreement, and that such agreement may be in parol as well as in writing." Loadman v. Davis, 210 Ga. 520, 522 (81 SE2d 465) (1954).
Enumeration of error one is without merit. It seeks to raise an objection to evidence which the record does not show to have been raised in the trial court. The remaining three enumerations have been decided by the discussion above.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365144/ | 236 S.E.2d 236 (1977)
Delmer R. WORKMAN
v.
WORKMEN'S COMPENSATION COMMISSIONER and Armco Steel Corporation.
No. 13874.
Supreme Court of Appeals of West Virginia.
July 15, 1977.
*237 Jack L. Hickok, Charleston, for appellant.
Shaffer, Theibert & Ikner, Gordon T. Ikner, Jr., Madison, for appellees.
McGRAW, Justice:
Delmer R. Workman, a workmen's compensation claimant, appeals from the final order of the Workmen's Compensation Appeal Board, dated January 27, 1977, which affirmed the March 18, 1976, order of the Workmen's Compensation Commissioner holding that no permanent partial disability resulted to claimant from his coal mine injury on November 4, 1968. While employed as a roof bolt machine operator by Armco Steel Corporation, a piece of rock fell from the mine rib, striking the right side of his head and causing a 5-inch laceration. His application for workmen's compensation was filed December 5, 1968. The employer's report on the accident was filed December 12, 1968. Claimant was awarded total temporary disability compensation for 67 2/7 weeks. His claim was closed as of July 23, 1970. By the Commissioner's letter of November 13, 1970, he was denied a permanent partial disability compensation award. Upon claimant's protest of the ruling, his claim was set for hearing some seventeen times during the next five years before being submitted for decision on the record on February 18, 1976. At several of the set hearings claimant failed to appear, either in person or by counsel. The Appeal Board's order of January 27, 1977, affirming the Commissioner's ruling of March 18, 1976, denying a permanent partial disability compensation award, is now before the Court for review.
Counsel for the appellant and the appellees state the issues in differing language, but the two emerging issues for determinative decision and disposition are (1) whether the Appeal Board's final decision, on the record, is correct or clearly wrong, and (2) whether claimant's drug dependency, addiction to Percodan, has resulted from authorized treatment for a compensable injury and has become a compensable disability under provisions of the workmen's compensation law.
Claimant's attorney reasons that the "Appeal Board was clearly wrong to reject uncontroverted evidence showing the direct *238 relationship between the compensable injury and the petitioner's drug dependency."
Counsel for the employer reasons that the "Workmen's Compensation Commissioner considered all of the evidence and found no disability related to drug addiction. The Appeal Board considered the evidence and wholly independent of the Commissioner's findings, and found no drug addiction." He says the "Commissioner and the Appeal Board were absolutely correct in their factual determinations ... and the Court is ... obliged not to disturb these orders."
Some basic rules and principles may be restated. Workmen's compensation statutes are remedial and are to be liberally construed in favor of claimants for workmen's compensation benefits. In the adjudication of such claims, evidence is to be construed liberally in favor of the claimant. The Workmen's Compensation Appeal Board, a statutory administrative agency, is a fact finding body. Its findings and rulings on questions of fact will not be reversed by this Court unless clearly wrong. Johnson v. State Workmen's Compensation Commissioner, W.Va., 186 S.E.2d 771 (1972). W.Va. Code, 23-5-4a.
Claimant was injured in a mine accident on November 4, 1968, and was awarded temporary total compensation benefits for 67 2/7 weeks. His testimony indicates he worked in the coal mines some eight or nine years. Following his accident, he worked five or six months in the mines but now claims his disability prevents further employment. Some years before his accident, he had a "fatty tumor" removed from his stomach and at another time he had treatment for a rock dust infection on the back of his neck. Subsequent to his accident and during treatment therefor, he applied for disability Social Security benefits. His testimony indicates he was referred to Dr. Richard D. Kitching, a psychiatrist. He states he is now receiving Social Security benefits on psychiatric bases. His claim for permanent workmen's compensation disability has been pending for over six years. Some fourteen doctors are shown by the record to have been in some manner involved in his claim. Reports of x-ray examination show no bone injury. He has been fitted for glasses. Four of the doctors saw no reason why he could not return to work. However, claimant says he is unable to work. His nerves bother him. He had been wearing a head traction collar for about five hours each day. He reports that when he tries to work "I feel like I'm going to blow up. My blood pressure shoots up." In his testimony he states he has been taking Percodan pills for some five years. He says the pills were prescribed by "Dr. Wallace and Uy" and that "Dr. Kuhn is the one started giving me these Percodans this dope." Dr. Leslie J. Borbely, in his letter report of June 20, 1973, states claimant "has a permanent-partial disability as a result of the accident of November 4, 1968 from a psychiatric standpoint and would estimate the disability to be 80%." In his testimony, on cross-examination, Dr. Borbely associates "at least forty-five percent" of the disability with the accident of November 4, 1968. His diagnostic impression of the claimant is "Pseudoneurotic schizophrenia with overlay of anxiety neurosis, conversion features, and depressive symptomatology."
Following Dr. Borbely's written report of June 20, 1973, and his testimony on October 23, 1973, claimant was examined by Dr. Charles C. Weise whose written report of February 18, 1974, expresses the view that "Mr. Workman does not have a schizophrenic illness ... and does not have any organic brain impairment as might be produced by a past head injury." His tentative diagnosis is "Passive-Dependent Personality with associated dependence on Percodan." Claimant was somewhat uncooperative concerning his past history. Dr. Weise's report states:
"In summary, we have insufficient history of patient's adjustment, past injuries or illnesses. At present he complains of continual pain in his head which, according to him, result in all of his other complaints, that is, continual discomfort, poor exercise tolerance and feelings of *239 hopelessness. The picture is further complicated by the fact that he is taking Percodan and has been taking this medication for five years. It is not possible for me to determine whether or not he is forced to take the Percodan for pain or whether the pain is part of a dependency reaction on Percodan. Finally, his overweight state plus his inactive type of adjustment now could result in most of his symptoms except for the head and neck pain. These may be on a hysterical basis."
In his written report and in his later testimony at the hearing on May 17, 1974, particularly in his cross-examination, Dr. Weise recommended a period of hospitalization for claimant in order to reduce or discontinue Percodan as a means of restoring the man's mental processes to a more normal and natural level for evaluation of his general health condition. On motion of claimant's counsel, and with no objection by employer's attorney, arrangements were set in motion for claimant to be hospitalized. However, the next day claimant declined the hospitalization and terminated the services of his attorney.
The hearing transcript of May 17, 1974, includes a written report of Joseph C. Taylor, a psychologist, dated February 22, 1974, who concludes that claimant's "current adjustment was not caused by the accident in 1968, however, this specific event probably served as a mild precipitating type of stress which tended to facilitate his current adjustment." The adjustment, as referenced, is "an adjustment in which he is totally dependent upon his wife and his father who live in close proximity with him. He is regressed to a rather immature and childlike level."
From these reports and the testimony, together with other record evidence, several factual observations emerge:
1. Claimant was injured in a mine accident on November 4, 1968, and was awarded temporary total disability compensation. Upon termination of the temporary disability compensation, he applied for evaluation for permanent disability rating. The Compensation Commissioner determined on November 13, 1970, that he was not entitled to a permanent partial disability compensation award. These proceedings have been in a developmental process since that time through some seventeen set hearings and several continuances involving some fourteen doctors and several attorneys.
2. He applied for and was awarded and is receiving disability Social Security benefits.
3. His obesity, at his age now 42 years, his diabetic condition, and his reliance on Percodan obviously contribute to his claimed disability for any work.
4. In his petition to this Court for judicial review, his attorney observes that "All evidence in the record suggests that petitioner made a complete recovery from his orthopedic injuries." This observation is affirmed by record materials.
5. In his argument claimant's counsel states "Petitioner has used the drug Percodan since it was prescribed for him by Dr. Manual F. Uy, as authorized by the Workmen's Compensation Commissioner, for relief of pain associated with his compensable injury." The record fails to disclose any Compensation Commissioner authorization of claimant's use of Percodan for any purpose.
The Legislature, in 1971, stated the policy that "the rights of claimants for workmen's compensation be determined as speedily and expeditiously as possible." W.Va. Code, 23-5-3a. The Court noted this policy in Griffith v. State Workmen's Compensation Commissioner, W.Va., 205 S.E.2d 157, 163 (1974), particularly with reference to undisputed claims. In that case and in Colvin v. Workmen's Compensation Commissioner, 154 W.Va. 280, 175 S.E.2d 186 (1970), the Court noted the implied powers of the Commissioner in addition to the express powers detailed in the statute. Rule 12.01 of the Rules for the general administration of the West Virginia Workmen's Compensation Fund, effective September 7, 1974, implements the Commissioner's powers to investigate claims. Rule 16.01(f) sets *240 out guidelines as to what may constitute good cause for continuances in claim proceedings and when continuances may be denied. In the course of the claim proceedings in this case, some of the continuances were granted primarily because of the non-appearance of claimant, in person or by counsel. But the long delay in processing the claim is not consistent with the declared policy of the Legislature to determine the rights of claimants as speedily and expeditiously as possible. This policy must be made meaningful since the workmen's compensation program is a creation of the Legislature.
The Federal Administrative Procedure Act, 5 U.S.C., §§ 551-559, provides in § 557 that decisions of administrative agencies shall include a statement of findings and conclusions. The West Virginia Administrative Procedure Act, W.Va. Code, Chapter 29A, provides in § 29A-5-3 that "every final order or decision rendered by any agency in a contested case ... shall be accompanied by findings of fact and conclusions of law." But § 29A-5-5 excepts the workmen's compensation fund from the requirements of § 29A-5-3. In this case the Commissioner's orders of November 13, 1970, and March 18, 1976, implemented by letter of April 7, 1976, and the Appeal Board's order and opinion of January 27, 1977, affirming the Commissioner's ruling, give no index to findings of fact on which their decisions and orders are based. The Appeal Board's opinion simply states that the Commissioner's order of March 18, 1976, "was not in error." W.Va. Code, 23-5-3, requires the Appeal Board to state in writing its reasons for its order. W.Va. Code, 23-5-4a, provides that on judicial review "the findings of fact of the board shall have like weight to that accorded to the findings of fact of a trial chancellor or judge in equity procedure." Without such record findings of an administrative agency, the Court on judicial review is greatly at sea without a chart or compass in making its determination and adjudication as to whether the agency decision is plainly right or clearly wrong.
The proceedings in this case are somewhat similar to proceedings detailed in Sisk v. Workmen's Compensation Commissioner, 153 W.Va. 461, 170 S.E.2d 20 (1969). In the Sisk case the Court employed and applied syllabus point one in Pripich v. State Compensation Commissioner, 112 W.Va. 540, 166 S.E. 4 (1932), stating the law in the following language:
"Where, in the course of and arising out of his employment, an employee in good health and of strong physique, suffers physical injury which is followed by serious disabilities, competent physicians differing as to whether the disabilities are attributable to the injury, but only probable or conjectural reasons or causes are assigned by physicians in an effort to explain the disabilities on grounds other than the injury, the presumptions should be resolved in favor of the employee rather than against him."
A pertinent principle of law is summarized in I Larson's Workmen's Compensation Law, § 13.00 (1972), as follows:
"§ 13.00 When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct."
As previously noted, Dr. Borbely considered claimant to have an 80% permanent partial disability, with "at least forty-five percent" attributable to the compensable mine accident of November 4, 1968. Dr. Weise was unable, because of claimant's condition and disposition at the time of his examination, to make any evaluation on permanent partial disability. The psychologist working with Dr. Weise concluded that claimant's "current adjustment was not caused by the accident in 1968, however, this specific event probably served as a mild precipitating type of stress which tended to facilitate his current adjustment."
The Court, in the Sisk case, supra, reversed the Appeal Board and remanded the claim to the Appeal Board and the *241 Commissioner for entry of an award of total permanent disability. Administrative expertise, together with the medical expertise manifest in the record, provides bases for an administrative determination of a permanent disability rating. Accordingly, the January 27, 1977, order of the Appeal Board, affirming the Commissioner's ruling of March 18, 1976, is reversed and this case is remanded to the Appeal Board and to the Commissioner for a determination of the claim for workmen's compensation "as speedily and expeditiously as possible." W.Va. Code, 25-5-3a.
This decision will be certified to the Board and to the Commissioner as required by law. W.Va. Code, 23-5-4.
Reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365199/ | 201 Or. 118 (1954)
266 P.2d 680
GLASER
v.
NORTH'S ET AL. and KAMPFER ET UX.
Supreme Court of Oregon.
Argued September 30, 1953.
Affirmed as modified February 10, 1954.
Petition for rehearing denied April 14, 1954.
*119 W.C. Winslow, of Salem, and Edward E. Sox, of Albany, argued the cause for appellant. On the brief was Edward E. Sox.
Courtney R. Johns argued the cause for respondents. On the brief were Goode & Johns, of Albany.
Before LATOURETTE, Chief Justice, and LUSK, BRAND and TOOZE, Justices.
AFFIRMED AS MODIFIED.
LUSK, J.
This is an appeal by the plaintiff from a decree in a suit to foreclose a chattel mortgage. The facts are *120 as follows: The defendants, Irwin M. Kampfer and wife (who are the respondents here), were on August 12, 1950, lessees of a storeroom on the ground floor of the Pfeiffer Building in Albany, Oregon, for a term ending March 1, 1966. On August 12, 1950, they entered into a sublease of the premises with John F. North and Layton K. Nosler, who later, with the consent of the lessors, assigned their lease to North's, a corporation. The term of the sublease was from August 15, 1950 to February 25, 1956. The premises were known as The Hub Restaurant and had previously been, and under the terms of the sublease were to continue to be, used for restaurant purposes. On the day of the execution of the sublease and as part of the transaction the Kampfers entered into a contract of conditional sale with their tenants of "all of the personal property described in" an inventory attached to such contract. The consideration was $25,000. The property covered by the contract may be divided into two classes, namely, articles suitable for use in a restaurant and not in any way attached to the realty, and restaurant equipment "designed for the premises", as the defendant Irwin M. Kampfer testified, and installed by him at a cost of $68,000. This equipment was "set in and part of the building was built around it." The conditional sale contract is referred to in the sublease in the following language:
"It is understood and agreed that lessors have by separate agreement of even date herewith, contracted to sell certain equipment now located upon said premises. At the expiration, or any sooner termination of this sub-lease, provided title to said equipment shall then be vested in the lessees under the terms of said contract, it is contemplated that said equipment may be removed from said premises."
*121 Under date of October 19, 1950, the purchase price of the property covered by the conditional sales contract having been fully paid, the Kampfers executed a bill of sale of such property to North and Nosler, and they in turn executed a similar bill of sale to North's, the assignee under the sublease. At about the same time North's borrowed $12,000 from the plaintiff, giving him its note for that amount payable in monthly installments of not less than $500 with interest at the rate of eight per cent per annum, and, to secure payment thereof, executing the chattel mortgage to foreclose which this suit was brought and which covered all the property described in the bill of sale. The note and mortgage are dated October 17, 1950, and the money was apparently borrowed for the purpose of paying off the balance owing on the conditional sales contract.
Sometime in 1951 the exact time is not disclosed North's defaulted in the payment of rent to the Kampfers under the sublease and abandoned the premises, together with all the personal property and equipment therein. The evidence in this regard is that the rent was paid up to October 1, 1951, and this included amounts recovered by the Kampfers through actions brought by the Kampfers against North's. North's also defaulted in payment of installments due under its note to the plaintiff. On December 21, 1951, the plaintiff commenced this suit to foreclose his mortgage. On the day following the Kampfers took possession of the premises and padlocked the door. North's defaulted, and on this appeal we are concerned with a controversy between the Kampfers, the landlords, on the one hand, and Glaser, the mortgagee, on the other, respecting the ownership of a portion of the property included in the chattel mortgage. By its *122 decree the court divided the mortgaged property into the two classes above indicated. As to the articles not attached to the realty the court entered a decree of foreclosure of the plaintiff's mortgage. The remaining equipment, termed fixtures in the decree, was adjudged to be the property of the defendants Kampfer, free from any claim of the plaintiff. The uncontradicted evidence is that all the equipment included in this category was affixed to the realty and that if it should be removed the cost of repairs and restoration necessitated by such removal would be in excess of $4,000.
1. On this appeal the principal contention of the plaintiff is that the court erred in excluding from the decree of foreclosure the property described as fixtures. It is urged in support of this claim that the parties to the sublease had treated the equipment attached to the realty as personal property, and that it was therefore subject to the lien of the chattel mortgage executed by North's to Glaser. There can be no doubt that for the purposes of this case the fixtures must be regarded as personal property as long as North's continued in possession of the leased premises under the sublease, and therefore that the lien of plaintiff's chattel mortgage attached to that property as well as to the remaining articles described in the instrument. These improvements were trade fixtures sold and transferred to the sublessees by the Kampfers through instruments separate from the lease, and which clearly indicated the intention of the parties to treat the fixtures as personalty. The sublease itself moreover recognized their character as personalty by granting the right to the sublessees to remove them at the expiration of the lease or its sooner termination.
2. "The giving of a bill of sale to an article attached *123 to the soil at the same time a deed is executed covering the realty is an indication that the parties intended the articles should be deemed personal property." Mattechek v. Pugh, 153 Or 1, 6, 55 P2d 730. The opinion in the case cites numerous decisions of this court in support of the holding that parties may agree that the annexation of a chattel to the land shall not deprive it of its character as personalty, and that the interested parties may agree that an article already annexed to the soil shall be deemed personalty.
3, 4. These rules, however, well settled though they may be and entirely applicable here, are by no means dispositive of the case for the questions that must be determined are whether North's lost its rights to the fixtures by abandoning them, and, if so, whether the mortgagee's right fell with North's. Upon these questions the law of this state is equally well settled. In Blake-McFall Co. v. Wilson, 98 Or 626, 193 P. 902, 14 A.L.R. 1275, this court, speaking through Mr. Justice HARRIS, said:
"* * * The general rule is that a term tenant cannot remove fixtures after the expiration of his term; and the prevailing doctrine is, too, that the landlord becomes the absolute owner of fixtures if the tenant surrenders the premises without removing the fixtures. The right to remove a fixture may, like many other rights, be abandoned or waived; and, consequently, when the tenant's term ends and his right to possession terminates and he leaves fixtures on the premises, he is deemed to have waived his right and abandoned the fixtures: 11 R.C.L. 1071."
See, also, General Petroleum Corp. v. Shefter, 141 Or 349, 352, 16 P2d 645; 22 Am Jur 756, Fixtures § 43; Annotations 6 ALR2d 322, 39 A.L.R. 1099. It is also *124 held that where the tenancy has been wrongfully terminated by the landlord the tenant has a reasonable time in which to re-enter and remove fixtures. Eldridge v. Hoefer, 45 Or 239, 77 P. 874. That question, however, is not involved in this case. Here the right of removal was fixed by the terms of the sublease as "at the expiration, or any sooner termination of this sub-lease", and the evidence is clear and uncontradicted that North's defaulted in the payment of rent, abandoned the premises and the fixtures and made no effort to recover them, and that the Kampfers thereupon took possession and terminated the lease. As a result the lessee's title to the fixtures failed and it lost its right of removal. The mortgagee has no better title than the lessee, and, if the tenant would have no right of removal owing to the expiration of the tenancy or his relinquishment of possession, one to whom he has mortgaged the articles would have no such right. Couch v. Scandinavian-American Bank, 103 Or 48, 58, 59, 197 P. 284, 202 P. 558, 203 P. 890, and numerous authorities there cited. See, also, Smith v. Reigleman, 143 Or 463, 467, 23 P2d 129; Donahue v. Hardman Estate, 91 Wash 125, 157 P. 478; Shelton v. Jones, 66 Okla 83, 167 P. 458; 14 CJS 642, Chattel Mortgages § 33; 22 Am Jur 757; Fixtures § 43.
For the purposes of illustration we will refer to Bush v. Havird, 12 Ida 352, 86 P. 529, one of the decisions cited with approval in Couch v. Scandinavian-American Bank, supra. The lessees of a saloon building installed in the premises and attached to the realty bar fixtures, an ice chest, etc., and executed a chattel mortgage on this property which was assigned to the defendants. The lessees defaulted in the payment of rent, and the owners of the premises secured possession through legal proceedings. The tenant did not *125 seek to remove the fixtures, but the owners of the mortgage, after the landlord took possession of the building, commenced a proceeding before the sheriff to foreclosure the mortgage, and, when the owner of the premises refused to deliver up possession, caused the sheriff to break open and forcibly enter the building and remove the mortgaged property. The owner thereupon sued the assignees of the mortgage to recover judgment for the value of the property so removed. The court, in an opinion by Ailshie, J., reversed a judgment for the defendant. The mortgaged property was held to be "trade fixtures" and therefore removable by the tenant, both under a statute of Idaho and at common law. But this right, it was said, must be exercised by the tenant prior to surrendering possession or to eviction for a breach of the lease. Otherwise the right is lost. The court continued:
"The only further question left for our determination is, did the mortgagee or his assignees acquire any greater or superior rights to those of the tenant or mortgagors? We think there can be but one answer to that question. When the mortgagee took a mortgage on this property, he took it subject to all the restrictions placed by law upon the tenant, who was the mortgagor, and he could acquire no rights greater than or superior to those of his mortgagor [citing authorities]. When the tenant abandoned his right of removing this property and lost the possession and right to re-enter, that disability extended to his mortgagee with equal force and effect. The law will neither impose upon the landlord a duty nor necessity of either housing or taking care of the fixtures which his tenant leaves behind after his term has expired. Neither will the law permit the tenant nor any one claiming under him to re-enter the premises for the reason that to do so would encourage breaches of the peace, and would in many cases hazard and *126 impair the landlord's right of leasing the premises to another tenant, and lessen the full and free enjoyment of those premises by such tenant."
The Couch case involved the right to remove a building on leased land which had been erected by the lessee under an agreement that it might be removed within 90 days after expiration of the term. The tenant executed to the defendant bank a chattel mortgage on the building. The tenant defaulted, and the landlord canceled the lease, and thereafter sued to cancel the apparent lien of the bank's chattel mortgage. Applying the rules above stated, this court held that the right of the tenant in the building had been lost by reason of its failure to remove it within the time stipulated in the lease, and that the bank's right in the property, which was no higher or greater than that of the tenant, would likewise have been lost but for circumstances which would have made a forfeiture of its lien inequitable. The court said: "The Scandinavian-American Bank should have protected itself against the forfeiture of its security. It had a right to pay the rent and taxes so as to prevent the forfeiture of the lease." But it was said that the bank had been lulled into a sense of security by representations made to it by the agent of the owners of the land. It appeared, moreover, that the owner had recovered a judgment against a surety company, $6,500 of which was for damages resulting from the lessee's failure to remove the building. For these reasons, it was held, the plaintiff "was not in a position to seek equity." A decree was entered permitting foreclosure of the bank's mortgage upon the payment by it to the owner of the land of taxes, rents, assessments, etc., to which she was entitled under the lease.
*127 As there is in this case no evidence of inequitable conduct on the part of the defendants Kampfer which would justify the court in refusing to apply the well-established rules of law applicable to cases of this kind and approved in Couch v. Scandinavian-American Bank, supra, it follows that the circuit court was right in holding that the defendants were the owners of the fixtures free from any claim of the mortgagee.
5, 6. The evidence supports the judgment of $500 granted to the defendants Kampfer for storage to the date of the decree of the articles, not fixtures, found to be subject to foreclosure. These articles could have been removed from the building by the plaintiff but he chose to leave them there. In these circumstances the law would imply an agreement on his part to pay for such services. Roberts v. Gerlinger, 124 Or 461, 467, 263 P. 916; 12 Am Jur 501, Contracts § 5. The court was without authority, however, to provide for a judgment for storage which might or might not be furnished in the future, and the decree must therefore be modified by the elimination of that provision. Otherwise it is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365381/ | 142 Ga. App. 610 (1977)
236 S.E.2d 694
KLEM
v.
SOUTHEAST CERAMICS, INC.
54019.
Court of Appeals of Georgia.
Submitted June 8, 1977.
Decided June 21, 1977.
*612 Joseph H. King, Jr., for appellant.
Neal L. Heimanson, for appellee.
QUILLIAN, Presiding Judge.
Appeal was taken from a judgment entered pursuant to a directed verdict for the plaintiff. The sole issue raised by the defendant is that the trial judge erroneously excluded evidence offered by him in support of his *611 counterclaim. The defendant offered to testify, of his own personal knowledge, as to certain expenses incurred in replacing defective tile. This evidence was excluded on the basis that the records of such transaction would be the highest and best evidence. Held:
We reverse. "The best evidence rule does not preclude the admission of testimony, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of an independent fact, to which the writing is merely collateral or incidental." Mallette v. Mallette, 220 Ga. 401 (2) (139 SE2d 322). Accord, Peterson v. Lott, 200 Ga. 390, 392 (37 SE2d 358). In discussing the admissibility of oral testimony regarding written books of account, this court has held: "As a general rule, the testimony of a person who has knowledge of the facts from which books of account are made up is as to those facts primary evidence, and is admissible, whether or not the books themselves are put in evidence." Booth v. Schmoller & Mueller Piano Co., 32 Ga. App. 35 (3) (122 S.E. 636). Accord, Smith v. Southern Spring Bed Co., 16 Ga. App. 449, 451 (85 S.E. 612); Dixon v. Sol Loeb Co., 31 Ga. App. 165 (9) (120 S.E. 31); Villa Rica Mfg. Co. v. General America Life Ins. Co., 55 Ga. App. 328, 329 (2) (190 S.E. 49); Van Gundy v. Wilson, 84 Ga. App. 429, 434 (3) (66 SE2d 93); Harrison v. Lawhorne, 130 Ga. App. 314 (1) (203 SE2d 292).
In Hicks v. Hicks, 196 Ga. 541 (3) (27 SE2d 7), the Supreme Court found no error "in admitting testimony that the decedent had paid taxes on the disputed land, over objection that the `tax returns' were `higher and better evidence,' since on the question of such payment the act itself rather than the manner of payment was the essential fact, and on that question either oral testimony or a writing to show payment, such as a receipt or check, would be admissible." Accord, Daniel v. Johnson, 29 Ga. 207.
The evidence proffered was admissible and it was error to exclude it.
Judgment reversed. Shulman and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365416/ | 269 S.C. 138 (1977)
236 S.E.2d 561
Toy A. HYDER, Jr., Petitioner,
v.
Governor James B. EDWARDS, State Treasurer Grady Patterson, Jr., Comptroller General Earle E. Morris, Jr., Chairman of the Senate Finance Committee Rembert C. Dennis, Chairman of House Ways and Means Committee Tom G. Mangum and Attorney General Daniel R. McLeod, Respondents.
20473
Supreme Court of South Carolina.
July 21, 1977.
Robert A. Hammett and Richard H. Rhodes, of Burts, Turner, Hammett and Harrison, Spartanburg, for Petitioner.
*139 William M. Youngblood, Jr., of Sinkler Gibbs and Simons, Charleston, and James P. Fields, of Cheraw, for Respondents.
July 21, 1977.
NESS, Justice:
This is a declaratory judgment action instituted in the original jurisdiction of this Court to determine the constitutionality of a resolution by the State Budget and Control Board dated April 20, 1977, authorizing the issuance of state capital improvement bonds.
An amendment of Article X of our State Constitution was proposed under the terms of Joint Resolution 750 of 1976. Pursuant to our constitutional amendatory process, the issue was submitted to the qualified electors in the general election of 1976 and a favorable vote was received. On May 4, 1977, the General Assembly ratified the amendment to Article X *140 providing that the amendment should "become effective and shall be in force and effect from and after the 30th day of November, 1977." Act R-126 of the Acts of the General Assembly for 1977. A stay of the issuance of the improvement bonds by the State Budget and Control Board was ordered pending a hearing on the merits by this Court.
The sole issue presented is the propriety of the postponement of the operative date of the amendment. The amendment to Article X dictates significant changes in the uniform assessment of taxable property, property tax exemptions, bonded indebtedness, and the field of public finance generally. The resolution of the State Budget and Control Board proposes to pay the principal and interest on the capital improvement bonds by pledging the full faith, credit and taxing power of the State allegedly in contravention of Amended Article X. There is no contention that the resolution would be constitutionally suspect before the amendment.
Hence, a determination of the effective date of the amendment to Article X will be dispositive of all the issues presented.
Our constitutional amendatory process is delineated in Article XVI, Section 1 of the South Carolina Constitution:
"Amendments. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives; provided, however, that for the general elections in 1970, 1972, 1974 and 1976 revision of an entire article or the addition of a new article may be proposed as a single amendment with only one question being required to be submitted to the electors. Such amendment may delete, revise and transpose provisions from other articles of the Constitution provided such provisions are germane to the subject matter of the article being revised or being proposed. If the same be agreed to by two thirds of the members elected to each House, such amendment or amendments shall be entered on the Journals respectively, with the years and nays taken thereon; and the same shall be submitted to the qualified *141 electors of the State, at the next general election thereafter for Representatives; and if a majority of the electors qualified to vote for members of the General Assembly, voting thereon, shall vote in favor of such amendment or amendments, and a majority of each branch of the next General Assembly shall, after such election, and before another, ratify the same amendment or amendments, by yeas and nays, the same shall become part of the Constitution: Provided, that such amendment or amendments shall have been read three times, on three several days, in each House. Provided, that a proposed amendment providing for a change in the bonded debt limitation of a county or any of its political subdivisions shall be voted on only by the qualified electors of such county." 1976 S.C. Code of Laws.
South Carolina is thus unique in its three tiered procedure for amendment of our Constitution. First, the proposed amendment must be agreed to by two-thirds of the members of each House in the General Assembly. Second, the proposed amendment must be submitted and favorably approved by a majority of the voters during a general election. Finally, a majority of the next General Assembly must ratify the amendment.
Unquestionably, the requirements of Article XVI, Section 1, are mandatory and must be strictly complied with. Duncan v. Record Publishing Company, 145 S.C. 196, 143 S.E. 31 (1927). Procedurally, there is no viable contention that the amendatory process was defective or not strictly complied with; the amendment was constitutionally enacted and the only issue is the date of its effect and operation. Our Constitution is silent with respect to the date upon which an amendment must become effective.
There is, however, a constitutional time constraint in the third step of our amendment process. Article XVI, Section 1 provides that "the next General Assembly shall, after such election, and before another, ratify" the amendment. The limitation is tantamount to a two-year period in which the *142 next legislature must act to ratify an amendment. If the Legislature was in session in November of 1977, they could certainly at that time ratify the amendment. If they desired to wait until January of 1978, when they will be in session, they could ratify the amendment. It necessarily follows that if they could do it then, they could delay the effective date of the ratification until November, 1977.
We have heretofore held that rules relating to constitutional requirements for amendment should not sacrifice substance for form. Watts v. Oliphant, 246 S.C. 402, 143 S.E. (2d) 813 (1965).
"The Courts are slow to strike down either the legislative proceedings or the election incident to the adoption of a constitutional amendment, and will indulge every reasonable presumption in favor of their validity. As was said in State ex rel. Corry v. Cooney, 70 Mont. 355, 225 P. 1007, 1009: `The question is not whether it is possible to condemn the amendment, but whether it is possible to uphold it, and we shall not condemn it unless in our judgment its nullity is manifest beyond a reasonable doubt.'" Watts v. Oliphant, supra, 246 S.C. at 407, 143 S.E. (2d) at 815, quoting from Ex parte Tipton, 229 S.C. 471, 476, 93 S.E. (2d) 640 (1956).
The same rules of construction should apply to the operative date of the amendment. It was totally within the legislature prerogative to ratify the proposed amendment at any time within two years of the 1976 general election. It logically follows that ratification action could have taken place after the declared effective date of November 30, 1977.
There are cogent and logical reasons for the postponement of the operative date of the amendment. New Article X is sweeping and dramatic in its reforms. It is a comprehensive amendment encompassing a broad spectrum of areas relating to the fiscal affairs of our State. Many long range plans structured on prior financial policies will require modification. Public finance is not a matter of impulsiveness as it *143 requires utmost circumspection and deliberation. Deferment of the operative date of the amendment affords an express notification of forthcoming guidelines and a definite period of transition. The Legislature declared in Section 2 of Act R-126 that "[i]nasmuch as much proposed bonded indebtedness is now planned both by the State itself and many of its agencies, institutions and political subdivisions, it has been decided that the postponement of the effective date of the ratification of this amendment by the provisions of Section 3 hereof is a matter of essential inducement to the action herewith taken by the General Assembly."
We are not presented with an attempted postponement of the effective date of an amendment beyond the two-year period prescribed for ratification. Hence, we intimate no opinion on that separate and distinct issue.
We hold that based on the peculiar facts of this case, the Legislature acted within its discretion by delaying the effective date of the amendment within the two-year period allowed for ratification. The resolution of the State Budget and Control Board is not constitutionally defective as New Article X only becomes operative as of November 30, 1977. It is therefore Ordered that the prayer for relief is denied and the Complaint of the Petitioner is hereby dismissed.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365434/ | 123 Cal. App. 2d 313 (1954)
N. M. GILMORE, Plaintiff and Appellant,
v.
R. E. HOFFMAN, SR., et al., Defendants and Appellants; L. A. CREWS, Respondent.
Civ. No. 4640.
California Court of Appeals. Fourth Dist.
Feb. 17, 1954.
Burford & Hubler and Walter E. Burford for Plaintiff and Appellant.
West, Vizzard, Howden & Baker and James Vizzard for Defendants and Appellants.
John R. Berryhill for Respondent.
GRIFFIN, J.
Plaintiff, cross-defendant, respondent and cross-appellant (hereinafter referred to as plaintiff) in 1948, under the terms of a written share-rent lease, leased two 80-acre parcels of land from P. C. Weaver and wife for the purpose of farming cotton and re-leased this acreage again on March 10, 1949. After the execution of the last lease the Weavers sold the 160 acres to defendants, cross-complainants, appellants and cross-respondents R. E. Hoffman, Sr., and wife, and R. E. Hoffman, Jr., and wife, and Enid T. Crews, and defendant, cross-complainant, respondent on cross-complaint, and cross- respondent on cross-complaint L. A. Crews, individually and as copartners doing business as Hoffman Cotton Company (hereinafter referred to as defendants).
By the terms of the written lease assignment dated April 1st, 1949, they did "promise and agree" to comply with all the terms, covenants and conditions imposed upon the Weavers as lessors.
A pumping plant was in operation on each 80-acre parcel. The written lease provided, among other things, that:
"... lessee agrees to farm to cotton all of the tillable land located on the herein described property and to deliver to the lessors, as rent, one- fifth (1/5) of all cotton and cotton seed produced thereon."
The main contention arising in this case involves the paragraph reciting that:
"It is understood and agreed by and between the parties hereto that the well and pumping plant located upon said premises now produce sufficient water for the irrigation thereof. *315 The lessors agree that in the event the water level underlying said premises shall lower to such a depth as to materially decrease the supply of water that can be produced by the well and pumping plant, or the said pumping plant shall fail to properly operate and pump, without any fault on the part of the lessees, his agents or servants, that the lessors will, within a reasonable time after being notified of the condition and after receiving written request from the lessee that the situation be remedied, deepen the well or lower the pump therein, or to do such other things as may be necessary to increase the supply of water that can be produced by the said well and pumping plant to an amount as nearly equal to that now being produced as is reasonably possible; nothing herein contained to be construed as making the lessors guarantors of water at all times, but only to use their best efforts to see that there is sufficient water to irrigate said property."
It appears that the pumping plant furnishing water for irrigation of the east 80 acres failed through no fault of the plaintiff on June 20, 1949, and at that time plaintiff had growing upon that acreage a thriving crop of cotton and, according to the evidence, under normal conditions, with water to irrigate, it would have produced not less than an average of 1 1/4 bales of cotton per acre. It appears that the defendants were notified and had knowledge of the failure of said well and pumping plant; that they came to the property, made examination, and were fully advised of the need existing and instructed plaintiff not to worry, that they would take care of providing for the repair of it. The testimony shows that the defendants were experienced cotton people, knew and were advised that it required ample water for the production of cotton crops; that plaintiff's crops were then in condition to require irrigation and if water was not applied the result would be a loss of the crops to plaintiff.
It appears that as a result of the failure of the well and pumping plant plaintiff's crops growing on the east 80 acres failed in part and his loss therefrom was estimated to be 75 1/2 bales of cotton, resulting in a net los to plaintiff of $8,682.50, being 75 1/2 bales at $115 per bale (or $160 per bale less $45 cost).
Plaintiff's crops, according to plaintiff's testimony, failed to receive any irrigation on the east 80 acre tract from June 20, 1949, to August 8, 1949, being a period of one month and 18 days. The evidence indicated that the loss of the crops sustained by plaintiff was occasioned by reason of the *316 breakdown of the well and pumping plant and failure of the defendants to make available for plaintiff's use on the premises water for irrigation of said crops during said 48-day period.
Plaintiff takes the legal position that under the lease, if the well or pumping plant failed or there should be any substantial diminution of the water supply, defendants were obligated to do such other things as might be necessary to increase the supply of water, and their failure to do so showed a lack of diligence on their part resulting in the claimed damages. The court found generally in accordance with the facts stated.
It is defendants' contention that although the evidence does show that they encountered difficulty with the pump and well and plaintiff was not able to obtain the supply of water from it for a period of time up to July 27th, they did, after receiving notice of the condition, exercise reasonable diligence in an endeavor to place it in operation, but through no fault of their own they were unable to do so and accordingly they complied with the terms of the lease which did not require them as guarantors to furnish water at all times but only to use their best efforts to see that there was sufficient water to irrigate said property, and that the evidence conclusively shows this and accordingly the finding of the trial court is not supported by the evidence.
Defendant Hoffman, Sr., testified that the cause of the breakdown was due to obstruction in the well, and that he immediately employed the Pixley Hardware Company to pull the bowls out of the well; that it tried to remove the obstruction but informed him it could not be done; that thereafter he secured the B & B Drilling Company to attempt the repairs, and after working on it for two days, June 28th and 29th, 1949, they were unable to rectify it; that one Elvis asked him if he could attempt to remove it but he found that he could not; that after two days of trial he authorized him to drill a new well; and that during the middle of July the drilling of a new well was commenced and completed by July 27th.
Plaintiff testified that it was not commenced until July 27th; that the casing was delivered on that date; and it was not completed until August 8th. By stipulation of counsel it was agreed that there was a record of a steel company indicating that some casing was delivered at the site on July 15th and the balance on July 19th. The records of the electric company showed that there was a power hookup installed for *317 the new pump and well on July 27th, and Elvis was paid for the drilling on that date.
The contention is that the evidence conclusively shows that defendants exercised reasonable diligence in repairing the old well; that the agreement did not require the drilling of a new well, but if it did, they were not lacking in any diligence in procuring it; that the finding of the court that defendants were negligent and had breached the lease agreement is not supported by the evidence.
Plaintiff contends that the full import of the agreement was that defendants would use "their best efforts to see that there was sufficient water to irrigate said property"; that since they mutually agreed there was sufficient water to irrigate the land when the lease was executed, and wherein plaintiff was required by its terms to farm all tillable land to cotton, defendants must have known that plaintiff's ability to comply with the agreement required an ample supply of water, and since that was the only source of water, accordingly they were obligated to do everything necessary or reasonably possible to furnish a supply of water equal to that then being produced; that the evidence conclusively shows that they failed to supply any water to the 80 acres involved between June 20th and August 8th, 1949, and accordingly ordinary diligence was not exercised and a partial crop failure resulted.
It is conceded that the main crop failure was due to lack of supply of water. An examination of the reporter's transcript shows that the plaintiff Gilmore testified he planted his cotton crop in the early part of April, 1949, and in June he fertilized it; that defendants changed from gas pumps to electric pumps; that his crop needed irrigation on June 20th, and after running the electric pump on the east 80 acres for a period of time, a shaft that turns the bowls broke; that he immediately, on June 21st, told the defendant Crews of this condition, and Crews sent plaintiff to defendant Hoffman, Sr., and he reported that fact to Hoffman; that Hoffman said he would have one Simeral fix it; that Simeral came out and tried to repair it and could not; that he told plaintiff the bowls had broken off and fallen into the well; that later, on June 28th, the B & B Drilling Company came out and the bowls came out of the well with the pump and apparently did not break off as indicated by Simeral; that the workmen said they would return the next morning; that plaintiff's cotton crop at that time was very much in need of water; that on *318 the 29th Hoffman came out and examined conditions and said the well had collapsed and that he was not going to drill a new well and he would not fix the old one because he wanted to put down a 900-foot well when he drilled a new one; that he told Hoffman the crop would not mature without water and Hoffman said he could not put a new well down at that time; that later on he again went to Hoffman and asked him to try to do something about it; that Hoffman studied a little bit and said a man named York might be able to repair it and told plaintiff to go and see him; that plaintiff sent York to see Hoffman and York came out about July first and tried to put a pump in the well without success; that plaintiff looked down the well with a glass and saw that the hole was free and open to the water; that no other workmen came out after that so, on July 8th, he sent defendants a written notice of the defective condition, with a request to make the necessary repairs; that about July 25th or 27th, defendants started drilling a new well and it took eight days to bore it, and on August 6th, some sand was pumped out and water was not obtainable until August 8th; that in the meantime his crop was "burned up"; and that Hoffman stated it looked "burned up" when he examined it at the time he commenced drilling the new well. He further testified that in August, 1949, defendants lowered the well on the west 80 acres about 20 feet, and put new bowls on the pump due to defective pumping conditions after the change over to electric pumps. Plaintiff was positive from his records that no casing was delivered to the well until July 26th, and that the well was not started until July 25th, and that no water was available to him until August 8th. This later date receives some corroboration in the testimony of another witness who testified he visited the property two days after July 26th, and the drilling rig was still operating.
It therefore appears that there is a conflict in the evidence between that related by the plaintiff and that produced by the defendants in relation to the time when the casing was delivered and when the well was completed and water was produced. It is defendants' contention that the testimony of the plaintiff, although positive in form, was completely destroyed by the production of the receipts, the checks, and the testimony of defendants' witnesses, and that therefore plaintiff's testimony was of no weight and should be disregarded in this respect, citing such cases as Elliott v. Market Street Ry. Co., 4 Cal. App. 2d 292 [40 P.2d 547], and Burns *319 v. Faget Engineering Co., 53 Cal. App. 762 [200 P. 818]. We see no merit to this contention. [1] It is within the province of the trial court to determine what weight and credit shall be given to the testimony of any witness unless the testimony creating the conflict is so inherently improbable of belief as in effect to constitute no evidence at all. (Romero v. Eustace, 101 Cal. App. 2d 253 [225 P.2d 235]; People v. Miller, 114 Cal. App. 293 [299 P. 742].) The testimony creating the conflict in this respect cannot be said to be unreasonable and inherently improbable.
The claim that the defendants were not under obligation to drill a new well under any conditions of the agreement and that their willingness to do so was purely voluntary is not sustainable. By the agreement plaintiff agreed to farm the land. It was agreed that plaintiff then had a sufficient supply of water to irrigate it and that if the water supply from said wells failed defendants would, within a reasonable time after notice, deepen the well or lower the pump therein or "do such other things as may be necessary to increase the supply of water that can be produced by the said well and pumping plant to an amount as nearly equal to that now being produced as is reasonably possible." It is clear that the intent of the agreement was to keep plaintiff supplied with water for the purpose indicated. Defendants could not satisfy the terms of the agreement by merely making two or three unsuccessful attempts to correct the failure of the wells to produce the amount of water agreed upon and then abandon further attempts to produce water or to further remedy the situation. While defendants did not guarantee to make water available to plaintiff "at all times" the inference is that they intended to guarantee water to him at least some of the time, allowing a reasonable time in case of a breakdown that they may be afforded an opportunity to "do such other things as may be necessary" to increase the supply of water to that which ordinarily had been produced by that well. We conclude that there is no merit to this contention.
The real question is whether defendants used their best efforts to see that there was sufficient water to irrigate the property in accordance with their agreement. As it appears now, their best efforts would have been to drill a new well when it was first discovered, about June 21st, that such action was necessary. The delay and unsuccessful efforts in doing other exploratory work and in trying to obtain satisfactory *320 results from further attempted repairs concededly was not chargeable to plaintiff. [2] Whether defendants took the proper course, obtained proper counsel and advice, and acted wisely and timely and used their best efforts under the circumstances to correct the condition was a factual question for the trial court to determine. Its finding on this question, under the evidence, cannot be disturbed on appeal. (4 Cal.Jur.2d 481, 602; Henika v. Lange, 55 Cal. App. 336, 339 [203 P. 798]; McCready v. Bullis, 59 Cal. App. 286 [210 P. 638]; Woolford v. Electric Appliances, Inc., 24 Cal. App. 2d 385 [75 P.2d 112].)
Some contention is made by defendants that no breach of the agreement was chargeable to defendants because, by its terms plaintiff was required to notify defendants "in writing" pertaining to the condition of the pump, and demand that the situation be remedied; and that oral notice was insufficient, citing such cases as Monson v. Fischer, 118 Cal. App. 503, 519 [5 P.2d 628].
[3] Defendants concede that the evidence shows that they were orally notified of the condition and that they had actual knowledge and notice of it and that a request was made to remedy the situation; that they thereafter inspected the condition and did make some effort to correct it. It is plaintiff's testimony that when defendants refused to act further and drill another well for the production of water, he did, on July 6th, send written notice of the condition, and stated that he had previously reported the trouble to them and requested them to remedy the condition. The court so found. Under the facts related defendants would be estopped to claim any rights by failure of plaintiff to serve defendants with written notice of the conditions in the first instance. Their actual knowledge was equivalent to notice, particularly where, as here, they acted upon the oral notice and thoroughly understood the situation, were not relying upon any such written notice, and apparently waived it. [4] A provision in a contract pertaining to written notice may be waived, either expressly or by conduct, by the party for whose benefit it is inserted. (Daly v. Ruddell, 137 Cal. 671 [70 P. 784].)
[5, 6] The next complaint involves the amount of damages awarded to the plaintiff and to the cross-complainant L. A. Crews. By plaintiff's complaint, he seeks judgment against defendants for their breach of the agreement, and alleges that the difference between the number of bales which would ordinarily have been produced on said land and the *321 number actually produced was 139 1/2 bales, worth the gross sum of $22,320; that after deducting the cost of picking and delivering, etc. he was damaged in the sum of $12,046.
Defendants, doing business as Hoffman Cotton Company, answered and denied generally the allegations of plaintiff's complaint, and by way of a cross- complaint against plaintiff, sought the recovery of one-fifth of all cotton and cottonseed produced by plaintiff on both 80-acre tracts as rental. They alleged that plaintiff sold the 1949 crop from both 80-acre parcels for $8,208.16, being the amount realized from the production of 61 bales of cotton grown on said land by plaintiff that year; and further alleged that one-fifth of the crop amounted to $1,641.63, and that said sum was an offset against any claimed damage allowed plaintiff; that if a judgment was given plaintiff for $22,320, or any portion of it, defendant should be allowed an offset of 5 per cent on that amount as rental, plus the $1,641.63, as alleged.
Defendant and cross-complainant L. A. Crews, by separate cross-complaint, alleged that the defendant Hoffman Cotton Company, in a partnership settlement, assigned to him all accounts receivable pertaining to their joint venture and partnership and accordingly he asked the court to determine that he was entitled to the $1,641.63 claimed by the defendant company for crop rental due from plaintiff to the company. He attached to his cross- complaint a copy of the alleged dissolution agreement and assignment.
At the conclusion of the trial the court found generally in respect to the damage that plaintiff planted 150 acres of cotton on the two parcels, and that on June 20, 1949, the crop was growing and was in a healthy condition; that on that date, on the easterly portion, at least 70 acres had been planted to cotton; that the pump broke down and the well failed to produce water; that the crops growing thereon sustained a loss in production consisting of 75 1/2 bales; that 35 per cent of said loss was attributable to defendants' breach of the terms of the lease and their negligence in failing to repair the well and pump for the period from June 20th to August 8th, 1949; that the reasonable net market value of the portion of the cotton crop lost by plaintiff was $3,038.87; that defendants would be entitled to one-fifth rental therefrom, totaling $607.77, resulting in a net loss to plaintiff of $2,431.10; that plaintiff received $8,208.16 for cotton marketed from the entire leased premises, and defendants were entitled *322 to one-fifth thereof, as rental, totaling $1,641.63; that since defendants' rights to said rents were assigned by the Hoffman Cotton Company to L. A. Crews prior to the filing of the complaint herein, Crews was entitled to receive said sum of $1,641.63 from plaintiff as an offset against the judgment rendered against him. Judgment was given for plaintiff against defendants for $2,431.10.
Plaintiff Gilmore appealed, claiming that the court should have awarded him the entire loss of $8,682.50 claimed to have been sustained by him, less the one-fifth rental. Defendant Hoffman Cotton Company appealed and claims that not only was there no breach of the agreement, but that the judgment is not supported by the evidence; that it was error to give judgment to Crews on his cross-complaint because the crop rental should be used as an offset against the judgment in favor of plaintiff and against all defendants; that the court erred in admitting and excluding certain testimony and that the damage found is not based upon any substantial evidence.
The evidence pertaining to crop damage may be thus summarized. Plaintiff testified he compared the 1949 returns with the returns from the crop he obtained in 1948, from the same acreage, without fertilization, and from this comparison he estimated the crop return he should have received in 1949, with fertilization, at a bale and a quarter per acre. He then stated that the only crop return on the east 80 in 1949, due to burn from lack of water after fertilization, was the picking of 12 bales of bolls, and that they were ginned, but no standard grade cotton matured on that parcel; and that the price of the bolls was much lower than regularly developed cotton.
Other witnesses testified that they were familiar with the property and had observed the condition of the cotton crop on June 20th, 1949; that both 80-acre parcels had a fair stand of cotton, and if cared for in the normal manner should have produced at least a bale of cotton per acre. Other witnesses testified that it might produce 1 1/4 bales per acre. One witness testified he handled and held the mortgage on the crop actually obtained and that the two 80-acre parcels produced 61 bales of cotton, weighing 29,351 pounds, but that the number of bales of bolls was not separately indicated in this return but the gross return of the 61 bales of cotton was $8,206.16; that the production from the two 80-acre parcels in 1948 was 111 bales. He testified that about July 25, 1949, after the water supply failed on the east 80, there *323 was a difference between the crops on the two 80-acre parcels as to its size and the west 80 was more prolific, i.e., it was normal and the east 80 was subnormal. He then stated that the average cost of producing and delivering a bale of cotton in that district was about $50 per acre, and the ginning cost would run about $10 per bale; that picking would estimate $45 per bale; that when he observed the east 80 about July 28th, a well-drilling outfit was operating on it; that later, when the water was being pumped from it again, he observed the cotton thereon averaged about 12 inches in height and that on the west 80 it was about 30 inches. A qualified expert testified that if the crop went without water from June 20th to July 10th there would have been about a 5 per cent damage; from July 10th to July 15th an additional 10 per cent damage; from July 15th to July 20th, an additional 25 per cent damage; from July 20th to July 31st, a 40 per cent additional damage; and from July 31st to August 8th, an additional 10 per cent. He then testified generally to the habits in reference to the growth of cotton and the resultant damage from lack of water, particularly where a fertilizer had been applied.
Plaintiff's claim that there was a complete destruction of his crop on the east 80-acre parcel due entirely to defendants' negligence is not borne out by the record. The court found that as to the east 80-acre tract, there was a total loss of 75 1/2 bales of cotton, as compared to the previous year, and that only 35 per cent of that loss was attributable to defendants' negligence. It also found that there was a crop loss on the adjoining 80- acre tract where there was sufficient water supplied by defendants, but found that such loss was not attributable to defendants' negligence. The agreement does not provide that defendants should guarantee water "at all times," but provides for temporary breakdowns and that defendants might not be liable for crop damage during such reasonable periods, even though some damage might result. To sustain plaintiff's contention it would be necessary to construe the agreement to mean that it provided an absolute guarantee of water "at all times." It does not so provide. We cannot say, as a matter of law, that plaintiff was entitled to the full amount of claimed damage, particularly where the evidence justifies the conclusion that all of the damage claimed was not due to defendants' negligence. The percentage of crop damage for lack of water, for the dates indicated by the expert witness, add support to this conclusion. *324 No prejudicial error resulted in admitting this testimony, as well as the testimony of plaintiff, the owner, as to estimated crop damage, nor in denying admission of certain other testimony about which defendants complain. The evidence fully supports the award of damages allowed to plaintiff.
The judgment allowing Crews the sum of $1,641.63 on his cross- complaint, as an offset on the judgment rendered against him, rather than an offset against the judgment obtained against defendant Hoffman Cotton Company, including Emma T. Crews, is supported by the evidence under the theory that the one-fifth crop rental due from plaintiff to the partnership was one of the accounts receivable of the partnership or joint venture at the time of its dissolution on April 20, 1951. It provided for its dissolution and, among other things, that the Hoffmans do hereby "transfer and assign to ... Crews ... all of the accounts receivable of said joint venture ..." However, in this connection, a separate assignment was made by the Hoffmans on May 18, 1951, assigning "those accounts of the Hoffman Cotton Company ... referred to in their agreement." These accounts receivable are set forth in an attached list as being accounts shown on the books of the company. This list does not mention the account of N. M. Gilmore. However, we conclude that assignment in the agreement was sufficient to cover the account here in question.
No prejudicial error appears and the evidence supports the findings and judgment rendered.
Judgment affirmed.
Barnard, P. J., and Mussell, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365175/ | 142 Ga. App. 582 (1977)
236 S.E.2d 512
MAHLER
v.
PAQUIN.
MAHLER
v.
AIELLO.
53910, 53911.
Court of Appeals of Georgia.
Argued May 10, 1977.
Decided May 25, 1977.
Rehearing Denied June 20, 1977.
Raiford, Hills & McKeithen, Tyler Dixon, for appellant.
Zusmann, Sikes, Pritchard & Cohen, Dennis M. Hall, for appellees.
QUILLIAN, Presiding Judge.
Both plaintiffs are Michigan residents. They brought suit in Georgia upon judgments obtained in Michigan against the defendant. Plaintiffs' motions for summary judgment were granted. Defendant's motions for summary judgment were denied. Defendant appeals. Held:
1. There is no provision for appellate review of the denial of a summary judgment except by direct appeal with a certificate of immediate review. Marietta Yamaha, *583 Inc. v. Thomas, 237 Ga. 840, 842 (2) (229 SE2d 753). Defendant did not comply with the proper procedure and in the absence of compliance with Code Ann. § 6-701 (a) 2 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757, 758), that portion of the appeal is not properly before this court and must be dismissed. Id.
2. Defendant alleges the Michigan judgments were procured by fraud, are void upon their face, and are not entitled to full faith and credit. Under Art. IV, Sec. 1, of the United States Constitution (Code Ann. § 1-401), full faith and credit shall be given in each state to judicial proceedings of every other state. "[A] judgment of a foreign court will be enforced by the courts of this state unless it is shown that the foreign court lacked jurisdiction of the person or subject matter or that the judgment was procured by fraud." Dropkin v. Dropkin, 237 Ga. 768, 771 (229 SE2d 621).
Defendant alleges the judgment was obtained by fraud. The facts upon which he predicates his allegation are that after he was served he was advised "by Plaintiff that he was not being sued in his individual capacity, but was named in said law suit for the sole reason that he was the Agent for Service" for the corporation that he worked for, and "he was the only `officer' of said corporation in the State of Michigan." Defendant did not answer the suit and suffered a default judgment which is now being enforced against him. He contends he was "deliberately misled" and "[s]uch deception constitutes legal and actual fraud." Neither plaintiff denied defendant's assertions.
"The allegations of both the petition and the answer must be taken as true in a summary judgment case unless the movant successfully pierces the allegations so as to show that no material issue of fact remains." Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 784 (2) (195 SE2d 277). As plaintiffs did not offer any matter controverting the defendant's assertions, his answer was not pierced and we will accept them as true. However, admitting defendant was induced not to file an answer to the Michigan suits because of plaintiff's statement that "he was not being sued in his individual capacity," does this amount to fraud as a matter of law?
(a) "As a general rule, equity will grant no relief to *584 one against whom an unfavorable judgment has been rendered, even in consequence of fraud, where the aggrieved party could have prevented the return of such a judgment by the exercise of proper diligence; but this rule is not applicable where there is a confidential or fiduciary relation between the parties. In such a case the law requires the utmost good faith, and the parties are not required to anticipate or watch for fraud." Hogg v. Hogg, 206 Ga. 691 (3) (58 SE2d 403); Lewis v. Lewis, 228 Ga. 703 (3) (187 SE2d 872). The relationship between the plaintiffs and the defendant in Michigan was that of businessmen. "In the majority of business dealings, opposite parties have trust and confidence in each other's integrity, but there is no confidential relationship by this alone." Dover v. Burns, 186 Ga. 19, 26 (196 S.E. 785); Lewis v. Alderman, 117 Ga. App. 855 (1) (162 SE2d 440). We find no confidential or fiduciary relationship between the plaintiffs and the defendant.
In a similar situation, where the party being sued, a garnishee, relied upon assertions of the plaintiff's attorney and failed to file an answer and default judgment was entered (as in this case), the court held that the garnishee's allegations were insufficient to show that his failure to file his answer, or move to open the default before final judgment, "was excusable in law. Jackson v. Grant, 152 Ga. 751 (111 S.E. 192). We need not determine whether the allegations were sufficient to charge fraud on the part of [plaintiff's] attorney, for, even if the allegations were sufficient to charge fraud, by proper diligence the garnishee could have prevented the judgment against him from being entered. [Cits.] `If a party have a good defense at law, and from negligence fail to set it up at the proper time, he must take the consequences of his own laches; he cannot go into equity to be relieved from the consequences of such negligence.'" Peacock v. Walker, 213 Ga. 628, 630 (100 SE2d 575); see also Gordon v. Spence, 124 Ga. App. 384 (184 SE2d 39).
We are aware of a number of cases in which the court has given relief to a defendant who was assured by a plaintiff that the suit would be dismissed, or judgment would not be taken, and then judgment was procured by taking advantage of the trust and confidence imposed. *585 However, these cases are inapposite as each has a distinguishing feature to remove it from the general rule stated above.
(b) We find the allegations of the defendant regarding plaintiffs' assertions to him as to the legal capacity for which he was being sued in Michigan amount to a representation of law. See 37 CJS 323, Fraud, § 55. Representations of Law. "`The general rule is well settled that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law. Everyone is presumed to know the law and therefore can not in legal contemplation be deceived by erroneous statements of law, and such representations are ordinarily regarded as mere expressions of opinion, and this is especially so where there is no confidential relationship between the parties.'" Cotton States Mut. Ins. Co. v. Booth, 116 Ga. App. 410, 413 (157 SE2d 877); accord, Clinton v. State Farm Mut. Auto Ins. Co., 110 Ga. App. 417, 422 (2a) (138 SE2d 687); Brown v. Mack Trucks, Inc., 111 Ga. App. 164, 166 (141 SE2d 208); Swofford v. Glaze, 207 Ga. 532, 535 (63 SE2d 342); Dixon v. Dixon, 211 Ga. 557, 563 (87 SE2d 369). Not only was there no confidential relationship between plaintiffs and the defendant because of their business dealings, but their interests were antagonistic as they were adversaries in the attempts of the plaintiffs to collect their accounts from defendant's corporation. See Clinton v. State Farm Mut. Auto Ins. Co., 110 Ga. App. 417, 424 (2b), supra; Wheat v. Montgomery, 130 Ga. App. 202 (3) (202 SE2d 664); American Security Van Lines v. Amoco Oil Co., 133 Ga. App. 368, 369 (210 SE2d 832).
(c) "`A court of equity will not afford relief to a party who, with all the means of protecting himself against the imposition of the other party, abandons them and relies on his statements.'" Sorrells v. Atlanta Transit System, Inc., 218 Ga. 623, 628 (129 SE2d 846). "[I]t is the business of a litigant to be on his guard against fraud and trickery..." Milner v. Gatlin, 143 Ga. 816, 818 (85 S.E. 1045). Where a defendant, as in this case, "had no right to avoid this judgment, except for fraud ... in order to do this, he must have been vigilant in detecting and exposing the fraud." Mahan v. Cavender, 77 Ga. 118, 123. We conclude *586 defendant was neither vigilant nor diligent.
We find Peacock v. Walker, 213 Ga. 628, 630, supra, and Cotton States Mut. Ins. Co. v. Booth, 116 Ga. App. 410, supra, controlling. Where a party is personally served, and is named in the complaint as a defendant, if he has a defense at law and fails to answer, based upon assertions of law of the plaintiff or his counsel that he is not being sued in his personal capacity where there is no confidential relationship between the parties, equity will not relieve him of the consequences of his failure to believe what the complaint legally advised him.
3. The remaining enumerations have been examined and determined to be without merit.
Judgments affirmed. Shulman and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2429263/ | 204 F. Supp. 2d 1181 (2002)
UNITED STATES of America Plaintiff
v.
Christopher Shawn DEATON Defendant
No. 4:99Cr00087(2) GH.
United States District Court, E.D. Arkansas, Western Division.
May 22, 2002.
*1182 Todd Lister Newton, Esq., Assistant United States Attorney, Eastern District of Arkansas, Little Rock, AR, for Plaintiff.
Will Bond, Esq., Bond & Chamberlin, Jacksonville, AR, E. Alvin Schay, Esq., Attorney At Law, Little Rock, AR, for Defendant.
ORDER
GEORGE HOWARD, Jr., District Judge.
On November 2, 2001, a jury found defendant guilty of possession of child pornography. Judgment was entered on April 23, 2002. He was sentenced to 57 months imprisonment; 3 years supervised release, and a $100 assessment. As a special condition of supervised release, the Court ordered that defendant not subscribe to any Internet providers or use the services of the Internet.
Defendant has filed a motion for correction of sentence. He asks that the restriction on access to the Internet be eliminated. The government opposes defendant's request.
The Court has wide discretion in imposing the terms and conditions of supervised release. United States v. Scott, 270 F.3d 632, 635 (8th Cir.2001). However, the discretion is limited by 18 U.S.C. § 3593(d) which requires that the special conditions be reasonably related to
"(1) `the nature and circumstances of the offense and the history and characteristics of the defendant,' (2) the need `to afford adequate deterrence to criminal conduct,' (3) the need `to protect the public from further crimes of the defendant,' and (4) the need `to provide the defendant with needed [training], medical care, or other correctional treatment in the most effective manner.'"
United States v. Paul, 274 F.3d 155, 165 (5th Cir.2001) (quoting 18 U.S.C. § 3553(a)(1)-(2) (1994)).
"Additionally, the conditions imposed cannot involve a greater deprivation of liberty than is reasonably necessary to effectuate the goals of Congress and the Sentencing Commission... Furthermore, conditions imposed must be especially fine-tuned if they restrict the freedom of persons on probation or supervised release." 270 F.3d at 635 (citations and internal quotations omitted).
Courts have varied in their treatment of Internet access where a defendant is convicted of child pornography. The most recent pronouncement is United States v. Sofsky, 287 F.3d 122 (2d Cir.2002), where the defendant challenged the special condition that he "not access a computer, the Internet, or bulletin board systems at any time, unless approved by the probation officer." The court found that the condition "inflicts a greater deprivation of [the defendant's] liberty than is reasonably necessary." Id. at 126. The court noted that less restrictive means are available to monitor the defendant to ensure he did not access pornography, such as unannounced inspections of the defendant's premises and examination of material stored on his hard drive or removable disks, or the setting up of a sting operation through the use of government placed Internet ads for pornography.
*1183 Sofsky represents the far end of the spectrum of cases, that is, elimination of the restriction. The Tenth Circuit takes a more moderate view of the restriction, The court in United States v. Walser, 275 F.3d 981, 988 (10th Cir.2001) approved a condition where the defendant had to obtain prior permission from the probation office before using the Internet. The court noted the condition, which did not completely ban the defendant from using the Internet, accomplished "the goal of restricting the use of the Internet" and "balanced" "the protection of the public with the goals of sentencing." Id.
Similarly, in United States v. Crandon, 173 F.3d 122, 128 (3rd Cir.1999), the court approved the restriction that "[t]he defendant shall not possess, procure, purchase or otherwise obtain access to any form of computer network, bulletin board, Internet, or exchange format involving computers unless specifically approved by the U.S. Probation Office." 173 F.3d at 127. The court found that condition was reasonably related to the goal of deterring defendant from engaging in further criminal conduct and in protecting the public, particularly in light of defendant's use of the Internet to develop an illegal sexual relationship with a young female over a period of months. See also United States v. White, 244 F.3d 1199, 1206 (10th Cir.2001) (finding that prohibition on possession of computer with Internet access both too narrow and overly broad and requiring modification to reflect realities of the Internet and to permit reasonable monitoring by a probation officer.)
At the other end of the spectrum is the absolute prohibition on access to computers and the Internet approved by the court in United States v. Paul, 274 F.3d 155, 170 (5th Cir.2001). The court found that the condition was reasonably related to the defendant's offense and "the need to prevent recidivism and protect the public." Id. at 169. In that case, the evidence revealed that the defendant had used the Internet extensively to engage in the trafficking of child pornography as well as to "encourage exploitation of children by seeking out fellow `boy lovers' and providing them with advise on how to find and obtain access to `young friends.'" Id. An absolute prohibition on accessing the computers and the Internet was found to be reasonably necessary.
The restriction in this instance is a complete ban, such as that in Paul. The Court is persuaded, based on the facts of this case, that an absolute ban on the use of the Internet is overly broad and not reasonably necessary. The evidence reflects that defendant's conduct was not near as egregious as that in Paul. Additionally, defendant was on bond for an extended period of time without any incident which militates against the need for a broader restriction to prevent future criminal activity.
The Court finds that the condition should be modified to the following provision: Defendant is prohibited from using the services of the Internet or subscribing to any Internet Providers without prior permission from the U.S. Probation Office. In considering any requests by defendant, the Probation Officer should consider the importance of the Internet as a legitimate means to obtain important information as well as the ever expanding use of the Internet as a means of communication in our society. As the courts have noted, the computer is a "central means of information gathering and communication in our culture today." 275 F.3d at 988.
Accordingly, the motion for correction of sentence is granted to the extent set forth above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265219/ | 657 F. Supp. 182 (1987)
Christopher COE, et al., Plaintiffs,
v.
Linda ZIEGLER, et al., Defendants.
Civ. No. C-1-84-1463.
United States District Court, S.D. Ohio, W.D.
March 17, 1987.
*183 John H. Metz, Cincinnati, Ohio, for Michael and Christopher Coe.
Frank J. Wasserman, Trial Atty. James O'Connor, Co-Counsel, Legal Aid Soc. of Cincinnati, Cincinnati, Ohio, for Mary, Danny, and Sondra Smith.
Hugh Frost, II, Robert H. Johnstone, Asst. City. Sol., Michael E. Maundrell, Cincinnati, Ohio, for County Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
DAVID S. PORTER, Senior District Judge:
This case, before the Court pursuant to 42 U.S.C. § 1983, is a constitutional challenge to the Ohio Child Removal Statute, Ohio Rev.Code § 2151.33 and rules thereunder. Jurisdiction is premised on 28 U.S.C. §§ 1331 and 1343(3) and (4). The issues were bifurcated for trial pursuant to Federal Rules of Civil Procedure 42(b), with the claim for injunctive relief tried first, and the claim for damages to be tried at a later date.
Prior to trial we denied plaintiffs' motion for summary judgment (Doc. 57). In a separate order we held the defendants O'Connor, Ziegler, Connelly, and Hart to be immune from damages liability in this suit (Doc. 34).
This case came on for trial December 16 and 17, 1986. It was tried to the Court and is submitted on the basis of the testimony adduced at trial, the exhibits, and the submissions of the parties. Additionally, defendants' motion to dismiss plaintiffs' claims for injunctive and declaratory relief is fully briefed (Docs. 72, 75, 78, 79 81) and pending, and is ruled on herein. The following constituties Findings of Fact and Conclusions of Law pursuant to Federal Rules of Civil Procedure 52.
FINDINGS OF FACT
1. Plaintiffs are a class of parents who are under a present threat of having their children removed from their legal and physical custody pursuant to Ohio Rev. Code § 2151.33, and those parents whose children are currently in the custody of the Hamilton County Department of Human Services pending a hearing of a complaint against the parents.
2. Plaintiff Michael Coe is a resident of Hamilton County, Ohio, and a citizen of the United States. He is the natural father and legal custodian of plaintiff Christopher Coe. Christopher Coe is a minor who resides with Michael Coe. Christopher Coe brings this suit through Michael Coe as his next friend. These plaintiffs have adopted pseudonyms for purposes of this litigation to maintain the confidentiality of plaintiffs' Juvenile Court records.
*184 3. Plaintiff Mary Smith is a resident of Hamilton County, Ohio, and a citizen of the United States. She is the natural mother and legal custodian of plaintiffs Sondra Smith and Danny Smith. Sondra and Danny Smith bring this action through Mary Smith as their best friend. These Plaintiffs have adopted pseudonyms for purposes of this litigation to protect the confidentiality of their Juvenile Court records.
4. Defendant John P. O'Connor is judge of the Hamilton County Common Pleas Court, Juvenile Division. In that capacity, he is ultimately responsible for policies established or enforced by employees or agents of said Court. The powers of that Court are set out at O.R.C. § 2151.07.
5. Defendant Linda Ziegler is the social worker with the Hamilton County Department of Human Services (hereinafter "HCDHS"), to whom the case of the plaintiffs had been assigned for investigation. At all times relevant hereto, Ms. Ziegler was acting within the course and scope of her employment with HCDHS.
6. Defendants Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 are employees and/or agents of the Hamilton County Department of Human Services who were in charge of or otherwise involved in the supervision of the minor plaintiffs named herein during the period of said detention of said minor plaintiffs at the Allen House, as alleged in this Complaint. At all times relevant hereto, they were acting within the scope of their employment and in furtherance of their employer's business.
7. Defendant Kathleen Byrne is the Section Chief of the Family and Children Services Division of the HCDHS. In that capacity, she has immediate responsibility for the policies and practices regarding the taking into custody of children prior to adjudication and for their care and placement after they are taken into custody.
8. Defendant Seth P. Staples is Director of the HCDHS, an official agency of Hamilton County, Ohio. In that capacity, he has ultimate responsibility for the policies and practices of the Family and Children Services Division complained of herein. The general powers and duties of defendant Staples are set out at O.R.C. § 5153.01 et seq.
9. Defendant Hamilton County Department of Human Services is the public child welfare agency operated by Hamilton County, Ohio, which, pursuant to Ohio statutes and regulations of the Ohio Department of Human Services, has direct responsibility for providing child welfare and protection services. The powers and duties of HCDHS regarding child welfare are set forth in Ohio Rev.Code § 5153.16.
10. Hamilton County, Ohio is a political entity which is responsible for, inter alia, creating and maintaining the Hamilton County Department of Human Services.
11. Defendants Norman Murdock, Robert Taft and Joseph DeCourcy are County Commissioners of Hamilton County, Ohio, and in their official capacities are ultimately responsible for the policies and practices of county agencies, including HCDHS.
12. Defendants Officer Connelly and Officer Hunt are police officers employed by the City of Cincinnati Police Department who participated in the removal of minor plaintiffs from their home. At all times relevant hereto, they were acting within the scope of such employment.
13. The basic set of facts set out in our order denying summary judgment was supported at trial, and are incorporated below.
On October 5, 1983, defendant Linda Ziegler, who was employed as an intake worker with defendant Hamilton County Department of Human Services (HCDHS), was assigned to investigate a complaint concerning minor plaintiff Christopher Coe (tr. 115).
On October 7, 1983, Ziegler conducted an investigation at the plaintiffs' residence regarding neglect allegations involving plaintiff parents Michael Coe and Mary Smith (tr. 112-129).
At the conclusion of the investigation, Ziegler called defendant Judge John P. O'Connor of the Hamilton County Common Pleas Court, Juvenile Division (tr. 129-30). During the telephone conversation, Judge O'Connor orally ordered the removal of the *185 three minor plaintiffs (including Sondra Smith) from the physical custody of their parents (tr. 130). The children were removed with the assistance of the two defendant police officers (tr. 114).
Minor plaintiffs were placed in Allen House, a shelter care facility that provides juvenile children with temporary shelter (tr. 202).
On October 11, complaints were filed by defendant Ziegler alleging the children were dependent, neglected or abused (See Witness Summary of Linda Ziegler, doc. 70). On the same day, an ex parte hearing was conducted and Judge O'Connor issued an order continuing the state's temporary custody of the minor plaintiffs. Id.
Finally, on October 14, 1983, an adjudicatory hearing was held and the emergency placement of the minor plaintiffs was continued. Id.
Ultimately, the children were returned to their parents, and, on February 28, 1984 the complaints filed by HCDHS were voluntarily dismissed (tr. 205).
14. Plaintiffs' exhibit 11, attached as Appendix A, purports to be the adopted written practice of the Juvenile Court regarding emergency child removal orders. Plaintiffs concede that plaintiffs' exhibit 11 satisfies constitutional requirements (Tr. 316).
CONCLUSIONS OF LAW
On September 3, 1986 this Court denied plaintiffs' motion for summary judgment challenging the constitutionality of the Ohio child removal statute. The Court concluded that the statute was not unconstitutionally vague, nor facially unconstitutional, and held that there existed a genuine issue of material fact whether the statute violated procedural due process as applied. We also concluded that:
The state's interest in removing a child from its home prior to hearing becomes `compelling' only when the child is in danger of immediate or threatened psychological, emotional, or physical harm. The preadjudicatory removal of children from their families for reasons which fall below this standard violates the constitutional protection of family integrity.... (Citations omitted.)
See Doe v. Staples, C-1-81-16 (S.D.Ohio, June 23, 1981), aff'd in part and rev'd in part, 706 F.2d 985 (6th Cir.1983).
At trial, the parties presented evidence whether the current practice of the Juvenile Court in ordering the emergency removal of children satisfies the above stated constitutional requirement. Defendants also argued that plaintiffs' claim for injunctive relief must be dismissed on grounds of res judicata/collateral estoppel and mootness. We have concluded that the mootness question accurately frames the controlling issue of this case, which is whether the defendants have permanently implemented constitutionally permissible child removal procedures. We deal with the res judicata/collateral estoppel first.
Defendants' res judicata/collateral estoppel argument is based on the contention that plaintiffs' claims are barred by res judicata and collateral estoppel since plaintiffs allegedly had a full and fair opportunity to litigate the constitutional issues raised by this suit in an earlier state court proceeding. Defendants claim that the petition for a writ of habeas corpus filed by the named plaintiffs in this action on October 11, 1983 operates as a bar to the claims of plaintiff class members in this action. Defendants' contention is clearly incorrect.
Under Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984), a federal court is required "to give a prior state court judgment the same preclusive effect in subsequent Section 1983 litigation as it would be given under the law of the state in which the judgment was rendered. Hence, under Migra we must first look to Ohio law to determine the preclusive effect of the state court proceeding in this case." Duncan v. Peck, 752 F.2d 1135 (6th Cir. 1985), citing, Migra, supra.
The Sixth Circuit has adopted Norwood v. MacDonald, 142 Ohio St. 299, 52 N.E.2d 67, 71 (1943), as the relevant touchstone in this regard. Duncan, supra. In order for *186 an Ohio judgment to carry a preclusive effect in the present action, the state case and the federal case must both be based on the same cause of action, even though each action relates to the same subject matter. Norwood, supra at syllabus para. 2. There also must exist an identity of parties. See infra. The burden is on the defendants to plead and prove the affirmative defense of res judicata.
Defendants have not proved that the cause of action stated in a writ of habeas corpus of a child is the same as that stated in the § 1983 case sub judice. Habeas corpus is an extraordinary remedy that may be utilized when the Order of Commitment of Custody attacked is void, because made without jurisdiction, In re Ramsey, 164 Ohio St. 567, 571, 132 N.E.2d 469, 473 (1956), and where there is no adequate remedy at law. In re Davis, 18 Ohio St. 3d 226, 480 N.E.2d 775, 776 (1985).
Plaintiffs argue persuasively that the only cause of action which the named plaintiffs could have raised in their habeas corpus complaint was whether the parents were unlawfully deprived of the custody of their children. By contrast, the instant § 1983 claim alleges that the Hamilton County Welfare Department engaged in a practice of removing children prior to the filing a complaint that was unconstitutional. Res judicata is therefore not a bar to the instant action. See Norwood, supra.
Likewise this action is not barred on grounds of collateral estoppel. Ohio law requires an identity of parties in order for res judicata or collateral estoppel to apply. Goodson v. McDonough Power Equipment, Inc., 2 Ohio St. 3d 193, Syllabus ¶ 1, 443 N.E.2d 978 (1983). Since the class plaintiffs who are parties to this action for injunctive relief were not parties to the original action, collateral estoppel does not apply.
Therefore defendants' motion to dismiss the case on grounds of res judicata and collateral estoppel is denied.
Defendants' next ground for dismissal is that the plaintiffs' action is moot. Defendant argues that the procedures currently used by the Hamilton County Juvenile Court to remove children on an emergency basis fully complies with constitutional requirements. (Defendants' Motion for Dismissal, Doc. 72 at 4). These procedures are set forth in plaintiffs' Exhibit 11, attached hereto as Appendix A. In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979), the Supreme Court set forth the following rules governing mootness:
"Simply stated, a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 [89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491] (1969). We recognize that, as a general rule, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." United States v. W.T. Grant Co., 345 U.S. 629, 632 [73 S. Ct. 894, 897, 97 L. Ed. 1303] (1953). But jurisdiction, properly acquired, may abate if the case becomes moot because
(1) it can be said with assurance that "there is no reasonable expectation ..." that the alleged violation will recur, see id., at 633; see also SEC v. Medical Committee for Human Rights, 404 U.S. 403 [92 S. Ct. 577, 30 L. Ed. 2d 560] (1972), and
(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. See, e.g., DeFunis v. Odegaard, 416 U.S. 312 [94 S. Ct. 1704, 40 L. Ed. 2d 164] (1974); Indiana Employment Security Div. v. Burney, 409 U.S. 540 [93 S. Ct. 883, 35 L. Ed. 2d 62] (1973).
When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.
The burden of demonstrating mootness "is a heavy one." See United States v. W.T. Grant Co., supra [345 U.S.], at 632-633 [73 S.Ct., at 897].
Since plaintiffs have conceded that the procedures outlined in plaintiffs' exhibit 11 satisfy constitutional requirements, *187 we agree with defendants that this case would be moot if those procedures have been permanently implemented. However, there is no evidence currently before the court except for the inconclusive testimony of Judge O'Connor that the procedures contained in exhibit 11 have been implemented on a permanent basis. Judge O'Connor did not know whether the imminent harm standard for child removal, first set forth in Doe v. Staples, supra, and adopted by this Court had ever been reduced to writing by any personnel of the court, instructing the Juvenile Court referees of the correct standard to apply in emergency removal decisions. Likewise, Judge O'Connor could not agree that the imminent risk of harm standard, which is expressed in exhibit 11, was the appropriate standard to apply (tr. 268-271). Judge O'Connor also admitted that the procedures in exhibit 11 are subject to further definition, expansion and limitation (tr. 285-287). Exhibit 11 is an untitled and unsigned document. There is no court order that would indicate that the policies and procedures expressed in plaintiffs' exhibit 11 are permanent (tr. 288).
A court speaks through its journal. Plaintiffs accurately point out that plaintiffs' exhibit 12, a Juvenile Court journal entry styled MJ 84-64 and signed by both Juvenile Court judges does formally implement one procedure reflected in plaintiffs' exhibit 11, namely, that once a child is admitted to shelter care upon an ex parte order, a hearing will be held the next court day or within 72 hours. (See tr. 288-89.) Clearly, the formal entry and implementation of only one aspect of plaintiffs' exhibit 11 reinforces the conclusion that the other procedures contained therein have not been formally and permanently implemented. We therefore find that defendants have not met their heavy burden of proving this case is moot.
The defendants, arguing that the procedures outlined in exhibit 11 have been implemented by the Juvenile Court, cannot be heard to argue that it would be unfair or onerous for this Court to order the formal implementation of those procedures. Likewise, plaintiffs concede that the procedures satisfy minimum constitutional requirements. We therefore conclude that the appropriate relief in this case is to order exhibit 11 to be formally and permanently implemented.
ORDER
A court speaks through its journal. Therefore, unless the Hamilton County Juvenile Court journalizes, and thereby formally and permanently implements the policies and procedures expressed in plaintiffs' Exhibit 11 within twenty days, an injunction will issue from this Court ordering the implementation of those procedures. If the Juvenile Court so orders, the equitable relief sought by plaintiffs will be denied.
SO ORDERED.
APPENDIX A
Due to certain recent appellate decisions and to insure due process to parties, necessary revisions are being made in the dependency/paternity areas.
At present, the procedures in three categories are undergoing significant change. These categories are: 1. the filing of initial plans, comprehensive reunification plans (CRP), modifications and other materials with the court; 2. service of civil summons and, 3. predispositional temporary orders. A brief outline of the new procedures is included for your benefit. Please bear in mind that these new procedures may be altered or expanded in the near future until they become settled and can be assessed to determine if they fulfill their purpose.
I. THE FILING OF INITIAL PLANS, CRP's, MODIFICATIONS, AND OTHER MATERIALS WITH THE COURT.
A. All initial plans, CRP's, modifications, motions, etc., which are to be part of the record, must be filed with the Clerk of Juvenile Court. These items are not properly filed when given to the dependency case manager or the referee.
B. The referee cannot modify a filed document by altering the original in court. Alterations can be made by the referee, but only as written in a court entry. If the alterations are numerous, *188 an amended CRP may need to be filed, again in the clerk's office. Any alterations or amendments of a CRP, must be then sent to the parents who have ability to object within a certain time frame.
C. The agency may informally review a proposed CRP with the referee before filing to help avoid later alterations.
D. After filing the initial plan, the Court will conduct a review of the plan. The Court will formally approve and incorporate the initial plan in a judgment entry.
E. After filing the CRP, the Court will conduct a review of the plan and consider parental objections if any. A formal hearing may be held. In any event, the Court will formally approve and incorporate the CRP in a judgment entry.
F. Each initial plan, CRP and modification will be reviewed in a timely fashion so that only minimal disruption will result from the delay required for review.
II. SERVICE OF CIVIL SUMMONS
A. At preliminary hearings, a party who requested publication service will be asked what reasonable efforts were made to determine the name and address of the person served by publication.
B. Upon the filing of a complaint, the petitioner must instruct the clerk concerning what type service is requested. (Simple form to be provided) (Precipae)
C. When an unsatisfactory return is received by the clerk, (refusal, unclaimed mail), the clerk will notify the party in writing and the party must then give further written instructions to the clerk. (Simple form to be provided) (Precipae)
D. All written communication between the party and the clerk will be documented and become part of the legal record.
E. Service by certified mail will instruct the served party to appear on a date at least 28 days after mailing. If unclaimed or refused, another 28 day period may be required after a second mailing before the Court can effectively act in the served party's absence.
F. Service will be reviewed by the referee at the earliest hearing and statements regarding service will be made a part of the Court's entry.
G. Unfortunately, the unique nature of Juvenile Law will lead to seemingly unsolvable conflicts in statutory time periods. Each such incident will need to be individually reviewed and decided by the Court.
III. PREDISPOSITIONAL TEMPORARY ORDERS (E.O.)
A. A complaint must be filed before the Court will issue any order, except in rare cases where the child is in imminent life threatening danger, and the Court must act under the doctrine of Parens Patriae to protect the child.
B. Whenever a temporary order is sought, a motion must be filed with the Court setting out the reasons a temporary order is necessary.
C. Wherever possible, a copy of the motion for a temporary order should be served upon the parties and a hearing on the motion should be scheduled by the Court. If the delay caused by scheduling would place a child at risk, the Court stands ready to "squeeze in" a hearing during normal work hours. Such a "squeezed in" hearing can be arranged with the dependency case manager and the parties can then be instructed to appear immediately before the Court.
D. Whenever a temporary order is sought, and the party is seeking an ex parte hearing the motion should set out the reasons necessitating an ex parte hearing.
1. The court will not hear a motion for a temporary order, ex parte, unless 1. The child is in immediate danger and, 2. The other parties (parents) are unavailable for a hearing or the delay caused by such a hearing would place the child at risk.
2. Wherever possible, only a judge will issue ex parte temporary orders *189 and referees will only issue temporary orders where all parties are present.
3. During working hours, the judge will conduct the ex parte hearing on the record, or if issuing the order in chambers, the testimony will be preserved by a referee. In either case, a written entry will result.
4. During non-working hours, the judge will conduct the ex parte hearing on the telephone and may issue a verbal order.
5. If an ex parte temporary emergency order is issued by the judge, a hearing will be scheduled the next court day or within 72 hours, whichever is earlier. The hearing will be at 8:30 a.m. before a referee at the Alms & Doepke Building. The party seeking the order is responsible to make reasonable efforts to notify the parties of the time and place of this hearing. The purpose of the hearing will be to determine whether the emergency order should continue pending further hearings. The hearing will be informal and without regard to rules of evidence, but parties will be able to cross-examine witnesses testifying at the hearing, and may present witnesses in their behalf.
E. When a child is removed from his parent by a law enforcement officer or other as statutorily authorized, the Court upon the filing of a complaint and notification that such removal has occurred, will hold a hearing the next court day or within 72 hours whichever is earlier. The hearing will be at 8:30 a.m. before a referee at the Alms & Doepke Building. The party filing the complaint is responsible to make reasonable efforts to notify the parties of the time and place of this hearing. The purpose of this hearing will be to determine whether the removal should continue pending further hearings. The hearing will be informal and without regard to rules of evidence, but parties will be able to cross-examine witnesses testifying at the hearing and may present witnesses in their behalf.
F. Whenever a temporary order is issued under paragraphs C, D, or E, an adjudicatory hearing will be scheduled within 10 days of the filing of the complaint or removal of the child from the parents, whichever is appropriate.
1. The adjudicatory hearing may be continued for good cause shown.
2. At this hearing, the issue of whether the temporary order should continue will again be reviewed by an informal hearing not subject to the rules of evidence. The parties may cross-examine witnesses who testify at the hearing and present witnesses in their behalf.
3. Hopefully, by this hearing, counsel for the parties and a guardian-ad-litem will be present.
G. Further hearings to review the continuation of a temporary order may be held upon motion by any party.
*190 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265237/ | 657 F. Supp. 2d 957 (2009)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
FPM GROUP, LTD, Defendant.
No. 3:08-CV-380.
United States District Court, E.D. Tennessee, at Knoxville.
September 28, 2009.
*960 Deidre Smith, Faye A. Williams, United States of America, Equal Employment Opportunity Commission, Memphis, TN, Sally Ramsey, United States of America, Equal Employment Opportunity Commission, Nashville, TN, for Plaintiff.
FPM Geophysical and UXO Services, Inc., Ronkonkoma, NY, pro se.
MEMORANDUM AND ORDER
THOMAS A. VARLAN, District Judge.
This civil action is before the Court on defendant FPM Group LTD's ("FPM's"), Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint and Failure to State a Claim [Doc. 11]. Plaintiff Equal Employment Opportunity Commission ("the Commission") has filed a Response in Opposition to Motion to Dismiss the Amended Complaint [Doc. 12]. FPM has not filed a reply. Thus, the matter is now ripe for determination. The Court has carefully considered the pending motion and the related pleadings in light of the applicable law and, for the reasons set forth below, the Court will deny FPM's Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint and Failure to State a Claim [Doc. 11].
I. Relevant Facts and Procedural History
The Commission filed a Complaint [Doc. 1] against FPM on September 17, 2008, alleging claims of unlawful employment practices on the basis of age pursuant to § 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) ("the ADEA"), which incorporates by reference §§ 16(c) and 17 of the Fair Labor Standards Act of 1938 ("the FLSA"), as amended, 29 U.S.C. §§ 216(c) and 217. The Commission alleged that on or around June 26, 2007, Richard Bennington (hereinafter, "Bennington"), then sixty (60) years of age, contacted the Oak Ridge, Tennessee office of FPM seeking a position in the Unexploded Ordnance industry, a position for which Bennington was qualified. Bennington submitted a resume and certification to FPM and the company responded, by email, that it preferred not to hire someone of [Bennington's] experience into a Tech II position because "it is a young T2 sport down here...." [See Docs. 1, ¶ 14, 9, ¶ 14]. The Commission alleges that this failure to consider Bennington for this position and other future positions was because of his age and that FPM continued to fill positions at the Oak Ridge location, including issuing a contract to a younger employee.
Prior to the initiation of this action, Bennington filed a charge of age discrimination with the Commission. The Commission found cause to believe that discrimination had occurred and attempted, to no avail, to effect voluntary compliance with FPM. The Commission then filed the Complaint [Doc. 1], to which FPM filed a Motion to Dismiss Due to Defective Waiver of Service and Defective Complaint [Doc. 4]. The Commission then filed a response in opposition to the motion [Doc. 6] and FPM filed a reply [Doc. 8].
On November 13, 2008, the Commission filed an Amended Complaint [Doc. 9] to correct the caption name of FMP. FPM returned the waiver of service [Doc. 10] and filed a Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint, and Failure to State a Claim [Doc. 11]. The Commission responded [Doc. 12] and FPM has not filed a reply. On September 21, 2009, this Court entered an Order [Doc. 21] denying as moot FPM's Motion to Dismiss Due to Defective Waiver of Service and Defective Complaint [Doc. 4] in light of the Amended Complaint [Doc. 9] and the parties' subsequent filings.
*961 II. Analysis
In FPM's Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint and Failure to State a Claim [Doc. 11], FPM moves to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b), pursuant to four theories: (1) defective venue; (2) defective jurisdiction; (3) defective complaint; and (4) failure to state a claim. In light of FPM's arguments and the Commission's response, the Court will treat FPM's motion [Doc. 11] as a motion falling under the following Federal Rule of Civil Procedure 12(b) theories: a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction; a Rule 12(b)(3) motion to dismiss for improper venue; and a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. See Fed. R. Civ. Pro. 12(b)(1), (3), (6).
In its motion, FPM also moves this Court to strike all references in the Amended Complaint pertaining to FPM's alleged "past, present and ongoing age discrimination policies or `willful' unlawful employment practices." [Doc. 11, p. 7]. The Court will treat this part of FPM's motion as a Federal Rule of Civil Procedure 12(f) motion to strike. See Fed. R. Civ. Pro. 12(f). Finally, FPM moves this Court to order the Commission to file a more definitive statement pursuant to Federal Rule of Civil Procedure 12(e) [Doc. 11, p. 8]. See Fed. R. Civ. Pro. 12(e).
1. Lack of Subject Matter Jurisdiction
FPM argues that the jurisdiction invoked in the Commission's Amended Complaint is questionable and "improperly stated as to fact and law." [Doc. 11, p. 5]. FPM presents two arguments in support of this assertion. First, FPM argues that this Court does not have jurisdiction over the Commission's claims because the Commission has improperly invoked the ADEA in bringing this action. Second, FPM argues that the Commission has not met the jurisdictional requirement of an amount in controversy pursuant to 28 U.S.C. § 1337. The Court will treat these arguments as arguments pursuant to a motion to dismiss for lack of subject matter jurisdiction. See Fed. R. of Civ. Pro. 12(b)(1). In response to a Rule 12(b)(1) motion, the plaintiff bears the burden of proving jurisdiction and a court is empowered to resolve factual disputes when subject matter jurisdiction is challenged. Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 224 (6th Cir.2007) (quoting Moir v. Greater Cleveland Reg'l Transit. Auth., 895 F.2d 266, 269 (6th Cir.1990)).
FPM's first argument is that the Commission should not have brought its claims under the ADEA because FPM had only "5 employees at the time of the alleged incident in its Oak Ridge branch office." [Doc. 11, p. 5]. FPM asserts that this is a fact known by the Commission and in the Commission's record [Id.]. In response, the Commission asserts that it has filed suit against FPM Group, LTD, the parent company of the Oak Ridge, Tennessee branch office and that FPM admitted, in the "FPM Group's Reply to U.S. Equal Employment Opportunity Commission Request for Information," that it employed fifty-eight (58) full time employees and sixteen (16) part time employees [See Doc. 13-1, "Declaration and Certification of Katharine W. Kores"].
For an employer to be subject to suit under the ADEA, that employer must be "a person engaged in commerce who has twenty (20) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calender year." See 29 U.S.C. § 630(b). The Court first notes that the Commission named FPM Group, LTD as defendant in the Amended Complaint and *962 that receipt of the Amended Complaint was acknowledged by FPM in its waiver of service of summons [See Docs. 9, 10]. The Commission has also attached the Declaration of Katherine W. Kores, Director of the Memphis District Office of the Equal Employment Opportunity Commission, to support its assertion that FPM had more than twenty (20) employees [See Doc. 13-1, "Declaration and Certification of Katharine W. Kores"]. FPM, on the other hand, has not attached any affidavits or indicated any facts supporting the assertion that it only has five (5) employees [See Doc. 11, p. 5]. Thus, in light of the relevant filings and the Court's standard of review regarding a Rule 12(b)(1) motion to dismiss, the Court determines that the Amended Complaint is sufficient to bring a claim under the ADEA. See 29 U.S.C. § 630(b). Thus, FPM's motion to dismiss for defective jurisdiction in this regard is denied.
FPM's second argument as to subject matter jurisdiction is that the Commission has not meet the jurisdictional requirement of an amount in controversy pursuant to 28 U.S.C. § 1337. In opposition, the Commission asserts that jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Section 451 defines the terms used in Title 28. See 28 U.S.C. § 451. Section 1331 provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." See id. § 1331. Section 1337(a) states that "[t]he district court shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce...." See id. § 1337(a). Section 1343 provides that "district courts shall have original jurisdiction" over civil actions regarding acts of Congress protecting civil rights. See id. § 1343. Finally, section 1345 states that "the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by an Act of Congress." See id. § 1345.
A federal question refers to "civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Whether a claim arises under federal law is determined under the "well-pleaded complaint" rule, which generally looks only to the plaintiff's complaint. See Palkow v. CSX Transp., Inc., 431 F.3d 543, 552 (6th Cir.2005). Federal question jurisdiction extends over "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of Cal v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). Under the well-pleaded complaint rule, courts determine whether a claim or right arises under federal law by examining the "well-pleaded" allegations of the complaint and ignoring potential defenses. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir.2007) (citing Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003)). In other words, "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 758 (6th Cir.2000) (citation omitted). Thus, the Court will look to the face of the Commission's Amended Complaint to determine if jurisdiction in this Court is proper.
The Commission has brought its claims under the ADEA, a federal law and an Act of Congress regulating commerce and providing for the protection of civil rights. See 29 U.S.C. § 626(b). The ADEA gives the Commission, the plaintiff *963 in this action and an agency of the United States, the power of its enforcement. See id. § 621. Moreover, none of the above statutes conferring jurisdiction on this Court require an amount in controversy. Rather, under 28 U.S.C. § 1337, it is only actions brought pursuant to 49 U.S.C. §§ 11706 and 14706 that require an amount in controversy exceeding $10,000, not actions brought under the ADEA. See 28 U.S.C. § 1337(a), (b). Therefore, on the face of the Amended Complaint, subject matter jurisdiction in this Court is proper pursuant to 28 U.S.C. § 451, 1331, 1337, 1343, and 1345. Accordingly, FPM's motion to dismiss for defective jurisdiction in this regard is also denied.
2. Improper Venue
FPM has alleged that venue is improper in this Court pursuant to 28 U.S.C. § 1391 because no substantial part of the events giving rise to the Commission's claims occurred in this district [Doc. 11, pp. 2-4]. In opposition, the Commission asserts that venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) and 1391(c).
The plaintiff has the burden to establish that venue is proper. Gomberg v. Shosid, No. 1:05-cv-356, 2006 WL 1881229 (E.D.Tenn. July 6, 2006). On a motion to dismiss for improper venue, pursuant to Federal Rule of Civil Procedure 12(b)(3), a court may examine facts outside the complaint, but must draw all reasonable inferences and resolve factual conflicts in favor of the plaintiff. See Gone to the Beach, LLC v. Choicepoint Serv., Inc., 434 F. Supp. 2d 534, 537 (W.D.Tenn.2006); Fed. R. Civ. Pro. 12(b)(3).
In this case, venue as to FPM is governed by 28 U.S.C. § 1391(b)(2), which provides the following:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in ... (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.
28 U.S.C. § 1391(b)(2).
For purposes of venue under this chapter, a defendant that is a corporation is governed by 28 U.S.C. § 1391(c), which provides:
[A] defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.
28 U.S.C. § 1391(c).
Thus, at the time this action commenced, if FPM was subject to personal jurisdiction in Tennessee, venue in this Court will be proper if a substantial part of the events giving rise to the Commission's claim occurred in Oak Ridge, Tennessee. See 28 U.S.C. § 1391(b)-(c). Because FPM is a corporation [Doc. 3, ¶ 1] and has not objected to personal jurisdiction in the State of Tennessee, the Court must now determine whether the facts alleged in the Amended Complaint, when viewed with all reasonable inferences in favor of the Commission, show that a substantial part of the events occurred in Oak Ridge, Tennessee. See, e.g., Gone to the Beach, LLC, 434 F.Supp.2d at 537.
The Commission has alleged that the employment contract at issue in this action identified the work location as "FPM Geophysical & UXO Services (Division of FPM Group, LTD), 706 S. Illinois Ave., Suite D-104, Oak Ridge, TN 37830" and that Bennington contacted this Oak Ridge, Tennessee office seeking employment [See Doc. 9, ¶¶ 4, 8, 10, 12-14]. The Commission has also attached an employment contract entered into by FPM that emanated from FPM's Oak Ridge, Tennessee office [Doc. *964 7-2, Exhibit B]. William Howell and Jeff Hackworth, the hiring officials the Commission alleges are involved in its claim against FPM, are identified as "UXO Department Manager, FPM Geophysical & UXO Services" and "Division Manager, FPM Geophysical & UXO Services," respectively [Id.; see Doc. 9, ¶ 14]. Further, Jeff Hackworth's office location is identified as Oak Ridge, Tennessee [Doc. 7-2, Exhibit B]. Thus, according to these alleged facts, the subsequent pleadings, and relevant exhibits, the Court finds that a substantial part of the events or omissions giving rise to the Commission's claim against FPM occurred in Oak Ridge, Tennessee. Therefore, venue in this Court is proper and FPM's motion to dismiss for improper venue is denied.
3. Failure to State a Claim Upon Which Relief Can be Granted
FPM argues that the facts alleged by the Commission in the Amended Complaint are false and misleading and there is nothing in the factual record to support the argument that FPM has an ongoing program of age discrimination or unlawful employment practices. FPM recites a list of facts in its motion to dismiss which it argues are the true facts that the Commission failed to disclose in the Amended Complaint and that, if disclosed, would show that the Commission does not have a claim against FPM. The Court will treat this argument as a motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). See Fed. R. Civ. Pro. 12(b)(6).
In order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain allegations supporting all material elements of the claims. Bishop v. Lucent Techs., Inc., 520 F.3d 516, 518-19 (6th Cir.2008). In determining whether to grant a motion to dismiss, all well-pleaded allegations must be taken as true and be construed most favorably toward the nonmovant. See Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003). In addition, "[c]onclusory allegations or legal conclusions masquerading as factual allegations will not suffice." Bishop, 520 F.3d at 519 (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005)).
The issue is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claim. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless there is no law to support the claims made, the facts alleged are insufficient to state a claim, or there is an insurmountable bar on the face of the complaint.
Because "[a] motion to dismiss for failure to state a claim is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations[,]" the complaint will be construed in a light "most favorable [to the plaintiff] and [the Court will] accept all ... factual allegations as true." Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.2008) (citations omitted). In a federal employment discrimination action, the Supreme Court has held that a complaint "must contain only a short and plain statement of the claim showing that the pleader is entitled to relief" and a plaintiff is not required to plead facts establishing a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508-10, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); see also Fed. R. Civ. Pro. 8(a)(2). In other words, there is no heightened pleading standard in an employment discrimination suit and a complaint may only be dismissed "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz, 534 *965 U.S. at 514, 122 S. Ct. 992 (citation omitted); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965-69, 167 L. Ed. 2d 929 (2007) (stating that factual allegations in a complaint must state a claim that is plausible on its face and one that may be supported by showing any set of facts consistent with the allegations of the complaint). Thus, in order to survive a Rule 12(b)(6) motion to dismiss, the Commission's Amended Complaint only has to assert a short and plain statement of its claims pursuant to Rule 8(a)(2) and give FPM fair notice of what the claims are and the grounds upon which each rests. See Swierkiewicz, 534 U.S. at 507, 512-14, 122 S. Ct. 992.
In the Amended Complaint, the Commission alleges that Bennington was over age forty (40), that he applied for a position of employment, for which he was qualified, with FPM, and that he was denied employment because of his age [See Doc. 9, ¶¶ 8, 10-17]. See 29 U.S.C. § 623(a) (stating that "[i]t shall be unlawful to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privilege of employment, because of such individual's age"); id. § 630 (providing the definitions applicable to the ADEA); id. § 631 (stating that the ADEA applies to "[i]individuals at least 40 years of age"). These allegations constitute a claim in violation of the ADEA. Further, these allegations, true or not, give FPM fair notice of what the Commission's claims are and the grounds upon which the claims rest. Whether or not the factual allegations alleged by the Commission are true is not to be determined on a Rule 12(b)(6) motion. Accordingly, the Commission has satisfied its burden of proof and FPM's motion to dismiss for failure to state a claim is hereby denied.
FPM also argues that the Amended Complaint "fails to state a sum certain claim upon which relief can be granted." [Doc. 11, p. 8]. In response, the Commission argues that it is not required to state such a sum. The Commission's action is brought pursuant to 29 U.S.C. § 626(b), which gives the Commission the power to enforce the prohibition of age discrimination. See 29 U.S.C. §§ 623(a), 626(b). A civil action under this chapter allows for recovery of "[a]mounts owing to a person as a result of a violation of this chapter [which] shall be deemed to be unpaid minimum wages or unpaid overtime compensation." 29 U.S.C. § 626(b). In addition, liquidated damages are payable in cases of willful violations. Id. Further, an individual is entitled to a trial by jury "of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter." Id. § 626(c)(2).
Thus, pursuant to 29 U.S.C. § 626(b), the Commission was under no obligation to state a sum certain in the Amended Complaint. If, at a later stage in this litigation, it is determined that FPM violated any part of this chapter, the Commission would be entitled to bring its claim to a jury and that jury would determine the appropriate damages to be awarded. The determination of such an amount is not required at this stage of the pleadings. Thus, the Commission has requested relief that is among that available to the Court should the Commission prevail on its ADEA claim. Accordingly, FPM's motion to dismiss the Commission's Amended Complaint for failure to state a sum certain claim is hereby denied.
4. Motion to Strike
FPM has also requested the Court to "strike all references in the Amended Complaint pertaining to Defendant's alleged past, present and ongoing *966 age discriminatory policies or `willful' unlawful employment practices...." [Doc. 11, p. 7]. FPM's only argument in support of this request is that the factual record does not support the Commission's factual allegations [Doc. 11, p. 7]. The Court will view this request as a motion to strike pursuant to Federal Rule of Civil Procedure 12(f). See Fed. R. Civ. Pro. 12(f).
Rule 12(f) provides that upon motion of a party, "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. Pro. 12(f). It is well-settled that motions to strike are disfavored and should be granted only when "the allegations being challenged are so unrelated to plaintiff's claims as to be unworthy of any consideration as a defense and that their presence in the pleading throughout the proceeding will be prejudicial to the moving party." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 at p. 650 (2nd ed.1990). See F.D.I.C. v. Berry, 659 F. Supp. 1475, 1479 (E.D.Tenn. 1987); McKinnie v. Lundell Mfg. Co., 825 F. Supp. 834, 835 (W.D.Tenn.1993). Striking a pleading is considered "a drastic remedy to be resorted to only when required for the purposes of justice" and it "should be sparingly used by the courts." Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953). Thus, mindful of these principles, the Court must proceed cautiously in reviewing a motion to strike.
While FPM argues that the Commission's factual allegations are false, without more and at this early stage of the pleadings, the Court cannot determine that the facts asserted by the Commission are such that a motion to strike is warranted. Therefore, the Court will deny FPM's motion to strike.
5. Motion for a More Definite Statement
FPM also moves for the Court to order the Commission to provide a more definite statement of "an alleged sum certain claim" pursuant to Federal Rule of Civil Procedure 12(e) [Doc. 11, p. 8]. See Fed. R. Civ. Pro 12(e). "If a pleading fails to specify its allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding." Swierkiewicz, 534 U.S. at 514, 122 S. Ct. 992. Rule 12(e) provides that a "party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed.R.Civ.P. 12(e). Federal courts generally disfavor motions for more definite statements. Federal Ins. Co. v. Webne, 513 F. Supp. 2d 921, 924 (N.D.Ohio 2007). Thus, in view of the notice pleading standards of Rule 8(a)(2) and the opportunity for extensive pretrial discovery, courts rarely grant such motions. Id. A motion under Rule 12(e) should not be granted unless the complaint is "`so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it.'" Shirk v. Fifth Third Bancorp, 2008 WL 4449024, *8 (S.D.Ohio 2008) (quoting, Kok v. First Unum Life Ins. Co., 154 F. Supp. 2d 777, 781-82 (S.D.N.Y.2001)). Accordingly, if the complaint meets the notice pleading requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, the motion should be denied. Shirk, at *8.
As set forth above, the Court has already determined that the Commission's Amended Complaint satisfies Rule 8(a)(2), which requires "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the *967 defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atlantic Corp., 550 U.S. at 555, 127 S. Ct. 1955 (citation omitted). Thus, FPM's motion for a more definite statement is not well-taken and can be denied on this basis alone.
III. Conclusion
For the foregoing reasons, the Court finds that FPM's Motion to Dismiss the Amended Complaint Due to Defective Venue, Jurisdiction, Complaint and Failure to State a Claim [Doc. 11] is not well-taken and is hereby DENIED.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265253/ | 657 F. Supp. 380 (1987)
John Duke KISCH, Plaintiff,
v.
AMMIRATI & PURIS INC., Cadbury Schweppes Inc., Rose Holland House Inc. and Perry Ogden, Defendants.
No. 86 CIV. 0977 (PKL).
United States District Court, S.D. New York.
April 3, 1987.
*381 Ben C. Friedman, P.C., New York City (Ben C. Friedman, of counsel), for plaintiff.
Norwick & Schad, New York City (Tennyson Schad, of counsel), for defendant Ogden.
Satterlee & Stephens, New York City (Robert M. Callagy, William A. Simon, of counsel), for other defendants.
LEISURE, District Judge:
The complaint in this action seeks monetary damages, an injunction, and other relief for alleged copyright infringement in connection with a photograph used in an advertisement for Rose's Lime Juice. Plaintiff also asserts claims for violations of the Lanham Trade-Mark Act and for common law misappropriation and unfair competition. In his primary claim, plaintiff alleges that defendants' photograph infringed his copyright on a photograph which he made and published in 1982. Defendant Ammirati & Puris Inc. ("Ammirati") is an advertising agency located in New York. Defendants Cadbury Schweppes Inc. and Rose Holland House Inc. are corporations which market beverage products. Defendant Perry Ogden ("Ogden"), a photographer, took the photograph complained of at the request of Ammirati in 1985.
Defendants now move for summary judgment on all of plaintiff's claims. With respect to the copyright infringement action, defendants argue that as a matter of law there is no substantial similarity between plaintiff's photograph and Ogden's photograph. Memorandum of Law in Support of Motion for Summary Judgment at 3. For the purposes of this motion, defendants concede access to plaintiff's work. Id. In addition, it is undisputed that both plaintiff's photograph and Ogden's photograph were taken at the Village Vanguard, a nightclub in Manhattan, and that the same mural appears in the background of each work.
I. Copyright Infringement
The legal principles governing defendants' motion are well-settled although their application to a situation involving two photographs with some of the same visual *382 elements is atypical. "[A] court may determine non-infringement as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only `non -copyrightable elements of the plaintiff's work,' or because no reasonable jury, properly instructed, could find that the two works are substantially similar." Warner Bros. Inc. v. American Broadcasting Cos., Inc., 720 F.2d 231, 240 (2d Cir.1983) (citations omitted). Accord Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, ___ U.S. ___, 106 S. Ct. 2278, 90 L. Ed. 2d 721 (1986).
A. Copyrightable Elements
When copyright infringement is alleged, "the analysis must first be to determine exactly what the [plaintiff's] copyright covers, and then to see if there has been an infringement thereof." Axelbank v. Rony, 277 F.2d 314, 317 (9th Cir.1960). It is a general rule that "[a] copyright does not give to the owner thereof an exclusive right to use the basic material, but only the exclusive right to reproduce his individual presentation of the material." Rochelle Asparagus Co. v. Princeville Canning Co., 170 F. Supp. 809, 812 (S.D.Ill.1959). See F.W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162, 164 (1st Cir.1951) ("[C]opyright on a work of art does not protect a subject, but only the treatment of a subject."), aff'd, 344 U.S. 228, 73 S. Ct. 222, 97 L. Ed. 276 (1952). Cf. Walker, 784 F.2d at 50 (often-recurring themes not copyrightable "except to the extent they are given uniqueand therefore protectible expression in an original creation"). Accordingly, "the fact that the same subject matter may be present in two paintings does not prove copying or infringement." Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 62, 65 (3d Cir.), cert. denied, 439 U.S. 880, 99 S. Ct. 217, 58 L. Ed. 2d 193 (1978). "As Justice Holmes stated: `Others are free to copy the original [subject matter]. They are not free to copy the copy.'" Id. (quoting Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 23 S. Ct. 298, 299, 47 L. Ed. 460 (1903)). Accord Time Inc. v. Bernard Geis, 293 F. Supp. 130, 141 (S.D.N. Y.1968).
Therefore, in cases involving photographs, a "[p]laintiff's copyrights cannot monopolize the various poses used," and "can protect only [p]laintiff's particular photographic expression of these poses and not the underlying ideas therefor." International Biotical Corp. v. Associated Mills, Inc., 239 F. Supp. 511, 514 (N.D.Ill. 1964). The copyrightable elements of a photograph have been described as the photographer's "original" "conception" of his subject, not the subject itself. Pagano v. Charles Beseler Co., 234 F. 963, 964 (S.D. N.Y.1916). See also Gross v. Seligman, 212 F. 930, 931 (2d Cir.1914) (Photographer's "exercise of artistic talent" makes work a proper subject of copyright.). Cf. Axelbank, 277 F.2d at 317 (protection limited to "new and original contribution of the author"). In particular, the copyrightable elements include such features as the photographer's selection of lighting, shading, positioning and timing. Pagano, 234 F. at 964. See also 1 Nimmer on Copyright § 2.08[E][1] at 2-111 (1986) (hereinafter referred to as "Nimmer") (angle of photograph, lighting, timing); Seligman, 212 F. at 931 (pose, background, light, shade); Bernard Geis Associates, 293 F.Supp. at 143 (type of camera, film and lens, area in which pictures taken, positioning of camera).
B. Substantial Similarity
To prove infringement, a plaintiff holding a valid copyright "must show that his [work] was `copied,' by proving access and substantial similarity between the works, and also show that his expression was `improperly appropriated,' by proving that the similarities relate to copyrightable material." Walker, 784 F.2d at 48 (citations omitted). The Court of Appeals for the Second Circuit thus follows a two-part test for similarity under the rule of Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946). Walker, 784 F.2d at 51. The Arnstein test draws "a distinction between noninfringing `copying,' on the one hand, which may be inferred from substantial similarities between the two works, and infringing `illicit copying,' on the other, which demands that *383 such similarities relate to protectible material." Id.
Under Arnstein, `the trier of the facts must determine whether the similarities are sufficient to prove copying. On this issue, analysis (dissection) is relevant, and the testimony of experts may be received.... If copying is established, then only does there arise the second issue, that of illicit copying (unlawful appropriation). On that issue ... the test is the response of the ordinary lay [observer]; accordingly, on that issue, `dissection' and expert testimony are irrelevant.
Id. (quoting Arnstein, 154 F.2d at 468) (emphasis added in Walker). The "ordinary observer" or "lay audience" test inquires whether an average lay observer would "`recognize the alleged copy as having been appropriated from the copyrighted work.'" American Greetings Corp. v. Easter Unlimited, Inc., 579 F. Supp. 607, 614 (S.D.N.Y.1983) (citation omitted). Accord Past Pluto Productions Corp. v. Dana, 627 F. Supp. 1435, 1443 (S.D.N.Y. 1986). In a case involving copyrighted designs, Judge Learned Hand framed the question as whether the "ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). Cf. First American Artificial Flowers, Inc. v. Joseph Markovits Inc., 342 F. Supp. 178, 186 (S.D.N.Y.1972) (Comparison of two works involves a "closer inspection, more attentive to detail" than a mere "generalized impression," but "still no more than could reasonably be expected of a lay" or ordinary observer.).
Courts have noted the difficulties involved in application of the foregoing principles. See, e.g., Peter Pan Fabrics, 274 F.2d at 489.
Troublesome, too, is the fact that the same general principles are applied in claims involving plays, novels, sculpture, maps, directories of information, musical compositions, as well as artistic paintings. Isolating the idea from the expression and determining the extent copying required for unlawful appropriation necessarily depend to some degree on whether the subject matter is words or symbols written on paper, or paint brushed onto canvas.
Franklin Mint Corp., 575 F.2d at 65. See also Warner Bros., 720 F.2d at 241 (acknowledging "tension" from application of rules formulated for literary works to graphic and three-dimensional art). A recurring paradox involves the attention that courts give both to similarities and differences in the disputed works. Warner Bros., 720 F.2d at 241. With respect to this issue, the Court of Appeals for the Second Circuit recognizes not only "that `a defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiff's,'" id. (quoting 3 Nimmer § 13.03[B] at 13-43, but also that "`numerous differences tend to undercut substantial similarity,'" id. (citation omitted). Particularly with respect to a "graphic or three-dimensional" work, which is created to be perceived as an entirety, "[s]ignificant dissimilarities ... inevitably lessen the similarity that would otherwise exist between the total perceptions of the two works." Id.
C. Defendants' Motion
"Although the issue of substantial similarity is clearly a factual one," after comparing the works at issue, a court may properly grant summary judgment for defendants "`on the ground that as a matter of law a trier of fact would not be permitted to find substantial similarity.'" Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 918 (2d Cir.1980) (quoting 3 Nimmer § 12.10 at 12-70. In other words, "the lack of substantial similarity between the protectible aspects of the works [must be] `so clear as to fall outside the range of disputed fact questions' requiring resolution at trial." Walker, 784 F.2d at 48 (emphasis added) (citation omitted). See also Arthur v. American Broadcasting Cos., Inc., 633 F. Supp. 146, 148 (S.D.N.Y. 1985). In a court's comparison, "the works themselves supersede and control any contrary allegations of the parties." Decorative *384 Aides Corp. v. Staple Sewing Aides Corp., 497 F. Supp. 154, 157 (S.D.N.Y.1980) (citation omitted), aff'd, 657 F.2d 262 (2d Cir.1981). Professor Nimmer was of the opinion that
[u]pon such motions by a defendant the courts must guard against a tendency to assume that the nature of the similarity between the two works indicates that in fact copying did not occur. Such motions should be granted only if the court finds that assuming copying, any similarity between the works is insubstantial.
3 Nimmer § 12.10 at 12-71 to 12-72.
The Court has found no precedent, and the parties have cited none, which is substantively and procedurally on all fours with the instant case. It has been recognized, however, that where a photographer "in choosing subject matter, camera angle, lighting, etc., copies and attempts to duplicate all of such elements as contained in a prior photograph," then even though "the second photographer is photographing a live subject rather than the first photograph ... [s]uch an act would constitute an infringement of the first photograph...." 1 Nimmer § 2.08[E][1] at 2-112. An old case in the Court of Appeals for the Second Circuit applied this rule where the Court discerned "many close identities of pose, light, and shade, etc." even though it acknowledged that the "eye of an artist or a connoisseur will, no doubt, find differences" between the two photographs. Seligman, 212 F. at 931. On the other hand, if the elements of an earlier photograph are "by chance" duplicated subsequently by another photographer, the new photograph will not be held to infringe the earlier one because others are "entirely free to form [their] own conception" of the subject matter. Id.[1]Cf. 1 Nimmer § 2.08[E][1] at 2-112.
Turning to a comparison of the two photographs involved in this case, there are differences between the works, to be sure. For example, plaintiff's photograph is in black and white while defendants' is in color. Plaintiff's photograph is of an unidentified woman while defendants' is of musician John Lurie. The woman in plaintiff's photograph is holding a concertina while John Lurie is holding a saxophone. A bottle of lime juice and a portion of a table appear only in defendants' photograph. There are also many similarities. Most noticeably, the two photographs were taken in the same small corner of the Village Vanguard nightclub. The same striking mural appears as the background for each photograph. Both John Lurie and the woman in plaintiff's photograph are seated and holding a musical instrument. In addition, the lighting, camera angle, and camera position appear to be similar in each photograph. The Court concludes that a rational trier of fact could find sufficient similarities to prove "copying." See Arnstein, 154 F.2d at 468, quoted in Walker, 784 F.2d at 51.
A closer question is posed with respect to the issue of "illicit copying (unlawful appropriation)" under the "ordinary observer" test. See id. Still, the Court is unable to conclude that a rational trier of fact would not be permitted to find substantial similarity relating to protectible material. See Walker, 784 F.2d at 48; Durham Industries, Inc., 630 F.2d at 918. Significantly, a rational trier of fact would be permitted to find that the underlying tone or mood of defendants' photograph was similar to the original conception expressed in plaintiff's work. Accordingly, defendants' motion to dismiss plaintiff's claim for copyright infringement is denied.
II. Plaintiff's Other Claims
Defendants have also moved to dismiss plaintiff's claim under § 43(a) of the Lanham Trade-Mark Act. Defendants' argument on this point is premised on the assumption that defendants' advertisement does not infringe plaintiff's copyright. See *385 Reply Memorandum of Law in Support of Motion for Summary Judgment at 6. In view of the Court's conclusions with respect to plaintiff's copyright claim, defendants' motion to dismiss plaintiff's action under § 43(a) of the Lanham Act is denied. See Walker, 784 F.2d at 52; Warner Bros., 720 F.2d at 246.
Finally, defendants have argued that plaintiff's claims of unfair competition and misappropriation under New York law are preempted by the Copyright Act of 1976, 17 U.S.C.A. § 301 (West 1977). It is clear that plaintiff's cause of action under the misappropriation branch of unfair competition is preempted by the federal copyright laws to the extent it seeks protection against copying of plaintiff's work. Walker, 784 F.2d at 53; Warner Bros., 720 F.2d at 247. However, to the extent that plaintiff relies on state unfair competition law to allege a tort of "passing off," plaintiff is not asserting rights equivalent to those protected by copyright and therefore does not encounter preemption. 720 F.2d at 247. Defendants have not argued that plaintiff's state law claims fail on the merits, and the Court does not address this issue.
SO ORDERED.
NOTES
[1] Cf. Franklin Mint Corp., 575 F.2d at 65. In Franklin Mint Corp., the Court of Appeals for the Third Circuit stated that "an artist who produces a rendition with photograph-like clarity and accuracy may be hard pressed to prove unlawful copying by another who uses the same subject matter and the same technique." Id. (emphasis added). The Court explained that "[a] copyright in that circumstance may be termed `weak' ... since the expression and the subject matter converge." Id. Of course, the convergence would be even greater in the case of an actual photograph. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/474512/ | 797 F.2d 1279
RICO Bus.Disp.Guide 6338
John HUTCHINSON; William Reese; Leonard Underwood, Appellants,v.Margaret D. MILLER, individually and as Clerk of the CountyCommission of Kanawha County, West Virginia; David MichaelStaton; Steven L. Miller; James E. Roark, individually andas Prosecuting Attorney of Kanawha County, West Virginia;John A. Cavacini, Jr.; Computer Elections Systems, Inc., aforeign corporation; Bernard H. Meadows; Clayton Spangler;Keith Ervin Long; Carl Clough; William E. Biebel;Darlene Dotson; Carolyn Critchfield, individually and asVoter Registrar of Kanawha County, West Virginia; AnnCarroll, individually and as Chief Deputy of the CountyCommission of Kanawha County, West Virginia, Appellees,andCherrie Lloyd, Defendant.
No. 85-1548.
United States Court of Appeals,Fourth Circuit.
Argued March 3, 1986.Decided Aug. 7, 1986.
John E. Sutter (Ashcraft & Gerel, Baltimore, Md., on brief), and John R. Mitchell for appellants.
John F. Wood, Jr., for appellees Margaret D. Miller and Steven L. Miller.
Henry R. Glass, III (Chester Lovett, Lovett & Cooper, Charleston, W. Va., on brief), for appellee John A. Cavacini, Jr.
Larry A. Winter (David D. Johnson, III, Spilman, Thomas, Battle & Klostermeyer, Charleston, W. Va., on brief), for appellees Computer Election Systems, Inc., Irvine Keith Long, Cherrie Lloyd, Carl Clough and William Biebel.
W.E. Mohler, Charleston, W. Va., on brief, for appellee David M. Staton.
James B. McIntyre, Charleston, W. Va., on brief, for appellee James E. Roark.
Jack W. DeBolt, Charleston, W. Va., on brief, for appellee Bernard Meadows.
Michael R. Cline, Charleston, W. Va., on brief, for appellees Clayton Spangler, Darlene Dotson, Carolyn Critchfield and Anne Carroll.
Before PHILLIPS and WILKINSON, Circuit Judges, and GORDON, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.
WILKINSON, Circuit Judge:
1
Plaintiffs are three unsuccessful candidates for public office who seek to recover approximately $9 million in damages under 42 U.S.C. Sec. 1983, 18 U.S.C. Sec. 1964 (Racketeer Influenced and Corrupt Organizations Act--RICO), and the common law of West Virginia, for alleged irregularities in the 1980 general election. The district court granted motions to dismiss, summary judgment, or directed verdicts in favor of all defendants, various election officials and those alleged to have conspired with them to fix the election. The court found plaintiffs had failed to prove the existence of a conspiracy, on which their case depended, or to show a fundamentally unfair election amounting to a constitutional deprivation.
2
We conclude that federal courts are not available for awards of damages to defeated candidates. Requests for equitable intervention into factual disputes over the conduct of elections, which raise many of the same concerns as those presented by this damages action, are unavailing save in rare and extraordinary circumstances. We need not consider, however, whether the present case presents such circumstances, for plaintiffs seek no equitable relief. Because we are convinced that damages are unavailable in any event, we affirm the district court's dismissal of this action.
3
Our constitution does not contemplate that the federal judiciary routinely will pass judgment on particular elections for federal, state or local office. The conduct of elections is instead a matter committed primarily to the control of states, and legislative bodies are traditionally the final judges of their own membership. The legitimacy of democratic politics would be compromised if the results of elections were regularly to be rehashed in federal court. Federal courts, of course, have actively guarded the electoral process from class-based discrimination and restrictive state election laws. This suit, however, asks us to consider the award of damages for election irregularities that neither disenfranchised a class of voters nor impugned state and federal procedures for the proper conduct of elections. In this essentially factual dispute, we defer to those primarily responsible for elections and we refuse to authorize yet another avenue for those disgruntled with the political process to keep the contest alive in the courtroom.
I.
4
Plaintiffs were Democratic candidates in the 1980 general election in West Virginia. John Hutchinson sought re-election to the United States House of Representatives in the Third Congressional District of West Virginia. This district included Kanawha and Boone Counties--where the disputed elections occurred--as well as twelve other counties. Plaintiff Leonard Underwood was the incumbent delegate to the state house from Kanawha County, and plaintiff William Reese sought election as a County Commissioner for Kanawha County. Hutchinson and Reese were defeated by wide margins, while Underwood's loss was a narrow one.
5
Underwood requested a recount of all computer punchcard ballots cast in the election. When the Kanawha County Commission denied this request, Underwood sought a writ of mandamus in the Circuit Court of Kanawha County to compel a hand count of ballots. That action was dismissed, and a similar attempt before the state Supreme Court was found to be time barred. State ex rel. Underwood v. Silverstein, 278 S.E.2d 886 (W.Va.1981). Hutchinson filed a formal election complaint with the United States Attorney in January, 1981. The resolution of that complaint is not revealed in the record, but apparently was not satisfactory to Hutchinson. Plaintiffs filed their original complaint in this suit in February, 1983.
6
As amended, the complaint in essence charges that the election night totals were pre-determined by defendants, who then conspired to cover up their activities. Named as defendants in the suit were both local officials and private citizens alleged to have acted in concert with those officials. The officials included Margaret Miller, Clerk of the County Commission of Kanawha County; Carolyn Critchfield, Ann Carroll, Darlene Dotson and Clayton Spangler, employees in the clerk's office; James Roark, the Prosecuting Attorney of Kanawha County in 1980; and Bernard Meadows, employed by the Clerk of the County Commission of Boone County. Private citizens named as defendants included Steven Miller, husband of Margaret Miller; David Staton, the successful Congressional candidate in the 1980 election; and John Cavacini, who in 1980 was associated with the campaign of Governor John D. Rockefeller, IV. Finally, plaintiffs sued Computer Election Systems, Inc. (CES), which provided computer vote tabulating systems in Kanawha County, and four employees of CES--Keith Long, Carl Clough, Cherrie Lloyd, and William Biebel.
7
Plaintiffs allege that a conspiracy among the defendants began as early as January, 1979, when Kanawha County Commissioners considered the use of electronic voting equipment. They suggest that the Millers' support for the CES system and their role in the bidding process reveals the genesis of a scheme to fix the 1980 election. This purported scheme continued as CES employees helped county officials prepare for the use of CES equipment in the November election. Defendants, by contrast, describe the selection and preparation of CES equipment as legitimate and lawful activity designed to assist them in the efficient conduct of the election.
8
The CES system provided the county with electronic punch card vote tabulation, in which voters indicated their choices on computer punch cards. After polls were closed, these cards were transported to countywide tabulation centers in locked and sealed ballot boxes. The ballots were removed by teams of workers, who arranged them for feeding into the computer and noted in log books the time when ballot boxes were opened. Plaintiffs cite as evidence of election fraud the fact that the log shows one box was opened after the computer tabulation was printed out.
9
Plaintiffs' main allegations focus on events at the central tabulation center for Kanawha County. They rely largely on the testimony of Walter Price, incumbent candidate for the House of Delegates who was at the center on election night. Price testified that he observed Margaret Miller manipulating computer toggle switches during the election count, purportedly in an attempt to alter vote counts. He saw an "unknown gentleman"--whom plaintiffs identify as Carl Clough--placing a phone receiver into his briefcase. Plaintiffs suggest that this activity is consistent with the use of a portable modem, perhaps in an effort to change vote totals. Price also testified that Stephen Miller took computer cards from his coat pocket and gave them to his wife, who allegedly fed the cards into the computer.
10
Finally, plaintiffs assert that numerous irregularities occurred after the election, including improper handling of the ballots and release of exact returns prior to the canvass, and destruction of ballots that violated the terms of W.Va. Code Sec. 3-6-9. Plaintiffs make similar, though less detailed, allegations with respect to the election process in Boone County.
11
The district court made numerous rulings that narrowed the scope of this litigation. After ordering a complaint with more detailed allegations, the court found the amended complaint barely adequate to survive a motion to dismiss, except as to defendant Lloyd.1 The court also held that plaintiffs' action came within the two-year limitations period because it alleged a conspiracy with wrongful acts as late as February 8, 1981. This holding, however, limited plaintiffs' case to the conspiracy and removed individual acts of defendants from the litigation.
12
After discovery, the court granted summary judgment in favor of defendant Cavacini, alleged to have had possession of unauthorized election returns. It also found the allegations of a Boone County conspiracy to be time barred, and accordingly granted summary judgment as to defendants Beibel and Meadows.2
13
The court considered motions for directed verdicts at the close of plaintiffs' case. It found that plaintiffs' claims failed for several reasons. The court held that plaintiffs had failed to prove a conspiracy, noting that the only evidence the election was rigged was "purely speculative ... mere suspicion." It also found that plaintiffs Reese and Hutchinson had not shown that they were harmed by the alleged actions; there was no evidence that their large losses would have been victories in the absence of the alleged conspiracy. Further, finding only "mere election irregularities" and no evidence to suggest that the election was fundamentally unfair, the court held that plaintiffs had failed to prove a deprivation of a constitutional right essential to a Sec. 1983 action. Finally, the court dismissed plaintiffs' claims under RICO, finding "absolutely no proof" that would allow it to consider the claim.
II.
14
Though our disposition of this dispute rests on the view that damages are unavailable to defeated candidates as a method of post-election relief, we are guided by an awareness of the broader context in which this suit arises. The plaintiffs ask us to arbitrate what is essentially a political dispute over the results of an election. We find it useful, for proper understanding of this case, to discuss the structural characteristics and mechanisms for review of disputed elections. This examination reveals both the proper sphere and the limits of judicial oversight of controversies in the electoral process.
15
As in any suit under Sec. 1983 the first inquiry is "whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' " Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).3 In their complaint, plaintiffs alleged that defendants deprived them of "their constitutionally protected right to participate fully and fairly in the electoral process," and "their constitutional right to vote or receive votes," and their Fifth Amendment right to hold property, in this case public office. The district court found that plaintiffs proceeded at trial as "defeated or disenfranchised candidate[s] rather than as ... disenfranchised voter[s]." Thus, plaintiffs essentially assert that they have been deprived of their "right to candidacy."
16
Courts have recognized that some restrictions on political candidates violate the Constitution because of their derivative effect on the right to vote. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 786-88, 103 S.Ct. 1564, 1568-69, 75 L.Ed.2d 547 (1983); Clements v. Fashing, 457 U.S. 957, 962-64, 102 S.Ct. 2836, 2843-44, 73 L.Ed.2d 508 (1982); Bullock v. Carter, 405 U.S. 134, 142-44, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972); cf., Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 400, 88 L.Ed. 497 (1944). We assume, without deciding, that plaintiffs have sufficiently alleged a deprivation of constitutional rights to meet the basic requirements of a Sec. 1983 cause of action. That assumption, however, cannot end the matter. As Judge Rubin has noted for the Fifth Circuit: "constitutional decision must not be confined merely to the logical development of the philosophy of prior decisions unfettered by other considerations. The functional structure embodied in the Constitution, the nature of the federal court system, and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by section 1983 must all be fully attended." Gamza v. Aguirre, 619 F.2d 449, 452 (5th Cir.1980). The functional allocations and structural mandates of our Constitution lead us to conclude, like the court in Gamza, that this complaint must be dismissed.
17
We first acknowledge and affirm the significant duty of federal courts to preserve constitutional rights in the electoral process. Our role, however, primarily addresses the general application of laws and procedures, not the particulars of election disputes. Federal courts have, for example, invalidated class-based restrictions of the right to vote. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (durational residence requirement); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (poll tax); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (restriction on voting rights of servicemen); Bell v. Southwell, 376 F.2d 659 (5th Cir.1967). The dilution of votes through malapportionment has also been a major concern of the federal judiciary. See, e.g., Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Courts have also acted to further the congressional mandate, as expressed in the Voting Rights Act, 42 U.S.C. Sec. 1973 et seq., that race shall not affect the right to vote. See, e.g., Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). Intervention for reasons other than racial discrimination "has tended, for the most part, to be limited to striking down state laws or rules of general application which improperly restrict or constrict the franchise" or otherwise burden the exercise of political rights. Griffin v. Burns, 570 F.2d 1065, 1076 (1st Cir.1978). See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Hendon v. North Carolina State Board of Elections, 710 F.2d 177 (4th Cir.1983). By these means, federal courts have assumed an active role in protecting against dilution of the fundamental right to vote and the denial of this right through class disenfranchisement.
18
By contrast, "[c]ircuit courts have uniformly declined to endorse action under Sec. 1983 with respect to garden variety election irregularities." Griffin v. Burns, 570 F.2d at 1076. See, e.g., Welch v. McKenzie, 765 F.2d 1311 (5th Cir.1985); Gamza v. Aguirre, 619 F.2d 449 (5th Cir.1980); Hennings v. Grafton, 523 F.2d 861 (7th Cir.1975); Pettengill v. Putnam County R-1 School District, 472 F.2d 121 (8th Cir.1973); Powell v. Power, 436 F.2d 84 (2d Cir.1970). These courts, mainly considering disputes involving state elections, have declined to interfere because of the constitutional recognition that "states are primarily responsible for their own elections," Welch, 765 F.2d at 1317, and that alternative remedies are adequate to guarantee the integrity of the democratic process. See, e.g., Powell, 436 F.2d at 88. The discussion of those alternative means of resolving electoral disputes is the focus of the following section.
III.
19
We note initially that the constitution anticipates that the electoral process is to be largely controlled by the states and reviewed by the legislature. This control reaches elections for federal and state office. Article I, sec. 4, cl. 1, grants to the states the power to prescribe, subject to Congressional preemption, the "Times, Places and Manner of holding Elections for Senators and Representatives." In addition, states undoubtedly retain primary authority "to regulate the elections of their own officials." Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 265, 27 L.Ed.2d 272 (1970) (opinion of Black, J.).
20
Where state procedures produce contested results, the Constitution dictates that, for congressional elections, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Art. I, Sec. 5, cl. 1. The House accordingly has the authority "to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review." Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929). See also Roudebush v. Hartke, 405 U.S. 15, 19, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972); McIntyre v. Fallahay, 766 F.2d 1078 (7th Cir.1985). This plenary power is paralleled at the state level by the power of the West Virginia legislature to review the elections of its own members. See generally, W. Va. Code Secs. 3-7-4,5. Contests for county offices, such as that of plaintiff Reese, are resolved by county courts. W.Va.Code Sec. 3-7-6.
21
We thus proceed with awareness that the resolution of particular electoral disputes has been primarily committed to others in our system. The express delegation to Congress and the states of shared responsibility for the legitimation of electoral outcomes and the omission of any constitutional mandate for federal judicial intervention suggests the inadvisability of permitting a Sec. 1983 or civil RICO action to confer upon federal judges and juries "a piece of the political action," no matter what relief is sought. Consideration of the various ways in which these other bodies have regulated and monitored the integrity of elections only confirms our hesitation to consider the disputed details of political contests.
22
Those with primary responsibility have not abandoned their duty to ensure the reliability and fairness of democratic elections. The House of Representatives, for example, has developed a body of guiding precedent regarding election contests, see 2 Deschler's Precedents of the United States House of Representatives, 323-888 (1977), and has enacted detailed procedures designed to ensure due process and just consideration of disputes. See Federal Contested Elections Act, 2 U.S.C. Secs. 381-396. The operation of these procedures was illustrated recently in the review of a close election contest for the House of Representatives in Indiana. See generally H.R.Rep. No. 58, 99th Cong., 1st Sess. (1985). The partisan and acrimonious nature of that debate only reaffirms the wisdom of avoiding judicial embroilment and of leaving disputed political outcomes to the legislative branch. See McIntyre v. Fallahay, 766 F.2d 1078 (7th Cir.1985). Had the framers wished the federal judiciary to umpire election contests, they could have so provided. Instead, they reposed primary trust in popular representatives and in political correctives.
23
Dissatisfied candidates for office in West Virginia are also presented with numerous avenues by which to challenge election results, some of which parallel the federal model. The legislature is directed by Art. 4, Sec. 11 of the West Virginia Constitution "to prescribe the manner of conducting and making returns of elections, and of determining contested elections ... ," and has accordingly enacted procedures for ballot control and recounts, W.Va. Code Secs. 3-6-6 to 3-6-9 and election contests, W.Va.Code Secs. 3-7-1 to 3-7-9. Initially, of course, the election returns are counted and certified by a board of canvassers. W.Va.Code Sec. 3-6-9. West Virginia courts have long exercised "election mandamus" powers by which they may "compel any [election] officer ... to do and perform legally any duty herein required of him." W.Va.Code Sec. 3-1-45. See, White v. Manchin, 318 S.E.2d 470 (W.Va.1984); State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 196 S.E.2d 299 (1972); Marquis v. Thompson, 155 S.E. 462, 109 W.Va. 504 (1930). Appellant Underwood, in fact, attempted to employ this very procedure to compel a recount, but his writ was denied as untimely. State ex rel. Underwood v. Silverstein, 278 S.E.2d 886.
24
State and federal legislatures, moreover, are not concerned solely with election results, but have subjected the entire electoral process to increasing regulation. Congress has enacted complex and comprehensive statutes to regulate campaign financing, 2 U.S.C. Secs. 431-441j in an effort to "protect the integrity of the political process," California Medical Association v. FEC, 641 F.2d 619 (9th Cir.1980) (en banc), aff'd, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) and to prevent "corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions...." Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976) (per curiam). This system of regulation includes not only substantive constraints on campaign financing, see, e.g., 2 U.S.C. Sec. 441a, but also procedural mechanisms and an administrative body, the Federal Election Commission, responsible for implementing and enforcing federal election laws. See, 2 U.S.C. Secs. 437c-438. West Virginia has likewise enacted legislation designed to control "[p]olitical campaign contributions, receipts and expenditures of money, advertising, influence and control of employees, and other economic, political and social control factors incident to ... elections." W.Va.Code Sec. 3-8-1. See W.Va. Code Secs. 3-8-1 to 3-8-13. Thus it seems fair to conclude that the demonstration of judicial restraint under 42 U.S.C. Sec. 1983 will not leave American elections unsupervised or unregulated.
25
Finally, both state and federal authorities have employed criminal penalties to halt direct intrusions on the election itself. Federal conspiracy laws such as 18 U.S.C. Sec. 241 have been applied to those engaged in corruption of election procedures. See also, 18 U.S.C. Sec. 594 (prohibiting intimidation of voters); 18 U.S.C. Sec. 600 (prohibiting promise of employment or other benefit for political activity). Criminal sanctions are also available under West Virginia law for those found to have filed false returns, tampered with ballots, bought or sold votes, and the like. See, W.Va. Code Secs. 3-9-1 to 3-9-24. A state grand jury investigated the very allegations at issue here, and issued one indictment, which did not result in a conviction.
IV.
26
Though the presence of even exhaustive alternative remedies does not usually bar an action literally within Sec. 1983 or other statutes, Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481, 5 L.Ed.2d 492 (1961), we are persuaded in this context that we must refrain from considering the particulars of a disputed election, especially in a suit for damages. To do otherwise would be to intrude on the role of the states and the Congress, to raise the possibility of inconsistent judgments concerning elections, to erode the finality of results, to give candidates incentives to bypass the procedures already established, to involve federal courts in the details of state-run elections, and to constitute the jury as well as the electorate as an arbiter of political outcomes. These costs, we believe, would come with very little benefit to the rights fundamentally at issue here--the rights of voters to fair exercise of their franchise. Instead, plaintiffs, who voluntarily entered the political fray, would stand to reap a post-election recovery that might salve feelings of rejection at the polls or help retire debts from the campaign but would bear very little relationship to the larger public interest in partisan debate and competition undeterred by prospects of a post-election suit for damages.
27
Plaintiffs' theories in this case illustrate the ways in which a lawsuit such as this could intrude on the role of states and Congress to conduct elections and adjudge results. In their complaint, plaintiffs allege damages including, inter alia, loss of income (salary from holding public office), earning capacity, time expended for election purposes and various election expenses, as well as injury to reputation. These losses, of course, would have resulted from election defeat absent any conspiracy by defendants. Injury to reputation, for example, may inhere in any political loss where exposure of opposition blemishes has from the earliest days of the Republic been a part of the quest for public office. Loss of the public official's salary is, ipso facto, an element of each and every political defeat.
28
Thus, plaintiffs in order to recover damages must perforce rely on the theory that defendants' alleged conspiracy cost them an election they otherwise would have won. In presenting their case plaintiffs would essentially ask a jury to review the outcome of the election. As explained above, however, the task is reserved for states and legislatures, and though the jury's review would not directly impair their primary responsibility to adjudge elections, its re-examination of election results would be inconsistent with proper respect for the role of others whose job it is to canvass the returns and declare a prevailing party. This intrusion, moreover, would not be limited to that of a jury, for the judiciary itself would doubtless be asked to review the jury's judgment of the election in post-trial motions. Principles of separation of powers and federalism, therefore, dictate that both jury and court avoid this inquiry.
29
Just as the review of electoral results by judge or jury is inconsistent with proper respect for the role of states and Congress, so too the outcomes of these deliberations are potentially inconsistent with the results of the electoral process. Were plaintiffs successful in convincing the jury that they should have won the election or should receive an award of damages, the courts would enter a judgment at odds with the judgment of Congress and of West Virginia, which have seated the apparent victors in these elections. The difficulties inherent in such continuing assaults on political legitimacy would be obvious and might impair the respect to which the enactments of those duly elected are entitled.
30
Closely related to the problem of inconsistent judgments is the need for finality in elections. Inconsistent judgments, of course, call into question the results of an election in a way that detracts from finality. Even without inconsistent judgments, suits asking federal courts to replay elections cast into limbo contests that should have been long since decided. This case is illustrative. The election at issue occurred in 1980. Plaintiffs did not even bring their suit until 1983, after plaintiff Hutchinson's term would have expired. Now, nearly six years after the election, the parties remain in court essentially to contest the integrity of the election. So long as such avenues are available to defeated candidates, the apparent finality of election outcomes will be illusory.
31
Maintenance of this action might also provide incentives to losing candidates to ignore the principal routes established to challenge an election and to proceed instead to have the election reviewed in federal courts in hopes of gaining monetary compensation. Plaintiffs in this case, for example, made incomplete use of state and federal procedures yet still seek to recover millions of dollars in this action. Underwood pursued his efforts to secure a recount in an untimely fashion; though Hutchinson filed a complaint with the United States Attorney, there is no evidence that he pursued other avenues available to contest the election; Reese apparently made no attempts to employ available procedures. To allow these plaintiffs access to the federal courts would undermine the processes that are intended to serve as the primary routes to election control: "federal courts would adjudicate every state election dispute, and the elaborate state election contest procedures, designed to assure speedy and orderly disposition of the multitudinous questions that may arise in the electoral process, would be superseded by a section 1983 gloss." Gamza v. Aguirre, 619 F.2d 449 (5th Cir.1980).
32
We further believe that federal courts are ill-equipped to monitor the details of elections and resolve factual disputes born of the political process. As one court has noted, "[w]ere we to embrace plaintiffs' theory, this court would henceforth be thrust into the details of virtually every election, tinkering with the state's election machinery, reviewing petitions, election cards, vote tallies, and certificates of election for all manner of error and insufficiency under state and federal law." Powell v. Power, 436 F.2d 84, 86 (2d Cir.1970). Elections are, regrettably, not always free from error. Voting machines malfunction, registrars fail to follow instructions, absentee ballots are improperly administered, poll workers become over-zealous, and defeated candidates are, perhaps understandably, inclined to view these multifarious avu@ c @a] b . apart from the serious problems of federalism and separation of powers problems raised by these tasks, we find sifting the minutae of post-election accusations better suited to the factual review at the administrative and legislative level, where an awareness of the vagaries of politics informs the judgment of those called upon to review the irregularities that are inevitable in elections staffed largely by volunteers. See Hennings v. Grafton, 523 F.2d 861, 865 (7th Cir.1975).
33
To ask a jury to undertake such tasks, moreover, is to risk the intrusion of political partisanship into the courtroom, where it has no place. From the exercise of jury strikes to the final rendering of verdict, the spectre of partisanship would intrude and color court proceedings. Such disputes belong, and have been placed, in the political arena, and we cannot accept the substitution of the civil jury for the larger, more diverse, and more representative political electorate that goes to the polls on the day of the election.
34
These concerns suggest that the federal judiciary should proceed with great caution when asked to consider disputed elections, and have caused many courts to decline the requests to intervene except in extraordinary circumstances. The unique nature of this case convinces us that the requested intervention is inappropriate under any circumstances, for plaintiffs' suit for damages strikes us as an inapt means of overseeing the political process. It would provide not so much a correction of electoral ills as a potential windfall to plaintiffs and political advantage through publicity. See McIntyre v. Fallahay, 766 F.2d at 1087. Those who enter the political fray know the potential risks of their enterprise. If they are defeated by trickery or fraud, they can and should expect the established mechanisms of review--both civil and criminal--to address their grievances, and to take action to insure legitimate electoral results. In this way, they advance the fundamental goal of the electoral process--to determine the will of the people--while also protecting their own interest in the electoral result. A suit for damages, by contrast, may result principally in financial gain for the candidate. We can imagine no scenario in which this gain is the appropriate result of the decision to pursue elected office, and we can find no other case in which a defeated candidate has won such compensation. Nor do we believe, in light of the multitude of alternative remedies, that such a remedy is necessary either to deter misconduct or to provide incentives for enforcement of election laws.
V.
35
We accordingly hold that federal courts do not sit to award post-election damages to defeated candidates. Equitable relief, though theoretically available, has properly been called a "[d]rastic, if not staggering" intrusion of the federal courts, and "therefore a form of relief guardedly exercised." Bell v. Southwell, 376 F.2d at 662. Courts have therefore repeatedly refused to intervene in routine election disputes, acting instead only in instances of "patent and fundamental unfairness" that "erode[] the democratic process." Hendon, 710 F.2d at 182. Thus, in Ury v. Santee, 303 F.Supp. 119, 124 (N.D.Ill.1969), the court invalidated an election in which "hundreds of voters were effectively deprived of their right to vote" when drastic reduction in the number of precincts rendered polling places so crowded as to be inaccessable. See also Smith v. Cherry, 489 F.2d 1098, 1102 (7th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (offering of sham candidate "clearly debased the rights of all voters in the election").
36
In short, the general attitude of courts asked to consider election disputes, whatever the relief sought, has been one of great caution. Intervention has come only in rare and extraordinary circumstances, for courts have recognized and respected the delegation of such disputes to other authorities. Such intervention, moreover, has never included the grant to defeated candidates of monetary compensation. Because such compensation is fundamentally inappropriate, we hold that it is unavailable as a form of post-election relief. The parties here have asked for nothing more, and we need not consider under what circumstances equitable remedies might be appropriate. Accordingly, the judgment of the district court dismissing this lawsuit is hereby
37
AFFIRMED.
1
Lloyd asserts that plaintiffs' appeal of her dismissal is not timely under Fed.R.App.P. 4. This contention is incorrect. Under Fed.R.Civ.P. 54(b), a ruling adjudicating "fewer than all the claims or the rights and liabilities of fewer than all the parties" is not final absent "express determination that there is no just reason for delay and ... an express direction for the entry of judgment." The court here made no such determination, and therefore the timeliness of the appeal as to defendant Lloyd is measured by the date of entry of final judgment resolving all issues as to all parties. See, Robinson v. Parke-Davis & Co., 685 F.2d 912 (4th Cir.1982)
2
Plaintiffs appeal the dismissal of Lloyd and the summary judgment in favor of Biebel, Meadows and Cavacino as improperly granted. Because we hold that this action may not be maintained under any circumstances, we need not consider the specific issues raised by these judgments
3
Though we speak here in terms of Sec. 1983, our discussion applies as well to the RICO and common law counts. Our review of the limited role of federal courts does not depend on the specific theory under which a particular suit is brought, but rather upon the institutional structure established by the constitution and administered through other state and federal remedies | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1365385/ | 236 S.E.2d 38 (1977)
160 W.Va. 518
William K. JONES and Mary R. Jones, his wife
v.
Everett H. HUDSON, widower, etc., et al.
No. 13719.
Supreme Court of Appeals of West Virginia.
July 5, 1977.
*39 McKittrick, Vaughan & McCormick, David P. Cleek, St. Albans, for appellants.
Lawrence B. Mentzer, Ripley, for appellees.
NEELY, Justice:
This case concerns a contract for the sale of land voided by the Circuit Court of Jackson County on the ground that the description of the property attempted to be conveyed was vague, indefinite, and insufficient as a matter of law. Plaintiffs below, as buyers, brought an action seeking specific performance of the contract, and on September 18,1975, the circuit court entered an order granting defendant-sellers' motion to dismiss the action. The plaintiffs below prosecuted this appeal from the circuit court's order, and we reverse.
In its entirety the contract reads as follows:
August 14, 1973
Everett and Eva Hudson do hereby sell to William K. and Mary R. Jones One hundred (100) acres, more or less, located on the waters of Big Run.
Buyer is to receive the two and one half (2½) shares of the mineral rights that are presently owned by the Hudsons.
Buyer is also to receive the three (3) cows and one (1) heifer calf in with the price listed below. Buyer is also to get all the hay.
Total price for farm and things listed above is Twenty Thousand and Eight hundred dollars ($20,800.00)
Sellers Everett Hudson
Eva Hudson
Buyers William K. Jones
Mary R. Jones
Received from William K. and Mary R. Jones Three-hundred Dollars ($300.00) as down payment on farm. Leaving balance of Twenty-thousand and five hundred dollars ($20,500.00)
Everett Hudson
Eva Hudson
An analysis of this contract must begin with West Virginia's Statute of Frauds, W.Va.Code, 36-1-3 [1923] applicable to contracts for the sale of land. Under this *40 statute no contract for the sale of land is enforceable unless in writing, signed by the party against whom enforcement is sought. The contract in question appears generally to satisfy those requirements, and in particular, defendants below admitted they signed the contract.
The case, however, is not that simple. Longstanding judicial construction of the Statute of Frauds has engrafted onto it a requirement that contracts for the sale of land include a certain description of the land to be conveyed. White v. Core, 20 W.Va. 272 (1882). The harshness of this rule has been significantly mitigated by the Court's frequent application of the maxim, "In description, that is certain which can be made certain." Holley's Executor v. Curry, 58 W.Va. 70 at 73, 51 S.E. 135 at 136 (1905). It should be obvious that neither the rule nor the maxim stated in this paragraph determines its own application, or dictates the result we reach in this case. The value of the rule and maxim in our analysis is that they present a classic illustration of the rule-selection process so often resorted to by appellate judges. We are thus put on guard to expect that the reported cases will not develop any sort of functional analysis of the problem confronted here. We are not disappointed in this respect, and after thoroughly reading the precedent we are convinced that in this area it is possible to justify any given result if a judge would apply the rules selectively and add a small measure of imagination into the bargain.[1]
With this much as preface, let us examine the contract closely. The date of its making, the parties bound by it, and the price term all appear clearly on the face of the contract and are not in dispute. Since the uncertainty of the land description is the deficiency alleged to exist in the contract, we turn to that description.
The land's approximate size is recorded: "... One-hundred (100) acres, more or less ..." The land's location is mentioned: "... on the waters of Big Run." While this reference to Big Run helps locate the land, there is little else in the contract to help locate Big Run. Since, according to the complaint and answer, both buyers and sellers were residents of Jackson County, it is likely that Big Run may be found in Jackson County. See Gilbert v. Tremblay, 79 N.H. 431, 111 A. 314 (1920); Hertel v. Woodard, 183 Or. 99, 191 P.2d 400 (1948); and Sholovitz v. Noorigian, 42 R.I. 282, 107 A. 94 (1919). Since the buyers were to get "all the hay" together with "three (3) cows and one (1) heifer calf" we may logically infer the land was farm property. Our inference is supported by the contract's notation that the buyers received from the sellers a $300.00 down payment "on farm." Finally, we may infer that the Hudsons, as sellers, undertook to sell land which they owned, rather than land which they did not own. This common sense inference finds support in other jurisdictions' case law. See Danforth v. Chandler, 237 Mass. 518, 130 N.E. 105 (1921); Scott v. Marquette Nat. Bank, 173 Minn. 225, 217 N.W. 136 (1927); Price v. McKay, 53 N.J.Eq. 588, 32 A. 130 (1895); and Edwards v. Phillips, 70 Okl. 9, 172 P. 949 (1918).
Thus it fairly appears that the subject matter of the disputed contract is a 100 acre farm on Big Run, most likely owned by the Hudsons and located in Jackson County. This description lays a satisfactory foundation for the admission of extrinsic evidence to make more certain that which in our view stands a good chance of being made more certain. Naturally, we may be mistaken in our view, and when evidence is taken, the sellers will have every opportunity to bring out ambiguities not now apparent and to rebut such evidence as the buyers present in their behalf. Nonetheless, on the record before us, we cannot say that the description is insufficient as a matter of law and incapable of being made certain by extrinsic evidence.
*41 Accordingly, for the foregoing reasons, the order of the Circuit Court of Jackson County is reversed and the case is remanded for further proceedings not inconsistent with this opinion.[2]
Reversed and remanded.
NOTES
[1] For a discussion of the rule selection process in another context, see footnote 5, the authorities cited therein, and the accompanying text, Board of Church Extension v. Eads, W.Va., 230 S.E.2d 911 (1976).
[2] We have considered and found without merit appellants' contentions that appellees failed properly to plead the Statute of Frauds and that the circuit court is barred from raising the Statute of Frauds on its own motion, since the matter was raised in the preliminary stages of the case and the court could have permitted an amendment to the answer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265257/ | 185 Cal. App. 4th 114 (2010)
109 Cal. Rptr. 3d 919
MICHAEL GRESSETT, Petitioner,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;
THE PEOPLE et al., Real Party in Interest.
No. A127100.
Court of Appeals of California, First District, Division One.
May 28, 2010.
*116 Michael J. Kotin for Petitioner.
Meyers, Nave, Riback, Silver & Wilson and Joseph M. Quinn for Respondent.
Edmund G. Brown, Jr., Attorney General, and Peter E. Flores, Jr., Deputy Attorney General, for Real Party in Interest the People of the State of California.
Sharon L. Anderson, County Counsel, and Rebecca J. Hooley, Deputy County Counsel, for Real Party in Interest County of Contra Costa.
OPINION
DONDERO, J.
Petitioner, Michael Gressett, a former senior deputy district attorney in Contra Costa County, is the named defendant (hereafter defendant) in a criminal indictment charging four counts of forced sodomy (Pen. Code, § 286, subd. (c)(2)), four counts of forced sexual penetration (Pen. Code, § 289, subd. (a)(1)), two counts of forced rape (Pen. Code, § 261, subd. (a)(2)), one count of forced oral copulation (Pen. Code, § 288a, subd. (c)(2)), one count of false imprisonment (Pen. Code, § 236), and one count of making criminal threats (Pen. Code, § 422). By this petition for writ *117 of mandate (Code Civ. Proc., § 1085; Drumgo v. Superior Court (1973) 8 Cal. 3d 930, 933 [106 Cal. Rptr. 631, 506 P.2d 1007] (Drumgo)), he challenges an order denying his request that Attorney Daniel J. Russo be appointed at county expense as his assigned counsel. (Pen. Code, § 987 et seq.)[1] He contends that he established good cause for the appointment.
Following our summary denial of the petition, the Supreme Court directed us to vacate our order and issue an alternative writ.[2] As will be seen, we now again deny the petition.
When the petition was initially filed in this court, defendant appropriately named and served the People of the State of California as real party in interest. (§ 987.05; Sonoma County Nuclear Free Zone '86 v. Superior Court (1987) 189 Cal. App. 3d 167, 173 [234 Cal. Rptr. 357]; and see Harris v. Superior Court (1977) 19 Cal. 3d 786 [140 Cal. Rptr. 318, 567 P.2d 750] (Harris).) His petition for review to the Supreme Court, however, was answered by the superior court, at the high court's invitation. When the matter was returned to this court, we named the County of Contra Costa as a real party in interest in addition to the People. Funds for payment of assigned counsel are to be paid out of the general fund of the county (§ 987.2, subd. (a)), so that the County of Contra Costa has a direct and special interest in the outcome of this writ proceeding.
The County of Contra Costa and the superior court have filed returns to the alternative writ, to which defendant has replied. (Cal. Rules of Court, rule 8.487(b).)[3] The Attorney General takes no position on the merits.
*118 BACKGROUND
The crimes charged in the indictment are alleged to have occurred May 8, 2008. The indictment names a deputy district attorney as the alleged victim. The People are represented below by the Attorney General, the Contra Costa District Attorney's Office being recused from the case. And, the members of the Contra Costa County Superior Court have also recused themselves. The challenged ruling was made by the judge assigned by the Chief Justice. (Cal. Const., art. VI, § 6.)
Defendant was originally charged by criminal complaint (§ 859) filed November 21, 2008. He was dismissed from the Contra Costa District Attorney's Office following the filing of the complaint, and two private attorneys, Michael Cardoza and Daniel J. Russo (Russo), served as his counsel around that same time. The case did not proceed to preliminary hearing, however, as the Contra Costa County Grand Jury returned an indictment against defendant filed on October 19, 2009. (§§ 940-951.)
On August 17, 2009, prior to the filing of the indictment, defendant requested appointment of Attorney Russo as assigned counsel at public expense. (§ 987.2, subd. (d).) That motion was denied November 5, 2009, without prejudice. Among the reasons for the superior court's analytical decision were defendant's failure to prove his indigency, and the fact that the Contra Costa County Public Defender and the county's alternative defender had not declared themselves unavailable.
Subsequently, defendant was found eligible for the services of the public defender. Thereafter, that office and the alternative defender declared conflicts of interest. He was then referred to the Contra Costa County Criminal Conflicts Panel. The panel selected Attorney Michael J. Kotin, a retired chief assistant public defender of Contra Costa County, to represent him, and Attorney Kotin appeared with him on November 30, 2009. During this proceeding, Attorney Kotin acknowledged several times he was prepared to represent the defendant. However, on December 2, 2009, through Attorney Kotin, defendant once again moved to have Attorney Russo appointed as his assigned counsel. The renewed motion was denied December 7, 2009, the trial court again articulating the reasons for exercising its discretion. This petition followed.
DISCUSSION
(1) All parties agree that the right to select one's counsel of choice applies only to retained, not appointed, counsel. (People v. Mungia (2008) 44 *119 Cal.4th 1101, 1122 [81 Cal. Rptr. 3d 614, 189 P.3d 880]; see United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151 [165 L. Ed. 2d 409, 126 S. Ct. 2557].) Section 987.2 governs the assignment of counsel to represent criminal defendants unable to afford to employ an attorney. As relevant here, it provides: "[T]he court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county and the courts have contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, the court shall utilize the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record." (§ 987.2, subd. (d), italics added.)
Defendant contends that he established good cause requiring the superior court to appoint Attorney Russo rather than a county-contracted conflicts panel attorney. In doing so, he relies primarily on Harris to argue that the superior court abused its discretion when it denied his motion.
(2) "The appointment of counsel for indigent defendants under section 987.2 rests within the sound discretion of the trial court." (People v. Horton (1995) 11 Cal. 4th 1068, 1098 [47 Cal. Rptr. 2d 516, 906 P.2d 478].) "[I]t is the function of the court, in the exercise of its sound discretion, to appoint counsel for an indigent defendant. This discretion ... may not be limited or narrowed by the defendant's expression of preference for a particular attorney.... The matter ... `rests, as always, in the sound discretion of the trial court ....' [Citation.]" (Harris, supra, 19 Cal. 3d 786, 795.) We review the superior court's order for abuse of discretion. (People v. Cole (2004) 33 Cal. 4th 1158, 1184-1185 [17 Cal. Rptr. 3d 532, 95 P.3d 811].) "A court abuses its discretion when it acts unreasonably under the circumstances of the particular case." (Id. at p. 1185.) "`Although it is well established that mandamus cannot be issued to control a court's discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can be exercised in only one way.' [Citations.]" (Harris, supra, at p. 796, fn. 9.)
(3) Harris and subsequent cases have set forth a number of factors the trial court may not disregard when exercising its discretion in ruling on a motion to appoint specified counsel. (People v. Horton, supra, 11 Cal. 4th 1068, 1099.) (4) Initially, the request must be timely made, as it was in this case. (Harris, supra, 19 Cal. 3d 786, 799.) Appointed defense counsel, *120 Attorney Kotin supports defendant's request, another factor that favors defendant's motion. (Id. at p. 798; see also People v. Cole, supra, 33 Cal. 4th 1158, 1186.)
(5) Although a defendant is not entitled to the services of a particular attorney at public expense (Drumgo, supra, 8 Cal. 3d 930), the defendant's preference is nonetheless one factor to be considered. (People v. Chavez (1980) 26 Cal. 3d 334, 347 [161 Cal. Rptr. 762, 605 P.2d 401].) Where, as here, the preference is based upon a relationship of trust and confidence in requested counsel, established by virtue of previous representation in related proceedings, the preference is significant, although "appointment of the requested attorney is not compelled because the defendant unexplainedly lacks confidence in and refuses to cooperate with any attorney other than the requested attorney [citation], or because the defendant has trust and confidence in the requested attorney." (Alexander v. Superior Court (1994) 22 Cal. App. 4th 901, 915 [27 Cal. Rptr. 2d 732], citing Drumgo, supra, at pp. 934-935.)
"In exercising its discretion, the trial court should take into account not only the foregoing subjective factors, but also objective factors such as previous representation of defendant by the requested attorney in the underlying or in any other proceeding, any extended relationship between defendant and the requested attorney, the familiarity of the requested attorney with the issues and witnesses in the case, the duplication of time and expense to the county of appointing an attorney other than the requested attorney, and the timeliness of the request." (Alexander v. Superior Court, supra, 22 Cal. App. 4th 901, 916.)
Defendant strenuously likens his case to the defendants in Harris. He stresses the fact that he has developed trust and confidence in Attorney Russo during the 10 months that Russo was his retained counsel. (Harris, supra, 19 Cal. 3d 786, 798; see also id. at p. 793; People v. Chavez, supra, 26 Cal. 3d 334, 346.) He also argues that Russo does not frequently appear in Contra Costa County, pointing out that witnesses in the case will likely include members of the Contra Costa District Attorney's and Public Defender's Offices as well as members of the superior court bench, so a conflict of interest is less likely.[4] Nonetheless, defendant points to no evidence in the record that Attorney Kotin will be required to declare a conflict of interest because of his former employment in the Contra Costa County Public Defender's Office. Significantly, the record establishes that defendant and Attorney Kotin have a good *121 professional relationship, and have known one another "for a long time." As Attorney Kotin explained, "I think there is mutual professional respect.... I think he's happy for me to be his lawyer and I'm happy to take the case." Kotin advised the trial court that he was ready, willing and able to handle this sensational case, even after the current public defender had recused the office based on conflict. Further, objectively considered, Attorney Kotin is amply qualified to handle the case, notwithstanding his support of defendant's preference.
The trial court was also required to consider whether failure to appoint Attorney Russo would necessitate substantial expense and duplication of effort. (Harris, supra, 19 Cal. 3d 786, 799.) Either Attorney Kotin or Attorney Russo would be paid at an hourly rate set by the county.[5]
Defendant argues that appointment of any attorney other than Russo will require additional expense and duplication of effort. The County appears to have accepted this argument; however, we find it unsupported by the record. Attorney Russo represented in his declaration in the Harris motion that he has already reviewed existing discovery, listened to "countless hours of audio taped interviews," and has devoted 200 unpaid hours to the case.[6] Attorney Kotin explained that based upon the information provided to him that the discovery in the case was over 3,000 pages plus numerous tapes, he would anticipate spending 300 hours to become familiar with the case.
(6) However, other than the statements noted above, nothing in Attorney Russo's declaration specified the nature of the work he had spent on the case, nor did he offer any other information concerning the number of paid hours and details of his work during the preceding 10 months of his retention. Further, Attorney Russo only represented defendant as retained counsel before the scheduled preliminary hearinga hearing which never took place. Attorney Kotin's work will necessarily involve review of existing discovery *122 in light of the sworn testimony of witnesses at the grand jury, as well as pretrial motions, if any, and jury trial preparation. In all likelihood, these tasks are not work already performed by Attorney Russo or any other attorney representing a defendant during the prepreliminary hearing period. (Compare the topics covered in Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2009) §§ 4-12 with those in id., §§ 13-40.) Additionally, appointment to represent a defendant before and during the preliminary hearing does not guarantee an appointment for a felony trial under the principles enunciated in Harris. (Alexander v. Superior Court, supra, 22 Cal. App. 4th 901, 918-919.)
Upon our detailed review of Harris, where the California Supreme Court found an abuse of discretion in the superior court's failure to appoint Attorneys Susan Jordan and Leonard Weinglass to represent defendants Emily and William Harris, we find the circumstances presented in the case before us patently distinguishable. Charged by grand jury indictment in Alameda County with the kidnapping of Patty Hearst (§ 209), and facing life in prison, the indigent Harris defendants had asked for the specific appointment of Jordan and Weinglass. The Harris defendants were allegedly members of the Symbionese Liberation Army, and had been the subject of related prosecutions. Attorneys Jordan and Weinglass made the following specific and detailed showing in support of the motion to appoint them:
"Attorney Weinglass stated inter alia that he was appointed in October 1975 by the Los Angeles Superior Court to represent petitioner Emily Montague Harris in a proceeding brought on an eleven-count indictment involving in general the robbery of a Los Angeles sporting goods store; that that representation continued for approximately ten months, including numerous pretrial motions and a six-week trial, and concluded with sentencing in August 1976; that he currently represents both petitioners on appeal from that judgment; that his professional time has been almost exclusively devoted to the representation of the Harrises since October 1975; that in connection with his defense in the Los Angeles case it was necessary for him to coordinate facts and trial strategies with attorneys for eight other persons then and now subject to criminal proceedings for activities in connection with the so-called Symbionese Liberation Army, which activities were of some two years in duration and involved a large number of people; that many of the defense strategies and motions made in the Los Angeles proceeding will have to be renewed in modified form in the instant proceeding; that in the course of the Los Angeles prosecution he became familiar with vast amounts of documentary material involved in the case, including an F.B.I. report of over 800 pages concerning a part of the investigation, and that representation of petitioners in the instant case will also require familiarity with these materials; and that there will be many witnesses in common in the two cases.
*123 "The declaration of Attorney Jordan stated inter alia that in September 1975 she was appointed to represent Mrs. Harris in federal proceedings involving a charge of possession of firearms (26 U.S.C. §§ 5861(d), 5871); that she was subsequently requested by Mrs. Harris to represent her in the aforementioned Los Angeles proceedings and was instrumental in securing the services of Mr. Weinglass, who was ultimately appointed for this purpose; that she occasionally consulted with Mrs. Harris throughout the nine-month pretrial period in the Los Angeles proceedings and was considered by Mrs. Harris as one of her attorneys; and that `since September 1975 there has been an attorney-client relationship between [herself] and Mrs. Harris.'
"It also appears that Attorneys Jordan and Weinglass have familiarized themselves with the transcript in the federal case of United States v. Hearst (presently pending on appeal), in which the alleged victim of the aggravated kidnaping charged in the indictment was convicted of bank robbery and other federal offenses." (Harris, supra, 19 Cal. 3d 786, 797-798, fn. 10.)
As we have seen, Attorney Russo represented defendant for 10 months from the filing of the complaint until filing of the indictment. But nothing in the record suggests that his work during that time was comparable to the extensive involvement of the attorneys in Harris in related jury trials, appeals and other proceedings. (People v. Cole, supra, 33 Cal. 4th 1158, 1186.)[7] Instead, the work performed by Attorney Russo was no different than would be expected of any competent attorney, retained or appointed, who represented a defendant prior to superior court arraignment, and perhaps even less so given the fact that the case did not in fact proceed to a preliminary hearing. No prosecution witnesses, including the alleged victim, were examined by Attorney Russo. No opportunity to assess demeanor or otherwise evaluate any witness under oath was experienced. And, there was no opportunity to develop a defense. Russo's declaration indicates no first-hand interview of any witnesses or any specific independent investigation of relevant evidence. (People v. Horton, supra, 11 Cal. 4th 1068, 1100.)
The Harris standard is appropriately an exacting one. Representing an alleged capital homicide defendant for 11 months and interviewing witnesses in other states was found insufficient to establish an abuse of discretion under Drumgo-Harris. (People v. Cole, supra, 33 Cal. 4th 1158, 1187.) In our case the trial court properly noted and thoroughly considered the Harris factors, and denied the appointment of Attorney Russo in the exercise of its discretion. To adopt defendant's view in this case would require us to establish a *124 rule finding good cause to depart from the legislative mandate of section 987.2 in any case of some notoriety in which a defendant hires private counsel and runs out of money before arraignment in the superior court. We decline to do so.
CONCLUSION AND DISPOSITION
(7) The superior court did not abuse its discretion when it held that defendant failed to establish good cause to depart from the statutory scheme for appointment of assigned counsel specified in section 987.2. Therefore, the alternative writ is discharged, and the petition for writ of mandate is denied.
Margulies, Acting P. J., and Banke, J., concurred.
NOTES
[1] Further statutory references not otherwise noted are to the Penal Code.
[2] "`The Supreme Court's order directing that an alternative writ be issued constitutes a determination that, in the ordinary course of the law, the petitioner is without an adequate remedy.' [Citation.] It 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].)
[3] In his reply to the returns to the alternative writ, defendant moves to strike the return of the superior court, objecting to the court's appearance. As the Supreme Court invited the direct participation of the superior court, and defendant earlier failed to object, we decline to strike the return and do not decide the propriety of the superior court's appearance. We note, however, that while nominally the respondent in a writ proceeding, the superior court ordinarily is a neutral party, with a duty to remain impartial. (Curle v. Superior Court (2001) 24 Cal. 4th 1057 [103 Cal. Rptr. 2d 751, 16 P.3d 166]; Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal. 4th 1126, 1131 [22 Cal. Rptr. 2d 504, 857 P.2d 325]; James G. v. Superior Court (2000) 80 Cal. App. 4th 275, 280 [95 Cal. Rptr. 2d 135].) Exceptions to this principle are infrequent, generally involving rulings as to which real party in interest "is not a real adverse party, has suffered no harm, or has no interest in the writ proceeding." (James G. v. Superior Court, supra, at p. 280.) The superior court also properly appears where its direct operating procedures are challenged. (Id. at p. 281; and see, e.g., Elkins v. Superior Court (2007) 41 Cal. 4th 1337 [63 Cal. Rptr. 3d 483, 163 P.3d 160].)
[4] In its return, the superior court requests that we take judicial notice (Evid. Code, §§ 452, subd. (h) & 459) of certain Web pages concerning Attorney Russo. We need not decide whether the pages are the proper subject of judicial notice. They were not before the superior court. We deny the request. (Peterson v. Superior Court (1995) 10 Cal. 4th 1185, 1200, fn. 9 [43 Cal. Rptr. 2d 836, 899 P.2d 905].)
[5] As noted, we previously named the County of Contra Costa (County) as a real party in interest, and it has filed a return. County does not oppose the petition, noting that while "County has less ability to control costs incurred by private attorneys because, unlike County-contracted attorneys, private attorneys are not subject to County oversight, in the instant case these speculative costs are outweighed by the more likely savings. The private attorney requested by petitioner has agreed to work at the County-contracted rates going forward ...." County also requests that we take judicial notice (Evid. Code, §§ 452, 453, 459) of the "Contract for Legal Representation of Indigents, Contract #C3167100, between County of Contra Costa and the Contra Costa County Bar Association, dated June 30, 2009." We deny the request. The document is unnecessary to our resolution of the petition, as there is no dispute that Attorney Russo agreed to be paid at the County rate. Further, the document was not before the superior court. (Peterson v. Superior Court, supra, 10 Cal. 4th 1185, 1200, fn. 9.)
[6] The superior court's order refers to 200 hours. In fact Russo declared that he had spent "almost 200 hours on this case that I have not even been paid for, nor am I seeking reimbursement for that time."
[7] Defendant strenuously argues that the use of the phrase "specialized knowledge" in the superior court's written order indicates that the court applied a factor not countenanced by Harris, and so abused its discretion. We disagree. Taken in context, it is apparent that the court was simply contrasting the facts of Harris and this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265263/ | 657 F. Supp. 2d 357 (2009)
Elias ABREU, Plaintiff,
v.
The CITY OF NEW YORK, New York City Department of Correction, Correction Officer Shaniqua Watson, Sh. 17215, Correction Officer John Doe # 1, Correction Officer John Doe # 2, Correction Officer John Doe # 3, Defendants.
No. 08-cv-1109-ENV-ALC.
United States District Court, E.D. New York.
September 25, 2009.
*358 David Segal, New York, NY, for Plaintiff.
*359 Brian G. Maxey, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.
MEMORANDUM AND ORDER
VITALIANO, District Judge.
Plaintiff Elias Abreu brings this action pursuant to 42 U.S.C. § 1983 against defendants the City of New York, the New York City Department of Correction ("DOC"), Correction Officer Shaniqua Watson, and Correction Officers John Does 1-3 (the "John Doe defendants"). Abreu, an inmate at the Anna M. Kross Center (AMKC) on Rikers Island, asserts three violations of his constitutional rights: first, that Watson used excessive force by assaulting him with mace and causing injury to his right hand; second, that Watson and the John Doe defendants conspired to cover up the assault and to deny him medical treatment for his injuries; and third, that the City and DOC (collectively, the "City defendants") are liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), for failing to train, supervise, or discipline their correction officers concerning the use of mace.
Presently before the Court is the City defendants' motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint a motion that plaintiff, who is represented by counsel, has not opposed.[1] For the reasons set forth below, the motion is granted and the case is dismissed in its entirety as to all defendants.
I. BACKGROUND
Plaintiff Elias Abreu was an inmate at AMKC in September 2005. He alleges that at around 12:15 p.m. on September 13, 2005, he was assaulted without provocation by Correction Officer ("CO") Shaniqua Watson. Abreu asserts that Watson sprayed mace in his face, producing severe and permanent personal injuries, and that she assaulted him in an unspecified manner that caused him to fracture his right hand. Following the alleged attack, Abreu says that Watson and several unidentified correction officers, the John Doe defendants, conspired to cover up Watson's wrongdoing and to deny the aid and medical treatment he needed for his injuries.
Approximately two and a half years later, on March 18, 2008, Abreu commenced the instant action and timely served the City defendants with the active complaint. Plaintiff did not, however, serve CO Watson. In various letter motions to Magistrate Judge Viktor V. Pohorelsky dated April 7, June 9, and August 11, 2008, see Docket Entry Nos. 2, 3, & 5, and at an initial conference with the Magistrate Judge on November 7, 2008, see Docket Entry No. 9, the City defendants raised for the Court's attention and plaintiff's that Watson had not been served. On February 12, 2009, with Watson still having not been served, the City defendants moved under Rule 12(b)(6), urging the Court to dismiss the case in its entirety as to all defendants.
II. DISCUSSION
A. Standard of Review for a Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." This rule does not compel a litigant to supply "detailed factual allegations" in support of his claims for relief, Bell Atlantic Corp. v. Twombly, 550 U.S. *360 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955); see also In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). "Nor does a complaint suffice if it tenders 'naked assertions' devoid of `further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955).
A court considering a motion to dismiss under Rule 12(b)(6) must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 115 (2d Cir.2008). To survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955). This "plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotations omitted); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (interpreting Twombly to require a "plausibility standard" that "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible") (emphasis omitted), rev'd on other grounds, ___ U.S. ___, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
Finally, where, as here, the plaintiff does not oppose a Rule 12(b)(6) motion, the district court still must determine, as a matter of law, whether the complaint is sufficient to state a claim on which relief may be granted. McCall v. Pataki, 232 F.3d 321, 322-323 (2d Cir.N.Y.2000); Haas v. Commerce Bank, 497 F. Supp. 2d 563, 564 (S.D.N.Y.2007). If the pleading contains sufficient factual matter, accepted as true, to show that the plaintiff may be entitled to relief, "the plaintiffs failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." McCall, 232 F.3d at 323.
B. Plaintiff's Monell Claim Against the City Defendants
Abreu asserts that the City defendants violated his constitutional rights by "their deliberate acts, gross negligence and reckless conduct in failing to adequately train, discipline and supervise [Watson and the John Doe defendants], and in their failure to promulgate and put into effect appropriate rules and regulations applicable to the duties, conduct, activities and behavior of their agents, servants and employees, in the use of Mace." (Compl. ¶ 24.)
Following Monell and its progeny, a municipality cannot be held liable under § 1983 under a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S. Ct. 2018; Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). Rather, there must be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). It is well established that a plaintiff may establish this required causal link by showing that a defendant was deliberately indifferent to the training, supervision, or discipline of its employees. See, e.g., Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127-130 (2d Cir.2004) (Sotomayor, J.). In this regard, Abreu's complaint succinctly states *361 one of the core legal concepts animating Monell liability. But it does absolutely nothing else. No factual matter of any kind accompanies plaintiffs rote recitation of Monell. And the sparse facts that elsewhere make their way into the pleading, and which outline a single, detached incident of misconduct by a few non-policy level officers, in no way suggests a deliberate choice by municipal policymakers to turn a blind eye to unconstitutional conduct. See Amnesty Am., 361 F.3d at 128; Walker v. City of New York, 974 F.2d 293, 296-98 (2d Cir.1992); see also Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993) ("[a] single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy") overruled on other grounds by Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993). Plaintiff's naked assertions of liability fall far short of satisfying Rule 8(a)(2) pleading standards and thus cannot survive the City defendants' motion to dismiss.[2]See Dwares, 985 F.2d at 100-01 (affirming the dismissal of a conclusory Monell claim that "did not allege any facts, other than the [employees'] inaction in the instance complained of, to suggest that there existed such a custom or policy of failure to train"; a "simple recitation that there was a failure to train... does not suffice to allege that a municipal custom or policy caused the plaintiffs injury"); Bradley v. City of New York, No. 08-CV-1106, 2009 WL 1703237, at *3 (E.D.N.Y. June 18, 2009) (dismissing municipal liability claim where "[c]omplaint's conclusory, boilerplate language that the City `fail[ed] to adequately train, discipline, and supervise' employees and `fail[e]d to promulgate and put into effect appropriate rules and regulations applicable to the duties and behavior' of its employees" was insufficient to raise an inference of the existence of a custom or policy); Babayeva v. Queens Hosp. Ctr., No. 07-CV-5367, 2009 WL 1605536, at *5 (E.D.N.Y. June 5, 2009) (same).
C. Plaintiff's Claims Against Watson
Abreu asserts two claims under § 1983 against CO Watson. However, because plaintiff has failed to serve Watson in the 11 months between the commencement of this action and the service of the City defendants' motion to dismiss, and because he provides no explanation whatsoever for that neglect, the Court, in its discretion, dismisses his claims against that defendant.
Federal Rule of Civil Procedure 4(m) requires that a plaintiff serve all defendants to an action within 120 days after the filing of the complaint. If a plaintiff fails to comply with this time limit but shows good cause for that failure, the Court is required to provide him with additional time for service. Id. Where no good cause is shown, the Court has the discretion to dismiss the complaint without prejudice or to order that service be made within a specified time. Id.; Zapata v. City of New York, 502 F.3d 192, 196-97 (2d Cir.2007) (holding that district courts have discretion to grant extensions of time to *362 serve process even in the absence of good cause). "Ordinarily," a plaintiff faced with a dismissal motion pursuant to Rule 4(m) must "advance some colorable excuse for neglect" to avoid the dismissal of his claims. Zapata, 502 F.3d at 198; Bogle-Assegai v. Connecticut, 470 F.3d 498, 509 (2d Cir.2006). Where good cause is lacking, the Second Circuit will not disturb a district court's decision to dismiss "so long as there are sufficient indications on the record that the district court weighed the impact that a dismissal or extension would have on the parties." Zapata, 502 F.3d at 197.
In this case, plaintiff failed to comply with Rule 4(m) because he never served Watson with a summons and complaint within 120 days of the commencement of this action. And in fact, he did not serve her after that window closed, either. As the City defendants correctly point out, the fact that Watson had not been served was raised repeatedly to plaintiff throughout the summer and fall of 2008, leaving no doubt that he was aware of this deficiency. Nevertheless, plaintiff appears not to have made any effort whatsoever to effectuate service at any time in the approximately 11 months before the City defendants moved to dismiss in February 2009. Abreu who, of course, has not opposed any part of the City defendants' motion provides no explanation for this failure, and none is evident from the record. Counsel's apparent inadvertence or neglect cannot constitute good cause for an extension and does not excuse the failure of service, here.[3]See, e.g., Hollomon v. City of New York, No. 04-CV-2964, 2006 WL 2135800, at *3 (E.D.N.Y. July 31, 2006) (a "delay in service resulting from the mere inadvertence, neglect, or mistake of a litigant's attorney does not constitute good cause") (quoting Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y.2000)); Beauvoir v. United States Secret Serv., 234 F.R.D. 55, 56 (E.D.N.Y.2006).
Even where, as here, the plaintiff cannot make a showing of good cause, the Court still has discretion to grant an extension. Zapata, 502 F.3d at 196-97. In this case, a decision to withhold an extension and to dismiss the action against Watson undoubtedly would work a hardship on Abreu: while such a dismissal technically would be without prejudice to the filing of a new complaint, his § 1983 claims, which in New York are subject to a three-year statute of limitations, Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.2002), would now be time-barred. Effectively, then, any § 1983 cause of action he might have against Watson would be extinguished. On the other hand, it is "obvious" that Watson would be prejudiced by any sua sponte order prolonging plaintiffs opportunity to serve her on claims that accrued more than four years ago and about which she has received no notice. See Zapata, 502 F.3d at 198. As the Second Circuit noted in affirming the dismissal of a case in which the facts were closer than they are here, "in the absence of good cause, no weighing of the prejudices between the two parties can ignore that the situation is the result of the plaintiffs neglect." Zapata, 502 F.3d at 198 (affirming district court's Rule 4(m) dismissal where, inter alia, plaintiff sought a tardy extension of time to serve the defendant); see also Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir.2002) (affirming dismissal of complaint where the balance of hardships favored the plaintiff but plaintiff *363 could provide "no even colorable justification" for her late service). Abreu's claims against Watson accordingly are dismissed.
D. Plaintiff's Claims Against the John Doe Defendants
Finally, Abreu brings a § 1983 claim against three unknown correction officers, the John Doe defendants, who he asserts violated his constitutional rights by conspiring to cover up Watson's assault and denying him medical treatment for his injuries. Because this cause of action is barred by the statute of limitations, it must be dismissed.
It is well established that "`John Doe' pleadings cannot be used to circumvent statutes of limitations." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.1993). Where a plaintiff names "John Doe" as a placeholder defendant because he does not know the identity of an individual defendant, he generally is required to replace the placeholder with a named party within the applicable statute of limitations period. Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir.1995). A plaintiff who finds that the limitations period on his claim has run may still seek to amend his complaint to add additional defendants, but he will be bound by the requirement that the proposed amendment "relate back" to the date that the original complaint was filed. Fed. R.Civ.P. 15(c); Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir.1996). The fatal problem for a plaintiff who has pled claims against a "John Doe" defendant is that, while "Rule 15(c) explicitly allows the relation back of an amendment due to a `mistake' concerning the identity of the parties (under certain circumstances), ... the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." Barrow, 66 F.3d at 470. Thus, a plaintiff who "believe[s] that there exist[s] individual defendants who [are] potentially liable for his injuries, but [who does] not know their exact identities" and who waits until after the expiration of the limitations period to remedy this lack of knowledge (by naming a specific individual as a defendant), will find his claim to be time-barred. Malesko v. Corr. Servs. Corp., 229 F.3d 374 (2d Cir.2000) rev'd on other grounds by 534 U.S. 61, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001).
Here, Abreu's § 1983 claim against the John Doe defendants accrued on September 13, 2005 and has since expired under the applicable three-year statute of limitations. See Pearl, 296 F.3d at 79. However, at no point prior to the expiration of the limitations period and indeed, at no time subsequent to it, either did plaintiff seek to amend his pleading to substitute named parties for the placeholder John Doe defendants. Nor is there any indication that plaintiff ever even attempted to ascertain from the City defendants the identities of these unknown individuals. Accordingly, his cause of action against the John Doe defendants is untimely and must be dismissed. Barrow, 66 F.3d at 468-70; Aslanidis, 7 F.3d at 1075.
III. CONCLUSION
For the foregoing reasons, defendants' motion is granted and the complaint is dismissed in its entirety as to all defendants.
SO ORDERED.
NOTES
[1] As explained below, the remaining named defendant, Shaniqua Watson, has not been served by plaintiff with a summons and complaint and has not appeared in this action.
[2] Of course, defendant DOC must be dismissed for an additional reason even more fundamental than the pleading failures identified above: DOC is an agency of the City of New York and, as such, is not a suable entity. See N.Y. City Charter, Ch. 17, § 396 ("[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law"); Echevarria v. Dep't of Corr. Servs., 48 F. Supp. 2d 388, 391 (S.D.N.Y.1999).
[3] If it were not already plain, it is worth noting that plaintiff has never requested an extension of time to serve Watson, nor has he asked during the pendency of this action for any other Court-ordered assistance in effectuating service. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267633/ | 683 F. Supp. 1035 (1988)
Lisa M. BROWN, et al, Plaintiffs,
v.
MINISTRY OF DEFENSE OF the UNITED KINGDOM OF GREAT BRITAIN, United Kingdom of Great Britain, the United States of America, Defendants.
Civ. A. No. 87-382-N.
United States District Court, E.D. Virginia, Norfolk Division.
April 8, 1988.
Girard C. Larkin, Jr., Virginia Beach, Va., Steven G. Schwartz, Alexandria, Va., for plaintiffs.
Raymond A. Jackson, Norfolk, Va., Irving A. Pianin, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., for defendants.
ORDER
DOUMAR, District Judge.
Plaintiffs, two civilians not employed by the Armed Forces, were injured while visiting the United Kingdom of Great Britain merchant ship R.F.A. OLNA while it was docked at the Norfolk Naval Base. The OLNA was in Norfolk as a component of a United Kingdom naval force which was participating in the NATO combined naval training operation known as "Ocean Safari." The plaintiffs brought this action, alleging tort actions in admiralty, against the United Kingdom of Great Britain (U.K.) and the Ministry of Defense for the U.K. On February 24, 1988, in open court, the court granted plaintiffs' motion for leave to amend their complaint to add the United States as a party defendant pursuant to Rule 15(a).
The defendants U.K. and Ministry of Defense for the U.K. have moved to dismiss pursuant to Rule 12(b)(6) and defendant United States has moved for dismissal pursuant to Rule 12(b)(1) and the Statute of Limitations, asserting this court lacks subject matter jurisdiction over the case against the United States and that this case is barred by the applicable statute of limitations.
For the reasons stated below, all defendants' motions to dismiss are GRANTED.
*1036 I. FACTS
On August 27, 1985 the plaintiffs visited the British Merchant Ship R.F.A. OLNA after being invited to do so by one of the OLNA's crewmen, a merchant seaman. At this time, the OLNA was docked at Pier 20, Norfolk Naval Base, Norfolk, Virginia, and was a component of a British naval force which was participating in a NATO exercise. After the visit, while the plaintiffs departed the vessel, the OLNA gangplank collapsed resulting in personal injuries to both plaintiffs. Plaintiffs allege their injuries were caused by defendants' "negligence and wrongdoing ... in their failure to properly secure the gangplank; in failing to maintain it in a proper and safe condition; and in their failure to make said gangplank safe for use in boarding and departing from the said vessel." Complaint, ¶ 7. The plaintiffs then filed this action on June 9, 1987 alleging tort action in admiralty.
II. DISCUSSION
1. The NATO-SOFA Scheme
For reasons fully set forth below, defendants argue that application of the NATO-SOFA will bar prosecution of this action. Plaintiffs counter that the treaty is not applicable and, alternatively, that application would not bar this action.
At all times material to this case, the United Kingdom of Great Britain and the United States were ratified signatories to the NATO-SOFA 4 U.S.T. 1792 (June 9, 1951). The "purpose of the [SOFA] is to define the legal status of the organs of the North Atlantic Treaty Organization and of the military forces of one NATO power stationed in the territory of another NATO power. The [SOFA] covers not only military forces but also their civilian components." Status of Forces of the North Atlantic Treaty: Supplementary Hearing Before the Comm. on Foreign Relations, 83d Cong., 1st Sess. 1 (1953) (statement of Sen. Alexander Wiley, Chairman, Senate Comm. on Foreign Relations). Significantly, the NATO-SOFA defines the legal status, under both civil and criminal laws, for hundreds of thousands of United States military personnel now serving in NATO countries. It is crucial that the court carefully construe this treaty in order to effectuate fully its intended purpose. To misconstrue or misapply the treaty could have far reaching effects insofar as misapplication could alter application of the NATO-SOFA to hundreds of thousands of American servicepeople in Europe and elsewhere.
The applicability and application of the NATO-SOFA in this case turns upon the claims provisions construction of Article VIII of the NATO-SOFA,[1] the relevant portions of which are set forth as follows:
5. Claims ... arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provisions:
(a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces.
(b) The receiving State may settle any such claims, and payment of the amount agreed upon or determined by adjudication shall be made by the receiving State in its currency.
(c) Such payment, whether made pursuant to a settlement or to adjudication of the case by a competent tribunal of the receiving State, or the final adjudication by such a tribunal denying payment, *1037 shall be binding and conclusive upon the Contracting Parties.
(d) Every claim paid by the receiving State shall be communicated to the sending States concerned together with full particulars and proposed distribution in conformity with sub-paragraphs (e)(i), (ii) and (iii) below....
....
Defendants assert that the OLNA was part of a "force" or "civilian component" thereof and that the claims provision of Article VIII therefore apply. As such, the defendant asserts that Article VIII, paragraph 5(a) exclusively limits plaintiffs' remedy to one against the United States Government, as though the plaintiffs had been injured on a United States military ship. Under this construction of paragraph 5(a), the OLNA is afforded the judicatory status of a United States warship. By this legal fiction, the plaintiffs' access to a remedy is simplified because the need to serve and sue a foreign country is obviated. In the present case, however, this construction will deny plaintiffs a remedy because they have not complied with the time requirements for bringing this action against the United States.
To the contrary, the plaintiffs urge the court to find that the OLNA was not part of a "force" and that the NATO-SOFA therefore does not apply to this case. In the alternative, plaintiffs argue that even if NATO-SOFA applies, the treaty does not expressly require suit to be brought against the "receiving state" and therefore plaintiffs are not required to sue the receiving State, here the United States, but are free to sue the sending State (U.K.) in a United States Court under United States law.
The court will consider each of plaintiffs' contentions in turn.
a. Applicability of NATO-SOFA.
The plaintiffs' argument that NATO-SOFA does not apply because the OLNA is not part of a "force" completely ignores the fact that the NATO-SOFA, by its clear terms, also applies to "civilian components." The NATO-SOFA defines a "civilian component" as "the civilian personnel accompanying a force of a Contracting Party who are in the employ of an armed service of that Contracting Party...." NATO-SOFA, Art. I, ¶ 1(b). Defendants have shown, by the uncontradicted affidavit of Michael Antony Holder, Assistant Secretary in the British Civil Service and Director of Supplies and Transport in the Ministry of Defense, that "RFA OLNA was, in August 1985, in company with HMS ILLUSTRIOUS and other British warships and RFA support vessels, preparing for their participation in the major North Atlantic Treaty Organisation exercise `Ocean Safari'. On August 27, 1985 RFA OLNA was under the operational control of a senior officer of the Royal Navy." Affidavit, ¶ 4. Moreover, the plaintiffs have admitted, by their complaint, that the OLNA was under the control of the U.K. Ministry of Defense. See Complaint, ¶ 2.
The court concludes that the OLNA's personnel were part of a "civilian component" and this alleged incident is within the perview and coverage of the NATO-SOFA which the court finds applicable to the instant case.
b. Application of NATO-SOFA.
Paragraph five, Article VIII of the NATO-SOFA has never been judicially construed with direct regard to the question whether a civil action against the United States is the exclusive remedy available under the agreement.
The focal point of the court's interpretation of the NATO-SOFA application to the instant case is paragraph 5(a) which states that "[c]laims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces."
The plain meaning of this provision, as applied to this case, is that suit must be brought under the "laws and regulations" of the United States which govern claims made against the United States itself for injuries resulting from United States armed forces activities. Paragraph 5(a) is not merely a conflict of laws provision. It does *1038 not say only that a civilian injured in the receiving State may sue in the receiving State under the law of the receiving State. Rather, the provision specifically provides further that such suit "shall" be brought under the receiving State's laws which govern claims arising from the activities of the receiving State's armed forces. Id.
The United States law which governs claims which arise in the United States from injuries sustained by third parties on United States military or support vessels is the Public Vessels Act (PVA), 46 U.S.C. App. §§ 781-790. United States v. United Continental Tuna Corp., 425 U.S. 164, 96 S. Ct. 1319, 47 L. Ed. 2d 653 (1976); Petition of the United States, 367 F.2d 505 (3rd Cir.1966), cert. denied, 386 U.S. 932, 87 S. Ct. 953, 17 L. Ed. 2d 805 reh. denied, 386 U.S. 1000, 87 S. Ct. 1303, 18 L. Ed. 2d 354. As such, defendants assert that under the terms of the NATO-SOFA, the PVA provides the exclusive remedy for the paragraph 5 claimants in the instant case and that therefore the court lacks jurisdiction over the case filed against the U.K. under admiralty law.
Further, the use of the mandatory "shall" indicates that the treaty claims provisions were intended as the exclusive scheme under which covered claims were to be made.
Both the case law and legislative history support the proposition that the elements of the sending state "force" or "civilian component" which cause injury in a receiving State are, for the purposes of Article VIII, afforded the judicatory status of the receiving State's own forces. As such, these authorities support the defendants' position that this suit should have been brought against the United States itself under the PVA.
One case has interpreted paragraph 5 with regard to the precise question whether a civilian injured in the receiving State by a member of the Armed Forces of a sending State, while the member is in the line of duty, must resort to paragraph 5 as the exclusive remedy available and bring a claim. In Shafter v. United States, the court held that German civilians injured by United States armed forces in the line of duty in Federal Republic of Germany waters could not sue in a United States court under the PVA but were limited to their remedy under the NATO-SOFA scheme. 273 F. Supp. 152 (S.D.N.Y.1967) aff'd, 400 F.2d 584 (2nd Cir.1968), cert. denied, 393 U.S. 1086, 89 S. Ct. 871, 21 L. Ed. 2d 779. The court reviewed the legislative history of the ratification of the NATO-SOFA stating that
In giving its assent to NATO-SOFA, the Senate noted specifically both the benefits and the burdens of the jurisdictional agreement. It was observed that disposition of third-party claims by the Government of the place where the asserted wrong occurred (normally the country of the claimant's citizenship or residence ...) would promote fairness, ease friction....
Shafter, 273 F.Supp. at 156. The court then concluded that "[i]t seems clear ... that the specific provisions of NATO-SOFA should be read to exclude the concurrent and inconsistent jurisdiction plaintiffs invoke under the Public Vessels Act."[2]Id.
Although Shafter did not expressly state that suit under paragraph five must be brought against the receiving State itself, the court did quote the legislative history which stated that "[i]n the case of torts committed in the performance of duty, the local citizen who is injured proceeds against his own government exactly as he would if the injury had been caused by a member of his own government's armed forces." Shafter, 273 F.Supp. at 156 n. 4 (quoting S.Exec.Rep. No. 1, 83d Cong., 1st Sess. 13-14 (1953)).
The Ninth Circuit has similarly interpreted paragraph five. In Daberkow v. United States, 581 F.2d 785 (9th Cir.1978), suit was brought in the United States on behalf of a West German military officer who had *1039 been killed while on duty in the United States. The court rejected the widow's claim under the Federal Tort Claims Act because the West German officer was held to fall under the rule enunciated in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1953) wherein the Supreme Court of the United States held that a United States serviceman injured in the line of duty may not sue the Government under the Federal Tort Claims Act. The court found that "after considering the factors underlying the Feres doctrine, we conclude that the District Court properly held the rule enunciated in Feres ... should apply with equal force in this case, although the serviceman is not a member of the United States military." Id. at 788. The court held that its conclusion that Feres applied to foreign force members was buttressed by Article VIII, paragraph five of the NATO-SOFA because, although paragraph five did not precisely cover the facts presented, "the provision does suggest ... that the foreign serviceman is `assimilated' into the United States military for this limited consideration." Id. at 789.
These judicial interpretations are well supported by the legislative history of the ratification of the NATO-SOFA. As noted above, the Senate report expressly stated that an action under paragraph five must be brought against the claimant's own Government. See Shafter, 273 F.Supp. at 156 n. 4; S.Exec.Rep. No. 1, 83d Cong., 1st Sess., 13-14 (1953).
That this procedure was clearly intended by the Executive Branch, which negotiated the Treaty, is illustrated by reference to the Defense Department representatives' testimony regarding NATO-SOFA ratification before the Senate Committee on Foreign Relations on April 7, 1953. Mr. Haydock, Counsel for Foreign and Military Affairs, Department of Defense, testified that when a claim arises under paragraph five the "receiving State itself is being sued...."[3] (Committee Transcript, April 7, 1953 at 18). The Committee was also presented with the following statement from the State Department:
The American citizen presently injured by NATO personnel in the United States would probably have no other remedy than to proceed against the tort-feasor or if he were acting in the line of duty, possibly to file a claim with the United States Government for presentation to the Government of whose force the tort-feasor was a member. Under the NATO formula, such a claim could be brought against the United States which would process and pay it, thereafter calling upon the NATO country concerned to reimburse it for 75 percent of the compensation paid.
Id. at 29.
Legal counsel for the State Department, Mr. Phleger, further stated that "the foreigner with respect to civil claims is in the same status as if he were a member of the United States force ... [this] would put the foreign nation in the position of defending them." Mr. Phleger testified further that
[b]ecause the foreigner is not under our military jurisdiction, it places the foreign soldier here on duty, and acting in the performance of his duty, in the same status as though he were an American soldier, and to that extent ... it supercedes any law in conflict with that because if he did not have that status he would be treated just like any ordinary civilian.
Id. at 73.
The Court finds that the clear import of the Senate report and the testimony of representatives from the Executive Branch is that those officials and Congressmen who negotiated and ratified the NATO-SOFA understood and intended that paragraph five requires suit to be brought against the United States under the laws which govern claims arising from the activities of the United States armed forces. Although the case law is sparse, it is in unanimous accord with this conclusion.
*1040 Moreover, it appears well established that when Congress provides a remedy under the PVA or Suits in Admiralty Act, 46 U.S.C.App. §§ 741-752 (SAA) the PVA or SAA provides the exclusive source of Federal Jurisdiction. United Continental, 425 U.S. at 176 n. 14, 96 S. Ct. at 1326-27 n. 14; McCormick v. United States, 680 F.2d 345 (5th Cir.1980); T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855 (9th Cir.1974), cert. denied, 421 U.S. 1000, 95 S. Ct. 2398, 44 L. Ed. 2d 667 (1975).
Here, because of the applicability and operation of the NATO-SOFA, this court lacks jurisdiction over plaintiffs' admiralty case against the U.K. and the Ministry of Defense for the U.K. Accordingly, the case against these defendants is DISMISSED.
The court concludes further that the exclusive remedy available to the plaintiffs in this case is afforded by paragraph five of the NATO-SOFA. As such, the plaintiffs' only available remedy is against the United States under the PVA.
2. United States' Motion to Dismiss
The United States has moved the court to dismiss the case against it upon two grounds. First, the Government asserts that the case stated in the amended complaint is barred by the two year statute of limitations applicable here under the SAA and PVA. Secondly, the Government asserts that this court lacks subject matter jurisdiction because the United States was not served with notice of this suit in accordance with the requirements set forth in the SAA and PVA.
Statute of limitations
The incident underlying the complaint in this case occurred on August 27, 1985. The amended complaint, which joined the United States as a defendant, was filed on March 1, 1988 beyond the two year limitation period.
The plaintiffs argue that under FRCP 15(c), the amended complaint should "relate-back" to the time of filing of the original complaint against the U.K., which was filed on June 9, 1987 within the limitation period.
Rule 15(c) provides as follows:
(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him....
The Government claims that neither the U.K. nor the plaintiffs notified the United States that suit had commenced until after the limitation period, and that therefore relation back cannot occur under Rule 15(c)(1).
The plaintiffs do not claim that the Government received actual notice within the limitation period. Rather, the plaintiffs counter that the purpose of Rule 15(c) is merely to allow suits to proceed, despite expiration of the limitation period, so long as the defendant is not prejudiced thereby. Plaintiffs' Memorandum in Support of Motion to Amend, Jan. 29, 1988, at 11. Further, plaintiffs urge the court liberally to construe the notice requirement of Rule 15(c)(1) to require only that the party to be joined has notice of the incident, not necessarily the actual suit. Id. at 12. The plaintiff then asks the court to conclude that the defendants had notice of the incident and will not be prejudiced by the amendment and therefore under Rule 15(c) the amended complaint should relate back.
However, the plaintiffs' arguments are inconsistent with with the express wording of Rule 15(c) and the case law which interprets it.
*1041 The Fourth Circuit case of Weisgal v. Smith, 774 F.2d 1277 (4th Cir.1985), is particularly instructive. There, a federal prison inmate had instituted a Bivens action against certain officials. Subsequently, the prisoner attempted to amend his complaint to state an action against the United States under the Federal Tort Claims Act (FTCA). The Government argued that the limitation period under the FTCA had expired. The prisoner countered that his FTCA complaint should relate back to the filing of his Bivens action under Rule 15(c). The court held that the rule clearly requires actual notice within the limitation period and that "absence of proper notice to the United States within the limitations period would result in prejudice by eliminating the statute of limitations defense." Weisgal, 774 F.2d at 1279. See Stewart v. United States, 655 F.2d 741 (7th Cir.1981) ("Relation back under Rule 15(c) requires ... that actual notice be received by the Government within the period provided by law for commencing the action").
The law appears clear that Rule 15(c) requires actual notice within the limitation period and that prejudice results when a party sought to be joined loses his limitations defense by virtue of the joinder and lack of notice.
In the instant case it is undisputed that the United States did not receive actual notice within the limitation period and that the United States would be prejudiced by its loss of the limitation defense. Accordingly, the Court GRANTS the United States' motion and this case is DISMISSED.
Because the case against the United States is dismissed on limitation grounds, it is not necessary to consider the United States' challenge to the court's subject matter jurisdiction.
The Clerk is DIRECTED to send a copy of this order to all counsel of record and to the Attorney General of the United States.
IT IS SO ORDERED.
NOTES
[1] The plaintiffs have argued that paragraph 6 applies. This paragraph is the claims provision relevant to damage caused by NATO personnel not in the line of duty. Here, the damage allegedly arose from the failure of the OLNA's captain to maintain the vessel in a safe condition and to provide a watch. Clearly, these alleged failures were in the line of duty and therefore paragraph 5 applies rather than paragraph 6.
[2] The plaintiffs argue that Shafter was rejected by this Court in Newington v. United States, 354 F. Supp. 1012 (E.D.Va.1973). However, Newington held only that a member of a "force" could not be a "third party" under paragraph five and therefore the treaty provision did not apply.
[3] Mr. Haydock provided an example: "If an American Jeep ... runs into a privately owned French vehicle in France, the person who is injured will sue the French Government, and in accordance with whatever the French tort claims procedures are." Testimony of Mr. Haydock, April 7, 1953 at 18. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743907/ | 771 So. 2d 57 (2000)
Terry E. DANIELS, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D00-3600.
District Court of Appeal of Florida, Second District.
October 6, 2000.
PER CURIAM.
Terry Daniels challenges the trial court's denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800 wherein he alleged that he was sentenced under an unconstitutional version of the 1995 guidelines. The trial court denied the motion, finding that Daniel's sentence would not have been a departure under the 1994 sentencing guidelines. The trial court attached a copy of Daniels' 1994 sentencing guidelines scoresheet but failed to provide any attachments showing the length of the sentence that was actually imposed. We nevertheless affirm the order of the trial court because Daniels did not present a facially sufficient claim for relief.
Daniels did properly allege that the offenses for which he was sentenced occurred between October 1, 1995, and May, 24, 1997, which is within the Heggs window. See Murray v. State, 768 So. 2d 501 (Fla. 2d DCA 2000). However, he failed to allege that his sentence constituted a departure sentence under the 1994 sentencing guidelines. See Heggs v. State, 759 So. 2d 620, 627 (Fla.2000) (if defendant's sentence under 1995 guidelines could have been imposed under 1994 guidelines without a departure, defendant is not entitled to relief).
We hold that any postconviction claim filed pursuant to rule 3.800(a) alleging *58 that the defendant was sentenced under an unconstitutional version of the 1995 sentencing guidelines must contain an allegation that the sentence imposed constitutes a departure under the 1994 sentencing guidelines. If the motion fails to contain that allegation, the defendant has not presented a facially sufficient claim for relief under Heggs. We note that this requirement only applies where the motion is filed after the date of the supreme court's decision in Heggs.
We affirm without prejudice to Daniels to file a timely, facially sufficient motion to withdraw the plea pursuant to Florida Rule of Criminal Procedure 3.850 should there be sufficient grounds for him to do so. See Kleppinger v. State, 760 So. 2d 1045 (Fla. 2d DCA 2000).
ALTENBERND, A.C.J., and NORTHCUTT, J., and DANAHY, PAUL W., (Senior) Judge, Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265190/ | 657 F. Supp. 423 (1987)
Donald BACHELDER, et al., Plaintiffs,
v.
COMMUNICATIONS SATELLITE CORPORATION, et al., Defendants.
Civ. No. 84-0310 P.
United States District Court, D. Maine.
April 6, 1987.
*424 Robert E. Mittel, Portland, Me., Paul R. Dumas, Jr., Rumford, Me., for plaintiffs.
William J. Kayatta, Jr., Louise K. Thomas, Portland, Me., for defendants.
MEMORANDUM OF DECISION AND ORDER
GENE CARTER, District Judge.
This is a class action suit brought by approximately 100 participants in an employee stock option plan adopted in 1976 by Defendant Communications Satellite Corporation (Comsat). Plaintiffs have brought three counts against Defendants, claiming that they have not received the full distribution from the stock option plan to which they are entitled. Count II, alleging a breach of fiduciary duty, has been settled, and Count III, alleging a breach of contract, has been temporarily stayed. The only matter currently before the Court on these cross motions for summary judgment is Count I: an allegation that Defendants breached fiduciary and statutory duties imposed by the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001, et seq. (1982) (ERISA). The Court finds that there are no issues of material fact in dispute and that therefore resolution by summary judgment is appropriate.
Under the terms of Comsat's plan, the accounts of participating employees are periodically credited with shares of stock and small quantities of cash representing fractional shares of stock. Upon retirement, *425 job termination, or participation in the program for seven years, an employee is entitled to receive a distribution in either stock or cash. The plan itself does not specify the date upon which shares of stock are to be converted into cash for distribution to employees who have elected to receive cash payments after participating in the program for seven years. It says only that "[t]o effect such distributions, the Committee may direct the Trustee to sell the appropriate number of shares of Corporation Stock on the open market." Communications Satellite Corporation Employee Stock Ownership Plan (Restated, effective January 1, 1983) § 7.5A.
The date of conversion from stock to cash is, however, specified in the Summary Plan Description (SPD)[1] that was distributed by Comsat to plan participants. The following language appeared in the 1983 SPD:
Let's say, for example, that for 1976 your account was credited with 20 shares of COMSAT stock that were worth $700 at that time. During the 84 months through 1983, that portion of your account grew in value to $1,200 (due to dividends paid and reinvested as well as gains in market value). As soon as possible after the end of 1983, you'd receive a payout in shares of stock (and cash for any fraction of a share) or entirely in cash equal to $1,200.
Although the Defendants have disputed its import, this language clearly sets the last day of the year as the date of conversion from stock to cash, stating explicitly that if an employee's account is worth $1200 at the end of 1983, then as soon as possible after the end of 1983 the employee would receive a payout of $1200.
The current dispute involves employees who, having participated in the plan for seven years, were entitled to a distribution at the end of 1983, and who, in response to forms distributed in December 1983, indicated that they wished to receive that distribution in cash. Comsat stock sold for $32.75 per share on December 31, 1983; however, Comsat did not actually sell the stock until early March 1984. The average net proceeds per share was $25.75, and it was this amount that was used as the basis for employee distributions. The Plaintiffs claim that the 1983 SPD obligated the Defendants to base the distribution on the December 31, 1983 price of $32.75.
As stated above, the Court finds that the 1983 SPD unambiguously promises that participants who elect to receive a cash distribution will have their stock converted to cash at its value on December 31, 1983 and paid to them as soon as possible thereafter.[2] The Court is not persuaded by Defendants' argument that the general language in a later paragraph that "the value of each year's payout will depend on fluctuations in the market price of our stock" because "common stock can go up or down in value" has the effect of contradicting the specific example of a distribution that appears in the paragraph before it. The intervening text between the two sections *426 explains that participants may forego a payout in any given year and allow their stock to continue to accumulate within the plan. Placed in context, it is clear that the language quoted by the Defendants is a comment upon the risks involved in foregoing a distribution and not on the mechanics and timing of the 1983 distribution. The interpretation offered by the Defendants is untenable, as it requires unnecessarily reading the document as internally inconsistent and ignoring proximity, intervening discussions, and paragraph separations in determining whether one provision modifies another.[3]
Having determined the meaning of the SPD provision, the Court must now consider whether the SPD is binding on the Defendants. It is a requirement of 29 U.S.C. § 1104(a)(1)(D) that employee stock option plans be administered "in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter." Under 29 U.S.C. § 1132, a plan participant may bring a civil action to recover benefits due under the terms of his plan. It is therefore necessary to determine whether the SPD constitutes a governing document or instrument of the plan and whether its provisions may be considered terms of the plan. For the reasons discussed below, the Court answers these questions in the affirmative.
The provisions of section 1104 are to be interpreted in light of the common law of trusts. See H.R.Rep. No. 93-533, 93 Cong. 2d Sess. 11-13, reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4649-51; Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S. Ct. 3085, 87 L. Ed. 2d 96 (1985) (Brennan, J., concurring); Donovan v. Mazzola, 716 F.2d 1226, 1231 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S. Ct. 704, 79 L. Ed. 2d 169 (1984). Under the Restatement (Second) of Trusts § 4 comment a (1959), if the document establishing a trust is silent on one of the terms of the trust, then a later document may be relied on in establishing that term, particularly if the later document is drawn with a high degree of care and formality. Such circumstances exist in the present case: the document that contains the most comprehensive catalog of plan terms does not specify the date at which stock-to-cash conversions will occur for employees receiving a payout after seven years of participation in the plan, but this information is contained in the 1983 SPD, a twelve-page document that explains plan terms authoritatively and in detail and that has obviously been drawn with care and presented as a formal statement of policies and procedures. Under the Restatement, such terms must be considered "terms of the trust" and as such, the document in which they are contained must be considered a document "governing the plan" for the purposes of 29 U.S.C. § 1104(a)(1)(D). Therefore, a failure to comply with terms contained *427 in the 1983 SPD constitute a breach of fiduciary duty under this section.
This result is consistent with the result reached by the Eleventh Circuit in McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566 (11th Cir.1985), a case in which that court held that language in an SPD is binding upon an employer even if it contradicts language in the original plan description. The court reasoned that there would be no purpose in requiring the distribution to employees of a summary plan description of a benefit program if there were not a requirement that the description was one that could be depended upon to be controlling. Id. at 1570. Similarly, the court in Cooke v. Chapter Hawley Hale Stores, Inc., Group Health Care Plan, et al., No. 85C-1683, slip op. (N.D.Ill. July 2, 1986) [Available on WESTLAW, DCT database], held that a summary plan description may serve as a "governing plan document" under ERISA. See also Gors v. Venoy Palmer Market, Inc., 578 F. Supp. 365 (E.D.Mich.1984).
The Court also finds it significant that numerous state courts have ruled that employers are contractually bound by promises made in employee handbooks.[4] This *428 view is consistent with the Court's finding that language contained in Comsat's SPD, a document quite analogous to an employee handbook, gives plan participants specific rights and forms part of the plan's terms.
Defendants contend that even if they failed to comply with the 1983 SPD, such a failure is not actionable absent detrimental reliance by the Plaintiffs. They base this assertion on the First Circuit's holding in Govoni v. Brick Layers, Masons, & Plasters Int'l Union of America, Local No. 5 Pension Fund, 732 F.2d 250 (1st Cir.1984). Govoni, however, addressed a violation of ERISA's reporting requirements under 29 U.S.C. § 1022 and not, as in the present case, a breach of fiduciary duty actionable under 29 U.S.C. § 1104. In Govoni, the court found that the circulation of an SPD with confusing language that is subject to two different interpretations violates the standard of clarity imposed by 29 U.S.C. § 1022 and, because of that lack of clarity, does not fulfill that statute's requirement that participants be informed of circumstances which may result in loss of benefits. Nevertheless, the court found that because Govoni had in no way relied upon his interpretation of the SPD, he could not recover for the trustees' failure to comply with ERISA's reporting provisions.
The current case is distinguishable. Defendants are exposed to liability not for a failure to accurately report the provisions of their plan but for a failure to comply with a term of the plan clearly manifested in a formal plan description distributed to participants. Govoni's holding was not addressed to such a situation and cannot be extended to apply to it without conflicting with ERISA provisions allowing plan participants to bring civil actions to recover benefits due under the terms of their plan. See 29 U.S.C. § 1132. Govoni was not denied any benefit due to him under the terms of his plan; the Plaintiffs in the current case have been.
Accordingly, it is ORDERED that the Plaintiffs' Motion for Summary Judgment be, and it is hereby, GRANTED as to Count I.
NOTES
[1] ERISA requires that a summary plan description of an employee benefit plan be furnished to participants, that it be written in a manner calculated to be understood by the average plan participant, and that it be sufficiently accurate and comprehensive to reasonably apprise participants of their rights and obligations under the plan. The SPD must contain certain specific information including a description of circumstances that may result in disqualification, ineligibility, or denial or loss or benefits. 29 U.S.C. § 1022 (1982).
[2] Under Jestings v. New England Telephone & Telegraph Co., 757 F.2d 8 (1st Cir.1985), the Court is bound to accept the interpretation of ambiguous plan terms put forth by the plan's trustees if "the language of the plan will bear the interpretation that [the trustee] places upon it." Id. at 9. Similarly, the First Circuit held in Rueda v. Seafarers Int'l Union of North America, 576 F.2d 939 (1st Cir.1978), that "[w]e need not be convinced that the trustees' approach is the only or the best way to plan and maintain the integrity of the fund. We need only be convinced that it is a rational one and is supported by a reasonable reading of the regulations." Id. at 943. Both cases require the courts to pay great deference to the interpretation of plan terms offered by a trustee, but both also require that that interpretation be a reasonable one. In the current case, the Court finds that the plan's language is not ambiguous and that, for the reasons enunciated in the text, it cannot reasonably be interpreted in the manner urged by the Defendants.
[3] The full text of the relevant three paragraphs reads as follows:
If you decide to receive the payout for a given plan year, the amount of each payout will be equal to that number of shares that went into your account 84 or more months earlier and any additional shares purchased with reinvested dividends on those shares. Since allocation of COMSAT stock for the plan's first year was made for 1976, the first payouts under this plan provision will be made available in early 1984 to participants who have COMSAT stock relating to 1976.
Let's say, for example, that for 1976 your account was credited with 20 shares of COMSAT stock that were worth $700 at that time. During the 84 months through 1983, that portion of your account grew in value to $1,200 (due to dividends paid and reinvested as well as gains in market value). As soon as possible after the end of 1983, you'd receive a payout in shares of stock (and cash for any fraction of a share) or entirely in cash equal to $1,200. The rest of your account would remain intact. The next year, in 1985, your 1977 shares would be distributed to you if you decided to receive a payout. And so on. If you decide not to receive a payout for a given plan year, the election to do so will be available to you annually in following years. You may not, however, receive a payout for a given plan year unless payouts available to you for earlier plan years are first or simultaneously distributed.
The value of each year's payout will depend on fluctuations in the market price of our stock. While we hope that our stock will pay dividends and gain in value, there can be no guarantee. Common stocks can go up or down in value.
[4] This issue was recently analyzed in Duldulao v. Saint Mary of Nazareth Hosp. Center, 115 Ill. 2d 482, 106 Ill. Dec. 8, 505 N.E.2d 314 (Jan. 30, 1987) (WESTLAW, Allstate Library, Ill. file). In a slip opinion filed prior to the expiration of the statutory period for rehearing, the Supreme Court of Illinois summarized the state of the law as follows:
The contractual status of employee handbooks has been the subject of a great deal of litigation in recent years. Several courts have rejected the notion that an employee handbook or manual can ever create binding contractual obligations. (See, e.g., Uriarte v. Perez-Molina (D.D.C.1977), 434 F. Supp. 76 (applying D.C. law); White v. Chelsea Industries, Inc. (Ala.1983), 425 So. 2d 1090; Heideck v. Kent General Hospital, Inc. (Del.1982), 446 A.2d 1095; Muller v. Stromberg Carlson Corp. (Fla. App.1983), 427 So. 2d 266; Shaw v. S.S. Kresge Co. (1975), 167 Ind.App. 1, 328 N.E.2d 775; Johnson v. National Beef Packing Co. (1976), 220 Kan. 52, 551 P.2d 779; Richardson v. Charles Cole Memorial Hospital (1983), 320 Pa.Super. 106, 466 A.2d 1084; Reynolds Manufacturing Co. v. Mendoza (Tex.Civ.App.1982), 644 S.W.2d 536). However, the overwhelming majority of courts considering the issue have held that an employee handbook may, under proper circumstances, be contractually binding. (See, e.g., Vinyard v. King (10th Cir. 1984), 728 F.2d 428 (applying Oklahoma law); Lincoln v. Sterling Drug, Inc. (D.Conn.1985), 622 F. Supp. 66 (Connecticut law); Barger v. General Electric Co. (W.D.Va.1984), 599 F. Supp. 1154 (Virginia law); Smith v. Teledyne Industries, Inc. (E.D.Mich.1984), 578 F. Supp. 353 (Ohio law); Brooks v. Trans World Airlines, Inc. (D.Colo.1983), 574 F. Supp. 805 (Colorado law); Leikvold v. Valley View Community Hospital (1984), 141 Ariz. 544, 688 P.2d 170; Pugh v. See's Candies, Inc. (1981), 116 Cal. App. 3d 311, 171 Cal. Rptr. 917; Salimi v. Farmers Insurance Group (Colo.App.1984), 684 P.2d 264; Finley v. Aetna Life & Casualty Co. (1985), 5 Conn.App. 394, 499 A.2d 64; Jackson v. Minidoka Irrigation District (1977), 98 Idaho 330, 563 P.2d 54; Wyman v. Osteopathic Hospital of Maine, Inc. (Me.1985), 493 A.2d 330; Staggs v. Blue Cross of Maryland, Inc. (1985), 61 Md.App. 381, 486 A.2d 798; Toussaint v. Blue Cross & Blue Shield (1980), 408 Mich. 579, 292 N.W.2d 880; Pine River State Bank v. Mettille (Minn.1983), 333 N.W.2d 622; Enyeart v. Shelter Mutual Insurance Co. (Mo.App.1985), 693 S.W.2d 120; Morris v. Lutheran Medical Center (1983), 215 Neb. 677, 340 N.W.2d 388; Southwest Gas Corp. v. Ahmad (1983), 99 Nev. 594, 668 P.2d 261; Woolley v. Hoffmann-LaRoche, Inc. (1985), 99 N.J. 284, 491 A.2d 1257; Forrester v. Parker (1980), 93 N.M. 781, 606 P.2d 191; Bolling v. Clevepak Corp. (1984), 20 Ohio App. 3d 113, 484 N.E.2d 1367; Langdon v. Saga Corp. (Okla.Ct.App.1976), 569 P.2d 524; Yartzoff v. Democrat-Herald Publishing Co. (1978), 281 Or. 651, 576 P.2d 356; Osterkamp v. Alkota Manufacturing, Inc. (S.D.1983), 332 N.W.2d 275; Hamby v. Genesco, Inc. (Tenn. App.1981), 627 S.W.2d 373; Piacitelli v. Southern Utah State College (Utah 1981), 636 P.2d 1063; Thompson v. St. Regis Paper Co. (1984), 102 Wash.2d 219, 685 P.2d 1081; Mobil Coal Producing, Inc. v. Parks (Wyo.1985), 704 P.2d 702).
Id. at ___, 106 Ill. Dec. 10-11, 505 N.E.2d at 317.
The Court went on to rule:
We find particularly persuasive the opinion of the Supreme Court of Minnesota in Pine River State Bank v. Mettille (Minn.1983), 333 N.W.2d 622, which analyzed an employee handbook in terms of the traditional requirements for contract formation: offer, acceptance, and consideration (333 N.W.2d 622, 625). In Pine River an employee handbook was distributed to the plaintiff several months after he began working for defendant.... The court [found the booklet to contain] a specific offer for a unilateral contract the bank's promise in exchange for the employee's performance, i.e., the employee's labor. (333 N.W.2d 622, 630.) By performing, the employee both accepted the contract and provided the necessary consideration, and thus the bank's dismissal of the plaintiff without the benefit of the progressive disciplinary procedures constituted a breach of the employment contract. 333 N.W.2d 622, 630-31.
Following the reasoning in Pine River, we hold that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee's continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.
Id. at ___, 106 Ill. Dec. 12, 505 N.E.2d at 318. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265199/ | 657 F. Supp. 886 (1987)
Candido CASTRO
v.
M/V AMBASSADOR and its owners, et al.
Civ. A. No. 86-4323.
United States District Court, E.D. Louisiana.
March 26, 1987.
Ivan David Warner, III, New Orleans, La., for plaintiff.
J. Dwight LeBlanc, Jr., New Orleans, La., for defendant.
McNAMARA, District Judge.
Before the court is the Motion of Plaintiff, Candido Castro, to Increase Maintenance and Cure. The Defendant, Coordinated Caribbean Transport, Inc. (owner of the M/V AMBASSADOR AMBASSADOR) opposes this Motion.
This Motion, set to be heard on Wednesday, March 11, 1987, is before the court on briefs without oral argument. Having considered the memoranda of counsel and the applicable law, the court rules as follows:
This case arises out of personal injuries allegedly sustained by Plaintiff, Candido Castro, on or about July 17, 1986, while working aboard the M/V AMBASSADOR, a vessel owned and operated by his employer, Coordinated Caribbean Transport, Inc. (C.C.T.). The Plaintiff filed suit against C.C.T. under the Jones Act for negligence and the General Maritime law for maintenance and cure.
Plaintiff's employer, C.C.T., began maintenance payments subsequent to the Plaintiff's accident at the rate of $8.00 per day, in accordance with its contract with the *887 Seafarers International Union (SIU), of which Plaintiff was a member.[1] Plaintiff has now filed a Motion for Increase in Maintenance payments from $8.00 per day to $20.00 per day.
The Plaintiff's position is that the $8.00 per day rate is inadequate to meet Plaintiff's living expenses as listed in the memorandum filed with Plaintiff's Motion.
The Defendant, C.C.T., takes the position that Plaintiff is only entitled to the $8.00 per day rate of maintenance set forth in the union contract which, the Defendant claims, is binding on the Plaintiff as a member of that union.
A seaman's right to maintenance is implicit in and arises out of the contractual relationship between the seaman and his employer, and is designed to ensure his recovery upon injury or illness sustained in the service of the ship. Pellotto v. L & N Towing Co., 604 F.2d 396 (5th Cir.1979) and cases cited therein. A seaman who is injured or falls ill while he is in the service of the ship is entitled to recover maintenance from his employer or the shipowner. Maintenance is intended to cover the reasonable costs the seaman incurs in acquiring food and lodging ashore until he reaches maximum cure. The rate at which maintenance is to be paid ordinarily reflects the cost of food and lodging in a particular area, comparable to that received on board the vessel. Tate v. American Tugs, Inc., 634 F.2d 869 (5th Cir.1981), Caulfield v. AC & D Marine, Inc., 633 F.2d 1129 (5th Cir.1981), Robinson v. Plimsoll Marine, Inc., 460 F. Supp. 949 (E.D.La.1978).
This court has previously held that in the absence of a union contract expressly providing for a specific rate of maintenance, the amount of maintenance to which an ill or injured seaman is entitled is a question of fact to be determined by the trial court based upon the evidence presented, including evidence as to the costs the seaman incurs in acquiring food and lodging prior to reaching maximum cure. However, if there exists a valid collective bargaining agreement between the seaman's union and his employer, which expressly sets forth the rate of maintenance to be paid a seaman employee should he become ill or injured, then the Plaintiff, as a party to that agreement, will be bound by its terms. Grove v. Dixie Carriers, Inc., 553 F. Supp. 777 (E.D.La.1982).
The Plaintiff in the present case at the time of the accident was a member of the SIU and the contract in effect at the time of the Plaintiff's accident clearly provides that maintenance for union members be limited to $8.00 per day. Article II, Section 13 of the 1985 New Standard Freightship Agreement, (effective January 1, 1985 through June 15, 1987) between the SIU and contracted companies, (which includes C.C.T.) states as follows:
Section 13. Maintenance and Cure. When a member of the unlicensed personnel is entitled to maintenance and cure under the maritime law, he shall be paid maintenance at the rate of $8.00 per day for each day or part thereof of entitlement. (SIU Contract at page 5.).
This court recognizes that there is some point of reasonableness which cannot be exceeded in setting the contractual rate of maintenance and which would be tantamount to abrogating the obligation to pay maintenance and cure entirely. Grove v. Dixie Carriers, Inc., supra at 780. However, it certainly cannot be said that a rate of $8.00 per day for maintenance in the present case in any way violates this standard of reasonableness. This daily rate, therefore, is not an abrogation of maintenance.
To support Plaintiff's contentions Plaintiff listed his "monthly obligations" (see attached) titled Exhibit One which was attached to his Motion.[2] These expenses *888 were broken down into two main categories. Those expenses incurred in Honduras ("Honduran Expenses") which include his mortgage payment, utilities, automobile, groceries, child care, childrens educational expenses, and medical expenses of his family. The second category of expenses are those incurred in New Orleans ("New Orleans Expenses") which include his rent, utilities, telephone, transportation, food, and payments on his refrigerator.
Since maintenance payments are only intended to cover the reasonable costs the seaman incurs in acquiring food and lodging ashore comparable to that received aboard the vessel, most of the Plaintiff's listed "obligations" are irrelevant. Certainly the Plaintiff's "Honduran Expenses" have nothing to do with "expenses incurred in acquiring food and lodging ashore." Turning now to the Plaintiff's "New Orleans Expenses," neither his telephone payments nor his transportation expenses are expenses incurred in acquiring food and lodging ashore.
Regarding the "New Orleans Expense" listed as Universal Furniture Store (refrigerator), while access to a refrigerator may be a necessary expense covered by maintenance payments, the cost of purchasing a refrigerator is not maintenance.
The only expenses listed which this court finds are maintenance would be the "New Orleans Expenses" of rent, utilities and food. These expenses total a monthly expense of $262.50 per month as provided in the documentary submission by Plaintiff (see attached). The $8.00 per day rate afforded by the union contract results in approximately $240.00 per month in payments to the Plaintiff which approximately covers the living expenses this Plaintiff is entitled to under the maintenance obligation of his employer, C.C.T.
The preceding analysis of this Plaintiff's living expenses is illustrative of the reasonableness of the $8.00 per day rate agreed to in the collective bargaining agreement. The fact that the actual living expenses submitted by this Plaintiff exceeded the $8.00 per day rate afforded by the union contract has no effect on this ruling since this "agreed to rate" was not so low as to be unreasonable and thus resulting in an abrogation of maintenance. Grove, supra at 780.
The Plaintiff cites in his memorandum Rutherford v. Sea Land Service, Inc., 575 F. Supp. 1365 (N.D.CA 1983), which held that the duty to pay maintenance is abrogated when the maintenance payment provided in a collective bargaining agreement is inadequate to allow the seaman to acquire food and lodging comparable to what would have been received aboard the vessel. This decision has been criticized, however, by the Ninth Circuit which held that the district court in Rutherford "unduly discounted and undervalued important policies which support the enforceability of the maintenance rate involved within a collective bargaining agreement." Gardiner v. Sea Land Services, Inc., 786 F.2d 943 (9th Cir.1986). Notwithstanding the criticism of the Rutherford decision, this court has shown through its analysis of the Plaintiff's living expenses enumerated in Exhibit One that the maintenance payment provided for in the union contract is adequate.
Accordingly, this court finds that the Plaintiff, Candido Castro, is bound by the maintenance rate of $8.00 per day as afforded by the Seafarers International Union Contract, as specified in the collective bargaining agreement between his employer, Coordinated Caribbean Transport, Inc., and the Union; and therefore his Motion for increase in maintenance payments should be and and is DENIED.
*889
EXHIBIT ONE
CANDIDO CASTRO'S MONTHLY OBLIGATIONS
CREDITOR MONTHLY EXPENSE
HONDURAS
Where wife and children live
1. Constacia Bank San Pedro Sula
Mortgage on House $ 220.00
2. UTILITIES
A. ElectricityENE Electric 60.00
B. WaterDina Water Company 12.00
3. AUTOMOBILE
Maintenance and upkeep 100.00
4. GROCERIES 250.00
5. CHILD CARE
Live in person, room and board 75.00
6. EDUCATION
School books and clothes 50.00
7. MEDICAL
Four children monthly checkups 60.00 ($15.00 each child)
TOTAL (HONDURAS) $ 842.00
_________
NEW ORLEANS
1. UNIVERSAL FURNITURE STORE
(refrigerator) $ 63.00
2. RENT, pays ½ of $175.00 87.50
3. NOPSIelectric bill 15.00
4. SOUTH CENTRAL BELL 15.00
5. TRANSPORTATION 40.00
Most by bus
6. FOOD 160.00
_________
TOTAL (NEW ORLEANS) $ 317.50
_________
GRAND TOTAL $1,159.50
=========
NOTES
[1] Seafarers International Union (SIU), on behalf of its Union members, entered into a collective bargaining agreement with Coordinated Caribbean Transport, Inc. (C.C.T.), whereby the Union agreed to furnish C.C.T. with personnel for employment aboard vessels owned and/or operated by C.C.T.
[2] Plaintiff has also cited numerous cases, including some in this district, which have awarded increased maintenance payments in accordance with the seaman's estimated living expenses ashore. (See, e.g., Robinson v. Plimsoll Marine, Inc., supra.) However, these cases were found to be distinguishable factually in that the seaman was not a member of the contracting union, and, therefore, not a party to the collective bargaining agreement, as in the present case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265204/ | 657 F. Supp. 1463 (1987)
Steven B. BOZIN, Plaintiff,
v.
SECRETARY OF the NAVY, Defendant.
Civ. A. No. 86-1636.
United States District Court, District of Columbia.
April 2, 1987.
*1464 Eugene R. Fidell, Washington, D.C., for plaintiff.
Richard E. Greenberg, Asst. U.S. Atty., Washington, D.C. and Brian G. Kennedy, U.S. Dept. of Justice, Washington, D.C., for defendant.
MEMORANDUM
GASCH, District Judge.
I. INTRODUCTION
This case arises on review of a Marine Corps Special Court-Martial in which plaintiff Steven Bozin was convicted for using marijuana "on or near" the Marine Corps Air Station in Beaufort, South Carolina. Plaintiff urges that the court-martial conviction should be invalidated as violative of due process on five separate grounds. The five issues raised by plaintiff are: (1) whether due process was unconstitutionally abrogated since the trial and appellate military judges lacked the protection of a term of office; (2) whether the government failed to prove its case against plaintiff beyond a reasonable doubt; (3) whether the court-martial lacked jurisdiction because the offense was not "service-connected"; (4) whether plaintiff was denied a fair trial because the prosecutor's argument was inflammatory and prejudicial; and, (5) whether use of drug test results to obtain a criminal conviction of plaintiff violated his equal protection rights where evidence of drug testing may not be used in a criminal proceeding against civilian employees of the Federal Government pursuant to Executive Order 12564, 51 Fed.Reg. 32889 (Sept. 15, 1986).
II. BACKGROUND
Plaintiff, prior to his court-martial conviction, was a staff sergeant with eleven years of service in the United States Marine Corps. Amended Complaint at ¶ 4. At the time of the offense alleged in his *1465 conviction, plaintiff was assigned to "Animal Control" at the Marine Corps Air Station in Beaufort, South Carolina. See Court-Martial Transcript ("Tr.") at 307. His duties at this job were primarily dog catching and the entrapment of rabid animals. Id.
On September 17, 1984, plaintiff and other on-duty personnel provided urine samples for drug testing. Tr. at 52-53. This was a "surprise test" conducted by the Military Police. Id. Bozin's urine sample tested positive for the presence of tetrahydrocannabinol ("THC") or marijuana metabolites under the radioimmunology assay method of testing. The test result was confirmed by means of the Gas Liquid Chromatography/Mass Spectrometry ("GC/MS") test. Tr. at 85-90. The GC/MS test revealed that Bozin's sample had a THC level of 65 nanograms per milliliter. Tr. at 89. Under the Department of Defense ("DOD") standards, a urine sample tests positive for the presence of THC if there is a level of 20 nanograms per milliliter under the GC/MS test. Tr. at 90.
On December 5, 1984, plaintiff was charged with violating the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 912a (1985). Specifically, the charge read that plaintiff "... did on or near Marine Air Corps Station, Beaufort, South Carolina, during the period from on or about 19 August 1984 to on or about 18 September 1984, wrongfully use marijuana, a schedule I controlled substance." Tr. at 7. From January 14 to January 16, 1985, a Special Court-Martial tried plaintiff for the above charge. The presiding military judge[1] invited both parties to conduct voir dire upon him, however, both parties declined the opportunity. Tr. at 5. At the commencement of trial, plaintiff elected to have his case heard by a military jury, one third of which would consist of enlisted personnel. Tr. at 5-6.
The trial record below is of considerable length. Discussion of the evidence produced is warranted, however, given plaintiff's contention that his conviction was inadequately proven. The government produced considerable evidence of the manner in which the urine sample at issue was taken, the controls over chain of custody of that sample, and samples in general, and expert evidence regarding testing techniques and results. Tr. at 52-103. There is no claim by plaintiff that the urine sample was not his, or that the testing procedures were faulty or the result of tampering. There is some evidence that on the day plaintiff's urine was tested, plaintiff expressed to the officers in charge his skepticism of urinalysis testing in the Marine Corps.[2]
At trial, Bozin testified that he had never smoked marijuana in his life. Tr. at 147. Bozin further testified that the day before the urinalysis test, he attended a party at the home of Staff Sergeant Gregory Gostomski and his wife, Jane. Tr. at 138-40. Bozin stated that he had consumed six beers before arriving at the party at noon. He proceeded to consume three more beers while at the party and then fell asleep on the couch until he left in the evening.[3]
Mrs. Gostomski testified that during the afternoon, she and some civilian friends, who did not testify, smoked three marijuana cigarettes in the living room where Bozin apparently slept. Tr. at 152-57.[4] She *1466 further stated that, as a "joke," she put the burning end of a "joint" into her mouth, closed her lips, and blew smoke toward plaintiff's mouth.[5] Tr. 153-55. According to testimony, she blew this smoke toward plaintiff's mouth for forty-five seconds as he lay sleeping. Tr. at 155-56. Mrs. Gostomski also testified that she had known plaintiff for eight months and had never seen him smoke marijuana. Tr. at 154.
The smoking of marijuana in the Gostomski home was corroborated by other witnesses. Corporal Michael L. Gish testified that he was playing horseshoes in the Gostomski yard but saw and smelled marijuana smoke as he passed through the living room. Tr. at 111-15. Sergeant Thomas L. Cox and Staff Sgt. Gostomski also testified that they smelled marijuana smoke that day. Tr. at 131, 163-64. None of these individuals testified that they saw anyone actually smoking it. Id. According to plaintiff's testimony, he was unaware that he had been "shot gunned" at the party until Mrs. Gostomski related the incident to him three or four weeks before trial. Tr. at 144.[6]
In his defense, plaintiff called an expert, Dr. W.J. Cooke, to testify about Bozin's urinalysis results, the potential for passive inhalation of marijuana smoke and variables which may affect a positive test result from passive inhalation, such as cigarette smoking and dehydration through alcohol consumption. Tr. 174-204. Dr. Cooke stated that a scientific "possibility" existed that a positive test result under DOD criteria could result from the circumstances described by Mrs. Gostomski. Tr. 195-96. The government, in turn, called to the stand a Dr. L.L. Pitts, who testified that it was "extremely unlikely" that anyone sleeping in the Gostomski living room, under the conditions described, would have tested positive under the DOD drug screening criteria. Tr. at 220.
Additionally, there was evidence regarding plaintiff's credibility. On rebuttal, Gunnery Sergeant Guerra, Master Sergeant Goodman and Lieutenant Thomas, all of whom had known Bozin from eight to sixteen months and had worked with him, testified as to their opinion of plaintiff's truthfulness. Each of these individuals stated that he would not believe plaintiff if he testified under oath. Tr. at 208-15. Plaintiff called Harry Edward Palmer, a retired Sergeant Major who had known Bozin for about a year through contact at a gym. Palmer testified that plaintiff had a good reputation in the community for truthfulness. Tr. at 237-38.
At one point during closing argument, the government counsel referred to Bozin's testimony as "lies."[7] Tr. at 265. The defense objected to this statement as improper. In a brief recess, the military judge did not agree that the statement constituted an improper argument but directed government counsel to "stay away from such characterizations."[8] Tr. at 266. No other objections to the prosecutor's argument are indicated in the record. Neither side objected to the trial court's instructions, or requested additional instructions. Tr. at 275.
*1467 Plaintiff was convicted. On December 23, 1985, the United States Navy-Marine Corps Court of Military Review affirmed the sentence, stating in part:
Appellant alleges that the evidence failed to establish his guilt beyond a reasonable doubt. We disagree. The Government presented evidence that appellant's urine was properly tested and showed positively the presence of a marijuana metabolite, THC. This Court has found that urinalysis results alone are sufficient to prove beyond a reasonable doubt the wrongful use of marijuana. United States v. Harper, No. 84 2334 (NMCMR 10 September 1984), pet. granted, 20 M.J. 331 (C.M.A.1985). Once the Government presents evidence of use, such use may be inferred to be wrongful and knowing. An accused then has the burden of going forward with evidence of the absence of knowledge. Para. 37c(5), Part IV, Manual for Courts-Martial, 1984. In the case sub judice, appellant presented evidence that he did not remember using marijuana and that a friend had, without his permission or knowledge, blown marijuana smoke into his mouth while he was sleeping. The Government, in rebuttal, presented opinion testimony of appellant's untruthfulness and expert testimony of the extreme improbability that the circumstances presented by appellant would have resulted in a positive urinalysis result. In addition, several of appellant's own witnesses gave conflicting testimony concerning the events upon which appellant based his defense, thereby further discrediting his story. We therefore find that the Government presented evidence of sufficient weight to justify an inference of knowing and wrongful use of marijuana and to rebut appellant's incredible testimony to the contrary.
Appellant also contends that the punishment awarded him was excessive. We again disagree. We find a bad-conduct discharge appropriate for a staff noncommissioned officer (E-6) in the Marine Corps with a prior special court-martial conviction who is convicted of using marijuana.
Accordingly, the findings of guilty and sentence, as approved on review below, are affirmed.
Slip Op. at 2. On April 6, 1986, the United States Court of Military Appeals denied plaintiff's petition for a grant of review.
III. DISCUSSION
A. Term of Office for Military Judges
Plaintiff contends that he was denied due process since the military judges, who heard his case at the trial and appellate levels, were not serving for a fixed term of years. Plaintiff correctly notes that due process requires a judge to be fair and impartial and that this doctrine typically is raised where elements of judicial prejudgment exist toward a particular litigant or issue. Plaintiff does not allege, however, that there was any evidence of this type of judicial prejudgment in his case. Plaintiff's objections are more structural. Specifically, plaintiff asserts that "a judge who has no guaranty that he or she will serve either for life or for a fixed period lacks the independence required by the due process clause for criminal cases."[9] Plaintiff's Motion for Partial Summary Judgment at 20.
The Court rejects plaintiff's argument for a number of reasons. Plaintiff's argument suggests that all courts-martial are, and have been, unconstitutional since no military judge serves a term of years. The Court notes that some commentators have criticized this aspect of military justice.[10] Indeed, plaintiff's counsel has written his own article on the very subject. See Fidell, Judicial Tenure Under the Uniform Code of Military Justice, 31 Fed.B.News & J. 327 (1984).
Nevertheless, this Court follows the direction afforded by history and the Supreme *1468 Court. The Supreme Court has long recognized that military and civilian judicial processes are inherently different. A significant example of this difference is that military tribunals were created as a "special system" independent of Article III of the Constitution. See Palmore v. United States, 411 U.S. 389, 404, 93 S. Ct. 1670, 1679, 36 L. Ed. 2d 342 (1973) (courts-martial are not Art. III courts, but are "constitutional instruments to carry out congressional and executive will"); Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S. Ct. 1300, 1312, 43 L. Ed. 2d 591 (1975) ("The military is `a specialized society separate from civilian society' with `laws and traditions of its own [developed] during its long history.' Moreover, `it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise...." To prepare for and perform its vital role, the military must insist upon a respect for duty and a discipline without counterpart in civilian life. The laws and traditions governing that discipline have a long history; but they are founded on unique military exigencies as powerful now as in the past." (citations omitted)); Dynes v. Hoover, 61 U.S. (20 How.) 65, 79, 15 L. Ed. 838 (1857) (congressional power to provide for military trials is entirely independent of Art. III of the Constitution).
In accordance with the principle that military courts do not fall within the dictates of Article III, military judges do not serve for a term of years. Indeed, military judges throughout American history have never been tenured or appointed for a term. See Fidell, Judicial Tenure at 329; see also Handlin v. Wickliffe, 79 U.S. (12 Wall.) 173, 175, 20 L. Ed. 365 (1870) (military appointment of judge subject to revocation whenever necessary or expedient). In express language, the Supreme Court, in holding that military courts had no jurisdiction to try a civilian, reflected on the tenure differences between military and civilian judges and approved these differences. In United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S. Ct. 1, 5, 100 L. Ed. 8 (1955), the Court discussed the following:
... [C]onceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
This Court finds that there is no constitutional requirement that military judges have any tenure guarantee. The Supreme Court has never recognized such a constitutional requirement. Even for civilians charged with a criminal offense, there is no federal constitutional right to be tried before judges with tenure and salary guarantees. Palmore, 411 U.S. at 391, 93 S. Ct. at 1673. The same is true for military personnel. Moreover, Congress has "plenary control" over the procedures used for military discipline. Chappell v. Wallace, 462 U.S. 296, 300-01, 103 S. Ct. 2362, 2365-66, 76 L. Ed. 2d 586 (1983). As the Supreme Court stated in Palmore,
Under its Art. I, § 8, cl. 14, power "[t]o make Rules for the Government and Regulation of the land and naval Forces," Congress has declared certain behavior by members of the Armed Forces to be criminal and provided for the trial of such cases by court-martial proceedings in the military mode, not by courts ordained and established under Art. III. Within their proper sphere, courts-martial are constitutional instruments to carry out congressional and executive will. Dynes v. Hoover, 20 How. 65, 79, 82 [15 L. Ed. 838] (1857).
Palmore, 411 U.S. at 404, 93 S. Ct. at 1679. This Court does not intend to usurp Congress' *1469 plenary authority to structure the "military mode" of court-martial proceedings and to govern the armed forces. See Rostker v. Goldberg, 453 U.S. 57, 70, 101 S. Ct. 2646, 2654, 69 L. Ed. 2d 478 (1981).
In sum, plaintiff was not deprived of his due process rights because the military judge conducting his trial did not serve a term of years. The Court would simply note that the question of whether such job security should be afforded to military judges is a policy matter best addressed by the legislative branch.[11]
B. Proof Beyond a Reasonable Doubt
Plaintiff correctly notes that in courts-martial the burden is upon the United States to prove the accused's guilt beyond a reasonable doubt. 10 U.S.C. § 851(c) (1985). There is no contention that the members of the court in this case were improperly instructed regarding this burden. The Military Judge's instructions advised the members that:
The burden is on the prosecution to establish the guilt of the accused. If you are satisfied beyond a reasonable doubt that the accused was not ignorant of the fact that he was using marijuana, the defense of ignorance does not exist.
Tr. at 270-71. The judge further instructed the members on the permissibility of inferring that the accused's use of marijuana was wrongful:
[E]vidence has been introduced that marijuana metabolite was present in urine, alleged to be that of the accused. Based upon this evidence, you may justifiably infer that the accused wrongfully used marijuana. The drawing of this inference is not required and the weight and effect, if any, will depend upon the facts and circumstances, as well as all evidence in the case.
Tr. at 272; see also Tr. at 270.
Plaintiff did not object to these instructions at trial. Tr. at 275. Nevertheless, plaintiff now argues two points: that a permissive inference of wrongful use was invalid after the defense had put forward evidence showing non-wrongful use and that, in light of the defense showing, prosecution had a further duty to furnish specific rebuttal evidence that plaintiff's use of marijuana was wrongful.
Plaintiff was convicted under article 112a of the UCMJ, which applies to those "wrongfully" using marijuana.[12]The Manual For Courts-Martial[13]("Manual") discusses the term "wrongfully" as used in section 112a of the UCMJ. Manual, Executive Order No. 12473 (1984). Both parties focus their arguments upon whether the direction supplied in the Manual was followed at trial. The Manual provides that use of marijuana, or another controlled substance, is not wrongful if done without knowledge of the contraband nature of the substance, e.g., where a person possesses cocaine but believes it to be sugar. Manual at IV-64. The Manual further allows a "permissive inference" of wrongfulness as flowing from proof of drug use. The Manual states,
Possession, use, distribution, introduction, or manufacture of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception [e.g., unknowing use] in any court-martial *1470 or other proceeding under the code shall be upon the person claiming its benefit. If such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use, possession, distribution, manufacture, or introduction was wrongful.
Id.
The Court concludes that the government met its burden of proof. First, the Court rejects plaintiff's suggestion that an inference of "wrongful" use was entirely impermissible after the defense put forward evidence of unknowing use. The Court's conclusion is based on several recent cases directly on point. In United States v. Ford, 23 M.J. 331 (C.M.A.1987), the United States Court of Military Appeals addressed the issue of whether the results of urinalysis tests alone sufficiently support a "permissive inference" of wrongfulness beyond a reasonable doubt, even though the accused subsequently introduced evidence which purportedly undermined or contradicted that inference. The accused in Ford asserted that he had no knowledge of using or ingesting marijuana. He explained the test results by suggesting that the laboratory had made a mistake, or that he had unknowingly ingested marijuana planted in his food by his estranged wife.[14]Id. at 332. Several witnesses testified that they observed no abnormal behavior by the accused which would suggest drug abuse. Id.
After extensively reviewing the language creating the permissive inference of wrongfulness in the Manual, supra, the past practice at courts-martial with respect to earlier versions of the Manual and the related federal practice concerning permissive inferences, the Court in Ford summarized:
[W]hether to draw an inference of wrongfulness is a question to be decided by the factfinder using the standard of reasonable doubt. It may be drawn where no contrary evidence is admitted. However, if the prosecution fails to persuade the factfinder beyond a reasonable doubt that this inference should be drawn, a finding of not guilty is required. Similarly, the inference of wrongfulness may be drawn where contrary evidence is admitted. However, if the prosecution fails to persuade the factfinder beyond a reasonable doubt that this contrary evidence should be disbelieved or that the inference should otherwise be drawn, a finding of not guilty is required.
Id. at 335 (emphasis in original). The court's instruction to the military jury substantially tracked this language. Tr. at 270.
In application of the principles summarized above, the Court in Ford held that the defendant's evidence regarding his unknowing ingestion of marijuana did not per se bar drawing an inference of wrongfulness or require the prosecution to introduce evidence that the defendant's wife did not secretly plant marijuana in the defendant's food. Id. at 336. "Instead, the prosecution had to persuade the members beyond a reasonable doubt on credibility and probability grounds that [the accused's] evidence should be disbelieved and the inference [of wrongfulness] should nonetheless be drawn and given such weight to find knowledge beyond a reasonable doubt." Id.
In Ford, the Court further held that an inference of wrongfulness alone was sufficient to support a finding of wrongfulness beyond a reasonable doubt. Id. In so holding, the Court reflected upon several factors: (1) that the inference is predicated on a finding of drug use by a service member which is not satisfactorily explained to the factfinder; (2) that a service member's access to contraband is limited and thus the probability of innocent ingestion is greatly reduced; (3) that the probability of innocent ingestion of drugs is further reduced by the fact that service members are on notice, through well publicized military directives, to avoid any and *1471 all contact with contraband; (4) that the physiological effects from the internal presence of the drug in the body may serve to alert the user and may increase the likelihood of knowing drug use where no satisfactory explanation exists; and (5) that human experience generally dictates that any human knows what he consumes. Id. at 337.
Applying the Ford reasoning to the case at bar, the Court finds that a permissive inference of wrongfulness remains valid even in the face of evidence of non-wrongful drug use. Additionally, the Court finds that the factfinder was permitted to rely upon the permissive inference of wrongfulness alone in finding wrongful use of marijuana beyond a reasonable doubt. The Ford holding is well supported by logic and precedent. See United States v. Harper, 22 M.J. 157, 163 (C.M.A.1986) (permissive inference of wrongful use of marijuana valid where prosecution witness ruled out passive inhalation and evidence suggested accused "knew what he was doing"); United States v. Douglas, 22 M.J. 891, 893 (A.C.M.R.1986) (consideration of permissive inference of wrongfulness not foreclosed even though accused introduced unrebutted evidence that he unknowingly ingested marijuana after eating cake into which marijuana had been baked). Accordingly, the government had no "burden of going forward" with evidence of wrongfulness after plaintiff introduced evidence of unknowing drug use. This conclusion is further bolstered by a literal reading of the Manual. The Manual indicates only that the "burden of proof" remains with the prosecution; nowhere does the Manual mention that the prosecution has an additional burden to come forward with evidence rebutting a defense of unknowing use of drugs.
Moreover, the government did submit evidence undermining Bozin's passive inhalation story. Several witnesses testified that they would not believe plaintiff under oath. Tr. at 208-15. Additionally, on rebuttal, the government presented an expert who testified that exposure to marijuana in the circumstances related by Mrs. Gostomski would not account for the level of marijuana in Bozin's urine. Tr. at 220. In view of this and other evidence, the trier of fact could have disbelieved Bozin's claim of "unknowing" drug use. See United States v. Biesak, 14 C.M.R. 132, 142 (C.M. A.1954) ("[A] presumption disappears only upon the presentation of evidence that the trier does not disbelieve"). In sum, a rational factfinder could hold that, beyond a reasonable doubt, Bozin wrongfully used marijuana based upon the permissive inference of wrongfulness which accompanies proof of drug use, as well as upon evidence discrediting the defense of passive inhalation.
The question of whether use of an illegal drug was wrongful is a question of fact. In the Supreme Court's words, "[i]nferences and presumptions are a staple of our adversary system of factfinding." Ulster County Court v. Allen, 442 U.S. 140, 156, 99 S. Ct. 2213, 2224, 60 L. Ed. 2d 777 (1978). With a permissive inference, the trier of fact is free to credit or reject the inference. The factfinder is not bound to accept the correctness of the inference. Barnes v. United States, 412 U.S. 837, 845 n. 9, 93 S. Ct. 2357, 2362 n. 9, 37 L. Ed. 2d 380 (1973). A permissive inference, the type here at issue, "affects the application of the `beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." Ulster County, 442 U.S. at 157, 99 S. Ct. at 2224.
The "rational connection" between contraband drug use and wrongfulness has been recognized for many years in military law. See United States v. Harper, 22 M.J. at 162 (cases cited therein). This Court finds no reason to reject that body of law. Additionally, given the record below in this case and the discussion above, the Court finds that a rational connection exists between the permissive inference of wrongfulness and the evidence of Bozin's use of marijuana.
C. Service-Connection
Plaintiff's third argument alleges that the government did not prove beyond a reasonable doubt that the offense was *1472 "service-connected." See Amended Complaint ¶ 14(b). The Supreme Court has not formulated a simple test for determining the presence, or absence, of service-connection in a given case. Instead, the Court has urged a case by case determination with attention given to certain salient factors, including whether the crime was committed off a military post; whether there was no connection between the defendant's military duties and the crime; and, whether the offense threatened military security, property or authority. In O'Callahan v. Parker, 395 U.S. 258, 273-74, 89 S. Ct. 1683, 1691, 23 L. Ed. 2d 291 (1969), which involved the attempted rape of a civilian woman in a hotel room by an Army sergeant off duty on a pass, the Court held that the offense was not service-connected and that he should have been tried by a civilian court rather than a military court. In Relford v. Commandant, 401 U.S. 355, 367-68, 91 S. Ct. 649, 656, 28 L. Ed. 2d 102 (1971) (footnotes omitted), the charges were also rape and were committed on base and involved the sister of a soldier and the wife of another soldier. The factors to be considered in determining the service-connected issue are stated as follows:
With the foregoing contrasting comparison of the pertinent factual elements of O'Callahan with those of Relford's case, we readily conclude that the crimes with which Relford was charged were triable by a military court. We do not agree with petitioner when he claims that the "apparent distinctions" between this case and O'Callahan "evaporate when viewed within the context of the `service-connected' test." We stress: (a) The essential and obvious interest of the military in the security of persons and of property on the military enclave. Relford concedes the existence of this vital interest. (b) The responsibility of the military commander for maintenance of order in his command and his authority to maintain that order. See Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 [81 S. Ct. 1743, 6 L. Ed. 2d 1230] (1961). Relford also concedes this. (c) The impact and adverse effect that a crime committed against a person or property on a military base, thus violating the base's very security, has upon morale, discipline, reputation and integrity of the base itself, upon its personnel and upon the military operation and the military mission. (d) The conviction that Art. I, § 8, cl. 14, vesting in the Congress the power "To make Rules for the Government and Regulation of the land and naval Forces," means, in appropriate areas beyond the purely military offense, more than the mere power to arrest a serviceman offender and turn him over to the civil authorities. The term "Regulation" itself implies, for those appropriate cases, the power to try and to punish. (e) The distinct possibility that civil courts, particularly nonfederal courts, will have less than complete interest, concern, and capacity for all the cases that vindicate the military's disciplinary authority within its own community. See W. Winthrop, Military Law and Precedents 725 (2d ed. 1896, 1920 Reprint); Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O'Callahan v. Parker, 9 Washburn L.J. 193, 208 (1970). (f) The very positive implication in O'Callahan itself, arising from its emphasis on the absence of service-connected elements there, that the presence of factors such as geographical and military relationships have important contrary significance. (g) The recognition in O'Callahan that, historically, a crime against the person of one associated with the post was subject even to the General Article.
The Court concludes that there was sufficient evidence at trial to find a service-connection beyond a reasonable doubt. Bozin was tested while on duty and the amount of marijuana metabolites in his urine was more than three times the standard for a positive finding. See Tr. at 89-90; Prosecutor's Exhibit 7, at 3. Although plaintiff's exposure to marijuana was off base, the effects of drug use are not left behind at the marine base gate. As the U.S. Court of Military Appeals commented, "in many instances the drugs will enter the military installation in their most lethal form namely, when they are coursing *1473 through the body of a user." United States v. Trottier, 9 M.J. 337, 349 (C.M.A. 1980).
The criteria mentioned in Justice Blackmun's opinion in Relford have been considered by the military courts in determining whether the offense is service-connected. These criteria are summarized in Justice Powell's opinion in Schlesinger v. Councilman.
But that issue [of service-connection] turns in major part on gauging the impact of an offense on military discipline and effectiveness, on determining whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and on whether the distinct military interest can be vindicated adequately in civilian courts. These are matters of judgment that often will turn on the precise set of facts in which the offense has occurred. See Relford v. U.S. Disciplinary Commandant, 401 U.S. 355 [91 S. Ct. 649, 28 L. Ed. 2d 102] (1971). More importantly, they are matters as to which the expertise of military courts is singularly relevant, and their judgments indispensable to inform any eventual review in Art. III courts.
Schlesinger, supra, 420 U.S. at 760, 95 S. Ct. at 1314 (footnote omitted). Even if the Relford criteria were controlling, those designated (d) and (e) clearly justify the decision that this case be tried by a military court.
Simply put, "a servicemember is responsible to be fit for duty when he returns from leave." Murray v. Haldeman, 16 M.J. 74, 80 (C.M.A.1983). This Court is convinced that a service member is not fit for duty when substantial amounts of psychoactive drugs are coursing through his body. As the D.C. Circuit has noted:
The increased incidence of drug abuse in the Armed Forces poses a substantial threat to the readiness and efficiency of our military forces. Unlike the civilian population, the military forces are charged with the responsibility of continuously protecting the nation's interests both on the domestic and international level. Widespread use of marijuana, hashish and other drugs can have a serious debilitating effect on the ability of the Armed Services to perform their mission. As noted in the extensive evidence submitted by the appellants, drug use among GIs in the USAREUR had (a) lessened the on-the-job efficiency of GIs; (b) significantly reduced the number of effective soldiers in the European command; (c) required the expenditure of enormous amounts of supervisory time to monitor all aspects of the drug control and rehabilitation process; (d) strained the limited medical resources of the European Command; (e) created a significant health threat; and (f) resulted in an increased incidence of crime.
Committee for GI Rights v. Callaway, 518 F.2d 466, 476-77 (D.C.Cir.1975) (footnotes omitted); see also United States v. Beeker, 18 U.S.C.M.A. 563, 565, 40 C.M.R. 275, 277 (1969) (use of marijuana and narcotics by military persons on or off a military base has special military significance in light of disastrous effects of these substances on health, morale and fitness for duty of the armed forces).
The Supreme Court has advised that determinations of whether an offense is "service-connected" are "matters of judgment that often will turn on the precise set of facts in which the offense has occurred ... [m]ore importantly, they are matters as to which the expertise of military courts is singularly relevant...." Schlesinger v. Councilman, supra, 420 U.S. at 760, 95 S. Ct. at 1314. This Court finds that upon the record before it, and in view of the military's considerable expertise on this matter, there was an adequate basis for the finding that plaintiff's use of marijuana was service-connected.
D. Prosecutor's Argument
Plaintiff suggests that the military prosecutor's argument was inflammatory and prejudicial. The record reveals one objection by defense counsel to the prosecutor's reference to Bozin's inconsistent testimony as "lies." Tr. at 265. The pleadings reveal that plaintiff now contends other remarks are inflammatory, such as: that plaintiff is "antiauthority," Tr. at 256; use of the quote, "Oh, what a tangled web we weave, *1474 when first we practice to deceive," Tr. at 257; and that if Bozin were to be believed, "virtually anyone could explain away a positive test," Tr. at 258. All of these remarks were made in the context of the prosecutor's closing argument. Tr. at 256-58, 265-68.
A prosecutor may not make statements calculated to arouse passions or prejudices of a jury. Viereck v. United States, 318 U.S. 236, 247, 63 S. Ct. 561, 566, 87 L. Ed. 734 (1943) (impassioned appeal to jurors' patriotism during wartime). The prosecutor "may strike hard blows, [but] he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935). In assessing the effect of a prosecutor's remark, due respect must be accorded the jurors' common sense and discrimination. United States v. Monaghan, 741 F.2d 1434, 1440 (D.C.Cir.1984).
The prosecutor's remarks in this case were not highly inflammatory or prejudicial. They were confined to the closing argument after all evidence had been submitted; closing arguments "are seldom carefully constructed," and typically improvised. Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S. Ct. 1868, 1872-73, 40 L. Ed. 2d 431 (1974). The prosecutor's characterization of statements by the defendant as "lies" has often been held to be acceptable argument. See United States v. Spain, 536 F.2d 170, 175 (7th Cir.1976); United States v. Isaacs, 493 F.2d 1124, 1166 (7th Cir.), cert. denied, 417 U.S. 976, 94 S. Ct. 3184, 41 L. Ed. 2d 1146 (1974). It is entirely proper for a prosecutor to voice his doubt about the credibility of the defendant.[15]
The D.C. Circuit has outlined three salient factors in considering whether "improper" remarks by a prosecutor have substantially prejudiced a defendant's trial: "the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks." Monaghan, 741 F.2d at 1443 (footnote omitted). Here, the prosecutor's so called "misconduct" could hardly be characterized as "severe." Defense counsel objected once, and that was to the use of the word "lies." The military judge concluded that although such a term should not be repeated, there was no cause for a curative instruction. The record justifies the conclusion that there was adequate evidence to support the court's verdict and further, that there is no justification for this Court, based on the final remarks by the prosecutor, to intervene.
Finally, a certain degree of respect must be accorded to the military jury which included a major, a captain, a chief warrant officer and three gunnery sergeants. As one court stated:
We think little of the words used by the prosecutor. We think they were unnecessary in an otherwise logical and convincing summation. But we quite realize as we have said before that some latitude must be given to lawyers' language in a hard fought case. To say that this remark would have a prejudicial effect on a jury which had listened throughout a long trial to the unfolding of the testimony is to attribute a stupidity and absence of common sense which is incredible in a federal jury.
United States v. Kravitz, 281 F.2d 581, 586 (3d Cir.1960) (footnotes omitted), cert denied, 364 U.S. 941, 81 S. Ct. 459, 5 L. Ed. 2d 372 (1961). This Court concludes that there is no justification to find a military jury so lacking in common sense that it was misled by the prosecutor's remarks cited by plaintiff.
E. Equal Protection Claim
Lastly, plaintiff amended his complaint filed in this Court to include a claim that his equal protection rights were violated. This assertion is premised on the occurrence *1475 of President Reagan's Executive Order for a "Drug-Free Federal Workplace," Executive Order No. 12564, 51 Fed. Reg. 32889 (Sept. 15, 1986). The Executive Order authorizes the drug testing of non-sensitive civilian employees of the Federal government; it also provides that
[d]rug testing shall not be conducted pursuant to this Order for the purpose of gathering evidence for use in criminal proceedings.
Section 5(h). The Order does not apply to the armed services. Section 7(b). Plaintiff claims that he is being denied equal protection of the law because urinalysis results from civilian employees may not be used for gathering evidence in a criminal proceeding whereas drug test results may be used as criminal evidence against a member of the armed forces.
The merits of this claim do not need to be reached. The Executive Order referenced by plaintiff was not in existence at either the time in which criminal charges were brought against plaintiff or at the time his conviction was made final in April, 1986. Since the Executive Order postdates the plaintiff's conviction, it is inconceivable how plaintiff may have suffered disparate treatment of the laws then in force and effect. Plaintiff does not contend that the President's Executive Order had retroactive application.
IV. CONCLUSION
For the reasons set forth above, the Court grants summary judgment in favor of defendant on all grounds and denies plaintiff's motion for summary judgment.
NOTES
[1] The presiding military judge was detailed by the Circuit Military Judge of the Piedmont Circuit. He was certified in accordance with Article 26(b) of the UCMJ, 10 U.S.C. § 826(b) and sworn in accordance with Article 42(a) of the UCMJ, 10 U.S.C. § 842(a). Tr. at 5.
[2] Bozin, on the day of testing, apparently told Warrant Officer Walter R. Hibner III that "if he ever did come up positive, ... he would contest it or request a court-martial." Tr. at 61. Officer Hibner testified that he "got the distinct impression from some of the things he was saying, that he didn't believe in the urinalysis process in the Marine Corps as it is today, anyway. [Bozin] wasn't very pleased that he had to do it." Id.
[3] Bozin testified that he fell asleep within 15 minutes after his arrival and did not recall waking up to go to the restroom, or to eat, or for any other reason, until he left. Tr. at 139-40. Jane Gostomski recalled that Bozin left the couch for the restroom at least once, and also awoke for dinner. Tr. at 151-52, 155, 167.
[4] Staff Sgt. Gostomski testified that the living room measured approximately 20 by 12 feet. Tr. at 165. It should also be noted that Sgt. Gostomski stated that he did not see his wife smoking marijuana that day. Tr. at 167.
[5] This act is described in the record as "shot gunning." Mrs. Gostomski testified that the idea behind the procedure is to produce "more of a high" for the inhalant. Tr. at 153. In this instance, according to Mrs. Gostomski, the purpose behind "shot gunning" plaintiff was a joke. Id.
[6] Mrs. Gostomski stated that she first told the "shot gunning" story to Bozin a week or so before trial. Tr. at 159.
[7] The prosecution stated, "... inconsistencies is not what I meant to convey when I talked about these statements and [Bozin's] testimony. What I meant to convey was, lies ... [interruption by defense counsel]." Tr. at 265.
[8] The judge stated: "Well, I can't recall any military cases, that that is per se, improper argument, however, it does border and can have a cumulative effect as constituting inflammatory argument and I would prefer that you would stay away from such characterizations as lying. I'm not going to grant any sort of a mistrial. I'm not really even going to give a curative instruction, however, I am going to direct counsel to stay away from such characterizations at this point. Very well, anything more that we need to cover before we bring them in? [negative response]." Tr. at 266.
[9] Plaintiff notes that a military judge is subject to decertification as a judge or transfer to other duties at the discretion of the Judge Advocate General of his armed force. See Cook, Courts-Martial: The Third System in American Criminal Law, 1978 So.Ill.L.J. 1, 17-18.
[10] See Note, Service-Connection and Drug-Related Offenses: The Military Courts' Ever Expanding Jurisdiction, 54 Geo.Wash.L.Rev. 118, 125 (1985); Pitkin, The Military Justice System: An Analysis from the Defendant's Perspective, 29 JAG 251 (1977).
[11] Congress has responded to criticism of judicial independence in the military by establishing a DOD commission to study and report on "[t]he effectiveness of the present systems for maintaining the independence of military judges and what, if any, changes are needed ... including a term of tenure for such judges consistent with efficient management of military judicial resources." Military Justice Act of 1983, Pub.L. No. 98-209, § 9(b)(3)(D), 97 Stat. 1393, 1405 (codified at 10 U.S.C. § 867 note (1985)). Congress must be permitted to conclude its study of this issue.
[12] Article 112a provides, in pertinent part:
(a) Any person subject to this chapter [10 U.S.C.S. §§ 801 et seq.] who wrongfully uses ... a substance described in subsection (b) shall be punished as a court-martial may direct.
(b) The substances referred to in subsection
(a) are the following:
(1) ... marijuana....
10 U.S.C. § 912a (1985).
[13] The Manual for Courts-Martial was prescribed by the President of the United States by virtue of Chapter 47 of Title 10 of the United States Code and the Constitution of the United States.
[14] The accused in Ford offered a witness who testified to the marital unhappiness of the accused's wife, her unhappiness with military life, her occasional possession of marijuana and her opportunity to plant this substance in the food of the accused. Ford, 23 M.J. at 332.
[15] See United States v. Russell, 703 F.2d 1243, 1248 (11th Cir.1983) ("A prosecutor does not commit error in attacking witness credibility on the basis of inconsistencies between his testimony and other evidence"); United States v. Birges, 723 F.2d 666, 672 (9th Cir.1983) ("It is neither unusual nor improper for a prosecutor to voice doubt about the veracity of a defendant who has taken the stand. The prosecutor's interpretation of Birges' duress claim as a `fabrication' is also well within the bounds of acceptable comment."), cert. denied, 469 U.S. 863, 105 S. Ct. 200, 83 L. Ed. 2d 131 and 466 U.S. 943, 104 S. Ct. 1926, 80 L. Ed. 2d 472 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265220/ | 422 Pa. Super. 126 (1992)
619 A.2d 277
Claire L. SPINK, Appellant,
v.
Jack D. SPINK.
Superior Court of Pennsylvania.
Argued September 29, 1992.
Filed November 18, 1992.
Reargument Denied February 22, 1993.
*128 Thomas O. Schmitt, Pittsburgh, for appellant.
Robert J. Fall, Pittsburgh, for appellee.
Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
CERCONE, Judge:
Claire L. Spink ("wife") appeals the order of the trial court discontinuing alimony pendente lite. For the reasons that follow, we affirm.
Appellant Claire L. Spink ("wife") and appellee Jack D. Spink ("husband") were married on March 23, 1963. On May 18, 1988, wife filed a complaint for divorce seeking, among other things, alimony pendente lite and permanent alimony. In a consent order dated July 25, 1988, husband agreed to pay wife alimony pendente lite (APL) in the amount of five hundred dollars ($500) a month. Subsequently, the trial court conducted a hearing on the parties' claims for equitable distribution. On October 4, 1990, the trial court entered an order distributing the marital assets and a final Decree in Divorce was entered on February 27, 1991.
In its equitable distribution order of October 4, 1990, the trial court ordered husband to pay alimony to wife, also in the amount of five hundred dollars ($500) per month until the sale of the marital residence and for at least one year from the date of the order. The order made no mention of continuing *129 or discontinuing alimony pendente lite. Therein lies the crux of the litigation before us. Following the October 4, 1990 order, husband paid wife five hundred dollars per month. In the interim, wife filed for and was granted leave to file a motion for post-trial relief of the trial court's equitable distribution order more than two months after its entry. In her appeal of the equitable distribution order, wife contends that she should receive either a greater share of the marital estate, or continued alimony. Wife's appeal of the equitable distribution order is under separate consideration by this court.
On September 23, 1991, counsel for the parties appeared before a hearing officer on a Rule to Enforce an existing Order for the payment of child support and alimony or alimony pendente lite ("APL"). As quoted by the trial court, the hearing officer found that:
[Husband's] obligation to continue to pay the $500.00 a month alimony/APL obligation outlined in the 10-4-90 order is on appeal to the Superior Court. Insofar as that appeal is pending and [husband] has satisfied the payments under the 10-4-90 order in duration of payments, said order is suspended insofar as enforcement by this court is concerned.
Trial Court Opinion dated 6/4/92 at 3. Appellant timely filed exceptions to the hearing officer's recommendations. Adopting the hearing officer's recommendations, the trial court entered a temporary order on October 7, 1991. On February 7, 1992, the trial court dismissed appellant's exceptions to the hearing officer's recommendations and rendered the October 7, 1991 order a final order from which appellant filed this timely appeal.
On appeal, appellant argues that the trial court abused its discretion when it discontinued alimony pendente lite without an evidentiary hearing while an appeal of the equitable distribution order was pending before the Superior Court. Initially, we note that the determination of the amount to be awarded, whether of alimony or alimony pendente lite, rests in the sound discretion of the trial court. Murphy v. Murphy, 410 Pa.Super. 146, 154, 599 A.2d 647, 651 (1991), *130 allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, ___ U.S. ___, 113 S. Ct. 196, 121 L. Ed. 2d 139 (1992). Absent an abuse of that discretion, an appellate court will not disturb the trial court's award. Id. "In the context of such determinations, the proper employment of judicial discretion includes the mandate to apply the Divorce Code in a compassionate and reasonable manner to effectuate the overriding goal of achieving economic justice between the parties." Id. 410 Pa.Super. at 154-55, 599 A.2d at 651.
At this point, it is important to make the distinction between alimony and alimony pendente lite. Alimony pendente lite is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets "which are the financial sinews of domestic warfare." DeMasi v. DeMasi, 408 Pa.Super. 414, 420, 597 A.2d 101, 104 (1991). Under the Divorce Code, however, the trial court may allow alimony to either party only if it finds alimony is necessary. 23 Pa.C.S.A. § 3701(a). Accordingly, alimony is not available until after the divorce decree has been entered. Id. "[Alimony] is based on need and may be reduced or terminated upon remarriage or change in economic circumstances of the party receiving it." Id. (citing 23 Pa.C.S.A. § 3701(e), 3706, and 3707).
Alimony pendente lite is not dependent upon the status of the parties, but upon the status of the litigation. Id. Theoretically, alimony pendente lite terminates at the time of divorce. Id. However, "a divorce is not final for the purposes of [alimony pendente lite] until appeals have been exhausted and a final decree has been entered." Id. at 420-21, 597 A.2d at 104. If an appeal is pending on the equitable distribution of the marital assets, alimony pendente lite will continue throughout the appeal process and any remand until a final order is entered. Id. at 421, 597 A.2d at 104. "[Alimony pendente lite] focuses on the ability of the individual who receives the [alimony pendente lite] during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the *131 economic resources available to the spouse." Id. at 421-22, 597 A.2d at 105.
In resolving wife's present claim, we must address two distinct issues. Initially, we must determine whether the payments to wife subsequent to the trial court's equitable distribution order constituted alimony or alimony pendente lite. After making that determination, we must then address whether husband's obligation to wife should continue throughout the duration of wife's appeal of the equitable distribution order. A review of the history of the payments to wife sheds little light on these perplexing questions.
In a consent order dated July 25, 1988, husband agreed to pay wife alimony pendente lite in the amount of five hundred dollars ($500.00) per month. After a hearing on the equitable distribution of the marital assets, the trial court ordered husband to pay wife alimony in the amount of five hundred dollars per month until the sale of the marital residence and for at least one year from the date of the order. The trial court also awarded wife counsel fees in the amount of ten thousand dollars ($10,000). Unfortunately, the trial court made no mention of husband's obligation to pay wife alimony pendente lite under the consent order of July 25, 1988. To confuse matters even more, the trial court opinion dated June 4, 1992, addresses wife's arguments under both scenarios: as if the payments were alimony and, in the alternative, alimony pendente lite. Moreover, a review of the September 23, 1991 hearing transcript yields little assistance in clarifying this matter.
At the September 23, 1991 hearing, wife's counsel presented the issues of (1) whether the payments made by husband after entry of the equitable distribution order are alimony or alimony pendente lite; and (2) whether the payments should continue longer than one year after the entry of the equitable distribution order. Husband's counsel countered that "it would seem to me not within the confines of this hearing to determine a very serious legal issue as to how APL orders are treated and what the disposition is when a case is complete. . . ." N.T. 9/23/91 at 13. Husband's counsel framed the *132 issue before the hearing officer as whether husband paid the five hundred dollars to his wife in compliance with the October 4, 1990 order. The hearing officer stated that "Mr. Spink's payment today satisfies his APL obligation so far as we know it now[.]" Id. at 38. However, in her written recommendations, the hearing officer characterized the payments as husband's "$500.00/mo alimony/APL obligation outlined in the 10-4-90 order." Hearing Summary dated 9-24-91. Therefore, it would seem that the question of whether the payments constituted alimony or alimony pendente lite was never resolved at the trial court level.
After thoroughly reviewing the record, we note that the trial court never ordered termination of alimony pendente lite to wife. However, following the equitable distribution order, the record discloses no contest by wife of husband's monthly payments of five hundred dollars. Arguably, if the trial court had not discontinued alimony pendente lite, wife would have been entitled to one thousand dollars ($1,000) per month. Of this one thousand dollars, five hundred dollars would have been alimony, and five hundred dollars would have been alimony pendente lite. We can find no other explanation for this discrepancy except that the trial court had discontinued alimony pendente lite in favor of the equitable distribution award, including alimony, and the award of counsel fees.
In light of the foregoing, we find no abuse of discretion by the trial court in determining that the payment made by husband at the September 23, 1991, hearing represented his final installment pursuant to the equitable distribution order of October 4, 1990. Under the terms of the October 4, 1990 order, husband had paid his alimony obligation until the sale of the marital residence and for at least one year from the date of the order. Wife's argument for an extension of alimony or for permanent alimony is the subject of a separate appeal of the equitable distribution order and will not be considered at this time.
Even assuming, arguendo, that the equitable distribution order continued alimony pendente lite, we still find no abuse of discretion by the trial court in discontinuing the *133 payments to wife. As noted supra, an award of alimony pendente lite is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets "which are the financial sinews of domestic warfare." DeMasi v. DeMasi, supra, 408 Pa.Super. at 420, 597 A.2d at 104. Here, the trial court noted that upon the sale of the marital residence, wife would receive one hundred twenty thousand dollars ($120,000) as a partial distribution of the proceeds. The trial court's conclusion that wife had not demonstrated a need for further payment of alimony pendente lite is supported in the record and we will not disturb it on appeal.[1]
Order affirmed.
NOTES
[1] Although wife argues that she requested an evidentiary hearing on this issue, we find no record of such a request in the certified record. It is beyond cavil that an appellate court is limited to considering only those facts which have been duly certified in the record on appeal. Commonwealth v. Osellanie, 408 Pa.Super. 472, 476, 597 A.2d 130, 131 (1991). For purposes of appellate review, what is not of record does not exist. Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). It is the appellant's responsibility to provide a complete and comprehensive record to the reviewing court. Commonwealth v. Feflie, 398 Pa.Super. 622, 630, 581 A.2d 636, 640 (1990), allocatur denied, 528 Pa. 621, 597 A.2d 1151 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265232/ | 657 F. Supp. 679 (1986)
Ruby May HADDEN, Plaintiff,
v.
Otis R. BOWEN,[1] Secretary of Health and Human Services, Defendant.
No. NC 85-0001J.
United States District Court, D. Utah, N.D.
October 1, 1986.
On Motion to Alter or Amend February 6, 1987.
*680 Michael E. Bulson, Ogden, Utah, for plaintiff.
Gregory C. Diamond, Asst. U.S. Atty., Salt Lake City, Utah, for defendant.
JENKINS, Chief Judge.
This is an action for attorney's fees under the Equal Access to Justice Act (EAJA) following plaintiff's successful action for disability benefits.
Ruby May Hadden applied for disability benefits in September 1983, claiming to have been disabled since July 1980 by alcoholism, seizures, mental retardation, personality disorder syndrome and degenerative disc disease. That application and Ms. Hadden's request for reconsideration were denied in late 1983. Upon Ms. Hadden's request, a hearing before an administrative law judge was held on April 10, 1984. The ALJ ruled that Ms. Hadden was not disabled, based on two findings: First, that her impairment did not meet or exceed any of the impairments listed in the Social Security Administration regulations, 20 C.F.R. § 404, subpart P, appendix 1 (1984) and second, that she was capable of returning to her past work as a maid or dishwasher. The Appeals Council denied further review in October 1984 and Ms. Hadden thereupon sought review in this court.
This court referred that case to the magistrate in January 1985. In his Report and Recommendation the magistrate found that the ALJ did not have substantial evidence to find that Ruby Hadden was capable of working as a maid or a dishwasher. Ms. Hadden's back problems, the magistrate noted, would preclude her from performing the lifting, walking and standing required of either a maid or a dishwasher. Moreover, the ALJ had failed to consider the effect that Ms. Hadden's mental problems might have on her ability to do these jobs. This court adopted the Report and Recommendation and then remanded the case to the Secretary for further proceedings.[2] A second ALJ determined in January 1986 that, based on a new listing of impairments promulgated in August 1985, 20 C.F.R. § 404 subpart P, appendix 1 (1985), Ms. Hadden's mental and personality disorders constituted impairments sufficient to demonstrate that she was disabled within the meaning of the Social Security Act.
Ms. Hadden is now before this court requesting an award for her attorney's fees under the EAJA. That law reads, in pertinent part:
[A] court shall award to a prevailing party other than the United States fees and other expenses, ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). The parties do not dispute the fact that Ms. Hadden is a prevailing party or that she has timely *681 complied with all procedural prerequisites to an award of attorney's fees under the EAJA. Thus, the only issue in this case is whether the government has shown its position to have been "substantially justified."[3]
In this circuit the term substantial justification essentially requires an inquiry into reasonableness. Wyoming Wildlife Federation v. United States, 792 F.2d 981, 985 (10th Cir.1986); United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1486 (10th Cir.) cert. denied, 469 U.S. 825, 105 S. Ct. 105, 83 L. Ed. 2d 49 (1984).[4] While this proposition has been somewhat obscured in the legislative history surrounding recent amendments to the EAJA,[5] it remains the most logical construction of the Act.
In the case at hand, the merits of the case have already been examined for reasonableness. Moreover, under the 1985 amendments to the EAJA, it is now clear that "the position of the United States" includes the initial agency decision. 28 U.S.C. § 2412(d)(2)(D). In overturning the first ALJ's determination as unsupported by substantial evidence, this court concluded that there was not "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hadden v. Heckler, No. NC-85-0001 J, Magistrate's Report and Recommendation, as adopted by this court, at 2, quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Therefore, the original agency position, *682 viewed on the merits, has already been reviewed for reasonableness and has been found wanting.
It is too late now for the government to argue that the original decision was reasonable, or substantially justified.[6] While the inquiry into the question of substantial justification was intended to be separate and distinct from the merits of the case,[7] such cannot mean merely a repetition of the prior process, which determined the absence of a factual basis for the agency position. The government's burden is broader than that. It now becomes one of pointing to additional facts in the record that, taken with the facts previously relied upon and found inadequate, demonstrate the government's reasonableness in taking the action that it did. In short, the government must, in order to resist an award of attorney's fees in an action where the underlying agency action has been held to be unsupported by substantial evidence, show evidence of "the most extraordinary special circumstances" to demonstrate substantial justification. H.R.Rep. No. 120, 99th Cong. 1st Sess. 9-10, reprinted in 1985 U.S.Code Cong. & Ad.News 132, 138.
The government has made no such additional showing. Rather, it has simply chosen to reargue that the facts in the record justified the initial agency decision. This court's prior decision determined that those facts were insufficient to reasonably support the ALJ's original finding. Without more, in this case the government does not sustain its current burden of demonstrating substantial justification.
The government has not contested the amount of fees requested. This court specifically finds that the fee request is reasonable and well within the limits of an award under the EAJA for this type of case. The court therefore ORDERS that the amount of $1,687.50 be and hereby is awarded to the plaintiff for her attorney's fees, pursuant to 28 U.S.C. § 2412(d)(1)(A). Judgment shall forthwith be entered accordingly.
ON MOTION TO ALTER OR AMEND
This case is once again before this court, this time on a motion by defendant, the Secretary of Health and Human Services, to alter or amend this court's memorandum opinion and order dated October 1, 1986. That decision granted the plaintiff, Ruby May Hadden, her attorney's fees under the Equal Access to Justice Act (EAJA). The court denies the Secretary's motion.
The facts of the case and the reasoning that led to the fee award are set out in the opinion dated October 1. In brief, that opinion held that because the Secretary's decision in originally denying Ms. Hadden's disability benefits was unsupported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Hadden v. Heckler, No. 85-0001-J, Magistrate's Report and Recommendation, as adopted by this court, at 2, that position could not be "substantially justified" within the meaning of the EAJA, 28 U.S.C. § 2412(d)(1)(A), unless the government could show some "extraordinary special circumstances" demonstrating substantial justification. Hadden v. Bowen, 657 F. Supp. 679, 682 (D.Utah 1986) (hereinafter Oct. 1 opinion). The Secretary filed this motion to amend under Fed.R. Civ.P. 59(e), arguing that the court did not apply the correct standard of law in evaluating the Secretary's position for substantial justification.
The Secretary emphasizes four points in arguing for amendment of this court's opinion. First, he argues that this court relied on a House Report that did not accurately represent the intent of Congress in enacting the 1985 amendments to EAJA. Second, he argues that this court failed to give appropriate weight to the statements made by some of the legislators and President Reagan when those amendments were voted and signed into law. Third, the Secretary contends that the standard applied by this court conflicts with that followed by the Tenth Circuit Court of Appeals. *683 Finally, he maintains that this court's construction of the EAJA conflicts with the policy of that act. This court disagrees with each of these four points.
Contrary to the Secretary's first contention, this court did not "rely" on the House Report with which the Secretary finds fault. This court's reasoning was based on three simple propositions:
1. The standard of "substantial justification" in this and other circuits is one of reasonableness. Oct. 1 Opinion at 681, citing Wyoming Wildlife Federation v. United States, 792 F.2d 981, 985 (10th Cir.1986); See also Weakley v. Bowen, 803 F.2d 575 (10th Cir.1986).
2. The "position" which the government must demonstrate to have been "substantially justified" in order to avoid a fee award under the EAJA includes the original agency position. Oct. 1 Opinion at 681, citing 28 U.S.C. § 2412(d)(2)(D).
3. In this case, that original agency position had already been held to have been made without "such evidence as a reasonable mind might accept as adequate to support a conclusion." Oct. 1 Opinion at 681, citing Hadden v. Heckler, No. NC-85-0001 J, Magistrate's Report and Recommendation, as adopted by this court, at 2.
Given these three points, this court concluded that the Secretary failed to demonstrate any circumstances that could support a conclusion that the Secretary's position, although unsupported by evidence a reasonable mind might accept as adequate, was nevertheless reasonable.[1] Inherent in a finding that a decision was made without enough "evidence that a reasonable mind might accept as adequate to support a conclusion" is a finding that that decision was unreasonable. This court endorsed the House committee's view that in cases in which the government's original position was unsupported by substantial evidence evidence a reasonable mind might accept as adequate to support the conclusion, Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) the government must show evidence of "the most extraordinary special circumstances" to demonstrate substantial justification. Oct. 1 opinion at 682, citing H.R.Rep. no. 120, 99th Cong. 1st Sess. 9-10, reprinted in 1985 U.S.Code Cong. & Ad.News 132, 138 [hereinafter House Report]. This court agrees with that report, but its conclusion is based not only on the House committee's view, but also on the clear law of this circuit, the clear language of the EAJA, and the unambiguous factual findings made in this case.
*684 As the Secretary now points out, this approach conflicts with some statements made by various congressmen, senators and the President. But this court's prior opinion addressed those statements. Oct. 1 opinion at 681, n. 5. These statements disputed the position of the House Report that when the government's action was found to be arbitrary and capricious or unsupported by substantial evidence, a finding that the government's position was not substantially justified would be "virtually certain." House Report, supra, at 10.[2] These statements agreed that substantially justified was a reasonableness standard, but they also maintained that the standard was a "lesser standard" than that of substantial evidence or arbitrary and capricious. Some persons may be limber enough for such mental contortions, but this court can not stretch the meaning of "substantial justification" to indicate both a reasonableness standard and a lesser standard than one requiring only enough evidence to reasonably support a conclusion. It appears to this court that the statements that the Secretary wishes this court to rely on are logically inconsistent.
Even if these statements made sense, this court need not accept them as indicative of the legislative intent of the entire Congress. The House Committee Report, which this court endorsed, is a better indication of intent. In Garcia v. United States, 469 U.S. 70, 105 S. Ct. 479, 83 L. Ed. 2d 472 (1984), the Supreme Court stated:
In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which "represent the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation." Zuber v. Allen, 396 U.S. 168, 186 [90 S. Ct. 314, 324, 24 L. Ed. 2d 345] (1969). We have eschewed reliance on the passing comments of one member, Weinberger v. *685 Rossi, 456 U.S. 25, 35 [102 S. Ct. 1510, 1517, 71 L. Ed. 2d 715] (1982), and casual statements from the floor debates. United States v. O'Brien, 391 U.S. 367, 385 [88 S. Ct. 1673, 1683, 20 L. Ed. 2d 672] (1968); Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 [100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766] (1980). In O'Brien, supra, at 385 [88 S.Ct. at 1684], we stated that Committee Reports are "more authoritative" than comments from the floor, and we expressed a similar preference in Zuber, supra, at 187 [90 S.Ct. at 325].
469 U.S. at 76, 105 S. Ct. at 483. The statements made from the floor accompanying the passage of the amendments to the EAJA conflict with the views expressed in the committee report on those amendments. In such cases, the statements in the report control.
One other point needs to be made in reference to the conflicting legislative history. Although the report accompanying the 1985 amendments was subject to vehement opposition, the effect of the amendment is clear: "`position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." 28 U.S.C. § 2412(d)(2)(D). Courts are no longer to examine only the government's litigation position for substantial justification. The government must now show reasonableness at the original agency level as well. The remarks of a few legislators, and even the President, cannot change the clear intent of the entire Congress. When such remarks within a conflicting legislative history act to obscure the plain meaning and purpose of the statute, it is the duty of the courts to resolve the confusion and give effect to the unambiguous language as written and passed into law. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980).
The obfuscation of the 1985 amendment to the EAJA achieved by the various floor statements is what the Secretary seeks to capitalize on here. Repeatedly he argues that this court should examine only the question of whether the Secretary was reasonable in arguing that his original position was supported by substantial evidence.[3] This court:
need not re-examine the question of which Government position, litigation or pre-litigation must be substantially justified ... because in this case the positions are identical. Moreover, the statute has been amended so that both the Government's litigation position in the civil action, and the prior action or failure to act by the agency on which the civil action was based are considered. 28 U.S.C. § 2412(d)(2)(D).
Wyoming Wildlife Federation v. United States, 792 F.2d 981, 985 n. 1 (10th Cir. 1986). The amendment to the EAJA was intended to change prior analysis of the law, under which some courts examined only the government's litigation position for substantial justification. Cf. United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1487 (10th Cir.) cert. denied sub nom, Jarboe-Lackey Feedlots, Inc. v. United States, 469 U.S. 825, 105 S. Ct. 105, 83 L. Ed. 2d 49 (1984), and 28 U.S.C. § 2412(d)(2)(D). The Secretary's suggested analysis of looking only to his reasonableness in arguing the merits of the civil action is nothing but a reincarnation of this prior analysis which Congress explicitly rejected. Implicit in his argument is the notion that because the legislative history is confused, this court should adhere to its *686 prior method of looking only to the government's litigation position in seeking "substantial justification," ignoring the 1985 amendment to the act.[4] To throw up one's hands and avoid enforcing the law as enacted, merely because of the inconsistent statements of a few legislators and the President, would be to neglect the constitutional duty of this court. This court will not follow the Secretary's suggestion.
The Secretary's third contention is that the standard applied by this court is inconsistent with the standard set forth by the Tenth Circuit Court of Appeals. This is a puzzling argument. Both here and in this court's Oct. 1 opinion, this court applied a reasonableness standard. This is consistent with the clear view of the Tenth Circuit. Wyoming Wildlife Federation v. United States, 792 F.2d 981, 985 (10th Cir. 1986); Weakley v. Bowen, 803 F.2d 575 (10th Cir.1986). Apparently, what troubles the Secretary is not the standard applied by this court, but the particular government actions to which that standard was applied. As set forth above and in this court's Oct. 1 opinion, the clear language of the 1985 amendments to the EAJA provide that the original agency position must be examined as well as the government's litigation position. 28 U.S.C. § 2412(d)(2)(D). The Tenth Circuit's position is consistent with that statutory mandate. Although the Court of Appeals has tended to focus on the government's reasonableness in arguing the case, see Weakley v. Bowen, 803 F.2d 575 (10th Cir.1986); Wyoming Wildlife Federation v. United States, 792 F.2d 981, 985 (10th Cir.1986); Fulton v. Heckler, 784 F.2d 348, 349 (10th Cir.1986), nothing in any of those cases rejects looking to the original agency position, if that is sufficient, to find a lack of substantial justification. In fact, in Wyoming Wildlife, the Court of Appeals explicitly noted that "the statute has been amended so that both the Government's litigation position and the prior action or failure to act by the agency on which the civil action was based, are considered." 792 F.2d at 985, n. 1. Wyoming Wildlife recognized, as did United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1487 (10th Cir.1984), that the government's litigation position is almost always identical to that position on which the agency action was based. That is true in this case. An unreasonable agency position cannot metamorphize into a reasonable position when that same position is litigated. Even the most reasonable United States attorney cannot litigate factual irrationality into reasonableness in both law and fact. See id. This court reads the EAJA and the Tenth Circuit's interpretations of the act as requiring both the government's litigation position and the original agency position that engendered the action to be substantially justified.[5]
*687 Finally, the Secretary argues that this court's position is inconsistent with the policy behind the EAJA. This argument cannot be maintained. Requiring that the government demonstrate reasonableness at the agency level, as well as in subsequently litigating that issue, protects the victims of government mistakes by enabling them to vindicate their rights and entitlements.
The purpose of the Equal Access to Justice Act is to ensure that the cost of litigation does not prevent individuals and businesses who have been the targets of unjustified government action from opposing that action in court or agency proceedings. That purpose cannot fully be served if only the government's litigating position is considered in evaluating substantial justification, because the government will be able to pursue actions it knows to be unreasonable or inadequately supported in the hope of intimidating the private party, knowing it can simply concede without penalty if that party chooses to fight the matter.
H.R.Rep. No. 120, 99th Cong. 1st Sess. 16, reprinted in 1985 U.S.Code Cong. & Ad. News 132, 144, quoting the Chairman of the Administrative Conference of the United States. This court's October 1 Opinion does not raise a presumption that the government is not substantially justified when agency action has been found to be unsupported by substantial evidence. Nor does it provide for automatic fee-shifting in such cases. Rather, it simply recognizes that in cases in which the government has taken action unsupported by evidence that a reasonable mind would accept as adequate to support a conclusion, its chances of later making the required "strong showing" of substantial justification, Weakley v. Bowen, 803 F.2d 575 (10th Cir.1986), are slim. The factual record that has resulted in the government's loss in such cases also means that only the "most extraordinary special circumstances" will result in a finding that the government, despite its inadequate factual record, was nevertheless substantially justified.
The motion to amend or alter this court's opinion and order dated October 1, 1986 is DENIED.
So ordered.
NOTES
[1] Margaret Heckler, rather than Otis Bowen, was Secretary when this action first began.
[2] The case was remanded "to allow the Secretary to attempt to meet her burden of proof and to complete the sequential evaluation of plaintiff's disability claim." Magistrate's Report and Recommendation at 13. The agency's sequential evaluation of claims of disability is set out at 40 C.F.R. § 404.1520. Under that regulation a person with a serious impairment that does not meet or exceed any of the listed impairments must be evaluated as to her ability to perform past relevant work or other work in light of her age, education and past work experience. See Tillery v. Schweiker, 713 F.2d 601 (10th Cir.1983). Therefore, the case was to be examined for more evidence on the question of Ms. Hadden's ability to perform housekeeping or dishwashing or a finding of whether or not Ms. Hadden was capable of other work. See 20 C.F.R. §§ 404.1520(e), (f). Because in the interim the governing regulations had been amended so that Ms. Hadden's mental problems now constituted a listed impairment, the second ALJ did not determine the questions for which the case was remanded.
[3] "Once it has been established that plaintiffs are prevailing parties, the burden shifts to the Government to prove that it was substantially justified...." Wyoming Wildlife Federation v. United States, 792 F.2d 981, 985 (10th Cir.1986). Accord, Cinciarelli v. Reagan, 729 F.2d 801, 804 (D.C.Cir.1984); Cornella v. Schweiker, 728 F.2d 978, 983 (8th Cir.1984); Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983).
[4] Actually, the standard of substantial justification may be "slightly more stringent than reasonableness". Spencer v. NLRB, 712 F.2d 539 (D.C.Cir.1983). In United States v. 2,116 Boxes of Boned Beef, the Tenth Circuit, adopting the reasoning of the Spencer case, implicitly recognized that in "borderline cases" a standard of merely reasonableness may not be "adequate and appropriate". 726 F.2d at 1486-87, n. 11.
This view, that substantial justification means at least reasonableness or perhaps something more, is compatible with that expressed in the committee reports accompanying the original bill and its amendments. The House Report on the 1985 amendment to the EAJA cited with approval those cases holding that "substantial justification" "means more than merely reasonable." H.R.Rep. No. 120, 99th Cong., 1st Sess. 9-10, reprinted in 1985 U.S.Code Cong. & Ad. News, pp. 132, 138. That report also cited the fact that in considering the original bill the Senate Judiciary Committee rejected an amendment that would have changed the words "substantially justified" to "reasonably justified". H.R.Rep., supra, at 9-10, citing S.Rep. No. 253, 96th Cong., 1st Sess. 1, 8 (1979), 1985 U.S.Code Cong. & Ad.News, p. 137. Thus, the views taken by Boned Beef and Spencer appear to follow the intent of the legislature.
[5] In amending the Act in 1985, some statements were made from the floors of both houses refuting the House Report's view that this standard would result in attorney's fees awards in virtually all cases where agency action had been held to be arbitrary and capricious or unsupported by substantial evidence. 131 Cong.Rec. 4763 (daily ed. June 24, 1985) (statements of Reps. Kindness and Moorehead); 131 Cong.Rec.S. 9993 (daily ed. July 24, 1985); cf. H.R.Rep., supra n. 14 at 9-10, 1985 U.S.Code Cong. & Ad.News, pp. 137, 138. These remarks and those of President Reagan in signing the bill were apparently meant to clarify the fact that the amendment was not intended to mandate automatic awards of attorney's fees in such cases. See Miles v. Bowen, 632 F. Supp. 282, 284-85 (M.D.Ala.1986). But to the extent that those statements purport to declare that "substantial justification" is a "lesser standard" than substantial evidence, they cannot be supported. Substantial evidence requires only enough evidence to reasonably support a conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126 (1938). See also Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.1986) (applying the same definition in the context of a Social Security case). It is similar to that amount of evidence which would be sufficient to justify, if the matter were before a jury, "a refusal to direct a verdict." NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S. Ct. 501, 505, 83 L. Ed. 660 (1939). Thus, a decision unsupported by substantial evidence cannot be reasonable on its merits. While arranging standards of review along some hypothetical spectrum is of questionable utility, see K. Davis, Administrative Law Treatise, at chapter 29 (2d ed. 1984), it is fair to say that substantial justification, a standard "slightly more stringent than reasonableness," Spencer v. NLRB, 712 F.2d 539, 558 (D.C.Cir.1983) cannot be, at the same time, a "lesser standard than the substantial evidence standard." 131 Cong.Rec. 4763 (daily ed. June 24, 1985) (remarks of Rep. Kindness).
[6] See n. 5, supra.
[7] 131 Cong.Rec.S. 9993 (daily ed. July 24, 1985) (remarks of Sen. Thurmond).
[1] The Court of Appeals for the D.C. Circuit has recently construed the amendments to the EAJA. Federal Election Commission v. Rose, 806 F.2d 1081 (D.C.Cir.1986). In that case, the D.C. Circuit rejected the notion that a finding that agency action is arbitrary and capricious should automatically result in a finding that the government's position was not substantially justified. This court agrees with portions of the Rose opinion, but finds fault with some of its sweeping dicta.
In Rose, the court expressed concern that terms such as "arbitrary and capricious" or "substantial evidence," if used too freely, might lead to a "mechanical jurisprudence" in determining whether government action lacked "substantial justification." This court endorses the proposition that courts, in analyzing the EAJA question of substantial justification, must not "blithely reach for easy answers suggested by evocative labels." But labels such as the terms "substantial evidence" are not without meaning. In the case at hand, the reason the case has been labeled "unsupported by substantial evidence" lies in this court's explicit, factual finding that the agency's position lacked "such evidence as a reasonable mind might accept as adequate to support a conclusion." The substantive character of the case on its merits, as reflected by the record, demonstrates a lack of substantial justification on the government's part. An analogy to Rule 11 may be useful. Without such evidence as a reasonable mind might accept as adequate to support a conclusion, how can the government's position be "well grounded in fact," as required by Rule 11, much less "substantially justified" under the EAJA?
Rose was concerned with a situation where the terms "arbitrary and capricious" led to a finding that the government was not "substantially justified." As the Rose court points out in detail, the terms "arbitrary and capricious" encompass a wide variety of government errors, including a great many procedural, as opposed to substantive, mistakes. Rose, at 1088-89. Such was not the situation in the case at hand. Had the present case involved arbitrary and capricious action, rather than action taken which was factually unsupportable, and hence unsupported by substantial evidence, this court's EAJA analysis would have been of a different character.
[2] The Rose court, 806 F.2d 1081 (discussed supra n. 1), rejected the language of the Committee Report as inconsistent with the language of the statute and rebutted by the floor statements that were made during passage of the amendments. This court cannot agree. The House Report correctly recognized that if the standards of "substantial evidence" or "arbitrary and capricious" are properly applied, only rarely will the facts of the case support a finding that the government action was substantially justified.
Although this statement may have been slightly overstated in the context of arbitrary and capricious review based on procedure, it is a realistic recognition of the practical effect of the amendments when decisions are overturned on their merits. If the substantial evidence standard is correctly applied, and agency action is found lacking in such evidence, then, indeed, an award under EAJA is "virtually certain." Such a finding amounts to a conclusion that the decision, on its merits was without any reasonable factual support. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). If the government, in such a case, disagrees with that finding, its remedy is to appeal the substantive decision, not to foray once more into the merits of the case in an attempt to resist an award of fees. The inquiry into "substantial justification" is separate from the merits of the case, but it cannot be divorced from the reality that comprises the record. 28 U.S.C. § 2412(d)(1)(B). Factual conclusions previously drawn from that record must be given their appropriate, res judicata effect.
The Rose court rejected the House committee report's "virtually certain" comment in favor of what it deemed the plain meaning of the statute and the rebuttal of the report in statements made from the floor by some senators and congressmen. The court called the report's statement "a rogue elephant" in "the jungle of legislative history." As discussed above, this court disagrees with the D.C. Circuit's interpretation of the statute's meaning. Furthermore, as this court discusses in text, the floor statements are logically inconsistent, both internally and when compared with the D.C. Circuit's own definition of the standard of substantial justification. See Rose, 806 F.2d at 1090 (defining substantially justified as "slightly more than reasonable" the floor statements claimed it was a lesser standard than the substantial evidence standard, a reasonableness standard.) 131 Cong.Rec. 4763 (daily ed. June 24, 1985) (remarks of Rep. Kindness); See also President Reagan's statement on signing the 1985 amendments, quoted in Miles v. Bowen, 632 F. Supp. 282, 285 (M.D.Ala.1986).) As discussed infra, the Supreme Court has established that a report produced by the committee that studies a bill is a more reliable guide to the legislative intent than isolated statements from the floor. Congressional intent, after all, is the intent of the entire legislative body, not merely those few members who may choose to manufacture their own legislative history. Rogue elephants may not only prowl the staffs of committee members, as the Rose court fears, but may also trumpet from the floor of Congress.
[3] This court has difficulty in understanding how the Secretary can be reasonable in arguing that a decision made without such evidence as a reasonable mind might accept as adequate to support the agency's conclusion is nevertheless "reasonable." The finding that the decision lacked reasonable factual support necessarily means that an argument supporting that decision would lack the same "reasonableness in both law and fact." See United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481 (10th Cir.), cert. denied sub nom, Jarboe-Lackey Feedlots, Inc. v. United States, 469 U.S. 825, 105 S. Ct. 105, 83 L. Ed. 2d 49 (1984). This kind of legal hairsplitting which the Secretary seeks to advance is exactly what lead to the amendment of the EAJA in 1985. House Report, supra, at 8-10.
[4] In support of this proposition, the Secretary cites Russell v. National Mediation Board, 775 F.2d 1284, 1289 (5th Cir.1985); Miles v. Bowen, 632 F. Supp. 282, 284-285 (M.D.Ala.1986); and Gavin v. Bowen, 635 F. Supp. 1251, 1255-56 (N.D.Ill.1986), among other cases. These cases merely retain their prior standards of reasonableness rather than adopt the House Report's comment that the standard was intended to mean "more than mere reasonableness" House Report at 9. The Tenth Circuit, too, has indicated that it retains the standard of "reasonableness in both law and fact." Weakley v. Bowen, 803 F.2d 575 (10th Cir.1986). It is that standard which this court applied in determining that the government was not substantially justified in this case, Oct. 1 Opinion at 680, 681, and 682, although this court indicated that prior Tenth Circuit dicta was not inconsistent with the House Report's view. Oct. 1 Opinion at 681, n. 4. However, retaining the prior standard of reasonableness is not the same as refusing to apply that standard to the original agency position. With the possible exception of Miles v. Bowen, none of the cases cited by the Secretary purport to do that. If Miles holds otherwise this court is of the opinion that that court is in error. In fact, the cases that have addressed the issue have, just as this court did, applied the reasonableness standard to the original agency decision and concluded that the "most extraordinary special circumstances" would have to be demonstrated in order to find an agency decision unsupported by substantial evidence to be substantially justified. Derby v. Bowen, 636 F. Supp. 803, 807 (E.D.Wash.1986); Fleming v. Bowen, 637 F. Supp. 726, 731 (D.D.C. 1986).
[5] The floor statements, in addition to the House Report, support this view. Senator Grassley stated: "[I]f the agency action is not substantially justified, a prevailing party could be eligible for an Equal Access to Justice Act award, irrespective of the merits of the Government's arguments once they get to court." 131 Cong.Rec. S9992 (daily ed. July 24, 1985) (remarks of Senator Grassley). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265236/ | 261 N.J. Super. 672 (1993)
619 A.2d 683
JOYCE WHITE AND ROBERT WHITE, PLAINTIFFS-APPELLANTS,
v.
STEVEN KATZ, D.D.S., DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Submitted January 5, 1993.
Decided February 5, 1993.
*674 Before Judges MICHELS, BILDER and WALLACE.
Smith & Primas, attorneys for appellants (Marcia Allen-Aston, of counsel; Lewis P. Hannah, of the Pennsylvania Bar, on the brief).
Horn, Goldberg, Gorny, Daniels, Paarz, Plackter & Weiss, attorneys for respondent (Mary Louise Ambrose, of counsel and on the brief).
The opinion of the court was delivered by MICHELS, P.J.A.D.
Plaintiffs Joyce White and Robert White appeal from a summary judgment of the Law Division that dismissed their dental malpractice action against defendant Steven Katz, D.D.S. on the ground that the action was barred by the statute of limitations.
Plaintiff Joyce White treated with defendant on four separate occasions, beginning some time in January of 1989. Defendant indicated to plaintiff upon her first visit that she had some cavities, and that her teeth needed to be cleaned and scaled. Pursuant to this evaluation, a treatment regimen was commenced. According to plaintiff, the initial three visits with defendant entailed the cleaning and scaling of her teeth, which *675 was performed by an associate or assistant of defendant. Thereafter, "follow-up dental work" was to be performed, which involved the matter of plaintiff's cavities.
The fourth visit, which took place on March 30, 1989, is the one from which the allegations of dental malpractice arise. Plaintiff was experiencing pain as a result of a cavity on one of her rear molars. Defendant indicated that he could either fill the cavity or remove the tooth. When plaintiff asked whether removal was necessary, defendant responded that the tooth in question served no purpose. In light of this, plaintiff instructed defendant to "do whatever he felt was best." Defendant elected to extract the tooth. He did not, however, take an X-ray of the tooth prior to beginning the attempted extraction. Instead, he simply gave plaintiff an injection of anesthesia, and tried to remove the tooth. It was plaintiff's estimation that defendant attempted unsuccessfully to extract the tooth for a total time of "twenty to thirty-five minutes." Plaintiff was in pain throughout, and at times was moaning from it. Dr. Katz was "pulling" and "twisting" the tooth, and he expressed to his assistant a disbelief that it would not come out.
At some point, defendant stopped the procedure and ordered an X-ray of the tooth. The X-ray revealed that there was a hook on the root of the tooth, but defendant indicated that he was still going to try to pull it. After using a pick to pry the gum away from the tooth, defendant renewed his efforts at extraction. Eventually, the pain became unbearable for plaintiff, and she was forced to grab defendant's hand and tell him to stop.
Immediately after concluding the attempted extraction, defendant referred plaintiff to Dr. Feinstein, an oral surgeon. Plaintiff went to see Dr. Feinstein the very same day. Upon arriving at his office, plaintiff noted that her initial dose of anesthesia, which had been given by defendant, was starting to wear off. Consequently, she was experiencing pain in "what felt like the whole side of [her] face." Dr. Feinstein proceeded *676 to view the X-ray that defendant had sent over with the patient, and he stated that he "couldn't understand why [defendant] wanted to pull the tooth." Dr. Feinstein explained to plaintiff, and showed her on the X-ray, that the root of the tooth was curled underneath the jaw bone, and that it was sitting on a nerve. In light of this, and because of the fact that the tooth "only had a spot on it," Dr. Feinstein recommended that plaintiff not have the tooth pulled. Dr. Feinstein then placed stitches in plaintiff's mouth, in order to repair the area where defendant had pulled the gum away from the tooth, and released her.
Plaintiff later returned to Dr. Feinstein on April 5, 1989 to have the stitches removed. At this time, plaintiff indicated to Dr. Feinstein that she was having "funny feelings" in her face. Specifically, she noted that she was experiencing "twitching," "jerking," "numbness" and "pains." Dr. Feinstein opined that these problems were only temporary, and would probably go away. Despite the doctor's optimism, plaintiff eventually realized that her problems were not temporary in nature. In fact, in 1991 she was still experiencing "tingling sensation[s]" and "numbness" in her mouth. As a result, plaintiffs decided to institute a dental malpractice action against defendant.
On March 28, 1991, plaintiffs attempted to file a complaint with the Clerk of the Superior Court by filing with the Atlantic County Clerk's Office. The complaint was received in the Office of the Superior Court by the Deputy Clerk of the Superior Court in Atlantic County on March 28, 1991. However, discerning that the complaint had not been prepared or signed by a New Jersey attorney, the clerk declined to file the complaint, and, in fact, returned it to Lewis P. Hannah, Esq., the Pennsylvania attorney who had forwarded it for filing. Thereafter, on April 5, 1991, an identical complaint was submitted on behalf of plaintiffs. This complaint bore the signature of a New Jersey attorney and was immediately marked filed by the Deputy Clerk of the Superior Court, Atlantic County.
*677 After issue was joined and discovery completed, defendant moved for summary judgment, contending that the applicable two-year statute of limitations had run on March 30, 1991, prior to plaintiffs' proper filing of their complaint. Plaintiffs argued that Joyce White had not become aware of her potential claim against defendant on March 30, 1989, but instead on April 5, 1989, when she had returned to Dr. Feinstein's office because of her discomforts. Additionally, plaintiffs argued in the alternative that, even if the trial court determined that the statute of limitations did commence running on March 30, 1989, the filing date of the original complaint, March 28, 1991, should be construed as the effective date of filing pursuant to R. 1:5-6(c). This rule allows for a dating back exception, under certain circumstances, which plaintiffs claimed to have met. Thus, they maintained that they were entitled to have the date of the original complaint control for limitations purposes.
Following argument, the trial court granted summary judgment, holding that plaintiff Joyce White was aware on March 30, 1989 that she "had a problem resulting from action taken by [defendant]." More precisely, the trial court concluded that this plaintiff was aware of both the injury and the defendant's apparent fault on that date. The trial court noted additionally that the fact that this plaintiff's problem had worsened by April 5, 1989 did not serve to "negate the pain and suspicions she had on [March 30, 1989]." Consequently, the trial court held that the two-year statute of limitations had run out on March 30, 1991, and thus, plaintiffs' claims were barred.
The trial court also rejected plaintiffs' alternative argument that the date of the original attempt at filing the complaint, March 28, 1991, should be viewed as the effective filing date under R. 1:5-6(c). The trial court noted that this rule provides, in part, that if a paper is presented for filing without payment of the filing fee or attachment of a Case Information Statement, it shall be returned as not filed, but may be reinstated, to the original date of filing, if properly refiled within ten days. The trial court found that the application of this rule to the *678 situation at bar where the nonconformity of the papers was due to the fact that the attorney filing them was not licensed to practice in New Jersey would create a direct conflict with R. 1:21-1, which governs who may practice law in the courts of New Jersey. In light of this, and so as not to render R. 1:21-1 "nugatory," the trial court concluded that R. 1:21-1 must take precedence, and R. 1:5-6(c) should not be applied in this case. This appeal followed.
Plaintiffs seek a reversal of the judgment, and a reinstatement of their complaint. They contend generally that the trial court erred (1) in dismissing the complaint without conducting a Lopez[1] hearing, because issues of credibility were involved; (2) in granting summary judgment in favor of defendant because knowledge of pain does not constitute knowledge of an injury caused by the fault of another pursuant to the discovery rule, and (3) in only considering one line of plaintiff's deposition since defense counsel suggested all dates to her when she was confused and extremely nervous. However, plaintiffs do not renew on appeal the argument made before the trial court that the filing date of their initial complaint should have been construed as the effective filing date pursuant to R. 1:5-6(c).
Upon careful reading of R. 1:5-6(c), it is apparent that the trial court's focus solely on the dating back provisions of the rule, and its failure to acknowledge the rule's predominant plain language regarding nonconforming papers, was erroneous. Furthermore, this error was "of such a nature as to have been clearly capable of producing an unjust result...." R. 2:10-2. Particularly, it resulted in the improper dismissal of an apparently meritorious claim. Therefore, notwithstanding plaintiffs' failure to raise this issue on appeal, the interests of justice require that we now notice and address this issue.
As noted previously, plaintiffs' original complaint was forwarded to the Clerk of the Superior Court in Atlantic County on *679 March 28, 1991, within the two-year limitations period when the earliest possible date of accrual of the cause of action, March 30, 1989, is assumed. However, instead of simply filing this complaint and notifying the person who had forwarded it of any problems or nonconformities contained therein, the clerk refused to file it. In fact, he returned the complaint unfiled, but bearing the received date of March 28, 1991, to the Pennsylvania-based attorney who had submitted it.
In light of the clear and explicit language of R. 1:5-6(c), the clerk's act of returning a complaint which he deemed to be nonconforming and unacceptable was entirely erroneous. It is well-settled that "the clerk's filing [of papers] is a ministerial rather than discretionary act," and thus "the clerk is required to file [all] papers presented to him if accompanied by the [appropriate materials]." Pressler, Current N.J. Court Rules, comment 3 on R. 1:5-6 at 49 (1993).
Specifically, R. 1:5-6(c) provides:
Nonconforming Papers. The clerk shall file all papers presented for filing and may notify the person filing if such papers do not conform to these rules. If, however, a paper is presented for filing without the Case Information Statement required by R. 4:5-1 or without payment of the required filing fee, the clerk shall return the same stamped "Received but not Filed (date)" with notice that if the paper is retransmitted together with the Case Information Statement or filing fee, as appropriate, within ten days after the receipt date stamped thereon, filing will be deemed to have been made on said date. [Emphasis added].
Furthermore, the comment to this rule provides in pertinent part:
3. Paragraph (c). This paragraph of the rule, as adopted as part of the 1969 revision, made the practice change, except in the Appellate Division, of requiring the clerk to file all papers received by him for that purpose even if they are nonconforming. The theory is that the clerk should, with respect to filing, act ministerially, and not, by returning nonconforming papers as had formerly been authorized, subject a party to the risks which may attend untimely filing. It is rather the party who should bear the responsibility for whatever risks may result from a nonconforming paper. It is anticipated, however, that the clerks will continue to notify attorneys of nonconformances which come to their attention so they may be corrected without affecting the filing date. Note that other rules now directing the clerk to return, without filing, papers which do not conform in a particular manner were also amended to eliminate that *680 provision. See, e.g., Comment 4 to R. 4:6-1 (formerly R.R. 4:12-1(e)) and R. 4:100 (formerly R.R. 4:120-1). The revised rule, however, does recognize that clerks cannot be required to accept papers for filing without payment of the required filing fee. The second sentence of paragraph (c) was therefore added as a technique by which the timeliness of the filing of such papers is protected provided the fee is transmitted with a retransmission of the papers within ten days after their return to the party presenting them. Since the original filing date is protected if a fee which should have accompanied the filing is transmitted within 10 days, a fortiori, the filing date is protected when the document is accompanied not only by the fee but also by a direction to charge the filer's account. See State v. One 1986 Subaru, 230 N.J. Super. 451, 458 [553 A.2d 869] (App.Div. 1989), reversed in part on other grounds, 120 N.J. 310 [576 A.2d 859] (1990). So also is the filing date protected when a pro se litigant claiming indigency presents the pleading for filing unaccompanied by the fee and then, within the 10 days provided for by the rule, presents the clerk with an Assignment Judge's order waiving the fee. Novack v. Chait, 241 N.J. Super. 614 [575 A.2d 908] (App.Div. 1990).
This provision of the rule was amended, effective April 1, 1991, to place the case information statement required by R. 4:5-1 on the same footing as the filing fee. Thus papers unaccompanied by a required case information statement are not eligible for filing but the original filing date, as in the case of the unpaid fee, may be preserved. [Pressler, supra, comment 3 on R. 1:5-6 at 48-49].
Thus, R. 1:5-6(c) clearly mandates that the clerk file all papers which are received, even those that are nonconforming. Only in limited circumstances, where the papers are not accompanied by the appropriate filing fee or a required Case Information Statement, may the clerk return the submitted papers to their sender. However, even in such an instance, the clerk is to notify the sender that if the papers are retransmitted, together with the appropriate materials which were lacking, within ten days after the original stamped date of receipt, filing will be deemed to have been made on the earlier date. Except in these limited circumstances, which are not present in this case, the clerk is required to file all papers which are received. The clear purpose behind this change from the prior rule, which had authorized the return of nonconforming papers by the clerk, was to protect the filing party from the "risks which may attend untimely filing." Pressler, supra, comment 3 on R. 1:5-6 at 48. In this matter, these risks became abundantly manifest, as the clerk's action served to deprive plaintiffs of their *681 day in court on a seemingly valid claim. Thus, it is apparent from the language of R. 1:5-6(c), that the trial court's error in failing to recognize March 28, 1991, the date that plaintiffs' original complaint was received by the clerk, as the effective date of filing was plain error, and requires a reversal. The limited case law on this subject commands the same result.
When addressing the issue of what constitutes the proper "filing" of papers, we have instructed that:
The rules of court define "filing" circuitously. R. 1:5-6(b) specifies the place at which and the official with whom filing is to be accomplished. R. 1:5-6(c) requires the clerk to "file all papers presented to him for filing" unless unaccompanied by the filing fee. These provisions imply that filing consists of two actions: first, the presentation of the document to the clerk and, second, the clerk's appropriate disposition of it. Despite, however, the implication that a completed filing requires the proper disposition by the clerk as well as the presentation by the filer, our courts have consistently recognized that where the paper is timely presented by the filer, its filing cannot be defeated by any subsequent act of inadvertence, neglect or impropriety by the clerk. This proposition was enunciated over 50 years ago by Chancellor Walker in Mahnken v. Meltz, 97 N.J.L. 159, 161-162 [116 A. 794] (E. & A. 1921). The Chancellor had this instructive comment to make:
Originally "filing" consisted of putting writs and other exhibits in courts and offices upon a string or wire for safekeeping and ready reference. In modern usage it consists in placing in the custody of the proper official the paper to be filed, and while his duty undoubtedly requires his making a proper endorsement upon the paper so deposited, it is undoubtedly filed in theory and contemplation of law, when lodged with the proper officer. See 1 Bouv.L.Dic. (Rawle's rev.) 782. Of course, the clerk's failure to endorse a minute of the filing upon the paper lodged with him cannot operate to destroy the rights of the party so lodging it for filing. Any such doctrine would be intolerable.
And in construing R. 3:5-6, the predecessor of R.R. 4:5-6(a) which was the source of R. 1:5-6(b), the Supreme Court, relying on Mahnken v. Meltz, held that
In contemplation of law, a paper or pleading is considered as filed when delivered to the proper custodian and received by him to be kept on file. The endorsement of the clerk does not, according to the greater weight of authority, constitute a part of the filing but is merely evidence of that fact. [Poetz v. Mix, 7 N.J. 436, 442, 81 A.2d 741 (1951)].
See also In re Norrell, 139 N.J. Eq. 550, 554 [52 A.2d 407] (E. & A. 1947); Grubb v. J.C. Penney Co., Inc., 155 N.J. Super. 103, 105 [382 A.2d 405] (App.Div. 1978). And cf. Travelers Insurance Co. v. Gardner, 129 N.J.L. 159, 161 [28 A.2d 507] (E. & A. 1942); Mikulicka v. Baer, 184 N.J. Super. 457, 461-462 [446 A.2d 555] (Ch.Div. 1982). We are therefore satisfied that if the complaint here had *682 reached the Clerk's Office prior to the expiration of the statute of limitations, it would have to be deemed to have been timely filed. [Waite v. Doe, 204 N.J. Super. 632, 635-36, 499 A.2d 1038 (App.Div. 1985), certif. denied, 102 N.J. 398, 508 A.2d 256 (1986) (emphasis added)].
See also State v. One 1986 Subaru, 230 N.J. Super. 451, 458, 553 A.2d 869 (App.Div. 1989), reversed on other grounds, 120 N.J. 310, 576 A.2d 859 (1990) (acknowledging that R. 1:5-6(c) requires the clerk to file a complaint on the date it is received if accompanied by the filing fee or a direction to charge that fee to the filer's account).
Applying these principles here, it is clear that the clerk should have filed the original complaint forwarded by plaintiffs' Pennsylvania-based attorney on March 28, 1991. Thereafter, noticing that this attorney was not licensed to practice law in our state, the clerk should have informed him of this problem, and allowed it to be corrected without affecting the already established filing date of plaintiffs' claims. If, upon notification of this problem, it was not corrected, then plaintiffs could, and should, properly have been subjected to the risks that attach to it, but the filing date would remain unaffected. Unquestionably, R. 1:5-6(c) contemplates that, in all but the very limited circumstances provided for expressly in the rule, any action based on nonconformity which would serve to affect the vitality of a complaint after it has been received by the clerk must be instituted by the adversary and not the clerk. In this manner, the salutary goals of both R. 1:21-1 and R. 1:5-6(c) can be achieved, and neither rule will be rendered "nugatory."[2] In sum, the proper date of filing should have been deemed to be March 28, 1991. When this proper date of filing is applied, it is quite apparent that plaintiffs' claims in this matter were asserted in a timely fashion.
*683 Accordingly, the summary judgment under review is reversed. Plaintiffs' complaint is reinstated, and the matter is remanded to the trial court for further proceedings. In view of our decision, we need not, and do not, reach the specific issues raised by plaintiffs on appeal.
NOTES
[1] Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973).
[2] Parenthetically, we note that this decision in no way serves to render R. 1:21-1, the rule which governs who may practice law in the courts of New Jersey, "nugatory," as the trial court had reasoned. The submission of papers by an unlicensed attorney in no way affords such a person the right to practice law in the courts of this state. Therefore, this spectre should not be allowed to preclude the filing of a party's complaint. Indeed, the express provisions of R. 1:5-6(c) serve to ensure that such a result will not obtain. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265244/ | 657 F. Supp. 358 (1987)
UNITED STATES of America
v.
Robert JOHNSON.
Crim. No. H-86-76(PCD).
United States District Court, D. Connecticut.
April 3, 1987.
*359 Jeremiah F. Donovan, Asst. U.S. Atty., New Haven, Conn., for plaintiff.
Ronald C. Osach, Silverstein & Osach, New Haven, Conn., for defendant.
RULING RE RESTITUTION
DORSEY, District Judge.
I. Facts and Procedural History
Defendant has pleaded guilty to a charge that he violated 18 U.S.C. § 371 by conspiring to aid, assist, or advise in the preparation and presentation of fraudulent tax returns, conduct which in turn violated 26 U.S.C. § 7206(2). Defendant's activity grew out of a partnership between Clinton Energy Associates and Midland Alcohol Fuels, Inc., created for the purpose of manufacturing gasohol. Defendant undertook to attract investors as limited partners. These partners invested in the partnership to secure profits and to shelter some of their tax liability. Defendant provided the investors with K-1 forms and informed them of their entitlement to certain tax deductions for the years 1980-82. Because the partnership's business transactions were fraudulent in nature, defendant's representations were false and investors who relied on such representation and took the recommended deductions were required to pay back taxes, plus interest, and were assessed penalties.
Two of the limited partners have claimed restitution from defendant to be a condition of his sentence and/or probation under 18 U.S.C. §§ 3663(a)(1) and 3651. Claimants Alfred and Ruth Blumrosen seek $18,137.30 representing their $12,499 investment in the partnership and the $5,638.30 they were assessed in tax deficiencies, interest, and penalties. Claimants Allan Clamage and his wife seek restitution of $35,000 under 18 U.S.C. § 3651. Doctor Myron Brand seeks $35,000.[1]
II. Discussion
Section 3663(a)(1) provides that a court may require, as a condition of sentencing, that a defendant pay restitution to any victim of a Title 18 offense for which he has been found guilty. Section 3663, along *360 with its procedural counterpart, § 3664, do not become effective until November 1, 1987. Pub.L. No. 98-473, § 212(a)(1), (2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985). Until that time, parties are limited to seeking restitution under §§ 3579 and 3580, which are identically worded and which will be superseded by §§ 3663 and 3664. Sections 3663 and 3664 do not cover offenses which occurred prior to January 1, 1983. Section 3651 has been in effect since 1948 and authorizes imposition, as a condition of probation, of an obligation to make restitution for losses caused by the committed offense, regardless of the date of the offense, which need not be a Title 18 offense.[2]
A. Title 18 Offense
Restitution under § 3579(a)(1) is premised on the initial finding of guilt of a Title 18 offense. United States v. Abod, 770 F.2d 1293, 1298 (5th Cir.1985). Although the substantive offense is § 7206(2) of Title 26, the corresponding finding that he was also guilty of conspiracy under 18 U.S.C. § 371 provides a proper foundation for restitution. United States v. Dudley, 739 F.2d 175 (4th Cir.1984) (restitution ordered where defendant charged with conspiracy, unlawful use of food stamps, and distribution of demerol). See also United States v. Spinney, 795 F.2d 1410, 1416 (9th Cir.1986). Thus, as defendant has been found guilty of a Title 18 offense for § 3579 purposes and as the prerequisites for proceeding under § 3651 have likewise been established, claimants may proceed under either or both statutes.
B. Victims and Aggrieved Persons
Under § 3579, a defendant may be ordered to pay restitution "to any victim of the offense." Under § 3651, a defendant may be ordered to pay restitution "to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." The initial question is whether the benefit of § 3579 extends to a different class than those covered under § 3651. This issue requires a two-part analysis: (1) are the terms "victim" and "aggrieved person" distinct; and (2) is the requisite effect on a victim of the offense § 3579 the same as actual damages or loss caused by the offense under § 3651.
Sections 3579 and 3580 do not define the term "victim," but the legislative history suggests that a broad application was intended. These statutes were part of the Victim and Witness Protection Act of 1982, Pub.L. No. 97-291, § 5(a), 96 Stat. 1253 (1982) and amended by Pub.L. No. 98-596, 98 Stat. 3138 (1984), which was enacted, in part, to broaden the protection of victims and to reinforce the use of restitution in sentencing. Sen.Rep. No. 532, 97th Cong., 2d Sess., at 9 & 30, reprinted in part in 1982 U.S.Code Cong. & Adm. News 2515, 2536. The Act was also passed in response to the fact that restitution under § 3651 had been used infrequently. Id. at 30, 1982 U.S.Code Cong. & Adm.News at 2536. Despite the apparent wish that restitution be ordered more frequently, however, there is no suggestion that Congress intended to distinguish between the terms "victim" and "aggrieved person." Plainly, one who is aggrieved is one who has suffered an injury or offense, viz, one who has been victimized. Webster's Third International Dictionary at 41 and 2550 (1981). The legislative history suggests that the choice of the term "victim" rather than "aggrieved person" was more a matter of semantics than substance.[3] Thus, though Congress intended to expand the use of restitution, it did not expand the class of beneficiaries for whom restitution might be *361 ordered by use of a broader, more inclusive term "victim."
Courts have, however, expanded the class of persons entitled to restitution based on the language of the statute and the intent of the legislation. Section 3579 differs markedly from § 3651 in that the latter specifies that only those who have suffered "losses caused by the offense for which conviction was had" may be entitled to restitution. Courts have interpreted this language narrowly and restricted the class of those entitled to restitution under § 3651 solely to those persons who were victims of the offenses for which defendant was convicted. United States v. Elkin, 731 F.2d 1005, 1013 (2d Cir.), cert. denied, 469 U.S. 822, 105 S. Ct. 97, 83 L. Ed. 2d 43 (1984); United States v. Johnson, 700 F.2d 699, 701 (11th Cir.1983); Fiore v. United States, 696 F.2d 205, 209-210 (2d Cir.1982). While some courts and commentators have noted that elimination of the "offense of conviction language" would enlarge the class who would be entitled to restitution, see, e.g., "Restitution in the Criminal Process: Procedures for Fixing the Offender's Liability," 93 Yale L.J. 505, 507, 509, 514-16 (1984); United States v. Allison, 599 F. Supp. 958, 959-60 (N.D.Ala.), cert. denied, 471 U.S. 1117, 105 S. Ct. 2362, 86 L. Ed. 2d 262 (1985), the majority of courts have not relied on this distinction and have, in fact, read the requirement into the statute. United States v. Barnette, 800 F.2d 1558, 1571 (11th Cir.1986); United States v. Mounts, 793 F.2d 125, 127 (6th Cir.1986); United States v. Durham, 755 F.2d 511, 512 (6th Cir.1985). Nevertheless, those courts which have read the requirement into the statute or who have ignored the language altogether have compensated by broadly defining the class of victims which are cognizable under a particular offense.[4] The term "victim" covers any "person who suffered as a result of the defendant's actions that surrounded the commission of the offense, regardless of whether the actions are elements of the offense charged." Durham, 755 F.2d at 513 (ordering restitution to the insurer of an automobile destroyed by arson during commission of a bank robbery even though defendant was not charged with arson). In Mounts, the court extended the class to those who suffered a loss as part of an "uninterrupted series of events surrounding [the defendant's] criminal activity." 793 F.2d at 128 (ordering restitution to owner of car which was stolen to facilitate escape from burglary where explosives were used by convicted felon in violation of 18 U.S.C. § 842(i)(1)); see generally, Spinney, 795 F.2d at 1417 ("A restitution order is authorized if the defendant created the circumstances under which the harm or loss occurred."); United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir.1986) (construing "any victim" to include governmental agencies).
Given this broad definition, claimants' losses to the extent they represent penalties and interest occurring after January 1, 1983, are recoverable. Defendant's filing false K-1 forms and the corresponding false representations as to deduction entitlement were part of the violation of which defendant stands convicted. The limited partners eventually became liable to the Internal Revenue Service for the resulting improper deductions plus any interest and penalties assessed thereon. The resulting tax penalties and interest would not have been incurred but for defendant's conduct. The same rationale is not applicable, however, to the investors' liability for their tax deficiencies nor their initial investments. The partners invested to reap profit and to shelter taxes. These investments were not guaranteed. Each partner accepted the risk that he might lose money rather than make money either because of adverse economic factors or business judgment on the part of management. Fraud on the part of defendant, directed toward the investor, was not an element of the charge on which defendant has been convicted. Accordingly, defendant cannot have been deemed to stand convicted of fraud as to the investment, that is the risk *362 assumed by the investors. It is not proper to order restitution beyond that caused by the conduct on which the conviction is premised. Defendant's conduct which violated the tax laws does not embrace the additional elements of fraud in the inducement of the investment. The loss of the investment cannot be said to have resulted from that limited conduct of which defendant here stands convicted and restitution therefor would be improper.[5] Nor are claimants entitled to restitution for the amount of their back taxes.
All that defendant has here been convicted of is conduct which was adversely directed to the government and its tax collection responsibility. Claimants' investments were like any other attempted tax shelter investmentsdeductions are allowed only to the extent authorized by the Internal Revenue Code. Even if defendant had not violated 26 U.S.C. § 7206, claimants would not be entitled to the deductions they took. Although defendant's violation of the statute may have increased claimants' tax liability in the form of penalties and interest for which they are entitled to restitution, but it did not create their underlying tax liability. That was created by the limits on deductions imposed by Congress. Their tax liability stems from the tax code. Claimants are only entitled to restitution for losses resulting from defendant's offense and the facts surrounding that offense; they are not entitled to restitution for results that are either too remote or not caused by that offense.[6]United States v. Kenney, 789 F.2d 783, 784 (9th Cir.1986); United States v. Tyler, 767 F.2d 1350, 1351 (9th Cir.1985); United States v. Kuna, 760 F.2d 813, 820 (7th Cir.1985); United States v. Forzese, 756 F.2d 217, 222 (1st Cir.1985); United States v. Tiler, 602 F.2d 30, 33 (2d Cir.1979). Accordingly, claimants are entitled to restitution for losses incurred in the form of penalties and interest. Claimants' claims for restitution for losses of their investments and for their increased tax liability caused by denial of deductions taken are denied.
C. Effective Date of Statute
Sections 3579 and 3580 apply only to offenses which occurred after January 1, 1983; offenses occurring before that date may only be redressed under § 3651. United States v. Wheadon, 794 F.2d 1277, 1285 (7th Cir.1986); United States v. Martin, 788 F.2d 184, 189 (3d Cir.1986). The conspiracy to which defendant pleaded guilty lasted from 1980-1983, straddling the effective date of §§ 3579 and 3580. Although some of the overt acts occurred before 1983, such is not fatal to claimants' requests. Barnette, 800 F.2d at 1570-71; Martin, 788 F.2d at 189. Therefore, that portion of claimants' losses which occurred prior to 1983 are recoverable under § 3651, losses occurring after 1983 are recoverable either under §§ 3579 and 3580 or 3651. Martin, 788 F.2d at 189; but see Barnette, 800 F.2d at 1570 (where court did not proportionalize pre-1983 losses from post-1983 losses).
D. Plea Agreement Negotiation
Defendant has also argued that restitution should not be ordered as it was not a matter discussed in his plea agreement. Defendant's Memorandum at 10-11, citing United States v. Whitney, 785 F.2d 824 (9th Cir.1986). In fact, as both defendant and the government failed to note, the plea agreement expressly provided that the provisions of § 3579 were inapplicable.[7] The *363 law is clear that a "restitution amount must be set forth either in the indictment counts on which conviction is based or in a plea agreement that specifically addresses restitution." Whitney, 785 F.2d at 860 (§ 3651); United States v. Hawthorne, 806 F.2d 493, 499 (3d Cir.1986) (restitution cannot be ordered if defendant was not apprised of possibility of restitution); Elkin, 731 F.2d at 1012-132. The rationale for this rule is quite simply that a defendant has a right to know the consequences of his plea agreement. Thus:
Where a plea is sought on a count(s) on which restitution in an amount exceeding that charged in the particular count(s) may properly be imposed, the government must in the course of negotiating the plea, inform the defendant of the possibility that restitution will be required, so as to afford the defendant a full opportunity to assess adequately all the consequences prior to entering a plea of guilty. In the absence of a provision for restitution in the plea agreement, the district court must, prior to accepting the plea, inform the defendant of the possibility of its restitution before a subsequent order of restitution in an amount exceeding that charged in the count(s) to which the defendant pleaded may be sustained.
Hawthorne, 806 F.2d at 499.
In both § 3579 and 3580 cases and § 3651 cases the law requires that defendant be given notice that he might face an order of restitution, although the precise amount need not be specified. Indeed, the Advisory Committee Notes to Rule 11(c)(1) indicate that, in view of § 3579, a defendant should be apprised of the power of the court to issue an order of restitution. Fed. R.Crim.P. 11(c)(1), Adv.Comm.Notes (1985 Amendment). Here, there was not only no notice but a specific representation by the government that restitution would not be sought. The government is not in a position to concede the rights of the claimants as Congress was clear in indicating that victims' rights should not only be observed but honored. Sen.Rep. at 30, reprinted in 1982 U.S.Code Cong. & Ad.News at 2536 ("The premise of the section is that the court in devising just sanctions for adjudicated offenders should insure that the wrongdoer make goods [sic], to the degree possible, the harm he has caused his victim."). As defendant was not provided with the requisite notice, he shall be given an opportunity to withdraw his plea. Martin, 788 F.2d at 189.
Accordingly, claimants shall file, on or before April 10, 1987, a record, along with all supporting documentation, of the penalties and interest they incurred as a result of defendant's criminal conduct proportioned according to the assessments made as to each tax year in 1980, 1981 and 1982. Defendant shall then decide, on or before April 24, 1987, whether he will withdraw his plea agreement. If he chooses not to do so, defendant shall file any response to claimants' filings on or before May 1, 1987, and shall, in conjunction with the probation office compile a record of defendant's resources on or before May 15, 1987. If defendant does not withdraw his plea, restitution, if any, shall be determined at sentencing on May 27, 1987.
SO ORDERED.
NOTES
[1] The Clamages have not itemized their claim beyond representing that $18,750 was initially invested in the company. Doctor Brand claims $8,000 of his alleged $35,000 loss constitutes tax interest.
[2] Pub.L. No. 98-473, § 212(a)(2), 98 Stat. 1987 (1984) repealed § 3651. Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985), amending Pub.L. No. 98-473, § 235, 98 Stat. 2031 (1985), extended repeal to November 1, 1987.
[3] The term "victim" is used throughout the law to refer to those who suffer a loss from criminal activity. There is no indication that Congress intended to distinguish between those whose loss was redressable under § 3651 and those whose loss was redressable under §§ 3579 and 3580. See United States v. Hussong, 778 F.2d 567, 569-70 (10th Cir.1985) (defining "aggrieved person" broadly to include indirect victims).
[4] Courts which have adopted this approach have placed primary reliance on the statutory language that any victim may recover losses which are the result of an offense. See, e.g., Durham, 755 F.2d at 513.
[5] Congress also recognized that to the extent an order of restitution would unnecessarily "complicate or prolong the sentencing process," such need not be ordered. 18 U.S.C. § 3579(d).
[6] This decision does not reach claimants' entitlement via a civil action for losses caused by defendant's alleged fraud in the inducement of their initial investments.
[7] The plea agreement states:
Finally, because the offense to which your client will plead guilty was completed prior to January 1, 1983, the provisions of the Victim and Witness Protection Act, 18 U.S.C. § 3579, are inapplicable.
Curiously, the government's position that the crime was completed prior to January 1, 1983, is at odds with the allegations in the information, which alleges at ¶ 22 that the last overt act in the conspiracy occurred on March 12, 1983. As noted supra, the court has adopted the latter finding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1416547/ | 145 Ga. App. 3 (1978)
243 S.E.2d 289
McCOOK
v.
THE STATE.
55193.
Court of Appeals of Georgia.
Submitted February 1, 1978.
Decided February 20, 1978.
*6 J. Laddie Boatright, for appellant.
Glenn Thomas, Jr., District Attorney, John P. Rivers, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
McCook owned and was riding as a passenger in a truck driven by his 16-year-old brother-in-law when it came upon two police cars, one pulled off at each side of the road. The driver, Kulig, slowed as he passed, but according to his own testimony did not realize the officer walking across the road was signaling him to stop. On being called, he did stop and back up. He did not have a driver's license on his person, and stated that the car carrying the rest of his family was ahead down the road and he must have forgotten his license which was in a pants pocket in the other car. As to McCook, there is a conflict of testimony as to whether he got back in the car immediately on being told to do so by one of the troopers or *4 whether, as the other trooper testified: "I heard Trooper Adams tell McCook that he had already told him one or two times to get back in the truck. And Mr. McCook said that he wasn't under arrest and that he would stand anywhere that he wanted to. Trooper Adams told him that as of then he was under arrest for obstructing an officer. At that time, Mr. McCook went around the truck and got back in on the passenger's side. [Then Trooper Adams] went around and opened the door and told him to get out, and he wouldn't get out, he was slow about getting out and Trooper Adams reached in and got him by the arm and he got out then." Adams further testified that whenever he asked Kulig a question McCook interrupted him, that he was loud, that this hindered him in the performance of his duties, and he arrested him. At a point either just before or just after the arrest McCook observed that "if that's all of you son-of-a-bitches have got to do, you ain't got much to do."
All cases were tried together. McCook was acquitted of the offense of being drunk on the highway. He was convicted of a violation of Code § 68B-404, knowingly authorizing a motor vehicle owned by him to be driven by an unlicensed person. He was also convicted of a violation of Code § 26-2505, obstructing an officer. Kulig was convicted of driving without a license and acquitted of drunk driving. Only McCook appears here.
1. The jury verdicts establish that neither defendant was intoxicated. The evidence at the trial establishes that Kulig did indeed have a valid driver's license, from which it may be assumed that his explanation of leaving it in a pocket of clothing in the family car was true. While under Code § 68B-210 failure to show one's license on request of a law enforcement officer may give rise to the presumption that the driver does not have a valid license, this presumption is defeated where the license is produced at the trial. See Code § 68B-210 (c). There is not the slightest scintilla of evidence to controvert McCook's testimony that he knew Kulig had a license, and his further testimony that he was not aware that Kulig had left it in the other car. A conviction for violation of Code § 26-2505 must include evidence that McCook knew when he authorized Kulig to drive that he had no valid license *5 or that he was "in violation of any of the provisions of this Title." Assuming without deciding that if McCook knew Kulig was licensed but also knew he did not have the license on his person he could not legally authorize him to drive, there is no evidence that this state of facts existed. The conviction on this count is unauthorized.
2. Code § 26-2505 provides: "A person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor." The testimony of Officer Adams was that McCook interfered and interrupted him while he was trying to arrest Kulig; that he then told McCook he was under arrest and McCook went back around and got in his truck, and that McCook "though I shouldn't arrest [Kulig] for not having a driver's license."
None of these statements adds up to an obstruction of justice. It was early held in Statham v. State, 41 Ga. 507, 512 (1871) (former Code § 26-4401: "knowingly and wilfully obstruct, resist, or oppose any officer," etc.) that mere remonstrance is insufficient. "We think the charge of the Court, that the prisoner was guilty if he resisted by argument, was too strong. It can hardly be said, fairly, to be resisting or opposing an officer to argue with him, unless that argument becomes violent so as to amount to something calculated to force the officer to desist." Cf. Butler v. State, 66 Ga. App. 665 (19 SE2d 177) (1942), advancing on the officer with a knife; Hampton v. State, 141 Ga. App. 866 (234 SE2d 698) (1977), pointing a rifle at an enforcement officer. Something more than mere disagreement or remonstrance must be shown. Moses v. State, 6 Ga. App. 251 (64 S.E. 699) (1909) explains that the words "obstruct, resist, or oppose" imply forcible resistance. "Obstruct" is given as a synonym for "hinder" in Webster's Unabridged Dictionary. And prior to Moses it was held in Vince v. State, 113 Ga. 1070 (39 S.E. 435) (1901) that refusing to obey a command to open a door did not "obstruct" the officer. We accordingly find the evidence here insufficient to warrant conviction.
Judgment reversed. Smith and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743911/ | 771 So. 2d 485 (2000)
Ex parte COFFEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
Re In the Matter of Leola Nichols.
2990221.
Court of Civil Appeals of Alabama.
May 19, 2000.
*486 Charles Matthew Brunson of Jared & Brunson, Elba, for petitioner.
Submitted on petitioner's brief only.
CRAWLEY, Judge.
The Coffee County Department of Human Resources (DHR) received several telephone calls concerning the welfare of Leola Nichols, an elderly resident of Enterprise. The callers were concerned that Ms. Nichols was being exploited financially. DHR investigated those concerns and determined that Ms. Nichols might benefit from having a conservator appointed to handle her financial affairs.
DHR then filed a "Petition for Letters of Conservatorship" in the Coffee County Probate Court. The probate court appointed Ms. Nichols a guardian ad litem and set the matter for a hearing. Ms. Nichols retained separate counsel and filed a petition to strike the petition for letters of conservatorship and a petition to remove the administration of the conservatorship to the circuit court. The circuit court removed the case and, in response to Ms. Nichols's motion to strike, dismissed the case on the basis that DHR was not a proper party to bring a conservatorship action. DHR has petitioned for a writ of prohibition, arguing that the circuit court did not have jurisdiction to enter the removal order because a conservatorship had not yet been established.
DHR requests a writ of prohibition to prevent the circuit court from exercising jurisdiction over the conservatorship petition. We must determine whether a petition for a writ of prohibition is the appropriate method to review the circuit court's action in this case. Because a writ *487 of prohibition is the proper method to test jurisdiction and "lies when a court acts in excess of its jurisdiction," Ex parte City of Tuskegee, 447 So. 2d 713, 716 (Ala.1984), and because it is "the proper remedy to intercept and put an end to a usurpation of jurisdiction," Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940), we conclude that a petition for such a writ is the appropriate method for securing a review.
"Issuance of a writ of prohibition lies within the discretion of the court, and the writ is granted or withheld according to the nature and circumstances of the case, not as a matter of right." State v. Crossman, 687 So. 2d 817, 818 (Ala.Crim. App.1996) (citations omitted). To prevail on its petition before this court, DHR must show: "(1) that there has been a usurpation or abuse of power, (2) that there is no other adequate remedy at law, (3) that the petitioner has suffered injury, and (4) that the question has been presented to the inferior court." Id. at 819 (citation omitted). DHR has met these requirements.
After considering DHR's argument that the circuit court lacked jurisdiction to enter its removal order, we have determined that the circuit court did act prematurely in issuing that order. In a similar case involving the removal of an estate to the circuit court, the supreme court held that a "circuit court cannot assume jurisdiction over an estate when the administration has not yet begun." Ex parte Smith, 619 So. 2d 1374, 1375-76 (Ala.1993). The court reasoned:
"[T]he mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court. The circuit court cannot initiate the administration of an estate, because the initiation of administration is a matter exclusively in the jurisdiction of the probate court. In this case, the probate court had taken no action whatever on [the] petition; therefore, the administration of [the] estate did not begin and [the] petition for removal was premature."
Ex parte Smith, 619 So.2d at 1376 (internal citations omitted).
The statute providing for the removal of an estate to the circuit court, Ala.Code 1975, § 12-11-41, which the supreme court construed in Ex parte Smith, begins with the words "[t]he administration of any estate may be removed." The statute providing for the removal of a conservatorship to the circuit court, Ala.Code 1975, § 26-2-2, begins with the words "[t]he administration or conduct of any guardianship or conservatorship ... may be removed." The language of the two statutes is nearly identical. In addition, the statute granting the probate court original jurisdiction over the initiation of the administration of an estate, see Ala.Code 1975, § 12-13-1(b)(2), also provides that the probate court has original jurisdiction over "the appointment and removal of guardians." See Ala.Code 1975, § 12-13-1(b)(6).
Because the statute governing the removal of a conservatorship is so similar to the statute governing the removal of an estate and because both actions are within the original jurisdiction of the probate court, we conclude that the circuit court did not have jurisdiction to enter a removal order before the probate court had acted upon DHR's petition. Therefore, we issue the writ of prohibition and direct the circuit court to vacate its removal order.
WRIT GRANTED.
ROBERTSON, P.J., and YATES and THOMPSON, JJ., concur.
MONROE, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265251/ | 657 F. Supp. 2d 834 (2009)
Naomi CUSHMAN, Plaintiff,
v.
GC SERVICES, LP., Defendant.
Civil Action No. H-08-2229.
United States District Court, S.D. Texas, Houston Division.
August 13, 2009.
*835 Marshall Meyers, Weisberg & Meyers LLC, Phoenix, AZ, Susan A. Landgraf, Weisberg Meyers LLC, Austin, TX, for Plaintiff.
Kandy Elaine Johnson Messenger, Sprott Rigby Newsom Robbins Lunceford & Bell, PC, Houston, TX, for Defendant.
ORDER
VANESSA D. GILMORE, District Judge.
Pending before the Court is Defendant GC Services, LP's Motion for Partial Summary Judgment on Plaintiffs DTPA and TDCPA claims, incorrectly styled as Defendant GC Services, LP's Partial Motion for Summary Judgment. (Instrument No. 17).
I.
A.
Plaintiff Naomi Cushman ("Plaintiff" or "Cushman") brings suit for damages against Defendant GC Services, LP ("Defendant" or "GC Services") for debt collection actions allegedly taken in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"), the Texas Debt Collection Practices Act, Chapter 392 ("TDCPA"), and the Texas Business and Commerce Code, Subchapter E, Chapter 17 ("DTPA"). (Instrument No. 1, at 1). Plaintiff seeks statutory damages and a declaratory judgment for violations of the FDCPA. (Id., at 7). She seeks a declaratory judgment under the TDCPA, as well as all actual damages, exemplary damages, mental anguish damages, and discretionary additional damages as recovery for Defendant's conduct. (Id.).
B.
The facts of this case stem from a debt Cushman owed on her American Express credit card and GC Services's attempt to collect the debt. Plaintiff first remembers being contacted by American Express sometime in the spring of 2007 after she fell behind on her payments. (Instrument No. 17, Exhibit A, at 48). She subsequently resumed payments but then fell behind again in approximately March of 2008. (Id., at 49). In March 2008, Plaintiff began receiving calls from Defendant GC Services regarding the debt on her American Express account. (Id., at 54). She received both letters through the mail as well as voice mail messages left on her cell phone. (Id.).
*836 Plaintiff never answered calls from Defendant directly. Instead, she called Defendant back after receiving voice mails. (Id., at 68). Plaintiff only spoke to Defendant's employees on two occasions, March 31st and May 6th. (Id., at 132). She also received calls between those two dates, but she cannot remember the frequency of the calls. (Id.). Plaintiff has no memory of Defendant's representatives ever using foul language or curse words. (Id., at 154).
On March 31, 2008, Plaintiff called GC Services from her cell phone while sitting in her car in the Chick-Fil-A parking lot during her lunch break. (Id., at 69). She spoke with a Ms. Dunn, an employee of GC Services, concerning her account. (Id., at 55). Plaintiff felt that the conversation with Ms. Dunn was "way out of line." (Id., at 57). Plaintiff described Ms. Dunn as "aggressive, belligerent" and unwilling to set up a payment arrangement. (Id.). According to Plaintiff, Ms. Dunn "said the only option was payment in full, which, of course, was impossible at the time." (Id., at 71). Plaintiff further alleges that Ms. Dunn was angry and told her "You think you know the law. You don't. We'll see." (Id., at 72). This left Plaintiff feeling "like there was a henchman behind me about to break my knees." (Id.). Plaintiff contends that she was threatened; Ms. Dunn purportedly stated that Defendant would attempt to garnish Plaintiffs wages and contact her employer and family members to get the money. (Id., at 73). Plaintiff "remember[s] her saying thattalking about, the options are wage garnishment, potentially jail, blah, blah, blah, blah" (Id., at 76-77).
Plaintiff also claims that Defendant contacted her employer directly. In the spring of 2007, Cushman received a call from a collections agency, which she believes was GC Services, at the branch office where she was employed as a contract worker. (Id., at 83). Because she was on a temporary assignment at the branch office, Plaintiff claims that "[t]here is no way that there is any record that they could have found, any public record, that would have associated me with that branch office phone number." (Id., at 80). Plaintiff does not have any documentation evidencing that GC Services in fact contacted another office to find out where Plaintiff was assigned. (Id., at 81).
Plaintiff is not aware of any of her family members being contacted concerning her debt. (Id., at 100). However, after the phone call with Ms. Dunn, Plaintiff alerted her mother, who is in a nursing home, to the possibility that a company might call asking for her whereabouts. (Id., at 101). Plaintiff also alerted her fiance and a woman who was living with her at the time about the problems and potential calls from GC Services. (Id., at 101).
After the call on March 31, 2008, Plaintiff next spoke with one of Defendant's employees on May 6, 2008. (Id., at 125). She had received voice mails from a man named Mr. Lewis and, believing that she would have a better chance of working out a payment plan with a different representative, Plaintiff called GC Services and asked to speak to Mr. Lewis. (Id.). She made the call from her car at 6:46 pm in a Whole Foods parking lot. (Id., at 126-127). After being told by the representative who answered the phone that Mr. Lewis was not in, she discussed her account with another man, whose name Cushman cannot recall. (Id., at 127). She recalls the call being "much more civil" and that they had actually worked out a payment agreement. (Id., at 129). However, towards the end of the call, Plaintiff requested that GC Services stop contacting her now that she had agreed to a payment plan. At that point, the man told *837 her that it was not possible to end the calls because they were required to contact her on a weekly basis. (Id.). Plaintiff then offered to contact them in writing to request the calls cease, but the man replied "we may or may not receive your letter." (Id.). According to Plaintiff, she then stated that she would contact American Express directly to make her request, but the man told her "you can't" and "[t]hey won't speak with you [because i]t's our debt now." (Id., at 130). Plaintiff also alleges that the man again mentioned the possibility of wage garnishment after stating that her letter might not be received. (Id., at 150).
Plaintiff does not report missing work in connection with Defendant's debt collection activities. (Id., at 206). After the last telephone conversation in May 2008, Plaintiff is unaware of Defendant contacting any of her family members, friends, or employers or attempting to garnish her wages. (Id., at 232). Plaintiff does allege that she lost sleep for about half the nights between March 31st and May 6th. (Id., at 236). Additionally, Plaintiff contracted shingles in August 2008 and requires ongoing treatment. (Id., at 259). Plaintiff claims that Defendant is thirty to forty percent responsible for her condition. (Id., at 280).
In addition to the phone calls, Cushman also received letters from GC Services. The letters contained language directing her to call GC Service's General Manager, Mr. Bernhagen, regarding the handling of the account. (Instrument No. 19, Exhibit D). Plaintiff never contacted Mr. Bernhagen or GC Services concerning their method of handling the account. (Instrument No. 17, Exhibit A, at 176). Sometime around August of 2008, Plaintiff was contacted by Mr. Earle Britton, an attorney with the Korn Law Firm, after her account was sent to that firm for collection. (Id., at 193-195). Plaintiff set up a payment plan and paid off the debt within approximately thirty days. (Id., at 195).
C.
Plaintiff brought suit against Defendant on July 16, 2008, seeking damages for debt collection actions allegedly taken in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"), the Texas Debt Collection Practices Act, Chapter 392 ("TDCPA"), and the Texas Business and Commerce Code, Subchapter E, § 17, commonly known as the Texas Deceptive Trade Practices and Plaintiff Protection Act ("DTPA"). (Instrument No. 1, at 1). As to her FDCPA claim, Plaintiff alleges that Defendant, in attempts to collect the debt, threatened to take actions that are in violation of § 1692(e)(5), used profane language in violation of § 1692(d)(2), contacted third parties regarding the debt in violation of § 1692(B), and attempted to contact Cushman at inconvenient times in violation of § 1692(C). (Instrument No. 15, at 3-4). In support of her TDCPA claim, Plaintiff contends that Defendant used false or deceptive means and abusive language to collect the debt, in violation of Tex. Fin. Code §§ 392.304(19) and 392.302(1). (Id., at 4). Finally, regarding her DTPA claim, Plaintiff claims that Defendant violated § 17.41 by making material representations which it knew or should have known to be false. (Id., at 6).
On July 22, 2008, Defendant filed an answer to Plaintiffs original complaint and raised the affirmative defense of failure to state a claim. (Instrument No. 4). Defendant argued that its actions did not rise to the level of reckless, willful, wanton, intentional, knowing or malicious, and therefore Defendant lacked the requisite intent. (Id., at 5). Defendant also argued that Plaintiff could have mitigated her damages and thus that any award she may receive *838 should be reduced by that amount. (Id.) Defendant also filed an offer of judgment on July 22, 2008, offering to settle Plaintiff's claim for $1,750.00. (Instrument No. 5, at 1).
On January 15, 2009, Plaintiff filed a motion to amend the complaint based on evidence obtained through discovery. (Instrument No. 13). Defendant did not oppose the amendment (Id., Exhibit A). The Court granted Plaintiff's motion and Plaintiff filed her first amended complaint on February 24, 2009. (Instrument No. 15). In the amended complaint, Plaintiff reiterated the original allegations that Defendant violated the FDCPA, TDCPA and DTPA, but also asserted that Defendant committed another actcontacting third parties regarding the debt after having already located and communicated with Plaintiffin violation of all three of the statutes. (Id., at 3). On March 10, 2009, Defendant filed an answer to Plaintiff's amended complaint and denied all of Plaintiff's allegations and Plaintiff's standing to bring suit. (Instrument No. 16).
On April 1, 2009, Defendant filed a motion for partial summary judgment on Plaintiff's DTPA and TDCPA claims. (Instrument No. 17). Defendant argues that Plaintiff lacks standing under both the DTPA and TDCPA and that Defendant is entitled to judgment as a matter of law. (Id., at 1). Defendant filed a memorandum in support of its motion for partial summary judgment further outlining its arguments. (Instrument No. 17).
Defendant first argues that Plaintiff lacks standing under the DTPA because she does not qualify as a "consumer" and "consumer status is an essential element of a DTPA cause of action." (Id., at 3). Defendant posits that consumer status is a question of law for the Court to decide, but contends that two requirements must be met to qualify as a "consumer" under the DTPA: (1) the person must seek to acquire goods or services by purchase or lease and (2) the goods or services purchased or leased must form the basis of the complaint. (Id.). Defendant cites both the DTPA and several Texas Supreme Court decisions in support of this argument. (Id.). Defendant argues that Plaintiff does not meet the two requirements because the extension of credit is not considered a "good" or "service" and therefore Plaintiffs suit is not based on any goods or services that she acquired from Defendant. (Id., at 5).
As to its second argument that Plaintiff lacks standing under the TDCPA, Defendant asserts that a Texas corporation cannot be held liable under the TDCPA for collection actions taken outside of Texas. (Id., at 6). Defendant points to the fact that Plaintiff is not and never was a Texas resident and that none of the contested telephone calls were made from or to Texas. (Id., at 9). Defendant argues that the Texas Finance Code is only intended to regulate collection activity within Texas. (Id.). Defendant avers that to hold it liable for collection actions taken outside of Texas would violate due process. (Id., at 8).
On April 21, 2009, Plaintiff filed a response to Defendant's motion for partial summary judgment. (Instrument No. 19). Plaintiff first addressed her TDCPA claim. In support of her argument that she has standing to sue, Plaintiff points to facts letters generated in Defendant's Houston office, relevant phone calls, and a "skip tracing" process performed out of the Houston officein support of a finding that Defendant's actions occurred in Texas. (Id., at 2-6). Plaintiff argues that the TDCPA provides a private right of action for any person, not just a debtor, who has suffered violations under the TDCPA. (Id., at 6).
*839 Second, Plaintiff asserts that she has standing under the DTPA pursuant to a "tie in" provision included in the TDCPA, Tex. Fin.Code Ann. § 392.404(a). (Id., at 8). According to Plaintiff, "consumer" status is required for standing to bring a DTPA claim only where the terms of the relevant DTPA subsection, as incorporated into the TDCPA, specifically require it. (Id., at 13). In support of her interpretation of the "tie in" provision, Plaintiff cites to two Texas Supreme Court decisions Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000) and Aetna Cas. and Sur. Co. v. Marshall, 724 S.W.2d 770 (Tex. 1987)where the court held that "consumer status is not specifically required to bring a DTPA-based cause of action under the Texas Insurance Code." (Id., at 12-14). Although Crown Life and Aetna Cas. and Sur. Co. addressed DTPA claims brought under a different Texas statute, Plaintiff contends that the decisions support the proposition that "claimants" under "another law" need not fit the statutory definition of a "consumer" to bring a claim under the DTPA. (Id., at 10). Instead, Plaintiff argues, "consumer" status is required only where the terms of a subsection of the DTPA specifically require it. (Id., at 13).
Plaintiff also argues that, because consumers typically do not have a past relationship with third-party debt collectors, a party demonstrating a TDCPA violation will not necessarily qualify as a "consumer" under the DTPA. (Id., at 10). Plaintiff posits that interpreting the TDCPA to only allow suits under the DTPA where persons qualify as "consumers" would severely constrict the TDCPA and render the tie-in provision void. (Id., at 8-9).
On May 1, 2009, Defendant filed a reply and a memorandum in support of Defendant's reply to Plaintiff's response to Defendant's motion for partial summary judgment. (Instrument No. 20). Defendant argues that all relevant GC Services actions were taken in Missouri not Texas, although GC Services first created an electronic file on Plaintiff's account in the Houston office, which was later forwarded to Missouri. (Id., at 3). Defendant also contends that the letters Plaintiff received from GC Services's Texas office are not the conduct she is suing over. (Id., at 4). In sum, Defendant claims that Plaintiffs contacts with the Texas office are "irrelevant" and cannot serve as the basis for her TDCPA suit. (Id., at 5). Defendant urges the Court to find that Plaintiff does not have standing to bring a TDCPA suit against GC Services in Texas because Plaintiff had no contact with Defendant in Texas. (Id., at 10).
Further, Defendant argues that Plaintiff's reliance on the two Texas Supreme Court cases is misplaced. (Id.). Defendant contends that both cases involved the incorporation of a purported DTPA violation into the Texas Insurance Code; and not whether a claim asserted under the DTPA pursuant to a "tie-in" provision exempts the claimant from the "consumer" standing requirement. (Id.). Defendant stands by its position that, under Texas law, the DTPA protects consumers and therefore "`consumer status' is an essential element of a DTPA cause of action." (Id., at 7). According to Defendant, Plaintiff lacks "consumer" status and does not have standing to sue. (Id.).
II.
A.
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 *840 (1986); see also U.S. v. Arron, 954 F.2d 249, 251 (5th Cir.1992). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict in favor of the nonmoving party. See Anderson, 477 U.S. at 248, 106 S. Ct. 2505. If the evidence rebutting the motion for summary judgment is only colorable or is not significantly probative, summary judgment should be granted. See Id. at 2511; see also Thomas v. Barton Lodge, Ltd., 174 F.3d 636, 644 (5th Cir.1999). The summary judgment procedure, therefore, enables a party "who believes there is no genuine issue as to a specific fact essential to the other side's case to demand at least one sworn averment of that [specific] fact before the lengthy process continues." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 886-88, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990).
Under Rule 56(c), the moving party bears the initial burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial and of identifying those portions of the record that demonstrate such absence. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); see also Burge v. Parish of St. Tammany, 187 F.3d 452, 464 (5th Cir.1999).
Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward `with specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87, 106 S. Ct. 1348 (quoting Fed.R.Civ.P. 56(e)) (emphasis in original); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see Engstrom v. First Nat'l Bank, 47 F.3d 1459, 1462 (5th Cir.1995). To sustain the burden, the nonmoving party must produce evidence admissible at trial. See Anderson, 477 U.S. at 242, 106 S. Ct. 2505; see also Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992) (stating that "[t]o avoid a summary judgment, the nonmoving party must adduce admissible evidence which creates a fact issue").
The Court reviews the facts in the light most favorable to the nonmovant and draws all reasonable inferences in favor of the nonmovant. See Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir.2000). "The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S. Ct. 2505.
B.
Plaintiff claims that GC Services violated the Texas Debt Collection Practices Act ("TDCPA") by using false or deceptive means to collect the debt, by threatening to contact Cushman's employer in violation of Tex. Fin.Code § 392.304(19), and by using language intended to abuse the Plaintiff in violation of Tex. Fin.Code § 392.302(1). (Instrument No. 19, at 4). Plaintiff alleges that Defendant's actions resulted in substantial disruption of her daily routine, thereby inflicting emotional and/or mental anguish damages and, further, resulted in an invasion of Cushman's privacy. (Id., at 5).
The TDCPA provides a state law remedy for wrongful debt collection actions. Prophet v. Myers, No. H-08-0492, 2009 WL 1437799, at *5 (S.D.Tex. May 21, 2009). The TDCPA protects "consumers," defined as "an individual who has consumer debt." Tex. Fin.Code Ann. § 392.001(1) (2009). "Consumer debt" is an obligation "primarily for personal, family, or household purposes and arising from a transaction." Id. at § 392.001(2). A "debt collector" *841 is "a person who directly or indirectly engages in debt collection and includes a person who sells ... forms represented to be a collection, device, or scheme intended to be used to collect consumer debts." Id. at § 392.001(6). "Debt collection" is the "action, conduct, or practice in collecting, or in soliciting for collection, consumer debts that are due or alleged to be due a creditor." Id. at § 392.001(5). Finally, a "third-party debt collector" refers to a "debt collector, as defined by 15 U.S.C. § 1692a(6), but does not include an attorney collecting a debt as an attorney." Id. at 392.001(7).
Here, Defendant concedes that GC Services "may fall within the definition of `debt collector' under 15 U.S.C. § 1692a(6)." (Instrument No. 4, at 2). Defendant also admits that "under certain circumstances ... it may attempt to collect a `debt' as defined by ... Texas Finance Code § 392.001(2)." (Id.). However, Defendant asserts that Plaintiff lacks standing to bring suit under the TDCPA because Cushman is not and never was a Texas resident. (Instrument No. 17, at 9). Defendant argues that the Texas Finance Code was intended to regulate collection activity only within Texas and avers that "allowing a plaintiff to hold a defendant liable under the Texas Finance Code for collection activities that occurred entirely outside the state of Texas is tantamount to a violation of the United States Constitution." (Id.).
Defendant fails to recognize that Texas residency is not required to qualify as a "consumer" under the TDCPA; in fact, having "a consumer debt" is the only prerequisite to "consumer" status. Tex. Fin.Code § 392.001(1). Further, the remedies the TDCPA affords are not limited to the actual parties to a consumer transaction. See Campbell v. Beneficial Fin. Co. of Dallas, 616 S.W.2d 373, 375 (Tex. App.-Texarkana 1981) ("Any person against whom the prohibited acts are committed may maintain an action for actual damages sustained as a result of those violations."); see also Monroe v. Frank, 936 S.W.2d 654, 660 (TexApp.-Dallas 1996) (holding that a debtor who obtained a bail bond to secure the release of a family friend from jail was covered under the TDCPA). Given that the TDCPA allows even non-parties to a transaction to bring suit over the transaction, it is illogical that Plaintiff, a direct victim of the alleged debt collection practices violation, would lack standing to bring suit.
Defendant's claim that "Plaintiff had no contact with Texas and none of the purported conduct took place in Texas" is simply not true. (Instrument No. 17, at 8). Defendant GC Services is a Texas corporation. (Instrument No. 17, at 6). GC Services first opened Plaintiff's account in the Houston office. (Id., Exhibit 2, at 100-101). Letters sent to Plaintiff were generated in Defendant's Houston office. (Id., at 108, 200-201). Plaintiff also has evidence that "Defendant initiated a `skip tracing' process" from the Houston office. (Instrument No. 19, at 7). Although Defendant claims that Plaintiff is not suing over the "skip tracing" process, these facts demonstrate that Defendant initiated action on Plaintiff's account and continued to coordinate actions regarding her account from GC Services's "Houston General Office." Simply because Defendant later had calls placed to Plaintiff from its call center in St. Louis, Missouri does not absolve Defendant of all liability in Texas. See also Stinson v. GC Services, No. H-08-1244, 2008 WL 2328210, at *2 (S.D.Tex. June 4, 2008) (denying defendant's motion to dismiss where a Tennessee resident brought TDCPA, DTPA, and FDCPA claims against GC Services in Texas).
*842 In sum, Defendant has presented no evidence that Plaintiff does not have standing to bring a claim pursuant to the TDCPA. Defendant created Plaintiff's account and initiated debt collection activity in Texas. Letters sent in furtherance of Defendant's debt collection activities were generated in Defendant's Houston office. The mere fact that Plaintiff is not a Texas resident is not sufficient reason to deny her standing to bring her claim under the TDCPA. The TDCPA, as written, is broad-sweeping and consumer friendly. The TDCPA has been held to protect "any person against whom the prohibited acts are committed," and it surely protects Plaintiff, a consumer, from debt collection practices initiated and carried out by Defendant, a Texas corporation, in its Texas office. Ford v. City State Bank of Palacios, 44 S.W.3d 121 (Tex.App.-Corpus Christi 2001).
Therefore, Defendant's Motion for Partial Summary Judgment is DENIED with respect to Plaintiff's TDCPA claim
C.
Plaintiff claims that GC Services violated the Texas Deceptive Trade Practices ("DTPA") by making numerous material misrepresentations, which Defendant knew or should have known were false, with malicious, willful, wanton and reckless disregard for Plaintiff's rights. (Instrument No. 19, at 6). Plaintiff alleges that Defendant's material misrepresentations constitute a violation of the DTPA pursuant to Tex. Bus. & Com Code, Subchapter E, § 17.
The Texas Deceptive Trade Practices Act "grants consumers a cause of action for false, misleading, or deceptive acts or practices." Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996); see also Tex. Bus. & Com Code Ann. § 17.50(a)(1) (2009). The elements of a DTPA cause of action are: (1) the plaintiff is a consumer; (2) the defendant committed acts "in connection with the purchase or lease of any goods or services"; (3) the defendant's acts were false, misleading or deceptive; and (4) the acts were a producing cause of plaintiffs injuries. Amstadt, 919 S.W.2d at 649; see also Washington v. U.S. HUD, 953 F. Supp. 762, 777 (N.D.Tex. 1996). At issue here is whether Cushman qualifies as a "consumer" under the DTPA. Defendant claims that she does not meet the statutory definition of "consumer" and therefore does not have standing to bring her DTPA claim. (Instrument No. 17, at 4-5).
1.
The DTPA was enacted to "protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty," and Plaintiff's standing to bring suit on her DTPA claim hinges on whether she qualifies as a "consumer" under the DTPA. Amstadt, 919 S.W.2d at 649 (emphasis added); see Tex. Bus. & Com Code § 17.44; see also Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351 (Tex.1987) (finding that consumer status is an essential element of a DTPA cause of action). The DTPA's definition of "consumer" is different from that found in the TDCPA, and the fact that Cushman is a "consumer" under the TDCPA is irrelevant in the determination of whether she qualifies as a "consumer" under the DTPA. The Texas Supreme Court has "recognized at least two requirements that must be established for a person to qualify as a consumer under the DTPA." Sherman Simon Enter., Inc. v. Lorac Serv. Corp., 724 S.W.2d 13, 15 (Tex.1987). To establish DTPA "consumer" status: "(1) a person must have sought or acquired, goods or services, by purchase or lease; and (2) the goods or services, purchased or leased, must form the basis of the complaint." Burleson *843 State Bank v. Plunkett, 27 S.W.3d 605, 614 (Tex.App.-Waco 2000); see also Tex. Bus. & Com. Code § 17.45(4).
To qualify as a "consumer" for purposes of the DTPA, Plaintiff must first show that she sought or acquired goods or services by purchase or lease. See Sherman Simon Enter., 724 S.W.2d at 15; see also Tex. Bus. & Com Code § 17.45(4). In Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169 (Tex.1980), the Texas Supreme Court had to decide whether a claimant who "sought only to borrow money" qualified as a "consumer" under the DTPA. Id. at 173. The Texas Supreme Court held that "money is not ... a `good'" and "the DTPA's use of the word `services' d[oes] not include the extension of credit, or the borrowing of money." Id. at 174-175.
In holding that a person who acquires a line of credit does not "seek or acquire goods," the Supreme Court of Texas first examined the statutory definition of "goods." The DTPA defines "goods" as "tangible chattels bought for use." Tex. Bus. & Com.Code § 17.45(1). Because the DTPA is part of the Texas Business and Commerce Code, the Court also looked at the Code's definition of "money," which is defined as "a medium of exchange authorized or adopted by a domestic or foreign government as apart of its currency." Id. at § 1.201(24). The Court then held that, "consistent with these analogous statutory provisions, ... money is not a `tangible chattel,' or `goods' as defined by the DTPA. Rather, money is properly characterized as a currency of exchange that enables the holder to acquire goods." Riverside Nat'l Bank, 603 S.W.2d at 174.
In Riverside Nat'l Bank, the Texas Supreme Court also held that borrowing money is not seeking or acquiring any services. See id. "Services" is defined as "work, labor, or services purchased or leased for use, including services furnished in connection with the sale or repair of goods." Tex. Bus. & Com.Code § 17.45(2). The court reasoned that "[m]oney, as money, is quite obviously neither work nor labor. Seeking to acquire the use of money likewise is not a seeking of work or labor." Riverside Nat'l Bank, 603 S.W.2d at 174. Further, the court looked to its prior decision in Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962), for the appropriate definition of "services," which it defined as "action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something: deeds useful or instrumental toward some object." Id. at 895. The Texas Supreme Court then extrapolated that because the prior "definition described `services' in terms of `action,' `conduct,' `performance' and `deeds,'" the word "services" must "include[ ] an activity on behalf of one party by another ... similar in nature to work or labor." Riverside Nat'l Bank, 603 S.W.2d at 174. Thus, it concluded, any "attempt to acquire money, or the use of money, [i]s not an attempt to acquire services." Id. at 175.
Like the plaintiff in Riverside Nat'l Bank, Cushman's dispute centers around a line of credit, specifically, her American Express credit card. Because the Supreme Court of Texas has made it clear that money does not fall within the statutory definition of "goods" because it is not a "tangible chattel," Cushman's line of credit obtained through American Express does not qualify as "goods." See id. at 174. Further, even if Plaintiff were to argue that she "sought to acquire services" when she applied for her American Express credit card given the application process and the interest rate, the Supreme Court of Texas has rejected this argument as well. See id. at 175 (rejecting plaintiff's argument that "services existed in the lending of money").
*844 The Texas Supreme Court's decision in Riverside Nat'l Bank has never been expressly overruled. Burleson State Bank, 27 S.W.3d at 615. However, "there are other bank customer cases that have been decided since Riverside in which borrowers have qualified as consumers if the money was sought to acquire a good or services." Id. at 614; see, e.g., Knight v. Int'l Harvester Credit Corp., 627 S.W.2d 382 (Tex.1982) (finding that a bank customer qualified as a consumer because he sought financing to purchase a dump truck); see also Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705 (Tex. 1983) (holding that a borrower who sought financing for a house qualified as a consumer).
Nonetheless, the instances where the Texas Supreme Court has found that borrowers qualified as consumers are easily distinguishable from Plaintiff's case at hand. In both Knight and Flenniken, the borrowers' motives were the same: to obtain money to acquire a specific good. In fact, in Flenniken, the Texas Supreme Court found that the person "did not seek to borrow money; they sought to acquire a house." Flenniken, 661 S.W.2d at 708. Plaintiff's case stands in stark contrast to both Knight and Flenniken; here, Plaintiff has presented no evidence that she applied for her American Express credit card to make any specific purchase. When questioned during her deposition as to why she applied for the credit card in the first place, Cushman stated that she could not remember. (Instrument No. 17, Exhibit A, at 43). She could recall no large purchase she had planned. In fact, when asked what she used the card for, Cushman stated that it was for "[g]eneral purposes." (Instrument No. 17, Exhibit A, at 45).
Accordingly, Plaintiff is bound by the Texas Supreme Court's holding that an "attempt to acquire money, or the use of money, [i]s not an attempt to acquire services" and "money is not ... a `good.'" Id. at 174-175. Here, Plaintiff did not seek or acquire goods or services, as required by Tex. Bus. & Cora Code § 17.45(4) for consumer status. Therefore, she does not qualify as a "consumer" and does not have standing to bring suit under the DTPA. Moreover, because Cushman has failed to demonstrate that she sought or acquired "goods" or "services," "goods or services purchased or leased" do not form the basis of her complaint. Sherman Simon Enter., 724 S.W.2d at 15. Cushman does not meet the DTPA's test for "consumer" and is therefore precluded from bringing suit under the DTPA.
The Court's finding that Plaintiff fails to qualify as a consumer is consistent with the underlying purpose of the DTPA. The DTPA seeks to protect consumers, and the Texas Supreme Court has repeatedly emphasized the importance of "keep[ing] in mind why the Legislature created this simple, nontechnical cause of action: to protect consumers in consumer transactions. Consistent with that intent ... defendant's deceptive conduct must occur in connection with a consumer transaction." Amstadt, 919 S.W.2d at 649 (emphasis added); see also Home Sav. Ass'n v. Guerra, 733 S.W.2d 134, 136 (Tex.1987) (finding that a defendant creditor "must be shown to have some connection either with the actual sales transaction or with a deceptive act related to" it); see also Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 305 (Tex.1988) (noting that deceptive conduct that is "inextricably intertwined" with a consumer transaction may be actionable under the DTPA). Here, Plaintiff is not a consumer and therefore any action taken by Defendant is not the kind governed by the DTPA.
*845 2.
Plaintiff argues that requiring her to qualify as a "consumer" as a prerequisite for standing under the DTPA creates a "logical impossibility." (Instrument No. 19, at 10). She contends that by demonstrating a TDCPA violation by a third-party debt collector she will automatically be disqualified from "consumer" status because, by definition, a debtor does not consume or acquire anything directly from a third-party debt collector. (Id.). Plaintiff's fear is misplaced; Plaintiff's fails to qualify as a consumer not because of her relationship with GC Services but rather because the underlying transaction at issuethe use of her American Express credit card or, stated more broadly, the extension of a line of creditis not considered "goods" or "services" within the meaning of the relevant statute. See Tex. Bus. & Com Code § 17.45(4).
Plaintiff also claims that consumer status is in fact not required to raise a DTPA claim. (Instrument No. 19, at 8). Instead, Plaintiff argues that "mere violation of the TDCPA confers upon a party standing [to] bring an action under the DTPA." (Id.). In other words, Plaintiff maintains that if she has standing to bring suit under the TDCPA she also has standing to bring her DTPA action. (Id.). In support of her argument, Plaintiff cites only the statute itself, which states that "if a claimant is granted the right to bring a cause of action under this subchapter by another law, the claimant is not limited to recovery of economic damages only, but may recover any actual damages incurred by the claimant." Tex. Bus. & Com.Code § 17.50(h). Plaintiff then argues that Tex. Fin.Code § 392.404 acts as a "tie-in" provision allowing "claimants" under "another law" to recover "actual damages," while DTPA "consumers" are limited to a narrower category of "economic damages." (Instrument No. 19, at 11); see also Tex. Fin. Code § 392.404 ("A violation of this chapter is a deceptive trade practice under Subchapter E, Chapter 17, Business & Commerce Code, and is actionable under that subchapter.").
Plaintiff's argument that a claimant under any other law can automatically bring suit under the DTPA has not been accepted by the Texas courts. Instead, under Texas law it is clear that "[i]n all cases, a plaintiff must qualify as a `consumer' in order to have standing to bring an action under the DTPA." Marketic v. U.S. Bank Nat'l Assoc., 436 F. Supp. 2d 842, 855 (N.D.Tex.2006); see also Mendoza v. Am. Nat'l Ins. Co., 932 S.W.2d 605, 608 (Tex. App.-San Antonio 1996) (finding that consumer standing is "an essential element of a DTPA cause of action"); see also Figueroa v. West, 902 S.W.2d 701, 707 (Tex.App.-El Paso 1995) (noting that "the DTPA is clearly consumer protection legislation").
In Marketic, the plaintiff raised an argument almost identical to the one Plaintiff makes here, claiming "that § 392.404 of the Texas Finance Code states that a violation of the TDCA [Texas Debt Collection Act] also establishes a violation of the DTPA." Marketic, 436 F.Supp.2d at 854. However, the Texas district court found that, while "the DTPA tie-in statute, § 17.50(h) of the Business & Commerce Code, grants a private right of action under the DTPA to a claimant seeking to recover under the TDCA ... Tex. Bus. & Com.Code § 17.50(h) does not exempt claimants from showing that they qualify as a `consumer' under Tex. Bus. & Com. Code § 17.45(4)." Id. at 854-855. (emphasis added). Citing to the Texas Supreme Court's Riverside Nat'l Bank opinion, the Texas district court ultimately found that the plaintiff did not qualify as a "consumer" under the DTPA because "merely obtaining a loan or an extension of credit does not qualify one as a `consumer.'" *846 Id. at 855; see also Prophet, 2009 WL 1437799, at *5 (finding that plaintiff's claim failed where the DTPA claim rested on alleged violations of the TDCPA and nothing more). Accordingly, Cushman's attempt to circumvent the DTPA "consumer" requirement through use of the "tie-in" provision fails.
In an additional attempt to sustain her argument regarding the "tie-in" provision, Plaintiff analogizes her claim to the Texas Supreme Court decision in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000). In Crown Life, the court examined whether a plaintiffs standing to bring suit under Article 21.21 of the Texas Insurance Code extended to allow standing under the DTPA. Id. at 381. The plaintiff admitted he was not a "consumer" but arguedlike Cushman does herethat consumer status was not required because his DTPA claim arose through Article 21.21, not under the DTPA. The Texas Supreme Court concluded that the plaintiff did not have standing under Article 21.21 "to allege DTPA-based claims that require consumer status by their terms." Id. at 381. The court held that the plaintiff had to meet the "consumer" requirement to state his Article 21.21 cause of action for violation of a DTPA subsection "if the subsection either (1) specifically involves a consumer transaction, or (2) involves the misrepresentation of "goods or services" acquired by the plaintiff." Id. at 386.
Here, Plaintiff seeks to bring a claim under § 17 of the DTPA, which is incorporated in its entirety into TDCPA § 329.404. See Tex. Fin.Code § 329.404(a). The Texas Supreme Court has made it clear that "the [DTPA's] rule of liberal interpretation should not be applied in a manner that negates the statutory definition of the word `consumer.'" Riverside Nat'l Bank, 603 S.W.2d at 173. Plaintiff may be correct that Crown Life stands for the proposition that when suit is brought through a "tie-in" provision, "consumer" status may not be required where an incorporated subsection of the DTPA does not specifically require it., However, here the relevant section of the DTPA, section 17, does require "consumer" status. Thus, Plaintiffs argument that she is not required to have "consumer" status to bring suit under the DTPA fails.
In sum, Cushman's relationship with GC Services was not in connection with any transaction in goods or services, and thus Plaintiff fails to meet the requirement that "a person who brings a private lawsuit under section 17.50 must be a consumer, as defined in section 17.45(4)." Id. Plaintiff does not qualify as a consumer under the statute and the "tie-in" provision in the TDCPA does not exempt her from the requirement of consumer status.
Accordingly, Plaintiff does not have standing to bring a claim under the DTPA, and the Court GRANTS Defendant's Motion for Partial Summary Judgment with respect to Plaintiff's DTPA claim.
III.
Defendant's Motion for Partial Summary Judgment is GRANTED with respect to Plaintiff's DTPA claim and DENIED with respect to Plaintiff's TDCPA claim (Instrument # 17).
The Clerk shall enter this Order and provide a copy to all parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2210629/ | 463 N.W.2d 22 (1990)
HAWKEYE BANK AND TRUST, NATIONAL ASSOCIATION, Appellee,
v.
Terry B. BAUGH, Defendant, and
Baugh Family Farms, Inc., Appellant.
No. 89-1086.
Supreme Court of Iowa.
November 21, 1990.
*23 Reta Noblett-Feld, Iowa City, and Ajili Hodari, Student Legal Intern, for appellant.
Daniel P. Wilson of Drake, Wilson & Jay, Centerville, for appellee.
Considered by HARRIS, P.J., and LARSON, SCHULTZ, CARTER, and NEUMAN, JJ.
NEUMAN, Justice.
In April 1988, Hawkeye Bank and Trust brought an action to set aside alleged fraudulent conveyances of farmland between Terry B. Baugh and Baugh Family Farms, Inc. Russell Baugh, the son of Terry Baugh and president of Baugh Family Farms, Inc., filed an answer on behalf of the corporation.[1] He subsequently appeared at a trial setting conference, was notified by the court administrator about the trial date, and ultimately prevailed on a motion to recuse the judge originally assigned to hear the case.
The only wrinkle in the orderly progress of this litigation is that Russell Baugh is not an attorney. His status did not become an issue, however, until the morning of trial. In opening statement, counsel for the bank objected that if Baugh persisted in representing the corporation, he would be engaging in the unauthorized practice of law. The court concurred, ruling that Baugh could not submit evidence on behalf of the corporation but, as a corporate officer, he could "remain in the courtroom ... [to] hear and see and observe what happens."
Baugh, who had prepared seven exhibits and subpoenaed one witness, expressed surprise at the court's ruling. He promptly moved for a brief continuance to secure counsel to assert the corporation's defense. The court summarily overruled the motion, citing only the fact that the case "has been on the assignment for months." It then proceeded to hear the plaintiff's evidence without response by the corporationand entered judgment for the full relief requested.
On appeal, Baugh argues that (1) the court erred as a matter of law by denying him the right to represent this closely held corporation, and (2) the court abused its discretion by denying him a continuance to obtain counsel. We affirm on the issue of pro se representation but reverse on the denial of a continuance and remand for further proceedings.
I. Whether a corporation may lawfully appear pro se is a question of first impression for this court. Other courts that have considered the question generally adhere to the rule laid down by Chief Justice Marshall in 1824: "[a] corporation ... can appear only by attorney, while a natural person may appear for himself." Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 830, 6 L.Ed. 204 (1824); see, e.g., In re Victor Publishers, Inc., 545 F.2d 285, 286 (1st Cir.1976) (citing nine cases in support of general rule); Securities & Exch. *24 Comm'n v. Research Automation Corp., 521 F.2d 585, 589 (2d Cir.1975); In re Highley, 459 F.2d 554, 555 (9th Cir.1972); Simbraw, Inc. v. United States, 367 F.2d 373, 373 (3d Cir.1966); Oahu Plumbing and Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 374-75, 590 P.2d 570, 572-73 (1979) (citing twenty-four cases in support of general rule); Land Management, Inc. v. Department of Envtl. Protection, 368 A.2d 602, 604 (Me.1977) (citing twenty-three cases in support of general rule); Show-Me Restoration Servs. v. Harlan, 778 S.W.2d 350, 350n. 1 (Mo.App.1989). See generally 9A W. Fletcher, Cyclopedia of the Law of Private Corporations, § 4463, at 38 (1985 and Supp.1989) ("It is generally held that a corporation must appear by an attorney...."); 19 Am.Jur.2d Corporations § 2172, at 89 (1986) (same).
Most courts justify their adherence to the general rule on one of two grounds. First, it is thought that the rule protects the court and the public from ineptitude and delay at the hands of persons who are unskilled as well as unlicensed in the practice of law. See National Indep. Theatre Exhibitors, Inc. v. Buena Vista Distrib. Co., 748 F.2d 602, 609 (11th Cir.1984); City of Akron v. Hardgrove Enter., Inc., 47 Ohio App.2d 196, 202, 353 N.E.2d 628, 634 (1973); Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 142-43, 480 A.2d 281, 284 (1984). Second, courts have striven to preserve the corporation as a legal entity separate from its shareholders. See In re K.M.A., Inc. v. General Motors Acceptance Corp., 652 F.2d 398, 399 (5th Cir.Unit B July 1981); Richter v. Higdon Homes, Inc., 544 So.2d 300, 300 (Fla.App.1989); Oahu Plumbing and Sheet Metal, 60 Haw. at 376, 590 P.2d at 573; Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 82, 520 N.E.2d 1312, 1314 (1988); Walacavage, 331 Pa.Super. at 142, 480 A.2d at 284.
The general rule is not without its detractors, however. Exceptions are made on a case-by-case basis, motivated principally by findings that the corporation and its representative are so closely related that their identities are virtually indistinguishable. See, e.g., Margaret Maunder Assocs., Inc. v. A-Copy, Inc., 40 Conn.Supp. 361, 363-65, 499 A.2d 1172, 1174 (1985) (sole shareholder in effect "acting for herself"); Phoenix Mut. Life Ins. Co. v. Radcliffe on the Del., Inc., 439 Pa. 159, 167, 266 A.2d 698, 702 (1970) (all three shareholders of closely held corporation were in court and none objected to representation by one of them); Willapa Trading Co. v. Muscanto, Inc., 45 Wash.App. 779, 787, 727 P.2d 687, 692 (1986) (corporation's president was sole shareholder and director and no other financial interests were involved). One court, observing that pro se representation by a bankrupt corporation is a "manageable nuisance," called the general rule "unnecessarily harsh and unrealistic when applied in bankruptcy to small, closely held corporations." Matter of Holliday's Tax Servs., Inc., 417 F.Supp. 182, 184 (E.D.N.Y.1976).
This court recently touched on the question when it ruled that a lawyer who was also the sole shareholder of a corporation could represent the corporation at trial without unethically blurring his role as both witness and advocate. National Child Care, Inc. v. Dickinson, 446 N.W.2d 810, 812 (Iowa 1989). We specifically declined to rest our decision, however, on a corporation's right to appear pro se, noting "[s]ome doubt exists as to whether that right exists." Id.
II. Baugh offers three reasons why we should depart from the majority rule and allow small, closely held corporations to appear in court pro se. First, he claims the legal fiction of corporate identity exalts form over substance when applied to small family businesses that "operate de facto as sole proprietorships." Second, he asserts that extending the right of self-representation to closely held corporations will create no more disruption in the courtroom than courts presently endure to preserve the individual's right to appear pro se. And, finally, he argues that a shareholder who represents his "own" corporation is not engaging in the unauthorized practice of law for he is neither selling legal services nor holding himself out as a lawyer.
*25 The main thrust of Baugh's argument is that we should disregard the "rigid distinction" between a corporation and its owners and, effectively, allow persons like Baugh to represent themselves in litigation. He urges us to adopt the "reverse pierce" doctrine used by a few courts to enable certain shareholders to pierce the corporate veil from within in order to reach individual benefits in cases involving insurance, probate, and real property. See, e.g., Roepke v. Western Nat'l Mut. Ins. Co., 302 N.W.2d 350, 353 (Minn.1981) (allowing corporation's sole shareholder to qualify as an "insured" under policy covering automobiles owned by corporation); In re Estate of Greenfield, 457 Pa. 114, 123, 321 A.2d 922, 927 (1974) (allowing testator to devise artworks held by solely owned corporation); Cargill, Inc. v. Hedge, 375 N.W.2d 477, 479-80 (Minn.1985) (using "reverse pierce" theory to allow farm family to claim homestead exemption on property owned by family farm corporation).
None of the "reverse pierce" cases cited by Baugh involve corporate self-representation in court. Further, we note that even the proponents of the doctrine admit its limitations:
We are aware of the danger of a debtor being able to raise or lower his corporate shield, depending on which position best protects his property. Consequently, a reverse pierce should be permitted in only the most carefully limited circumstances.
Cargill, 375 N.W.2d at 480.
We are persuaded that this is not one of the "limited circumstances" calling for departure from the general rule. Not only is Baugh not the sole shareholder of Baugh Family Farms, Inc., the record reveals that he is not even a majority shareholder of the corporation. The corporation has three shareholders: Baugh Farms Trust (85%), Tracy Baugh (7½%), and Brenda Wood (7½%). Tracy Baugh and Brenda Wood Russell's sistersshare with him the management of Baugh Family Farms, Inc. as officers and directors. Russell Baugh is the trustee and sole beneficiary of Baugh Farms Trust.
Given this record, Baugh cannot support a claim that only his financial interests are at stake. Although he purports to speak for his sister/shareholders in this matter, the record is devoid of any suggestion that their views or financial interests mesh with either Baugh's or the corporation's. This circumstance clearly distinguishes the present case from those cases relied upon by Baugh in which courts have carved out exceptions to the general rule.
Moreover, the very nature of this litigation puts the status of the shareholders and corporation at issue and, possibly, in conflict. It is the transfer of assets between Baugh family members and the corporation that Hawkeye Bank seeks to challenge. On the one hand, Baugh asserts the corporation's right to hold title to property and, on the other, he asks us to disregard its corporate status and treat it as an individual for self-representation purposes. We reject this attempt by Baugh to "have his cake and eat it too."
We recognize that due process requires the court system to be accessible to those who are aggrieved. Union Sav. Ass'n v. Home Owners Aid, Inc., 23 Ohio St.2d 60, 63, 262 N.E.2d 558, 560 (1970). We are cited to no authority that suggests, however, that requiring a corporation to appear through counsel deprives it of its right to due process of law. To the contrary, other courts appear unanimous in their rejection of such a constitutional claim. See, e.g., Woodford Mfg. Co. v. A.O.Q., Inc., 772 P.2d 652, 654 (Colo.App.1988), cert. denied, 797 P.2d 748 (Colo.1990); Oahu, 60 Haw. at 378, 590 P.2d at 574-75; Union Sav., 23 Ohio St.2d at 63, 262 N.E.2d at 560; Walacavage, 331 Pa.Super. at 144, 480 A.2d at 285.
In conclusion, we subscribe to the Colorado court's observation that "[w]hen a business accepts the advantages of incorporation, it must also bear the burdens, including the need to hire counsel to sue or defend in court." Woodford Mfg. Co., 772 P.2d at 654. We therefore adopt the general rule that a corporation may not represent itself through nonlawyer employees, officers, or shareholders. For the reasons *26 cited, no basis for departure from the general rule can be seen in the case before us. The assignment of error is without merit.
III. Baugh also argues that even if the district court correctly prevented him from representing the corporation, it should have granted him a brief continuance to secure an attorney. Our review of such a claim is limited. Given the broad discretion vested in district courts to grant or deny continuances, we will reverse only when that discretion is abused. Hawkeye Bank & Trust Co. v. Mathew, 373 N.W.2d 127, 129 (Iowa 1985). We measure the reasonableness of the court's decision by the rule stated in State v. Birkestrand, 239 N.W.2d 353 (Iowa 1976):
Where a motion for continuance is filed without delay, alleging a cause not stemming from the movant's own fault or negligence, the court must determine whether substantial justice will be more nearly obtained by granting the request.
Id. at 360. Injustice may appear when, for less than "weighty reasons," a court denies a continuance and thereby prevents a party from being present at trial. In re Estate of Rogers, 226 Iowa 183, 185-86, 283 N.W. 906, 907 (1939).
Two factors compel reversal in the case before us. First, inaction by the court and opposing counsel led directly to the surprise experienced by Baugh when, on the day of trial, he was prevented from advocating for the corporation. The record reveals that Baugh's pretrial pleadings were met with no resistance by court or counsel. Although Russell Baugh was clearly not a named defendant in the suit, it was he who received notice of the trial-setting conference and orders fixing trial dates. Baugh successfully movedon behalf of the corporationto recuse the judge originally assigned to hear the case. Again, neither court nor counsel objected to Baugh's participation in the litigation. From this record we think Baugh could have reasonably believed that he was empowered to represent the corporation. To unexpectedly pull the rug out from under him on the day of trial smacks of unfairness.
Second, the only justification given by the court for denying a continuance lacks real merit. It is true that the case had been on the docket "for months." The court made no attempt, however, to ascribe any unreasonable delay to Baugh. It appears from the record that it could not. Moreover, no apparent consideration was given to the possibility of a brief adjournment to accommodate Baugh's request. Nor does it appear that the court weighed the relative impact of a continuance on the bank against the likely prejudice to Baugh Family Farms, Inc.
We are persuaded that the trial court abused its discretion when it denied Baugh a brief continuance to secure counsel for the corporation. Accordingly, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
NOTES
[1] Terry Baugh neither appeared nor answered and his default is not the subject of this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2210646/ | 260 Cal.App.2d 157 (1968)
EMMETT T. STEELE, Plaintiff and Respondent,
v.
LITTON INDUSTRIES, INC. et al., Defendants and Appellants.
Civ. No. 30391.
California Court of Appeals. Second Dist., Div. Three.
Mar. 18, 1968.
O'Melveny & Myers, Philip F. Westbrook, Jr., William A. Masterson, Trippet, Yoakum & Ballantyne and Frank B. Yoakum, Jr., Kaplan, Livingston, Goodwin, Berkowitz & Selvin and Herman F. Selvin for Defendants and Appellants.
Harold Rhoden for Plaintiff and Respondent.
FRAMPTON, J. pro tem. [fn. *]
The defendants Litton Industries, Inc., Charles B. Thornton, Roy L. Ash, Hugh W. Jamieson and Electro Dynamics Stock Trust Fund, a partnership, have appealed from the judgment and, by means of a second notice of appeal, from the order denying their respective motions for judgment notwithstanding the verdict.
It was alleged in each of the first six counts of the complaint of the plaintiff Steele that the defendants Thornton, Ash and Jamieson were copartners, doing business under the name of Electro Dynamics Stock Trust Fund and that Thornton was the agent of each of the other defendants. Those counts related to an agreement that was alleged to have been made by Thornton and the plaintiff Steele in 1958 pursuant to which Steele was to be permitted to purchase shares of Litton Industries stock equal in amount to the shares received by the defendants Ash and Jamieson. The first three counts were directed against all of the defendants and the fourth, fifth and sixth counts against all of the defendants except Litton Industries, Inc. The first count was for damages for fraud arising from the making of a promise to the plaintiff without intent to perform it; the second count was for damages for breach of contract; the third count was for specific performance; the fourth and fifth counts were for relief by means of *160 the imposition of a constructive trust, and the sixth count was for the enforcement of an express trust.
The seventh, eighth and ninth counts related to a promise alleged to have been made in 1953 by Thornton to the plaintiff Steele that he would be permitted to purchase shares of Litton Industries stock in an amount equal to the number of shares transferred to Ash and Jamieson or either of them. In the seventh count, directed against the defendants Thornton, Ash and Jamieson, a conspiracy to defraud Steele was alleged and damages for fraud were sought. The eighth and ninth counts were directed against all of the defendants other than Litton Industries, Inc., and the relief sought was the imposition of a constructive trust.
The tenth count was for declaratory relief.
At the trial the counts for fraud (count seven, relating to the alleged 1953 promise, and count one, relating to the alleged 1958 agreement) and the count for damages for breach of the alleged 1958 agreement (count two) were submitted to the jury. The other counts, being equitable in nature, were submitted to the trial judge. On April 19, 1965, the jury returned a verdict in favor of the plaintiff as against all of the defendants in the sum of $5,182,885, [fn. 1] together with interest thereon. In response to special interrogatories the jury stated that its verdict was based upon the first and second counts which related to the alleged 1958 agreement and not upon the seventh count which related to the alleged 1953 promise. On the day of the verdict the trial judge filed his "Decision" in which he stated his opinion that the plaintiff was not entitled to the equitable relief sought under the remaining counts, other than that relating to declaratory relief, and that it was not necessary to specifically grant declaratory relief inasmuch as the determination of the other causes of action would "completely adjudicate the rights, duties and obligations of the parties hereto." As will be explained, the trial judge did not thereafter sign and file findings of fact and conclusions of law and render judgment with respect to the equitable counts.
On April 30, 1965, the plaintiff Steele filed a document, the body of which was as follows: "Plaintiff hereby elects of alternative remedies sought by his Complaint his claim for *161 damages at law as set forth in the First and Second Causes of action, and plaintiff hereby elects to waive his claim for equitable relief as set forth in the Third, Fourth, Fifth, Sixth, Eighth and Ninth Causes of Action, and his claim for declaratory relief as set forth in his Tenth Cause of Action." [fn. 2] On May 3, 1965, the plaintiff filed another document in which he reiterated the "election" so expressed and stated that he dismissed "with prejudice his alternative claim for equitable relief as stated in the Third, Fourth, Fifth, Sixth, Eighth and Ninth counts and his request for declaratory relief as set forth in his Tenth count of his Complaint." The plaintiff Steele further stated therein that the "Election, Waiver, and Dismissal is not intended to, and does not dismiss plaintiff's claim for damages at law as set forth in the First and Second counts of his Complaint." On the same date the plaintiff filed a written request, addressed to the clerk, to enter his "election of remedies by dismissal with prejudice of alternative claim for equitable relief." On May 4, 1965, the plaintiff filed a further request, addressed to the clerk, to enter a dismissal with prejudice of third, fourth, fifth, sixth, eight, ninth and tenth counts of the complaint, stating that said request did not affect the first and second counts. On the same date the clerk signed a statement attached to the request which was as follows: "Dismissal entered this 4 day of May, 1965."
On May 7, 1965, the defendants filed a notice of motion for an order vacating and setting aside the plaintiff's request to the clerk, filed on May 4, 1965, for entry of a dismissal of the alternative counts for equitable relief, separate ground for such motion being stated as follows: "1. That the purported dismissal entered was not a dismissal with prejudice of any cause or causes of action; 2. That the purported dismissal entered was not timely under C.C.P. 581.5; 3. That the purported dismissal entered was and is ineffective under Code Civ. Proc., 581.5 since it does not dismiss any cause of action but only alternative counts or claims for relief." It was further stated that in the event that it should be determined that the purported dismissal which had been entered was timely and proper, the defendants would move in the alternative for an order adjudging that such dismissal constituted a dismissal with prejudice of the plaintiff's entire action "and *162 each of the two causes of action and all counts thereof set forth in his complaint ... on the ground that the legal effect of such purported dismissal is a dismissal with prejudice of plaintiff's entire action." The motion to vacate the dismissal and the alternative motion for an adjudication that there had been a plenary dismissal with prejudice of the plaintiff's action were denied on May 14, 1965.
The judgment based on the verdict of the jury was entered on July 9, 1965. The defendants' motion for a new trial was directed to the issues raised by the first and second counts. That motion was granted on August 25, 1965.
[1] The plaintiff did not appeal from the order granting a new trial and that order became final. The defendants state in their opening brief that they appealed from the judgment "to be certain to preserve for review the question as to the effect of the dismissal of the equity counts with prejudice." One effect of an order granting a new trial, however, is to vacate the judgment. [fn. 3] (Spencer v. Nelson, 30 Cal.2d 162, 164 [180 P.2d 886].) Consequently, the defendants' purported appeal from the judgment must be dismissed. (Neff v. Ernst, 48 Cal.2d 628, 634 [311 P.2d 849].)
The subject of the second appeal is the order denying the defendants' motion for judgment notwithstanding the verdict. That order was made on August 25, 1965, concurrently with the order granting the defendants' motion for a new trial.
[2] One of the defendants' contentions with respect to the second appeal is expressed as follows (references to the record being omitted herein): "In the alternative second count, respondent claimed that the April 8, 1958 promise was made without the intent to perform. The jury verdict was based on that count as well as the contract count. However, there was no evidence of any legally recoverable fraud damages to support this determination." It is to be noted that in their opening brief the defendants state that on this appeal they do not seek review of the sufficiency of the evidence as to the making of a promise by Thornton. Moreover, as has been noted (fn. 1, supra), in the same brief the defendants explain the basis of the amount of the verdict for breach of contract. *163 Consequently, since the case as here presented is one wherein there was sufficient substantial evidence to support the verdict on the tenable theory of breach of contract, the order cannot be successfully challenged on the ground asserted. (See Reynolds v. Willson, 51 Cal.2d 94, 99 [331 P.2d 48].)
[3] It is contended that the motion for judgment notwithstanding the verdict should have been granted because there was no evidence of Thornton's authority to bind the defendants Ash, Jamieson and Litton Industries, Inc. As to Thornton's authority to speak and act on behalf of Ash and Jamieson the record discloses the following: The defendant Electro Dynamics Stock Trust Fund, hereinafter referred to as EDSTF, was a copartnership composed of the defendants Thornton, Jamieson and Ash. One of the objects for which the partnership was formed, as set forth in subdivision (a) of paragraph 1 of the partnership agreement, was "To purchase and hold shares of stock and securities of various corporations, including, specifically, shares of stock of Electro Dynamics Corporation and options to purchase shares of stock of that company."paragraph 7 of the partnership agreement provided in part as follows: "Management. In all matters relating to policy and management of the partnership business, other than voting shares of stock owned by the partnership, the voice of the respective partners in said decision shall be as follows:"
Tabular Material Omitted
A majority (i.e., more than 50% of the voting power) shall prevail on all matters." Thornton testified that the business activity of EDSTF was to own stock in Litton Industries (formerly Electro Dynamics Corporation) and options to purchase stock in Litton Industries, and to sell or dispose of that stock in accordance with the decisions of the partners and the partnership agreement; in the purchase of the original shares of Electro Dynamics Corporation he acted for himself and as the agent of Ash and Jamieson and he acted for himself and as the agent for Ash and Jamieson in entering into contracts on behalf of EDSTF with employees of Litton Industries for stock and stock options; as a partner of the fund (EDSTF), he acted on behalf of the fund with various employees of Litton Industries for the transfer of stock or stock options; from the time of the inception of the fund until 1958 or 1959, as a partner in the fund, he entered into contracts *164 on behalf of the fund with key employees of Litton Industries; the contracts dealt with stock and stock options."
The defendant Jamieson testified in portions of his deposition, which were received in evidence, that the fund (EDSTF) operated to hold and distribute to the partners and to others, at the discretion of the partners, the shares of the Electro Dynamics Corporation stock or Litton Industries stock. In Jamieson's deposition in an action he had filed against Thornton and Ash he admitted that Thornton had instructed him "to avoid specifically, insofar as I could, any detailed discussion with anybody else besides him [Thornton] and Roy [Ash] as to the sharing of the stock ownership, and to let him [Thornton] be the point of contact with outside people and anybody except the three of us [Thornton, Ash and Jamieson]. And I did my best for the four years plus that I was there to see that that happened." With respect to Thornton's views on the subject of disclosure or nondisclosure of stock ownership, Jamieson testified that he went along with Thornton in doing it his way. By deposition, Jamieson testified that sometime in 1953, conversations were had between himself, Thornton and Ash whereby it was understood that they would be joint venturers in any organization or corporation formed by them, and would share equally therein.
The defendant Ash testified that EDSTF engaged in the business of owning, buying and selling stock; this activity was confined to Litton Industries stock and the selling was "selling in a particular way as is defined, I think, in the--and under the particular conditions that are defined within the understanding of the participants--of the partners"; that he was a copartner in EDSTF with Thornton and Jamieson; that sometime in 1954 or 1955, in a conversation between Thornton, Ash and Jamieson, either he or Jamieson made the statement, in substance, that there will be a lot of unhappy people when the truth comes out about the number of shares owned by him, Thornton and Jamieson.
Plaintiff Steele testified that in September 1953 there were discussions between Thornton, Ash, Jamieson and Steele about forming a new corporation to acquire the business of Charles Vincent Litton; the responsibilities of each in the new organization were discussed and Thornton was to be the executive officer, Jamieson would handle engineering, Ash would handle finances and act as controller and Steele would handle sales; there would be founders stock available to them; it was Thornton's plan, approved by Steele, Ash and Jamieson *165 to get 51 percent control of the stock issued in the new venture for the four of them and for key employees; Steele would not have entered the venture on the basis of salary alone without the promise of the opportunity to acquire a share of the founders stock in the new venture; Thornton promised that the founders stock would be split on the basis of two shares for Thornton and one share each for Steele, Ash and Jamieson; Thornton was to raise the money to buy the stock and Steele, Ash and Jamieson would reimburse him when the stock would be issued to them; Thornton wanted the numbers of the shares when he got them to be kept strictly confidential. In 1954, Thornton told Steele that he had acquired the founders stock, that it would be put into a fund and "that it would be allocated to us at an appropriate time." Steele testified further that about February or March 1954, Thornton told Steele that Thornton, Ash and Jamieson would constitute a committee to take care of the stock in the fund; that as key employees were hired it would be necessary to sign papers and do other things with which Steele would not be familiar, and inasmuch as Steel's duties would occupy him away from the home office a majority of the time, it would not be necessary for Steele to be a member of such committee.
Steele testified further that in April 1958, he told Thornton that "I wanted the rest of my founders' stock, the same that Roy [Ash] and Bill [Jamieson] got." Thornton replied to this demand, stating, "Well, you have got more key employee stock than anybody, other than the four of us." Steele told Thornton that it was not the key employees stock that he was interested in but it was his founder's stock that he wanted, "the same that Roy and Bill got." Thornton then told Steele, "You'll get it." Steele testified that Thornton promised delivery of the founders stock around December 8, 1958, when restrictions were to be lifted on key stocks to key employees; that there was to be a reorganization in the corporation, and in the division, and that there would be a redistribution of stock at that time. Steele told Thornton at this time that he was prepared to pay him the same amount of money for the founders stock that "Roy and Bill had paid for theirs." Thornton assured Steele that the stock was being held for him; he also told Steele that he expected him to stay on, not to cause any dissension or friction in the equipment division and to use his best efforts and all of his ability in his field to keep the contracts that were in danger, in the house. *166
About January 1959 Steele discovered that in 1953 one hundred thousand shares of founders stock had been issued and that Thornton had given Ash and Jamieson each twenty thousand shares of this stock and had taken the remaining sixty thousand shares for himself. Upon learning of this he immediately went to Thornton's office. Steele told Thornton of what he had learned and told him that this was not in accordance with the promise that had been made by Thornton in 1953, nor was it in accordance with other promises and representations that Thornton had made subsequent thereto. At this time Thornton denied that a promise had ever been made to Steele respecting Steele's rights to share in the founders stock, and stated further that if Steele ever had a claim it was too late to assert it now. Steele threatened suit against Thornton and on the day after this threat was made Steele was locked out of his office at Litton Industries.
The witness Noah Dietrich testified that in September 1953, he participated in a conversation between Steele and Jamieson on the subject of organizing a group to acquire the Litton company; Jamieson stated that the idea of becoming a proprietor along with associates appealed to him and that he was giving it serious consideration; Jamieson had discussed the matter with Thornton who was enthusiastic about it and who had suggested that Mr. Ash come into the group making it a group of four; Jamieson stated that the group, referred to as founders, would participate in a pool of founders stock and that he, Steele and Ash would share equally in the pool, and that Thornton, as the leader of the group, would have a larger interest in the pool. Later, in December 1953, at a meeting between Dietrich, Steele and Jamieson, when Dietrich reiterated an offer to Jamieson and Steele to return to work for Hughes Aircraft Company, Jamieson stated that he, Mr. Steele, Mr. Ash and Mr. Thornton had decided to proceed with the acquisition of Litton Industries, and he would therefore have to reject the offer; that Steele also rejected the offer at this meeting. Dietrich testified further that in early 1954, he had talked to Thornton on a matter relating to Steele's financial responsibility to purchase a parcel of residential property owned by Dietrich. At this time Thornton assured Dietrich of Steele's financial responsibility, stating, "that as a founder of Litton Industries, he [Steele] was certain to become very wealthy and he anticipated no problem on my part in collecting the money from Mr. Steele" and that "Ash, Steele and Jamieson are all on an equal basis in this founders' pool of stock." *167
The proceedings at the trial are contained in 65 volumes of the reporter's transcript consisting of 17,007 pages. The foregoing resume is sufficient, we believe, to show that the trial judge, in passing upon the motions for entry of judgment notwithstanding the verdict, had substantial evidence before him to support the conclusion that Steele had been promised a share in the founders stock, equal to that of Ash and Jamieson, to be acquired by a joint venture to be formed for such purpose, including Steele as a joint venturer; that the joint venture was formed by Thornton, Ash and Jamieson under the name of the defendant Electro Dynamics Stock Trust Fund; that the joint venture acquired, controlled and disposed of the founders stock in accordance with the decisions of the joint venturers; that with the knowledge and consent of Ash and Jamieson, Thornton spoke and acted on behalf of the joint venture with respect to the acquisition and disposition of the founders stock in Litton Industries held by the joint venture; that Thornton in his dealings with Steele with respect to the founders stock was acting within the scope of the joint venture and in furtherance of its agreed purposes and that the joint venturers retained benefits by Thornton's conduct. In these circumstances the acts of Thornton were binding upon the joint venture and its individual members. (3 Witkin, Summary of Cal. Law (1960) Partnership, 12, p. 2275; Grant v. Weatherholt, 123 Cal.App.2d 34, 45 [266 P.2d 185]; Deicher v. Corkery, 205 Cal.App.2d 654, 662 [23 Cal.Rptr. 270]; Pearson v. Norton, 230 Cal.App.2d 1, 15 [40 Cal.Rptr. 634]; Orlopp v. Willardson Co., 232 Cal.App.2d 750, 754 [43 Cal.Rptr. 125].)
[4] Plaintiff, who has represented in his brief that he has made an exhaustive analysis of the evidence relating to the points raised on appeal, claims that the facts are sufficient to sustain the court's order denying the motion for judgment notwithstanding the verdict as to the defendant Litton Industries, Inc. The evidence brought to our attention by the plaintiff in this connection shows that Thornton was the president and chairman of the board of directors of the defendant corporation. The record shows that Thornton's response to an interrogatory was received in evidence as against Thornton and Litton Industries, Inc. The questions asked and the answers thereto are as follows: "Q. At any time between October, 1953, and January, 1959, did you discuss with Steele his salary at Litton Industries? If your answer is in the affirmative, did you, in such conversations, act as agent for *168 Litton Industries and/or Electro Dynamics Stock Trust Fund, and/or Messrs. Ash and Jamieson? A. My recollection is that at various times during the period to which you refer in your question, Mr. Steele came to me and complained that the salary which he was receiving was not high enough. In any such discussions, Mr. Steele could have been talking to me only in my capacity as President of Litton Industries, Inc., formerly known as Electro Dynamics Corporation, and in his capacity as an employee of a division of such corporation. Accordingly, I suppose that I was acting as the agent for Litton Industries, Inc., formerly known as Electro Dynamics Corporation."plaintiff urges that Thornton, as the president of Litton Industries, Inc., had the authority to, and did hire and fire employees of the corporation, and had the authority to fix their compensation; that Thornton promised Steele, as part of his compensation as an employee of the corporation, that Steele would receive a percentage of the founders stock; that this promise on the part of Thornton, acting as the agent of the corporation, was binding upon it, and that for the breach of such promise the corporation is liable in damages to plaintiff. He urges further that Litton Industries, Inc., as an employer of Thornton, was directly liable to plaintiff because upon learning of Thornton's fraud it affirmed it and made it its own by its failure to discharge Thornton, thereby ratifying his tortious act.
Plaintiff does not point out any evidence in the record to show that in September 1953, when he claims that there was an oral agreement whereby he was to share in the founders stock of the new corporation to be formed for the purpose of acquiring the business of Charles Vincent Litton, that Thornton at that time was the president of Litton Industries, Inc., or its predecessor. If Thornton, at the time of such claimed oral agreement was not the president of Litton Industries, Inc., and Steele was aware of this, as the evidence discloses, Steele could not rely upon Thornton's promise of a share in founders stock as being binding upon a corporation which he knew that Thornton did not represent. No evidence has been pointed out in the record that Litton Industries, Inc. was ever aware of such a promise on the part of Thornton. The joint venture between Thornton, Ash and Jamieson was an entity separate and apart from Litton Industries, Inc. It is not shown that the corporation had the right to control the acts and conduct of the joint venture with respect to the acquisition or disposition of any stock held by it. The stock held by *169 the joint venture in which Steele claimed an interest was founders stock in Litton Industries, Inc., as distinguished from treasury stock and the disposition of such stock by the joint venture required no act on the part of, or consent thereto by the corporation. The principal object of the joint venture appears to be to obtain for the joint venturers a capital gain on the founders stock held by it resulting from the combined efforts of the joint venturers rather than a plan to issue such stock as part salary to such members in connection with their employment with defendant corporation. It is not shown that the board of directors of the defendant corporation ever adopted or sanctioned the plan of the joint venture with respect to the acquisition and disposition of the founders stock as a means of increasing the compensation of its officers and employees.
Plaintiff, in his brief, states that the 1953 promise was made to him by Thornton because, as he claims, he was one of the original four founders of the company, and that the promise made in 1958 by Thornton was, in effect, a promise to keep a prior promise. This points up the fact that plaintiff knew at all times that the promise made by Thornton to him to give him a share of the founders stock, acquired and held by the joint venture, was not one made by Thornton as an officer and agent of the defendant Litton Industries, Inc., but was made by Thornton as a member of the joint venture. It is the general rule that knowledge of an officer of a corporation within the scope of his duties is imputable to the corporation. (Sanders v. Magill, 9 Cal.2d 145, 153 [70 P.2d 159].) The business of the joint venture with respect to the founders stock acquired and held by it, according to the record, was conducted secretly. It was conducted independently of the business of the defendant Litton Industries, Inc. No evidence has been pointed out in the voluminous record to show that it was part of Thornton's duty as an officer of the defendant corporation to manage, or participate in the management of the joint venture for the benefit of the corporation. Furthermore, the agreement of the joint venture to give Steele a share in the founders stock of the corporation to be formed was in the nature of an agreement between promoters of the new enterprise whereby each would profit from his efforts in making the new enterprise a success. The promise was not that of the corporation which was not in existence at the time such promise was made. [5] The fact that some of the promoters subsequently became officers and employees of the new corporation *170 does not make the corporation liable upon the promoters' contract unless it adopted it after its incorporation. Receipt of benefits from the performance of the contract without actual knowledge of its terms is insufficient. Knowledge of a director directly interested in the contract is insufficient to charge the corporation. Knowledge of a promoter, who subsequently becomes a director, cannot be imputed to the corporation. (Abbott v. Limited Mut. Comp. Ins. Co., 30 Cal.App.2d 157, 162-163 [85 P.2d 961]; see also, Commercial Lbr. Co. v. Ukiah Lbr. Mills, 94 Cal.App.2d 215 [210 P.2d 276].)
We have assumed that plaintiff has pointed out all of the evidence contained in the record favorable to his contention that the defendant Litton Industries, Inc. should be held responsible for the promises of Thornton, and under rule 15(a), California Rules of Court, we have not undertaken an independent examination of the record. (See Du Zeff's Hollywood, Inc. v. Wald, 235 Cal.App.2d 678, 682- 683 [45 Cal.Rptr. 584].) From the evidence to which our attention has been directed, we are of the opinion that it is insufficient to sustain a judgment in favor of plaintiff and against the defendant Litton Industries, Inc.
The defendants on this appeal do not press their contention as to the application of the statute of frauds and the parol evidence rule.
With respect to the question of the propriety and effect of the plaintiff's dismissal of the equitable counts it has been noted that the trial judge never signed and filed findings of fact and conclusions of law. In the absence thereof there was no decision with respect to those counts. (Baldwin-Lima-Hamilton Corp. v. Superior Court, 208 Cal.App.2d 803, 825 [25 Cal.Rptr. 798]; see 3 Witkin, Cal. Procedure (1954) Appeal, 77, p. 2236.) Moreover, the situation arising from the steps taken by the plaintiff to remove the equitable counts from the case was not one which was in existence prior to the submission of the case to the jury and hence was not a ground which would have required the granting of a motion for a directed verdict had such a motion been made. (See Code Civ. Proc., 629.) [fn. 4] Furthermore, if plaintiff's dismissal of the *171 equity counts had occurred prior to the time when the case was submitted to the jury and if we assume arguendo that such dismissal constituted a dismissal with prejudice of the entire primary right upon which the suit was based, the granting of a directed verdict would still have been improper for the court would no longer have had jurisdiction to proceed in the matter. (Long v. Superior Court, 14 Cal.App.2d 753, 755 [58 P.2d 952]; Cubalevic v. Superior Court, 240 Cal.App.2d 557, 562 [49 Cal.Rptr. 698]; Eddings v. White, 229 Cal.App.2d 579, 583-585 [40 Cal.Rptr. 453]; Nickola v. Superior Court, 111 Cal.App.2d 620, 622 [245 P.2d 20]; Provencher v. City of Los Angeles, 10 Cal.App.2d 730, 733 [52 P.2d 983].)
[6] The defendants urge that the dismissal with prejudice of the equity counts under the provisions of subdivision 5 of section 581 of the Code of Civil Procedure [fn. 5] constitutes a dismissal of his entire cause of action.
Upon the technical aspects of the record we could decline to pass upon the effect of the dismissal by plaintiff of the equity counts because, as heretofore pointed out, the question is raised on appeal from a non-existent judgment. Such question, however, was presented to the trial court and it has been raised and extensively argued in the briefs. Furthermore, the question will undoubtedly again be raised on a retrial of the case. It could be raised by a writ proceeding prior to trial, or could be raised on appeal after another lengthy and costly trial. We believe the point is raised here in such manner and under such circumstances as to warrant our decision on it for the benefit of the trial court on the retrial of the case. (See Steelduct Co. v. Henger-Seltzer Co., 26 Cal.2d 634, 643 [160 P.2d 804]; Westerfeld v. New York Life Ins. Co., 157 Cal. 339, 345 [107 P. 699]; Porter v. Muller, 112 Cal. 355, 366 [44 P. 729]; Gwinn v. Hamilton, 75 Cal. 265, 266 [17 P. 212]; People's Lumber Co. v. Gillard, 5 Cal.App. 435, 438 [90 P. *172 556]; Chamberlain Co. v. Allis-Chalmers Mfg. Co., 74 Cal.App.2d 941, 942-943 [170 P.2d 85].)
The cause of action is the obligation sought to be enforced. The same cause of action may be stated variously in separate counts. In California the phrase "cause of action" is often used indiscriminately to mean what it says and to mean counts which state differently the same cause of action. (Eichler Homes of San Mateo, Inc. v. Superior Court, 55 Cal.2d 845 [13 Cal.Rptr. 194, 361 P.2d 914].) It is proper practice for a plaintiff to ask for inconsistent remedies in a single complaint. (Tanforan v. Tanforan, 173 Cal. 270, 273 [159 P. 709]; Lambert v. Southern Counties Gas Co., 52 Cal.2d 347, 352 [340 P.2d 608]; Leoni v. Delany, 83 Cal.App.2d 303, 309 [188 P.2d 765, 189 P.2d 517].) A plaintiff who sets forth alternative remedies in separate counts in his complaint may abandon or dismiss one count without prejudice to his right to proceed on the other. (Mackenzie v. Voelker, 123 Cal.App.2d 538, 540-541 [266 P.2d 867]; Stevens v. Marco, 147 Cal.App.2d 357, 383 [305 P.2d 669].) The plaintiff here dismissed the counts wherein he sought equitable relief. These were alternative remedies. The dismissal of these alternative remedies did not constitute a dismissal of plaintiff's entire cause of action. We believe the intent of the Legislature in amending section 581 of the Code of Civil Procedure in 1947 was to prevent a plaintiff from dismissing as of right without prejudice after actual commencement of the trial. (2 Witkin, Cal. Procedure (1954) Proceedings Without Trial, 22, p. 1658.) It is our further opinion that the Legislature in using the words "action" and "cause of action" in section 581 of the Code of Civil Procedure intended such words to include a count or counts in a single pleading wherein alternative remedies are sought. Such a construction does not compel a defendant to contest in a trial the same cause of action twice. For if the trial proceeds to judgment on one alternative remedy such judgment would constitute a bar to the trial in a subsequent action on the obligation which plaintiff seeks to enforce, but on a different theory. (1 Cal.Jur.2d, Actions, 75, p. 699, et seq.)
The appeal from the judgment is dismissed. The order denying the motion for judgment notwithstanding the verdict as to the defendant Litton Industries, Inc. is set aside. The court is directed to enter a judgment notwithstanding the verdict in favor of such defendant and against the plaintiff. The order denying the motion for judgment notwithstanding *173 the verdict is affirmed as to the defendants Charles B. Thornton, Roy L. Ash, Hugh W. Jamieson and Electro Dynamics Stock Trust Fund, a partnership.
Cobey, Acting P. J., and Moss, J., concurred.
NOTES
[fn. *] *. Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
[fn. 1] 1. In the appellants' opening brief it is stated (p. 41): "It is apparent that it reached this figure by subtracting from $5,208,000 (market value of 62,000 shares of Litton stock on December 8, 1958) the $25,115 which respondent said he had to pay."
[fn. 2] 2. Proposed findings of fact and conclusions of law with respect to the equitable causes of action, prepared by counsel for the defendants, had been lodged with the court on April 22, 1965, but the trial judge had not acted thereon.
[fn. 3] 3. The plaintiff asserts in his brief that because of the defendants' appeal from the judgment they are estopped from contending that the judgment was vacated by the order granting a new trial. That position is untenable. (See Telefilm, Inc. v. Superior Court, 33 Cal.2d 289, 295-96 [201 P.2d 811].)
[fn. 4] 4. The first paragraph of section 629 of the Code of Civil Procedure is as follows: "The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days' notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made."
[fn. 5] 5. Subdivision 5 of section 581 of the Code of Civil Procedure is as follows: "The provisions of subdivision 1, of this section, shall not prohibit a party from dismissing with prejudice, either by written request to the clerk or oral or written request to the judge, as the case may be, any cause of action at any time before decision rendered by the court.provided, however, that no such dismissal with prejudice shall have the effect of dismissing a counterclaim or cross-complaint filed in said action or of depriving the defendant of affirmative relief sought by his answer therein. Dismissals without prejudice may be had in either of the manners provided for in subdivision 1 of this section, after actual commencement of the trial, either by consent of all of the parties to the trial or by order of court on showing of just cause therefor." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2210659/ | 260 Cal.App.2d 906 (1968)
In re LEWIS JONES on Habeas Corpus.
Crim. No. 13886.
California Court of Appeals. Second Dist., Div. Five.
Apr. 10, 1968.
Richard A. Ibanez, under appointment by the Court of Appeal, for Petitioner.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for Respondent.
KAUS, P. J.
In October 1956, petitioner Lewis Jones shot and killed his daughter. He was charged with murder in Fresno County. Incapable of cooperating in the preparation of a defense, he was committed to the Atascadero State Hospital, which is located in San Luis Obispo County. (Pen. Code, 1370.) In July 1958, he was found sufficiently sane to stand trial. On September 16, 1958, he was found not guilty by reason of insanity. The court further found that Jones had not fully recovered his sanity and, pursuant to the provisions of section 1026 of the Penal Code, directed that he be reconfined at Atascadero "for the period prescribed by law and until he is legally discharged."
Section 1026a of the Penal Code provides that a person committed under section 1026 may apply for release in the superior court in the county in which he is confined or in the county from which he was committed. No hearing on such an application is allowed until he shall have been confined for "not less than 90 days." If such a hearing results in a finding "adverse to releasing such person" he may not file a further application until one year has elapsed from the last hearing.
On October 8, 1962, Jones appeared in the San Luis Obispo Superior Court having filed a petition for a writ of habeas corpus. An assistant district attorney appeared for the superintendent of the Atascadero State Hospital. Jones was not represented. After testimony by Doctor Sterling W. Morgan and other oral and documentary evidence was introduced, Jones was found not to be restored to sanity. He was remanded to the care and custody of the Atascadero State Hospital for further care and treatment.
An identical proceeding took place in San Luis Obispo on June 1, 1964, except that the medical witness was a Doctor Leiva. Again Jones was not represented by counsel and again the court found that he had not been restored to sanity and was in need of further care and treatment.
Neither of the two petitions on the bases of which the 1962 and 1964 hearings were held is included in the record before us. *908
Having twice failed in San Luis Obispo, the county of his confinement, Jones then turned to Fresno, the county from which he had been committed. [fn. 1] There, on March 22, 1965, he filed a petition for a writ of habeas corpus in which he alleged, inter alia: "I do not feel that I am insane or mentally ill any longer, and I feel that I should be released. I also feel that I am being kept and held here at Atascadero State Hospital, when there is no longer any necessity or legal valid reason. ... I hope to obtain my release. I also want a sanity hearing." That petition was denied without a hearing on the ground that defendant was detained in San Luis Obispo County and not in Fresno County.
On July 11, 1966, Jones filed another petition for a writ of habeas corpus in Fresno, again alleging that he had regained his sanity and was "no longer insane or psychotic in any way." In response to that petition the Fresno court ordered Jones brought to Fresno, appointed counsel for him and ordered that he be examined by a psychiatrist. The examination was had, a report was made and a copy furnished to defendant and his counsel. On September 26, 1966, both then asked leave of court to withdraw the pending petition and it was dismissed "without prejudice."
It appears that the judge who presided at the September 26, 1966, hearing thereafter, on January 12, 1967, received a request for another appearance before the Fresno court. He then communicated with Jones' attorney and with the Atascadero State Hospital. He was advised by the hospital that petitioner's "mental condition was still such that he was dangerous." The judge then passed this information on to Jones' attorney and the matter was apparently dropped there. The record before us does not show just what Jones alleged in his January 12, 1967, petition nor whether it was formally denied.
The next petition was filed in Fresno on June 27, 1967. By a minute order dated the same day it was summarily denied. However, on June 29, 1967, the following letter was addressed to Jones by the Fresno County Clerk:
"Dear Sir:"
"Your Petition for Writ of Habeas Corpus was denied on June 27, 1967. Enclosed is a copy of Minute Order designating *909 same. You should file your Petition in the office of the County Clerk in San Luis Obispo as you are residing in that County. I am also enclosing your application for Writ so that you may file it in said County."
Although one would gather from the last paragraph of his letter that the petition was physically returned to Jones, the Fresno docket sheet contains the following notation: "June 28, 1967. Filed in error. Forward to San Luis Obispo County." Nothing was ever received by the San Luis Obispo County Clerk.
Finally, on July 18, 1967, Jones filed a petition for a writ of habeas corpus in the Court of Appeal for the fifth district in which he alleged that his confinement at Atascadero was illegal since he was "now sane" and was being denied the "rights of having a sanity hearing." He also complains that he had been denied counsel "in a lower court," that he could not get a fair hearing in San Luis Obispo County and that he had been recommitted to Atascadero "on or about October 6, 1966" without having had a completed sanity hearing.
This last petition was then transferred from the fifth district to this, the second district. (Cal. Const., art. VI, 12.) On Jones' request we then appointed his present counsel and issued an order to show cause.
[1] Before us, Jones does not claim to be entitled to an immediate discharge. He only contends that he is entitled to a valid hearing on the question of his present sanity, suggests that we appoint a referee to take evidence on that issue and argues that the applicable standard for continued confinement--none is set forth in section 1026a--should be a "reasonable possibility that the applicant would be a menace to others and to himself if released from confinement."
The Attorney General views the petition for habeas corpus as an attempt to review the 1966 Fresno proceedings--in which view, we believe, he is mistaken. He argues correctly that ordinarily original applications for hearings under section 1026a should be addressed to the trial courts designated in that section. Finally he submits, in the most elaborate portion of his return, that applications for release under section 1026a are insufficient if they contain nothing but conclusory allegations of present sanity.petitioners should be compelled to spell out "the details of [their] circumstances" before they are entitled to a hearing either in this court or below. It is then assumed that Jones has never done this. *910
The 1966 Fresno Proceedings.
In September 1966 Jones voluntarily withdrew his application in Fresno and it was then "dismissed without prejudice." The only meaning of that order which makes any sense is that the dismissal was not to be considered an adverse finding on the issue of present sanity. Such a finding, of course, would have forced Jones to wait one year before making a further application. It is clear from section 1026a itself that findings adverse to the applicant result only in a very limited "prejudice" namely the one year waiting period. It would have been quite unnecessary for the court to make its order "without prejudice" if all it intended to accomplish was to allow Jones to file another application a year hence. The statute does that.
We therefore, as Jones' counsel argues, must consider the 1966 Fresno proceedings as a nullity. Whatever the petition pending before us attacks, those proceedings are not it.
Right to Counsel.
Twice, in 1962 and 1964, the San Luis Obispo Superior Court, on what it must have thought to be adequate allegations, granted Jones a hearing on his then sanity. He was not represented by counsel nor does the record affirmatively show a waiver. (Carnley v. Cochran, 369 U.S. 506, 514 [8 L.Ed.2d 70, 76, 82 S.Ct. 884]; In re Woods, 64 Cal.2d 3, 7 [48 Cal. Rptr. 689, 409 P.2d 913]; In re Johnson, 62 Cal.2d 325, 334 [42 Cal.Rptr. 228, 398 P.2d 420].) If the Constitution of the United States entitled him to counsel, the proceedings were invalid. (People v. Coffey, 67 Cal.2d 204, 218-219 [60 Cal.Rptr. 457, 430 P.2d 15].)
Specht v. Patterson, 386 U.S. 605, 608-609 [18 L.Ed.2d 326, 329, 87 S.Ct. 1209], involved a proceeding under the Colorado Sex Offenders Act, under which law Specht was given an indeterminate term of confinement. The court had acted on the basis of a psychiatric report given to it before sentencing. "But there was no hearing in the normal sense, no right of confrontation and so on." Noting that "[t]he punishment under the ... Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm. ..." the court held as follows: "Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. ..." (Ibid., p. 610 [18 L.Ed.2d at p. 330]. (Italics added.) *911
Although Specht was decided well after Jones' second San Luis Obispo hearing, we have no reason to believe that it is less retroactive than Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]. (Pickelsimer v. Wainwright, 375 U.S. 2 [11 L.Ed.2d 41, 84 S.Ct. 80]; In re Woods, 64 Cal.2d 3, 5-6 [48 Cal.Rptr. 689, 409 P.2d 913].) The result of the court's finding that Jones had not been restored to sanity and was in need of further care and treatment was an indeterminate sentence in the same sense as the commitment suffered by Specht. [fn. 2] He therefore has never had a constitutionally valid hearing on his 1962 and 1964 applications for release, nor does the record demonstrate that at any time thereafter either of the two superior courts involved made a finding that his sanity had not been restored. [fn. 3] His confinement without such a hearing is illegal.
The Standard for Release.
[2] In People v. Mallory, 254 Cal.App.2d 151 [61 Cal.Rptr. 825], the court rejected the M'Naughton test as being the one appropriate when the question of restoration of sanity is under consideration.
Mallory, however, does not state precisely what the appropriate standard is. Research by Jones' present counsel has discovered that our statutes actually furnish the standard, if rather obliquely. Section 6761 of the Welfare and Institutions *912 Code [fn. 4] provides, under certain conditions, for parole of persons committed under section 1026 who would have been eligible for probation, when the superintendent is of the opinion "that the person has improved to such an extent that he is no longer a menace to the health and safety of others. ..." We believe that the same test is appropriate for the court in hearings under section 1026a.
Sufficiency of Allegations.
[3a] We have mentioned that the petitions on the basis of which Jones was given hearings in 1962 and 1964 are not part of the record before us. Nevertheless, it may safely be assumed that the hearings which resulted in findings that Jones' sanity had not been restored were held in response to petitions in which the contrary was alleged.
The Attorney General submits that this is not enough. He argues that persons confined under section 1026 must allege the grounds which entitled them to release with particularity. Yet he never even suggests how a person, particularly a layman, can allege the "fact" of his restoration to sanity with any more particularity than by saying just that.
The problem is, after all, not what the defendant must prove, but merely what he must allege in order to get a chance to do so. [fn. 5]
In Stewart v. Overholser, 186 F.2d 339, 340 [87 App.D.C. 402], the petitioner had alleged that he " '[was] of sound mind as he knows right from wrong.' " The court held that the allegation was adequate, that the addition of the words "as he knows right from wrong" did not convert his allegation into "something less than one of soundness of mind," *913 although there may be some type of insanity accompanied with an ability to distinguish right from wrong. "Skill and perfection in petitioner's method of alleging sanity is [sic] not required." It was held that the district court had erred in denying a hearing on the question of sanity.
The Attorney General points out that Atascadero State Hospital is located in a small county, that the "1026" population at Atascadero is slightly below two hundred inmates and that a rule that a plenary hearing must be had on the mere allegations of restoration to sanity would unduly burden available facilities. "To accord each such inmate an absolute right to a hearing every year based only on the mere assertion of sanity would severely tax the time and capacity of the superior court in that county, even though the inmates could file them also in the committing county. Hearings may necessitate the appointment of counsel and possibly of independent psychiatrists, adding extra strain."
[4] The confinement of persons committed under section 1026 is not punishment. [3b] We have no doubt that under the present administration of the hospital they are given hearings on the initiative of the superintendent as soon as he and his staff feel that they have been restored to sanity. (Pen. Code, 1026.) Indeed the very fact that this undoubtedly occurs makes it very doubtful that it will be necessary to hold two hundred adversary hearings per year. [fn. 6] In addition there may be inmates wise enough not to seek release. The temptation to ask for a hearing just to get a trip to San Luis Obispo can be removed by holding hearings on hospital premises. If such hearings as must be held cause an undue strain on the facilities of the local superior court, the Chief Justice, as Chairman of the Judicial Council, has ample power to send help. (Cal. Const., art. VI, 6.)
We believe that none of the inconveniences which may follow from our holding are insurmountable. They are mere nuisances compared to the possibility that a friendless person, who in fact is entitled to his freedom, does not even get a hearing because he cannot find the artful words with which to ask for it.
Finally it is urged that annual hearings may adversely affect the therapeutic relationship between psychiatrist and patient. That may be true, but the Legislature has decreed *914 that patients who believe that they have been restored to sanity are entitled to an annual review.
Disposition.
Although this court has the power to order a reference, as Jones urges that we should, such a procedure is far more cumbersome than a hearing in the superior court. Section 69109 of the Government Code gives us the power to issue writs of habeas corpus and to make them returnable before any superior court in this district. We think that this is the right thing to do in this case.
Naturally, the inquiry at the hearing below will be whether petitioner is sane now, not whether he had--temporarily or permanently--recovered his sanity in 1962 or 1964, at the time of the earlier abortive hearings.
The petition for a writ of habeas corpus is granted. The writ is made returnable before the Superior Court for the County of San Luis Obispo, at such time and place as that court may direct.
Hufstedler, J., and Stephens, J., concurred.
NOTES
[fn. 1] 1. On June 4, 1963, Jones had filed a petition for a writ of habeas corpus in Fresno which was denied the same day without a hearing and "without prejudice to filing Writ of Habeas Corpus in any other court, or to apply for release under the provisions of 1026a of the Penal Code."
[fn. 2] 2. If it is suggested that the denial of an application for release does not result in an indeterminate sentence because the applicant can try again in a year, it is legitimate to ask whether he will be entitled to counsel at the hearing which will result from the future application. If the answer is "yes"--as it must be for the suggestion to have any merit--the point is self-defeating. If the answer is "no," its lack of merit is only more obvious. Jones, of course, was unrepresented at both the 1962 and 1964 hearings.
[fn. 3] 3. It should be pointed out that under the statutory scheme, an inmate's first application for release results in the first hearing at which the inquiry focuses on his present sanity. At the trial of the insanity plea as a defense to the criminal charge, the defendant's present sanity is not in issue as such. To the extent that it may be circumstantially relevant to the issue of his sanity at the time of the commission of the offense, the realities of the situation at the trial hardly induce a defendant to try to establish present sanity. Yet section 1026 of the Penal Code allows the trial court to commit a defendant to a state hospital for a minimum of 90 days without any further hearing on his present condition. Although the constitutionality of this procedure was upheld in In re Slayback, 209 Cal. 480, 485-489 [288 P. 769], we do not believe that the Supreme Court assumed that at the hearing which follows the minimum period of confinement the defendant would not be afforded his full constitutional rights. (Cf. Bolton v. Harris, 395 F.2d 642, decided February 16, 1968.)
[fn. 4] 4. The section was repealed by Stats. 1967, ch. 1667, which becomes operative on the sixty-first day after the adjournment of the 1968 Regular Session. After that date the substance of the provisions of section 6761 will be found in section 7375 of the same code.
[fn. 5] 5. In In re Slayback, 209 Cal. 480, 489 [288 P. 769], one of the very few cases interpreting 1026a, it was said: "However, as we have seen, the petitioner alleges that she has fully recovered her sanity, and that at the date of said commitment she was and now is sane. She, therefore, contends that, notwithstanding the regularity and validity of her original commitment, she is now entitled to be restored to her liberty, and that any further detention of her under said commitment is illegal and without warrant of law. The allegation of the petitioner that she has recovered her sanity is denied by the respondent. Nevertheless, the petitioner insists that she is at least entitled to a hearing upon the issue of her present sanity and that upon proof thereof this court is in duty bound to discharge her from her present imprisonment. Undoubtedly the petitioner is correct in her contention unless such a hearing is legally withheld from her by the terms of section 1026a of the Penal Code enacted in 1927. ..." (Italics added.)
[fn. 6] 6. We assume that hearings initiated by the director are less adversary and consume less time than those which are requested by inmates and resisted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070752/ | NUMBER 13-14-00202-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
PAUL MICHAEL LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 370th District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion Per Curiam
Appellant, Paul Michael Lopez, attempts to appeal from an order granting a writ
issued in trial court cause number CR-892-12-G in the 370th District Court of Hidalgo
County, Texas. We dismiss the appeal for want of jurisdiction.
On June 3, 2013, appellant was convicted of possession of child pornography.
Appellant filed an application for writ of habeas corpus under article 11.072 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West Supp.
2014). On January 29, 2014, the trial court issued an order granting appellant’s request
for habeas corpus relief. Appellant filed a notice of appeal on March 13, 2014.
On April 2, 2014, the Clerk of this Court notified appellant that it appeared that the
appeal was not timely perfected and that the appeal would be dismissed if the defect was
not corrected within ten days from the date of receipt of the Court’s directive. Appellant
has not filed a response to the Court’s notice.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the day sentence is imposed or suspended
in open court, or after the day the trial court enters an appealable order, unless a motion
for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). Where a timely motion for new
trial has been filed, notice of appeal shall be filed within ninety days after the sentence is
imposed or suspended in open court. TEX. R. APP. P. 26.2(a)(2). The time within which
to file the notice may be enlarged if, within fifteen days after the deadline for filing the
notice, the party files the notice of appeal and a motion complying with Rule 10.5(b) of
the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 26.3.
Appellant’s notice of appeal was due to have been filed within thirty days after the
trial court entered an appealable order on January 29, 2014. See TEX. R. APP. P.
26.2(a)(1). Appellant did not file his appeal until March 13, 2014.
This Court's appellate jurisdiction in a criminal case is invoked by a timely filed
notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent
a timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address
the merits of the appeal in a criminal case and can take no action other than to dismiss
2
the appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998). Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ
of habeas corpus returnable to the Texas Court of Criminal Appeals; however, the
availability of that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM.
PROC. ANN. art. 11.07, § 3(a) (West, Westlaw through 2013 3d C.S.); see also Ex parte
Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of May, 2015.
3 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1644197/ | 4 So. 3d 589 (2007)
ANTHONY DEWAYNE RETIC
v.
STATE.
No. CR-06-0023.
Court of Criminal Appeals of Alabama.
January 26, 2007.
Decision of the alabama court of criminal appeals without opinion. Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265259/ | 657 F. Supp. 2d 123 (2009)
Charline SMITH-THOMPSON, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 09-0046 (RMU).
United States District Court, District of Columbia.
September 28, 2009.
*126 Brian J. Markovitz, Jay P. Holland, Joseph, Greenwald & Laake, P.A., Greenbelt, MD, for Plaintiff.
Eric Sebastian Glover, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.
MEMORANDUM OPINION
RICARDO M. URBINA, District Judge.
DENYING THE DEFENDANT'S MOTION TO DISMISS; DENYING WITHOUT PREJUDICE THE DEFENDANT'S MOTION IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
I. INTRODUCTION
This matter is before the court on the defendant's motion to dismiss or, in the alternative, for summary judgment. The plaintiff, a female correctional officer stationed at the District of Columbia Jail, alleges that the defendant permitted her to be sexually harassed by a fellow officer and retaliated against her in violation of *127 Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the D.C. Human Rights Act ("DCHRA"), D.C.Code §§ 2-1401.01 et seq. The plaintiff has also asserted a claim for intentional infliction of emotional distress ("IIED"). The defendant moves to dismiss or, in the alternative, for summary judgment, arguing that the plaintiff's Title VII sexual harassment claims are time-barred, that the plaintiff has failed to state a claim for retaliation under Title VII, that the plaintiff failed to exhaust her administrative remedies with respect to certain of her retaliation claims and that the doctrine of res judicata bars the plaintiff's DCHRA and IIED claims.
For the reasons discussed below, the court denies the defendant's motion to dismiss the Title VII sexual harassment claims as time-barred and denies without prejudice the defendant's motion in the alternative for summary judgment. In addition, the court denies the defendant's motion to dismiss the plaintiff's retaliation claims for failure to state a claim and failure to exhaust her administrative remedies. The court, however, grants as conceded the defendant's motion to dismiss the DCHRA and IIED claims.
II. BACKGROUND
A. Factual Allegations
The plaintiff is a female correctional officer who has been stationed at the District of Columbia Jail since 1989. 2d Am. Compl. ¶ 6. After being laid off due to a reduction in force in 2002, she was rehired in September 2004. Id. ¶ 7. Upon returning to duty, the plaintiff began working alongside correctional officer Pablo Rodriguez. Both officers were supervised by Sergeant Luis Stephens. Id. ¶¶ 8-10.
The plaintiff alleges that "soon after" she began working with Rodriguez in 2004, he began to sexually harass her. Id. ¶ 11. As alleged in the complaint, Rodriguez repeatedly directed comments of a sexual nature toward the plaintiff. Id. ¶¶ 18-20. On one occasion, Rodriguez allegedly grabbed the plaintiff and "tried to push her head into his `private parts.'" Id. ¶ 11. On yet another occasion, Rodriguez allegedly called the plaintiff asking her about oral sex while broadcasting the call over the intercom. Id.
The plaintiff alleges that she complained about Rodriguez's behavior to Sergeant Stephens, who admonished Rodriguez to discontinue his behavior and persuaded the plaintiff to give Rodriguez another chance.[1]Id. ¶¶ 12-13. Rodriguez, however, persisted in his harassing conduct. Id. ¶ 13. In June 2005, the plaintiff brought her complaints to the attention of Lieutenant Gloria Profit, who allegedly informed the plaintiff that there was nothing she could do about Rodriguez's behavior. Id. ¶ 15. The plaintiff then sent an e-mail to Deputy Warden Larry Corbett regarding Rodriguez's behavior. Id. ¶ 16. Corbett allegedly informed the plaintiff that all employees alleging sexual harassment were required to proceed through the Office of the Special Inspector, which had been established by court order to address the D.C. Department of Correction's ("DOC") failure to enforce its policy against sexual harassment and retaliation. See Neal v. Dir., D.C. Dep't of Corr., 1995 WL 517244, at *2-3 (D.D.C. Aug. 9, 1995) (Lamberth, J.). The plaintiff alleges that Corbett stated *128 that the Office of the Special Inspector was her sole avenue of filing a complaint regarding Rodriguez's behavior. Pl.'s Aff. ¶ 4. The plaintiff alleges that Profit and other supervisors also advised her that she was required to proceed through the Special Inspector. 2d Am. Compl. ¶ 17. The plaintiff filed a complaint with the Special Inspector on June 19, 2005, which commenced an investigation into the plaintiff's allegations. Pl.'s Aff. ¶¶ 3-4; Pl.'s Opp'n at 6.
The plaintiff alleges that throughout this period, Rodriguez continued to sexually harass her. 2d Am. Compl. ¶¶ 18-20. She alleges that nearly every time she spoke to Rodriguez, he would respond with sexual innuendo, and that this behavior occurred every weekend the plaintiff worked with Rodriguez. Id. ¶ 20. The plaintiff alleges that Rodriguez's behavior caused her to be nervous and forced her to leave her work station for prolonged periods to avoid being around Rodriguez, for which she was reprimanded. Id. ¶¶ 21-22. The plaintiff alleges that she endured this behavior from Rodriguez from September 2004 to June 2005. Pl.'s Aff. ¶ 2.
On March 20, 2006, the Special Inspector concluded its investigation and generated a report recommending that "a probable cause finding be made with regard to the claim of hostile work environment." Pl.'s Mot., Ex. 2 at 22.[2] After receiving the Special Inspector's report, the plaintiff contacted the District of Columbia Office of Human Rights ("DCOHR") in late March or early April 2006 to determine what steps she needed to take to enforce her rights. Pl.'s Aff. ¶ 7. The plaintiff was allegedly told by a DCOHR employee that because she had already received a favorable finding from the Office of the Special Inspector, she was not permitted to file a complaint with the DCOHR. Id.
On May 21, 2006, the plaintiff alleges that she was forced to stop working because she was experiencing headaches, chest pain and depression. 2d Am. Compl. ¶ 39. In July 2006, a DOC psychiatrist diagnosed the plaintiff with Major Depressive Disorder. Id. ¶ 34. The psychiatrist recommended that the plaintiff be separated from working with Rodriguez "because her symptoms [were] related to Mr. Rodriguez's harassing conduct in the workplace." Id. ¶ 35. The psychiatrist further recommended that the plaintiff take a three- to four-week absence for treatment and then be returned to light duty. Id. The plaintiff, however, was placed on absent without leave ("AWOL") status, meaning that she was not paid during her absence. Id. ¶¶ 40-41. The plaintiff alleges that she was ordered to report back to work on November 27, 2006 and that upon her return, she was harassed and retaliated against by her co-workers and supervisors. Id. ¶ 42. Within two hours of reporting to work, a supervisor instructed her to go home, which she did. Id.
B. Procedural History
On August 11, 2006, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Def.'s Mot., Ex. 4. The administrative charge indicates that she simultaneously cross-filed the charge with the DCOHR. Id. On August 17, 2006, the plaintiff filed a complaint in the Superior Court for the District of Columbia against Rodriguez and the District of Columbia ("the District"), alleging sexual harassment and retaliation under Title VII and the DCHRA, IIED against the District and *129 assault and battery against Rodriguez. See Def.'s Mot., Ex. 1. On November 14, 2006, the District removed the case to federal court. Id. at 1. The plaintiff subsequently withdrew her Title VII claims for failure to exhaust her administrative remedies, and the case was remanded to the Superior Court, at which time the plaintiff filed an amended complaint. Id. at 1-2 & Ex. 2.
The plaintiff received a right to sue letter from the EEOC on November 17, 2008. 2d Am. Compl. ¶ 31. On December 2, 2008, the plaintiff moved in the Superior Court for leave to file a second amended complaint incorporating her Title VII claims. Def.'s Mot. at 2. The Superior Court granted the plaintiff's motion. Id., Ex. 3. At the same time, however, the Superior Court granted the District's motion to dismiss the DCHRA and IIED claims asserted against it. Id. at 2 & Ex. 3.
On January 8, 2009, the District again removed this case to federal court based on federal question jurisdiction. See Notice of Removal. The defendant filed the instant motion on January 15, 2009. See generally Def.'s Mot. On May 15, 2009, the plaintiff filed a notice of dismissal of her claims against Rodriguez, leaving the District as the sole remaining defendant in this case. See Line of Dismissal as to Defendant Rodriguez Only.
III. ANALYSIS
A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48, 78 S. Ct. 99 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted).
Yet, the plaintiff must allege "any set of facts consistent with the allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, 78 S. Ct. 99, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [] would entitle him to relief"); Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n. 4 (D.C.Cir. 2008) (affirming that "a complaint needs some information about the circumstances giving rise to the claims"). While these facts must "possess enough heft to `sho[w] that the pleader is entitled to relief,'" a complaint "does not need detailed factual allegations." Twombly, 550 U.S. at 555, 557, 127 S. Ct. 1955. In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations including mixed questions of law and fact as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. *130 United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.Cir.2004); Browning, 292 F.3d at 242.
A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint. Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.Cir.1998). Because statute of limitations issues often depend on contested questions of fact, however, the court should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint. Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir. 1996). Rather, the court should grant a motion to dismiss only if the complaint on its face is conclusively time-barred. Id.; Doe v. Dep't of Justice, 753 F.2d 1092, 1115 (D.C.Cir.1985). If "no reasonable person could disagree on the date" on which the cause of action accrued, the court may dismiss a claim on statute of limitations grounds. Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473, 1475 (D.D.C.1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463 n. 11 (D.C.Cir.1989)).
B. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S. Ct. 2548; Anderson, 477 U.S. at 248, 106 S. Ct. 2505.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S. Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S. Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.
The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations ... with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to *131 accept anything less "would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene, 164 F.3d at 675.
C. The Plaintiff's Sexual Harassment Claim
Title VII requires an employee to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment practice, or within 300 days of the alleged unlawful employment practice if the person aggrieved has initially instituted a proceeding with a state or local agency. 42 U.S.C. § 2000e-5(e)(1); see also Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) (observing that "Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge"). The purpose of the requirement is to allow "the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts." Wilson v. Pena, 79 F.3d 154, 165 (D.C.Cir.1996). When an employee asserts a claim based on a discrete act of discrimination, he or she must file a charge within either 180 or 300 days of the act or lose the ability recover for it. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). Claims based on discrete acts of discrimination that fall outside the statutory period are time-barred. Id.
A hostile work environment claim, on the other hand, "is composed of a series of separate acts that collectively constitute one `unlawful employment practice.'" Id. at 117, 122 S. Ct. 2061 (quoting 42 U.S.C. § 2000e-5(e)(1)). Unlike a claim premised on discrete acts of discrimination, a hostile work environment claim cannot be reduced to a single action on a single day because "[its] very nature involves repeated conduct" and it is based "on the cumulative effect of individual acts." Id. at 115, 122 S. Ct. 2061. For such a claim,
[i]t does not matter ... that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
Id.
The defendant contends that the plaintiff's sexual harassment claims are time-barred because she failed to file her administrative complaint within 300 days of the alleged sexual harassment. Def.'s Mot. at 5. Although the complaint fails to provide specific dates for any particular incident of sexual harassment by Rodriguez, the plaintiff has indicated that the sexual harassment she complains of continued until June 2005. Id. at 5-6. Because the plaintiff did not file her administrative complaint until August 11, 2006 more than 300 days later the defendant asserts that the plaintiff's sexual harassment claims are time-barred.[3]Id. at 6. In addition, the defendant claims that equitable considerations do not excuse the plaintiffs behavior because she has failed to demonstrate any bad faith on the part of her *132 supervisors or due diligence in pursuing her claim. Pl.'s Reply at 4-5.
The plaintiff responds that the limitations period should be calculated from June 19, 2005, the date she filed a complaint with the Office of the Special Inspector, and that the defendant should be equitably estopped from asserting the statute of limitations defense because the plaintiff's supervisors directed her to file her complaint with the Office of the Special Inspector only. Pl.'s Opp'n at 6-7. She notes that filing the complaint with the Special Inspector satisfied the underlying rationale of Title VII's administrative exhaustion requirement, as it put the DOC on notice of her allegations and gave it an opportunity to address the situation internally. Id. at 9-10. In addition, the plaintiff asserts that dismissal would be inequitable under these circumstances, given the confusion that arose from the existence of the Office of Special Inspector confusion that led an official within the DCOHR to rebuff the plaintiff's efforts to file an administrative complaint with that office in late March or early April 2006. Id. at 8.
The administrative filing requirement "essentially functions as a statute of limitations for Title VII actions." Carter v. Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 (D.C.Cir.2007). Like a statute of limitations, the requirement "is not a jurisdictional prerequisite to filing suit in federal court, but a requirement that ... is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982); see also Brown v. Marsh, 777 F.2d 8, 14 (D.C.Cir. 1985). The court's power to equitably excuse noncompliance with administrative filing deadlines, however, "will be exercised only in extraordinary and carefully circumscribed instances." Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988). The plaintiff will not be afforded extra time to file without exercising due diligence, and the plaintiff's excuse must be more than a "garden variety claim of excusable neglect." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). The plaintiff bears the burden of pleading and proving equitable reasons for noncompliance with administrative filing requirements. Bayer v. U.S. Dep't of Treasury, 956 F.2d 330, 332 (D.C.Cir. 1992).
Equitable estoppel "prevents a defendant from asserting untimeliness where the defendant has taken active steps to prevent the plaintiff from litigating in time." Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1367 (D.C.Cir.1998) (emphasis omitted); see also Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997) (observing that courts "have excused parties who were misled about the running of a limitations period, whether by an adversary's actions, by a government official's advice upon which they reasonably relied, or by an inaccurate or ineffective notice from a government agency required to provide notice of the limitations period"). The defendant must engage in affirmative misconduct for equitable estoppel to apply. Moore v. Chertoff, 424 F. Supp. 2d 145, 150 (D.D.C. 2006) (citing Currier, 159 F.3d at 1367); accord Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C.Cir.1998) (providing that "[t]olling on estoppel grounds is proper ... where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction") (quotations omitted); Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1182 (7th Cir.2001) (observing that "to make a claim for equitable estoppel, the plaintiff must present evidence that the defendant [took] active steps to prevent the plaintiff from suing in time"). Such misconduct *133 typically involves "acts of wrongdoing such as hiding evidence or promising not to rely on a statute of limitations defense." Hedrich, 274 F.3d at 1182.
An employer does not engage in affirmative misconduct, justifying equitable estoppel, merely by touting its internal procedures as the appropriate forum for resolving discrimination complaints. Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752-53 (D.C.Cir.1998). The plaintiff in Washington filed an internal complaint with his employer's Office of Civil Rights ("OCR"), claiming age and race discrimination and retaliation. Id. at 751. The OCR rendered a decision rejecting the plaintiff's allegations, stating that he could file an administrative complaint within 180 days of the last instance of discrimination. Id. Yet the 180-day period had already lapsed during the period of the OCR's investigation. Id. at 753. In opposition to the employer's motion for summary judgment, the plaintiff argued that the defendant should have been equitably estopped from asserting that the plaintiff's claims were time-barred because the employer had touted its internal procedures as the appropriate forum for resolving his discrimination complaint, lulling him into presuming that he had met the requirements for pursuing his claim. Id. at 752. The Circuit rejected the argument, holding that the plaintiff had failed to demonstrate any affirmative misconduct on the part of the employer. Id. at 753.
Like the plaintiff in Washington, the plaintiff in this case relied upon her employer's direction to use its internal grievance procedures to adjudicate her discrimination claims.[4] Pl.'s Opp'n at 6-7. Washington makes clear that such an instruction does not, standing alone, constitute affirmative misconduct justifying equitable estoppel. Washington, 160 F.3d at 752-53.
Yet the plaintiff's allegations diverge from the facts of Washington in several key respects. First, the plaintiff in this case states in her affidavit that Deputy Warden Corbett told her not only that she should file her complaint with the Office of the Special Inspector, but also that she "was not allowed to file a complaint anywhere else or to file a lawsuit prior to filing with the Office of the Special Inspector." Pl.'s Aff. ¶ 3. Other supervisors allegedly gave the plaintiff similar instructions. 2d Am. Compl. ¶ 17. In addition, unlike the plaintiff in Washington, the plaintiff in this case maintains that she contacted the DCOHR shortly after receiving the results of the Special Inspector's report, Pl.'s Aff. ¶¶ 6-7, arguably demonstrating the type of diligence absent in that case, see Washington, 160 F.3d at 753 (noting that the plaintiff failed to demonstrate diligence by waiting five months after receiving the results of the OCR letter to file an administrative complaint); see also Bowden, 106 F.3d at 438 (observing that "courts have excused parties, particularly those acting pro se, who make diligent but technically defective efforts to act within a limitations period") (citing Irwin, 498 U.S. at 96, 111 S. Ct. 453). Furthermore, whereas the plaintiff in Washington was represented by counsel during at least part of the filing period, it is unclear whether the plaintiff in this case was represented by counsel prior to the time she filed her administrative complaint. See generally Pl.'s Opp'n. Finally, the plaintiff's reliance on Corbett's instruction may well have been objectively reasonable, *134 in light of the fact that the Office of the Special Inspector was established by court order and operated with a degree of autonomy from the DOC. See Neal, 1995 WL 517244, at *3 (stating that "[i]n order to achieve the independence and impartiality required to restore confidence in the protections against sexual harassment and retaliation at the Department, the [Special Inspector] shall operate independently of all Departmental staff, including the Director"). Under these unique circumstances, the court cannot conclude that the plaintiff's complaint on its face is conclusively time-barred. See Firestone, 76 F.3d at 1209. Thus, the court denies the defendant's motion to dismiss the complaint as time-barred.
As for the defendant's motion in the alternative for summary judgment, the court notes that when the instant motion was fully submitted, the parties had yet to develop the factual underpinning of this case through discovery. Indeed, the plaintiff's equitable estoppel argument is, at present, supported by nothing more than the spare allegations set forth in her complaint and affidavit. See Pl.'s Opp'n at 6-10; see also Pl.'s Aff. ¶¶ 3-4. These allegations are silent as to several matters that could be relevant to the resolution of the timeliness issue, such as the dates on which the incidents of sexual harassment occurred, the specific nature of the comments made by Corbett, Profit and other supervisors regarding how the plaintiff was required to proceed with her claim and whether the plaintiff was represented by counsel during any portion of this process. See Pl.'s Opp'n at 6-10; Pl.'s Aff. ¶¶ 3-4. As previously noted, it is the plaintiff's burden to prove that equitable considerations justify her noncompliance with the filing requirement. See Bayer, 956 F.2d at 332. Accordingly, the court denies the defendant's motion for summary judgment based on the plaintiff's failure to file a timely administrative charge, without prejudice to consideration of a renewed motion on these grounds after the parties have developed the factual record through discovery.
D. The Plaintiff's Retaliation Claims
The plaintiff alleges that the defendant retaliated against her by refusing to separate her from Rodriguez after she complained about his harassing behavior, 2d Am. Compl. ¶ 36, permitting her co-workers to direct negative comments towards her regarding her involvement in protected activity, id. ¶ 37, refusing to put her on light duty as recommended by her physician, id., placing her on unpaid leave after her medical condition forced her to take a leave of absence in late May 2006, id. ¶ 38, and ordering her to leave work and go home on November 27, 2006, id. ¶ 42.
The defendant contends that the plaintiff has failed to plead a prima facie case of retaliation insofar as she has failed to plead any facts to support her claim that she was placed on unpaid leave for retaliatory purposes. Def.'s Mot. at 6-7. In addition, the defendant argues that the plaintiff failed to exhaust her administrative remedies with respect to her claim that she was instructed to leave work on November 27, 2006.[5]Id. at 7.
*135 The plaintiff maintains that she has stated a valid prima facie case of retaliation. Pl.'s Opp'n at 10-11. Furthermore, the plaintiff asserts that because her claim based on the events of November 27, 2006 is "like or reasonably related to" the allegations contained in her administrative charge, she adequately exhausted her administrative remedies. Id. at 11-12. In the alternative, the plaintiff argues that she need not exhaust her administrative remedies with respect to her retaliation claims. Id. at 12. The court addresses each of these issues in turn.
1. The Plaintiff Has Pleaded a Legally Cognizable Retaliation Claim Based on Her Placement on AWOL Status
To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a statutorily protected activity, (2) a reasonable employee would have found the challenged action materially adverse and (3) there existed a causal connection between the protected activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). The plaintiff's burden is not great: she "merely needs to establish facts adequate to permit an inference of retaliatory motive." Forman v. Small, 271 F.3d 285, 299 (D.C.Cir. 2001).
In the retaliation context, the term "adverse action" "encompass[es] a broader sweep of actions than those in a pure discrimination claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 n. 4 (D.C.Cir.2008). Thus, "[r]etaliation claims are `not limited to discriminatory actions that affect the terms and conditions of employment' and may extend to harms that are not workplace-related or employment-related so long as `a reasonable employee would have found the challenged action materially adverse.'" Id. (quoting Burlington N., 548 U.S. at 64, 68, 126 S. Ct. 2405).
The plaintiff may establish a causal connection "by showing that the employer had knowledge of the employee's protected activity, and that the [retaliatory] personnel action took place shortly after that activity." Cones v. Shalala, 199 F.3d 512, 521 (D.C.Cir.2000) (quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir. 1985)); accord Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (noting that the temporal connection must be "very close": a three- or four-month period between an adverse action and protected activity is insufficient to show a causal connection, and a twenty-month period suggests "no causality at all").
Plainly, the plaintiff engaged in protected activity when she lodged a complaint with the Office of the Special Inspector on June 19, 2005, assisted in the Special Inspector's investigation and contacted the DCOHR to pursue her claim. See 42 U.S.C. § 2000e-3(a) (prohibiting adverse employment actions based on the fact that an employee "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]"). It is equally clear that placement on unpaid leave status constitutes a materially adverse employment action. See Taylor v. Solis, 571 F.3d 1313, 1321 (D.C.Cir.2009) (holding that an employee suffered a materially adverse employment action when she was temporarily placed on AWOL status despite the fact that she was ultimately given back-pay for the period of her absence).
*136 The sole issue before the court, therefore, is whether the plaintiff has adequately pleaded the existence of a causal connection between her involvement in protected activity and her placement on leave without pay. The record before the court does not make clear precisely when the plaintiff was placed on unpaid leave, when her participation in the Special Inspector's investigation concluded or whether officials within the DOC were aware that she had contacted the DCOHR. See generally 2d Am. Compl. Yet, drawing all reasonable inferences in favor of the plaintiff, these allegations suggest that the defendant placed the plaintiff on unpaid leave shortly after, and because, she engaged in protected activity. At this early stage of the proceedings, such allegations are sufficient to survive a motion to dismiss. See Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C.Cir. 2006) (observing that "in order to survive a motion to dismiss, all [the] complaint has to say ... is `the [defendant] retaliated against me because I engaged in protected activity'") (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000)); Vance v. Chao, 496 F. Supp. 2d 182, 187 (D.D.C.2007) (holding that "[a]t this early stage of the proceedings, plaintiff can meet her prima facie burden of causation simply by alleging that the adverse actions were caused by her protected activity"); see also Swierkiewicz, 534 U.S. at 511-14, 122 S. Ct. 992 (holding that the plaintiff need not plead all elements of his prima facie case in the complaint); Beckham v. Nat'l R.R. Passenger Corp., 590 F. Supp. 2d 82, 89 (D.D.C.2008) (denying the defendant's motion to dismiss based on lack of temporal proximity because the plaintiff had satisfied her burden at that early stage of the proceedings). Thus, the plaintiff's failure to specify in her complaint the precise dates of her involvement in protected activity does not warrant dismissal of her complaint at this juncture. Accordingly, the court denies the defendant's motion to dismiss the plaintiff's retaliation claim.
2. The Plaintiff's Retaliation Claim Should Not Be Dismissed for Failure to Exhaust Administrative Remedies
Prior to the Supreme Court's decision in Morgan in 2002, courts generally held that a plaintiff was not required to separately exhaust her administrative remedies for retaliation claims arising after the filing of an administrative complaint. See McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 482-83 (7th Cir.1996); Gupta v. East Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981); Sussman v. Tanoue, 39 F. Supp. 2d 13, 21 (D.D.C.1999); Webb v. District of Columbia, 864 F. Supp. 175, 184 (D.D.C. 1994). These decisions implemented the "continuing violation doctrine," under which an administrative charge was construed to encompass all claims "like or reasonably related to" the allegations contained in the charge. See Park, 71 F.3d at 907.
In Morgan, however, the Supreme Court rejected the "continuing violation doctrine," holding that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." 536 U.S. at 113, 122 S. Ct. 2061. Morgan thus made clear that claims based on discriminatory or retaliatory acts that occurred more than 180 or 300 days before the filing of the administrative charge are time-barred, regardless of whether they are "like or reasonably related to" allegations contained in the administrative charge. Id.
Circuit courts, as well as judges within this district, have since reached differing conclusions on whether Morgan requires a plaintiff to separately exhaust her administrative *137 remedies for retaliation claims arising after the filing of the administrative complaint. See Hernandez v. Gutierrez, 656 F. Supp. 2d 101, 104-05 (D.D.C.2009) (noting the disagreement among the courts). Although this Circuit has yet to address this precise issue, see Weber v. Battista, 494 F.3d 179, 183-84 (D.C.Cir.2007), the Eighth Circuit has held that Morgan does not require a plaintiff to separately exhaust her administrative remedies "where the subsequent retaliatory acts were of a like kind to the retaliatory acts alleged in the EEOC charge, which were specified to be of an ongoing and continuing nature," Wedow v. City of Kansas City, Mo., 442 F.3d 661, 673 (8th Cir.2006) (stating that Morgan required the court to "narrow[] its view of what subsequent acts are sufficiently related to be within the scope of the properly filed administrative charge" but did not require the court to "wholly abandon[] the theory that reasonably related subsequent acts may be considered exhausted"). The Tenth Circuit, on the other hand, has interpreted Morgan broadly to require exhaustion of remedies for related "incidents occurring after the filing of [the] plaintiff's EEO complaint." Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir.2003) (concluding that "Morgan abrogates the continuing violation doctrine as previously applied to claims of discriminatory or retaliatory actions by employers, and replaces it with a framework where each discrete incident of discriminatory treatment constitutes its own `unlawful employment practice' for which administrative remedies must be exhausted").
This court is persuaded by the Eighth Circuit's reasoning. See Hazel v. Washington Metro. Area Transit Auth., 2006 WL 3623693, at *8 (D.D.C. Dec. 4, 2006) (Roberts, J.) (adopting the Eighth Circuit's reasoning observing that "[i]t would be no surprise if the D.C. Circuit adopted the analysis of Wedow"). So long as the allegations underlying the plaintiff's retaliation claims "were of a like kind to the retaliatory acts alleged in the EEOC charge, which were specified to be of an ongoing and continuing nature," Wedow, 442 F.3d at 673, her failure to separately exhaust her administrative remedies will not serve as a bar to suit.
Although the plaintiff's administrative charge appears to allege retaliatory acts of an ongoing and continuing nature, see Def.'s Mot., Ex. 4,[6] the incompleteness of the factual record prevents the court from determining at this juncture whether the allegations in question were "of a like kind" to the retaliatory acts alleged in the EEOC charge. The complaint states only that on November 27, 2006, the plaintiff returned to work, at which time "she was further harassed and retaliated against by co-workers and supervisors" and that "[w]ithin two (2) hours of reporting to work on that date, the Major on duty instructed her to leave the premises and go home." 2d Am. Compl. ¶ 42. The plaintiff's opposition offers no additional detail regarding the nature of the retaliation and harassment she suffered, nor does it describe why she was instructed to leave work. See Pl.'s Opp'n at 11-12.
Given the number of potentially pertinent factual issues that remain unresolved, the court cannot conclude on the basis of the pleadings alone that the plaintiff failed *138 to exhaust her administrative remedies. See Payne v. Salazar, 628 F. Supp. 2d 42, 52 n. 9 (D.D.C.2009) (concluding that a "motion to dismiss for exhaustion is more appropriately treated as a motion to dismiss for failure to state a claim under Rule 12(b)(6)"). The court, therefore, denies the defendant's motion to dismiss this claim for failure to exhaust administrative remedies.
IV. CONCLUSION
For the foregoing reasons, the court denies the defendant's motion to dismiss the plaintiff's Title VII sexual harassment claims as time-barred, denies without prejudice the defendant's motion for summary judgment on the same issue and denies the defendant's motion to dismiss the plaintiff's Title VII retaliation claims. The court, however, grants the defendant's motion to dismiss the DCHRA and IIED claims. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 28th day of September, 2009.
NOTES
[1] The investigative report created by the Department of Correction's Office of the Special Inspector states that the plaintiff's "allegations of conduct in 2005 were resolved in mediation and voluntarily dismissed by both parties." Pl.'s Opp'n, Ex. 2 at 3. The parties do not address the effect, if any, of the prior voluntary dismissal on the instant action. See generally Def.'s Mot.; Pl.'s Opp'n; Def.'s Reply.
[2] The parties do not specify what remedial action, if any, the Special Inspector recommended.
[3] The defendant briefly states that the plaintiff has failed to allege that she suffered an adverse employment action. Def.'s Reply at 5. Because this argument was raised for the first time in the defendant's reply memorandum, it will not be considered by the court. See Cronin v. Fed. Aviation Admin., 73 F.3d 1126, 1134 (D.C.Cir. 1996) (noting that "[i]t is well established that [the] court will not entertain arguments raised for the first time in a party's reply brief").
[4] The Office of the Special Inspector was established to operate "within the [DOC]" to supplement its flawed internal grievance procedures for sexual harassment and retaliation claims. Neal v. Dir., D.C. Dep't of Corr., 1995 WL 517244, at *2-3 (D.D.C. Aug. 9, 1995).
[5] The defendant argues that the plaintiff's retaliation claims are time-barred. Def.'s Reply at 5-7. The court need not address these arguments, as they were raised for the first time in the defendant's reply memorandum. See Cronin, 73 F.3d at 1134. At any rate, the plaintiff's administrative charge alleges that the defendant continued to retaliate against her even as of the time she filed with the EEOC in August 2006. See Def.'s Mot., Ex. 4. Accordingly, the court cannot conclude from the face of the pleadings that the plaintiff's retaliation claims are conclusively time-barred. See Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996).
[6] The administrative charge states that "the DOC continues to retaliate against [her] by insisting that she continue to work at the DC Jail with Mr. Rodriguez" and that "when she works at the DC Jail many of her co-workers tell her that she did the wrong thing by filing a complaint against Mr. Rodriguez." Def.'s Mot., Ex. 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726237/ | 970 So. 2d 832 (2007)
MALKIN
v.
VENABLE
No. 2D06-3398.
District Court of Appeal of Florida, Second District.
December 21, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265314/ | 185 Cal.App.4th 291 (2010)
110 Cal. Rptr. 3d 270
TWC STORAGE, LLC, Plaintiff and Appellant,
v.
STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Respondents.
No. H033228.
Court of Appeals of California, Sixth District.
June 3, 2010.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*292 Silicon Valley Law Group and Jeffrey S. Lawson for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Hackenbracht, Assistant Attorney General, John Davidson and Anita E. Ruud, Deputy Attorneys General, for Defendants and Respondents.
OPINION
MIHARA, J.
Appellant TWC Storage, LLC (TWC), challenges the superior court's denial of its petition for a writ of administrative mandate. TWC's *293 petition challenged the imposition of a $25,000 fine on it by respondent Regional Water Quality Control Board for the San Francisco Bay Region (the Regional Board). The fine was based on a chemical spill on TWC's property that infiltrated the groundwater. TWC claims that the Regional Board abused its discretion in imposing the fine because neither the law nor the facts supported the imposition of the fine. TWC also contends that it was deprived of due process and a fair hearing at the administrative hearing before the Regional Board. In the published portion of our opinion, we conclude that the Regional Board properly applied the relevant statutes. In the remainder of our opinion, we reject TWC's challenges to the conduct of the administrative hearing.
I. Factual Background
In 2004, TWC purchased real property (the property) which had been used in the 1970's and 1980's for semiconductor manufacturing. In 1987, the 3.28-acre property was identified as a "Superfund" site due to the presence of volatile organic chemicals (VOC's) in the soil and groundwater. The property has been unoccupied since 1991. A two-story building on the property was next to a play yard at a daycare center for children which was operated on an adjacent property.
TWC wished to demolish the two-story building on the property. Two transformers were attached to that building. The transformers were not hidden. TWC hired a general contractor, Qualogy Construction, Inc. (QCI), to handle the demolition. TWC told QCI that all known hazardous materials had been removed from the site.[1] QCI hired a demolition subcontractor, Campanella Corporation (Campanella), to demolish the building.
On the morning of Friday, July 15, 2005, a Campanella equipment operator was demolishing the "utility area" where the transformers were attached to the building on the property. The transformers were located approximately 30 feet from the daycare center's play yard. It is a "standard and common practice to check for and drain liquids out of transformers prior to demolition or dismantling." The transformers had not been checked or drained. Using an excavator, the equipment operator removed and damaged one of the transformers. A liquid began spilling out of the damaged transformer.
The exterior of the damaged transformer was clearly labeled "PERCLENE FILLED" in large stenciled letters. Perclene is the "commercial name" for perchloroethylene (PCE). PCE is a "highly toxic contaminant." The equipment operator placed the damaged transformer on top of a "soils pile" to *294 drain. He subsequently moved the damaged transformer to another area to "fully drain out/dry out." QCI was informed of the spill within an hour or two of its occurrence. QCI immediately monitored the area, detected high levels of VOC's, and instructed its crews to vacate the area.
TWC was notified of the spill at 11:05 a.m. on July 15, about an hour or two after the spill. By that afternoon, TWC was aware that at least 50 gallons of PCE had spilled from the damaged transformer, and TWC had been advised to notify "the US EPA" (the United States Environmental Protection Agency) immediately. TWC did not immediately notify any governmental agency. TWC did contact an environmental cleanup company, and some cleanup commenced two days later on July 17.
Sunnyvale Public Safety Officer Ron Staricha visited the property on the morning of July 19 as part of his routine monitoring of the demolition to ensure that it was in compliance with the demolition permit's dust control measure. Staricha noticed drums on the property labeled as "hazardous waste" that had not been present five days earlier when Staricha had last visited the property. QCI's president, who was present on the property, informed Staricha of the PCE spill. When Staricha asked why the City of Sunnyvale had not been notified of the spill, QCI's president asserted that TWC had notified "OES [Office of Emergency Services] and USEPA" on July 18. Staricha subsequently discovered that TWC's telephone notifications were made after Staricha arrived on the property on July 19. No governmental agency had been notified of the spill prior to Staricha's July 19 visit to the property.[2]
TWC thereafter engaged in investigation and cleanup efforts to address the effects of the spill. Nevertheless, an October 2005 sampling of the groundwater at the property detected a very high level of PCE close to the location of the transformer spill. The PCE level detected at that time was 12,000 micrograms per liter. In contrast, the PCE level had not exceeded 24 micrograms per liter over the previous decade.[3]
II. Procedural Background
In January 2006, the Regional Board issued a complaint for administrative civil liability against TWC for violations of Water Code sections 13264, 13265, subdivision (c), and 13350, subdivision (b)(1). The complaint alleged that TWC had violated the Water Code by discharging PCE "into waters of *295 the State" beginning on July 15, 2005, without filing a report of waste discharge (ROWD). The complaint sought imposition of a $40,000 fine on TWC.
At the hearing before the Regional Board, TWC presented a witness who testified that it was "virtually unheard of" for a transformer to contain PCE. This witness also asserted that "Perclene" is "not readily recognized by anybody" as referring to PCE, and he claimed that the "PERCLENE FILLED" marking on the transformer was "faint."
In May 2006, the Regional Board issued an order imposing a $25,000 fine on TWC. The Regional Board found that TWC had violated both Water Code section 13264 and Water Code section 13350, subdivision (b)(1). The Regional Board made factual findings that TWC had damaged the transformer, initiating a PCE spill that infiltrated a groundwater aquifer, and left the transformer leaking PCE for four days before notifying OES (Office of Emergency Services) of the spill. The Regional Board's order incorporated the staff report by reference.
In June 2006, TWC petitioned the State Water Resources Control Board (the State Board) for review of the Regional Board's order. The State Board dismissed this petition in December 2006. In January 2007, TWC filed a petition for a writ of administrative mandate in the superior court. TWC argued to the superior court that the Regional Board's decision was an abuse of discretion because the Regional Board had (1) improperly applied the relevant statutes, (2) violated TWC's right to due process at the hearing, and (3) failed to provide TWC with a fair hearing because the "legal instructions" to the board were erroneous. TWC's petition was tried to the court. In June 2008, the court issued a judgment denying the petition.[4] TWC filed a timely notice of appeal.
III. Discussion
TWC raises three categories of issues on appeal. It claims that (1) the Regional Board improperly applied the relevant statutes, (2) the conduct of the hearing before the Regional Board violated due process, and (3) the "instructions" given to the Regional Board by its legal adviser were prejudicially erroneous.
The first question is what standard of review we apply to the superior court's decision. Judicial review of the Regional Board's decision by the *296 superior court "extend[ed] to the questions whether the respondent ha[d] proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).) "Where it is claimed that the findings are not supported by the evidence, 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 [superior] court determines that the findings are not supported by the weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c).) In this case, the superior court was authorized by law to exercise its independent judgment on the evidence. (Wat. Code, § 13330, subd. (d).)
On appeal, we review the superior court's decision that the Regional Board's findings are supported by the weight of the evidence under the substantial evidence standard of review. (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058 [48 Cal.Rptr.3d 563].) We exercise independent review on the question of whether the Regional Board provided TWC with a fair hearing. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1442 [282 Cal.Rptr. 819].)
A. Regional Board's Application of Statutes
The Regional Board found that TWC had violated both Water Code section 13264 and Water Code section 13350, subdivision (b). TWC claims that the record lacks substantial evidence to support the Regional Board's findings.
1. Water Code Section 13350, Subdivision (b) Violation
TWC argues that there is no evidence that TWC "caused or permitted" the PCE discharge into the groundwater in violation of Water Code section 13350, subdivision (b). "Any person who, without regard to intent or negligence, causes or permits any hazardous substance to be discharged in or on any of the waters of the state, except in accordance with waste discharge requirements or other provisions of this division, shall be strictly liable civilly . . . ."[5] (Wat. Code, § 13350, subd. (b)(1), italics added.)
TWC relies heavily on City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28 [13 Cal.Rptr.3d 865] (Modesto) to support *297 its claim that Water Code section 13350 does not apply to a party who "take[s] no active role in the activities leading up to the discharge." Modesto does not support this proposition.
The issue in Modesto was whether the defendants, none of which were landowners, were "responsible parties" under Water Code section 13304, subdivision (a). (Modesto, supra, 119 Cal.App.4th at p. 35.) Water Code section 13304, subdivision (a) provides that a person is responsible for cleanup and abatement if the person "causes or permits" a discharge that "creates, or threatens to create, a condition of pollution or nuisance." (Wat. Code, § 13304, subd. (a); see Modesto, at p. 35.) In Modesto, the First District Court of Appeal's interpretation of this statutory language was guided by its prior decision in Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605 [200 Cal.Rptr. 575] (Leslie Salt).
In Leslie Salt, the court construed a statute which allowed a cease and desist order to be issued to any person who had "`undertaken'" to "`place[] fill'" without the requisite permit. (Leslie Salt, supra, 153 Cal.App.3d at p. 612.) In Leslie Salt, the plaintiff, which was the landowner, focused on the word "`undertaken'" and contended that the statute did not apply to anyone "other than the one who actually placed the fill." (Leslie Salt, at p. 612.) The First District held in Leslie Salt that the statute applied to "landowners regardless whether they actually placed the fill or know its origin." (Leslie Salt, at p. 617.) "[L]iability and the duty to take affirmative action flow not from the landowner's active responsibility for a condition of his land that causes widespread harm to others or his knowledge of or intent to cause such harm but rather, and quite simply, from his very possession and control of the land in question." (Leslie Salt, at p. 622.)
In Modesto, the First District's analysis focused on whether the defendants could be held liable for creation of a "nuisance" within the meaning of the statutory language. (Modesto, supra, 119 Cal.App.4th at p. 37.) The First District rejected the defendants' contention that "only those who are physically engaged in a discharge or have the ability to control waste disposal activities" can be held liable for the nuisance that discharge creates. (Modesto, at p. 41.) The First District held that those of the nonlandowner defendants "who took affirmative steps directed toward the improper discharge . . . may be liable under that statute, but those who merely placed solvents in the stream of commerce without warning adequately of the dangers of improper disposal" could not be held liable under the statute. (Modesto, at p. 43.)
We can find nothing in Modesto that supports TWC's claim that a landowner cannot be held liable for a discharge unless it took an "active role" in the creation of the discharge. Modesto itself did not involve the issue of a *298 landowner's liability, and Leslie Salt, upon which Modesto was based, explicitly held that a landowner could be held liable based solely on the landowner's possession and control of the land.
(1) Here, there was substantial evidence that TWC "cause[d] or permit[ted]" the discharge to occur by engaging contractors to perform the demolition activity that resulted in the discharge. Although TWC contends that it could not be liable because it did not "actively participate in the demolition activities" or "fail[] to take reasonable care," Water Code section 13350, subdivision (b) plainly provides that any person who "causes or permits" a discharge is "strictly liable" "without regard to intent or negligence."
TWC claims that it may not be held liable under Water Code section 13350 because the discharge occurred as a result of its independent contractors' negligent acts, and it suggests that a property owner cannot be held liable for the acts of an independent contractor. The question here is not whether TWC may be held liable in tort for acts of an independent contractor, but whether the specific statutes under which the Regional Board imposed administrative fines extended to TWC. TWC cites no statutory or case authority to support its claim that a property owner who causes or permits a discharge may not be fined if the discharge was actually perpetrated by an independent contractor. TWC asserts: "The law in California is that fines are not imputed to persons who contract with independent contractors." However, it provides no support for that proposition. TWC's reliance on McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785 [285 P.2d 902] (McDonald) is inapt. The issue in McDonald was whether the employee of an independent contractor could recover tort damages from the hirer of the independent contractor. (McDonald, at p. 787.) McDonald did not concern the issue before us, whether a fine may be imposed on a landowner who "causes or permits" a prohibited discharge. Since, under Water Code section 13350, TWC was strictly liable for the discharge, it cannot be absolved simply because its contractors were negligent or also could be held liable for the discharge.
2. Water Code Section 13264, Subdivision (a) Violation
TWC also attacks the Regional Board's finding that TWC violated Water Code section 13264. "No person shall initiate any new discharge of waste . . . prior to the filing of the report required by Section 13260 . . . ."[6] (Wat. Code, § 13264, subd. (a), italics added.)
*299 (2) TWC seems to suggest that it could not be found to have violated Water Code section 13264 because it was not negligent. Lack of negligence is a defense to a Water Code section 13264 violation only "if the discharger is not negligent and immediately files a report of the discharge with the board." (Wat. Code, § 13265, subd. (c).) TWC did not immediately file a report of the discharge with the Regional Board, so it could not avail itself of this defense.
TWC argues that it could not be fined for the discharge under Water Code section 13264, subdivision (a) because it did not know that the PCE had reached the groundwater at any time during the four-day period upon which the fine was based. TWC claims that the Regional Board lacked jurisdiction over the discharge because the discharge was "not to the waters of the state." We note that the Regional Board has jurisdiction over "waters of the state," and "waters of the state" is not limited to groundwater but includes "any surface water or groundwater, including saline waters, within the boundaries of the state." (Wat. Code, § 13050, subd. (e).) In any case, TWC's contention does not raise a jurisdictional issue, but an issue about the sufficiency of the evidence. The evidence before the Regional Board and the superior court established that TWC knew that a large volume of PCE had been discharged onto its property, and the Regional Board and the superior court could have drawn a reasonable inference from this evidence that TWC was aware that the PCE would quickly infiltrate the groundwater, especially since the water table was very shallow under TWC's property.
TWC complains that the Regional Board was improperly punishing it for failing to report the discharge to the OES rather than for failing to file the report that was required prior to the discharge under Water Code section 13264. This complaint lacks substance. TWC admits that it never filed the report required by Water Code section 13264. If anything, the Regional Board treated TWC leniently by penalizing it for only the four-day period that preceded TWC's OES report.
(3) TWC asserts that it was not required to file a report because Water Code section 13264 requires a report to be filed for only a "planned discharge" rather than an "accidental" discharge. Nothing in the statutory language supports this assertion. Water Code section 13264 bars any discharge that occurs before a report is filed. (Wat. Code, § 13264, subd. (a).) While it is true that it would not be possible to report an accidental discharge in advance, the statute clearly was intended to provide a safe harbor only for those planned discharges that are reported in advance so that the Regional Board can ensure that precautions are taken. An unplanned discharge precludes precautions and falls plainly within the scope of Water Code section 13264.
*300 B., C.[*]
IV. Disposition
The judgment is affirmed.
Bamattre-Manoukian, Acting P.J., and McAdams, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III.B, and III.C.
[1] TWC did notify QCI of asbestos materials, which QCI then removed.
[2] TWC claimed that it had notified these agencies on July 18, but it could provide no verification of that claim.
[3] The maximum allowable contaminant level in California for PCE in drinking water is 5 micrograms per liter.
[4] In July 2008, TWC filed a request for a statement of decision. This request was denied as untimely.
[5] "The state board or a regional board may impose civil liability administratively pursuant to Article 2.5 (commencing with Section 13323) of Chapter 5 either on a daily basis or on a per gallon basis, but not both. [¶] (1) The civil liability on a daily basis may not exceed five thousand dollars ($5,000) for each day the violation occurs." (Wat. Code, § 13350, subd. (e).)
[6] "Civil liability may be administratively imposed by a regional board in accordance with Article 2.5 (commencing with Section 13323) of Chapter 5 for a violation of subdivision (c) in an amount which shall not exceed five thousand dollars ($5,000) for each day in which the violation occurs." (Wat. Code, § 13265, subd. (d)(1).)
[*] See footnote, ante, page 291. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2443298/ | 287 S.W.2d 15 (1956)
Carl REYNOLDS
v.
STATE of Tennessee.
Supreme Court of Tennessee.
February 3, 1956.
John W. Hilldrop, Nashville, for plaintiff in error.
Nat Tipton, Advocate Gen., Nashville, for the State.
*16 BURNETT, Justice.
Reynolds was indicted, tried and convicted for the homicide of one Thelma Smart. His conviction was for second degree murder and he was sentenced to the penitentiary for not more than 20 years. A motion for new trial was duly filed and he has perfected his appeal. Argument has been heard and we now have the matter for determination.
We have filed herein an opinion dealing with the facts and other incidental questions. We do not deem it of any general interest or information to the Bar to publish this. We do think the question on venue should be published because of first impression in this State.
Lastly it is argued that there is no proof of venue in the record. Venue, of course is a jurisdictional matter and need be proven only by the preponderance of the evidence. Norris v. State, 127 Tenn. 437, 155 S.W. 165. The State says that the only case that they can find on the question covering the facts herein is a Massachusetts case, that of Commonwealth v. Knowlton, 265 Mass. 382, 163 N.E. 251, 254. This case among other things holds that:
"Upon the question of jurisdiction there was evidence that the body of the deceased was found on the road, in Concord, within the county of Middlesex, and there was no other evidence offered as to where the homicide was committed. The finding of the body in Middlesex county was sufficient to give the court jurisdiction, and warrant the jury in concluding that the homicide was committed in that county. Commonwealth v. Costley, 118 Mass. 1, 26."
In the instant case all the proof shows that the body of deceased here was found in Wilson County. There is no proof to the contrary. We think that there must be a presumption that the crime was committed here, rebuttable in character, that the crime was committed where the body was found when there is no showing to the contrary. She was last seen alive in Wilson County. She died from a broken neck which apparently would keep her from wandering around any. Her body was found in Wilson County. All the territory between Lebanon and the location of her body lies in Wilson County and she was last seen in Lebanon. Her clothes were found in Wilson County. It seems to us that under these circumstances the jury was clearly warranted in finding that she was murdered in that County.
The judgment of the trial court must be affirmed for the reasons above set forth. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265325/ | 657 F.Supp. 1270 (1987)
UNITED STATES of America,
v.
TANG YEE-CHUN, a/k/a "Tang Lamlap," Chan Wai-King, a/k/a "Rita Chan," and Lam Cheung-Yuk, a/k/a "Tammy Lam," Defendants.
No. 87 Crim.Misc. No. 1.
United States District Court, S.D. New York.
April 23, 1987.
Rudolph W. Giuliani, U.S. Atty. for S.D. N.Y., New York City, for the U.S.; Catherine Gallo, Asst. U.S. Atty., of counsel.
Michael Kennedy, Michael Kennedy, P.C., New York City, for defendant Tang.
*1271 Jay Goldberg, New York City, for defendant Tang.
Richard Ware Levitt, New York City, for defendant Chan.
LASKER, District Judge.
The United Kingdom of Great Britain and Northern Ireland, on behalf of the Crown Colony of Hong Kong, has requested the extradition of Tang Yee-Chun and Chan Wai-King on charges of fraudulent trading and accounting practices, by which numerous investors are alleged to have been defrauded of large sums. Tang and Chan are alleged to have committed the frauds through the America and Panama Finance Company, Ltd., a Hong Kong deposit-taking company which was controlled by Tang and of which Chan was the chief accountant.
On March 5, 1987, prior to the formal extradition request, Magistrate Bernikow of this court issued warrants for the provisional arrest of Tang and Chan under Article VIII of the Treaty of Extradition between the United States and the United Kingdom, 28 U.S.T. 227, 232, T.I.A.S. 8468 (1977), which provides that "[i]n urgent cases, the person sought may ... be provisionally arrested on application through the diplomatic channel by the competent authorities of the requesting Party." On March 6, 1987, Tang and Chan were arrested. On March 10, 1987, they appeared before Magistrate Dolinger for argument on the issues of the validity of the provisional arrest and bail. Magistrate Dolinger reserved decision to afford the parties an opportunity to submit additional papers and to request an evidentiary hearing if they so desired. Tang and Chan later submitted affidavits from their attorneys but not affidavits of their own and they did not request a further hearing. On March 16, 1987, Magistrate Dolinger filed an opinion upholding the validity of the provisional arrest and denying bail. At oral argument on April 20, 1987, the parties stated that the United Kingdom formally requested the extradition of Tang and Chan on April 16, 1987. Tang and Chan now appeal from the denial of bail.[1]
In Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903), the Supreme Court held that bail should be granted in extradition cases only in "special circumstances." In this case, Tang argues that he should be granted bail on two grounds: first, because the difficulty of defending against extradition while incarcerated constitutes "special circumstances" which warrant bail under Wright, and second, because more recent Supreme Court cases have modified the Wright presumption against bail in extradition cases.
Addressing the latter argument first, the Court of Appeals for this circuit has given absolutely no indication of retreating from the Wright presumption against bail. To the contrary, as recently as last year in United States v. Leitner, 784 F.2d 159 (2d Cir.1986), the court indicated that "although some courts have noted a trend toward liberalization in bail," id. at 160, the standard to be applied in extradition cases is still the Wright "special circumstances" test. Id. at 160-61.[2]
Applying the Wright "special circumstances" inquiry in this case, it is concluded that Magistrate Dolinger's decision to deny bail to Tang should be affirmed. Tang argues that he has had difficulties in communicating with counsel and in having documents translated because he speaks an unusual Chinese dialect in which few qualified translators are fluent. These difficulties, he claims, compounded by the large number of documents and the complex legal issues in the case against him, cumulatively *1272 amount to "special circumstances" which justify granting bail.
In support of this argument, Tang cites In Re Mitchell, 171 F. 289 (S.D.N.Y.1909) (Hand, J.), a case in which Judge Learned Hand granted bail in an extradition case so that the defendant could consult with his attorney on an unrelated civil case. While noting that the Supreme Court in Wright has indicated that a court's power to grant bail in an extradition case "should be exercised only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory," 171 F. at 289, Judge Hand granted bail because
the hardship here upon the imprisoned person is so great as to make peremptory some kind of enlargement at the present time, for the purpose only of free consultation in the conduct of the civil suit upon which his whole fortune depends.
Id. at 289.
In the present case, however, it is concluded that although Tang may face some difficulty, he has not established that he will be unable to defend his extradition suit while incarcerated. From the description of his assets in the papers on this motion, Tang appears to be a wealthy man who can pay for qualified translators. At oral argument, the government also commented that he had been assisted by Cantonese-speaking translators at earlier proceedings and that he appeared to have no difficulty understanding them. It is noted that Tang did not express any difficulties in communication at the argument of the present motion, where he was assisted by a court translator. In sum, Tang has not demonstrated adequately that it is any more burdensome for him to defend his case while detained at the Metropolitan Correction Center than it is for the many other non-English speaking defendants incarcerated there. This is not a case where, as in In Re Mitchell, "the requirements of justice are absolutely peremptory" that bail be granted. 171 F. at 290.
Furthermore, Magistrate Dolinger concluded that "there is ample reason to suspect that [Tang] may flee if given the opportunity,"[3] citing as evidence Tang's flight from Hong Kong and his possession of various foreign passports. Tang's attorney, in his opposition papers, argues that Tang left Hong Kong for business reasons, and that no foreign passports were ever found by the government. However, Tang himself has never sworn to these facts in an affidavit, and Tang declined the opportunity to hold an evidentiary hearing on these matters. Moreover, even if it could be concluded that Tang presents a low risk of flight, such a finding would not be a sufficient showing of "special circumstances" in and of itself to justify bail. See Matter of Extradition of Russell, 805 F.2d 1215, 1217 (5th Cir.1986); Leitner, 784 F.2d at 161; United States v. Williams, 611 F.2d 914, 915 (1st Cir.1979). Accordingly, Tang's application for bail is denied.
Defendant Chan has failed even to articulate any special circumstances which would justify bail in her case. Moreover, the government states that the Immigration and Naturalization Service has no record of her presence in the United States, indicating that she may be an illegal alien. Accordingly, Chan's application for bail is also denied.
Magistrate Dolinger's decision to deny bail to Tang and Chan is affirmed.
It is so ordered.
NOTES
[1] Tang and Chan originally appealed Magistrate Dolinger's decision on the validity of their provisional arrests as well as the denial of bail. However, the United Kingdom's subsequent formal request for extradition has rendered moot the question of the validity of the provisional arrests.
[2] Furthermore, the trend toward liberalization of bail in extradition cases has developed in the provisional arrest context. See Leitner, 784 F.2d at 160. Here, Tang and Chan are now being held pursuant to the United Kingdom's formal extradition request, which further undercuts their appeal from the denial of bail.
[3] Exhibits to Government's Memorandum of Law in Opposition to Defendant's Motion to Vacate Provisional Arrest Warrant, Exhibit 4, Memorandum and Order of Magistrate Dolinger, p. 10 (March 16, 1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1061542/ | COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Petty and Beales
Argued at Chesapeake, Virginia
QUAVADIS V. HYMAN
MEMORANDUM OPINION * BY
v. Record No. 1275-11-1 JUDGE RANDOLPH A. BEALES
MAY 8, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Louis A. Sherman, Judge
Daymen W. X. Robinson (Law Office of Daymen W. X. Robinson,
on brief), for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Quavadis V. Hyman (appellant) was convicted by the trial court of misdemeanor
destruction of property in violation of Code § 18.2-137(B). On appeal, appellant argues that the
trial court erred in finding sufficient evidence that he broke Officer B.T. Frantz’s watch and that
he had the specific intent to break the watch. For the following reasons, we reverse and remand.
I. BACKGROUND
On June 24, 2010, Officer Frantz of the Norfolk Police Department encountered appellant
after appellant had been arrested on unrelated charges. While in the booking office, Officer
Frantz observed appellant clutching his hands near his face and then making a motion as if he
were swallowing some object. Believing appellant had swallowed contraband or other foreign or
dangerous objects, one of the officers ordered appellant to open his mouth for it to be examined.
Officer Frantz grabbed appellant’s left wrist and forearm. Two other officers assisted Officer
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Frantz, grabbing appellant’s right arm. The three officers tried to bring appellant to the ground
and to place him in handcuffs. Officer Frantz testified that appellant resisted these attempts,
“pulling and yanking trying to free himself from the grasps of the officers.” Officer Frantz also
testified that appellant “began to clutch” his arms and those of the other officers. However,
Officer Frantz testified that appellant did not attempt to strike, punch, or kick any of the officers.
Officer Frantz further testified that appellant made no statements during the incident.
The officers ultimately brought appellant to the ground and placed him in handcuffs. At
that time, Officer Frantz saw his watch, valued between $15 and $20, lying on the ground. The
band of the watch was broken. Officer Frantz did not see the watch break during the incident.
Appellant moved to strike the evidence, arguing that Code § 18.2-137(B) 1 required the
Commonwealth to prove that he had the specific intent to destroy or damage the property.
Appellant maintained that the Commonwealth had failed to meet its burden to show that he had
such intent, or even to prove that he was the person who broke the watch. The trial court denied
appellant’s motion to strike.
Appellant testified in his own defense, claiming that he did not intentionally cause
Officer Frantz’s watch to break and that he “did not know how it happened.”
Appellant renewed his motion to strike, advancing the same arguments as in his original
motion to strike. The trial court denied the motion to strike and found appellant guilty.
1
It is clear based on the charging document (the arrest warrant) that appellant was
charged under subsection (B) of the statute, which requires the Commonwealth to prove he
intentionally destroyed, damaged, defaced, or removed the officer’s property. The
Commonwealth did not allege that appellant’s actions were merely unlawful, such that trial
would have proceeded under subsection (A) of the statute.
-2-
II. ANALYSIS
When considering the sufficiency of the evidence on appeal, “a reviewing court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)
(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light
most favorable to the Commonwealth, as we must since it was the prevailing party in the trial
court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must
instead ask whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting
Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See
also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). A trial court’s
judgment will not be disturbed on appeal unless it is “plainly wrong or without evidence to
support it.” Code § 8.01-680; Preston v. Commonwealth, 281 Va. 52, 57, 704 S.E.2d 127, 129
(2011).
Code § 18.2-137(B) reads in relevant part: “If any person intentionally causes such
injury, he shall be guilty of . . . a Class 1 misdemeanor if the value of or damage to the property,
memorial or monument is less than $1,000.” (Emphasis added). The phrase “such injury” refers
to the unlawful destruction, defacing, damage or removal of such property, without the intent to
steal, any “property, real or personal, not his own” described in paragraph A of Code § 18.2-137.
See Code § 18.2-137(A).
This Court in Scott v. Commonwealth, 58 Va. App. 35, 49-50, 707 S.E.2d 17, 25 (2011),
explained that Code § 18.2-137(B) requires the heightened mens rea of specific intent:
Code § 18.2-137(B) attaches criminal liability when a person
performs a volitional act that damages the property of another and
the person specifically intends to cause damage to the property by
that act. . . . Code § 18.2-137(B) does not criminalize the mere
-3-
performance of a volitional act conducted in a criminally negligent
manner that happens to damage the property of another.
Id. (emphasis added).
Under Scott, two elements are required for conviction pursuant to Code § 18.2-137(B):
“a volitional act that damages the property of another and [that] the person specifically intends to
cause damage to the property by that act.” Id. at 49, 707 S.E.2d at 25 (emphasis in the original). 2
Here, the trial court was plainly wrong in finding that appellant had the specific intent to
break Officer Frantz’s watch because the evidence in the record on appeal does not support this
finding by the trial court. See Code § 8.01-680. Viewing the evidence in the light most
favorable to the Commonwealth, as the prevailing party below, the record shows that appellant
resisted Officer Frantz’s attempt to restrain and handcuff him by pulling and yanking, trying to
free himself from the grasps of the officers – and that appellant clutched the arms of Officer
Frantz and the other officers. However, the record is devoid of any actions or statements by
appellant before, during, or after the incident from which the trial court could have inferred
appellant’s specific intent to damage Officer Frantz’s watch. See Moody v. Commonwealth, 28
Va. App. 702, 706, 508 S.E.2d 354, 356 (1998) (“‘Intent is a state of mind which can be
evidenced only by the words or conduct of the person who is claimed to have entertained it.’”
(quoting Banovitch v. Commonwealth, 196 Va. 210, 216, 83 S.E.2d 369, 373 (1954))).
“The specific intent to commit [a crime] may be inferred from the conduct of the accused
if such intent flows naturally from the conduct proven.” Wilson v. Commonwealth, 249 Va. 95,
101, 452 S.E.2d 669, 674 (1995). However, a specific intent to break Officer Frantz’s watch
2
While in Scott, unlike here, the trial court found the defendant had acted unintentionally
(but with criminal negligence) when he struck several people and cars while driving his vehicle
(and this Court reversed the defendant’s conviction under Code § 18.2-137(B), id. at 53-54, 707
S.E.2d at 26-27), Scott remains controlling here regarding the specific intent requirement of
Code § 18.2-137(B).
-4-
does not “flow naturally” from appellant’s efforts to resist the officers and to free himself from
restraint. Here, Officer Frantz testified that appellant “did not attempt to strike, punch, or kick
any of the officers involved.” While a factfinder “may infer that a ‘person intends the natural
and probable consequences of his or her acts,’” Johnson v. Commonwealth, 53 Va. App. 79, 100,
669 S.E.2d 368, 378 (2008) (quoting Velasquez v. Commonwealth, 276 Va. 326, 330, 661
S.E.2d 454, 456 (2008)), the damage to Officer Frantz’s watch was not a natural and probable
consequence of appellant’s resistance.
Here, it is unreasonable to leap from the underlying fact proven that appellant resisted the
officers to the inference that his resistance was specifically intended to damage Officer Frantz’s
watch. If we were to conclude that this was a reasonable inference in this case, then any
altercation that resulted in any damage to any property would constitute the specific intent crime
of destruction of property under Code § 18.2-137(B). We do not find that conclusion reasonable
or consistent with the law.
However, the trial court was not plainly wrong in finding that appellant caused Officer
Frantz’s watch to break. Viewing the evidence in the light most favorable to the
Commonwealth, as the prevailing party below, a rational factfinder could infer that appellant’s
resistance to the officers’ efforts to bring him to the ground and place him in handcuffs was a
proximate cause of Officer Frantz’s watch breaking. See Brown v. Commonwealth, 278 Va.
523, 529, 685 S.E.2d 43, 46 (2009) (“A proximate cause is ‘an act or omission that, in natural
and continuous sequence unbroken by a superseding cause, produces a particular event and
without which that event would not have occurred.’” (quoting Williams v. Joynes, 278 Va. 57,
62, 677 S.E.2d 261, 264 (2009))).
Although the statement of facts is quite sparse, it indicates that appellant resisted the
officers by “pulling and yanking trying to free himself from the grasps of the officers” and
-5-
appellant “began to clutch” Officer Frantz’s arm during the struggle. After the officers
ultimately brought appellant to the ground and placed him in handcuffs, Officer Frantz observed
that his watch was lying on the ground with his watchband broken.
The rational factfinder standard used in sufficiency of the evidence appeals recognizes
that a factfinder may “draw reasonable inferences from basic facts to ultimate facts.” Haskins v.
Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d 402, 406 (2004) (citations omitted). Here, the
basic facts are that Officer Frantz’s watch was intact prior to the struggle with appellant and that
the officer’s watch was broken and lying on the ground after the struggle with appellant. From
these two basic facts, a rational factfinder could reasonably infer the ultimate fact that, without
such resistance by appellant, the damage to Officer Frantz’s watch would not have occurred. See
Brown, 278 Va. at 529, 685 S.E.2d at 46. Thus, a rational factfinder could conclude that
appellant caused Officer Frantz’s watch to break. However, we express no opinion as to whether
appellant’s conduct was culpable under Code § 18.2-137(A) 3 – which does not require the
specific intent to damage or destroy another person’s property – because this question is not
before us on appeal.
III. CONCLUSION
Therefore, although sufficient evidence supported the trial court’s finding that appellant
caused Officer Frantz’s watch to break, the trial court erred in finding appellant guilty under Code
§ 18.2-137(B), which required specific intent by appellant to break the watch. Accordingly, we
3
Under Code § 18.2-137(A), “criminal liability [attaches] ‘when property is damaged or
destroyed during the commission of an unlawful act, which includes the performance of a lawful
act in a criminally negligent manner.’” Scott, 58 Va. App. at 52, 707 S.E.2d at 26 (quoting
Crowder v. Commonwealth, 16 Va. App. 382, 385, 429 S.E.2d 893, 894, aff’d en banc, 17
Va. App. 202, 436 S.E.2d 192 (1993)).
-6-
reverse appellant’s conviction under Code § 18.2-137(B) and remand to the circuit court for a new
trial under Code § 18.2-137(A), 4 if the Commonwealth is so inclined.
Reversed and remanded.
4
See Scott, 58 Va. App. at 39, 707 S.E.2d at 19 (reversing a conviction for felony property
damage under Code § 18.2-137(B) and “remand[ing] for re-sentencing on the lesser-included
offense set forth in Code § 18.2-137(A)”). We do not remand the matter solely for resentencing
under Code § 18.2-137(A) because, unlike in Scott, appellant here did not consent to be resentenced
under Code § 18.2-137(A). See Britt v. Commonwealth, 276 Va. 569, 576, 667 S.E.2d 763, 766-67
(2008) (“We will remand the case to the Court of Appeals with direction that the case be remanded
to the circuit court for a new trial on a charge of petit larceny if the Commonwealth be so advised.
We do not remand solely for imposition of a new sentence on the lesser offense as we did in
Commonwealth v. South, 272 Va. 1, 630 S.E.2d 318 (2006), because here, unlike in South, both
parties have not consented to that relief.”).
-7- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365551/ | 23 Wn. App. 292 (1979)
595 P.2d 67
HAYNES GEARHEART, ET AL, Appellants,
v.
FRED SHELTON, ET AL, Respondents.
No. 2733-3.
The Court of Appeals of Washington, Division Three.
May 10, 1979.
*293 John Moberg, for appellants.
H.J. Merrick, Gerald L. Bopp, Homer B. Splawn, Fred Shelton, and Willadene Livingston, for respondents.
GREEN, C.J.
Plaintiffs appeal summary judgments dismissing their claims against the Estate of Elwyn Judson Livingston (Estate), its administrator Fred Shelton (Administrator), his wife, and the Adams County Title Insurance Company (ACTC).
The uncontroverted facts may be summarized as follows:
On February 9, 1973, plaintiffs executed an offer to purchase from the Estate a parcel of land known as the "family farm." The offer provided in part:
Seller [Administrator] shall obtain for the Purchaser [plaintiffs], within a reasonable time, a standard form preliminary report from the [ACTC] showing the condition of the title, and furnish to the Purchaser, at time of closing, a Purchaser's policy of title insurance, insuring the Purchaser in the full amount of the purchase price, with merchantable title, free of encumbrance except those set forth herein.[[1]] If title is not insurable, as herein provided, and cannot be made insurable within *294 one hundred twenty (120) days from the date of delivery of such title report, any earnest money deposited in connection with this option to purchase, shall be refunded and all rights of the Purchaser terminated; provided that Purchaser may waive any defects and elect to purchase, or may extend the time for the removal of such defects.
(Italics ours.) The Administrator accepted the offer on February 12, 1973. On March 12, ACTC issued a preliminary title report showing insurable title within the terms of the offer. On May 22, the Adams County Superior Court confirmed the offer and acceptance. On June 6, the Administrator executed a deed to the ACTC, as escrow agent, together with instructions to proceed to close the sale. On June 25, an ACTC preliminary title report showed an additional exception a lis pendens and suit filed by the widow of Elwyn Livingston, who was then in possession of the house located on the "family farm." That suit was subsequently dismissed and in October 1973, the Administrator moved to have the widow evicted. The Adams County Superior Court, however, refused to do so pending the outcome of her appeal of the dismissal. Whereupon the ACTC refused to insure the title against the widow's action. The Administrator then offered to return plaintiffs' earnest *295 money but plaintiffs advised him that they wished to keep the "sale" alive pending the outcome of the widow's appeal.
The failure of the sale to close obligated the Administrator to expend funds for mortgage, property tax, insurance, and irrigation and weed assessment payments.[2] Hence, the Administrator received the court's permission to advertise the "family farm" for lease by sealed bid.[3] Plaintiffs were notified and bid but were not successful for the years 1974, 1975, and 1976.
In the meantime, this Court reversed the dismissal of the widow's suit holding that she had made a prima facie showing that she was entitled to be subrogated to the rights of a creditor in certain land ostensibly including the "family farm." Livingston v. Shelton, 11 Wn. App. 854, 526 P.2d 385 (1974). That decision was reversed in Livingston v. Shelton, 85 Wn.2d 615, 537 P.2d 774 (1975). Eventually, the widow's petition for certiorari to the United States Supreme Court was denied in Livingston v. Shelton, 424 U.S. 958, 47 L.Ed.2d 365, 96 S.Ct. 1437 (1976).
During the pendency of the appeal, inflationary forces dramatically drove up the value of land in the Columbia Basin. Upon learning of the denial of certiorari, the Administrator moved for instruction as to how to proceed. Contemporaneously, the plaintiffs obtained an order to show cause why the sale should not be closed based on the 1973 offer. The court reconfirmed the sale and the sale was closed.[4]
Shortly thereafter, plaintiffs commenced the instant suit for judgment against all defendants jointly and severally for, among other things, reasonable rental for the "family *296 farm" and dwelling thereon for the years 1973-76, $3,000 which supposedly represented damages paid by the Bureau of Reclamation to the estate for injury to the "family farm," and $3,487 for legal fees expended in obtaining title to the "family farm."
The dispositive issue is whether the May, 1973, confirmation transferred equitable title to the "family farm" to the plaintiffs so as to entitle them to the money claimed. We hold in the negative.
[1] An order confirming an offer and acceptance for the sale of property by an administrator is absolute proof that all statutory provisions and orders of the court with reference to the sale have been satisfied. RCW 11.56.115. As such, it vests in the purchaser whatever interest the documents supporting the petition for confirmation purport to vest. Moller v. Niagara Fire Ins. Co., 54 Wash. 439, 103 P. 449 (1909). In the instant case, the plaintiffs agreed to purchase the "family farm" subject to certain conditions, e.g., the plaintiffs' title being subject to only those encumbrances specified in footnote 1. The court confirmed that arrangement. The problem arose upon the refusal of ACTC to insure against the widow's suit and lis pendens coupled with the refusal of the Adams County Superior Court's refusal to evict her pending her appeal. At that point, plaintiffs under the terms of the offer had the option of waiving that "defect" in the title or extending the time for closing to permit the Administrator to remove the defect. If plaintiffs had waived the defect, they would then have been entitled to a deed to the "family farm" and a pro rata share of the rent paid by the 1973 tenant according to the terms of the offer.[5] Instead, they extended the time for the Administrator to remove the defect. Hence, when the defect was ultimately removed in 1976, the sale was reconfirmed. It was at that time that equitable title passed. Thus, the pivotal element to sustain plaintiffs' suit against the *297 defendants is missing and the trial court properly granted summary judgment. Brown v. Child, 3 Wn. App. 342, 474 P.2d 908 (1970).
As for the taxing of costs, the Administrator who served as attorney for the estate and also appeared as a party defendant was present in court in two separable capacities, and in the former role the estate is entitled to receive statutory attorney's fees for his services. The costs defendants incurred in taking the depositions in support of their motions for summary judgment and in opposition to plaintiffs' motion and which were specifically considered by the trial court are taxable under the rule announced in Tombari v. Blankenship-Dixon Co., 19 Wn. App. 145, 150, 574 P.2d 401 (1978).
We have closely examined the material submitted by the defendants in support of their motions and find that the Superior Court did not base its decision on material outside the purview of CR 56(e).
The judgment is affirmed.
MUNSON and McINTURFF, JJ., concur.
Reconsideration denied June 15, 1979.
Review denied by Supreme Court September 7, 1979.
NOTES
[1] The encumbrances listed in the offer were:
"1. The terms and conditions of that certain unexpired Lease dated the 20th day of February, 1969, by and between Willadene S. Livingston, as the Executrix of the estate of Elwyn Judson Livingston, and Willadene S. Livingston, individually, as Lessor and Joe Buck and Gretchen Buck, his wife, as Lessees, terminating on December 1, 1973, which Lease is filed for record as Document No. 125233, in Book 6 of recorded instruments, pages 203-8, records of the Adams County Auditor.
"2. Future assessments of the East Columbia Basin Irrigation District and the rules and regulations of said District, affecting irrigated lands lying within said district.
"3. Future assessments of the weed control and mosquito districts in which said lands are situated.
"4. Terms and conditions of recordable contracts with the United States of America describing said lands.
"5. Reservations in any U.S. patent, deed from the United States or State of Washington in the chain of title and laws of the United States or State of Washington, and ordinances of Adams County, affecting Columbia Basin Project lands and the use and disposition of same.
"6. Right of ways and easements of record for roads, irrigation canals, drains, power or utility lines of record, shown on the face of the plat thereof, or visible on the premises, including any limitation of access thereto.
"7. Reservations, restrictions and encumbrances of record common to Columbia Basin Project lands, which do not otherwise affect the merchantability thereof."
[2] The Administrator and one of the plaintiffs discussed the possibility of the latter leasing the "family farm" for a fixed fee per acre during the pendency of the appeal and that if the sale closed plaintiffs would not have to pay the rent or if it was paid it would be refunded; however, these discussions did not reach fruition.
[3] Plaintiffs' offer was subject to a lease for the growing season of 1973.
[4] Six months later, plaintiffs sold the "family farm" for approximately $360,000.
[5] It is interesting to note that the original lender advised ACTC that it did not want a title insurance policy excepting the widow's claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365553/ | 23 Wn. App. 102 (1979)
595 P.2d 43
THE STATE OF WASHINGTON, Respondent,
v.
RICK GENE RINIER, Appellant.
No. 3392-2.
The Court of Appeals of Washington, Division Two.
April 16, 1979.
*103 Joseph M. Mano, Jr., for appellant (appointed counsel for appeal).
Jeremy Randolph, Prosecuting Attorney, for respondent.
PEARSON, C.J.
Defendant Rick Gene Rinier appeals from a finding that he is a habitual criminal,[1] on grounds that evidence of two of his three prior convictions was improperly admitted in the habitual criminal proceedings. After reviewing the record, we affirm.
On February 1, 1978, defendant entered pleas of guilty in Lewis County to the charges of taking a motor vehicle without permission of the owner and assault in the second degree. After inquiry and review of defendant's statement upon pleading guilty, the court accepted both pleas. The prosecuting attorney then filed a supplemental sentencing information alleging that defendant was a habitual criminal. Defendant waived trial by jury on the supplemental sentencing information and trial was held to the court on February 28, 1978. The State offered various exhibits to prove that defendant had four prior felony convictions in the state of Oregon. The exhibits were admitted over defendant's objection. The court found that defendant had been previously convicted of the following felonies:
1. Unauthorized use of a vehicle on August 1, 1974, in Linn County, Oregon.
2. Unauthorized use of a vehicle on August 1, 1974, in Linn County, Oregon.
3. Burglary in the first degree on February 19, 1976, in Linn County, Oregon.
*104 4. Escape in the second degree on April 14, 1977, in Marion County, Oregon.
On February 28, 1978, defendant was sentenced to life imprisonment as a habitual criminal.
[1] Defendant contends that the prior Oregon convictions for unauthorized use of a vehicle were inadmissible on grounds that they do not constitute felony convictions under the laws of this state. We note preliminarily that two convictions for unauthorized use of a vehicle having occurred on the same day in Linn County, Oregon constitute only one felony for purposes of the habitual criminal statute. State v. Brezillac, 19 Wn. App. 11, 573 P.2d 1343 (1978); State v. Mitchell, 2 Wn. App. 943, 472 P.2d 629 (1970).
[2, 3] A foreign felony conviction will be recognized as a felony only for purposes of the Washington habitual criminal statute if indictment or information under which one is convicted in a foreign jurisdiction states facts sufficient to form the minimum elements of a felony in this state. State v. Wait, 9 Wn. App. 136, 509 P.2d 372, 65 A.L.R.3d 578 (1973). The Oregon informations state that defendant "unlawfully and knowingly" took and operated a vehicle without the owner's permission. The elements of the Washington crime of taking a motor vehicle without permission[2] are an "intentional" taking, or "riding ... said automobile or motor vehicle with knowledge ... that the same was unlawfully taken." (Italics ours.) Either a passenger or a taker/driver may violate the second portion of the statute. See State v. Robinson, 78 Wn.2d 479, 475 P.2d 560 (1970); State v. Jones, 65 Wn.2d 449, 397 P.2d 815, *105 (1964); State v. Hudson, 1 Wn. App. 813, 463 P.2d 786 (1970). But defendant asserts that to establish an unlawful taking requires, in this state, proof that an automobile was intentionally taken and that the rider had knowledge of the intentional taking. Since acting intentionally is a higher degree of culpability than acting knowingly, RCW 9A.08.010, under defendant's construction neither portion of the Washington statute can be satisfied by his conviction for taking "knowingly."
This construction would require Washington courts to determine whether a passenger riding in a car which he knew to be stolen by another also knew whether the car was taken "knowingly" or "intentionally." We decline to give weight to such a technicality. We hold that taking "knowingly" and taking "intentionally" are the same for purposes of proving a prior conviction under the joyriding statute.
[4] Next, defendant contends that evidence of his 1977 guilty plea to the offense of escape was inadmissible as a prior conviction, on grounds that the memorandum and judgment did not state sufficiently the rights of which defendant was advised or that his waiver of rights was understandingly made. The burden of establishing a valid waiver is on the prosecution. Boykin v. Alabama, 395 U.S. 238, 242, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969).
The records at issue state that defendant was advised of his right to counsel and waived that right; that he was then "advised of rights" and entered a guilty plea. Judgments, including criminal convictions of sister states, are generally accorded full faith and credit and their validity may not be collaterally attacked. State v. Lindsey, 150 Wash. 121, 272 P. 72 (1928). But, for example, the failure to inform a defendant of his right to a jury trial at the time that he entered his plea has been held to render void a subsequent conviction, cf. Burgett v. Texas, 389 U.S. 109, 19 L.Ed.2d 319, 88 S.Ct. 258 (1967), and void judgments should be subject to collateral attack. State v. Boyd, 21 Wn. App. 465, 586 P.2d 878 (1978).
*106 Waiver of the privilege against compulsory self-incrimination, the right to jury trial, and the right to confront witnesses cannot be presumed from a silent record. See Boykin v. Alabama, supra. This rule was recognized in State v. Johnston, 17 Wn. App. 486, 564 P.2d 1159 (1977), as applying to guilty pleas entered after June 2, 1969, in this state. The trial judge has a duty to determine that a plea of guilty is voluntary and that an accused understands the consequences of his plea; the necessary discussion between the court and accused should be a matter of record. Woods v. Rhay, 68 Wn.2d 601, 414 P.2d 601 (1966).
In this case, the record of the questioned judgment specifically states that defendant was advised of his right to counsel and waived that right. As to whether defendant was advised of his other rights, the record contains only the blanket statement that he was. This is not a silent record, as in Boykin v. Alabama, supra, nor is it a case in which the defendant contends that he was not in fact advised of specific constitutional rights prior to entering his plea, as in State v. Johnston, supra. Therefore, the presumption that out-of-state convictions are valid should apply.
This leaves defendant with three prior convictions: one for unauthorized use of a vehicle, one for burglary in the first degree, and one for escape in the second degree. We note that even if one of those convictions had been found defective, the State indicated that it would proceed against defendant as a habitual criminal as long as he had two or more felony convictions.
Affirmed.
PETRIE and SOULE, JJ., concur.
Reconsideration denied May 9, 1979.
Review granted by Supreme Court August 22, 1979.
NOTES
[1] RCW 9.92.090 provides in pertinent part:
"Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in the state penitentiary for life." (Italics ours.)
[2] Washington's "joyriding" statute, RCW 9A.56.070 and former 9.54.020 (in effect when defendant was convicted in Oregon), both provide in pertinent part:
"Every person who shall without the permission of the owner or person entitled to the possession thereof intentionally take or drive away any automobile or motor vehicle, whether propelled by steam, electricity, or internal combustion engine, the property of another, shall be deemed guilty of a felony, and every person voluntarily riding in or upon said automobile or motor vehicle with knowledge of the fact that the same was unlawfully taken shall be equally guilty with the person taking or driving said automobile or motor vehicle ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1471516/ | 924 F.Supp. 627 (1996)
In re The PRUDENTIAL INSURANCE COMPANY OF AMERICA SALES PRACTICES LITIGATION.
This Document Relates to All Actions.
MDL No. 1061. Civ. No. 95-4704.
United States District Court, D. New Jersey.
April 19, 1996.
*628 *629 *630 *631 Allyn Lite, Goldstein, Till & Lite, Newark, NJ, Liaison Counsel, for Plaintiffs.
Reid L. Ashinoff, Michael Barr, Sonneschein, Nath & Rosenthal, New York City, Lead Counsel, for the Prudential Insurance Company.
J. Bruce Miller, Louisville, KY, Liaison Counsel, for Plaintiff "Agent Class".
OPINION
WOLIN, District Judge.
FACTUAL BACKGROUND
This motion is part of a large group of cases against defendant Prudential Insurance Company of America ("Prudential") which have been transferred to this Court for coordinated pretrial proceedings under 28 U.S.C. § 1407 pursuant to the order of the Judicial Panel on Multidistrict Litigation. The majority of these cases involve allegations by current and former Prudential policyholders that the company engaged in various illegal sales practices. The cases at issue on this motion are part of a smaller subset of cases, in which certain former Prudential sales agents allege that Prudential took adverse employment actions against them because they refused to participate in these illegal practices. Plaintiffs Michael R. Weaver ("Weaver"), Herbert Schulte ("Schulte"), Rick A. Martin ("Martin"), Kenneth R. Young ("Young") and Michael D. Gordon ("Gordon") (collectively, for purposes of this motion, the "agents") assert such claims.
At some point in the course of each of the agents' employment at Prudential, they became eligible to sell insurance products which, at least in Prudential's view, constituted securities. Accordingly, each signed a Uniform Application for Securities Industry Registration or Transfer ("U-4").[1] Young signed two U-4s, the first in 1988 and the second in 1993 when, after his 1992 retirement, Prudential allegedly retained his services as an "agent emeritus." (Young Opp. Br. p. 3) Although the agents' U-4s differed in minor respects, for purposes of this motion they were essentially the same. For example, Young's 1988 U-4 read, in relevant part:
2. I hereby apply for registration with the organizations and states indicated in Item 10 as may be amended from time to time [i.e., the NASD][2] and, in consideration of such organizations and states receiving and considering my application, I submit myself to the jurisdiction of such states and organizations and hereby certify *632 that I agree to abide by, comply with, and adhere to all the provisions, conditions and covenants of the statutes, constitutions, certificates of incorporation, by-laws and rules and regulations of the states and organizations as they are and may be adopted, changed or amended from time to time, and I agree to comply with, be subject to and abide by all such requirements and all rulings, orders, directives and decisions of, and penalties, prohibitions and limitations imposed by such states and organizations, subject to right of appeal as provided by law; ...
5. I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register, as indicated in Item 10 as may be amended from time to time.
Insofar as is relevant to this motion, Weaver's U-4 and Young's 1993 U-4 contained the same provisions. Martin and Schulte, on the other hand, signed an earlier version of the U-4 which differed slightly in two ways: (1) in paragraph 2, in addition to certifying that they agreed to abide by, comply with and adhere to the provisions, conditions and covenants of the statutes, constitutions, certificates of incorporation, by-laws and rules and regulations of the NASD, Martin and Schulte attested: "I ... have read and understand" these provisions and rules; and (2) in paragraph 5, their U-4s do not contain the language "as may be amended from time to time" at the end of the sentence.[3]
Interpretation of the NASD arbitration provisions and a determination of which provisions were in effect at various times are central issues on this motion. Effective October 1, 1993, the NASD amended its Code in respects that are critical to this motion (the "1993 amendment"). Although each agent was terminated before the 1993 amendment took effect, they all filed their actions after that date.[4]
Two provisions of the NASD Code are chiefly relevant. Under its postamendment formulation, Part I Section 1 ("section 1") sets forth generally the matters eligible for arbitration:
any dispute, claim, or controversy arising out of or in connection with the business of any member of the [NASD], or arising out of the employment or termination of employment of associated person(s) with any member,[5] with the exception of disputes involving the insurance business of any member which is also an insurance company:
(1) between or among members;
(2) between or among members and associated persons;
(3) between or among members or associated persons and public customers, or others;[6] and
*633 (4) between or among members, registered clearing agencies with which the [NASD] has entered into an agreement to utilize the [NASD] arbitration facilities and procedures, and participants, pledges, or other persons using the facilities of a registered clearing agency, as these terms are defined under the rules of such a registered clearing agency.
Part II Section 8 ("Section 8") defines which disputes must be arbitrated:
(a) Any dispute, claim, or controversy eligible for submission under Part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) with such member,[7] shall be arbitrated under this Code, at the instance of:
(1) a member against another member;
(2) a member against a person associated with a member or a person associated with a member against a member; and,
(3) a person associated with a member against a person associated with a member.
Even under its preamendment version, section 8 contemplated arbitration between members and persons associated with a member.
In addition, plaintiffs Gordon, Weaver and Schulte were, during their employment with Prudential, members of the United Food & Commercial Workers International Union (the "union").[8] Accordingly, their employment was governed by the terms of a collective bargaining agreement between Prudential and the union (the "CBA").[9] Pursuant to Labor Management Relations Act § 301, certain state law causes of action which they might otherwise be entitled to bring against Prudential may be preempted by the CBA.
DISCUSSION
PRUDENTIAL'S MOTION TO COMPEL ARBITRATION
The Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-9 (1988), governs enforcement of arbitration agreements contained in U-4s. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Under 9 U.S.C. § 2, a written agreement to arbitrate in a contract evidencing a transaction involving commerce is "valid, irrevocable and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract." Congress enacted the FAA in 1925 "to `reverse centuries of judicial hostility to arbitration agreements.'" Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987), quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 510, 94 S.Ct. 2449, 2453, 41 L.Ed.2d 270 (1974). The statute accordingly "establishes a federal policy favoring arbitration," requiring that Courts "rigorously enforce agreements to arbitrate." Id. (citations omitted). The Courts have taken this directive seriously, holding that the intent of the FAA was to leave "no place for the exercise of discretion by the district court...." where an agreement can be construed to require arbitration. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985).
On the other hand, "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 *634 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), quoting United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). In other words, the FAA makes arbitration agreements "as enforceable as any contract, not more so." Moore v. Interacciones Global, Inc., 1995 WL 33650, *2 (S.D.N.Y.). See also Armijo v. Prudential Ins. Co. of America, 72 F.3d 793, 801 (10th Cir.1995) (Jenkins, J., concurring) (citations omitted) (expressing concern that Courts have overcompensated for hostility of Courts to arbitration in decades past and commenting: "It seems to me that the rule that doubts about the scope of arbitrable issues should be resolved in favor of arbitration, like other rules of construction, should be applied only as a last resort, after the court or trier of fact has considered extrinsic evidence of the parties' intent and found it inconclusive.").
To determine whether a party may compel arbitration, a Court "must determine: (1) whether there is an agreement to arbitrate; (2) whether the claims fall within the scope of that agreement; and (3) whether there has been a waiver of the right to arbitrate." Wojcik, 901 F.Supp. at 1285, citing Gilmer, 500 U.S. at 24-34, 111 S.Ct. at 1651-56; Hall v. Metlife Resources/Div. of Metropolitan Life Ins. Co., 1995 WL 258061, *2 (S.D.N.Y.).
The agents first argue that they signed no valid agreement to arbitrate claims against Prudential. All four agents assert that Prudential is not a party to the U-4s they signed, and Martin and Young argue that their U-4s did not bind them at the time of the events from which this litigation arises. Second, the agents argue that the arbitration provisions do not apply to the claims at issue here because (a) the arbitration clauses did not apply to employment disputes before the 1993 amendment and cannot be retroactively applied; and (b) their claims are exempt from arbitration by virtue of the insurance business exception set forth in Section 1 of the NASD Code. Finally, Martin asserts that the U-4 he signed is unenforceable as a contract of adhesion. The Court will address these arguments in turn.[10]
I. Applicability of the U-4s to the Parties
A. Prudential May Enforce the Arbitration Provisions Even Though it is Not Named as the "Firm" in the U-4s
The agents allege that Prudential is not a party to the U-4 arbitration provision and therefore cannot enforce it. That provision requires the agents "to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the [NASD]." The "firm" is identified in a separate section of each agent's U-4 as Pruco Securities Corp. ("Pruco"), Prudential's wholly-owned subsidiary. The agents claim Prudential cannot compel enforcement of an arbitration provision contained in an agreement to which it was never a party.
This argument fails for several reasons. First, the Court notes that each agent agreed to arbitrate disputes not only with his firm but with "a customer, or any other person," so long as the NASD rules require that dispute to be arbitrated. The agents have focused on the "my firm" language and failed to address the remainder of the provision. Clearly, Prudential is an "other person" whose disputes with its agents are covered by the current NASD arbitration rules. Moreover, each agent's U-4 contained a separate provision requesting names of broker-dealers other than Pruco with which he would maintain registration. With the exception of Young's 1993 U-4, each of the agents attested that they would maintain concurrent registration with Prudential.
*635 Prudential Ins. Co. of America v. Shammas, 865 F.Supp. 429 (W.D.Mich.1993), is exactly on point. There, as here, the plaintiff signed a U-4 naming Pruco as "my firm" but naming Prudential as a broker-dealer with which he would maintain concurrent registration. Id. at 430. The Court noted that plaintiff's "act of registering with NASD was as part of his employment with Prudential" and held that "the context of his registration plus the language [providing for concurrent registration] make it clear that the representation concerning arbitration, paragraph 5 [of the U-4], applied to ... Prudential." Id. at 430. Within this circuit, Foley v. Presbyterian Ministers' Fund, 1992 WL 63269, *2 (E.D.Pa.), rejected the plaintiff's argument that his U-4 did not apply to his non-signatory employer because there was "no suggestion that plaintiff had any occasion to seek registration as a securities dealer except as an aspect of his employment with [defendant]." See also Pitter v. Prudential Life Ins. Co. of America, 906 F.Supp. 130, 132 n. 2 (E.D.N.Y.1995) (without discussion, requiring plaintiff to arbitrate with Prudential although Pruco was named "firm" on U-4).
Kresock v. Bankers Trust Co., 21 F.3d 176, 178 (7th Cir.1994), is distinguishable. In that case, the plaintiff worked for defendant Bankers Trust, which was one of two subsidiaries of Bankers Trust New York Corporation. The other was BT Securities Corporation. BT Securities was a NASD member; Bankers Trust was not. In 1989, the plaintiff had plans to transfer from Bankers Trust to BT Securities; accordingly, she signed a U-4 which identified BT Securities as her "firm." When Bankers Trust terminated her in 1991, she had never transferred to or performed any work for BT Securities. The Court declined to enforce the U-4 arbitration provision against Bankers Trust because, as a mere co-subsidiary sharing a corporate parent with BT Securities, it was neither a NASD member, a person associated with a NASD member, a public customer or "other." Id. at 178. Here, by contrast, Prudential is a NASD member in its own right; its relationship to the "firm" named in the U-4s is that of parent-subsidiary; the agents' employment with Prudential was the sole reason for their signing the U-4s; and the agents specifically named Prudential as a broker-dealer with whom they would maintain concurrent registration.
B. Martin's Employment Agreement did not Supersede his Agreement to Arbitrate
Martin alleges that in 1988, some five years after he signed his U-4 in 1983, Prudential promoted him to District Agencies Manager and entered a standard employment agreement with him which explicitly stated: "This Agreement supersedes any previous agreement the Manager may have had with the Company." (Martin Opp.Br. pp. 6-7, 10-11) Martin contends that the employment agreement supersedes his U-4 and that, since the employment agreement did not contain an arbitration clause, Prudential may not compel arbitration of his claims. (Id. at pp. 7, 11)
O'Donnell v. First Investors Corp., 872 F.Supp. 1274 (S.D.N.Y.1995), squarely rejected a very similar argument. In that case the plaintiff had, upon acceptance of employment with the defendant, signed both a standard employment agreement and a U-4. Three years later he received a promotion and, in connection therewith, signed a new employment agreement that explicitly superseded the old. When the defendant terminated him he argued that, since he signed the U-4 as a condition to his initial employment agreement, the superseding employment agreement cancelled the U-4. The Court disagreed, holding that the U-4 "is not a contract with defendants but rather an application to qualify with various security exchanges. The U-4 is a separate contract, and as long as this contract is effective, the terms of the agreement must be followed, regardless of the fate of a separate, though related, agreement." Id. at 1277.
Here, too, even though Martin's employment agreement states that it "supersedes any previous agreement the Manager may have had with the Company" (emphasis added), the U-4 is not an agreement with Prudential and therefore remained in effect following Martin's promotion.
*636 C. Prudential May Enforce Young's U-4
Young argues that Prudential cannot enforce the U-4 against him because (1) he never became subject to it because he never actually engaged in the sale of securities; and (2) he was no longer subject to the first U-4 he signed once Prudential terminated him and notified the NASD of this fact, and he never became subject to the second U-4 he signed because Prudential denies that it rehired him as an agent emeritus. (Young Opp.Br. pp. 6-7)
The Court in Foley, 1992 WL 63269 at *1, rejected Young's first argument when it held that the "undertakings contained in Form U-4 were contingent on executing the form, not on becoming a registered dealer." See also Cherry v. Wertheim Schroder and Co., 868 F.Supp. 830, 835 (D.S.C.1994) (signatory of U-4 obligated to arbitrate even though she failed to pass NASD examination); Johnson v. Piper Jaffray, Inc., 530 N.W.2d 790, 798 (Minn.1995) (declining to look "beyond [plaintiff]'s job title or job description" of bond trader and determining that plaintiff was a "person associated with a member" even though she never actually traded securities).
The Ninth Circuit rejected Young's second argument in O'Neel v. National Ass'n of Securities Dealers, Inc., 667 F.2d 804 (9th Cir.1982), in which the plaintiff argued that the agreement to arbitrate contained in his U-4 did not apply to a claim his former employer asserted against him nearly four years after he resigned from the NASD. The Court stated:
It would seem strange indeed that with such a significant integrated method of dispute settlement one party could frustrate the purpose of the Exchange rules and the federal policy favoring arbitration by the mere expediency of resignation from the Exchange.
Id. at 806-07, quoting Muh v. Newburger, Loeb & Co., 540 F.2d 970, 973 (9th Cir.1976). Accord, `Strappes Group, Inc. v. Siedle, 1993 WL 443926, *5 (D.Mass.); see also Le Roux v. Shearson Lehman Hutton, Inc., 160 A.D.2d 1091, 553 N.Y.S.2d 572 (3d Dept.1990) (U-4 required financial consultant to arbitrate claim against former employer where plaintiff remained a person "associated with a member" by virtue of his subsequent employment in securities industry).
II. Applicability of Arbitration Clauses to Agents' Claims
A. Coverage of Employment Disputes
As set forth above, the 1993 amendment added language to sections 1 and 8 of the NASD which makes it clear that the arbitration provisions currently cover employment disputes. In the legislative history to the proposal for the 1993 amendment, the NASD stated: "The NASD has taken the position that employment disputes are arbitrable under Section 8, but in order to clear up any ambiguity, it is proposing the changes ... which parallel the NYSE rule language." Fed.Reg.Vol. 58, No. 138, pp. 39070, 39071 (July 21, 1993). Prudential argues that this legislative history proves that the provisions always applied to employment disputes and that, in any event, the 1993 amendment applies to the agents' claims because they filed them after its effective date. The agents argue that the 1993 amendment indicates that the provisions did not apply to employment disputes previously and that the amendment cannot be applied retroactively.
The agents urge the Court to adopt precedent from the Seventh Circuit. In Farrand v. Lutheran Brotherhood, 993 F.2d 1253, 1255 (7th Cir.1993), decided before the amendment took effect, Judge Easterbrook held that "the NASD's Code does not authorize, and section 8 therefore does not require, the arbitration of an employment dispute between a member of the NASD and one of the member's registered representatives." Section 1 at that time read as follows:
any dispute, claim, or controversy arising out of or in connection with the business of any member of the [NASD], with the exception of disputes involving the insurance business of any member which is also an insurance company:
(1) between or among members;
(2) between or among members and public customers, or others; ...
*637 The Court focused on the language in section 1 following the colon, which defines the parties whose claims are subject to arbitration, and determined that members' representatives' claims are not subject to arbitration. The Court rejected the defendant's argument that the phrase "or others" in subpart (2) covered such claims, finding that "such a reading ... would make all of the words after the colon surplus." Id. at 1255-56. The Court acknowledged that "the NASD's rules could be stretched to cover such disputes," id. at 1255, and that the NASD had suggested in its proposed amendment that it "believe[d] that its Code already covers employment disputes," id. at 1256, but concluded that "[a] change in the Code, rather than a strained interpretation of the current language, is the right way to proceed." Id. at 1257.
Kresock, 21 F.3d at 178, which the Seventh Circuit decided after the 1993 amendment's effective date, reaffirmed Farrand and went on to hold that the amendment did not apply retroactively. Id. at 179. In Kresock, as here, the plaintiff had signed a U-4 that bound her to amendments of the NASD rules. But, unlike here, the plaintiff in Kresock had filed her claims nearly a year before the effective date of the amendment. The Court pointed out that the SEC, in its August 31, 1993 order approving the amendment, provided for the effective date of October 1, 1993, and found that this was a strong indication against retroactivity. Id.
The Court rejected the defendant's argument that the plaintiff's agreement to be bound by amendments to the NASD Code mandated arbitration on the ground that "[t]he incentive created by such a result would be this: after commencement of litigation, an organization such as the NASD could simply amend its rules to force one or both parties to do something (like arbitrate) that one or both never agreed to do." Id. Thus, the fact that the agents filed their cases after the effective date distinguishes this case from Kresock in a meaningful way; for a holding that U-4 signatories are bound to amendments taking effect before they file their cases would not create this opportunity for strategic rule changes.
A recent district court opinion within the Seventh Circuit examined Kresock and stated that it "appeared to be primarily concerned with the application of amendments to a situation in which a claim has already been filed." Wojcik, 901 F.Supp. at 1287. Accordingly, the Wojcik Court held, the 1993 amendment applies to plaintiffs whose U-4s require them to comply with NASD rules and regulations "as amended" and who file their claims after the effective date. Id. at 1288.[11]
This reasoning is persuasive, and harmonizes Kresock with the holdings of numerous other courts which have applied the 1993 amendment to cases filed before the amendment's effective date. In Pitter, 906 F.Supp. at 134 (citations omitted), the Eastern District of New York held that the 1993 amendment applied to a case filed in April 1994, stating:
The 1993 amendments to the NASD Code deal, after all, only with the forum where employment claims will be heard. They do not alter the substantive rights conferred by Congress on employees.... In Landgraf v. USI Film Prods., 511 U.S. 244, [___,] 114 S.Ct. 1483, 1502 [, 128 L.Ed.2d 229] (1994), the Supreme Court stated that `changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity.' Thus, it is entirely appropriate to hold [plaintiff] to compliance with non-substantive rules that took effect almost six months before he filed his lawsuit.
The Pitter Court distinguished Kresock on the ground that the plaintiff there had not filed his claims until after the effective date of the amendment. Id. at 134 n. 5.
In Moore, 1995 WL 33650, the Southern District of New York rejected the plaintiff's argument that the 1993 amendment so substantively *638 changed the NASD Code that it could not be incorporated through the U-4's "as amended" clause. The Court distinguished contractual agreements to incorporate such amendments from "the very different issue of statutory retroactivity." Id. at *5. See also Hall, 1995 WL 258061 at *4, citing Scher v. Equitable Life Assur. Soc. of the United States, 866 F.Supp. 776, 777 (S.D.N.Y.1994) ("it is the NASD Code in existence at the time an action is commenced that governs"); but see F.N. Wolf & Co. v. Brothers, 161 Misc.2d 98, 102, 613 N.Y.S.2d 319, 322 (Sup.Ct.1994) (citations omitted) (without stating whether action commenced before or after effective date of amendment, holding that retroactivity "would reduce the arbitration agreement to a mere forum selection clause, overlooking the fact that by agreeing to arbitrate, parties forfeit important substantive rights to resort to a judicial forum to resolve their disputes and to appeal unfavorable results").
This Court finds the Farrand and Kresock holdings to be inapposite to this case, in which the agents all signed written agreements to abide by the rules and regulations of the NASD Code, as amended, and brought their claims after the effective date of the 1993 amendment. Given the agents' explicit agreement to arbitrate under the NASD Code "as amended," the Court must look to the rules as they existed at the time the agents filed suit, and not before. On this ground alone, it is clear that the agents may not avoid arbitration on the ground that their disputes are employment-related.
Moreover, Farrand and Kresock have been widely criticized. Most notably, the Court in Kidd v. Equitable Life Assur. Soc. of the United States, 32 F.3d 516, 519 (11th Cir. 1994), as well as courts in numerous cases that have followed Kidd, held that the NASD Code always required arbitration of employment disputes and that the 1993 amendment was a mere clarification of that rule. The Eleventh Circuit pointed out that the Farrand holding creates a tension between sections 1 and 8 of the preamendment Code: whereas section 8 required the arbitration of disputes between members and "associated persons" such as employees, section 1 did not specifically authorize arbitration of disputes between members and associated persons. Id.[12]Accord, F.N. Wolf & Co. v. Bowles, 160 Misc.2d 752, 757, 610 N.Y.S.2d 757, 759 (Sup. Ct.1994) ("Farrand's interpretation, based on the principle that paragraph 3 of section 1 would be rendered surplusage if arbitration of the subject dispute were required, was at the cost of making surplusage of the portion of section 8 which, in paragraph 2, mandates arbitration when demanded by an associated person against a member").
The Kidd Court resolved this apparent conflict by reading the language following the colon in section 1 to modify only the insurance business exception clause that immediately preceded it, rather than the entire paragraph. Under this reading, parties were required to arbitrate "any dispute connected to an NASD member's business, except for disputes involving the insurance business of an NASD member that are (1) between NASD members or (2) between NASD members and public customers or others." Kidd, 32 F.3d at 519. Accord, Moore, 1995 WL 33650 at *4.
While this Court agrees that the Farrand reading creates an inconsistency between sections 1 and 8 of the NASD Code, it also hesitates to adopt the Kidd reading of section 1. Like the Court in Pitter, 906 F.Supp. at 135, this Court "has difficulty understanding what interest the NASD would have in qualifying the insurance business exception *639 clause with the enumerated categories that follow." The Courts in 'Strappes, 1993 WL 443926 at *4, and Johnson, 530 N.W.2d at 797, resolved the conflict by reading the phrase "or others" in section 1 to incorporate all the categories specifically identified in section 8, including "persons associated with members." This reading solves the problem with the "or others" language which the Farrand Court highlighted without requiring the somewhat strained interpretation of section 1 that Kidd advanced. While the Court need not specifically adopt any interpretation of sections 1 and 8 in light of its holding that the 1993 amendment applies to the agents' claims, it will note that the 'Strappes/Johnson reading appears to be the most logical.
Yet another approach courts have taken to this semantic conundrum is to label it an ambiguity and apply the presumption in favor of arbitration to resolve the issue. As noted in Kidd, 32 F.3d at 519 n. 6, the Farrand Court "acknowledged that it was not unreasonable to interpret the pre-amendment Code to require arbitration of employment disputes." Thus, the Kidd Court found, Farrand's adoption of an alternative construction contravened well-established federal precedent that doubts regarding the scope of arbitrable issues are to be resolved in favor of arbitration. Id., citing Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), Wick v. Atlantic Marine, Inc., 605 F.2d 166 (5th Cir.1979). See also Armijo, 72 F.3d at 798 ("to acknowledge the ambiguity is to resolve the issue, because all ambiguities must be resolved in favor of arbitrability"); O'Donnell, 872 F.Supp. at 1278 (rejecting Farrand and finding that Kidd "makes more sense given the liberal federal policy toward arbitration"); Pitter, 906 F.Supp. at 136; Bowles, 160 Misc.2d at 757, 610 N.Y.S.2d at 759-60.
This Court is not convinced that the presumption in favor of arbitrability would be powerful enough on its own to compel arbitration where the language of the provisions is so unclear. However, the Kidd opinion provided additional support for its holding that the preamendment Code contemplated arbitration of employment disputes, 32 F.3d at 520, to wit, (1) dicta from a District of Columbia Circuit case stating that "NASD rules mandate arbitration of employer-employee disputes, and did so, to the same extent as they do now, before the development of [the U-4]." Association of Inv. Brokers v. Securities and Exchange Com'n, 676 F.2d 857, 861 (D.C.Cir.1982) (Ginsburg, J.); (2) a 1987 NASD statement that employment disputes between members and their registered agents were arbitrable, 52 Fed.Reg. 9232 (1987); and (3) the NASD's statement that the purpose of its amendment was to clarify that employment disputes are arbitrable, 58 Fed.Reg. 45,932 (1993). As pointed out in Pitter, 906 F.Supp. at 137 (citing cases), agencies and exchanges have substantial authority to interpret their own rules and regulations. See also Bowles, 160 Misc.2d at 758, 610 N.Y.S.2d at 760 (citations omitted) (applying principle that courts should defer to administrative agency's interpretation of its own regulations unless "irrational or unreasonable" to NASD).
This position finds further support in numerous opinions that predate the 1993 amendment in which courts applied the NASD arbitration clause to employment disputes of various kinds. See e.g., Association of Inv. Brokers, 676 F.2d at 861; Bender v. Smith Barney, Harris Upham & Co., 789 F.Supp. 155 (D.N.J.1992); Spellman v. Securities, Annuities and Ins. Servs., Inc., 8 Cal. App.4th 452, 464, 10 Cal.Rptr.2d 427, 435 (Cal.App. 2 Dist.1992).
In sum, the Court finds ample indications that the preamendment NASD Code applied to employment disputes such as the agents' claims; however, the Court will simply hold that, since all the agents filed their claims after the effective date of the amendment, they are bound thereby and may not avoid the arbitration provisions simply because their disputes are employment-related. This does not end our analysis, however. The fact that the agents have asserted claims that are arbitrable under the terms of their U-4 does not mean that they must arbitrate them against Prudential. As an insurance company, Prudential is potentially subject to the "business of insurance" exception set forth in the NASD Code.
*640 B. The Insurance Business Exception
Section 1 of the NASD Code excludes from its list of matters eligible for arbitration all "disputes involving the insurance business of any member which is also an insurance company." Although none of the parties were able to enlighten the Court as to the drafting history or reasoning behind this exception, presumably it has something to do with the lack of insurance industry expertise on the part of securities industry arbitrators. Certainly, it would stand to reason that the drafters of the NASD might have recognized that a category of its signatories belong to an industry which, although it sells some products with a securities component, operates otherwise in a separate sphere from the rest of the securities industry. Especially given the complex regulatory framework which governs the insurance industry, the exception makes a great deal of sense.
Numerous cases have found the insurance business exception inapplicable to personnel and various other employment related disputes. See, e.g., Shammas, 865 F.Supp. at 432 (plaintiff claimed national origin, race, religion and sex discrimination, plus retaliation for complaining about alleged discrimination); Foley, 1992 WL 63269 at *2 (plaintiff alleged his termination was unlawful under ADEA, ERISA and unspecified state law); Wojcik, 901 F.Supp. 1282 (plaintiff claimed defendants took various unlawful actions against him in retaliation for refusal to accept job change). Requiring arbitration of garden-variety employment disputes involving U-4 signatories makes sense because, as Prudential's counsel pointed out at oral argument, securities arbitrators have a wealth of experience resolving such disputes; accordingly, these courts properly declined to apply the exception.
From this authority, however, Prudential asks the Court to derive a rule that the insurance business exception can never apply where the plaintiff alleges an employment-related injury. A contrary rule, asserts Prudential, would allow any employee of an insurance company to avoid arbitration "simply by alleging the dispute involves consideration of the company's insurance business." (Prudential Reply Br. p. 16) Prudential's argument focuses too narrowly upon the injuries the agents allege, disregarding the scope and nature of the issues the trier of fact will have to analyze in determining whether or not to grant relief for those injuries.
The agents concede that garden-variety employment disputes do not implicate the insurance business exception. They claim, however, that the instant case is distinguishable from ordinary employment disputes on the ground that their claims are more intricately connected with the allegedly fraudulent and illegal character of Prudential's insurance business practices than are claims in ordinary employment disputes. This Court agrees and would add that this case is also distinguishable from garden variety employment disputes in another important respect. The agents' claims are intertwined with dozens of putative class actions potentially involving hundreds of thousands of policyholders who have made allegations against Prudential that involve the same factual issues that the agents' claims raise. The resulting potential for inconsistent results and inefficiencies provided the impetus for the consolidation of all of these actions in this Court, and the same circumstances while they obviously could not justify a reformation of a binding contract to arbitration claims have also weighed into the Court's determination that these claims involve Prudential's insurance business and therefore belong in this Court and not in a separate arbitral forum. The Court does not share Prudential's concern that future disgruntled insurance employees will avoid arbitration simply by including allegations involving their employers' insurance business; courts are perfectly capable of looking beyond the face of a complaint to determine whether or not the dispute really involves a defendant's insurance business.
The Court is aware that the few courts which have addressed the application of the insurance business exception to claims arising out of employment relationships appear to have rejected the agents' position; however, the Court finds each of these cases distinguishable under the unique circumstances of *641 the instant case. To the extent they are not, the Court declines to follow them here. In Young v. Prudential Ins., Docket No. SOM-L-907-95 at p. 4 (slip op.) (N.J.Super. Law Div. Oct. 19, 1995), the Court refused to apply the exception to a claim for discharge in retaliation for whistle blowing, finding that "the exception relating to insurance and the business of insurance ... must of necessity relate to disputes about the practices of an insurance company raised between insurance companies themselves and not to the alleged retaliation visited on an employee who calls attention to his insurance company employer's alleged unlawful insurance practice."
The opinion provides few specifies about the retaliatory discharge claim only that it involved the plaintiff's "whistleblowing about unlawful conduct of other Prudential employees." Id. at 2. Thus, it is not clear that the claim would have required the Court to engage in the comprehensive evaluation of Prudential's insurance practices that the agents' claims might require. Moreover, this Court finds no support in the text or history of the NASD Code for the Young Court's finding that the exception applies only to disputes between insurance companies themselves. Accordingly, the Court will decline to follow Young in this matter.
In Trumbetta v. Metropolitan Life Ins. Co., 1994 WL 481152, *3 n. 3 (E.D.Pa.), the Court refused to apply the exception where, although
the plaintiff ma[de] some general allegations in the complaint that [defendant] is engaging in unlawful insurance practices, the basis of his claims stem from actions taken by the defendants against the plaintiff since he did not participate in their alleged scheme. Thus, whether or not the defendants actually engaged in any unlawful insurance practice is irrelevant to this dispute.
The Trumbetta opinion does not set forth the factual details of the plaintiff's claims in that case; however, the case appears to be distinguishable from the agents' claims here. In Trumbetta, the plaintiff had made "some general allegations in the complaint" that the defendant insurance company had engaged in "certain unlawful insurance practices" and that the defendants had taken adverse actions against him "since he did not participate in their alleged scheme." Id. at *3. However, the "thrust" of the Trumbetta complaint was "that the defendants harassed and persecuted [plaintiff] such that he lost business and th[u]s ultimately was constructively discharged." Id.
Accordingly, the Trumbetta Court found that "whether or not the defendants actually engaged in any unlawful insurance practices is irrelevant to this dispute." Id. Although it is not entirely clear from the opinion, it would seem that the plaintiff in Trumbetta could prove that illegal acts of harassment and persecution led to his constructive discharge without proving that defendants actually engaged in unlawful insurance practices; thus, the Trumbetta case implicated the business of insurance only indirectly, having to do only with the defendants' motivation for what would be, if proven, independently unlawful acts.
Here, by contrast, Prudential discharged the agents in what would facially appear to be an entirely proper manner. Prudential's action becomes unlawful only if the agents can prove that it was taken in retaliation for the agents' refusal to cooperate with unlawful insurance practices, and only if the practices the agents refused to participate in were actually fraudulent or unlawful does Prudential's allegedly retaliatory motive become improper or unlawful.
Armijo, 72 F.3d 793, is also distinguishable from this case. In Armijo, the plaintiffs framed their claim as an ordinary Title VII claim for discrimination based upon national origin. Id. at 800 (emphasis added) ("the dispute as framed by the Plaintiffs is predicated on the civil-rights laws, not the insurance laws, and they are predicated on [defendant]'s role as an employer rather than as an insurer"). The only basis for applicability of the insurance business exception was the defendant's defense of the adverse employment actions it had taken against plaintiffs on the ground that plaintiffs had violated the insurance laws. Here, by contrast, plaintiffs' allegations of insurance business misconduct form the very center of their claims. Indeed, without the agents' allegations that *642 Prudential engaged in improper insurance business practices, there would be no lawsuit. Plainly, such claims "involv[e] the insurance business of [a] member which is also an insurance company," and the NASD will not require a securities industry arbitrator to resolve it.
Ill. Enforceability of Martin's U-4
Martin argues that "the alleged arbitration agreement is one of adhesion, was entered into fraudulently and does not bind Martin in any manner." (Martin Br. p. 3) He asserts that his agreement to submit to the jurisdiction of the organizations for which he applied for registration was "buried" at the end of one of many purported "employment forms" which Prudential presented for his immediate signature as a condition of employment. Martin acknowledges his express agreement, appearing in "fine print" (Martin Br. p. 6) at paragraph 5 of the U-4, "to arbitrate any dispute ... that is required to be arbitrated" under NASD rules. However, he claims that neither of these provisions should bind him to arbitrate this dispute because, contrary to Prudential's own representation at the end of the U-4 that "the applicant will be familiar with the ... rules and by-laws of the ... self-regulatory organization with which this application is being filed, and the rules governing registered persons," Martin was never provided with copies of any of the rules or regulations with which he purportedly agreed to comply. (Martin Br. p. 5)
A somewhat similar argument has prevailed in the Ninth Circuit. In Prudential Ins. Co. of America v. Lai, 42 F.3d 1299, 1301 (9th Cir.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 61, 133 L.Ed.2d 24 (1995), as here, the plaintiffs alleged that
when they signed the U-4 form, they were told only that they were applying to take a test, which was required for their employment by Prudential, and that they were simply directed to sign in the relevant place without being given an opportunity to read the forms. Arbitration was never mentioned, and plaintiffs were never given a copy of the NASD Manual.
The Court held that, under these circumstances, the plaintiffs had not knowingly agreed to waive their rights to sue in federal court under Title VII; it based its holding, however, on specific language from the federal statute requiring a knowing agreement to waive such rights before a plaintiff can be compelled to arbitrate. Id. at 1304-05. The agents have pointed to no such statutory requirement of a knowing waiver of their rights; accordingly Lai is distinguishable from this case.
Moreover, Lai has been rather extensively criticized. See Beauchamp v. Great West Life Assur. Co., 918 F.Supp. 1091, 1096 (E.D.Mich.) (holding that Lai misreads Title VII and "flies in the face of" Gilmer and basic contract law); Maye v. Smith Barney, Inc., 897 F.Supp. 100, 107 (S.D.N.Y.1995) (citing cases); Degaetano v. Smith Barney, Inc., 1996 WL 44226, *7 (S.D.N.Y.) (citing cases). And numerous other courts have rejected similar arguments. In Bender, 789 F.Supp. at 159, the Court found that the plaintiff failed to allege that defendant Smith Barney made a false or misleading statement "either as to the Form U-4 itself or as to any inducement to sign the form ... [and] failed to present any legal support establishing that [her employer] had a duty to disclose or to explain the existence or scope of the Form U-4 arbitration clause." The Bender Court found that, since brokers have no legal duty to disclose or explain arbitration clauses to their customers, their duty to employees such as the plaintiff is "even less." Id. Finally, the Bender Court held, 789 F.Supp. at 159,
[E]ven if Smith Barney had explained the scope of the arbitration clause to plaintiff, the end result would have been the same; the execution of a Form U-4 is not unique to Smith Barney employees and it is not optional. It is an SEC industry-wide requirement, a prerequisite to registration with any securities firm. Thus, plaintiff could not have been fraudulently induced into signing this document or could not have detrimentally relied on any affirmative representations rendered by Smith Barney.... Smith Barney is bound by the terms of the Form U-4 to the same extent as plaintiff is bound.
*643 See also Pitter, 906 F.Supp. at 140 (rejecting Lai and noting: "the fact that a U-4 form does not specifically identify employment claims or any other types of claims as among those to be arbitrated does not mean that a registrant has failed knowingly to enter into an arbitration agreement. Indeed, the lack of specificity only highlights the breadth of the agreement."); Cherry, 868 F.Supp. at 836 (absent "any allegation of fraud, coercion, or unfairness" Court rejects plaintiff's argument that unequal bargaining power voided the agreement); Beauchamp, 918 F.Supp. at 1098.
This Court is sympathetic to the views of those who believe that the arbitration provisions to which employees in the securities industry are required to submit as a condition of their employment are unfair. However, basic contract law and longstanding judicial precedent clearly preclude a holding that Martin's U-4 is a contract of adhesion.
The Court is intrigued, however, by Martin's argument that Prudential's failure to provide him with copies of the rules and regulations with which the U-4 obligated him to comply despite its explicit written attestation that it had done so precludes the company from demanding arbitration. This is a question which the courts do not appear to have addressed yet. The parties have not fully briefed the issue, and in light of the Court's holding on the insurance business exception it is unnecessary for this Court to explore it further; however, the Court highlights this as a potential ground for exploration.
PRUDENTIAL'S MOTION TO DISMISS ON SECTION 301 PREEMPTION GROUNDS
As set forth above, Gordon, Weaver and Schulte were union members during their employment with Prudential and, accordingly, governed by the terms of the CBA. Under Labor Management Relations Act ("LMRA") § 301,
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). While the statute on its face simply provides for federal jurisdiction over controversies involving collective bargaining agreements, the preemptive force of section 301 has long been acknowledged. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403-06, 108 S.Ct. 1877, 1880-82, 100 L.Ed.2d 410 (1988); Berda v. CBS Inc., 881 F.2d 20, 22 (3d Cir.1989), cert. denied, CBS, Inc. v. Berda, 493 U.S. 1062, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990). Essentially, the preemption doctrine that has developed provides that:
if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are states) is preempted and federal labor-law principles necessarily uniform throughout the Nation must be employed to resolve the dispute.
Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881. The "limited purpose" of the doctrine is to ensure "that a uniform law is applied in interpreting collective bargaining agreements," Berda v. CBS Inc., 881 F.2d 20, 27 (3d Cir.1989), and to enforce arbitration provisions in such agreements. Livadas v. Bradshaw, ___ U.S. ___, ___, 114 S.Ct. 2068, 2077, 129 L.Ed.2d 93 (1994).
Thus, the proper approach to a state law preemption question is to analyze each element of the state claim at issue and then to determine whether its resolution will require the Court to construe or interpret any terms or provisions of the applicable labor agreement. See Lingle, 486 U.S. at 407, 108 S.Ct. at 1882.[13] The fact that a *644 labor agreement provides a remedy that the plaintiff could pursue as an alternative to state law claims does not mandate preemption. See Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 229 (3d Cir.1995) ("plaintiff may bring a state law tort action against an employer, even where he could have brought a similar claim based on a provision in his collective bargaining agreement, so long as the state claim does not require interpretation of the collective bargaining agreement"). At the same time, however,
the fact that a particular provision of the [CBA] may not explicitly address the conduct underlying [the] complaint does not mean that resolution ... does not require interpretation of the agreement.... The governmental nature of the collective-bargaining process demands a common law of the shop which implements and furnishes the context of the agreement although not expressed in it.
Douglas v. American Information Technologies Corp., 877 F.2d 565, 572 (7th Cir.1989).
That resolution of a state law claim might require consultation of a collective bargaining agreement does not mandate preemption; a claim is preempted only if its resolution requires interpretation or construction of a collective bargaining agreement. See Hawaiian Airlines, Inc. v. Norris, ___ U.S. ___, ___ n. 8, 114 S.Ct. 2239, 2248 n. 8, 129 L.Ed.2d 203 (1994) (citations omitted); Livadas v. Bradshaw, ___ U.S. ___, ___, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994) (citations omitted) ("when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished"); Thomas v. LTV Corp., 39 F.3d 611, 620 (5th Cir.1994); Pelech v. Klaff-Joss, LP, 828 F.Supp. 525, 531 (N.D.Ill.1993) (citations omitted) (section 301 did not preempt claim where complaint frequently referred to but did not require interpretation of collective bargaining agreement terms).
The circuit courts have not yet reached a consensus on whether reliance upon terms of a collective bargaining agreement as a defense to plaintiff's claims creates grounds for preemption. See Livadas, ___ U.S. at ___ n. 18, 114 S.Ct. at 2078 n. 18 (noting disagreement among courts); Schacht v. Caterpillar, Inc., 503 U.S. 926, 926-27, 112 S.Ct. 1306, 1306-07, 117 L.Ed.2d 527 (1992) (White, J., dissenting) (same). Although a majority of federal circuit courts who have addressed the issue have held that a court should consider potential defenses in the section 301 preemption analysis, this Court finds that the question remains unresolved in the Third Circuit.
In Capraro v. United Parcel Service Co., 993 F.2d 328, 332 (3d Cir.1993), the Court held that where either the plaintiff's claim or the defendant's defense relies on interpretation of a collective bargaining agreement, the Railway Labor Act ("RLA") preempts the claim. As the preemption standard under the RLA is "virtually identical" to that under the LMRA, Hawaiian Airlines, ___ U.S. at ___, 114 S.Ct. at 2247, Capraro provides a strong indication that the Third Circuit would consider issues raised in defense of state claims to be relevant to the preemption analysis.
However, in an earlier case arising directly under the LMRA, the Third Circuit arrived at a different conclusion. Berda v. CBS, Inc., 881 F.2d 20 (3d Cir.1989). Relying on Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 2433, 96 L.Ed.2d 318 (1987), the Berda Court held that "the fact that as part of a defense to a state law contract claim an employer might raise `a federal question, even a § 301 question,' does not mean that the claim is preempted. The preemption of state law engendered by section 301 is only occasioned when the claim raised `on the face of the complaint' substantially depends on interpretation of a collective bargaining agreement for its resolution." *645 Berda, 881 F.2d at 23-24, quoting Caterpillar, 482 U.S. at 398-99, 107 S.Ct. at 2433.
Berda should be viewed through the prism of the Supreme Court authority upon which it relies. Caterpillar was not a true section 301 preemption case; rather, the issue presented in that case was whether the doctrine of complete preemption applied to allow the defendants in the case to remove to federal court claims brought exclusively under state law.[14] Indeed, the Caterpillar Court specifically noted: "We intimate no view on the merits of ... any of the [section 301] preemption arguments discussed above." Caterpillar, 482 U.S. at 398 n. 13, 107 S.Ct. at 2433 n. 13. It also stated: "It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state court will have to interpret that agreement to decide whether the state claim survives." Id. See also Smith v. Colgate-Palmolive Co., 943 F.2d 764, 770 (7th Cir.1991) (interpreting Caterpillar to hold that claims might ultimately be preempted based on issues raised by defense). In light of this dicta in the Supreme Court case upon which Berda relies, as well as the Third Circuit's subsequent opinion in Capraro, this Court finds that Third Circuit precedent does not preclude an examination of potential defenses in the determination of whether section 301 preemption applies.
The Seventh, Eighth and Ninth Circuits have clearly stated that defenses are relevant in the preemption analysis.[15] As noted above, the Seventh Circuit cited Caterpillar to support its determination that it was "free to resolve this [preemption] question by looking beyond the plaintiffs' complaint to the defenses [defendant] asserts." Smith, 943 F.2d at 770. See also Loewen Group Int'l, Inc. v. Haberichter, 65 F.3d 1417, 1423 (7th Cir.1995).
Both the Ninth Circuit and the Eighth Circuit have cited Lingle, 486 U.S. at 407, 108 S.Ct. at 1882, in determining that potential defenses are relevant to the preemption analysis. Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1524 (9th Cir.1995); Hanks v. General Motors Corp., 859 F.2d 67, 70 (8th Cir.1988). Each of these cases refers to the same passage from the Lingle opinion, where, in determining that the retaliatory discharge claims at issue did not require interpretation of the collective bargaining agreement, the Lingle Court first noted that none of the elements of the tort required such an interpretation and then stated:
To defend against a retaliatory discharge claim, an employer must show that it had a nonretaliatory reason for the discharge; this purely factual inquiry likewise does not turn on the meaning of any provision of a collective-bargaining agreement. Thus, the state-law remedy in this case is `independent' of the collective-bargaining agreement ...: resolution of the state-law claim does not require construing the collective-bargaining agreement.
This clear indication that potential defenses are relevant to a section 301 preemption *646 analysis, coming one year after the Caterpillar decision, provides a further indication that the Supreme Court did not intend that its Caterpillar holding should apply beyond the context of the complete preemption doctrine.
These decisions comport with the policies and purposes of section 301 preemption. As set forth above, supra pp. 643-44, the reason courts have ascribed such broad preemptive effect to section 301 is to enforce properly negotiated arbitration provisions and to ensure uniformity of interpretation regarding collective bargaining agreements. A court can frustrate this policy just as effectively by deciding an issue that arises in a defense as it can by deciding that same issue when it arises as an element of the plaintiff's proof. Accordingly, this Court will consider not only the issues raised by the agents' claims but also the issues raised by Prudential's defenses in determining whether section 301 preemption applies.
Prudential moves to preempt two categories of claims: (1) those of Gordon, Weaver and Schulte for retaliatory discharge; and (2) Weaver's claims for defamation and tortious interference with business expectancies.[16] Prudential contends these claims will require the Court either to interpret specific provisions of the CBA or to examine relationships and practices governed by the CBA. For example, the company claims it terminated Schulte and Weaver for low sales production under the terms of its low production probation policy ("LPP policy"). Prudential asserts that the CBA supplied the authority under which it adopted the LPP policy, and that the CBA mandates grievance arbitration for disputes arising out of its application of the policy.
Similarly, Prudential states that it terminated Gordon when he failed to return to work after his disability period expired. Under the company's Service Disability Allowance Plan (the "disability plan"), expressly incorporated into the CBA in effect at the time, agents with less than five years' service are entitled to six months of disability leave benefits but face termination if they do not return to work at the end of the six-month period. Finally, Prudential defends Weaver's charges of defamation and tortious interference with business relations on the grounds that it owed its policyholders an obligation to disclose the information it imparted and that Weaver had no reasonable expectation of maintaining an independent business relationship with Prudential policyholders. Prudential contends that these relationships between the company, its agents and its policyholders are all governed by express and implied terms of the CBA.
I. Retaliatory Discharge
Under Illinois law, which applies to the claims of Weaver and Schulte, a retaliatory discharge complaint must allege (1) that the employer discharged the employee in retaliation for the employee's activities; and (2) that the discharge contravened a "clearly mandated public policy." Carter Coal Co. v. Human Rights Com'n, 261 Ill. App.3d 1, 9, 198 Ill.Dec. 740, 746, 633 N.E.2d 202, 208 (App.1994), citing Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). Under Kentucky law, upon which Gordon's claim is based, the tort of retaliatory discharge is similarly limited to "those situations where the evidence establishe[s] the employer was retaliating against the employee for exercising a right conferred by well-established legislative enactment or for refusing to violate the constitution or a statute." Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 69 (Ky. 1995). According to Prudential, "[t]he central issue in a retaliatory discharge claim is whether the employer had an illicit motive in terminating the employee; an evaluation of the employer's stated reasons for termination is inseparable from this determination." (Prudential Br. p. 17)
In Lingle, supra, the Supreme Court determined that section 301 did not preempt an Illinois state law claim that alleged retaliatory discharge for filing a workers compensation claim. The defendant in that case claimed that the reason for the discharge was that the plaintiff's workers compensation claim contained false information, *647 and that this constituted "just cause" for termination under the parties' collective bargaining agreement. The Supreme Court found that the state law claim was independent of the collective bargaining agreement because it turned on questions pertaining to "the conduct of the employee and the conduct and motivation of the employer," the determination of which did not require the Court to interpret any terms of the agreement. Id., 486 U.S. at 407, 108 S.Ct. at 1882. See also T.J. Gendron v. Chicago and North Western Transp. Co., 139 Ill.2d 422, 435, 151 Ill.Dec. 545, 551, 564 N.E.2d 1207, 1213 (1990) (citation omitted).
Prudential attempts to distinguish Lingle. It points out that it took adverse employment actions against Weaver, Schulte and Gordon under terms of the CBA that were much more specific than the "just cause" provision at issue in Lingle, and contends that, whereas the Lingle defendants simply referred to the "just cause" provision as a justification for terminating the plaintiff there, this Court must actually examine and interpret CBA terms to resolve the agents' retaliatory discharge claims.
Specifically, Prudential claims the Court will have to "evaluate" Prudential's claim that it terminated Weaver and Schulte for low sales production pursuant to the LPP policy which, in turn, will require the Court to examine the amount of commissions these agents earned during the relevant period and to compare their performance to that of similarly situated agents who were not terminated. To decide Gordon's retaliatory discharge claim, Prudential argues, the Court will have to resolve a disagreement between Prudential and Gordon as to whether or not Prudential's disability plan authorized it to terminate Gordon. (Prudential Br. p. 20)
There are several potential problems with Prudential's arguments. First, it is far from clear that resolution of the retaliatory discharge claims will ultimately turn on the application of any specific CBA terms. It does not appear that either Illinois or Kentucky requires a retaliatory discharge plaintiff to show that the employer's sole motivation for taking action against the plaintiff was retaliatory. See Szaflarski v. Lurie Co., 1991 WL 169356, * 6 (N.D.Ill.); First Property Mgt. Corp. v. Zarebidaki, 867 S.W.2d 185, 188 (Ky.1993); Willoughby v. GenCorp, Inc., 809 S.W.2d 858, 861 (Ky.App.1990). Accordingly, if the agents can trace Prudential's actions against them even partially to improper retaliatory motives, the Court may be able to resolve the issue in their favor without even consulting the CBA. See Thomas, 39 F.3d at 621.
Although Prudential contends that its defenses bring the CBA into play, this is not so apparent either. A court in this district recently declined to preempt a retaliatory discharge claim, holding: "Even if the employer's nonretaliatory explanation for the discharge depends on its interpretation of the collective bargaining agreement, `[s]o long as this interpretation was made in good faith and actually motivated ... the [employer's] actions,' it constitutes a valid defense `without regard to the correctness of the interpretation.'" Kube v. New Penn Motor Express, Inc., 865 F.Supp. 221, 231 (D.N.J.1994).[17] And, as an Illinois district court recently pointed out, courts in the Seventh Circuit have "consistently held that § 301 does not preempt retaliatory discharge cases" because "courts need not venture beyond a determination of whether an employer's termination decision was motivated by the employee's filing of a claim or other method of opposition." Pelech, 828 F.Supp. at 531 n. 7.
Prudential's position also assumes that the agents challenge its interpretation of the CBA. Clearly, if the parties all agree on the meaning of the relevant CBA provisions, the doctrine of preemption does not preclude the Court from deciding whether or not they constitute valid defenses. Hawaiian Airlines, Inc., ___ U.S. at ___, 114 S.Ct. at 2248 n. 8; Livadas, ___ U.S. at ___, 114 S.Ct. at 2078. The agents apparently do not challenge Prudential's authority under the CBA to adopt or implement the LPP policy, nor do *648 they assert that Prudential has violated the terms of the CBA, the LPP policy or any other internal rule, procedure or practice adopted thereunder.[18] (See Weaver/Schulte Opp. Br. p. 11)
Even to the extent that the agents attack the LPP policy directly for requiring production levels that can only be met through illegal sales practices, their claims do not appear to present an interpretation question. See Sayres v. Lancaster Press, Inc., 1994 WL 71277 (E.D.Pa.) (no preemption where plaintiff and defendant agreed on intent and meaning of provision in collective bargaining agreement but disagreed as to whether provision violated state law).
Douglas, 877 F.2d at 565, is distinguishable. There, plaintiff sued her employer for intentional infliction of emotional distress, alleging that the defendant had harassed her by arbitrarily denying ordinary employees' rights such as vacation and sick time and by unduly scrutinizing her work. Id. at 567-68. The Court found that "even though the complaint facially stated a state-law tort claim, [plaintiff] was actually seeking relief for alleged breaches of the collective bargaining agreement." Id. at 568. Here, by contrast, Weaver and Schulte have asserted claims that the Court will likely decide without substantial reference to, much less interpretation of, the CBA.
Arguments like Prudential's have fared poorly in other courts as well including the United States Supreme Court. In Hawaiian Airlines, ___ U.S. at ___, 114 S.Ct. at 2251,[19] an employee claimed his employer discharged him after he refused to sign maintenance records because he believed the maintenance had not been performed properly. The employer argued that the claim should be preempted because it would require the Court to interpret a collective bargaining agreement provision setting forth circumstances under which employees were required to sign maintenance records. The Court found that "[a]lthough such a determination would be required with regard to [the employee's] separate allegation of discharge in violation of the agreement ... [t]he state tort claims, by contrast, require only the purely factual inquiry into any retaliatory motive of the employer."[20]
Prudential cites Doran v. Thermatex Corp., 1989 WL 163700 (N.D.Ohio), Thomas, 39 F.3d 611, and Riccio, 1992 WL 281159, cases in which courts have preempted retaliatory discharge claims. All are distinguishable. In Doran, the plaintiff's claims were preempted only because he himself raised an issue requiring interpretation of the collective bargaining agreement. See Kube, 865 F.Supp. at 230 (noting that Doran Court preempted claim "because it was based on the allegation that the employer had incorrectly interpreted the collective bargaining agreement.") Similarly, the Court in Thomas, 39 F.3d at 620, explicitly based its preemption holding on the fact that the plaintiff himself had grounded his claim on an interpretation *649 of the relevant labor agreement. And in Riccio, 1992 WL 281159 at * 3, the Court simply held, without detailed explication, that it was "necessary to evaluate the terms of the CBA to determine whether [plaintiff] was wrongfully discharged." As set forth above, it does not appear that the agents' claims will require construction of the CBA.
For all of these reasons, the Court determines that section 301 does not mandate preemption of the agents' retaliatory discharge claims. The Court will also address Schulte's related claim for emotional distress arising out of his allegedly wrongful termination, for which Prudential requested preemption for the first time in its reply brief. As Prudential appears to concede, Schulte's claims for retaliatory discharge and emotional distress arise out of the same facts and implicate the CBA to the same degree. Accordingly, the Court will also deny Prudential's request for preemption of Weaver's emotional distress claim.
II. Defamation and Tortious Interference Claims
Weaver alleges that Prudential defamed him and interfered with his business relationships both during and after his employment with Prudential by informing individuals that Weaver was being investigated for unethical conduct, that he did not understand the insurance business, that he was inexperienced and that he "did not know what he was saying" when he told policyholders that Prudential had engaged in improper churning practices. (Weaver Resp. pp. 5, 13) Prudential argues that resolution of this claim requires interpretation of the CBA because the CBA establishes the contours of the relationships among Prudential, its agents and its policyholders, an understanding of which is necessary to evaluate Prudential's qualified privilege defense to the defamation action and to assess Weaver's reasonable expectations for purposes of the tortious interference claims. The Court will examine Weaver's defamation and tortious interference claims in turn.
A. Tortious Interference
To set forth a claim under Illinois law for tortious interference with existing business relations, Weaver would have to show:
(1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant's awareness of this contractual relation; (3) the defendant's intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant's wrongful conduct; and (5) damages.
HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 154-55, 137 Ill. Dec. 19, 23, 545 N.E.2d 672, 676 (1989). To establish a cause of action for tortious interference with prospective business relations, he must show
(1) his reasonable expectation of entering into a valid business relationship; (2) the defendant's knowledge of the plaintiff's expectancy; (3) purposeful interference by the defendant that prevents the plaintiff's legitimate expectancy from ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such interference.
Fellhauer v. City of Geneva, 142 Ill.2d 495, 511, 154 Ill.Dec. 649, 657, 568 N.E.2d 870, 878 (1991).
Prudential claims the Court cannot resolve the first element of either claim without referring to the CBA. Specifically, it contends that express and implied provisions of the CBA set forth the terms of the three-way relationship among Prudential, Prudential's agents and Prudential's policyholders. Prudential contends that the CBA prohibits the formation of contracts between its current agents and its policyholders by protecting all proprietary information regarding its policyholders and their insurance contracts and by making it clear that these contracts are between Prudential and its customers, not between agents and customers. It also points to provisions in the CBA which prohibit Prudential agents from selling or servicing other companies' insurance products while employed at Prudential. Finally, it notes that departed Prudential agents are (1) required to turn in all written information *650 they have received or generated regarding policyholders and their contracts and (2) precluded from soliciting Prudential policyholders for two years.
The Court agrees with Prudential that, in light of these express terms of the CBA, as well as the implied terms of the three-way relationship which may have developed thereunder, it will be impossible to determine the scope of Weaver's legitimate independent business relationships or reasonable business expectancies without construing the CBA.
In Pelech, 828 F.Supp. 525, the plaintiff asserted claims against three individuals for, among other things, tortious interference with her expectation of continued employment. The Court found that "[r]egardless of defendants' motivation for interfering with [plaintiff's] business expectancy ... litigation of this claim will necessarily involve the court in interpreting provisions of the collective bargaining agreement. At the very least, as a threshold issue, we will have to assess whether or not [plaintiff] had a valid business expectancy...." Id. at 533. The existence and extent of Weaver's actual or potential contractual relationships with Prudential policyholders or other potential insurance customers are no less dependent on an interpretation of the CBA than was the case in Pelech. Accordingly, Weaver's tortious interference claims are preempted and the Court will dismiss them.
Ordinarily, dismissals on grounds of preemption are with prejudice. Here, however, Weaver has asserted that the CBA ceased to apply to him when he left Prudential's employ and that at least a portion of his claims arose after his termination. In response to this argument, Prudential cites Merk v. Jewel Cos., Inc., 848 F.2d 761, 765 (7th Cir.1987), for the proposition that persons "covered by a collective bargaining agreement even those no longer working must exhaust their union remedies before filing suit." Although this response does not satisfactorily resolve the extent of the CBA's applicability to Weaver after his termination, Weaver was unable to cite any authority to delineate the CBA's post-termination reach nor did he specify the extent to which his claims arose after his termination. Accordingly, the Court will dismiss his tortious interference claims, but without prejudice.[21]
B. Defamation
Prudential argues that the Court will have to construe the CBA in order to evaluate Prudential's qualified privilege defense to Weaver's defamation claim. In Kuwik v. Starmark Star Marketing and Admin., Inc., 156 Ill.2d 16, 27, 188 Ill.Dec. 765, 770, 619 N.E.2d 129, 134 (1993), the Illinois Supreme Court adopted the approach taken by the Restatement (Second) of Torts in determining whether a conditional privilege exists. To establish qualified privilege under this test, Prudential must show the Court that it made its allegedly defamatory statements on one of three types of "privileged occasion," defined as
(1) situations in which some interest of the person who publishes the defamatory matter is involved
(2) situations in which some interest of the person to whom the matter is published or of some other third person is involved
(3) situations in which a recognized interest of the public is concerned.
Id., 156 Ill.2d at 29, 188 Ill.Dec. at 771, 619 N.E.2d at 135 (citation omitted).
Prudential claims it disclosed the alleged defamatory information to protect its own interests in maintaining relationships between itself and its policyholders. Prudential cites the same CBA sections it cites in defense of Weaver's tortious interference claim, e.g., provisions allegedly making clear that Prudential's policyholders were to be regarded as Prudential's customers and not Weaver's, prohibitions against Weaver's use of customer information for any purposes other than selling Prudential products, and the provision barring solicitation of Prudential customers for two years following his termination.
To show that a statement is conditionally privileged because it protects the *651 publisher's interest, the defendant must show that the circumstances under which it was made would "induce a correct or reasonable belief that (a) there is information that affects a sufficiently important interest of the publisher, and (b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest." Id. (emphasis supplied), quoting Restatement (Second) of Torts § 594 (1977). Even assuming that the information Prudential allegedly imparted to its policyholders about Weaver affected the interests it cites, this Court fails to see how the policyholders' knowledge of the information could possibly have been of service to Prudential in protecting those interests. Accordingly, Weaver's claims for defamation are not preempted.[22]
In Pelech, 828 F.Supp. at 531, the plaintiff sued for sex discrimination, retaliatory discharge, and related claims, including a claim that defendants defamed her when "they accused her of theft and then published these accusations, along with allegations that Pelech was involved in illegal drug trafficking and an illicit affair with a married co-worker, to her fellow employees and tenants of the building where she worked." The Court found that evaluating the claim under Illinois law,
in light of plaintiff's allegations and defendants' defenses, simply involves a determination of (1) whether Pelech did, or did not, steal a co-worker's calculator, (2) whether defendants did, or did not, publish statements that Pelech was engaged in drug trafficking, (3) whether the latter statements are true, and (4) whether defendants made the alleged statements with malice. Nothing in such an evaluation requires us to look to the [CBA], let alone interpret it.
Id. at 531. Although the Court noted that interpretation of a labor agreement might become necessary "where a defendant-employer claims qualified privilege, thus necessitating a review of the [CBA]'s terms to determine whether the disputed communications fell within the scope of defendant's duties," id. at 531 n. 8, in this case the Court has found that the alleged defamatory statements could not have fallen within the scope of Prudential's duties or the legitimate protection of its interests.
Moreover, as the Pelech Court noted, qualified privilege serves in large part to enhance the plaintiff's burden of proof under Illinois defamation law, requiring a showing of malice rather than simple negligence; accordingly, since the plaintiff in that case had alleged malice, the Court held that even if the defendants had asserted the qualified privilege as a defense it would have made no difference to the Court's determination that the defamation claim was not preempted. Id. See also Evans v. Keystone Consol. Indus., 884 F.Supp. 1209, 1217 (C.D.Ill.1995) (noting in preemption context that plaintiff had "conceded" the qualified privilege issue as well as "pled around it by claiming ... actual malice"). Weaver, too, has alleged that Prudential acted with malice and not merely negligently. Accordingly, even if Prudential's qualified privilege defense did require this Court to consult the CBA, it would not provide grounds for preemption.
Other courts have declined to preempt claims for defamation. In Mulligan v. United Parcel Service, Inc., 1995 WL 695097 (E.D.Pa.), in which a plaintiff sued for discharge in retaliation for filing a workers compensation claim as well as defamation and emotional distress arising out of the same event, the Court granted summary judgment for the defendant on the defamation claim on the ground of qualified privilege but did not preempt the claim on that ground.
The cases Prudential cites are distinguishable. In Kozlowsky v. K-Mart Corp., 1990 WL 90537 (D.N.J.) (Wolin, J.), this Court *652 preempted a plaintiff's claim that his supervisor and fellow employees had defamed him during grievance proceedings, at an unemployment hearing and in other contexts. The statements at issue consisted of allegedly false allegations that the plaintiff had violated a certain company policy. According to the defendant, the policy was set forth in the CBA; according to the plaintiff, it did not exist. Id. at * 3. The Court therefore held that it could not "determine the falsity of the statements at issue without inquiring into the existence of a company policy" and that, although this inquiry "might very well begin outside the CBA, the Court remains convinced that all avenues of inquiry would ultimately lead to the CBA." Id. at * 3-* 4. Here, by contrast, the truth or falsity of the allegedly defamatory statements has nothing to do with the CBA.
Similarly, in Hurst v. Consolidated Freightways Corp. of Delaware, 1990 WL 43934 (M.D.Pa.), the defendant employer had discharged the plaintiff for failing a drug test. Plaintiff alleged that the test had been improperly administered in his case and sued for, among other things, defamation. The Court held that "the determination of whether the statements [the employer] made were defamatory requires an interpretation of the [CBA] and the Testing Procedure." Id. at * 4. In other words, whether the defendant's statements regarding the plaintiff's termination were or were not defamatory depended upon the Court's determination of whether or not the testing procedure used complied with the procedures set forth in the relevant CBA. See also Stallard v. B-Line Sys., Inc., 799 F.Supp. 924, 926 (S.D.Ill.1992) (defamation claim preempted where offending statements involved allegations that plaintiff had violated rules adopted pursuant to collective bargaining agreement).
Both DeCoe, 32 F.3d 212, and Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir.1989), involved allegations of defamatory statements made in the context of procedures or proceedings specifically authorized or mandated by collective bargaining agreements. In DeCoe, the plaintiff alleged that co-workers defamed him by bringing unfounded sexual harassment charges against him with political motives. The Court found that the plaintiff could not establish essential elements of his claim without substantial reference to provisions in the collective bargaining agreement regarding sexual harassment procedures because his claim, essentially, was that his co-workers had "exceeded the scope of CBA-imposed rights and duties, in their attempts to prosecute sexual harassment allegations." Id. at 216.
Similarly, in Johnson, the plaintiff alleged that co-workers defamed him by falsely reporting that he had slashed the tires of a fellow employee during business hours in the workplace parking lot. Since the allegedly false report was made as part of the employer's investigation under collective bargaining agreement provisions, the Court preempted the plaintiff's claims insofar as they arose out of statements made within the company. Johnson, 876 F.2d at 624. It did not, however, preempt the plaintiff's claim against the victim of the tire-slashing episode for statements to his insurance company. Id. at 624-25.
In this case, the alleged defamatory statements were not even arguably made as part of any procedure or proceeding carried out pursuant to the CBA. Prudential does not claim that any provision specifically authorized or required it to inform its policyholders that Weaver was being investigated for ethical violations or to share with its policyholders its views on Weaver's knowledge, competence or job performance.
Furillo v. Dana Corp. Parish Div., 866 F.Supp. 842 (E.D.Pa.1994), has little relevance to this case because it involved allegedly defamatory statements uttered during a grievance hearing. Courts have been quick to preempt state defamation claims based upon statements made during such proceedings to avoid reexamining issues already addressed by the arbitrator. See id. at 852; Kozlowsky, 1990 WL 90537 at * 4.
Accordingly, the Court finds that Weaver's defamation claim is not preempted by section 301 and will allow the claim to proceed on the merits.
*653 CONCLUSION
For the foregoing reasons, the Court will deny Prudential's motion to compel arbitration and stay these proceedings. It will grant Prudential's motion to dismiss, without prejudice, Weaver's claims for tortious interference with business relations on the ground that section 301 preempts them, but will deny Prudential's motion to dismiss Weaver's defamation claim, Schulte's claim for emotional distress, and the retaliatory discharge claims of Weaver, Schulte and Gordon.
An appropriate Order is attached.
ORDER
In accordance with the Court's Opinion filed herewith,
It is on this 19th day of April, 1996
ORDERED that the motion of The Prudential Insurance Company of America ("Prudential"), to compel arbitration and stay these proceedings, is denied; and it is further
ORDERED that Prudential's motion to dismiss plaintiff Michael R. Weaver's ("Weaver") claims for tortious interference with business relations is granted, without prejudice; and it is further
ORDERED that Prudential's motion to dismiss Weaver's defamation claim is denied; and it is further
ORDERED that Prudential's motion to dismiss plaintiff Herbert Schulte's ("Schulte") claim for emotional distress is denied; and it is further
ORDERED that Prudential's motion to dismiss the retaliatory discharge claims of plaintiffs Weaver, Schulte and Michael D. Gordon, is denied; and it is further
ORDERED that the age discrimination claim of Schulte is dismissed with prejudice.
NOTES
[1] Gordon has not contested Prudential's motion to compel arbitration. Accordingly, the terms of his U-4 are not at issue.
[2] Each plaintiff's U-4 listed the National Association of Securities Dealers ("NASD") as an organization with which he was to register.
[3] The Court finds this second difference insignificant. Under ordinary rules of grammar and syntax, the quoted phrase from the later version modifies the language immediately preceding it, i.e., "as indicated in Item 10." In other words, the "as amended" language refers to the list of organizations with which the signing agent has registered, not to the rules and regulations of these organizations. This interpretation finds further support in the fact that a similar phrase, "registration with the organizations and states indicated in Item 10 as may be amended from time to time," appears in paragraph 2 of the later version. Thus, neither version specifically requires the agents to abide by the NASD arbitration rules "as amended;" however, such a specific provision was not necessary in light of the agents' clear agreement in paragraph 2 of the U-4 to comply with all NASD rules and regulations "as amended." See Wojcik v. Aetna Life Ins. and Annuity Co., 901 F.Supp. 1282, 1289 (N.D.Ill.), clarified, 916 F.Supp. 729 (N.D.Ill.). The reason paragraph 5 appears as a separate requirement is probably to alert agents who sign the U-4 that their claims may be subject to arbitration under NASD rules.
[4] For purposes of the arbitration discussion in this Opinion, "agents" will refer to Schulte, Weaver, Young and Martin. As noted above, Gordon has not contested Prudential's motion to compel arbitration at this time.
[5] The preamendment version did not contain the language "or arising out of the employment or termination of employment of associated person(s) with any member."
[6] Subparts 2 and 3 were also amended in 1993. The pre-amended version contained only 3 subparts, the second of which read "between or among members and public customers, or others...." Thus, the preamended version of Section 1 did not specifically authorize arbitration between members and "associated persons."
[7] The preamendment version did not contain the language "or arising out of the employment or termination of employment of such associated person(s) with such member."
[8] For purposes of the preemption discussion in this Opinion, "agents" will refer to Gordon, Schulte and Weaver.
[9] Over the course of the various agents' employment at Prudential, various versions of the CBA governed. As none of the differences are germane to this dispute, this Court's references will be to a single CBA.
[10] The agents also argue that, even if Prudential had a right to arbitrate their claims, it waived that right when it moved to transfer the agents' cases to this Court for pretrial proceedings. Given the Court's disposition of the motion, it need not address this argument. The Court also notes that, given the extensive briefing and complexity of issues raised on these motions, this Opinion will not specifically address each point the parties raise or each case they cite. The parties should rest assured, however, that the Court has considered them.
[11] In a later opinion in the same case, the Wojcik court "ma[d]e clear that [its] earlier determination that [defendant] could compel arbitration under the terms of the NASD Code was based on the facts that some of the conduct that is the subject of the complaint took place after the effective date of the NASD amendment while [plaintiff] was employed with [defendant], and that [plaintiff] filed his complaint after that date." Id. at 1284 (emphasis added).
[12] The Kidd Court also found, 32 F.3d at 519-20, that the Farrand holding created tension between the NASD Code and the U-4 itself, pursuant to which signatories agreed to arbitrate any dispute, claim or controversy that may arise "between me and my firm ... that is required to be arbitrated under the rules, constitutions, or bylaws of the organizations with which I register." (emphasis supplied). The Court noted that its holding would avoid "the strange situation wherein Appellees signed U-4 forms promising to arbitrate any disputes with their employer required to be arbitrated by the NASD at a time when the NASD rules did not mandate arbitrate of employer-employee disputes." Id. The Court finds this reasoning unconvincing. The U-4 is a universal form, to be used for registration with a multitude of different bodies. Some of these, including the New York Stock Exchange, unequivocally required arbitration of employment disputes at the time the agents signed their U-4s.
[13] The Sixth Circuit has outlined a two-part test for determining preemption questions, asking first "whether proof of the state law claim requires interpretation of collective bargaining agreement terms" and second "whether the right claimed by the plaintiff is created by the collective bargaining agreement or by state law." DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir.1994). Preemption is warranted under the Sixth Circuit test unless the claim (1) does not require contract interpretation and (2) does assert a right borne under state law. Id. Because this Court finds no support in the Lingle holding for the second portion of the Sixth Circuit test, and because no party has argued for its application to this case, we decline to adopt it.
[14] The Caterpillar Court described the complete preemption doctrine as follows: "On occasion, the court has concluded that the pre-emptive force of a statute is so `extraordinary' that it `converts and ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" 482 U.S. at 392, 107 S.Ct. at 2430, quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1987). It held that consideration under the complete preemption doctrine of issues raised in an affirmative defense would be inappropriate because of the strictures against such consideration contained in the well-pleaded complaint rule. Id., 482 U.S. at 398-99, 107 S.Ct. at 2433.
[15] The Sixth Circuit has taken the contrary position. In DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir.1994), the Court held the preemption inquiry should focus on "the essence of the plaintiff's claim.... If the plaintiff can prove all of the elements of his claim without the necessity of contract interpretation, then his claim is independent of the labor agreement." Thus, the Court held, a defendant's assertion of the contract as an affirmative defense cannot "turn an otherwise independent claim into a claim dependent on the labor contract." Id. (citation omitted). See also O'Shea v. Detroit News, 887 F.2d 683, 687 (6th Cir.1989) ("All the plaintiff has to allege is that an action was taken against him because of a motive impressible under [state law]. It is irrelevant to the preemption question whether or not the employer can defend by showing it had the right under the collective bargaining agreement to do what it did.")
[16] Schulte concedes that his Illinois and federal age discrimination claims are preempted.
[17] Although the Kube plaintiff's claims arose under New Jersey law, the Court specifically found that the elements for a retaliatory discharge claim in New Jersey "closely mirror" those in Illinois. Kube, 865 F.Supp. at 230-31.
[18] Although the Court need not examine the question in detail, we reject the argument, which Schulte and Weaver advance, that the LPP policy is not a collectively bargained agreement and as such cannot provide a basis for § 301 preemption. See Riccio v. Prudential Ins. Co. of America, 1992 WL 281159, * 2 (D.N.J.) (where plaintiff's claim relied on agency agreement which was in turn subject to CBA, agency agreement was "within the purview of section 301"); Thomas, 39 F.3d at 617-18.
[19] As noted supra p. 644, Hawaiian Airlines arose under the RLA rather than the LMRA, but the Supreme Court noted that the standards for preemption under the two statutes are "virtually identical." Id., ___ U.S. at ___, 114 S.Ct. at 2247.
[20] Prudential overestimates the scope of the preemption doctrine when it argues that the Court should preempt Weaver's and Schulte's claims in order to forestall the possibility that a judgment for plaintiffs would nullify Prudential's "management right" under the CBA to establish and modify its LPP policy. (Prudential Br. p. 19) The Supreme Court rejected such an argument in Hawaiian Airlines, ___ U.S. at ___, 114 S.Ct. at 2246, when it refused to preempt a discharged airline mechanic's state court action, stating: "Wholly apart from any provision of the CBA, petitioners had a state-law obligation not to fire respondent in violation of public policy or in retaliation for whistleblowing." See also Miller v. AT & T Network Sys., 850 F.2d 543, 546 (9th Cir.1988) (state law rights existing independent of labor contract rights are not preempted because a "contrary rule would permit unions and employers to exempt themselves from state labor standards"); Thomas, 39 F.3d at 620.
[21] The Court notes, however, that Weaver's pleadings on these claims would appear vulnerable to other dispositive motions from Prudential as well.
[22] The Court also notes, although Prudential does not raise the issue, that the alleged statements were not made under circumstances giving rise to a conditional privilege for protection of the recipient's interest, either. To show that, Prudential would have had to show that the circumstances would "induce a correct or reasonable belief that (a) there is information that affects a sufficiently important interest of the recipient or a third person, and (b) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter." Id., quoting Restatement (Second) of Torts § 595 (1977). Prudential has not alleged that it had a legal duty to disclose the alleged defamatory material to its policyholders. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265446/ | 657 F.Supp. 312 (1987)
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
Nahum VASKEVITCH, David Sofer, Plenmeer, Ltd., and Meda Establishment, Defendants.
No. 87 Civ. 1620 (RWS).
United States District Court, S.D. New York.
March 30, 1987.
*313 Gary Lynch, John H. Sturc, Thomas C. Newkirk, John Courtade, Gary Lloyd, L. Hilton Foster, Howard T. Carolan, Jr., Nancy E. Thofner, Lynn Leibovitz, of counsel, Arlen G. Loselle, Special Counsel, New York City, for S.E.C.
SWEET, District Judge.
A motion for a preliminary injunction, expedited discovery, and an accounting has been made by the Securities and Exchange Commission ("SEC"). The motion is unopposed and will be granted.
Prior Proceedings
For some months, the SEC has been conducting an investigation pursuant to a Formal Order of Private Investigation entitled In the Matter of Trading in Certain Securities by Plenmneer, Ltd. and Others (HO-1865), authorized and issued by the Commission on August 14, 1986. On March 10, 1987, the SEC learned that one of the targets of the investigation, against whom the SEC had gathered substantial evidence, had made immediate arrangements to transfer substantial assets from the United States to a Swiss bank. The SEC also learned that the target had in the previous two months transferred nearly $2 million out of the United States to offshore accounts. To prevent further dissipation of assets subject to disgorgement, the Commission applied to Part I of this court early in the morning on March 11, 1987 before filing the complaint. The Honorable Robert L. Carter, sitting in Part I, signed a Temporary Restraining Order returnable March 20, 1987. On March 20, the TRO was extended ten days from the bench in order to further examine the extensive documentary material submitted by the SEC in support of its application.
Facts
The facts set forth by the SEC in the affidavits, documents and transcribed testimony before the SEC establish a strong prima facie case of previous securities violations and a reasonable likelihood that the wrongs will be repeated. In addition, unless an asset freeze is granted, there is a reasonable likelihood that such funds may be secreted outside the jurisdiction of the court, and consequently that no funds will remain to satisfy any final judgment that may ultimately be granted.
In broad strokes, the facts of this case are simple, and the pattern (though not the scale) is typical to violations of the securities laws; someone entrusted with confidential information tips off an outsider who secretly trades on the basis of the information and reaps unfair profits at the expense of the average investor.
Nahum Vaskevitch ("Vaskevitch") was a managing director of the Mergers and Acquisitions department in the London Office of Merrill Lynch Pierce Fenner and Smith ("Merrill Lynch"). Given his high position and the collegial working relationships of Merrill Lynch's M & A Department, Vaskevitch was privy to vast amounts of confidential information about the company's clients.
David Sofer is an investor and businessman who conducts business in the United States, Israel, and other foreign nations. In the names of Plenmeer Ltd. ("Plenmeer") and Meda Establishment ("Meda"), both of which are also defendants, Sofer opened securities brokerage accounts at Russo Securities, Inc. ("Russo") and MKI Securities ("MKI"). The evidence submitted *314 by the SEC shows that Sofer had complete control over the accounts.
The affidavits and documents submitted by the SEC show a recurring pattern. Vaskevitch, in his position as the London M & A director, would learn valuable, confidential information about an acquisition under negotiation but not yet public. During the crucial periods in which the deals were negotiated, telephone calls were placed to Vaskevitch's home or office from telephones readily accessible to Sofer, such as the phones in his hotel suite or in offices of acquaintances whom he was visiting. After the calls were placed, Plenmeer and Meda would begin to buy heavily in the securities which Vaskevitch knew to be moving quickly toward a deal. An obvious inference from these facts is that Vaskevitch, in violation of his duty to Merrill Lynch and its customers, was passing confidential information to Sofer on which Sofer, knowing or having reason to know of Vaskevitch's breach, secretly traded for their mutual profit. Consequently, the SEC has made out a strong prima facie case of insider trading that implicates Sofer, Vaskevitch, Plenmeer and Meda.
The SEC has documented at least four extraordinary business transactions in which this pattern essentially repeated itself: a transaction involving Pay Less Drug Stores, Northwest, Inc.; a transaction involving the Saga Corporation; and an attempted transaction involving Par Pharmaceutical Co. In some deals, the SEC has documented the fact that telephone calls were placed, but even when they have not, Sofer's buying pattern tracks Vaskevitch's knowledge of changes in the deal. The SEC has calculated that the profits reaped by trading in the Plenmeer and Meda accounts in three of these securities exceeds $2 million.
The frequency and size of these transactions plainly sustain a strong inference that the wrong will be repeated. Certainly no moral compunctions appear to hinder the defendants, and Vaskevitchonly recently discharged from Merrill Lynchhas carried away a wealth of secrets from the days in which he was trusted by his colleagues.
Finally, it appears from the evidence presented by the SEC that as the heat of the investigation was increasingly brought to bear on Sofer, he took steps to move his considerable assets outside the United States. Under the circumstances it is an entirely fair inference that he was doing so to secrete their booty. Although the SEC has presented evidence that Vaskevitch, Sofer, Plenmeer and Meda have all been served, none have appeared and none have tendered any evidence in any form in opposition to the SEC's application.
Conclusions
When there is a dispute over facts, an evidentiary hearing is required before issuing a preliminary injunction. Here, however, the defendants have chosen not to appear and, therefore, not to oppose the SEC's facts. A defendant "cannot block issuance of an injunction simply by refusing to submit evidence on contested fact issues." Guardians Ass'n of New York Police Dept., Inc. v. Civil Service Commission, 490 F.2d 400, 403 (2d Cir.1973) (Friendly, J.). This application for a preliminary injunction therefore has been considered entirely on the basis of the uncontested documentary material submitted by the SEC.
These documents make out a prima facie case that by passing nonpublic information to Sofer to reap profits on the market, Vaskevitch has violated a fiduciary duty to Merrill Lynch and its clients. As the Supreme Court said in Dirks v. SEC, 463 U.S. 646, 659, 103 S.Ct. 3255, 3263-64, 77 L.Ed.2d 911 (1983), "Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they also may not give such information to an outsider for the same improper purpose of exploiting the information for their personal gain." See also 15 U.S.C. § 78j(b). In turn, a tippee inherits the tipper's fiduciary duty if the insider has breached his duty "and the tippee knows or should know that there has been a breach." Id. at 660, 103 S.Ct. at 3264. The facts adduced by *315 the SEC meet this standard with regard to Sofer.
As to the possibility of future illegal activity by the defendants, the Second Circuit has held: "Certainly, the commission of past illegal conduct is highly suggestive of the likelihood of future violations." SEC v. Management Dynamics, Inc., 515 F.2d 801, 807 (2d Cir.1975). The inference depends, of course, on the totality of the circumstances, id., and in this case is particularly bolstered by Vaskevitch's store of knowledge about deals that may still go forward.
The standard is that the SEC is entitled to a preliminary injunction if the evidence establishes a strong prima facie case of previous violations and a reasonable likelihood that the wrong will be repeated. Id. Because the SEC has done so, a preliminary injunction will issue. The same factual showing demonstrates the present need for expedited discovery and the preservation of whatever assets are presently held.
As to the issue of an asset freeze, the court certainly has the ability to ensure that the defendants' assets are not secreted or dissipated before entry of final judgment concluding this action. See, e.g., International Controls Corp. v. Vesco, 490 F.2d 1334, 1347 (2d Cir.1974); SEC v. General Refractories Co., 400 F.Supp. 1248, 1260 (D.D.C.1975). Given the defendants' efforts to move assets offshore, such a freeze will be ordered. Of course, if at some later stage the freeze appears too broad, it can be appropriately narrowed. See Vesco, 490 F.2d at 1347 & n. 18.
NOW, THEREFORE,
IT IS HEREBY ORDERED that the defendants, their officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, and each of them, be and hereby are preliminarily enjoined until judgment is entered in this cause from violating Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5 [17 C.F.R. § 240.10b-5] promulgated thereunder, by directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange,
(a) employing any device, scheme or artifice to defraud;
(b) making any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or
(c) engaging in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
IT IS FURTHER ORDERED that the defendants, their officers, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, and each of them, be and hereby are preliminarily enjoined until judgment is entered in this cause from violating Section 14(e) of the Exchange Act [15 U.S.C. 78n(e)] and Rule 14e-3 [17 C.F.R. 240.14e-3] promulgated thereunder, by directly or indirectly, in connection with any offer or request or invitation for tenders, engaging in any fraudulent, deceptive, or manipulative act or practice by:
(a) trading in the securities sought or to be sought in the tender offer while in possession of material information relating to said tender offer which they know or have reason to know is nonpublic and know or have reason to know was acquired directly or indirectly from the offering person, the issuer of the securities sought or to be sought in such tender offer, or any officer, director, partner, employee or other person acting on behalf of the offering person or such issuer, without disclosing such information and its source a reasonable time prior to trading; or
(b) communicating material information relating to a tender offer, which information they know or have reason to know is *316 nonpublic and know or have reason to know was acquired directly or indirectly from the offering person, the issuer of the securities sought or to be sought in the tender offer, or any person acting on behalf of the offering person or such issuer, to any other person under circumstances in which it is reasonably foreseeable that such communication is likely to result in violation of Rule 14e-3 [17 C.F.R. § 240.14e-3], promulgated under Section 14(e) of the Exchange Act [15 U.S.C. § 78n(e)].
IT IS FURTHER ORDERED that until final judgment is entered in this cause, the defendants, their officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, and each of them, shall hold and retain with their control, and otherwise prevent any concealment, disposition or dissipation whatsoever of any assets, funds or other property presently held by them or under their control; and each of the financial and brokerage institutions and all other persons or entities presently holding such assets, funds or other property shall hold and retain within his control and prohibit the withdrawal, removal, transfer or other disposal of any of the assets, funds or other property presently held by or under its control on behalf of each defendant, or in any other account maintained in the name or for the benefit of each such defendant.
IT IS FURTHER ORDERED that until otherwise ordered by the court, the defendants, their officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them, and each of them, be and hereby are restrained from destroying, mutilating, concealing, altering or disposing of any items, including but not limited to any books, records, documents, contracts, agreements, assignments, obligations or other property of the defendants herein, relating to the defendants or any of their securities, financial or business dealings.
IT IS FURTHER ORDERED that each of the defendants shall within ten (10) business days of the service of this order, file with this court and serve upon the Commission a listing of:
(a) all securities, funds or other assets of each defendant held in his or its name or in which he or it has any direct or indirect beneficial interest, from January 1, 1984, to the present, stating the location and disposition of each of such assets;
(b) each account with any financial institution or brokerage firm maintained in his or its name or in which he or it has any direct or indirect beneficial interest, from October 1, 1986, to the present, including but not limited to each account through which he or it directed securities transactions at any time since January 1, 1984, or in which proceeds from such transactions were held;
(c) transactions and the disposition of proceeds of transactions in securities conducted in each account identified in response to subparagraph (b) of this paragraph; and
(d) every transaction from January 1, 1984 to the present in which any funds or other assets of any kind were transferred from any defendant to any other defendant in this action.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266478/ | 165 Cal.App.4th 732 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
GREGORY DIAZ, Defendant and Appellant.
No. B203034.
Court of Appeals of California, Second District, Division Six.
July 30, 2008.
*734 Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PERREN, J.
A cell phone is seized from the person of an arrestee approximately one hour after he is transported to the police station. About 30 minutes later, while the arrestee is being interrogated, the arresting officer accesses the phone's text message folder and retrieves an incriminating message. We hold the officer's actions are lawful under the Fourth Amendment of the United States Constitution as a valid search incident to arrest.
Gregory Diaz appeals the judgment entered after he pled guilty to transportation of a controlled substance, Ecstasy (Health & Saf. Code, § 11379, *735 subd. (a).) The trial court suspended imposition of sentence and placed him on three years' formal probation. Diaz entered his plea after the court denied his motion to suppress evidence of a text message retrieved from his cell phone, which was searched approximately 90 minutes after his arrest, and his ensuing statements made when questioned about that message. He contends that the delayed warrantless search of his cell phone violated the Fourth Amendment because the phone was a "possession[] within an arrestee's immediate control," instead of an item "spatially limited to the person of the arrestee," as those terms are defined by United States v. Chadwick (1977) 433 U.S. 1, 16, footnote 10 [53 L.Ed.2d 538, 97 S.Ct. 2476], and United States v. Edwards (1974) 415 U.S. 800, 810 [39 L.Ed.2d 771, 94 S.Ct. 1234]. We conclude that the cell phone was immediately associated with Diaz's person at the time of his arrest, and was therefore properly subjected to a delayed warrantless search. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
At 2:50 p.m. on April 25, 2007, Diaz participated in a controlled buy of six Ecstasy pills. Diaz drove Lorenzo Hampton to the location in Thousand Oaks, and waited while Hampton and a confidential informant conducted the transaction in the back seat of his car. Diaz and Hampton were arrested shortly thereafter. When Diaz was searched at the scene, a small amount of marijuana was recovered from his back pocket. Diaz also had a cell phone in his possession, but it was not seized at that time.
Diaz was transported to the East County Sheriff's Station. At approximately 4:00 p.m., Diaz's cell phone was seized from his person and placed with the other evidence that had been collected. About 4:18 p.m., Diaz was interviewed by Detective Victor Fazio of the Ventura County Sheriff's Department. Diaz waived his Miranda[1] rights and denied any involvement in the incident. About 4:23 p.m., and while Diaz was still being interrogated, Detective Fazio retrieved Diaz's cell phone, searched the text message folder, and found a recent message addressed to Hampton stating "6 4 80." Based on his training and experience, the detective believed that this message referred to six Ecstasy pills for the price of $80. Diaz admitted his participation in the crime when confronted with this information.
Diaz pled not guilty to the charge of selling a controlled substance and moved to suppress the text message and his statements in response thereto pursuant to Penal Code section 1538.5. The trial court found that the cell phone was properly searched incident to Diaz's arrest, and denied the motion. In rejecting Diaz's argument that cell phones are akin to computers and *736 should be excluded from the search-incident-to-arrest exception to the warrant requirement, the trial court reasoned as follows: "[A]lthough it's true that officers sometimes do get search warrants for the specific purpose of looking into computers and to get cell phone messages from wireless providers and so forth, in this situation it seems to me that incident to the arrest search of his person and everything that that turned up is really fair game in terms of being evidence of a crime or instrumentality of a crime or whatever the theory might be. And under these circumstances I don't believe there's authority that a warrant was required. So the motion is denied."
DISCUSSION
(1) The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. Searches conducted without a warrant are "`per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'" (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 93 S.Ct. 2041], italics omitted.) One such exception applies to searches incident to an arrest. The exception provides that "it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape." (Chimel v. California (1969) 395 U.S. 752, 763 [23 L.Ed.2d 685, 89 S.Ct. 2034].) The police may also search "the arrestee's person" and the area "`within his immediate control'" to remove weapons and secure evidence. (Ibid.)
Diaz does not dispute that his cell phone was properly seized incident to his arrest and that the police could have searched it contemporaneous with the arrest. (See United States v. Robinson (1973) 414 U.S. 218, 235 [38 L.Ed.2d 427, 94 S.Ct. 467] [upholding warrantless search of cigarette package found in defendant's pocket as a search incident to arrest]; New York v. Belton (1981) 453 U.S. 454, 460-461 [69 L.Ed.2d 768, 101 S.Ct. 2860] [closed containers in the passenger compartment of a vehicle can be searched incident to passenger's arrest].) He contends, however, that the search of his cell phone approximately 90 minutes after his arrest violated the Fourth Amendment's requirement that a warrant be obtained for delayed searches of "possessions within an arrestee's immediate control." (United States v. Chadwick, supra, 433 U.S. at p. 16, fn. 10.) While he acknowledges that items "immediately associated with the person of the arrestee" are properly subject to delayed warrantless searches (id., at p. 15; see also United States v. Edwards, supra, 415 U.S. at pp. 801-803), he argues that cell phones should be afforded greater constitutional protection than other items an arrestee might carry on his or her person, such as wallets, letters, or address books, because they "have the capacity to store tremendous quantities of personal information." He also asserts that cell phones should be characterized differently from other items associated with the person of an arrestee because they *737 are "no more likely to be inside a person's pocket than inside a briefcase, backpack, or purse, or on a car seat or table, or plugged into a power source, or stashed inside any manner of separate bags or carrying containers." We are not persuaded.
(2) In United States v. Edwards, the court upheld the warrantless search of clothing that was seized from an arrestee approximately 10 hours after his arrest. (United States v. Edwards, supra, 415 U.S. at pp. 801-802.) The court reasoned that "once [an] accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other." (Id., at p. 807.) Subsequently, in United States v. Chadwick, the court invalidated the delayed search of a locked footlocker seized at the time of arrest. In so holding, the court concluded that "[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." (United States v. Chadwick, supra, 433 U.S. at p. 15, fn. omitted.)
(3) In reliance upon this authority, courts have upheld delayed warrantless searches of wallets (see, e.g., United States v. Passaro (9th Cir. 1980) 624 F.2d 938, 944), purses (People v. Decker (1986) 176 Cal.App.3d 1247, 1252 [222 Cal.Rptr. 689]), address books (U.S. v. Rodriguez (7th Cir. 1993) 995 F.2d 776, 777-778) and pagers (U.S. v. Chan (N.D.Cal. 1993) 830 F.Supp. 531, 536). Recently, one federal court applied the same rationale in upholding the warrantless search of a cell phone seized from the defendant incident to his arrest. In rejecting the defendant's claim that the search was not substantially contemporaneous with his arrest, the court stated: "In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant's person is still incident to the defendant's arrest. [Citation.] Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible." (U.S. v. Finley (5th Cir. 2007) 477 F.3d 250, 260, fn. 7.) The court also rejected the defendant's claim that his cell phone was a possession within his immediate control as contemplated by Chadwick, reasoning as follows: "Chadwick held that, `[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.' [Citation.] Finley's cell phone does not fit into the *738 category of `property not immediately associated with [his] person' because it was on his person at the time of his arrest." (Ibid.)
(4) We reach the same result here. Cell phones may contain personal information, but so do wallets, purses and the like. The fact that electronic devices are capable of storing vast amounts of private information does not give rise to a legitimate heightened expectation of privacy where, as here, the defendant is subject to a lawful arrest while carrying the device on his person.[2] Whether Diaz could have kept his cell phone in a briefcase or backpack is of no moment. Because he had the phone on his person at the time of his arrest, it was taken "`out of the realm of protection from police interest'" for a reasonable amount of time following the arrest. (United States v. Passaro, supra, 624 F.2d at p. 944; see also United States v. Edwards, supra, 415 U.S. at pp. 808-809 ["`While the legal arrest of a person should not destroy the privacy of his premises, it doesfor at least a reasonable time and to a reasonable extenttake his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.'"].)
(5) Diaz also contends that "a cell phone text message search exceeds the original rationale for searches incident to arrest: to ensure officer safety and to preserve evidence that could be concealed or destroyed." The United States Supreme Court has recognized, however, that "[a] police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." (United States v. Robinson, supra, 414 U.S. at p. 235, italics omitted.) In any event, "[t]he need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the *739 information stored on and deleted from cell phones or pagers." (U.S. v. Mercado-Nava (D.Kan. 2007) 486 F.Supp.2d 1271, 1278.)
(6) Because the warrantless search of Diaz's cell phone was a valid search incident to arrest, his motion to suppress the fruits of the search was properly denied. In light of our conclusion, we need not address Diaz's alternative claim that the booking or inventory search exception to the warrant requirement does not apply.
The judgment is affirmed.
Gilbert, P. J., and Coffee, J., concurred.
NOTES
[1] Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].
[2] The record does not disclose whether Diaz's phone was in his hand, a pocket of his clothing, or elsewhere on his person at the time it was seized. It is undisputed, however, that the phone was "on his person" as contemplated by U.S. v. Finley. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265586/ | 240 P.3d 1110 (2010)
237 Or. App. 584
Laurie PAUL, Plaintiff, and
Russell Gibson and William Weiller, DDS, individually and on behalf of all similarly-situated individuals, Plaintiffs-Appellants,
v.
PROVIDENCE HEALTH SYSTEM-OREGON, an Oregon corporation, Defendant-Respondent.
060101059; A137930.
Court of Appeals of Oregon.
Argued and Submitted April 2, 2009.
Decided October 6, 2010.
*1112 David F. Sugerman, Portland, argued the cause for appellants. With him on the briefs were Paul & Sugerman, PC, Brian S. Campf, and Brian S. Campf, P.C.
John F. McGrory, Jr., Portland, argued the cause for respondent. With him on the brief were Gregory A. Chaimov and Davis Wright Tremaine LLP.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
ARMSTRONG, J.
Plaintiffs brought this class action after unencrypted records containing personal, medical, and financial information of an estimated 365,000 patients were stolen from the car of one of defendant's employees. Plaintiffs alleged that defendant had negligently failed to safeguard those records and that defendant had violated the Unlawful Trade Practices Act (UTPA) by representing that it would keep patient information confidential when it knew that it had not taken sufficient steps to ensure that. Plaintiffs sought injunctive relief and damages for past and future costs of credit-monitoring services to protect against identity theft and for emotional distress. The trial court granted defendant's ORCP 21 A(8) motions to dismiss plaintiffs' complaint for failure to state a claim, concluding that the relief sought was barred by Lowe v. Philip Morris USA, Inc., 207 Or.App. 532, 142 P.3d 1079 (2006) (Lowe I), aff'd, 344 Or. 403, 183 P.3d 181 (2008) (Lowe II). The court also granted defendant's motion under ORCP 32 I to strike the class allegations from the complaint. Plaintiffs appeal, assigning error to both rulings. On appeal, we affirm the trial court's dismissal of plaintiffs' claims and, accordingly, do not reach plaintiffs' contention that the court erred in striking the class allegations.
I. BACKGROUND
When reviewing an order granting a motion to dismiss for failure to state a claim, we accept as true all well-pleaded facts in the complaint and give the party opposing the motion the benefit of all reasonable inferences that can be drawn from those facts. Caba v. Barker, 341 Or. 534, 536, 145 P.3d 174 (2006). Accordingly, we take the facts from plaintiffs' third amended complaint.
The facts alleged in this case are few: An employee of defendant, a medical care provider, took computer disks and tapes home and left them in his car overnight, and they were stolen. The disks and tapes contained unencrypted patient records for approximately 365,000 individuals; the records included names, addresses, phone numbers, Social Security numbers, and patient care information. Approximately three-and-one-half weeks after the theft, defendant sent letters to each person whose information was contained on the stolen disks and tapes, alerting them to the loss of data and advising them to take precautions to protect themselves. Plaintiffs subsequently filed this action as a class action on behalf of all people whose information was contained on the disks and tapes.
As a result of the theft, plaintiffs and class members allege that they have been exposed to "loss of privacy, to past and future out-of-pocket losses associated with monitoring credit reports and placing and maintaining fraud alerts, to credit injuries inherent in credit monitoring and placing and maintaining fraud alerts, and to repair costs of credit damage caused by the theft of data." Their complaint pleaded two claims for relief: negligence and violation of the UTPA.
In their claim for negligence, plaintiffs sought relief under theories of negligence per se and common-law negligence. The former was predicated on defendant's alleged failure to comply with federal and state law providing for the protection of medical information, specifically ORS 192.518 et seq. and 45 C.F.R. Parts 160 and 164. With regard to the latter claim, plaintiffs alleged that defendant was negligent "in failing to safeguard the data, in failing to encrypt it, in allowing its agent or employee to store such data in his or her car, and in failing to put in place policies that would protect such data from theft and disclosure." The injury alleged with respect to both theories was the same
"financial injury in the form of past and future costs to monitor credit reports, recurring *1113 future costs to notify and re-notify credit bureaus of fraud alerts, costs of notification to the Social Security Administration, the Immigration and Naturalization Agency, the Internal Revenue Service, State and Local law enforcement agencies and possible future costs of repair of identity theft."
In their second claim for relief, plaintiffs alleged that defendant had violated the UTPA[1] by (1) "representing that all information gathered to sell its services or goods would be safeguarded and kept confidential when it knew that it lacked adequate means to safeguard such information" and (2) "representing that the business of sale of services and goods would include privacy and confidentiality when it knew that the transactions were not confidential due to its inadequate data protection program."
With respect to both their negligence and UTPA claims, plaintiffs sought (1) injunctive relief, requiring defendant to "pay for ongoing monitoring of credit reports, notify Social Security of the data loss, fund recurring credit bureau fraud alerts and pay for the future cost of possible loss and damage due to identity theft"; (2) economic damages for "past out-of-pocket expenses for credit monitoring services, credit injury, postage, long distance and time loss from employment to address these issues"; and (3) noneconomic damages for "impairment of access to credit inherent in placing and maintaining fraud alerts, as well as worry and emotional distress associated with the initial disclosure and the risk of any subsequent identity theft." Plaintiffs did not allege that they or class members have been victims of fraud or identity theft as a result of the stolen disks and tapes or that the information stolen has otherwise been compromised.
Defendant moved under ORCP 21 A(8) to dismiss both of plaintiffs' claims on the basis that each failed to "state ultimate facts sufficient to state a claim"; it also moved to strike plaintiffs' class allegations pursuant to ORCP 32 I and 32 E(4). The trial court granted defendant's motions and subsequently entered a judgment dismissing plaintiffs' complaint with prejudice. As noted, plaintiffs challenge both rulings on appeal; however, our disposition with respect to the formerthat the trial court was correct in dismissing plaintiffs' claims under ORCP 21 A(8)obviates the need to address the latter.
II. ANALYSIS
A. Plaintiffs' Negligence Claim
Citing our opinion in Lowe I, the trial court concluded that plaintiffs had failed to state a claim for negligence because "the damages prayed for [are] not compensable under Oregon law."[2] Thus, the issue on appeal reduces to whether plaintiffs' complaint alleged an injury cognizable under Oregon negligence law. Zehr v. Haugen, 318 Or. 647, 656, 871 P.2d 1006 (1994) (harm to the plaintiff measurable in damages is a necessary element of negligence). As a result, although plaintiffs pleaded theories of common-law negligence and negligence per se, the distinction between the two has limited bearing on our analysis. See Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987) (in common-law negligence actions, "the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff"); Abraham v. T. Henry Construction, Inc., 230 Or.App. 564, 573, 217 P.3d 212 (2009), rev. allowed, 348 Or. 523, 236 P.3d 151 (2010) ("Negligence per se * * * is not a distinct cause of action; it is a negligence claim based on violation of a standard of care set out by statute or rule.").
*1114 To recover in negligence, a plaintiff must suffer harm "to an interest of a kind that the law protects against negligent invasion." Solberg v. Johnson, 306 Or. 484, 490, 760 P.2d 867 (1988). In Lowe II, the Supreme Court considered that principle in the context of a long-time cigarette smoker who brought an action for negligence against cigarette manufacturers. The complaint did not allege that the plaintiff had suffered any present physical harm; rather, it alleged that, as a result of the defendants' negligent manufacture and sale of cigarettes, the plaintiff (and all similarly situated Oregonians) suffered a "`significantly increased risk of developing lung cancer.'" 344 Or. at 408, 183 P.3d 181. That risk, the plaintiff alleged, created a need for periodic medical monitoring and smoking-cessation treatment, including public education. She sought injunctive relief ordering the defendants to provide that monitoring and treatment. The trial court dismissed the complaint on the basis that, because the plaintiff had not alleged a present physical injury, the complaint failed to state a claim for negligence. Id. at 407, 183 P.3d 181.
On appeal, the Supreme Court considered two questions: (1) whether a significantly increased risk of future physical injury is, by itself, a sufficient harm to state a claim in negligence; and (2) whether the economic cost of undergoing periodic medical screening constitutes a sufficient harm for that purpose. Id. at 419, 183 P.3d 181.
The court readily resolved the first question in the negative, based on its earlier precedents, particularly Zehr, 318 Or. at 656, 871 P.2d 1006, in which the court had held that "the threat of future harm, by itself, is insufficient as an allegation of damage in the context of a negligence claim," and Bollam v. Fireman's Fund Ins. Co., 302 Or. 343, 347, 730 P.2d 542 (1986), in which the court had quoted W. Page Keeton, Prosser & Keeton on Torts 165 (5th ed. 1984) for the proposition that "`[t]he threat of future harm, not yet realized, is not enough.'" Lowe II, 344 Or. at 410, 183 P.3d 181. Under the reasoning of those cases, the court explained, the plaintiff had failed to allege a cognizable injury for purposes of stating a negligence claim:
"Plaintiff has not alleged that her exposure to defendants' products has resulted in any present physical effect, much less any present physical harm. Nor has she alleged that any future physical harm to her is certain to follow as a result of that exposure. Rather, she has alleged only that her exposure to defendants' products has significantly increased the risk that she will contract lung cancer sometime in the future. It is sufficient for the purposes of this case to hold only that, under Zehr and Bollam, the threat of future physical harm that plaintiff has alleged is not sufficient to give rise to a negligence claim."
Id. at 411, 183 P.3d 181.
The court then turned to the second issuewhich most significantly bears on our analysis herethat is, whether, as the plaintiff argued, the economic cost of ongoing medical monitoring was a sufficient injury to provide a basis for a negligence claim. The court held that it was not, invoking the principle of Oregon negligence law that "[o]ne ordinarily is not liable for negligently causing a stranger's purely economic loss," but, rather, "liability for purely economic harm must be predicated on some duty of the negligent actor to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm." 344 Or. at 413, 183 P.3d 181 (internal quotation marks omitted; bracketed material in original). Because the plaintiff had not identified any such duty, the court held that the alleged economic harmthat is, the cost of medical screeningwas not a sufficient injury for purposes of stating a claim for negligence. Id. at 413-14, 183 P.3d 181.[3]
*1115 Here, plaintiffs have not alleged any physical injury, or even, as in Lowe, the threat of future physical injury. Rather, aside from their claim for emotional distress damages, which we address separately below, plaintiffs' claims allege purely economic loss without any injury to persons or property. As described above, the complaint alleges that plaintiffs "suffered financial injury" related to the costs of credit-monitoring services, notification, and fraud alerts, and possible future costs of repair of identity theft similar to the damages for medical monitoring alleged by the plaintiff in Lowe. Thus, as the Supreme Court re-emphasized in Lowe II, to state a legally sufficient claim for negligence, plaintiffs must, at the least, identify a duty that defendant owed thembeyond the common-law duty to exercise reasonable careto guard against that economic harm. 344 Or. at 413-14, 183 P.3d 181; see also Hale v. Groce, 304 Or. 281, 284, 744 P.2d 1289 (1987) ("It does not suffice that the harm is a foreseeable consequence of negligent conduct that may make one liable to someone else, for instance to a client. Some source of a duty outside the common law of negligence is required." (Citations omitted.)).
The existence of such a duty arises from the nature of the parties' relationship. Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 160, 843 P.2d 890 (1992) ("To resolve [whether the defendants owed the plaintiffs a duty to exercise reasonable care in communicating factual information to prevent economic losses to the plaintiffs], we examine the nature of the parties' relationship and compare that relationship to other relationships in which the law imposes a duty on parties to conduct themselves reasonably, so as to protect the other parties to the relationship."). In Conway v. Pacific University, 324 Or. 231, 240, 924 P.2d 818 (1996), the court further explained:
"In Onita, this court described the relationships summarized above [that is, those giving rise to the requisite heightened duty of care] as those in which the party who owes a duty of care is acting, `at least in part, * * * to further the economic interests of the "client," the person owed the duty of care.' 315 Or. at 161, 843 P.2d 890. Another way to characterize the types of relationships in which a heightened duty of care exists is that the party who owes the duty has a special responsibility toward the other party. This is so because the party who is owed the duty effectively has authorized the party who owes the duty to exercise independent judgment in the former party's behalf and in the former party's interests. In doing so, the party who is owed the duty is placed in a position of reliance upon the party who owes the duty; that is, because the former has given responsibility and control over the situation at issue to the latter, the former has a right to rely upon the latter to achieve a desired outcome or resolution.
"This special responsibility exists in situations in which one party has hired the other in a professional capacity, as well as in principal-agent and other similar relationships. It also exists in the type of situation described in Georgetown Realty [v. The Home Ins. Co., 313 Or. 97, 831 P.2d 7 (1992)], in which one party has relinquished control over the subject matter of the relationship to the other party and has placed its potential monetary liability in the other's hands. In all those relationships, one party has authorized the other to exercise independent judgment in his or her behalf and, consequently, the party who owes the duty has a special responsibility to administer, oversee, or otherwise take care of certain affairs belonging to the other party."
(Emphasis in original.)
As in Lowe, plaintiffs here have failed to identify any such heightened duty of care to protect against economic harm arising out of the relationship between themselves as patients and defendant as a health care provider, and, indeed, they never squarely address the question at all. To the extent they argue that federal and state laws protecting the confidentiality of health information establish that duty, we disagree.[4] Although we *1116 agree that those statutes and rules establish standards of conduct, any violation of those standards does not give rise to a negligence per se claim for economic damages in the absence of a special relationship that protects against that type of injury. Thus, as in Lowe II, plaintiffs have failed to allege a legally sufficient claim for negligence as a result of the economic damages that they have allegedly incurred (or will incur) in protecting against the increased risk of identity theft that they face as a result of the theft of their medical records.
Plaintiffs' claim for emotional distress damages presents a related, but slightly different question. The complaint alleged that
"plaintiffs and class members have suffered non-economic damages in the past and will do so in the future in the form of * * * worry and emotional distress associated with the initial disclosure and the risk of any future subsequent identify theft, all to their non-economic damage in amounts to be proved at trial."
(Emphasis added.)
Negligent infliction of emotional distress may be actionable without physical injury if the negligent conduct infringed on an interest beyond those that are protected under the general obligation to exercise reasonable care to prevent foreseeable harm. Hammond v. Central Lane Communications Center, 312 Or. 17, 23, 816 P.2d 593 (1991). Here, plaintiffs argue that they adequately pleaded an entitlement to emotional distress damages as a result of the special relationship between patients and medical providers. Plaintiffs point to the "common law recognition of the nature of the relationship, legislative enactments evincing the fundamental nature of confidentiality and the special relationship between patient and physician, federal regulations, and evidentiary privileges" as giving rise to that special relationship. (Footnotes omitted.)[5]
We begin with Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985), which, in turn, implicates ORS 677.190(5). In Humphers, the plaintiff, a mother who had placed her daughter for adoption, brought an action against the physician who had attended the birth of the daughter, seeking emotional distress damages for the physician's conduct in later helping to reveal the mother's identity to the daughter. The Supreme Court held that, "if [the] plaintiff has a claim, it arose from a breach by [the physician] of a professional duty to keep [the plaintiff's] secret rather than from a violation of [the] plaintiff's privacy." Id. at 709, 696 P.2d 527. The court reasoned:
"A physician's duty to keep medical and related information about a patient in confidence is beyond question. It is imposed by statute. ORS 677.190(5) provides for disqualifying or otherwise disciplining a physician for `willfully or negligently divulging a professional secret.' * * * The actionable wrong is the breach of duty in a confidential relationship[.]
"* * * Given [the constraints of other statutes that seek to preserve the secrecy of adoption records], there is no privilege to disregard the professional duty imposed by ORS 677.190(5) solely in order to satisfy the curiosity of the person who was given up for adoption."
*1117 Id. at 720-21, 696 P.2d 527. The court thus concluded that the plaintiff had a cognizable "claim of breach of confidentiality in a confidential relationship." Id. at 721, 696 P.2d 527. However, as defendant points out, that claim was based on the affirmativerather than negligentdisclosure of confidential information, which plaintiffs here do not allege.
In Stevens v. First Interstate Bank, 167 Or.App. 280, 286, 999 P.2d 551, rev. den., 331 Or. 429, 26 P.3d 148 (2000), we confirmed that a claim for "breach of confidentiality," such as that alleged in Humphers, is indeed predicated on the affirmative disclosure of confidential information. In Stevens, bank depositors brought an action against a bank for breach of confidentiality, alleging emotional distress and anxiety as a result of a bank employee's misappropriation of the depositors' personal and credit information. On appeal of the trial court's grant of summary judgment for the bank, we noted that the case did not involve the bank's (or its agent's) affirmative disclosure or misappropriation of information, nor did it involve a claim for damages other than emotional distress damages. Rather, it posed the following narrow question:
"Where a third party misappropriates personal or credit information that a depositor had provided to a bank, and that misappropriation is the result of the bank's failure to adequately protect the information from such misappropriation, is the bank liable for the depositor's resulting emotional distress?"
Id. at 285-86, 999 P.2d 551. So framed, we held that the plaintiffs could not sustain a claim for "breach of confidentiality." Citing, among other authorities, Humphers, 298 Or. at 717-19, 696 P.2d 527, we reasoned:
"The gravamen of the tort of breach of confidentiality, in Oregon and nationally, is the affirmative disclosure of information by a person to whom the confidential information has been entrusted. * * * Plaintiffs identify no authorityand we have found nonethat expands the tort to impose liability where the defendant has not affirmatively disclosed the `entrusted' or `confidential' information. We decline to do so."
Stevens, 167 Or.App. at 286, 999 P.2d 551 (emphasis in original; and additional citations omitted).
In this case, it is undisputed that plaintiffs' complaint does not allege that defendant affirmatively disclosed plaintiffs' confidential information. In fact, plaintiffs' allegations here are remarkably similar to those in Stevens, namely, that defendant failed to adequately protect plaintiffs' confidential information from misappropriation, and, as a result, they suffered "worry and emotional distress." Thus, contrary to plaintiffs' assertion, neither Humphers nor the "physician duty of confidentiality" prescribed in ORS 677.190(5) supports plaintiffs' position that they would be entitled to recover in negligence for emotional distress damages suffered as a result of defendant's conduct.
However, our analysis in Stevens did not end with breach of confidentiality. Rather, notwithstanding the failure of that claim, we did not foreclose the possibility of recovery under a common-law negligence theory if, as we explained, the plaintiffs could demonstrate that their relationship with the bank "gave rise to some distinct `legally protected interest'" beyond those protected by generic, common-law foreseeability. 167 Or.App. at 286-87, 999 P.2d 551 (citing Nearing v. Weaver, 295 Or. 702, 708, 670 P.2d 137 (1983), and Fazzolari, 303 Or. at 17, 734 P.2d 1326). We ultimately rejected the plaintiffs' contention that the relationship between the plaintiffs, as depositors, and their bank satisfied that requirement, reasoning that
"the depositor-bank relationship is, in our view, more analogous to a merchant-customer relationship in which the customer, in transacting a credit card or other noncash purchase, provides certain information to the merchant. There, as here, the relationship is at arm's length, to achieve a specific economic end, and does not require the merchant to exercise independent judgment on the customer's behalf."
*1118 Id. at 287-88, 999 P.2d 551 (citations and omitted).[6]
Significantly, in reaching that conclusion, we distinguished our earlier decision in Banaitis v. Mitsubishi Bank, Ltd., 129 Or.App. 371, 879 P.2d 1288 (1994), rev. dismissed, 321 Or. 511, 900 P.2d 508 (1995). Similar to this case, in Banaitis, there were federal and state statutes protecting the information at issue from disclosure, for example, the federal Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-3422; the federal Freedom of Information Act, 5 U.S.C. § 552; and various state criminal statutes "reflect[ing] a public interest in protecting the confidentiality of commercial financial records." 129 Or. App. at 378, 879 P.2d 1288. As we observed in Stevens, however, those statutes "pertain[ed] to a bank's obligation of nondisclosure" thus, supporting the availability of a breach of confidentiality claim in the face of an unauthorized affirmative disclosure of a customer's financial informationand did not "give[] rise to a distinct `legally protected interest,' transcending a common law duty of due care, to protect depositors' financial information from tortious misappropriation by third parties." 167 Or.App. at 290, 999 P.2d 551 (emphasis in original).
Plaintiffs nonetheless insist that there are "critical differences between medical patient information and bank customer information" and that "[t]he nature of the underlying injurydisclosure of patient confidencesdistinguishes this case from the litany of financial cases on which [defendant] relies." Plaintiffs fail, however, to identify those critical differences or explain why they compel a different result under the Conway construct. Specifically, plaintiffs fail to explain why the relationship between a medical provider and its patient gives rise to a duty on behalf of that provider to protect patient information from disclosure beyond the generic common-law duty to take reasonable steps to protect against foreseeable harmin other words, why that relationship creates a legally protected interest in having defendant guard patients from the possibility of emotional distress caused by the loss of their personal medical information through theft.
To the extent that plaintiffs' argument implicates the physician-patient relationship as a source for the heightened standard of care necessary to recover emotional distress damages, prior case law from this court and the Supreme Court does not support that view. Curtis v. MRI Imaging Services II, 327 Or. 9, 956 P.2d 960 (1998), is particularly instructive. The issue there was whether the plaintiff could recover damages from medical providers for purely psychological injuries that allegedly resulted from a negligently performed diagnostic test.[7] The trial court granted the defendants' motion for judgment on the pleadings, rejecting the plaintiff's argument that defendants had invaded a "legally protected interest" that arose out of the relationship between the defendants as medical providers and the plaintiff as patient.
The Supreme Court disagreed, concluding that the plaintiff had adequately pleaded a claim for relief.[8] The court explained:
*1119 "[W]hen the claim is that a medical practitioner breached a professional duty to guard against a specified medical harm, the fact that that harm is psychological rather than physical is not a bar to liability. Our holding should not be read to mean that medical professionals operate under a general duty to avoid any emotional harm that foreseeably might result from their conduct. In that regard, their duty is no greater than that of the population at large. But, where the standard of care in a particular medical profession recognizes the possibility of adverse psychological reactions or consequences as a medical concern and dictates that certain precautions be taken to avoid or minimize it, the law will not insulate persons in that profession from liability if they fail in those duties, thereby causing the contemplated harm."
327 Or. at 15-16, 956 P.2d 960 (emphasis added). Thus, as the court emphasized, "a medical professional may operate under a standard of care that includes a specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures." Id. at 14-15, 956 P.2d 960.
We applied that principle in Rustvold v. Taylor, 171 Or.App. 128, 14 P.3d 675 (2000), rev. dismissed, 332 Or. 305, 37 P.3d 147 (2001). In that case, the plaintiff brought an action for medical malpractice and negligent infliction of emotional distress against medical providers, including an anesthesiologist and a hospital, after she was given medicine using a syringe that may have been used with another patient. She claimed to have experienced emotional distress as a result, based on her fear of contracting blood-borne diseases, such as Hepatitis B or HIV. Id. at 130, 14 P.3d 675. The plaintiff argued that the trial court had erred in entering a summary judgment dismissing her claim for negligent infliction of emotional distress, among other theories, because her relationship with her medical providers created a legally protected interestthat is, a duty on behalf of those providers to protect her from all consequences of their negligencethat was invaded by the defendants' conduct. Id. at 137, 14 P.3d 675.
We held that the plaintiff had failed to establish the existence of a dutyapart from the duty to avoid foreseeable risk of harm necessary to satisfy the exception to the requirement that there be evidence of concomitant physical injury in order to recover for psychological distress. In doing so, we rejected the plaintiff's argument that the mere fact of the physician-patient relationship itself establishes that duty, holding that, although that relationship "can include a specific duty the violation of which may support a claim for negligent infliction of emotional distress" it does not "always * * * include such a specific duty." Id. at 138-39, 14 P.3d 675 (emphasis in original). We concluded that the plaintiff had failed to provide evidence of such a specific dutythat is, the plaintiff had failed to establish the existence of "`a standard of care that includes a specific duty to be aware of and guard against [the] particular psychological reactions or consequences'" the plaintiff allegedly suffered. Id. at 135, 14 P.3d 675 (quoting Curtis, 327 Or. at 14-15, 956 P.2d 960) (emphasis added).
This case suffers from an analogous deficiency. Here, plaintiffs have failed to identify an independent standard of care that includes the duty to guard against the specific harm they allegeviz., the emotional trauma associated with the loss of personal medical information as a result of theft.
In sum, plaintiffs have failed to identify a duty defendant owes them, beyond the duty to exercise reasonable care, sufficient to support a claim in negligence for economic damages. Plaintiffs have also failed to state a claim in negligence for their emotional distress damages because they do not allege an affirmative disclosure by defendant of their confidential personal and medical information, nor do they allege facts sufficient to support an inference of a specific professional duty by defendant to protect against emotional distress caused by the theft of that information. Thus, on this record, the trial *1120 court did not err in dismissing plaintiffs' negligence claim.
B. Plaintiffs' Unlawful Trade Practices Act Claim
Subject to an exception not applicable here, under the UTPA,
"any person who suffers any ascertainable loss of money or property, real or personal, as a result of willful use or employment by another person of a method, act or practice declared unlawful by ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or $200, whichever is greater. The court or the jury, as the case may be, may award punitive damages and the court may provide the equitable relief the court considers necessary or proper."
ORS 646.638(1) (2005).[9] Plaintiffs here alleged that defendant had violated ORS 646.608(1)(e) and (g), which provide:
"(1) A person engages in an unlawful practice when in the course of the person's business, vocation or occupation the person does any of the following:
"* * * * *
"(e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that they do not have * * *.
"* * * * *
"(g) Represents that real estate, goods or services are of a particular standard, quality, or grade, or that real estate or goods are of a particular style or model, if they are of another."
In particular, plaintiffs alleged that defendant violated those provisions by representing that "all information gathered to sell its services or goods would be safeguarded and kept confidential when it knew that it lacked adequate means to safeguard such information" and that "the business of sale of services and goods would include privacy and confidentiality when it knew that the transactions were not confidential due to its inadequate data protection program." As we understand it, plaintiffs' theory is that, as a provider of medical services to which state and federal confidentiality laws apply, defendant represented, in offering medical services and products for sale, that it would keep patients' private information confidential. Because defendant did not have procedures and practices in place to protect against the loss by theft of that information, patient records did not have that characteristic of confidentiality and, thus, defendant's services were not of the standard or quality represented.
The trial court granted defendant's motion to dismiss plaintiffs' claim, stating in its order only that "the damages prayed for [are] not compensable under Oregon law. See Lowe v. Philip Morris USA, Inc., 207 Or. App. 532[, 142 P.3d 1079 (2006), aff'd, 344 Or. 403, 183 P.3d 181 (2008)]." That statement suggests that the trial court dismissed plaintiffs' UTPA claim for failure to allege recoverable damages under the UTPAthat is, that plaintiffs failed to allege an "ascertainable loss" as a "result of" defendant's alleged misrepresentations. ORS 646.638(1).
Plaintiffs contest that ruling, arguing that they properly alleged "ascertainable loss" in the form of out-of-pocket expenses incurred for "credit monitoring services, credit injury, postage, long distance and time loss from employment." Defendant, on the other hand, contends that plaintiffs suffered no loss for the same reason that it believes their negligence claim failsmeaning, presumably, because any expenses incurred were in anticipation of preventing future harm, not the result of an existing harm. The trial court's reference to Lowe Iwhich did not address the UTPAsuggests the same.
We agree with the trial court. The question is whether plaintiffs have adequately pleaded "any ascertainable loss" as "a result of" defendant's alleged misrepresentation with respect to the confidentiality of patient records. "Ascertainable" means "capable of being discovered, observed, or established." Scott v. Western Int. Sales, Inc., 267 Or. 512, 515-16, 517 P.2d 661 (1973). *1121 Plaintiffs' alleged out-of-pocket expenses are themselves certainly "capable of being discovered, observed, or established"; in other words, they are "ascertainable." However, that does not answer the question whether those expenses represent a "loss" for purposes of the UTPA, that is, whether plaintiffs have alleged a "loss of money or property" as "a result of" the alleged misrepresentation.
"What the legislature meant by an `ascertainable loss of money or property' is not free from doubt."[10]Weigel v. Ron Tonkin Chevrolet Co., 298 Or. 127, 133, 690 P.2d 488 (1984). Under the typical UTPA scenario, the loss is evidenced by the difference in value between the product as represented by the defendant and as actually received by the plaintiff. See, e.g., Weigel, 298 Or. at 137, 690 P.2d 488 (difference in value between car sold as "new" and one that had previously been sold and returned to the dealer); Crooks v. Pay Less Drug Stores, 285 Or. 481, 592 P.2d 196 (1979) (difference between a razor's advertised price and its actual sale price); Byers v. Santiam Ford, Inc., 281 Or. 411, 574 P.2d 1122 (1978) (difference in value between new car and one driven as a demonstrator, damaged in an accident, and repaired before being sold as "new"); Scott, 267 Or. at 516, 517 P.2d 661 (difference in value between a tent that had merely a vent and was therefore worth less than a tent represented as having a zippered window); see also Feitler v. The Animation Celection, Inc., 170 Or.App. 702, 713, 13 P.3d 1044 (2000) (to obtain promised feature of exclusivity of drawing collection, the plaintiff would have had to purchase drawings that the defendant withheld; thus, the plaintiff incurred "ascertainable loss"). The recoverable losses in each of those cases have the features of representing essentially the difference in value between what the plaintiff paid for and what the plaintiff received.
Here, plaintiffs do not allege such a difference in value.[11] Rather, the thrust of plaintiffs' allegations is that, as a result of defendant's violation of the UTPA, they have been threatened with a loss of money or property due to the theft of their financial data, and they seek to recover damages for money that they have spent to forestall those threatened losses.
Although not directly on point, Gemignani v. Pete, 187 Or.App. 584, 71 P.3d 87, rev. den., 336 Or. 16, 77 P.3d 319 (2003), is helpful in understanding that the UTPA's contemplation of recovery for "ascertainable loss * * * as a result of" an allegedly unlawful practice is not without its limits. There, the plaintiffs, two couples who had contracted with the defendant to construct their homes, claimed that the defendant had misrepresented that their homes were free and clear of any liens or encumbrances by delivering warranty deeds stating as much, when, in fact, title was encumbered by a trust deed securing a line of credit to the defendant. One couple ultimately lost their home to the bank as a result. However, we held that that loss did not flow from any misrepresentations in the warranty deed but, instead, was the result of the bank's prior lien:
"By the time of the delivery of the [warranty] deed, they already had made all the required payments. Whether the deed warranted clear title or not, they still would have lost their home to the bank. *1122 Thus, the loss of their home was not an ascertainable loss within the meaning of the UTPA."
Id. at 591, 71 P.3d 87. Similarly, we rejected the plaintiffs' claim for attorney fees incurred in the defendant's subsequent bankruptcy proceedings, on the basis that their participation in those proceedings was "occasioned," not by the misrepresentations in the deed, but by the existence of the bank's lien. Id.
Here, too, we fail to understand how the money expended by plaintiffs is a loss occasioned by the alleged UTPA violations. In short, rather than allege a loss of money or property as a result of defendant's misrepresentations, plaintiffs' complaint alleges out-of-pocket expenses to prevent a potential loss of money or property (through identity theft) that might result from the misrepresentations. Plaintiffs have directed us to no authorityand we are aware of nonefor the proposition that such a "once removed" loss is a loss covered under the UTPA. We conclude that the money spent to prevent a potential ascertainable loss under the UTPA is not itself an "ascertainable loss of money or property, real or personal, as a result of" a violation of the statute.
III. CONCLUSION
In conclusion, we agree with the trial court that plaintiffs failed to state a legally sufficient claim for negligence or under the UTPA. The trial court properly granted defendant's motion to dismiss.
Affirmed.
NOTES
[1] Relevant provisions of the UTPA are set out in full below; in general, the act authorizes an individual action for damages and equitable relief by a person who has "suffer[ed] any ascertainable loss of money or property" as a result of an unlawful trade practice. ORS 646.638(1) (2005) (see 237 Or.App. 584 at 600 n. 9, 240 P.3d 1110 at 1120 n. 9).
[2] The Supreme Court issued its opinion (Lowe II) affirming our decision in Lowe I after the trial court had granted defendant's motions and dismissed plaintiffs' complaint.
[3] The court explicitly declined the plaintiff's suggestion that it should reconsider those "well-established" requirements of Oregon negligence law so that the defendants would be required to bear the costs of medical monitoring, consistently with the law of some other jurisdictions. The court noted that there were well-reasoned arguments on both sides of the issue but that they did not provide a basis for overruling the Oregon cases that had established Oregon's requirements. Lowe II, 344 Or. at 414-15, 183 P.3d 181.
[4] In the context of their negligence per se claim, plaintiffs refer to a standard of care established by those provisions. Specifically, they refer to ORS 192.518(1)(a), which states that "[i]t is the policy of the State of Oregon that an individual has [t]he right to have protected health information of the individual safeguarded from unlawful use or disclosure," and ORS 192.520, which governs the authorized uses or disclosures of that information. They also cite 45 C.F.R. § 164.306, authorized under the federal Health Insurance Portability and Accountability Act of 1996 (HIPPA). Among other things, that regulation requires "[c]overed entities" to "[e]nsure the confidentiality, integrity, and availability of all electronic protected health information the covered entity creates, receives, maintains, or transmits," and to "protect against any reasonably anticipated" threats to the security or unauthorized disclosure of that information. 45 C.F.R. § 164.306(a)(1)-(3).
[5] In particular, in addition to ORS 192.518 and 45 C.F.R. § 164.306 (described above, 237 Or. App. at 593 n. 4, 240 P.3d at 1115-16 n. 4), plaintiffs cite Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985); ORS 677.190(5) (authorizing the suspension or revocation of a license to practice medicine for "[w]illfully or negligently divulging a professional secret without the written consent of the patient"); OEC 504-1 (establishing physician-patient privilege); and OEC 504-2 (establishing nurse-patient privilege).
[6] The framework for that analysis, as we noted, was set out in Conway, 324 Or. at 241, 924 P.2d 818, which is quoted above. 237 Or.App. at 591-93, 240 P.3d at 1115.
[7] Specifically, the plaintiff alleged severe emotional distress resulting from the defendants' failure to (1) properly explain the nature of an MRI procedure, particularly its possible claustrophobic effects; (2) take an adequate history of his preexisting asthmatic condition; (3) properly monitor him during the procedure; and (4) terminate the procedure when he complained of breathing difficulties. Curtis, 327 Or. at 11, 956 P.2d 960.
[8] The court concluded that it need not decide whether, as the parties had argued it, "negligent infliction of emotional distress is the relevant claim," because the plaintiff had adequately pleaded a claim for relief based on "medical malpractice." Curtis, 327 Or. at 16, 956 P.2d 960. Subsequently, in Rathgeber v. James Hemenway, Inc., 335 Or. 404, 416, 69 P.3d 710 (2003), the court recognized that the analytical framework for the two types of claims may differ. There, the pleadings alleged a breach of fiduciary duty by a real estate professional, which, the court concluded, was essentially a claim for "real estate professional malpractice" to which the Curtis analysis applied. Id. at 417, 69 P.3d 710. The court concluded that, as with medical professionals, real estate professionals "do not have the general duty to protect against emotional harm," and, because the plaintiffs did not plead a "standard of care [governing the professional's conduct] that includes the duty to protect a client from emotional harm," the trial court erred in not striking the plaintiffs' allegation of emotional distress damages. Id. at 418, 69 P.3d 710.
[9] The statute has since been amended. Or. Laws 2009, ch. 327, § 1; Or. Laws 2009, ch. 552, §§ 6-7. Those amendments are inapplicable in this case.
[10] It is clear that the magnitude of the loss is not dispositive. As the court explained in Weigel, the text of the UTPA as a wholeincluding the $200 statutory damages provisionsuggests that,
"in enacting ORS 646.638, the legislature was concerned as much with devising sanctions for the prescribed standards of trade and commerce as with remedying private losses, and that such losses therefore should be viewed broadly. The private loss indeed may be so small that the common law likely would reject it as grounds for relief, yet it will support an action under the statute."
298 Or. at 135-36. That does not speak, however, to the core of the question presented here: whether plaintiffs have alleged a recoverable loss at all. The parties did not present any legislative history indicating the legislature's intent with respect to that question, nor have we discovered any. See State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009) (in determining the meaning of a statute, appellate court may consider legislative history proffered by the parties, if useful).
[11] In their brief on appeal, plaintiffs state, without elaboration, "Also, when defendant offered medical services that lacked proper confidentiality features, the services were worth less than the amounts charged." However, plaintiffs failed to include that allegation in their complaint; accordingly, we do not consider it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265336/ | 657 F.Supp. 751 (1987)
Clayton H. RICHARDSON, III, Plaintiff,
v.
CLAYTON & LAMBERT MANUFACTURING COMPANY, Defendant.
Civ. A. No. EC 84-3-D-D.
United States District Court, N.D. Mississippi, E.D.
January 20, 1987.
Opinion Denying Reconsideration April 17, 1987.
*752 John W. Crowell, Columbus, Miss., for plaintiff.
Tommie Williams, Lonnie Bailey, Greenwood, Miss., for defendant.
MEMORANDUM OPINION SUSTAINING PLAINTIFF'S MOTION FOR NEW TRIAL
DAVIDSON, District Judge.
The instant action was tried before a jury and a verdict was returned for the defendant on July 30, 1986. The plaintiff has now submitted a motion for a new trial based on several assertions of error. After a thorough and agonizing review of the facts of this case and the applicable law, the court is of the opinion that the jury instruction on assumption of the risk misled the jury and that a verdict based on this instruction combined with the other instructions given by the court will result in a miscarriage of justice.
The court instructed the jury that it must return a verdict for the defendant if it found that on the day of the accident the plaintiff (1) must have known of existing conditions in the Buntin pool, including the depth and contours of the pool, and (2) must have known that by diving from the side of the Buntin pool in the manner that he did and in the direction that he dived that he could be seriously injured, and (3) that despite his knowledge and appreciation, the plaintiff deliberately dove into the pool in the face of his knowledge of the depth and contour of the pool and was injured. The plaintiff asserts that an assumption instruction should not have been given under the facts of this case in conjunction with a comparative negligence instruction.
I.
The touchstone Mississippi authority concerning cases where the doctrines of assumption of risk and comparative negligence overlap is Braswell v. Economy Supply Co., 281 So.2d 669 (Miss.1973). In Braswell the Mississippi Supreme Court recognized that while assumption of the risk is a complete bar to recovery, contributory negligence under the Mississippi comparative negligence statute is not. Consequently, the court stated that it saw the need to adopt a rule to govern cases where the doctrines of assumption of risk and contributory negligence overlap and coincide. The Braswell court recognized that while the doctrine of assumption of risk has been applied in a few cases in Mississippi, the doctrine has been limited and restricted. Id. at 673. The court also noted that in jurisdictions such as Mississippi that have comparative negligence statutes apportioning damages between plaintiff and defendant, the doctrine of assumption of risk has been under sharp attack and consequently has been narrowed to encompass only very limited circumstances.
In formulating a rule to apply in Mississippi cases where the doctrines of assumption of risk and contributory negligence overlap, the Braswell court quoted W. Prosser, Law of Torts, 456-57 (4th ed. 1971) as follows:
In all probability [application of assumption of risk in a state that has a comparative negligence statute] defeats the basic intention of the statute, since it contains an absolute bar in the case of one important, and very common, type of negligent conduct on the part of the plaintiff. It can scarcely be supposed in reason that the legislature has intended to allow a partial recovery to the plaintiff who has been so negligent as not to discover his peril at all, and deny it to one who has at least exercised proper care in that respect, but has made a mistake of judgment in proceeding to encounter the danger after it is known....
All this goes to say, however, not that there is no such defense as assumption *753 of risk, but that in many cases, at least, where it overlaps and coincides with contributory negligence, the rule of that defense should be applied to it.
Braswell, 281 So.2d at 676-77 (emphasis in original). The Mississippi Supreme Court adopted the rule suggested in Prosser and held that "where assumption of risk overlaps and coincides with contributory negligence the rules of the defense of contributory negligence shall apply." Id. at 677. In making this ruling the Braswell court specifically noted, as suggested in Prosser, that it was not completely abolishing the defense of assumption of risk. The court also stated that its ruling did not prevent the defendant from asserting that the plaintiff's injury was caused by his own negligence, if his negligence was the sole proximate cause of the injury. Id. at 677.
In Yarbrough v. Phipps, 285 So.2d 788 (Miss.1973), the court noted that the Mississippi Supreme Court has approved instructions based on assumption of risk "[o]nly in rare circumstances". In order for the instruction to be given, the Yarbrough court held that the trial court must find that the plaintiff's conduct was "venturous". Id. at 790. Similarly, in Alley v. Praschak Machine Co., 366 So.2d 661 (Miss.1979), the Mississippi Supreme Court reiterated that an assumption of risk instruction should be given to a jury only under very limited circumstances. Justice Lee, writing for the court, stated:
The assumption of risk issue seldom should be submitted to a jury under Mississippi's Comparative Negligence Law. Where the assumption of risk doctrine would apply, the negligence of the injured person, for practical purposes, would have to be the sole proximate cause of the accident, and such issues should be submitted to the jury rather than assumption of risk.
Id. at 665 n. 1. Cf. Hill v. Dunaway, 487 So.2d 807, 801 n. 1 (Miss.1986).
In one federal district court case applying Mississippi law, the court stated: "Assumption of the risk is a jury question in all but the clearest cases." McGowan v. St. Regis Paper Co., 419 F.Supp. 742, 746 (S.D.Miss.1976), quoted in Bryant v. Nealey, 599 F.Supp. 248, 249 (N.D.Miss.1984). This statement was apparently based upon the case of Daves v. Reed, 222 So.2d 411, 414 (Miss.1969). Daves was decided prior to the ruling in Braswell that where assumption of risk and contributory negligence overlap, an assumption of risk instruction should not be submitted to the jury. In relying upon Daves, the district court apparently disregarded the ruling in Braswell as well as the strong statements by the Mississippi Supreme Court in Yarbrough and Alley that the issue should seldom be submitted to the jury. The statements in Yarbrough and in Alley are in sharp contrast to the statement in McGowan that "[a]ssumption of the risk is a jury question in all but the clearest cases." McGowan, 419 F.Supp. at 746. Although recognizing these statements by federal courts, this court is Erie bound to apply the law of Mississippi according to its statutes and as most recently stated by the Mississippi Supreme Court. Compare Hedgepeth v. Fruehauf Corp., 634 F.Supp. 93, 99 (S.D.Miss.1986) (In products liability case district court cited Braswell and stated that when assumption of risk and contributory negligence overlap, "the giving of an instruction on assumption of risk is, upon timely objection, reversible error.")
While the language of the Mississippi Supreme Court in Braswell, Alley and Yarbrough is very negative concerning when an assumption instruction should be given, the court in each of these cases and in other cases has consistently pointed out that assumption of risk is still a viable, although limited, defense in Mississippi. For example, in Nichols v. Western Auto Supply Co., Inc., 477 So.2d 261 (Miss. 1985), the plaintiff did not request a comparative negligence instruction, and none was given. An assumption of risk instruction was requested by the defendant and was given by the trial court. In upholding the giving of the instruction, the Mississippi Supreme Court stated: "Regardless of the feeling of attorneys and judges on assumption of risk, the doctrine has not been abolished in Mississippi, and [the instruction] *754 properly submitted the question to the jury." Id. at 264.[1]
These cases and other Mississippi cases indicate that in determining whether an assumption of risk instruction should be given the court must analyze the circumstances of each case. If the circumstances show that the plaintiff may have assumed the risk but also indicate that the plaintiff may have been negligent without assuming the risk, then the two doctrines overlap, and only the comparative negligence instruction should be given.[2] In such a case an instruction on assumption of risk should not be given unless the court finds that the circumstances of the case qualify the case as one of those rare cases where the plaintiff's conduct is deemed to be venturous. Even in these rare cases, the Mississippi Supreme Court has indicated that an instruction on sole proximate cause would be preferable over an assumption of risk instruction.[3]
II.
The facts of the instant case indicate that the doctrines of contributory negligence and assumption of risk do overlap. Thus, if the court applies the general rule stated in Braswell, it must hold that the assumption of risk instruction in conjunction with the comparative negligence instruction was improvidently granted. This result may be avoided only if the court finds that this case qualifies as one of those rare cases where the plaintiff's conduct was so venturous that the assumption of risk instruction was justified under the circumstances.
In order for this court to determine whether the plaintiff's conduct in the instant case rises to that level of venturous conduct deemed to justify the giving of an assumption of risk instruction, the court must review and compare the facts of relevant Mississippi cases in which the assumption of risk instruction was found to be proper and the facts of relevant cases in which the assumption instruction was deemed improper.[4]
In Alley v. Praschak Machine Co., 366 So.2d 661 (Miss.1979), the plaintiff had been severely injured while working on a machine built by the defendant. The plaintiff was adjusting a switch on the machine and while adjusting the machine stuck his left arm across a chain on the machine for the purpose of holding to a part of the machine. The adjustment that he made to the machine activated the chain. The chain caught the plaintiff's arm and caused it to be amputated. The trial court in Alley submitted an assumption of risk instruction to the jury along with other instructions, and the jury returned a verdict for the defendant. The plaintiff appealed arguing that the trial court improperly submitted the assumption of risk instruction to the jury.
In determining whether the assumption instruction was appropriate in that case, the Alley court quoted Braswell as follows:
Where the facts are such that the plaintiff must have had knowledge of the *755 hazard, the situation is equivalent to actual knowledge and there may be assumption of the risk. In some cases the circumstances may show as a matter of law that the risk was understood and appreciated and often they may present in that particular a question of fact for the jury. Also, the plaintiff may not close his eyes to obvious dangers, and cannot recover where he was in possession of fact from which he would be legally charged with appreciation of the danger.
Alley, 366 So.2d at 664 (quoting Braswell, 281 So.2d at 674-75). In Alley, the plaintiff testified that he knew that exposing his arm to the chain while the power was on constituted an open and obvious hazard to his arm. Although the plaintiff testified that he thought the power was off, a fellow employee testified that he had asked the plaintiff: "Do you want me to cut the power off?" The employee further testified that the plaintiff had replied: "No, just leave it alone and get out of the way." A bystander also testified that he heard the plaintiff tell another employee to turn the power on. The evidence showed that the plaintiff was an experienced electrician and that he was familiar with and appreciated the danger associated with his activity. The Alley court held that since the evidence was so strong that the plaintiff knew that the power was on and that the plaintiff clearly knew that his activity would subject him to highly dangerous electricity when the power was on, the instruction on assumption of risk was proper. Alley, 366 So.2d at 665.
In Singleton v. Wiley, 372 So.2d 272 (Miss.1979), the plaintiff, a high school student, had been injured when he jumped on the back of a car in motion and fell. The evidence indicated that the defendant, the driver of the car, was looking ahead and did not see the plaintiff jump on the car and did not hear the plaintiff yell to "hold up". Other evidence indicated that the plaintiff may not even have yelled to the defendant. Also, there was no evidence that the defendant was driving negligently. Under these circumstances the Mississippi Supreme Court held that the Singleton case qualified as one of those rare cases where an assumption of risk instruction could be given in conjunction with a comparative negligence instruction.[5]
In Nichols v. Western Auto Supply Co., 477 So.2d 261 (Miss.1985), the defendants were sued for the wrongful death of Nichols based on a claim of strict liability. The defendants had manufactured and sold a gas stove to the son of the deceased. After *756 installation of the stove, several people were shocked in various areas of the Nichols house. The uncontradicted facts showed the following:
(1) Clarence Nichols, the decedent, was aware that Larry Nichols and other members of his family had been slightly shocked by the water pipes on a number of occasions prior to July 26, 1979.
(2) The decedent was present on July 26, 1979, when the South Central Bell employee was badly shocked.
(3) The decedent was informed by the employees for South Central Bell that something should be done about the energized water pipes and his reply was that he had built the house and knew more about it and he would take care of it himself.
(4) The South Central Bell employees refused to do any further work under the house until Clarence Nichols turned the power off so as to eliminate the danger of shock from the water pipes.
(5) Clarence Nichols was informed by his son that he had been badly shocked later that same day in attempting to turn on the water faucet in the carport.
(6) The decedent had been shocked by the pipes himself prior to the accident.
(7) Knowing all of this, the decedent crawled up under the house with a drop light to look at the water pipes. He was not under the house to do anything, not with any tools, but solely for the purpose of making a "visual inspection."
(8) The decedent was aware enough of the danger to instruct his son not to come under the house because the pipes were "hot."
(9) Despite this warning to his son, Clarence Nichols continued to crawl under the house, then turned back without having done anything, and in crawling out came in contact with an energized pipe, was shocked and subsequently died.
Id. at 263. Although a frayed wire was found on the stove, there was apparently no evidence that this wire on the stove was the proximate cause of the accident. The evidence indicated that the accident was caused by faulty wiring containing no grounding that had been installed by the decedent and the decedent's use of a plug that eliminated grounding. Based on these extreme facts, the Nichols court held that the assumption instruction had been properly given.
An assumption of risk instruction was also found to be proper in Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221 (5th Cir.1984) (applying Mississippi law). Although asserting that the assumption instruction given was improper, the appellant in Alexander apparently did not raise the Braswell rule concerning the proper doctrine to apply where the doctrines of assumption of risk and contributory negligence overlap.[6] The issue in Alexander was limited to the question of whether the evidence in the case showed that each of the elements necessary to establish a prima facie defense based on assumption of risk had been met. The Alexander court did not mention nor discuss the "overlapping" rule established in Braswell. Thus, while Alexander is instructive in determining whether the elements of the defense of assumption of risk have been established, it does not provide guidance on what path the Fifth Circuit would follow in applying Mississippi law if it found that the doctrines of assumption of risk and contributory negligence overlapped under the facts of a particular case.
The facts in Nichols, Alley and Singleton must be contrasted to the facts in cases where the court held that the assumption instruction was improper. In Braswell, the plaintiff was injured when he ventured into a lumber shed owned by the defendant. The defendant's salesman had told the plaintiff that he could go inspect the lumber and pointed to the lumber shed. The plaintiff entered the lumber shed and sustained injuries when a stack of lumber fell on him.
At the trial of the plaintiff's action against the defendant for personal injuries, *757 the defendant asserted that the plaintiff "must have known" that it was unsafe to enter a lumber bin in the lumber shed next to a high stack of lumber that could easily be tipped over. At the time of the accident the plaintiff was thoroughly familiar with the characteristics and use of lumber and had been in the construction business for 27 years. Based on this evidence the court granted an assumption of risk instruction. The jury returned a verdict for the defendant. On appeal, the Mississippi Supreme Court held that despite the fact that the plaintiff had been in the construction business for 27 years and despite his familiarity with the lumber trade, the giving of an assumption of risk instruction based on the fact that the plaintiff must have known of the risk he was encountering was reversible error because under the facts of that case the doctrines of assumption of risk and comparative negligence overlapped and coincided. Braswell, 281 So.2d at 677.[7]
The Braswell court stated that giving the assumption instruction was error because the instruction denied the jury the right to weigh the respective negligence, if any, of the parties. Braswell, 281 So.2d at 676 (citing and comparing Wallace v. J.C. Penney Co., 236 Miss. 367, 109 So.2d 876 (1959)).[8]
In Yarbrough, a truck had overturned in a ditch beside the road. The defendant approached after the accident and parked his car at an angle that would allow his headlights to shine down into the ditch onto the truck. The car was parked partially on the curb of the road and partially on the paved portion of the road. The plaintiff and others also parked their cars. They stood on the west shoulder of the road beside the defendant's parked car. An oncoming car struck the defendant's car and then struck the plaintiff. The plaintiff stated that she knew that the defendant's car, beside which she had been standing, was in a dangerous position. The plaintiff sued the defendant charging him with multiple acts of negligence. The defendant asserted that since the plaintiff knew of the danger, she had assumed the risk. The trial court allowed a jury instruction on assumption of the risk to be submitted to the jury, and a verdict was returned for the defendant.
On appeal, the Yarbrough court held that in order for an assumption of risk instruction to be proper, the plaintiff's conduct must be extremely venturous. See Yarbrough, 285 So.2d at 790 (assumption instruction should only be employed where the plaintiff's conduct is "much more venturous than was the conduct of [plaintiff] here"). See also McLeod v. Whitten, 413 So.2d 1020 (Miss.1982).
III.
After analyzing these Mississippi cases, the court is of the opinion that the *758 facts of the instant case demonstrate that the plaintiff's conduct did not rise to that level of venturousness that would justify the giving of an assumption of risk instruction in conjunction with an instruction on comparative negligence. In the instant case the evidence indicated that the plaintiff was an experienced swimmer. He was familiar with the Buntin pool and had gone swimming in it a number of times. The plaintiff testified that he knew that it was unsafe to dive into shallow water or water of an unknown depth. The evidence was conflicting on whether Richardson hit the side slope of the pool or the slope of the pool between the deep end and the shallow end. Assuming that the plaintiff dived toward and hit the slope between the deep end and shallow end, for it to be found that Richardson had assumed the risk, it would have to be found initially that since Richardson knew that it was unsafe to dive into shallow water, he "must have known" that diving toward the shallow end from the deep end of the pool exposed him to extreme risk. Although the plaintiff was participating in a game of sharks and minnows, he testified that prior to making the dive he "looked and thought it was deep enough. It looked like I could go. I thought I was making a safe dive."[9] The plaintiff had not been warned not to dive from the side of the pool in the deep end. No evidence at trial indicated that others using the pool knew not to make a dive such as the dive the plaintiff made in that area of the pool, or that it was obvious that such a dive should not be made. Compare Alley, 366 So.2d at 664-65 and Nichols, 477 So.2d at 262-63. Richardson was not aware that anyone had ever been injured in the Buntin pool or similar pools by diving from the side of the pool in the deep end in the manner that he dived. Compare Nichols at 263.
While the plaintiff's conduct in diving into the pool while playing sharks and minnows may have been venturous, the court is of the opinion that in order for the assumption doctrine to be applicable, the plaintiff's conduct would have to be "much more venturous than was the conduct of [Richardson] here." See Yarbrough, 285 So.2d at 790.
The evidence demonstrated that the plaintiff probably was guilty of contributory negligence in that he may have not acted as a reasonably prudent person would act or did not know what a reasonably prudent person should have known under the same circumstances. Since issues concerning the defendant's negligence, the plaintiff's negligence, and assumption of the risk existed in this case, the assumption instruction should not have been given unless the court can categorize this case as one of those rare cases where the assumption of risk instruction is deemed appropriate. After thorough analysis and with the aid of 20-20 hindsight, the court finds that this categorization cannot be made.
Based on the preceding discussion, the court is of the opinion that a new trial should be and is hereby granted. The court thus finds it unnecessary to address the plaintiff's remaining assertions of error. A review of those assertions reveals that they are for the most part meritless.
A separate order in conformance with this opinion shall this day be entered.
*759 MEMORANDUM OPINION DENYING DEFENDANT'S MOTION TO RECONSIDER OR IN THE ALTERNATIVE FOR CERTIFICATION OF INTERLOCUTORY APPEAL
Presently before the court is a motion by the defendant for the court to reconsider its order granting plaintiff a new trial in this cause. Alternatively, the defendant moves that this court grant an interlocutory appeal to the Fifth Circuit. After reviewing the defendant's motion and brief, the court is of the opinion that the motion should be denied.
The defendant suggests that the court has misconstrued the holding in Braswell v. Economy Supply Company, 281 So.2d 669 (Miss.1973). The defendant submits that "in Braswell, the Mississippi Supreme Court meant that where contributory negligence and assumption of the risk coincide, instructions should be granted on both doctrines if supported by the evidence." The court has restudied Braswell and is of the opinion that the Braswell opinion was properly construed in the court's memorandum opinion granting plaintiff a new trial. If the Braswell court had intended that instructions on both comparative negligence and assumption of risk be given in any case if supported by the evidence as the defendant asserts, it would not have stated the issue as "whether assumption of risk or contributory negligence should be applied to a given set of facts." Braswell, 281 So.2d at 675 (emphasis added).
The defendant quotes Singleton v. Wiley, 372 So.2d 272 (Miss.1979) wherein the Mississippi Supreme Court held that the trial court properly instructed the jury in that case on assumption of risk and comparative negligence. In regard to the trial court's instructions, the Mississippi Supreme Court stated:
We feel that considering all of the instructions together, both those for the Plaintiff and those for the Defendant, that the jury was properly and fully instructed and furnished sufficient guidelines to properly decide the questions submitted to them.
Id. at 275. As this court stated in its memorandum opinion, it appears that this holding in Singleton was based on a misquotation of the holding in Braswell. The Singleton court did not state that it was overruling or modifying Braswell. Rather, it clearly appears that the Singleton court was trying to follow Braswell but based its holding on a misquotation from Braswell. Therefore, although Singleton was viewed as authority by this court in applying Mississippi law, it was and must be viewed in its proper context with Braswell.
The defendant also asserts that if the assumption of risk instruction is not allowed under the facts of the instant case it will be denied its right to have its theory of the case presented to the jury. Courts and commentators around the nation have recognized, however, that the assumption of risk defense is subsumed into the doctrine of comparative negligence. A comparative negligence instruction allows the jury to consider any voluntary encounter of a known danger by the plaintiff as well as other relevant conduct by the plaintiff and also allows it to compare this conduct by the plaintiff to the conduct or product of the defendant. Thus, defendant's right to have its theory of the case presented to the jury is preserved under a comparative negligence instruction.
With a comparative negligence instruction the jury is allowed to compare the plaintiff's conduct, whether that conduct is characterized as assumption of risk or negligence, with the conduct of the defendant. An assumption of risk instruction does not allow the jury to make this comparison. When a jury is given both an assumption of risk instruction and a comparative negligence instruction, it is faced with a perplexing predicament: On one hand the court tells the jury under the comparative negligence instruction to compare the conduct of the parties. On the other hand with the assumption of risk instruction the court tells the jury that it must find for the defendant without comparing the defendant's conduct to the plaintiff's conduct if it finds that the plaintiff voluntarily encountered a known risk. Thus, the giving of both instructions necessarily results in confusion *760 as to whether the jury is or is not to consider and compare the defendant's conduct to the plaintiff's conduct. The Braswell court was endeavoring to "clarify th[is] perplexing problem" when it held that "where assumption of risk overlaps and coincides with contributory negligence the rules of the defense of contributory negligence shall apply." Braswell, 281 So.2d at 675, 677.
Courts in other comparative negligence jurisdictions have recognized that assumption of the risk is but a form of contributory negligence and have given the assumption of risk bar to recovery the diminished applicability that this court interprets Braswell as giving it. Compare Duncan v. Cessna Aircraft Col., 665 S.W.2d 414 (Tex.1984); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975); Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971). In holding that the assumption of risk doctrine should no longer apply as an absolute bar to the plaintiff's recovery except where the plaintiff expressly assumes the risk, the Idaho Supreme Court stated:
Legal commentators and courts alike have criticized [the doctrine of assumption of risk] for the unfairness and harshness it causes,4 and for the duplicity and confusion it engenders.5 The doctrine's unfairness is rooted in its `all-or-nothing' approach. That is, a plaintiff can recover only if he or she is found not to have assumed the risk that caused the injury. Once the risk is found to have been assumed, however, the plaintiff is barred from any recovery, even if the risk the plaintiff assumed was reasonable and the defendant was negligent toward the plaintiff.
Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985) (citing Tiller v. Atlantic Coastline Railroad Co., 318 U.S. 54, 68-69, 63 S.Ct. 444, 451-52, 87 L.Ed. 610 (1943) (J., Frankfurter concurring); Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147, 1149 (1971); Prosser & Keeton on Torts, § 68 at 493, 94 (5th Ed.1984)). Most comparative negligence states have either abolished the assumption of risk defense altogether or have merged the doctrines of assumption of risk and contributory negligence. The equitable result has been the elimination of the assumption of risk doctrine's total bar to recovery by the plaintiff. See Salinas, 695 P.2d at 373. (citing various state codes and cases).
In Salinas the Idaho Supreme Court stated:
[T]he `all-or-nothing' effect of application of the assumption of risk defense is inequitable. It runs counter to all sense of reason and fairness. This is particularly true in today's age of comparative negligence; it would be the ultimate legal inconsistency to reject contributory negligence as an absolute defense yet at the same time allow its effect to continue under the guise of assumption of risk.
Salinas, 695 P.2d at 374. This court is of the opinion that the Mississippi Supreme Court in Braswell was of the same mind as the Idaho Supreme Court in Salinas. Since the Mississippi Comparative Negligence Statute had done away with contributory negligence as a complete bar to recovery, the Braswell court appears to have reasoned that an instruction on comparative negligence should be given rather than the complete bar instruction on assumption of risk in all but the "rare" cases.
This court notes that the Mississippi Supreme Court in Braswell did not completely abolish the doctrine of assumption of risk. The court recognizes, as have other courts, that the doctrine of assumption of risk does apply in rare cases. Although the Mississippi Supreme Court has not clearly specified which factual situations may qualify as one of these rare cases, one such rare case might exist where a plaintiff, either orally or in writing, has expressly assumed the risk of a known danger. See, e.g., Salinas, 695 P.2d at 375. Another such case where assumption of risk may be applicable is where the evidence shows that the plaintiff voluntarily and unreasonably encountered a known risk and that the defendant was completely negligence free. In such a case, since there is no evidence of any negligence by the defendant, there is no negligence to be compared between the defendant and the plaintiff. See, e.g., Jackson v. City of Kansas City, 235 Kan. *761 278, 680 P.2d 877 (1984). The Mississippi Supreme Court in McLeod v. Whitten, 413 So.2d 1020 (Miss.1982) may have recognized this second type of case as one of the rare cases in Mississippi where the doctrine of assumption of risk may apply. The court in McLeod stated that the assumption of risk instruction in that case should have contained a fourth element that the defendant was not negligent. McLeod, 413 So.2d at 1023.[1]
In Yarbrough v. Phipps, 285 So.2d 788 (Miss.1973), the Mississippi Supreme Court stated that although an assumption of risk instruction should seldom be employed, it could be employed where the plaintiff's conduct is extremely venturous and "much more venturous" than the plaintiff's conduct was in that case. Id. at 790. In Yarbrough the plaintiff had testified that she knew that the defendant's car by which she was standing when she was injured was in a dangerous position. There was also evidence that the defendant had been negligent in parking his car in that dangerous position. After reviewing Yarbrough, it appears that conduct that meets the level of "venturousness" required for an assumption of risk instruction is conduct which amounts to the sole proximate cause of the plaintiff's injuries. This conclusion is in harmony with the Mississippi Supreme Court's statement in McLeod that for the assumption of risk instruction given in that case to have been proper, the instruction should have provided in addition to the stated elements that the jury must find that the defendant was not negligent.
The defendant asserts that the Mississippi Supreme Court in Singleton equated assumption of risk with conduct by a plaintiff done "in a spirit of fun and venturousness." The Singleton court stated:
We feel that the jury could have concluded from the evidence adduced in the case at bar that this 18 year old high school student did voluntarily and knowingly jump on the back of a moving car in a spirit of fun and venturousness while the driver was looking ahead and concentrating on starting the car, and that the plaintiff's negligence was thus the sole proximate cause of his injuries. (emphasis added).
Singleton, 372 So.2d at 275. This statement concerning fun and venturousness more accurately appears to be comparing the plaintiff's negligence with the defendant's, as is done under the comparative negligence doctrine.
The reason behind the enactment of comparative negligence statutes, such as Mississippi's comparative negligence statute, is to promote the equitable allocation of loss among all parties that are legally responsible for the loss in proportion to their amount of fault. Allowing the complete bar of the doctrine of assumption of risk to apply in cases where there is evidence of negligence by the plaintiff and evidence of negligence or a defective product attributable to the defendant would defeat the purpose of the comparative negligence statute. Giving the assumption of risk instruction in conjunction with the comparative negligence instruction results in a conflict in the instructions and leaves the jury without a proper guide in its deliberations. This court is of the opinion that the Mississippi Supreme Court in Braswell intended to avoid such a result.
The motion to reconsider or in the alternative for certification of an interlocutory appeal is denied. This case shall be set by a separate order for retrial.
NOTES
[1] The Nichols court did not state whether it considered the doctrines of assumption and comparative negligence to overlap under the facts of that case. Since no comparative negligence instruction was submitted by the plaintiff, the court was not faced with the issue of whether giving instructions on both doctrines was proper.
[2] This rule is in harmony with Mississippi Code § 11-7-17 (1972) which provides:
All questions of negligence and contributory negligence shall be for the jury to determine.
When an assumption of risk instruction is given, the jury is instructed that it must find for the defendant if it finds that the plaintiff assumed the risk. The jury is not allowed to consider or weigh the negligence, if any, of the defendant. Thus, when an assumption of risk instruction is given, the rule that all questions of negligence should be determined by the jury is in effect ignored. In this vein, the court notes that Mississippi Model Jury Instruction 36.10, which the court regarded as a guide in granting the assumption of risk instruction in this case, does not allow the jury to consider any negligence by the defendant.
[3] In the instant case a sole proximate cause instruction was given, as well as the instructions on assumption of risk and comparative negligence.
[4] Relevant cases are those cases that were decided subsequent to the rule established in Braswell.
[5] The Singleton court stated: "This is one of those rare cases where the doctrines of comparative negligence and assumption of risk appear to overlap, and where instructions on both could be given." Singleton, 372 So.2d at 274. This statement appears to have been made in reliance on what the Singleton court apparently thought was the holding in Braswell. The Singleton court stated that the Braswell court stated:
The doctrine of assumption of risk was properly applied to the unusual facts of this case and it represents one of the rare instances where it is applicable.
Singleton, 372 So.2d at 275 (citing Braswell, 281 So.2d at 675).
A review of Braswell indicates that this was not the Braswell court's holding. Rather, the Braswell court was stating at 281 So.2d page 675 of its opinion that the doctrine of assumption of risk was properly applied under the unusual facts in Herod v. Grant, 262 So.2d 781 (Miss. 1972).
In Herod, the Mississippi Supreme Court had held that the facts indicating the plaintiff's assumption of risk were so strong and the facts indicating negligence by the defendant were so weak that the trial court should have granted the defendant's motion for a directed verdict at the end of the plaintiff's testimony. Herod, 262 So.2d at 783. Thus, in Herod there was no overlapping of assumption of risk and contributory negligence and no issue concerning whether an assumption instruction should be given when it overlaps with contributory negligence.
In discussing Herod, the Braswell court was stating that the facts of Herod were very unusual and that the Herod case represents one of the rare instances where the assumption of risk doctrine is applicable. Contrary to its observation of the Herod holding, the Mississippi Supreme Court in Braswell held that under the facts of Braswell, "the giving of the instruction on assumption of risk was reversible error." Braswell, 281 So.2d at 678. The Braswell court reversed and remanded the case stating that an instruction concerning the plaintiffs' own contributory negligence, if any, should be given rather than an assumption of risk instruction. Id.
[6] In fact, counsel for the plaintiff may have conceded that the doctrines of contributory negligence and assumption of risk did not overlap by submitting a plaintiff's instruction on assumption of risk. By submitting an assumption instruction, plaintiff apparently conceded that assumption of risk was a viable defense in the case.
[7] In discussing assumption of risk, the Braswell court discussed three Mississippi cases: Herod v. Grant, 262 So.2d 781 (Miss.1972), Elias v. Bowl-A-Way, 245 Miss. 170, 146 So.2d 558 (1962), and Wallace v. J.C. Penney Co., 236 Miss. 367, 109 So.2d 876 (1959). In Herod, the Mississippi Supreme Court had found that the facts were so strong that a directed verdict for the defendant should have been given to the defendant at the end of plaintiff's testimony. In analyzing the Herod holding, the Braswell court stated that under the strong and unusual facts in Herod the assumption of risk doctrine was properly applied. In Elias, the court had held that instructions on both assumption of risk and contributory negligence should be given. The Braswell court concluded that this holding in Elias "did not clarify the perplexing problem of whether assumption of risk or contributory negligence should be applied to a given set of facts." Braswell, 281 So.2d at 675. While not overruling Elias, the Braswell court indicated that Elias has diminished significance where the doctrines of assumption of risk and contributory negligence overlap. In Wallace, the facts indicated that the plaintiff may have assumed the risk but also indicated that both the plaintiff and defendant may have been negligent. The court held that in this situation an assumption instruction is error because it denies the jury the right to weigh the negligence, if any, of the parties. The Braswell court agreed with and followed the Wallace decision. Braswell, 281 So.2d at 676.
[8] The Braswell court's analysis of the cases indicates that if the evidence concerning assumption of risk is strong enough for a directed verdict, then the assumption of risk doctrine applies. See, e.g., Herod, 262 So.2d at 783. If the evidence is not this strong and there is evidence that both parties may have been negligent, the assumption instruction should not be given. See, e.g., Wallace, 109 So.2d at 877-78.
[9] Although the defendant asserts in its brief that the plaintiff testified that he knew before making the dive that he could hit the bottom on the shallow end, the defendant's citation to the relevant portion of Richardson's testimony does not indicate that Richardson made this statement. The transcript cited by the defendant is as follows:
Q Did you know before making the dive that you could hit the bottom?
Q Where could you have hit the bottom?
A In the shallow end.
Q Did you dive in the shallow end?
A No, I wasn't.
Q Did you know that if you hit the bottom that you could break your neck and be paralyzed for the rest of your life?
A I had never thought about it. You know, I had always heard don't dive in the shallow end, you know, you may get hurt, but, you know, that's about it.
Q If somebody had told you not to dive from the side, would you have done it?
A Yes, sir.
Q Would you have dived from the side anyway?
A No.
[1] In its brief the defendant states that there was no issue in McLeod v. Whitten of a contributory negligence instruction versus an assumption of risk instruction. This court reads McLeod to specifically recognize a "conflict in the instructions" of comparative negligence and assumption of risk. The McLeod court indicated that under ordinary circumstances it would have followed Hatcher v. Daniels, 228 Miss. 196, 87 So.2d 490 (1956) and held that there was a conflict between the contributory negligence and assumption of risk instruction and that the contributory negligence instruction did not cure the error of the assumption of risk instruction. Because the jury specifically stated that the defendant was not negligent, however, the McLeod court held that "the jury was not confused by any conflict in the instructions." McLeod, 413 So.2d at 1023-24. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265338/ | 657 F.Supp. 966 (1987)
UNITED STATES of America
v.
Robert Craig WEXLER.
Crim. No. 85-469.
United States District Court, E.D. Pennsylvania.
March 31, 1987.
*967 Paul L. Gray, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
Holly Maguigan, Philadelphia, Pa., for defendant.
MEMORANDUM AND ORDER
DITTER, District Judge.
I. Jurors' Conversations
In this case, the defendant seeks a new trial because the jurors who convicted him of distributing hashish were permitted to discuss the case among themselves before my final charge on the law. The jurors had been told they were not to discuss the case with anyone and were not to let anyone discuss it with them. However, in response to a juror's question, I said they could talk with each other but should not have private conversations nor make up their minds on anything until they had heard all of the evidence, the arguments of counsel, the court's charge, and the viewpoints of their fellow jurors.[1] I repeated the substance of these instructions the following day.[2]
Defendant contends that his right to a trial by a fair and impartial jury and his right to due process were thus denied. Counsel asserts that the jury should have been told not to discuss the case among themselves until after the closing arguments and the court's charge.
"There are generally five reasons given for prohibiting premature jury discussion. *968 First, since the prosecution evidence is presented first, any initial opinions formed by the jurors are likely to be unfavorable to the defendant, and there is a tendency for a juror to pay greater attention to evidence that confirms his initial opinion.... Second, once a juror declares himself before his fellow jurors he is likely to stand by his opinion even if contradicted by subsequent evidence.... Third, the defendant is entitled to have his case considered by the jury as a whole, not by separate groups or cliques that might be formed within the jury prior to the conclusion of the case.... Fourth, jurors might form premature conclusions without having had the benefit of the court's instructions concerning what law they are to apply to the facts of the case.... Fifth, jurors might form premature conclusions without having heard the final arguments of both sides." Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829, 831 (1985).
I can only assume that the jurors followed my instructions to the letter. As the Supreme Court recently reiterated, "[W]e have not yet attained that certitude about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instruction of the trial court...." Lakeside v. Oregon, 435 U.S. 333, 340 n. 11, 98 S.Ct. 1091, 1095 n. 11, 55 L.Ed.2d 319 (1978), quoting Bruno v. United States, 308 U.S. 287, 294, 60 S.Ct. 198, 200, 84 L.Ed. 257 (1939). Having specifically told the jurors they were not to discuss the matter in small groups and were not to make any decisions until after they had heard the arguments of counsel, my instructions on the law, and the viewpoints of their fellow jurors, I expressly identified, explained, and warned against the dangers that the Kerpan court sought to avoid with a prophylactic code of silence. Nonetheless, additional comment on the first two Kerpan reasons for silence may be in order.
The first reason cited in Kerpan, since the prosecution's evidence is presented first, a juror's initial opinion is likely to be unfavorable to the defendant, really refers to the order in which the evidence is presented and is no more a reason for prohibiting jury discussion than it is for encouraging it. It assumes that discussion will inevitably lead a juror to an opinion but that the absence of discussion will mean that no juror will reach an opinion on anything. This is an unvarnished non-sequitor which needs only to be stated to be exposed.[3]
The second reason, once a juror declares himself before his fellow jurors he is likely to stand by his opinion even if it is contradicted by subsequent evidence, at least has the ring of pop psychology but is based upon an assumption which is, to my knowledge untested and, to my mind, unbelievable. It assumes that the juror who states an opinion is less likely to change his mind than the juror who has an opinion but does not state it. That would follow only in the rare instance where a need for self-vindication overwhelms a juror's sense of duty. I believe that the vast majority of jurors are concerned, responsible, conscientious citizens who take most seriously the job at hand. I find it difficult to believe that as a group they are more interested in justifying their own loosely formed notions than in doing justice. Moreover, Kerpan's second reason must be viewed in the context of examination, cross-examination, traditional American ideas of fairness, the notion that there are two sides to every story, the give and take of jury deliberation, and my instructions. In my first instruction, I told the jurors five times not to make up their minds on anything and explained they should not do so because subsequent evidence might put the matter in a completely different light. In my second instruction, I again told them four times not to make any decisions until they had heard all the evidence. Therefore, they were warned not to cling to initial impressions. Under my instructions, no juror should have been reluctant *969 to reach a different viewpoint under the influence of additional evidence, the arguments of counsel, the charge of the court, and the viewpoints of his fellows. "The important thing is not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury." United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974).[4]
There were two reasons why I decided not to prohibit jury discussion during the course of the trial. First, I believed that by adequate instruction I could overcome the reasons traditionally given for not allowing jurors to consult with each other during the progress of the case. Second, I believed they could discharge their responsibilities in a better way if they were permitted to discuss matters as the trial progressed.
The duty of a juror involves complex thought processes: assimiliating and comprehending the evidence, determining credibility issues, recalling the evidence, putting it all into context and relative degrees of reliability, participating in discussions, and making informed decisions. Jurors need all the help they can get and their only source of untainted information and assistance is from those who share with them the responsibility for making the ultimate decisions.
The most obvious reason why jurors will do a better job if permitted to discuss matters among themselves, if they wish to do so, is so that they can alert each other as to matters which may affect credibility. Suppose, for example, a juror becomes convinced a prosecution witness on cross-examination is receiving signals from a spectator. If he is precluded from discussing the case with his fellow jurors, he cannot ask them to check to see if his suspicions are correct. Only at the end of the trial when it is to late to have the matter resolved can it be mentioned. If signals were given, subtle signals, but obvious to an alerted observer, it will be one against 11 for concluding the witness was unworthy of belief, when it should have been all 12. I can see no reason why matters of credibility should not be discussed by adequately instructed jurors during the progress of trial and many reasons why they should be.
The next reason for permitting jurors to discuss the case with each other is that it will make them more attentive, more apt to be interested and involved, more likely to focus on the issues as they unfold. Jurors who have been told, figuratively, to clap their hands over their mouths, who cannot share their ideas and impressions, may tend to clap their hands over their minds as well.
There are three other reasons why juror discussion will enhance juror-performance: such conversations can be an aid in assimilation, comprehension, and recollection. A juror may simply miss a word because someone has coughed. Not all witnesses speak with the same degree of clarity. Not all jurors have the same ability to hear. If someone has missed something, why should the puzzle be preserved until the end of the trial when no one will be sure exactly who said what? A juror may hear but not understand the significance of what he has heard. If he cannot ask his fellows for help, there will be unwarranted inconsistencies and needless uncertainties as the trial progresses. A juror may hear, understand, and then forget. Jurors are allowed to take notes, United States v. Maclean, 578 F.2d 64 (3d Cir.1978), for an obvious reason: "[I]t is a valuable method of refreshing memory." 578 F.2d at 66. If a juror can write down his impressions and conclusions as the testimony unfolds, why should he be precluded from sharing them with the other 11, particularly when to do so may help them in their observations, evaluations, and memory?
There was another reason why I gave this instruction: one of the jurors asked if they could discuss matters among themselves. This suggested to me that he was *970 thinking, a trait that I believed should be encouraged. Had I said no, I would have been unable to explain why because I could not then, nor can I now, think of any valid reason to preclude such discussion and a simple no would have left the jurors with the distinct feeling that the ways of the law are mysterious indeed. When lawyers get together, they discuss their cases. I suspect that surgeons talk about surgery, and historians about history. Fans at a baseball game talk about the game. When a group of people have a common interest in an unfolding event, the natural thing for them to do is to talk about it. It makes no sense that during the recesses of a trial, jurors should be expected not to have the case on their minds. Therefore, to tell them they are not to discuss the matter runs contrary to what they would normally be expected to do. I strongly believe that while this instruction may be frequently given, it is the one thing judges tell jurors that they are most likely to ignore. If they do so, their discussions will be in small groups and they may not see the dangers of premature decisions. The instruction that I gave, however, is one that jurors would be much more likely to follow because the reasons behind it are readily comprehensible. To give jurors instructions that run counter to human experience and common sense, is to make them suspicious of all the admonitions of the court.[5] To expect them to listen to testimony which they recognize is to form the basis of perhaps the most important decisions about the lives of other people that they will ever make, and not discuss it with their fellow decision makers until they have had an ample chance to forget the subtleties, nuances, and actual words must strike them as being extraordinary. I firmly believe that jurors are more likely to do that which makes sense than to follow a command which is never explained because it is completely unexplainable.
II. Motion in Limine
The defendant asked me to rule in advance of trial that his character witnesses could not be asked about either the presence of contraband in the automobile he had been driving prior to his arrest or about a 1974 conviction for possession of a small amount of marijuana. My refusal to do so is assigned as error.
Although I had heard evidence in connection with a motion to suppress and had ruled that evidence about this contraband could not be received, the defendant was asking me to make an advance ruling in a void. At that point, I did not know precisely what the government's evidence would be, whether the defendant would testify, or what evidence he might present in his own behalf. I did not know how the character evidence might be offered, i.e., by way of reputation or by opinion. It has been my observation that character witnesses in general do not listen to the questions asked of them, do not answer them precisely, and offer gratuitous comments about the defendant. Of course, I was aware when I made the ruling that cross-examination of a character witness could only be on matters relevant to the trait of character in issue, United States v. Curtis, 644 F.2d 263 (3d Cir.1981), but I did not know what the particular trait of character would be nor how the balancing test of Fed.R.Evid. 403 might become involved.
In Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), the Supreme Court was faced with a similar problem with regard to a defendant who asked for an in limine ruling that if he testified, a prior conviction could not be used to impeach him. The Court held that the only way a defendant could raise and preserve that question would be to take the witness stand and object to improper cross-examination. In this case, the defendant did not even have to go that far. He could have renewed his motion at any time after I had had an opportunity to hear at least some of the evidence. He could have asked *971 to have his witnesses examined and cross-examined while the jury was excused and if not satisfied with my rulings, could have withdrawn them. He did neither. My ruling was correct when made and I was not asked to consider the matter in the light of subsequent developments.
III. Authenticity of Documents
Defendant next asserts that it was error to receive two vehicle registration certificates issued by the Pennsylvania Department of Motor Vehicles because they did not bear a signature as required by Fed.R. Evid. 902(1). The documents in question were under seal, had stamped signatures, and bore ink initials.
Rule 902(1) provides for the self-authentication of domestic public documents under seal and requires a "signature purporting to be an attestion or execution." The barriers to admission are intended to be low. As the advisory committee to the rules notes, the possibility of forgery of these documents is of small dimension and its detection is fairly easy and certain. In no instance, is the opposing party foreclosed from disputing authenticity. Here, defendant did not dispute accuracy or authenticity but objected to admission on the technical ground that initials do not meet the signature requirement of the rule. Of course, he had a right to do so, but nonetheless Rule 102 provides the rules are to be construed to secure the elimination of unjustifiable expense and delay to the end that the truth may be ascertained and proceedings justly determined.
These exhibits were plainly authentic and plainly bore a signature. "A signature may consist of initials only, when the initials are contemplated to be representative of the person making the initials." United States v. Tasher, 453 F.2d 244 (10th Cir.1972). "In determining the meaning of any Act of Congress, unless the context indicates otherwise ... `signature' or `subscription' includes a mark when the person making the same intended it as such ..." 1 U.S.C. § 1. Under Pennsylvania law, proof of official records may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy. 42 Pa.C.S.A. § 6103. The stamped signature and the verifying initials show the intention of an appropriate custodian to attest to the accuracy and authenticity of the documents. They were properly admitted.
IV. Sufficiency of the Evidence
The defendant also has moved for judgment of acquittal, contending that the evidence was insufficient to warrant a finding that he participated in the conspiracy charged in the bill of indictment. He cites United States v. Cooper, 567 F.2d 252 (3d Cir.1977).
Admittedly, the evidence against the defendant was circumstantial, involved a truck, and other defendants. At that point, the similarity with the Cooper case ends. Here, there was ample evidence from which the jury could infer that the defendant had great interest in the truck and its cargo, a delivery of a valuable cargo of hashish was being made, and the defendant was engaged in surveillance. There was no other logical explanation for his preparations and actions on the day in question.
The defendant's motion for a new trial and his motion for judgment of acquittal will be refused.
NOTES
[1] Specifically, I instructed:
You may talk about it with each other, but don't have private conversations. Don't make up your mind on anything. I am not saying you can't talk about it with each other, but don't make up your mind about anything until you have heard all the evidence, until you have heard the arguments of counsel, and until you have heard my instructions. And, don't have little private rum[p] sessions where you are going to talk to one or two people. But, you are going to be in recess and I see no reason why you can't generally discuss matters that may bring into sharper focus that which was said. But, the important thing is, don't make up your mind about anything until you hear all the evidence, because something you hear today may come forth in a completely different light when you hear other evidence or other testimony concerning it. So, don't make up your mind about anything until you have heard all the evidence, until you have heard the arguments of counsel, and until you have heard my instructions on the law, and then finally until you have heard the viewpoints of your other jurors, your fellow jurors, at that point.
You can talk about it, but don't decide anything until you get to the point where you are making your final deliberations in this case. N.T. 2.10-11.
[2] Again, I instructed:
I said that you were not to make any decisions until you had heard all the evidence, until you had heard the arguments of counsel, and until you had heard my instructions on the law and until you had heard the viewpoints of your fellow jurors. And I emphasize all of those factors. You shouldn't decide anything until you have heard all those things.
I also told you there shouldn't be any individual discussions over in the corner where two of you talk about it. If you are going to talk about it, it should be in the presence of all of you because you are all part of a decision-making process. Also bear in mind that there is a big difference between talking about something a deliberating about it and deciding it.
I am not saying you can't talk about it, but I am saying you shouldn't decide anything. In other words, you shouldn't deliberate until you have heard everything that I have referred to.
So, it is all right to talk, but don't deliberate. N.T. 3.6-7.
[3] I also note in passing the defendant did not present any testimony in this case and so thus this so called reason is academic.
[4] See also United States v. Meester, 762 F.2d 867 (11th Cir.1985); United States v. Broome, 732 F.2d 363 (4th Cir.1984); Meggs v. Fair, 621 F.2d 460 (1st Cir.1980); United States v. Lemus, 542 F.2d 222 (4th Cir.1976), cert. denied, 430 U.S. 947, 97 S.Ct. 1584, 51 L.Ed.2d 794 (1977).
[5] In this case I instructed the jury it was to draw no inference that would be adverse to the defendant because he did not testify. If the jury has been given prior instructions which it has ignored because they make no sense, its members are more apt to ignore instructions that deal with the defendant's not taking the stand, the presumption of innocence, and burden of proof, and the other rules of law we expect them to take on faith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265339/ | 185 Cal.App.4th 649 (2010)
In re EDWARD T. FURNACE on Habeas Corpus.
No. F058113.
Court of Appeals of California, Fifth District.
June 11, 2010.
*654 Edward T. Furnace, in pro. per.; and Melanie K. Dorian, under appointment by the Court of Appeal, for Petitioner Edward T. Furnace.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca, Krista L. Pollard and Brian Kinney, Deputy Attorneys General, for Respondent State of California.
OPINION
DAWSON, J.
Petitioner Edward T. Furnace, who is serving a life term without the possibility of parole for special circumstance murder and other crimes, was validated as an associate member of a prison gang, the Black Guerrilla Family (BGF), and transferred into the security housing unit (SHU) at California State Prison, Corcoran. He argues that the evidence used to validate him and place him in the SHU for an indeterminate term was "false, unreliable and insufficient...." We will deny his petition for writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
Furnace has been in the custody of the California Department of Corrections and Rehabilitation (Department) since 1992. On February 4, 2008, while Furnace was incarcerated at Salinas Valley State Prison (SVSP), the institutional gang investigators (IGI) unit searched his personal property. Thereafter, Assistant Investigator M. Valdez authored a report stating he had discovered contact information related to the BGF prison gang. The item, a piece of paper, included the name, Department number, and institutional housing of Hugo Pinell, a validated member of the BGF housed at Pelican Bay State Prison. Valdez stated his opinion, based on his training and experience, that associates of the BGF "will often keep contact information belonging to BGF members in their personal property ... so that BGF associates can establish a line of communication with which to discuss BGF gang activity occurring at their respective institutions." Thus, according to Valdez, the contact information found in Furnace's property was indicative of gang activity and established a direct link with a validated BGF member.
Also found in Furnace's personal property was a book entitled Fascism: its most advanced form is here in America (1971) by George L. Jackson. A brief history of the life and death of George L. Jackson appears on the inside front and back covers of the book. Inside the cover, the book is titled Revolutionary Armed Struggle, and outlines the formation and function of a guerrilla *655 group. Also found was an audio compact disc (CD) entitled "Prisons on Fire: George Jackson, Attica & Black Liberation." The CD reviewed the life and death of George L. Jackson and outlined his ideology. It contained the titles "Soledad Brothers," "Marin County Rebellion," "August 21, 1971" (the day George L. Jackson died), "Remembering George," "George's Legacy" and "In Solidarity with George." According to Valdez, the BGF prison gang was established under the example and teachings of George L. Jackson; the gang was founded after Jackson's death; and Jackson is viewed as a martyr for the BGF ideology. The BGF constitution repeatedly references George L. Jackson and states, in part, "`Climaxing with the revolutionary socialist and equalitarian freedom fighters under the guiding example and teachings of George L. Jackson, we ultimately became the "Black Guerrilla Family."'" Valdez stated that books on George L. Jackson are kept by BGF associates while they are being indoctrinated with the ideology of the BGF. Thus, in Valdez's view, the book and CD found in Furnace's property also were indicative of BGF gang activity.
Two additional items were found in Furnace's property: a photocopied flyer promoting a 2005 Black August event in Oakland, California and a photocopied newspaper article explaining the meaning of Black August. According to Valdez, Black August was established in 1979 by the second supreme commander of the BGF after the death of the inmate who was recognized as the first supreme commander of the BGF, and it was meant to honor "the fallen BGF members as well as other individuals viewed as Freedom Fighters who were killed throughout the years during the month of August." The flyer promoting the 2005 Black August event contained pictures of a dragon and of George L. Jackson, both recognized symbols of the BGF. The article on Black August encouraged the public to attend the rally and learn how to become involved in the movement to free Hugo Pinell, the aforementioned BGF prison gang member whose name and other information was found in the possession of Furnace. Valdez opined that such documents also are used by the BGF to indoctrinate with its ideology inmates it is recruiting for membership.
On April 29, 2008, the SVSP IGI unit submitted a validation package to the Office of Correctional Safety for review and approval in order to validate Furnace as an associate of the BGF prison gang.
On May 2, 2008, pursuant to the Department's procedures, Valdez met with Furnace regarding the evidence being used in his validation as an associate of the BGF. Furnace insisted that he was not a gang member or associate. In the interview, Furnace claimed he had the information on Pinell because he was going to contact him regarding research for a children's book he was writing on staying away from gangs and prison. When asked about *656 the pictures of George L. Jackson, Furnace stated "`It's just a book,'" and that the book did not make him a BGF member any more than reading Stalin made him a communist or reading the Koran made him Al Qaeda. As for the documents regarding Black August, Furnace stated he did not know anything about the BGF, but that they were "`just newspaper articles'" from a public newspaper. Valdez informed Furnace that he did not find the entire newspaper in Furnace's possession, just the articles pertaining to Black August.
On May 4, 2008, Furnace filed an inmate appeal alleging he was not a gang member or associate and that the books and CD used as evidence to validate him as a gang member/associate were "purchased at, approved by, and issued to [him] by SVSP property staff after their inspection." He also alleged that neither the Department nor SVSP had ever promulgated a list of banned books or CD's which, if found in a prisoner's possession, could be used to validate a prisoner as a gang member. Furnace further alleged that the copies of newspaper articles relied upon were taken from a public news source.
On May 21, 2008, the Office of Correctional Safety accepted the information submitted by the IGI unit and validated Furnace as a BGF associate. Furnace's subsequent administrative appeal was denied.
On April 14, 2009, Furnace filed a petition for writ of habeas corpus in the Kings County Superior Court. That court denied the petition, and Furnace filed the petition here on July 22, 2009. We initially sought an informal response from the Attorney General on behalf of the Department, addressing the factual and legal bases for Furnace's validation as a BGF associate. After consideration of the petition and the informal response filed by the Attorney General, we issued an order to show cause why the relief requested should not be granted.
DISCUSSION
(1) "The Legislature has given the Director of the Department of Corrections broad authority for the discipline and classification of persons confined in state prisons. (Pen. Code, §§ 5054, 5068.) This authority includes the mandate to promulgate regulations governing administration, classification and discipline." (In re Lusero (1992) 4 Cal.App.4th 572, 575 [5 Cal.Rptr.2d 729].)
(2) The California Code of Regulations, title 15, section 3000[1] defines a "prison gang" as any gang with its roots or origins within the Department or *657 any other prison system. "Gangs, as defined in section 3000, present a serious threat to the safety and security of California prisons," and "[i]nmates and parolees shall not knowingly promote, further or assist any gang as defined in section 3000." (§ 3023, subds. (b), (a).)
Section 3378, subdivision (c) requires that, to validate an inmate as an associate of a prison gang, the Office of Correctional Safety identify at least three independent source items indicative of association with validated gang members or associates.[2] In addition, at least one of the source items must constitute a direct link to a current or former validated member or associate of the gang. (§ 3378, subd. (c)(4).) Section 3378, subdivision (c)(8) provides that the "source items" for determining gang membership/association "shall be based on the following criteria:
"(A) Self admission....
"(B) Tattoos and symbols. Body markings, hand signs, distinctive clothing, graffiti, etc., which have been identified by gang investigators as [being] used by and distinctive to specific gangs. Staff shall describe the tattoo or symbol and articulate why it is believed that the tattoo is used by and distinctive of gang association or membership....
"(C) Written material. Any material or documents evidencing gang activity such as the membership or enemy lists, constitutions, organizational structures, codes, training material, etc., of specific gangs....
*658 "(D) Photographs. Individual or group photographs with gang connotations such as those which include insignia, symbols, or validated gang affiliates....
"(E) Staff information. Documentation of staff's visual or audible observations which reasonably indicate gang activity....
"(F) Other agencies. Information evidencing gang affiliation provided by other agencies....
"(G) Association. Information related to the inmate/parolee's association with validated gang affiliates. Information including addresses, names, identities and reasons why such information is indicative of association with a prison gang or disruptive group....
"(H) Informants....
"(I) Offenses. Where the circumstances of an offense evidence gang affiliation such as where the offense is between rival gangs, the victim is a verified gang affiliate, or the inmate/parolee's crime partner is a verified gang affiliate....
"(J) Legal documents. Probation officer's report or court transcripts evidencing gang activity....
"(K) Visitors. Visits from persons who are documented as gang `runners', or community affiliates, or members of an organization which associates with a gang....
"(L) Communications. Documentation of telephone conversations, conversations between inmates, mail, notes, greeting cards, or other communication, including coded messages evidencing gang activity....
"(M) Debriefing reports...."
(3) Section 3341.5, subdivision (c) provides that an inmate whose conduct endangers the safety of others or the security of the institution shall be housed in the SHU, and subdivision (c)(2) provides that assignment to the SHU may be for either an indeterminate or a fixed period of time. Section 3341.5, subdivision (c)(2)(A)2 provides, as relevant here, that "a validated prison gang member or associate is deemed to be a severe threat to the safety of others or the security of the institution and will be placed in a SHU for an indeterminate term."
*659 Furnace contends the source items relied upon to validate him as an associate gang member and place him in the SHU are insufficient. He further contends that his First Amendment rights have been violated by use of protected materialsthe book, CD, and newspaper articlesto validate him as a BGF associate.
1. Standard of Review
Judicial review of a Department custody determination is limited to determining whether the classification decision is arbitrary, capricious, irrational, or an abuse of the discretion granted to those given the responsibility for operating prisons. (In re Wilson (1988) 202 Cal.App.3d 661, 667 [249 Cal.Rptr. 36].) In Superintendent v. Hill (1985) 472 U.S. 445 [86 L.Ed.2d 356, 105 S.Ct. 2768], the United States Supreme Court considered the necessary quantum of evidence to satisfy the demands of due process: "We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board .... This standard is met if `there was some evidence from which the conclusion of the administrative tribunal could be deduced ....' [Citation.] Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." (Id. at pp. 455-456.) The issue is simply whether the evidence in question permits a court to conclude that the administrator had reasons for his or her decision. (See In re Zepeda (2006) 141 Cal.App.4th 1493, 1500 [47 Cal.Rptr.3d 172]; see also In re Lawrence (2008) 44 Cal.4th 1181, 1213 [82 Cal.Rptr.3d 169, 190 P.3d 535] [parole decisions "must be supported by some evidence, not merely by a hunch or intuition"].)
2. Is the Validation Supported By "Some Evidence"?
A. Disciplinary Rule Violation
(4) Furnace contends he was not issued a disciplinary rule infraction for "`gang' or `gang activity'" and therefore could not be validated as a gang member. "In interpreting regulations, the court seeks to ascertain the intent of the agency issuing the regulation by giving effect to the usual meaning of the language used so as to effectuate the purpose of the law, and by avoiding an interpretation which renders any language mere surplusage. [Citation.]" (Modern Paint & Body Supply, Inc. v. State Bd. of Equalization (2001) 87 Cal.App.4th 703, 708 [104 Cal.Rptr.2d 784].)
(5) Furnace's interpretation finds no support in the language of section 3378. That section provides that an associate gang member is one "who is *660 involved periodically or regularly with members or associates of a gang," and gang classification as an associate requires "at least three (3) independent source items of documentation indicative of association with validated gang members or associates," and "at least one (1) source item [must] be a direct link to a current or former validated member or associate of the gang." (§ 3378, subd. (c)(4).) There is no requirement in section 3378 that a prisoner be issued a disciplinary rule infraction for gang activity before being validated as a gang associate. If the Department intended such a prerequisite, it would have stated the requirement in section 3378.
B. Independent Source Items
In the present case, the evidence was provided by three independent "source items," one of which was a "direct link to a current or former validated member or associate of the gang." (§ 3378, subd. (c)(4).) According to the declaration of Everett W. Fischer, special assistant to the assistant secretary of the Office of Correctional Safety, the BGF prison gang is a "highly dangerous and notorious prison gang ... formally recognized as one of the original California prison gangs by the Department Operations Manual section 52070.17.2." According to Fischer, the BGF is known for the violent courtroom escape of three California prisoners from a Marin County courtroom in 1970, along with the kidnapping of the trial judge and prosecutor in the case. It is also known for George L. Jackson's failed prison escape attempt in 1971, which resulted in the killing of three California correctional officers. The BGF was founded by George L. Jackson, and Black August was established to honor fallen BGF affiliates. According to Fischer, "... B[GF] affiliates almost always have materials discussing George Jackson and Black August. These materials, which discuss the organization's founder and its history, are essential for indoctrinating new B[GF] affiliates. And, due to the importance the B[GF] places on these materials, other inmates know that possession of these materials is a signal of their affiliation with the B[GF].... [¶]... B[GF] affiliates are likely to have the contact information for other B[GF] affiliates. Prison gangs are criminal organizations that must communicate with their affiliates to conduct gang business, ensure group solidarity, and recruit and train new affiliates. Indeed, one of the primary duties of a gang affiliate is to establish a line of communication between himself and other gang affiliates. To disrupt gang communications, prison officials restrict correspondence between inmates, and are especially restrictive of the correspondence of validated gang affiliates housed in a security housing unit. And inmates are aware that correspondence directed to inmates housed in a security housing unit is prohibited .... Even though a gang affiliate may not directly correspond with a validated gang member housed in a security housing unit, a validated B[GF] member's address may still be used to communicate with the validated inmate. Prison gang affiliates use third parties to pass messages by sending the contact information for the *661 validated inmate along with a coded message to the third party. The third party then sends the coded message to the validated inmate. Because the third party is a member of the general public, prison officials are limited in their ability to block the coded message."
As explained by Fischer, the gang validation package for Furnace consisted of the following "source items" pursuant to section 3378, subdivision (c)(8): the address for a validated BGF member, an audio CD (with pictures of George L. Jackson on it), a book on the formation and function of a guerrilla group, a flyer for the 2005 Black August event, and a newspaper article promoting Black August. According to Fischer, the address demonstrated a direct link between Furnace and a validated BGF member. "Although the indoctrination materials alone would have been insufficient to validate Furnace as a gang affiliate, the combination of the book, flyer, newspaper article, pictures, CD, and the address of a known gang member demonstrate that Furnace is an associate of the B[GF]."
Furnace contends the piece of paper found in his possession, which contained the contact information for Hugo Pinell, did not provide evidence of a "direct" link with another BGF associate or member, as required by section 3378, subdivision (c)(4). While neither the statute nor case authority specifically defines the term, the dictionary defines "direct" as meaning, among other things "without interruption or diversion," and "without any intervening agency or step." (Webster's 3d New Internat. Dict. (1986) p. 640, col. 2.)
(6) The piece of paper found in Furnace's possession included the name, Department number, and institutional housing of Hugo Pinell, a validated member of the BGF housed at Pelican Bay State Prison. According to Fischer, communication from Furnace to Pinell would violate prison rules. Further, it is apparent that Furnace knew Pinell was a member of the BGF; Pinell's name was included in the article also found in Furnace's possession. In addition, according to Fischer, it is common knowledge among inmates that Pelican Bay State Prison houses validated prison gang affiliates. We find the relevance of this link between Furnace and Pinell to be evident without the addition of any intervening agency or step. Thus, we agree with Fischer that "the address[ ] demonstrated a direct link between Furnace and a validated B[GF] member."[3]
*662 Furnace also contends the "direct link" requirement "must relate to the subject gang or its activities," and that there was no such evidence here. But in addition to the address and contact information for Pinell, Furnace was also in possession of a number of items, namely, the book, flyer, newspaper article, pictures, and CD, all on the subject of George L. Jackson, the founder of the BGF, and the Black August movement, which is meant to honor fallen BGF members. These items, combined adequately, "relate to the subject gang or its activities." Although section 3378, subdivision (c)(4) requires three "independent" source items, it is nonetheless appropriate to consider the interplay of the source items in determining whether there is some evidence of gang activity.
Finally, Furnace contends that the book and CD containing pictures of George L. Jackson do not qualify as a "tattoos and symbols" source item.
(7) Section 3378, subdivision (c)(8)(B) defines tattoos and symbols as "[b]ody markings, hand signs, distinctive clothing, graffiti, etc., which have been identified by gang investigators as [being] used by and distinctive to specific gangs. Staff shall describe the tattoo or symbol and articulate why it is believed that the tattoo is used by and distinctive of gang association or membership." (Italics added.) The italicized language in that section has two necessary and separate requirements before a symbol may be used to validate gang membership: The first is that the gang investigator "believed that the tattoo is used by and distinctive of gang association or membership." The second separate and necessary requirement is that the gang investigator "articulate why [the investigator holds that belief]." (§ 3378, subd. (c)(8)(B), italics added.)
Gang expert Valdez complied with the first requirement of section 3378, subdivision (c)(8)(B) when he "identified" the pictures of George L. Jackson and a dragon in the materials possessed by Furnace "as being used by and distinctive to [a] specific gang[]"the BGF. (Ibid.)
Valdez complied with the second requirement of section 3378, subdivision (c)(8)(B)"why" he believed those pictures were gang relatedwhen he explained as follows: the BGF prison gang was established under the example and teachings of George L. Jackson; the gang was founded after Jackson's death; Jackson is viewed as a martyr for the BGF ideology; the BGF constitution repeatedly references George L. Jackson and states, in part, "`Climaxing with the revolutionary socialist and equalitarian freedom fighters under the guiding example and teachings of George L. Jackson, we ultimately became the "Black Guerrilla Family"'"; and books on George L. Jackson are kept by BGF associates while they are being indoctrinated with the ideology of the BGF.
*663 Furnace has offered innocent explanations for his possession of the various source items used to validate him as a BGF associate. The existence of a nonincriminating explanation for a source item, however, is irrelevant to this court's "some evidence" review. Neither is it appropriate for this court to weigh conflicting evidence. (Superintendent v. Hill, supra, 472 U.S. at pp. 455-456; cf. People v. Bradford (1997) 15 Cal.4th 1229, 1329 [65 Cal.Rptr.2d 145, 939 P.2d 259] ["`"`"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."'"'"].)
We conclude the "some evidence" necessary to support Furnace's validation is present in the record.
3. Were Furnace's First Amendment Rights Violated by Use of Protected Material to Validate Him
We next address Furnace's claim that he was improperly validated as a gang member based, in part, on "approved books and a news paper article." He relies on Penal Code section 2601, subdivision (c)(1) to support his argument that use of those items to support his validation violated his First Amendment rights.[4]
(8) When addressing a prisoner's constitutional challenge, we necessarily frame our analysis with "two basic and potentially competing principles." (Mauro v. Arpaio (9th Cir. 1999) 188 F.3d 1054, 1058.) First, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." (Turner v. Safley (1987) 482 U.S. 78, 84 [96 L.Ed.2d 64, 107 S.Ct. 2254] (Turner).) Second, "`courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.' [Citation.]" (Ibid.) For this reason, a prison regulation impinging on constitutional rights may withstand scrutiny when "the regulation ... is reasonably related to legitimate penological interests." (Id. at p. 89.)[5] Applying this principle, Turner upheld a prison rule barring correspondence between adult prisoners as a valid tool for controlling prison gangs. (Turner, at p. 91.)
*664 The Turner Test
(9) The Turner court developed a four-pronged test (the Turner test) to determine whether a prison regulation or policy is reasonably related to legitimate penological interests: (1) whether there is a valid, rational connection between the policy and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right; (3) whether accommodating the asserted right will have an impact on guards, other inmates and allocation of prison resources; and (4) whether the policy is an "exaggerated response" to the prison's concerns. (Turner, supra, 482 U.S. at pp. 89-91.)
(10) In connection with the first prong of the Turner test, a court must find (1) whether the governmental interest is legitimate; (2) whether the interest is neutral; and (3) whether the logical connection between the policy and the interest is close enough to be rational and not arbitrary. (Turner, supra, 482 U.S. at pp. 89-90.)
First, we determine whether the policy serves a legitimate governmental interest. Many cases have found that prison safety and security are legitimate penological interests. (See, e.g., Turner, supra, 482 U.S. at p. 91; In re Collins (2001) 86 Cal.App.4th 1176, 1184-1185 [104 Cal.Rptr.2d 108].) Here, the written materials were used in the validation process for the unquestionably legitimate purpose of suppressing dangerous prison gangs. (See Thornburgh v. Abbott (1989) 490 U.S. 401, 415 [104 L.Ed.2d 459, 109 S.Ct. 1874] [protecting prison security is central to all other corrections goals].)
Second, we consider whether the policy is content neutralthat is, whether it "`further[s] an important or substantial governmental interest unrelated to the suppression of expression.'" (Thornburgh v. Abbott, supra, 490 U.S. at p. 415.) In Thornburgh, the Supreme Court held that when "prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are `neutral.'" (Id. at pp. 415-416.) Here, the written materials were targeted in order to suppress dangerous prison gangs, not to target speech, and the policy is therefore content neutral.
Third, we examine whether the regulations are rationally related to that objective. (Thornburgh v. Abbott, supra, 490 U.S. at p. 414.) "To show a rational relationship between a regulation and a legitimate penological interest, prison officials need not prove that the banned material actually caused problems in the past, or that the materials are `likely' to cause problems in the future. [Citation.] Moreover, it `does not matter whether we agree with' the defendants or whether the policy `in fact advances' the jail's legitimate *665 interests. [Citation.] The only question that we must answer is whether the defendants' judgment was `rational,' that is, whether the defendants might reasonably have thought that the policy would advance its interests." (Mauro v. Arpaio, supra, 188 F.3d at p. 1060.)
According to the gang expert, BGF affiliates often have materials discussing George L. Jackson and Black August, and these materials are used for indoctrinating new BGF affiliates. Using these materials to validate Furnace as a BGF associate, and as a result, transfer him to the SHU, could further a policy of frustrating prison gang indoctrination and group solidarity. It is rational to conclude that a policy that eliminates gang ideology and indoctrination materials will further the legitimate objective of preserving the safety and security of the institution.
(11) The second prong of the Turner test is whether there are alternative means of exercising the asserted right. "Where `other avenues' remain available for the exercise of the asserted right [citation], courts should be particularly conscious of the `measure of judicial deference owed to corrections officials ... in gauging the validity of the regulation.'" (Turner, supra, 482 U.S. at p. 90.) In applying this factor, "`the right' in question must be viewed sensibly and expansively." (Thornburgh v. Abbott, supra, 490 U.S. at p. 417.)
In Turner, the Supreme Court, in upholding a ban on inmate-to-inmate correspondence, defined the right at issue as the right of expression. (Turner, supra, 482 U.S. at p. 93.) Because the inmates were allowed to correspond with noninmates, the Supreme Court found that inmates had an alternative means of exercising their right of expression. (Id. at p. 92.) In Snow v. Woodford (2005) 128 Cal.App.4th 383 [26 Cal.Rptr.3d 862], the appellate court also defined the right at issue as one of expression. (Id. at pp. 392-393.) In that case, the court upheld a regulation that prohibited inmates from possessing pictures of exposed breasts and genitalia but did not ban sexually explicit writings, sexually provocative pictures of clothed persons, or sexually explicit pictures contained in medical texts, art reference books, National Geographic, or books purchased for prison libraries and education programs. "Accordingly, inmates have an alternative means of expression." (Ibid.)
In Thornburgh, the Supreme Court, in upholding a ban on publications that posed a threat to institutional security, defined the right as the right to receive and read outside publications. (Thornburgh v. Abbott, supra, 490 U.S. at p. 418.) The right involved here is similar. Also similar is the limited scope of the policy in question. Furnace has not been denied the right to read all books and newspapers, possess any pictures, or listen to CD's. He retains the right to receive and read non-gang-related materials that do not pose a threat to *666 institutional security. He therefore has an alternate means of exercising the right to receive and read outside publications.[6]
(12) The third prong of the Turner test asks whether the accommodation of the asserted constitutional right would have a significant negative impact on prison guards, other inmates, or the allocation of prison resources generally. Where the right in question "can be exercised only at the cost of significantly less liberty and safety for everyone else, guards and other prisoners alike," we defer to the "informed discretion of corrections officials." (Turner, supra, 482 U.S. at pp. 92, 90.) We give "considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world." (Thornburgh v. Abbott, supra, 490 U.S. at p. 408.) Here, the Department has found that inmates' possession of BGF ideology and inmates' membership in or association with BGF are connected in that the former promotes the latter. Furnace has presented no evidence or argument to refute the Department's findings in this regard. Accordingly, the third prong is met.
The fourth prong of the Turner test asks whether the regulation is an exaggerated response to the Department's concerns. "[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation. [Citation.] By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an `exaggerated response' to prison concerns. This is not a `least restrictive alternative' test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint. [Citation.] But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard." (Turner, supra, 482 U.S. at pp. 90-91.) The inmate challenging the regulation has the burden to show there are obvious, easy alternatives to the regulation. (Id. at p. 91; Mauro v. Arpaio, supra, 188 F.3d at p. 1062.) Furnace has not met this burden.
Accordingly, the regulation meets the four-pronged Turner test. Furnace's gang validation, which was based in part on his possession of a book, newspaper article, pictures, and CD, did not violate his First Amendment rights.
*667 DISPOSITION
The petition for writ of habeas corpus is denied and the order to show cause issued herein is discharged.
Ardaiz, P. J., and Levy, J., concurred.
NOTES
[1] All further regulatory references are to title 15 of the California Code of Regulations.
[2] Section 3378, subdivision (c) reads in part as follows:
"Gang involvement allegations shall be investigated by a gang coordinator/investigator or their designee.
"(1) CDC Form 812-A or B shall be completed if an inmate/parolee has been verified as a currently active member/associate, inactive member/associate or dropout of a gang (prison gang or disruptive group) as defined in section 3000. Current activity is defined as any documented gang activity within the past six (6) years consistent with section 3341.5(c)(5).
"(2) Information entered onto the CDC Form 812-A or B shall be reviewed and verified by a gang investigator to ensure that the identification of an inmate/parolee as a currently active gang member or associate is supported by at least three independent source items in the inmate/parolee's central file. The independent source items must contain factual information or, if from a confidential source, meet the test of reliability established in section 3321....
"(3) A member is an inmate/parolee who has been accepted into membership by a gang. This identification requires at least three (3) independent source items of documentation indicative of actual membership. Validation of an inmate/parolee as a member of a prison gang shall require that at least one (1) source item be a direct link to a current or former validated member or associate of the gang.
"(4) An associate is an inmate/parolee who is involved periodically or regularly with members or associates of a gang. This identification requires at least three (3) independent source items of documentation indicative of association with validated gang members or associates. Validation of an inmate/parolee as an associate of a prison gang shall require that at least one (1) source item be a direct link to a current or former validated member or associate of the gang."
[3] To offer an example of what would clearly constitute an indirect link: If inmate A possessed contact information for inmate B who, in turn, possessed contact information for inmate C, a gang member, the link between inmates A and C would not be direct. The significance of the link between inmates A and C would not be evident without the addition of some further step or information.
[4] Penal Code section 2601, subdivision (c)(1) provides, in pertinent part, that a prisoner retains the right "[t]o purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office." But it also provides, "Pursuant to this section, prison authorities may exclude any of the following matter: [¶] ... [¶] (B) Any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence." (Pen. Code, § 2601, subd. (c)(1)(B).)
[5] The Legislature adopted the Turner rule when it amended Penal Code section 2600 to provide in part: "A person sentenced to imprisonment in a state prison may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests." (Pen. Code, § 2600; see People v. Loyd (2002) 27 Cal.4th 997, 1008 [119 Cal.Rptr.2d 360, 45 P.3d 296].)
[6] The record does not indicate that the materials in question here are banned by the Department. It is Furnace's possession of the materials in combination with a direct link to Hugo Pinell that supports his validation. We express no opinion on the question whether the Department could legitimately ban the materials or other literature relating to George L. Jackson, Black August, or the BGF. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365503/ | 595 P.2d 1055 (1979)
In the Matter of the ESTATE of Lewis H. LEWIN, Deceased.
Emilie Orban LEWIN, Petitioner-Appellee and Cross-Appellant,
v.
The FIRST NATIONAL BANK OF DENVER, Personal Representative of the Estate of Lewis H. Lewin, Deceased, Respondent-Appellant and Cross-Appellee.
No. 78-154.
Colorado Court of Appeals, Division II.
January 25, 1979.
Rehearing Denied February 22, 1979.
Certiorari Denied June 4, 1979.
*1056 Mason, Reuler & Peek, P. C., Maurice Reuler, Rosanne M. Hall, Denver, for petitioner-appellee and cross-appellant.
Holme, Roberts & Owen, Peter H. Holme, Jr., William S. Huff, Martha T. Collins, Denver, for respondent-appellant and cross-appellee.
ENOCH, Judge.
Respondent, personal representative of the estate of Lewis Lewin, appeals from a judgment invalidating a post-nuptial agreement and allowing petitioner, wife of the decedent, to take an elective share of the estate contrary to the terms of the agreement. We reverse and remand.
Petitioner and Lewin were married in 1972 when petitioner was 70 and Lewin was 87. Each had issue by a prior marriage. Petitioner, a woman of artistic talent, had immigrated to the United States with her first husband in 1938. She learned to speak English and worked as an interior designer and art teacher in Chicago and Colorado Springs. When her first husband died, petitioner obtained legal counsel and successfully collected the spouse's elective share against his will.
Prior to the remarriage, petitioner supported herself on a modest wage earned by continuing her artistic endeavors. She met Lewin through social activities at a time when his health was deteriorating. He was suffering from Parkinson's disease, and before their marriage he had spent several months in a nursing home.
Lewin, a successful businessman, had acquired a considerable estate before he met and married petitioner. Prior to their marriage, Lewin consulted an attorney regarding a pre-nuptial agreement. Although the *1057 papers were drawn up, they were never signed. Two months after the marriage he again consulted an attorney, this time with regard to a property settlement in the event of divorce or separation. He advised petitioner to employ her own attorney, which she did. Finally Lewin decided to have a post-nuptial agreement drawn up, wherein he and petitioner agreed to waive the surviving spouse's elective share of the property in the event of the death of either, and Lewin agreed to give petitioner $40,000 in cash immediately. Petitioner did not consult her attorney regarding the agreement but both parties signed it in the presence of Lewin's attorney.
Lewin died three years later, and petitioner filed for an elective share of the estate, urging that the agreement was invalid because she was not represented by an attorney and because there was no full disclosure of assets by Lewin. The probate court stated that "the wife was entitled to independent advice from an independent counsel and that should have been insisted upon after supplying a list of the holdings and assets of the husband's estate." Accordingly, the court found the agreement was invalid and permitted petitioner to take an elective share against the will. The court also held that the $40,000 which petitioner had already received was not a gift, as she had maintained during the trial, but was an advancement because Lewin had intended the payment to be consideration for the agreement.
Respondent argues that the findings of the probate court are insufficient for this court to ascertain whether the correct law was applied. Respondent also urges that the findings are not supported by substantial evidence. We agree that they were insufficient, and therefore reverse the judgment. Because the probate judge is now deceased, this cause must be remanded for a new trial.
When a matter is tried to the court without a jury, the court is under a duty to make findings of fact and to state conclusions of law separately. C.R.C.P. 52(a). Even though a court has made findings, they must be sufficiently clear to indicate on appeal the basis of the court's decision. See Murray v. Rock, 147 Colo. 561, 364 P.2d 393 (1969); Mowry v. Jackson, 140 Colo. 197, 343 P.2d 833 (1959). Here, the court found that petitioner should have been supplied with a list of Lewin's assets and that Lewin should have insisted that she retain independent counsel. It is unclear from the court's findings, however, whether the court relied solely on those two factors to invalidate the agreement. If so, such a conclusion would be contrary to the law.
Nuptial agreements, whether executed before or after the marriage, are enforceable in Colorado. Remington v. Remington, 69 Colo. 206, 193 P. 550 (1920); § 15-11-204, C.R.S.1973. A nuptial agreement will be upheld unless the person attacking it proves fraud, concealment, or failure to disclose material information. In re Estate of Stever, 155 Colo. 1, 392 P.2d 286 (1964); Linker v. Linker, 28 Colo. App. 131, 470 P.2d 921 (1970). The burden of proof does not shift to the estate even if the amount received by the surviving spouse under the nuptial agreement is disproportionate to the value of the decedent's estate. In re Estate of Abbott, Colo.App., 571 P.2d 311 (1974). Thus, in order for petitioner to prevail here, she must prove by a preponderance of the evidence that she was induced to sign as a result of fraud, concealment, or failure to disclose.
The trial court's findings, which are supported by the record, indicate that Lewin and his attorney made an effort to disclose to petitioner that by signing the agreement she would relinquish her share of a substantial estate and that she should seek outside counsel. And petitioner was satisfied with the legal representation she received from Lewin's attorney. There is no finding that Lewin failed to disclose that his estate was substantial or that petitioner was prevented from retaining outside counsel. Although the trial court found that "the execution of the document was in an atmosphere where she could be intimidated," there is no finding that she was in fact intimidated.
*1058 We find no authority, and none has been cited to us, in support of petitioner's contention that a spouse must be supplied with a detailed list of assets in order for a nuptial agreement to be upheld. To the contrary, such agreements have been held to be valid if the agreement "contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband's worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband's property." Del Vecchio v. Del Vecchio, 143 So. 2d 17 (1962). See also In re Estate of Stever, supra. Thus it would be error for the court to invalidate an agreement merely because a petitioner was not given a list of assets.
Similarly, the fact that petitioner did not retain independent counsel before signing the agreement is not fatal to its validity. See Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969). See also In re Estate of Broadie, 208 Kan. 621, 493 P.2d 289 (1972). The primary inquiry is whether the parties entered into the agreement with full knowledge of its consequences. Linker v. Linker, supra. Here there is evidence that petitioner refused the assistance of counsel. Therefore it would be error to invalidate the agreement on the basis that Lewin did not "insist" that petitioner retain counsel, unless the failure to insist amounted to fraud, concealment, or a failure to disclose.
We find no merit in petitioner's argument that we are precluded from reviewing the form of the findings or the burden of proof issue on the ground that respondent did not raise those issues in his motion for new trial with sufficient specificity. The motion and supporting brief, when considered together, were sufficient to apprise the trial court of respondent's contentions. Hamilton v. Gravinsky, 28 Colo. App. 408, 474 P.2d 185 (1970), modified on other grounds, 174 Colo. 206, 483 P.2d 385 (1971).
Inasmuch as we are reversing the entire judgment, we do not consider the issues raised by petitioner on cross-appeal as they will need to be reconsidered if relevant at the new trial.
The judgment is reversed and the cause is remanded for new trial on all issues.
KELLY and STERNBERG, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365526/ | 142 Ga. App. 739 (1977)
236 S.E.2d 860
HANCOCK
v.
ABBITT REALTY COMPANY, INC.
53675.
Court of Appeals of Georgia.
Argued May 10, 1977.
Decided June 13, 1977.
Rehearing Denied July 7, 1977.
Charles A. Pemberton, Edward T. Floyd, for appellant.
Hurt, Richardson, Garner & Todd, W. Seaborn Jones, Frederick N. Gleaton, for appellee.
SHULMAN, Judge.
This is a slip and fall case brought on two theories of negligence. The first is that the owner of the property was negligent in failing to remove from a sidewalk under its *740 control a patch of ice which had formed there and on which appellant slipped. The second theory was that the sidewalk was defective, causing ice to form there when it did not form elsewhere. This appeal is from summary judgment for the defendant.
1. Appellant's first theory, that the landlord was negligent in failing to remove the ice before appellant slipped, is controlled adversely to her by our decision in Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193).
2. In defending against appellant's second theory, defective construction of the sidewalk from which she fell, appellee asserts that the sidewalk was not defective, but that if it was defective, appellee had no knowledge, actual or constructive, of the defect. To support its claim that the construction of the sidewalk was not defective, appellee submitted affidavits by officers of appellee corporation to the effect that they had never been cited by any building authority for failing to meet any building codes in connection with that sidewalk. Appellee also depended on the testimony of appellant's expert that the sidewalk did not violate any building code or regulation. However, appellant's expert, a certified safety professional, also testified that the part of the sidewalk involved in this case does not meet the accepted standards of his profession, while all the equivalent portions of sidewalk in the complex did meet those standards. Obviously, there is a conflict on the question of the existence of a defect in the construction of the sidewalk. That conflict presents a question of fact, not law, the resolution of which is for a jury.
3. In support of appellee's claim of lack of knowledge, it submitted affidavits of its officers stating that no one had brought the alleged defect to their attention. They specifically noted that appellant had never complained of the existence of ice on the spot where she fell.
The knowledge on which the liability of a landlord can be predicated may be actual or constructive. Fincher v. Fox, 107 Ga. App. 695 (2) (131 SE2d 651). In light of appellee's specific denial of actual knowledge, which denial was not countered by appellant, appellee must be chargeable with constructive knowledge before liability will attach. For the landlord to have constructive *741 knowledge of a defect, "... it must be shown to have existed for such a length of time, or under such circumstances as to put the owner of the building on notice before he will be liable for resulting injuries. [Cit.] Usually, what is a reasonable time is a jury question." Id. p. 699.
The facts alleged by appellant to have put appellee on notice of the dangerous condition produced by the construction of the sidewalk are the length of time appellee has had control of the premises, three years, and the fact that she had complained of the presence of ice on other portions of the sidewalk. We cannot say, as a matter of law, that this was not sufficient time to have discovered the defect, if there is one, nor that the circumstances were not "`... such as to require that the landlord should have made an investigation which when made would have necessarily resulted in discovery of the defects.' [Cit.]" Hall v. Cohner, 134 Ga. App. 586 (3) (215 SE2d 340). Again, a question of fact is presented.
4. The burden on a defendant who moves for summary judgment is to show that he would not be liable under any theory of the pleading and evidence. Werbin & Tenenbaum, Inc. v. Heard, 121 Ga. App. 147 (2) (173 SE2d 114). Appellee in this case, having failed to eliminate the questions of the existence of the alleged defect and of whether it is chargeable with constructive knowledge of the defect, if there is one, has not carried that burden. It was, therefore, not entitled to judgment as a matter of law and it was error to grant summary judgment as to the issue of defective construction.
Judgment reversed. Quillian, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365527/ | 142 Ga. App. 428 (1977)
236 S.E.2d 159
CARROLL
v.
THE STATE.
53940.
Court of Appeals of Georgia.
Submitted May 10, 1977.
Decided May 27, 1977.
Jacques O. Partain, III, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. David Petersen, Assistant District Attorneys, for appellee.
BANKE, Judge.
The defendant appeals the overruling of his motion for new trial following his conviction for burglary.
A College Park police officer was killed by shotgun and pistol fire during the early morning hours of November 7, 1974. As the result of information received from an informant, a lookout was placed later that morning for three men traveling in a white van with Illinois tags who were suspected of committing the homicide. Very shortly thereafter, the Atlanta police received a call from a truck driver in Ocala, Florida, who had heard the lookout and spotted a van meeting the description, containing shotgun shells on the floor. The police thereupon contacted the nearest highway patrol station in Florida. Coincidentally, one of the officers at the patrol station had given the defendant and his two companions a ride earlier that day when their van became disabled on the interstate highway. All the descriptions and the tag number matched the information given by the informant; therefore, the Florida authorities relocated the suspects and held them for the Atlanta police. When questioned by Atlanta police, the defendant and his companions denied any involvement in the murder but confessed to a burglary which had occurred in Fulton County one day prior to the murder. The defendants were never formally charged with the murder.
1. The defendant moved to suppress the burglary confession, contending it was the fruit of an arrest made without probable cause. It was not error to overrule the motion. At the time the arrest took place the police knew that a murder had been committed and had been given information by a constable in Hapeville that three persons meeting the description of the defendant and his companions were responsible. This information was based on the constable's own conversations with one of the three suspects on the morning of the murder. *429 During these conversations, the suspect bragged that he and his companions had just killed a man near East Point and also mentioned that an Atlanta police officer had been murdered that morning. Although the suspect did not actually state that the person they had killed was that policeman, the constable explained to investigators that he had deduced this from knowledge that there had been no other murders in town that morning. In addition, East Point is adjacent to College Park, where the shooting took place. The constable also stated that the suspect had tried to sell him a pistol and a shotgun and had announced an immediate intention to head for Florida in the van.
Probable cause for an arrest without a warrant exists where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are sufficient to give them reasonable ground to believe that the accused has committed a felony. Carroll v. United States, 267 U.S. 132, 162 (45 SC 280, 69 LE 543, 39 A.L.R. 790) (1925); Draper v. United States, 358 U.S. 307, 313 (79 SC 329, 3 LE2d 327) (1959); Quinn v. State, 132 Ga. App. 395, 396 (1) (208 SE2d 263) (1974). "When a police officer is the informant the reliability of the informant is presumed as a matter of law. Caudell v. State, 129 Ga. App. 229 (199 SE2d 550)." Quinn, supra, p. 396. Based on their own knowledge of the murder and information provided by the constable, the Atlanta police had reasonable grounds to believe that the defendant and his companions had committed the crime and to request the Florida police to arrest them. The fact that they were not subsequently prosecuted for the murder does not make the arrest unlawful, since a lesser standard of proof is required to establish probable cause than to prove guilt. See Strauss v. Stynchcombe, 224 Ga. 859, 865 (165 SE2d 302) (1968); Johnson v. State, 230 Ga. 196, 198 (1) (a) (196 SE2d 385) (1973); Johnson v. Wright, 509 F2d 828, 829-830 (5th Cir. 1975). Furthermore, as emphasized by the trial court, the suspects were located en route outside the state, and their arrest had to be effectuated immediately if at all. The warrantless arrest was, therefore, justified under Code Ann. § 27-207 (Ga. L. 1975, p. 1209) to prevent a failure of justice.
2. The defendant contends that his confession was *430 inadmissible under Code § 38-411 in that it was induced by a promise that he would not be prosecuted for the burglary. The trial court decided this factual issue adversely to the defendant after a lengthy Jackson v. Denno hearing, and his ruling is amply supported by the evidence. The investigators testified that the defendant told them he could not have committed the homicide because he had participated in a burglary on the previous night and that they then suggested to him that a statement on the burglary "would held clear the air." They denied that they ever made a promise not to prosecute. The defendant himself stated: "He didn't say it wouldn't be prosecuted. . . The only promise they made was that they was not going to pursue the investigation of the burglary and they were merely trying to clear up the fact we had not committed the murder." It was not error to admit the confession.
3. The defendant enumerates as error the trial court's failure to charge the jury on the lesser included offenses of criminal trespass and theft by taking. However, neither the defendant nor the state introduced any evidence tending to show either crime. The state's evidence showed that a house was burglarized and that the defendant confessed to having participated both in the burglary and in the disposition of the stolen property. The defendant's statement as to the disposition of the property was corroborated by the testimony of two of the persons who purchased the property. The defendant offered no explanation or evidence to indicate that he was guilty of a lesser offense than burglary. Therefore, it was not error to refuse to charge on criminal trespass or theft by taking. See Hill v. State, 229 Ga. 307 (191 SE2d 58) (1972); Hinton v. State, 127 Ga. App. 108 (192 SE2d 717) (1972); King v. State, 127 Ga. App. 83 (192 SE2d 392) (1972); Christian v. State, 130 Ga. App. 582 (203 SE2d 914) (1974); Sanders v. State, 135 Ga. App. 436, 437 (2) (218 SE2d 140) (1975). The holdings of this court in Baker v. State, 127 Ga. App. 99 (1) (192 SE2d 558) (1972), cited by defendant's counsel, and Williamson v. State, 134 Ga. App. 583 (215 SE2d 518) (1975) do not require a different result. "In both those cases there was testimony by the respective defendants, which if believed, would negate an element of the crime of *431 burglary, entry with intent to commit felony." Boggus v. State, 136 Ga. App. 917, 919 (4) (222 SE2d 686) (1975).
4. The defendant moved for a directed verdict on the ground that the ownership of the house had not been properly established since the person named in the indictment as the owner did not testify. However, the owner's daughter, who was charged by him with responsibility for caring for the home due to the fact that her father was bedridden in a nursing home, did testify as to ownership and authority to enter the premises. Accordingly, it was not error to overrule the motion for directed verdict. See Hall v. State, 7 Ga. App. 115 (66 S.E. 390) (1909).
5. The trial court charged the jury on the issue of flight in the following manner: "Flight by one accused of crime immediately after the alleged commission of the criminal act may be considered by the jury as a circumstance and not sufficient of itself to establish guilt, but as a circumstance in determining the guilt or innocence of the accused. Flight should always be considered by the jury in connection with the motive that prompted it and at most is only one of a series of circumstances from which guilt may be inferred." An essentially identical charge was held by this court to be erroneous in Hale v. State, 135 Ga. App. 625, 626 (2) (218 SE2d 643) (1975), in that it omitted the words "if any" and "if proven" and thereby assumed that flight had been proven. That same case, however, held the charge to be harmless as a matter of law where the evidence of guilt was otherwise clear and convincing, even though justification was pled in that case as defense. In the case at bar, the defendant's guilt is established by his own confession, which is amply corroborated by other evidence. Furthermore, no defense such as justification is presented which would make a consideration of flight or lack of flight relevant to a determination of guilt or innocence. Therefore, under the evidence presented, it is "highly probable that the error did not contribute to the judgment," and thus we hold it to be harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). See Hale v. State, supra.
6. The court's charge that an inference of guilt might *432 be drawn from proof of recent possession of stolen property, absent a satisfactory explanation, was not burden shifting and did not constitute an impermissible comment on the defendant's failure to testify. See Aiken v. State, 226 Ga. 840, 843 (2) (178 SE2d 202) (1970); Thomas v. State, 237 Ga. 690, 692 (229 SE2d 458) (1976).
7. The defendant contends that the following portion of the judge's charge was erroneous in that it was burden shifting and by referring to his "contentions" placed undue emphasis on his failure to testify: "Now, the defendants come into court and by their pleas of not guilty and through their counsel have contended that they are not guilty of the offense charged against them. They further contend that the state has not proved their guilt of the offense as charged to a reasonable certainty and beyond a reasonable doubt. If, from a consideration of the evidence or from a lack of evidence, you believe these contentions of the defendants to be the truth of the case, or if there rests upon your minds a reasonable doubt as to their guilt, it would be your duty to acquit any defendant as to whom you have such reasonable doubt." This enumeration of error is without merit. Bailey v. State, 142 Ga. App. 202 (1977). See Williams v. State, 139 Ga. App. 395, 396 (5) (228 SE2d 330) (1976).
Judgment affirmed. Quillian, P. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365505/ | 595 P.2d 435 (1979)
PRYSE MONUMENT COMPANY, an Oklahoma Corporation, Petitioner,
v.
The DISTRICT COURT OF KAY COUNTY, State of Oklahoma, and the Honorable Lowell Doggett, District Judge of said Court, Respondents.
No. 52821.
Supreme Court of Oklahoma.
May 22, 1979.
John J. Gardner, II, Northcutt, Northcutt, Raley, Clark, Gardner, Hron & Northcutt, Ponca City, for petitioner.
Kenneth E. Holmes, Brian T. Hermanson, Phipps, Johnson & Holmes, Ponca City, for respondents.
*436 OPALA, Justice:
A worker, injured on the job May 23, 1975, proceeded in the State Industrial Court[1] for an award against his uninsured employer whose business was within the purview of the Workmen's Compensation Act.[2] The claim was held barred by one-year statute of limitations.[3] In this proceeding the employer seeks prohibition against the worker's prosecution of a subsequent district court suit, brought timely within two years[4], to recover damages in tort for the same injury.
One who sustains an on-the-job injury while employed in a business which remains impermissibly uninsured though it is governed by the Workmen's Compensation Act has been given two distinct remedies for vindication of his single, statutorily-conferred right to recover. One of these is by claim in the State Industrial Court and the other by district court action in tort based on negligence[5] (with some defenses being denied to the employer).[6] The two *437 remedies available are separate, alternative, mutually exclusive and cognizable in different forums.[7] They are governed by distinctly varying theories and measures of recovery. These very characteristics combine to make the two remedies "coexisting but inconsistent" as distinguished from "concurrent and consistent".[8] The pursuit of one will preclude simultaneous prosecution of the other. Were suits pursuing both remedies pending at the same time, one of them, at claimant's election, would be abatable as vexatious.[9] The abatement's inchoate bar becomes absolute and conclusive when the remedy, once chosen has been pursued to a point of conclusion.[10] That point is reached at the first suit's termination whether by recovery or its denial. Waiver by election will preclude the claimant from vexing the employer with a second suit. Once a remedy is chosen and then pursued to conclusion, the point of no return is reached although there has been no satisfaction, much less vindication, of the right.[11] Three essential elements, all present here, must coincide to make preclusion through waiver by prior election of remedies applicable: (a) two or more remedies must be in existence (b) the available remedies must be inconsistent (c) choice of one remedy and its pursuit to conclusion must be made with knowledge of alternatives that are available.[12] The preclusion is effective even though the chosen action or suit failed because it had not been timely brought. In Assessment Bond Service v. W.R. Johnston & Company, Okl., 296 P.2d 959, 964 (1956) we settled this principle in clear and unmistakable terms. Therein we said that
"`Where a plaintiff has elected one of two remedies for the enforcement of a right, and such action is barred by the statute, he is bound by his election and cannot thereafter resort to the other remedy for which a different limitation is provided.'" (emphasis supplied)
Neither our holding in Williams v. Okl. Nat. Stockyards Co., Okl., 577 P.2d 906 (1978) nor its conceptual underpinnings will afford any semblance of validity to the notion that the cited decision stands as authority for allowing a subsequent district court action in every case where the prior "compensation claim failed other than on the merits ...". Williams dealt with a worker who was not in hazardous employment and hence had only one remedy to choose. We held he could institute his district court action within one year after the order which held there was no industrial jurisdiction over his claim. Williams is easily distinguishable from the present case. Although he had but one procedural course for vindication of his single right, he timely invoked the unavailable remedy. Because he was timely in the wrong court, he brought himself within the purview of 12 Ohio St. 1971 § 100, which enlarges regular limitations by an additional year when an action fails "otherwise than on the merits".[13]*438 Here, the worker's claim was not timely, though the forum he initially chose was right and available. Moreover, he had an unimpaired choice of two remedies. In short, Williams is "wide of the mark".
Neither can the preclusion by prior election by avoided by invoking the familiar principle that a statute of limitations bars only the remedy and not the right itself. The right left here to the worker is termed at common law "a mere right" an unenforceable claim that has been detached from remedy.[14] Until reunited with an available, viable remedy, "mere right" is not capable of vindication. It would take some affirmative act or waiver of the employer to resurrect the remedy lost to the worker here.[15]
The worker's district court action in negligent tort stands barred by waiver through prior conclusive election of another remedy. The result here, harsh though it may appear, tracks, with fidelity, the beaten path of long-established precedent. Fundamental fairness in litigation process cannot be afforded except within a framework of orderly procedure. No area of the law may lay claim to exemption from the range of its basic strictures not even the workers' compensation law. Chaos, caprice and ad hoc pronouncements would inevitably follow from any departure.
"* * * It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. * *" [Emphasis added][16]
Let the writ issue prohibiting respondents from proceeding further in cause No. C-77-90PC on the docket of the District Court, Kay County.
LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, BARNES and HARGRAVE, JJ., concur.
HODGES, SIMMS and DOOLIN, JJ., dissent.
DOOLIN, Justice, dissenting:
The facts are succinctly stated by the majority.
We are to decide what effect an unappealed judgment, rendered in the Industrial Court, has on an injured employee's right to proceed under 85 Ohio St. 1971 § 12.[1] The judgment *439 rendered by the Industrial Court was grounded upon the statutory limit of one year contained in 85 Ohio St. 1971 § 43.[2]
The majority decides an employee is bound by his election to proceed under § 43 of the Act and that the judgment of the Industrial Court is an "inchoate bar" to proceeding under § 12 of the Act. To me inchoate means an imperfect, partial or unfinished right or act exercised in this case by the employee which being partial or unfinished allows the injured workman to proceed under the alternative remedy provided.
Majority's reliance on H.L. Hutton & Co. v. District Court of Kay County, 398 P.2d 530 (Okl. 1965) which is cited in support of an election theory is not supportive, for in Hutton there was a judicial determination the claimant was not an employee. Thus, reasoned the court, he could not as an employee pursue a common law action against his employer for the determination of his status or lack thereof was res judicata. A judicial estoppel was created by the court's judgment and was definitive in any subsequent action in any court. In the instant case there is no estoppel as to employee's status nor has there been a judgment on the merits of the employee's claim authorized by 85 Ohio St. 1971 § 12.
The Industrial Court in the case at bar denied relief upon the procedural or narrow grounds of the one year statute of limitations, 85 Ohio St. 1971 § 43; it did not reach the merits or adjudicate same. This court has correctly held that this statute of limitations operates against the plaintiff's remedy and not upon his substantial rights.[3] There has been no determination of this workman's substantial rights by any court till this good hour.
Likewise, Haggard v. Calhoun, 294 P.2d 836 (Okl. 1956) which is twice cited by the majority as being supportive is doubtful in its application. In Haggard, the injured workman brought an action in the Industrial Court for loss of an eye while engaged in a hazardous employment. For some reason the industrial case was "not prosecuted" and while it was pending, the employee brought an action ex contractu as a third party beneficiary against the employer and his insurers. Admittedly this court says that the employee cannot pursue an industrial claim when a contract action has been previously filed. Such procedure would allow "double indemnity" to such claimant. But the cited case does not deal with tort claims anticipated under Section 12 of the Act, and should have little persuasion. The instant case sounds in tort.
We have also held that the doctrine of election of remedies has no application where concurrent or cumulative remedies exist, such as here.[4]
More recently in Williams v. Oklahoma National Stockyards, 577 P.2d 906, 907 (Okl. *440 1978) we held where a plaintiff filed claim for compensation during covered employment and the Industrial Court entered an order denying the claim for failure to show plaintiff was engaged in hazardous employment, the injured workman's tort action was not barred by a statute of limitation. The industrial action failed otherwise than on its merits. The majority points out certain admitted distinctions in Williams which it finds as authority to deny the instant claim. I suggest they are invented. The bottom line and rule in Williams does not turn on the timeliness of a claim in the right court or unavailable remedy, but upon the failure to adjudicate on the merits.
If Williams is good law why is it more fatal to a claimant to file a late claim in the right court, than to proceed in the wrong court on a timely basis? In both cases the claimant makes a choice of forums and in both cases there is no adjudication on the merits; thus neither tort action is barred.
Also cited by the majority is the case of Assessment Bond Service v. W.R. Johnston & Co., 296 P.2d 959 (Okl. 1956). This case dealt with the effect of an election made by the bond holders (lien holders) in a declaratory judgment action filed in the Federal Courts, where the bonds' validity was established. After the conclusion of the bond decision, the real property owners brought an action in the State District Court to remove the cloud (lien claim) of the bond owners. This court held the bond holders had a choice of remedies and having elected to pursue one were barred from pursuing the other.
I suggest the effect of elections, under the bond decision, made in matters affecting enforcement of special assessment liens, the rights and defenses thereto by the owners of real property and the statute of limitation to be applied in such cases should not be applied in tort matters and the Compensation Act.
The majority uses the analogy of prescription[5] in land titles, an invention or result of the relieving doctrines of equity (harshness of the common law), as a hammer to defeat a purely statutory right created under the Compensation Act. Our Act was passed to relieve and protect from harshness the "recognized rights" of the working man.[6] The analogy of the majority is a conceptual will-of-the-wisp as evasive as a quest for "the gay motes that people a sunbeam".
Lastly and perhaps most importantly, I believe the opinion flies in the face of decided and long standing case law of this state; that the Worker's Compensation Act is remedial in nature and should be given liberal construction.
Shorn of its rhetoric, the majority opinion saddles the procedures and claims of an injured workman with a harsh, oppressive and rigid blanket not heretofore permitted by the Act and the public weal, Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, 941 (1917).
I dissent.
I am authorized to state that Justice SIMMS concurs in the views herein expressed.
NOTES
[1] Now Workers' Compensation Court, effective 7-1-78.
[2] Now Workers' Compensation Law, effective 7-1-78.
[3] 85 Ohio St. 1971 § 43.
[4] 12 Ohio St. 1971 § 95(3).
[5] 85 Ohio St. 1971 § 12; Ice v. Gardner, 183 Okl. 496, 83 P.2d 378 (1938); Eagle Creek Oil Co. v. Gregston, 99 Okl. 181, 226 P. 339 (1924).
[6] 85 Ohio St. 1971 § 12; Marrs v. Richardson, 184 Okl. 342, 87 P.2d 131 (1939); Ice v. Gardner, supra note 5.
[7] Haggard v. Calhoun, Okl., 294 P.2d 836, 837 (1956); McAlester Corp. v. Wheeler, 205 Okl. 446, 239 P.2d 409, 411 (1951); Dixie Cab Company v. Sanders, Okl., 284 P.2d 421 (1955).
[8] H.L. Hutton & Co. v. District Court of Kay County, Okl., 398 P.2d 530, 533 (1965); Haggard v. Calhoun, supra note 7.
[9] A suit may be abated because another is pending where both are between the same parties and relief sought is for the same event or transaction. Vexatiousness follows from multiplicity of suits. Oklahoma Press Pub. Co. v. Gulager, 168 Okl. 245, 32 P.2d 723, 725 (1934); Myers v. Garland, 122 Okl. 157, 252 P. 1090, 1092 (1927). Where full relief may be obtained in both actions, one will be abated. Phillips v. Barker, Okl., 269 P.2d 337, 339 (1954).
[10] H.L. Hutton & Co. v. District Court of Kay County, supra note 8; Haggard v. Calhoun, supra note 7; see cases cited in note 7.
[11] H.L. Hutton & Co. v. District Court of Kay County, supra note 8.
[12] Dudley v. King, Okl., 285 P.2d 425, 427 (1955); H.L. Hutton & Co. v. District Court of Kay County, supra note 8.
[13] The terms of 12 Ohio St. 1971 § 100 provide in pertinent part:
"If any action be commenced in due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits ..." (emphasis added) a new action may be commenced within one year after failure of the initial one.
[14] Jus merum is the original Latin term by which old English law referred to a "mere or bare right" the jus proprietatis which is without either possession or even the right of possession. 2 Bl.Comm. 197; Bract. fol. 23; Stolfa v. Gaines, 140 Okl. 292, 283 P. 563, 567-570 (1930); Opala, Prescriptive Temporis and its Relation to Prescriptive Easements in the Anglo-American Law, 7, Tulsa L.J. 107-109 (1971).
Justice Jackson aptly described the Anglo-American concept of limitations in Chase Securities Corporation v. Donaldson, 325 U.S. 304, 313, 65 S. Ct. 1137, 1142, 89 L. Ed. 1628 (1945) in these words:
"Statutes of limitations always have vexed the philosophical mind for it is difficult to fit them into a completely logical and symmetrical system of law. There has been controversy as to their effect. Some are of opinion that like the analogous civil law doctrine of prescription limitations statutes should be viewed as extinguishing the claim and destroying the right itself. Admittedly it is troublesome to sustain as a `right' a claim that can find no remedy for its invasion. On the other hand, some common-law courts have regarded true statutes of limitation as doing no more than to cut off resort to the courts for enforcement of a claim. We do not need to settle these arguments." [footnotes omitted]
[15] Payment or provision of medical attention would be effective to toll limitations under 85 Ohio St. 1971 § 43. Smedley v. State Industrial Court, Okl., 562 P.2d 847 (1977). Failure to assert the defense of election of remedies would be effective to reunite "mere right" with its district court remedy. Miller v. Roberts, 140 Okl. 271, 282 P. 1104, 1106 (1929).
[16] Joint Anti-Fascist Refugee Committee v. McGrath, (Douglas, J., concurring) 341 U.S. 123, 179, 71 S. Ct. 624, 652, 95 L. Ed. 817 (1951).
[1] 85 Ohio St. 1971 § 12:
"The liability prescribed in the last preceding section shall be exclusive and in place of all other liability of the employer and any of his employees, at common law or otherwise, for such injury, loss of services or death, to the employee, spouse, personal representative, parents, dependents, or any other person, EXCEPT that if an employer has failed to secure the payment of compensation for his injured employee, as provided in this Act, then an injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such an action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employer; provided, that this Section shall not be construed to relieve the employer from any other penalty provided for in this Act for failure to secure the payment of compensation provided for in this Act." (Emphasis supplied).
[2] 85 Ohio St. 1971 § 43:
"The right to claim compensation under the Worker's Compensation Act shall be forever barred unless, within one (1) year after the injury or death a claim for compensation thereunder is filed ..."
[3] Clark v. Keith, 103 Okl. 20, 229 P. 613 (1924); Gaier & Stroh Millinery Co. v. Hilliker, 52 Okl. 74, 152 P. 410 (1915) and Munsingwear, Inc. v. Tullis, 557 P.2d 899, 901 (Okl. 1976).
Munsingwear cites in support of the operation of the statute of limitations on the remedy only, the following cases: Oklahoma Furniture Mfg. Co. v. Nolen, 164 Okl. 213, 23 P.2d 381 (1933); Pine v. Indus. Comm'n., 148 Okl. 200, 298 P. 276 (1931); Atlas Coal Co. v. Corrigan, 148 Okl. 36, 296 P. 963 (1931); Skelly Oil Co. v. Harrell, 187 Okl. 412, 103 P.2d 88 (1940) and National Zinc Company v. Van Gunda, 402 P.2d 264 (Okl. 1965).
[4] Weiss v. Salvation Army, 556 P.2d 598 (Okl. 1976). See also Williams v. Oklahoma National Stockyards Co., 577 P.2d 906 (Okl. 1978).
[5] See footnote No. 14 of the majority opinion. The majority relies upon Justice Jackson in Chase Securities Corporation v. Donaldson, 325 U.S. 304, 313, 65 S. Ct. 1137, 1142, 89 L. Ed. 1628, 1635 as authority that prescription time is comparable to limitations contained in legislative statutes. However at pages 314, 1142 and 1636 of the reported case of Chase Securities Corporation v. Donaldson, Justice Jackson points out:
"This Court, in Campbell v. Holt, [115 U.S. 620, 6 S. Ct. 209, 29 L. Ed. 483] adopted as a working hypothesis, as a matter of constitutional law, the view that statutes of limitation go to matters of remedy, not to destruction of fundamental rights. The abstract logic of the distinction between substantive rights and remedial or procedural rights may not be clearcut, but it has been found a workable concept to point up the real and valid difference between rules in which stability is of prime importance and those in which flexibility is a more important value."
[6] 85 Ohio St. 1971 § 12, see footnote 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365578/ | 142 Ga. App. 408 (1977)
236 S.E.2d 146
RYDER TRUCK RENTAL, INC.
v.
INSURANCE COMPANY OF NORTH AMERICA.
53660.
Court of Appeals of Georgia.
Submitted April 4, 1977.
Decided May 26, 1977.
*410 James Walker Harper, for appellant.
Long, Weinberg, Ansley & Wheeler, George H. Connell, Jr., for appellee.
McMURRAY, Judge.
Joseph and Anna Urban brought their separate suits against the Borden Company, Herndon Kendrick (an employee of the Borden Company) and Ryder Truck Rental, Inc. early in April, 1967, as a result of a motor vehicle collision between their automobile and a diesel tractor owned by Ryder, leased to the Borden Company, with a Borden trailer attached, and being driven by Kendrick. The lease contract between Ryder and Borden stated that Ryder provided certain automobile liability insurance covering Borden's use of the leased tractor against certain risks and hazards unless the renter (Borden) agreed to furnish liability insurance coverage. Borden did not agree to furnish this coverage. The insurance provided pursuant to this requirement in the tractor lease was provided by a policy with Liberty Mutual Insurance Company.
Verdicts were returned against Kendrick and the Borden Company in favor of Joseph Urban for $18,000 and in favor of Anna Urban for $5,000. However, no judgment was returned against Ryder.
These verdicts were settled in late 1967 or early 1968 for a total payment by Ryder of $20,700, plus $111.95 in court costs. Defense of the litigation instituted by the Urbans had been requested of Insurance Company of North America, insurer of Borden, but it denied liability. Demand for contribution toward settlement was then made by Ryder. This demand was refused by Insurance *409 Company of North America.
Ryder sued Insurance Company of North America in December, 1973, seeking contribution, contending there was duplicate coverage as to the loss. The case was submitted to the court for trial upon a stipulation of facts. The court ruled in favor of Insurance Company of North America, and Ryder appeals. Held:
By the terms of the tractor lease agreement between Borden and Ryder the terms of the automobile liability insurance obtained by Ryder and which covered Borden's use of the tractor were incorporated by reference into the lease agreement. Among the provisions of that insurance policy with Liberty Mutual Insurance Company was a special deductible endorsement which provided that the payments under that insurance policy be subject to a $25,000 deductible.
Ryder contends that by the terms of the lease agreement and insurance policy when taken together it was required to pay the amount of this claim which was less than $25,000. This contention is without merit, however, for in examining these documents we find that the lease provides that Ryder will supply an insurance policy which is incorporated by reference, and this insurance policy contains a $25,000 deductible clause. The collision with the Urbans involving damages of less than $25,000 fell within the deductible clause of the insurance provided by Ryder. No judgment was returned against Ryder, and yet it "settled" the case for $20,811.95 including court costs. We find nothing to support any contention that Ryder was liable for the amount of the Urban verdict against Borden and Kendrick. Therefore, Ryder's payments were voluntary and no right to subrogation exists. Hill v. Shaw, 62 Ga. App. 757 (1) (9 SE2d 850); Cloud v. Bagwell, 83 Ga. App. 769 (1b), 773 (64 SE2d 921); Snyder v. Elkan, 187 Ga. 164, 173 (2) (199 S.E. 891).
Judgment affirmed. Bell, C. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3077651/ | Opinion filed November 7, 2013
In The
Eleventh Court of Appeals
__________
No. 11-13-00014-CV
__________
LONE STAR TRANSMISSION, LLC, Appellant
V.
WILKS RANCH TEXAS, LTD., Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. CV1242569
MEMORANDUM OPINION
The parties to this appeal, Lone Star Transmission, LLC and Wilks Ranch
Texas, Ltd., have filed in this court a joint motion to set aside the trial court’s
judgment pursuant to settlement under TEX. R. APP. P. 42.1(a)(2)(B). In the
motion, the parties state that they “have now reached a comprehensive settlement
of their disputes.” The parties request that this court “set aside the Final Judgment
without regard to the merits and remand the case to the trial court for rendition of
judgment in accordance with the parties’ settlement agreement.”
Therefore, in accordance with the parties’ request, the trial court’s judgment
is set aside, and this case is remanded to the trial court for further proceedings in
accordance with the parties’ settlement agreement.
The joint motion is granted, and the appeal is dismissed.
PER CURIAM
November 7, 2013
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2439273/ | 964 N.E.2d 573 (2011)
357 Ill. Dec. 894
In re MARRIAGE OF D.T.W., Petitioner-Appellee, and
S.L.W., Respondent-Appellant.
No. 1-11-1225.
Appellate Court of Illinois, First District, Second Division.
December 30, 2011.
*576 Schiller Du Canto & Fleck, LLP (Sarene C. Siewerth, of counsel), and Kalcheim Haber, LLP (Michael A. Haber and Lauren Bernay, of counsel), Chicago, for appellant.
James B. Pritikin, Sylvia A. Sotiras, Michael D. Sevin, Nadler, Pritikin & Mirabelli, LLC, Paul J. Bargiel, Paul J. Bargiel, P.C., Chicago, for appellee.
Lester L. Barclay, Barclay, Dixon & Smith, P.C., Chicago, guardian ad litem.
OPINION
Presiding Justice QUINN delivered the judgment of the court, with opinion.
¶ 1 Respondent S.L. appeals a trial court order granting petitioner D.T. sole custody of the parties' two minor children. We affirm.[1]
¶ 2 The parties were married on May 18, 2002, in Cook County, Illinois. The parties had two children: Z.B.D. born on February 4, 2002, and Z.M.A. born on May 29, 2007. D.T. filed a praecipe for summons in suit for a dissolution of marriage on November 26, 2007. He also filed a petition for dissolution of marriage on May 27, 2008, seeking joint custody of the children. Respondent filed a counterpetition for dissolution of marriage on August 13, 2008, seeking sole custody. On March 29, 2010, D.T. filed a petition for sole custody and amended his petition for dissolution of marriage to reflect this change. The dissolution of marriage and custody proceedings were bifurcated and a judgment dissolving the marriage was entered on June 25, 2010. After a 38-day custody trial, the court issued a 102-page written order awarding sole custody of the children to D.T.
*577 ¶ 3 At the custody trial, the court heard testimony from D.T., respondent, their friends and relatives and other persons acquainted with the family. The court also heard testimony from Doctor Phyllis Amabile, a board-certified psychiatrist and forensic psychiatrist appointed by the court as an expert on custody and visitation under section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/604(b) (West 2008)). Amabile conducted multiple interviews with D.T. and respondent and two interviews with Z.B.D., who was eight years old at the time. Amabile also observed D.T. and respondent interact with the children and conducted several interviews with collateral persons acquainted with the family. She further reviewed pleadings, motions, medical records and other relevant documents. Amabile filed a report with the court on May 6, 2010 (report), documenting her findings. In the event joint custody was not deemed appropriate by the court, Amabile filed a supplemental report addressing the issue of sole custody (supplemental report) on July 26, 2010. The following facts are taken from the testimonial evidence heard by the court and Doctor Amabile's reports.
¶ 4 D.T. was born on January 17, 1982, and spent the first eight years of his life living with his mother, JoLinda and older sister, Tragil. JoLinda had drug-related problems at the time and was incarcerated. Tragil testified that the living arrangement was rather unique because she took on a parental role with D.T. D.T. testified that Tragil was his caretaker and best friend. When D.T. was nine years old he moved in with his father and stepfamily in Robbins, Illinois. There, D.T. met respondent in grade school. The parties began dating when they were teenagers in high school. D.T. was one year behind respondent in school. During D.T.'s senior year, after respondent left for Eastern Illinois University, D.T. moved in with respondent's mother, Darlene Funches. D.T. testified that Darlene provided him with a stable home environment and was like another mother to him. D.T. lived with Darlene until he graduated high school. With Darlene's help, D.T. secured a college scholarship to play basketball at Marquette University. D.T. testified that he has become estranged from Darlene during the divorce proceeding. He said he would like to reconcile with her and foster a relationship between her and the children.
¶ 5 Respondent left Eastern Illinois University at the beginning of her sophomore year. She moved back to Chicago and became pregnant with the parties' first child, Z.B.D., who was born on February 4, 2002. The parties were married on May 18, 2002. After marrying D.T., respondent moved to Milwaukee, Wisconsin, and enrolled at Marquette University. Doctor Amabile noted in her report that from Z.B.D.'s birth to the summer of 2003, both parties were very involved with Z.B.D.'s upbringing.
¶ 6 In 2003, during D.T.'s junior year of college, he was drafted into the National Basketball Association by the Miami Heat. The parties moved to the Doral Isles neighborhood in Miami, Florida. Doctor Amabile noted in her report that although D.T. was busy with his basketball schedule and spent a lot of time away from home, he made an effort to be a good father to Z.B.D. D.T. testified that Andrea Williams, respondent's best friend, moved into the Doral Isles home with the parties because respondent was lonely. Andrea is the godmother of both Z.B.D. and Z.M.A. Andrea testified that she looked after Z.B.D. in Florida.
¶ 7 In 2006, the parties moved into a house in Pinecrest, Florida. Both D.T. and respondent testified that their Pinecrest *578 residence was beautiful. Z.B.D. attended a Presbyterian school in Miami which the parties agreed was a very good school. Tragil and Andrea moved into the Pinecrest house and helped take care of Z.B.D. Tomasa Garcia, the parties' housekeeper, also helped take care of Z.B.D.
¶ 8 Z.M.A. was born in Chicago on May 29, 2007. Doctor Amabile testified that the bond between Z.M.A. and Z.B.D. is very strong. She said Z.M.A. looks to Z.B.D. as a source of security. Amabile said that both D.T. and respondent love and adore the children and exhibited wonderful interaction with each child. At trial, Amabile described respondent's strengths as loving, affectionate and consistent. She said respondent is very attached to the children and has been their primary caretaker since they were born. She acknowledged that respondent has had substantial help caring for the children. D.T. described the bond between respondent and the children as unbelievable and attached. Amabile noted that the children were very comfortable around respondent.
¶ 9 Doctor Amabile testified that D.T. loves the children deeply and has an identification with the parenting role. Amabile said that during her observations of D.T. with the children, she found it important that he demonstrated patience, empathy and love. She also observed that D.T. was playful, engaged and verbally affectionate with the children. Amabile said D.T. is a good teacher, has a nice sense of humor and is committed to the goal of the children doing well in the future. She said D.T. wants what is best for the children. She also said that it is important to D.T. to be a better father to his children than his father was for him and that D.T. has worked hard to accomplish that goal. The children love being with D.T. and are very comfortable around him. When the children visit D.T. in Miami, he plans activities ahead of time and provides them with a schedule and routine. Amabile noted in her report that D.T. relies heavily on his sister Tragil, his mother JoLinda and his housekeeper Tomasa for much of the hands-on care and supervision of the children.
¶ 10 Tragil has a bachelor's degree in elementary education and is a co-principal of a school. Tragil loves the children and has a great relationship with them. Tragil testified that if D.T. is awarded sole custody of the children she would move to Miami to assist him. Amabile testified that the children would be in good hands with Tragil as their caretaker. Amabile also testified that she was impressed with JoLinda's sincerity and concern about D.T. and the children. JoLinda took responsibility for being an absentee mother and acknowledged that she was given a second chance. Amabile said she was impressed favorably with JoLinda. Amabile further testified that Tomasa loved the children and was concerned about them. She said Tomasa was a positive influence on the children.
¶ 11 The parties' marriage began to experience difficulties around the time Z.M.A. was born. In August 2007, D.T. moved out of the Pinecrest residence and into a hotel. He had no set schedule for visitation with the children. Doctor Amabile noted in her report that she was critical of respondent's attitude on fostering a relationship between D.T. and the children during this time before the court ordered visitation. Amabile said that for a long period of time, respondent made visitation with the children challenging for D.T. Amabile noted that respondent negatively controlled D.T.'s access to the children.
¶ 12 D.T. filed a petition for dissolution of marriage in Chicago on May 27, 2008. Respondent then left Florida and moved to South Holland, Illinois, where the parties *579 owned a second home. Respondent testified she moved with the children to Illinois to be near her mother. She said that Z.B.D. had completed the school year before they moved. D.T. testified that the move occurred before the school year ended for Z.B.D. and that respondent did not tell him she was moving back to Illinois. Doctor Amabile noted in her report that D.T. did not object to the move. D.T. denied telling Amabile that he did not object to the move. Although D.T. was under contract in Miami and remained there, he purchased a home for himself in Chicago.
¶ 13 Respondent enrolled Z.B.D. at Calvary Academy, a private Christian school in South Holland, Illinois. Z.M.A. is enrolled at the Calvary Academy day care program. D.T. testified that Calvary Academy is a good school and that Z.B.D. is receiving a good education. D.T. said that respondent's decision to enroll the children at Calvary Academy was a good decision. Sandy Bacheldor, an assistant in the office of Calvary Academy, testified that Z.B.D. is well liked by staff and students and is doing well academically and socially. Z.B.D.'s report cards show that he receives good grades. Z.B.D. participates in soccer through the South Holland park district, plays on a South Holland little league baseball team and participates in summer camps. All witnesses agreed that Z.M.A. is a delightful, active and well-adjusted young boy.
¶ 14 After respondent and the children moved to Illinois, visitation problems arose. D.T. testified that he had problems contacting Z.B.D. because he had to ask respondent's permission to do so. He said he felt respondent was punishing him. Respondent claimed it was D.T.'s fault for not contacting the children more often. After continued disputes, a parenting schedule was proposed by the court. The parties failed to agree on the schedule. D.T. sought parenting time in Florida during the basketball season while respondent sought parenting time for D.T. only in Chicago. In November 2008, D.T. sought court intervention to establish parenting time for him.
¶ 15 The next two years involved numerous motions and court orders regarding parenting time for D.T. Doctor Amabile noted in her report that respondent was controlling and resistant to authority on the issue of visitation. Amabile said that even after the court ordered parenting time for D.T., respondent attempted to interfere with D.T.'s relationship with the children. She pointed out that respondent had twice sought medical care for the children just before a scheduled parental visit, leading to a curtailment, restriction or cancellation of D.T.'s visit. Amabile testified that taking the children to the hospital before a scheduled visit was volitional on respondent's part. She said that respondent's actions were not in the best interests of the children. We recount some of the incidents surrounding D.T.'s visits below.
¶ 16 On December 17, 2008, the court ordered parenting time for D.T. in Florida. The order directed that D.T. was to spend Christmas with the children, that he could visit the children away from the parties' house and that respondent would not withhold her consent to this. In December 2008, respondent and the children traveled to Florida and stayed at the parties' Pinecrest residence. On December 24, 2008, the day before D.T.'s scheduled visit, respondent called D.T. and told him that Z.M.A. was sick with pneumonia, Z.B.D. was getting sick and she did not want them leaving the house. D.T. went to the house that evening for parenting time with the children as scheduled. He testified that when he arrived at the house, the *580 front gate would not open. He called respondent but she did not answer. D.T. said the Pinecrest police arrived at the house and told him that respondent had called them. Officer Heather Setter testified in her deposition that respondent called police, saying that a car was parked outside of the front gate of the house and that respondent believed it had something to do with a case in Chicago about money that had been stolen from the family. D.T. told police that he was at the house to see his children. Police accompanied D.T. to the front door of the house and told respondent that D.T. was there to see the children. Respondent allowed D.T. to enter the house but asked the officers to sit outside the house until he left.
¶ 17 Under the December 17, 2008, court order, D.T. was scheduled to visit with the children on Christmas Day 2008. On Christmas morning, respondent took the children to the emergency room of Baptist Hospital in Miami. Respondent testified that both children had a fever, a cough and did not sleep throughout the night. She said that Z.B.D. was coughing so hard he vomited in the car on the way back from the hospital. D.T. testified the children did not seem sick when he saw them on Christmas Eve. Respondent testified that when she brought the children to the hospital on Christmas morning there was nothing wrong with them but that they were sick the night before. Doctor Amabile noted in her report that respondent's description of the children's symptoms and symptom severity was not supported by medical evidence. Amabile's report questioned respondent's decision to take the children to the hospital on Christmas morning.
¶ 18 The court ordered parenting time for D.T. in Florida during Christmas 2009. Tragil went to the South Holland residence in December 2009 to pick up the children and transport them to the airport. Tragil was greeted at the house by respondent, respondent's mother Darlene and respondent's friend Nadgee Alarcon. Doctor Amabile described Nadgee as suspicious and hostile. Amabile said Nadgee had influence over respondent and was both a good and bad influence on the children. At the house, Nadgee told Tragil that the group wanted to pray before the visitation. Tragil agreed. Tragil told Amabile that Darlene began "speaking in tongues" and saying that Tragil never had a mother and did not have a father. Nadgee prayed and said Tragil was a slave to people. Tragil said Z.B.D. and Z.M.A. were present for the prayer. Amabile testified that Tragil cried when she recounted the story to her. Amabile said Z.M.A. likely did not understand what was happening but that this behavior likely had a negative effect on Z.B.D. by alienating him from his aunt Tragil.
¶ 19 The court ordered parenting time for D.T. to take place on February 5, 2010, the day after Z.B.D.'s birthday. Under the court order, Tragil was to pick up the children at the South Holland residence. The court ordered Lester Barclay, the children's attorney, to accompany Tragil to the residence because of the December 2009 prayer incident. On the day of D.T.'s scheduled visitation, respondent texted him a photo of Z.M.A. hunched over the toilet, vomiting. She said that Z.M.A. had a high fever and asked D.T. not to take him for visitation. D.T. called Tragil and told her that Z.M.A. was sick and could not come to the visitation. Tragil testified that when Barclay and she arrived at the South Holland residence, the gate did not open. Barclay called respondent's attorney. Tragil said they waited about 20 minutes for the gate to open. Nadgee drove the children to the gate. Tragil testified that Z.M.A. was not sick and did not vomit that day. The group went to a *581 Chicago Bulls basketball game. Tragil said she believed the picture of Z.M.A. vomiting was not taken on the date of the scheduled visitation because Z.M.A.'s hair was shorter in the picture than it was on the date of visitation. D.T. also testified that the picture looked old for the same reason.
¶ 20 The court ordered parenting time for D.T. in Miami on March 12, 2010. Respondent unsuccessfully sought to transfer the visitation to Chicago and claimed in her court pleadings that she believed Z.B.D. should not be traveling to Miami. Under the court order, Tragil was to pick up the children after school from their South Holland residence and transport them to the airport. Tragil testified that when she arrived at the house, no one responded. She said neither respondent nor the children were at the house. Tragil waited outside of the front gate of the house for two hours. D.T. testified that Tragil called him and told him that no one was responding at the South Holland residence. D.T. called his attorney and Barclay, but neither knew where the children were.
¶ 21 Respondent testified that on March 12, 2010, she received a call from Calvary Academy, informing her that Z.B.D. had a headache. She said that Z.B.D. started complaining of headaches a few weeks after he returned from visiting D.T. in Miami in December 2009. Sandy Bacheldor, an assistant in the office of Calvary Academy, testified that a phone call was made on March 12, 2010, to respondent about Z.B.D.'s headache. Bacheldor said Z.B.D. had been having headaches for a while. Respondent testified that she drove to the school and picked up both children. When respondent returned to the house with the children, she called a pediatrician and then went to the hospital with Z.B.D. Respondent's mother, Darlene Funches, testified that she watched Z.M.A. while respondent took Z.B.D. to the hospital. Respondent said she lost her mobile phone and was unable to call D.T. or Tragil to tell them of the children's whereabouts. Respondent called her attorney that day and left a message because the attorney was not in the office. The attorney did not receive respondent's message. Respondent said she did not know anyone's telephone number and was unable to call D.T. or Barclay. D.T.'s attorneys received an e-mail on March 13, 2010, telling them that Z.B.D. was in the hospital.
¶ 22 Doctor Amabile noted in her report that respondent's failure to notify those who should have been notified about Z.B.D.'s hospital visit was a lapse of good co-parenting and of common courtesy. She said there was no excuse for respondent's conduct and that respondent's failure to notify D.T. created anxiety and ill will and inflamed the circumstances of the litigation.
¶ 23 The medical records from Z.B.D.'s March 12, 2010, hospital visit show that respondent told the doctors that Z.B.D. had an accident near a pool. According to respondent, Z.B.D. fell by the side of the pool, hit his head, became dizzy, rolled into the pool, lost consciousness and was under water for an unknown period of time. The hospital notes also say that Z.B.D. almost drowned. Z.B.D. was diagnosed with a sinus infection and prescribed medication for the infection.
¶ 24 Doctor Amabile discussed Z.B.D.'s accident in her report. Z.B.D. told Amabile that while visiting D.T. in Miami in December 2009, he was playing with his cousin by the pool. Z.B.D. slipped on the bricks, hit his chin and fell into the pool. Z.B.D. told Amabile his head did not go underwater. He pulled himself out of the pool, ran into the house and D.T. bandaged his chin. This sequence of events was *582 corroborated by the testimony of both D.T. and Tragil. D.T. added that he did not take Z.B.D. to the hospital or tell respondent about the incident because Z.B.D. only had a scratch on his chin. Amabile testified that neither respondent nor Z.B.D. told her that Z.B.D. lost consciousness or was under water for a period of time. She noted that Z.B.D. did not almost drown. Amabile said that respondent was embellishing some of the details of Z.B.D.'s accident and lying about others.
¶ 25 Doctor Amabile further noted in her report that although Z.B.D. did experience a headache on March 12, 2010, it appeared to be similar to other headaches he had been experiencing for a few weeks before that date. Amabile said that after reviewing Bacheldor's report about the headache, she was left with the impression that there was nothing out of the ordinary or extreme about Z.B.D.'s March 12, 2010, headache. Amabile questioned respondent's decision to take Z.B.D. to the hospital on the day D.T. was scheduled to visit with the children. Amabile noted in her report that respondent either did not believe D.T.'s visits with the children were important or it was a passive-aggressive expression of hostility on respondent's part. Amabile further pointed out that just a few days after the March 12, 2010, incident, respondent tried to obtain an order of protection against D.T. on the basis of Z.B.D.'s accident.
¶ 26 The petition for order of protection was filed by respondent in Markham court on March 19, 2010. The petition alleged that Z.B.D. was suffering from headaches as a result of hitting his head and nearly drowning while he was with D.T. in Miami. Respondent sought a denial of D.T.'s visitation and that he have no contact with the children by any means, either in person, by phone, e-mail or through third parties.
¶ 27 The court ordered makeup parenting time for D.T. on May 5, 2010, to May 7, 2010, in Chicago. Under the court order, D.T. was to take Z.B.D. to his doctor's appointment on May 6 and respondent was to meet them at the doctor's office. The court order noted that D.T. had not seen the children and that phone contact had been disrupted. D.T. filed a motion for Tragil to pick up the children from school on May 5, 2010, which the court granted. Respondent objected to the motion and filed an emergency motion to reconsider. Respondent's motion was denied.
¶ 28 On May 5, 2010, respondent picked up the children at school. Respondent testified that on that date she drove to the children's school at dismissal time to bring Z.B.D. a bag with medication. Respondent said she went to Bacheldor's office with the bag and waited there until 3:30 p.m. Respondent then left the school with the children. She said she took the children because Tragil was not there at 3 p.m., dismissal time. Respondent said she believed the court order was for the children to be picked up on dismissal from school. Bacheldor testified that if Z.B.D. was not picked up from school at dismissal time, the protocol would have been for Z.B.D. to go to the extended day care program, which lasts until 6 p.m.
¶ 29 Tragil testified she arrived at the school between 3:15 and 3:30 p.m. on May 5, 2010. She said the children were nowhere to be found. Bacheldor testified that she went to a meeting at 3:20 p.m. on May 5, 2010, and when she returned from the meeting at 3:55 p.m., Tragil was in her office, looking for the children. Tragil said she called family and friends and then called the police. Bacheldor testified that Tragil waited in the parking lot of the school until about 5:30 p.m. D.T. testified that he was in an airport when Z.B.D. called him on May 5, 2010. D.T. said *583 Z.B.D. refused to tell D.T. where he was. D.T. did not visit with the children on May 5, 2010. He said he was disappointed and upset. Respondent took Z.B.D. to the doctor's office on May 6, 2010.
¶ 30 On that date, D.T. filed an emergency motion to transfer physical possession of the children. The court granted the motion and ordered immediate physical possession of the children be transferred to D.T. until May 9, 2010. The court ordered respondent to be in court on May 10, 2010, to explain why the previous court order was not obeyed. Respondent did not appear in court on May 10, 2010. The court issued a body attachment and $10,000 cash bond for respondent. The court noted that it was troubled by the pattern of behavior that was developing in this case and respondent's unwillingness to obey court orders that were not in her favor.
¶ 31 Doctor Amabile filed her first report with the court on May 6, 2010. Amabile was unaware of the May 5, 2010, incident at that time. Amabile concluded in the report that Z.B.D. was exhibiting signs of alienation from D.T. Amabile explained that alienation is the programming of a child by the alienating parent, in this case respondent, to believe that one parent is good and the other parent is bad with the goal that the child completely reject the other parent. Amabile said that Z.B.D.'s feelings toward D.T. were ambivalent. She said that during her interviews with Z.B.D., he made a number of negative statements about D.T. Z.B.D. talked about how D.T. abandoned respondent and left her while she was pregnant with Z.M.A. Amabile found Z.B.D.'s statements to be strange for a child of his age. Amabile also noted that in a questionnaire Z.B.D. answered at the Christian Counseling Center, he said that if he could change something about his life he would change D.T.'s soul. Z.B.D. described respondent in the questionnaire as good and wise. Amabile explained that she was troubled by Z.B.D.'s belief that D.T. had something wrong with his soul and Z.B.D.'s unbalanced view of his parents. Amabile said that these were signs of alienated thinking on Z.B.D.'s part.
¶ 32 Doctor Amabile also noted in this report that during one of her observations of the interaction between D.T. and the children, Z.B.D. wrote a note to her which read "I am going to ask my dad some [questions]." Z.B.D. then stood next to Amabile and asked D.T. a series of questions, including what Z.M.A. meant to him. Amabile said Z.B.D. asked the questions in a confrontational voice. Amabile testified that she has never in all of her years of experience seen a child do this. She said D.T. did a good job answering the questions, exhibiting patience, empathy and love.
¶ 33 Doctor Amabile described respondent in the report as loving and affectionate. Amabile said respondent loves the children, has a strong identification with the parenting role and is very attached to the children. Amabile noted that respondent has been the children's primary caretaker since they were born. But, Amabile also noted that respondent does not understand how she has placed the children in the middle of the parties' divorce, how Z.B.D. has suffered because of the pressure he feels and how it is wrong for her to say disparaging things about D.T. to the children. Amabile recommended joint custody with respondent as the primary residential parent. She advised respondent seek counseling with the goal of helping respondent learn to shelter the children from divorce conflicts and support the children's relationship with D.T.
¶ 34 Friday, May 29, 2010, was Z.M.A.'s third birthday. Although Friday would *584 usually be the start of parenting time for D.T., Z.M.A. spent the day with respondent because the parties could not reach an agreement to share parenting time. Because of the lack of agreement, the court entered an order on May 28, 2010, scheduling parenting time for D.T. to begin at 2 p.m. on Saturday, May 30, 2010. The court order provided that Tragil was to be the transporter of the children for this and future parenting visitations with D.T. Respondent objected to this arrangement.
¶ 35 Also on May 28, 2010, respondent filed a civil complaint for intentional infliction of emotional distress against Tragil in court at Markham. The lawsuit was brought by Z.B.D. and Z.M.A. through respondent. The complaint sought money damages and alleged that Tragil: placed the children in the care of strangers who were not authorized caregivers; deprived Z.B.D. of his cellular telephone so he could not contact respondent; left the children in the company of a young girl who forced Z.M.A. to kiss another young girl on the lips; failed to properly feed the children during visitation; and allowed both children to nearly drown while acting as a caregiver.
¶ 36 Doctor Amabile later testified at the custody trial that, except for the allegation that the children almost drowned, respondent did not tell her about the other allegations in the May 28, 2010, complaint. Amabile said respondent never told her that Tragil was emotionally damaging to the children. Amabile also said that her investigation did not reveal evidence of extreme or outrageous conduct on Tragil's part. She testified that Tragil loves the children and that the children love her. Amabile described the lawsuit as a "bad idea." She also said that it was another example of the process of alienation. Respondent testified at the custody trial that she filed the lawsuit against Tragil to protect the children.
¶ 37 On May 31, 2010, D.T. went to the South Holland residence with the court order for visitation. D.T. waited outside the front gate of the house for about one hour because the gate was closed. Respondent denied that she did not open the gate. D.T. called police. D.T. said he had a birthday party planned for Z.M.A. at D.T.'s house and that Z.M.A.'s whole family was going to attend the party. Z.B.D. exited the house and, in the presence of police, told D.T. that he did not want to go to Z.M.A.'s birthday party. The front gate of the house separated Z.B.D. from D.T. Respondent testified that Z.B.D. asked a police officer not to make him go to the party. D.T. took only Z.M.A. to the party.
¶ 38 The next day, D.T. filed an emergency motion for immediate turnover of the children. The court granted the motion and ordered the children be turned over to D.T. from June 2, 2010, to June 7, 2010, with the parties to appear in court on June 7, 2010. The court expressed its concern that respondent's actions were prolonging the litigation in this case.
¶ 39 Also on June 1, 2010, respondent went to the Markham court with Z.B.D. and filed a criminal petition for order of protection on behalf of Z.B.D. against Tragil. Respondent alleged in the petition that on May 30, 2010, Tragil hit Z.B.D. in the right arm with her fist. The petition sought for Tragil to have no contact with the children and included a request to prohibit Tragil from entering or remaining at Calvary Academy. The petition alleged that it was probable that Tragil would be under the influence of drugs and would likely be carrying weapons. Respondent later testified at the custody trial that she had never seen Tragil with a weapon and that she did not take Z.B.D. to the Markham court on June 1, 2010. She was impeached *585 with the transcript of the June 1, 2010, proceeding. During the proceeding, respondent told the court that there was a history of abuse between Tragil and the children. The petition indicated that there was no other pleading or action involving the parties pending before the court.
¶ 40 Tragil's criminal trial in Markham took place on September 2, 2010. Respondent signed Z.B.D. out of school on that date to testify against Tragil at the trial. Respondent later acknowledged at the custody trial that she alone was under subpoena by the State. At the criminal trial against Tragil, Z.B.D. testified that on May 30, 2010, Z.M.A. and he were in a car inside the front gate of the South Holland residence. Respondent's mother and Nadgee were also inside the car. Tragil was in another car parked outside of the front gate. When the gate opened, Z.M.A. ran to Tragil and entered her car. Z.B.D. said he stood by the gate for a few minutes, debating whether or not he wanted to go with Tragil. He then told Tragil that Z.M.A. and he did not want to go with her. Z.B.D. said Tragil grabbed his arm and he kicked her in the leg. Tragil then hit him with her fist. Z.B.D. said he then went to Tragil's car, unstrapped Z.M.A. from the car seat, removed him from the car and together ran back to Darlene's car.
¶ 41 On cross-examination, Z.B.D. acknowledged that he did not want to be in court and that he did not know he was going to be testifying at trial. He also acknowledged that testifying put him in a "funny position" because he had to pick a side between his mother and father. He further acknowledged that this made him uncomfortable and that he did not want to see anything bad happen to his aunt Tragil.
¶ 42 Tragil testified at the criminal trial that when she arrived at the South Holland residence on May 30, 2010, Z.M.A. ran out of the car driven by Darlene and jumped into Tragil's arms. Z.B.D. exited Darlene's car, threw his book bag on the ground and told Tragil he was not going to visitation. Tragil said Z.B.D. looked back in the direction of Darlene and Nadgee and that it appeared they told him to approach Tragil. Z.B.D. approached and threw his book bag on the ground again. Z.B.D.'s cousin exited Tragil's car and asked Z.B.D. why he did not want to go with them. Tragil heard Z.B.D. warn his cousin to go back inside the car because Z.B.D. was "about to do something." Z.B.D. then began to count backwards. When Tragil turned her back to Z.B.D., he began to kick her. Tragil said she called D.T.'s attorney because she did not know what else to do. D.T.'s attorney advised Tragil to leave the house. Tragil denied that she hit Z.B.D. with a closed fist. She was acquitted of all charges.
¶ 43 D.T. testified at the custody trial that he was angry that respondent put Z.B.D. in a position to testify against Tragil. Respondent testified at the custody trial that she believed the filing of the criminal case against Tragil served to foster a safe and healthy relationship between the children, Tragil and D.T.
¶ 44 Doctor Amabile testified at the custody trial that she was not aware that the criminal case against Tragil went to trial and that Z.B.D. testified against Tragil. Amabile said it was unlikely that Z.B.D. knew he was testifying against his aunt in a court of law and that she could be imprisoned. Amabile said that respondent exacerbated the pressure felt by Z.B.D. She also said that Z.B.D.'s actions on May 30, 2010, were part of the process of alienation from D.T. and Tragil.
¶ 45 Doctor Amabile filed her supplemental report with the court on July 26, 2010. The supplemental report addressed the issue of sole custody in the event joint *586 custody was not deemed appropriate by the court. Amabile considered a journal written by Z.B.D. that had been brought to the court's attention after her earlier report was filed. Respondent testified that Joy Bocanegra, a social worker with the Christian Counseling Center, had recommended Z.B.D. write in a journal. Respondent was impeached with evidence that Z.B.D. had not met with Bocanegra until January 20, 2010, and the first entry in the journal was dated January 2, 2010. Respondent did not inform the court, D.T. or Barclay that Z.B.D. was meeting with Bocanegra. The court terminated Bocanegra and ordered her to turn her records over to Amabile.
¶ 46 Amabile's supplemental report described Z.B.D.'s journal as being almost exclusively about D.T. and very negative. She noted that there was a lack of credibility and balance in the journal because Z.B.D. described D.T. as all bad and respondent as all or mostly good. Amabile also noted that the existence of the journal and Z.B.D.'s use of words such as "abuse" and "abandoned" raised questions of how the idea of writing a journal about D.T. originated and the source of Z.B.D.'s information about the events memorialized in the journal. Amabile said the journal was a sign of alienation from D.T. The supplemental report also discussed the following incident.
¶ 47 On May 14, 2010, Tragil went to Calvary Academy to pick up the children for visitation. Tragil testified at trial that she did not remember the date but Z.B.D. refused to go with her and hid under Bacheldor's desk. Tragil said Z.B.D. told her he did not want to go with her but he had a smile on his face. D.T. testified that both Tragil and Z.B.D. told him that Z.B.D. was hiding under Bacheldor's desk when Tragil arrived at the school. D.T. denied that Z.B.D. said he hid under the desk because he did not want to go with Tragil.
¶ 48 Bacheldor testified that Z.B.D. hid under her desk because he really did not want to go with Tragil to visitation. Bacheldor said that it did not appear to her that Z.B.D. was playing a joke on Tragil. She also said that Z.B.D. told her that he did not want to go with Tragil because Tragil was mean to him. Bacheldor further said that Z.B.D. was upset and that she had to coax him out from under her desk. When she did so, Z.B.D. threw a toy at Tragil. Bacheldor said that this was not done playfully. After Tragil and Z.B.D. left the school, Bacheldor wrote a letter memorializing the incident. She gave the letter to respondent.
¶ 49 In the supplemental report, Doctor Amabile found Z.B.D.'s refusal to go to visitation with Tragil on May 14, 2010, worrisome. Amabile noted that Z.B.D.'s negativity about D.T. had expanded to include D.T.'s sister, Tragil. Amabile said this was another indication of Z.B.D.'s alienation from D.T. Amabile found it noteworthy that Z.B.D. did not speak negatively about Tragil in his earlier interviews with Amabile.
¶ 50 Amabile noted in the supplemental report that respondent's counsel had reported to her that respondent had started individual therapy with a psychologist. At the custody trial, respondent informed the court that she was no longer seeing the psychologist. Respondent testified that she was seeing a psychiatrist but did not say when she started seeing the psychiatrist or when was the last time she met with the psychiatrist.
¶ 51 Doctor Amabile concluded in her July 26, 2010, report that if the parties could not agree to share joint custody as recommended in her May 6, 2010, report or if the court deemed joint custody impractical, sole custody should be awarded *587 to respondent. Amabile's conclusion was based on the fact that respondent has been the children's primary caregiver as opposed to D.T. who has been largely out of their lives since the time the parties separated. Amabile noted that sole custody of the children with respondent was a less desirable arrangement than joint custody because of the risk that respondent would abuse her authority and continue to alienate the children from D.T.
¶ 52 At the custody trial, Doctor Amabile testified that she did not contact the family over the summer of 2010. She said she was under the impression that D.T.'s summer visitation with the children went well. The court divided summer parenting time into alternating two week intervals with each parent. D.T.'s visitation schedule was June 13, 2010, to June 27, 2010; July 3, 2010, to July 13, 2010; and August 3, 2010, to August 18, 2010.
¶ 53 D.T.'s first two-week summer visitation with the children was without incident on the part of respondent. D.T., however, had taken the children to Boston for a sporting event without telling respondent, who saw them on television. Respondent said that this caused her distress.
¶ 54 On July 8, 2010, while the children were in Florida, D.T. took them to Orlando to the Disney World Resort. Z.B.D. called respondent on that date and told her he was going to Orlando. On the next day, July 9, 2010, respondent filed an emergency motion that she be granted parenting time instanter. Respondent alleged in the motion that she was not aware that the children would be traveling across state lines to Florida. The court denied respondent's motion. The court noted that on April 20, 2010, D.T. filed a motion requesting the children be in Florida on July 6, 2010, to July 8, 2010, for a basketball camp followed by a trip to Orlando so that he may take the children to the Disney attractions. Respondent had filed a pro se response to D.T.'s motion, asking the court to deny his request.
¶ 55 On August 2, 2010, the day before D.T.'s final two-week summer period of visitation with the children, respondent filed an emergency motion for supervised visitation. Respondent alleged that when Z.B.D. returned from Disney World, he told her that while he was there he told D.T. that he did not want to go on the "Tower of Terror" ride for a second time because he was scared and that D.T. told him to "man the [expletive deleted] up," picked him up by the shirt and threw him into a bus seat. Respondent alleged that Z.B.D. injured his back as a result of this incident. Respondent also alleged that Z.B.D. told her that Demetrius McDaniel, Z.B.D.'s uncle, picked up Z.M.A. and threw him to the ground. Respondent attached to the motion a letter dated July 29, 2010, from a doctor who had met with respondent and examined Z.B.D. on July 28, 2010. The doctor had not met with D.T. The doctor expressed concern for the safety of the children based on the Disney World incident and recommended that D.T.'s visitation be suspended or supervised. He also contacted the Department of Children and Family Services (DCFS) as a mandated reporter.
¶ 56 Six days later, on August 4, 2010, this same doctor wrote a letter to the court withdrawing his July 29, 2010, letter. The doctor explained that he did not have the other reports that had been prepared in the case, including those of Doctor Amabile and Z.B.D.'s other physicians, and that respondent did not give him consent to speak to anyone involved in the case, including Barclay, the children's representative. After meeting with respondent and Z.B.D., the doctor met with D.T. and observed D.T.'s interaction with Z.B.D. The doctor wrote in his August 4, 2010, letter *588 that the children were safe with D.T. and contacted DCFS to inform them of his revised assessment.
¶ 57 At the custody trial, respondent denied telling the doctor that he could not speak to anyone involved in the case. She said the doctor only requested to speak with Sandy Bacheldor, the school administrator. Doctor Amabile testified that respondent's motion for supervised visitation was a continued attempt to alienate the children from D.T. Amabile acknowledged that as soon as respondent received a medical assessment she believed would be sufficient to prevent D.T.'s visitation in August 2010, she sought to prevent the visitation.
¶ 58 In December 2010, the court ordered parenting time for D.T. to take place in Miami from December 26, 2010, at 3 p.m. to January 2, 2011, at 7 p.m. The order directed respondent's mother, Darlene, to escort the children to the Trump Hotel in Chicago where Tragil was to pick them up. Respondent sent an e-mail to her attorney on December 25, 2010, saying that Z.M.A. was throwing up, had trouble sleeping and was on medication. Respondent said that Z.M.A.'s doctor told her that if Z.M.A. developed a fever he should not travel. This e-mail was not received until 2:05 p.m. on December 26, 2010. Respondent's attorney e-mailed Barclay on December 26, 2010, informing him that respondent believed Z.M.A. was too sick to travel. The e-mail said that respondent would allow D.T. to decide whether or not Z.M.A. should travel to Florida. Z.B.D. went to Florida to visit with D.T. Z.M.A. did not go.
¶ 59 On December 28, 2010, Barclay filed an emergency motion to provide information about Z.M.A.'s condition to determine if some of D.T.'s parenting time could be salvaged. On that date, respondent informed the court that Z.M.A. had not yet been taken to the hospital and was going for the first time that afternoon because he had a fever. Respondent also informed the court that Z.M.A.'s fever was caused by ringworm which had spread to his face. Respondent e-mailed her attorney on December 30, 2010, saying that Z.M.A. still had a fever and that the doctor believed Z.M.A. had the flu. Respondent also said in the e-mail that the doctor believed Z.M.A.'s diarrhea was exacerbated by the ringworm medication. She further said that the bumps on Z.M.A.'s face from ringworm were healing and that Z.M.A. would return to school by January 7, 2011.
¶ 60 Z.M.A.'s medical records showed that he was diagnosed with ringworm on December 13, 2010. This diagnosis was accompanied by a doctor's note saying that Z.M.A. could return to school on December 15, 2010. The medical records also show that respondent took Z.M.A. to the hospital on December 20, 2010, because she was concerned that the ringworm had spread to his face. The doctor diagnosed Z.M.A. with eczema on the cheeks and discontinued the ringworm medication. The December 28, 2010, doctor's examination noted that Z.M.A. had an ear infection and mild congestion. Z.M.A. did not have a fever and his skin was free of eczema. Respondent brought Z.M.A. to the doctor on December 30, 2010, because she believed Z.M.A. had a fever. The doctor's examination noted that Z.M.A. did not have a fever and that his ear infection was improving.
¶ 61 At the custody trial, Amabile said respondent is in need of serious intervention and recommended she seek counseling with a professional familiar with the process of alienation. Amabile also recommended the court appoint a parenting coordinator to help the parties start communicating with each other and someone *589 to monitor the family to ensure that the process of alienation diminishes. Amabile further recommended specific court orders that address visitation times and phone contact. Amabile acknowledged that she had concerns as to whether respondent would follow court directives. She also acknowledged that respondent tried to manipulate the court system. We recount some additional court filings by respondent below.
¶ 62 A complaint for intentional infliction of emotional distress was filed against D.T.'s girlfriend, Gabrielle Union, by Z.B.D. and Z.M.A. through respondent on April 30, 2010. The complaint sought money damages in excess of $50,000 and alleged that Union caused emotional distress to the children and Z.B.D.'s schoolwork to suffer. The complaint also alleged that Z.B.D. was anxious, sad and fearful of D.T., and that Z.M.A. was suffering from rejection.
¶ 63 Union filed a motion to dismiss. A response to the motion was filed by Z.B.D. and Z.M.A. through respondent. Attached to the response was an affidavit from Z.B.D. In the affidavit, Z.B.D. averred that he was eight years old, that he wrote in a journal and that the journal was attached to the affidavit. Z.B.D. signed the affidavit. Respondent said she read the affidavit and was present when Z.B.D. signed it.
¶ 64 At the custody trial, respondent testified that she gave Z.B.D.'s journal to an attorney she hired to file the lawsuit against Union. Respondent said she authorized the attorney to use the journal in the proceeding against Union and that she believed the attorney had used the journal. Respondent said she believed she was protecting Z.B.D. by giving his journal to the attorney and authorizing the attorney to use it in the proceeding against Union. The lawsuit against Union was ultimately dismissed for lack of jurisdiction.
¶ 65 Doctor Amabile testified at the custody trial that respondent's decision to give Z.B.D.'s journal to the attorney was a negative decision in regard to the best interest of the children. Amabile said that she was not aware that Z.B.D. had suffered in his schoolwork or that he was fearful of seeing D.T. Amabile said that when she interviewed Z.B.D., he was not afraid of seeing D.T. Amabile said she did not see the affidavit signed by Z.B.D. before the custody trial. She acknowledged that Z.B.D. was being used by respondent for litigation purposes.
¶ 66 A complaint for malpractice was filed on May 4, 2010, by Z.B.D. and Z.M.A. through respondent against Barclay, the children's representative. Doctor Amabile testified at the custody trial that she could not recall another custody case where the children filed an action against their representative. Amabile said she knew of no reason for respondent to sue Barclay for malpractice except to intimidate him. Amabile said that in her opinion, Barclay was competent and had the children's best interests in mind.
¶ 67 Respondent filed a complaint against D.T. for intentional infliction of mental distress on May 11, 2010. Doctor Amabile was not aware of this lawsuit before the custody trial. Respondent testified at the custody trial that she filed the lawsuit against D.T. to protect the children. At the time of the custody trial this lawsuit had been dismissed but respondent was seeking to vacate the dismissal.
¶ 68 At the custody trial, Doctor Amabile testified that she conducted her interviews with Z.B.D. in February and March 2010. Amabile said Z.B.D.'s alienation from D.T. was mild at that time but by the time her May 6, 2010, and July 26, 2010, reports were filed, Z.B.D.'s alienation was closer to the moderate range. Amabile *590 explained that the moderate range involves volitional conduct on the part of the alienating parent, in this case respondent. Amabile testified that at the time of the custody trial respondent's alienating behavior was beyond the moderate range and entering into the severe range. Amabile said that severe alienation involves behavior that is relentless on the part of the alienating parent. She said Z.B.D. is not severely alienated from D.T. because Z.B.D. still maintains positive feelings toward D.T. Amabile also said that both parties contributed to this unfortunate custody battle.
¶ 69 D.T. testified and was cross-examined about his June 2010 renewal of his contract with the Miami Heat and his schedule as a professional basketball player. The basketball season begins with training camp each year in late September, which is followed by preseason games. The regular season begins at the end of October and ends in April. The season consists of 82 games of which 41 are played at home (Miami) and 41 are played away. For home games, most of which are played at night, D.T. is required to be at the arena by 6 p.m. and does not return home until about midnight. There is also a "shoot around" at 10 a.m. on the day of a home game. For away games, D.T. typically travels the day before the game and almost always travels back to Miami immediately after the game unless there is another away game on the following day. D.T. said he rarely has two days off in a row during the regular season. The postseason begins in early May and, depending on the team's performance, may last until June. The postseason also involves away games.
¶ 70 D.T. also testified to the efforts he made to research schools for the children in Miami and the support system he would have there, which included Tragil. D.T. said that the children need both of their parents in their lives. He said respondent needs to get healthy and that, once she does, he wants her to spend as much time with the children as possible. He also said he does not want to take the children away from respondent but wants to foster a relationship between the parties where they each have equal rights to the children. D.T. further said he hoped that respondent and he would be able to make decisions together and that the children can see them working together as a team. D.T. tells the children that the situation they are in is not their fault and that both parents love them dearly. He finally said that he understood that his schedule would have to change if he were awarded sole custody of the children and that the children need time, attention and support from their father.
¶ 71 After D.T. presented his case, the court questioned D.T.'s counsel whether he needed to file a petition for removal of the children from Illinois to Florida. The court pointed out that in D.T.'s petition for sole custody, he noted that he had purchased a house in Chicago but testified that he was researching schools for the children in the Miami area. The court noted that D.T.'s testimony indicated he was seeking custody in Florida but that this was not alleged in his March 29, 2010, petition for sole custody. D.T.'s counsel informed the court that he had considered the issue of whether he needed to file a petition for removal and that it was "questionable." Counsel pointed out that this case was unique because the children had always had dual residency in both Florida and Illinois and that they have resided in Illinois only during the pendency of the divorce proceeding. Counsel expressed uncertainty about whether a petition for removal was necessary given that D.T. was not seeking to remove the children from Illinois permanently but to return them to *591 Florida. The court continued the matter for both sides to research the issue.
¶ 72 Two days later, the court again raised with D.T.'s counsel the issue of the petition for removal. After a brief colloquy, the court asked counsel to file a memorandum with the court explaining why a petition for removal was not necessary in this case. The court indicated that it would allow respondent to reply to the memorandum.
¶ 73 D.T. filed a motion for leave to file an amended petition for sole custody on November 17, 2010. D.T. alleged that because the children had dual residences in two different states, it was unnecessary for him to file a petition for removal where he was seeking to "return" the children to one state of their dual residences, not to "remove" them from the other state. Alternatively, D.T. asked for leave to amend his petition for sole custody to include a prayer for leave to "remove/return" the children from Illinois to Florida if the court found it necessary. D.T. attached to his motion an amended petition for sole custody seeking removal. Respondent objected to the motion, arguing that the court's sua sponte questioning of D.T.'s counsel about the issue of removal prejudiced her case. The court granted D.T. leave to amend his petition for sole custody to seek removal of the children to Florida while allowing him to preserve his claim that he was seeking to return the children to Florida.
¶ 74 On March 11, 2011, in a written order, the court awarded sole care, custody and control of the children to D.T. The court also granted D.T.'s petition for removal, awarding him primary residential custody of the children in the state of Florida. The court ordered a visitation schedule for respondent. The visitation schedule provides that respondent shall have parenting time with the children: in Miami on alternating weekends from Friday to Sunday, except certain three-day weekends; in Illinois every year during the children's spring break; in Illinois in odd-ending years for Thanksgiving; in Illinois in even-ending years during the first half of the children's winter break (to include Christmas Eve and Christmas Day) and the second half of the children's winter break (to include New Year's Eve and New Year's Day) in odd-ending years; for every Mother's Day; in Illinois for Z.B.D.'s birthday weekend in even-ending years; and in Illinois for Z.M.A.'s birthday weekend in odd-ending years. Summer parenting time was divided equally between the parties into alternating two-week blocks of time. Respondent appeals.
¶ 75 Respondent first argues on appeal that the trial court's custody decision is void and must be vacated because the court did not have subject matter jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (Uniform Child-Custody Act) (750 ILCS 36/101 et seq. (West 2008)). D.T. responds that respondent may not raise this argument for the first time on appeal because she failed to raise it in the trial court.
¶ 76 "[S]ubject matter jurisdiction refers to the power of a court to hear and determine cases of the general class to which the proceeding in question belongs." (Internal quotation marks omitted.) Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334, 264 Ill. Dec. 283, 770 N.E.2d 177 (2002). The Uniform Child-Custody Act provides state trial courts with a method of resolving jurisdictional questions that arise in interstate child custody disputes. See In re Marriage of Diaz, 363 Ill.App.3d 1091, 1095, 301 Ill. Dec. 70, 845 N.E.2d 935 (2006); 750 ILCS 36/101 et seq. (West 2008). Under section 201(a)(1) of the Uniform Child-Custody Act, an Illinois court will have subject matter jurisdiction to *592 make an initial child custody determination only if:
"[T]his State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State[.]" 750 ILCS 36/201(a)(1) (West 2008).
¶ 77 In determining whether a state has subject matter jurisdiction, the Uniform Child-Custody Act gives priority to jurisdiction based on the child's home state. Diaz, 363 Ill.App.3d at 1096, 301 Ill. Dec. 70, 845 N.E.2d 935. Section 102(7) of the Uniform Child-Custody Act defines "home state" as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding." 750 ILCS 36/102(7) (West 2008).
¶ 78 Respondent argues that Illinois is not the children's home state because the children did not live in Illinois for at least six consecutive months before the commencement of the custody proceeding. Respondent points out that she moved with the children to Illinois in May 2008 and that the proceeding commenced on November 26, 2007, when D.T. filed a praecipe for summons in suit for a dissolution of marriage in Illinois. She also points out that D.T. filed a petition for dissolution of marriage in Illinois on May 27, 2008, less than a month after the children moved to Illinois. Respondent claims that under section 201 of the Uniform Child-Custody Act, the trial court never acquired jurisdiction of the custody matter and that its final custody judgment is therefore void.
¶ 79 We agree with respondent that, in general, lack of subject matter jurisdiction may be raised at any time, including for the first time on appeal, and that a judgment entered without subject matter jurisdiction is a nullity and void. See In re Marriage of Jerome, 255 Ill. App. 3d 374, 388, 193 Ill. Dec. 74, 625 N.E.2d 1195 (1994); In re Marriage of Yelton, 286 Ill.App.3d 436, 441, 222 Ill. Dec. 29, 676 N.E.2d 993 (1997). However, as this court recognized in Yelton:
"`[J]urisdiction of the subject matter does not mean simply jurisdiction of the particular case before the court but jurisdiction of the class of cases to which the particular case before the court belongs. [Citations.] Where the subject matter of the litigation is within the general jurisdiction of the trial court, the claim of want of jurisdiction by reason of irregularities, or exceptional or special circumstances, or because the court had no jurisdiction to render the particular judgment or order cannot be made for the first time on appeal.'" Yelton, 286 Ill.App.3d at 442, 222 Ill. Dec. 29, 676 N.E.2d 993 (quoting Jerome, 255 Ill.App.3d at 388, 193 Ill. Dec. 74, 625 N.E.2d 1195).
¶ 80 Here, there is no dispute that dissolution proceedings are within the general jurisdiction of the circuit courts. Yelton, 286 Ill.App.3d at 442, 222 Ill. Dec. 29, 676 N.E.2d 993. As in Yelton and Jerome, respondent's argument concerns only the circuit court's jurisdiction over this particular matter, rather than the general jurisdiction of the subject matter. In such cases, the rule is that because the parties have "adjudicated their rights before the court to a final judgment without objection to the court's right to hear the cause, the parties will be bound on appeal so far as the question of jurisdiction over the particular case is concerned." Yelton, 286 Ill. App.3d at 442, 222 Ill. Dec. 29, 676 N.E.2d 993 (citing Jerome, 255 Ill.App.3d at 388, 193 Ill. Dec. 74, 625 N.E.2d 1195). Respondent *593 is bound by and may not now challenge the trial court's jurisdiction to hear this case.
¶ 81 We next consider respondent's argument that the trial court's custody judgment was against the manifest weight of the evidence. In determining custody, the primary consideration is the best interest and welfare of the children involved. Prince v. Herrera, 261 Ill. App. 3d 606, 611, 199 Ill. Dec. 174, 633 N.E.2d 970 (1994). Under section 602 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/602 (West 2008)), the court is to consider "all relevant factors" including the following in determining the best interest of the children:
"(1) the wishes of the child's parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
(4) the child's adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; and
(9) whether one of the parents is a sex offender." 750 ILCS 5/602 (West 2008).
The trial court's custodial decision rests on temperaments, personalities and capabilities of the parties, and the trial judge is in the best position to evaluate these factors. Prince, 261 Ill.App.3d at 612, 199 Ill. Dec. 174, 633 N.E.2d 970. The trial court has broad discretion in determining custody and we will not disturb that determination on appeal unless it is against the manifest weight of the evidence. Prince, 261 Ill. App.3d at 612, 199 Ill. Dec. 174, 633 N.E.2d 970.
¶ 82 Respondent contends that of the factors set forth above, three were of primary importance in this case: (1) the interaction and interrelationship of the children with their parent or parents, their siblings and any other person who may significantly affect the children's best interests; (2) the children's adjustment to their home, school and community; and (3) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the children. Respondent claims that the first two of these three factors overwhelmingly favor her, while the last factor should have been examined differently by the court. Respondent maintains that the remaining six factors were either evenly balanced in favor of each party or not relevant to the present case. We note that if the evidence before the trial court did not clearly favor either party, this court cannot say that the trial court's decision to place permanent custody of the children with one of the parents was against the manifest weight of the evidence. Prince, 261 Ill.App.3d at 613, 199 Ill. Dec. 174, 633 N.E.2d 970.
¶ 83 Respondent argues that the children's strongest and most vital relationship is with her because she has always *594 been their primary caretaker. The trial court found and the record shows that both D.T. and respondent love and adore the children and have a close bond with them. Doctor Amabile testified that both D.T. and respondent identify with the parenting role, have a loving relationship with the children and exhibit wonderful interaction with each child. Amabile described both D.T. and respondent as affectionate and loving with the children and said that the children were very comfortable around both D.T. and respondent. Although respondent has been the children's primary caretaker, Amabile noted that respondent has had substantial help caring for the children. Similarly, Amabile noted that D.T. relies heavily on his sister Tragil and housekeeper Tomasa for much of the hands-on care and supervision of the children. Based on this evidence, we cannot say that the trial court's determination that both D.T. and respondent have a strong and loving relationship with the children is against the manifest weight of the evidence. See Prince, 261 Ill.App.3d at 613, 199 Ill. Dec. 174, 633 N.E.2d 970.
¶ 84 Respondent also argues that the children are well adjusted to their home, school and community in South Holland, Illinois, and that this factor weighs in her favor. The trial court found and we agree that the children are well adjusted to their home, school and community in South Holland. The record shows the children live in a lovely gated house in South Holland, attend an excellent school where Z.B.D. is receiving good grades and participates in many community activities, including sports and summer camps. All witnesses agreed that Z.M.A. is a delightful, active and well-adjusted young boy. The trial court's finding that the children are well adjusted to their community in South Holland was not against the manifest weight of the evidence.
¶ 85 Although this factor weighs in favor of respondent, we note that Z.B.D. was equally well adjusted to his community in Miami before respondent moved the family to Illinois. The record shows that Z.B.D. lived in Miami from 2003 to May 2008, a majority of his young life. He lived in a beautiful home and attended a very good Presbyterian school in Miami. Respondent testified that she moved to Chicago to be near her mother. Aside from the fact that the children's extended family members live in Chicago, respondent failed to present evidence that Chicago offered a better life for the children than Miami.
¶ 86 Respondent claims that the two factors discussed above are either evenly balanced or weigh in her favor. We believe these two factors are evenly balanced in favor of both parties. As mentioned, if the evidence before the trial court did not clearly favor either party, this court cannot say that the trial court's decision to place permanent custody of the children with one of the parents was against the manifest weight of the evidence. Prince, 261 Ill.App.3d at 613, 199 Ill. Dec. 174, 633 N.E.2d 970.
¶ 87 Respondent maintains that the eighth factor, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the children, was the deciding factor in this case. The trial court found:
"[Respondent] has embarked upon an unstoppable and relentless pattern of conduct for over two years to alienate the children from their father, and lacks either the ability or the willingness to facilitate, let alone encourage, a close and continuing relationship between them."
The court also found that D.T. was willing to encourage a close and continuing relationship between the children and respondent. *595 The court concluded that "awarding sole custody to D.T. affords the best possibility of securing the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of Z.B.D. and Z.M.A."
¶ 88 Respondent argues that in reaching this conclusion, the trial court ignored evidence of D.T.'s conduct which contributed to the alienation between the parties. Respondent claims the evidence showed that D.T. undermined her relationship with the children when he failed to tell her that Z.B.D. sustained an injury in December 2009 while playing by the pool in Miami and that D.T. was taking the children to Boston for a sporting event in the summer of 2010. She also claims that the court erred in finding that D.T. will encourage a close and continuing relationship between her and the children where the only evidence that he will do so is D.T.'s self-serving testimony that he would like respondent to spend as much time with the children as possible.
¶ 89 We disagree with respondent that the trial court ignored evidence of D.T.'s contribution to the alienation between the parties. The record shows the court took notice of D.T.'s alienating behavior when considering each party's willingness to encourage a continuing relationship between the children and the other parent. The court noted in its written order that D.T. should have told respondent about Z.B.D.'s injury and that D.T. was taking the children to Boston. The court acknowledged that D.T.'s failure to do so caused unnecessary stress for respondent. The court was also aware of Doctor Amabile's testimony that both parties contributed to this unfortunate custody battle. The court, however, could not ignore the evidence of respondent's alienating behavior when considering each party's willingness to facilitate a continuing relationship between the children and the other parent.
¶ 90 Doctor Amabile noted in her first report that she was critical of respondent's attitude on fostering a relationship between D.T. and the children before the court ordered visitation for D.T. Amabile said that respondent made visitation with the children challenging for D.T. and negatively controlled his access to the children. She also said that even after the court ordered parenting time for D.T., respondent attempted to interfere with D.T.'s relationship with the children. Amabile pointed out that respondent was controlling and resistant to authority on the issue of visitation. Amabile also pointed out that respondent does not understand how she has placed the children in the middle of the parties' divorce, how Z.B.D. has suffered because of the pressure he feels and how it is wrong for respondent to say disparaging things about D.T. to the children.
¶ 91 The record shows that on two occasions respondent sought medical care for the children just before a scheduled visit with D.T., leading to a curtailment, restriction or cancellation of D.T.'s visit. Amabile testified that taking the children to the hospital before their scheduled visit with D.T. was volitional on respondent's part and not in the best interests of the children.
¶ 92 On December 17, 2008, the court ordered parenting time for D.T. in Florida. The order directed that D.T. was to spend Christmas 2008 with the children. On Christmas morning, when D.T. was scheduled to visit with the children, respondent took the children to the emergency room. She claimed both children had a fever, a cough and did not sleep during the night. Doctor Amabile noted in her report that respondent's description of the children's symptoms was not supported by medical *596 evidence. Amabile questioned respondent's decision to take the children to the hospital on Christmas morning.
¶ 93 On March 12, 2010, respondent took Z.B.D. to the emergency room on the day he was scheduled to travel to Florida to visit with D.T. Respondent claimed Z.B.D. was suffering from headaches as a result of falling by a pool while in D.T.'s care. Respondent did not notify D.T. or others of Z.B.D.'s whereabouts for nearly a day. Amabile said there was no excuse for respondent's behavior and that it inflamed the circumstances of the litigation. Amabile questioned respondent's timing in seeking medical care for the children and said respondent embellished the severity of the children's symptoms, especially the extent of Z.B.D.'s pool injury.
¶ 94 Although Z.B.D. was ultimately diagnosed with a sinus infection, respondent filed a petition for an order of protection against D.T. on the basis of Z.B.D.'s pool injury. The petition alleged that Z.B.D. was suffering from headaches as a result of hitting his head and nearly drowning while he was with D.T. in Miami. Amabile noted in her first report that Z.B.D.'s head never went under water, that he did not almost drown and that respondent embellished the details of Z.B.D.'s accident. The petition did not mention that Z.B.D. was diagnosed with a sinus infection, which doctors believed was responsible for his headaches. Respondent sought a denial of D.T.'s visitation and that he have no contact with the children by any means. Respondent also filed a complaint against D.T. for intentional infliction of mental distress. She testified at the custody trial that she filed the lawsuits against D.T. to protect the children.
¶ 95 We note that as recently as December 2010, during the custody trial, respondent continued to seek medical attention for the children in lieu of D.T.'s scheduled visits. In December 2010, the court ordered parenting time for D.T. to take place in Miami from December 26, 2010, to January 2, 2010. The day before the children were scheduled to travel to Miami, respondent sent an e-mail to her attorney saying that Z.M.A. was vomiting, had trouble sleeping and was on medication. She also said that Z.M.A.'s doctor told her that if Z.M.A. developed a fever he should not travel. Z.M.A. did not go to Miami. Z.M.A.'s medical records did not support respondent's claims where he was cleared by the doctor to return to school on December 15, 2010, his medication was discontinued on December 20, 2010, and he had no fever on three separate visits to the hospital in December.
¶ 96 Aside from seeking medical care for the children, respondent also tried through pleadings to prevent D.T.'s scheduled visits through pleadings. On July 9, 2010, respondent filed an emergency motion that she be granted parenting time instanter. At the time, the children were with D.T. in Orlando, Florida at the Disney World Resort. Respondent alleged in her motion that she was not aware the children would be traveling across state lines, despite the fact that she had filed a pro se motion two months earlier asking the court to deny D.T.'s request to take the children to the Disney attractions in Orlando.
¶ 97 After the children's trip to Disney World, respondent filed an emergency motion for D.T. to have supervised visitation. The motion alleged that D.T. physically abused the children in Orlando. Respondent attached to the motion a letter from a doctor who expressed concern about the safety of the children and recommended that D.T.'s visits be supervised. After meeting with D.T. and observing his interaction with Z.B.D., this same doctor wrote another letter to the court withdrawing his earlier letter, explaining that he had not *597 had the other reports prepared in the case and that respondent did not give him consent to speak to anyone involved in the case. The doctor also wrote that the children were safe with D.T. Doctor Amabile testified that respondent's motion was a continued attempt to alienate the children from D.T. Amabile acknowledged that as soon as respondent received a medical assessment she believed would be sufficient to prevent D.T.'s visitations, she sought to prevent them.
¶ 98 In reviewing the propriety of the trial court's conclusion that respondent lacks the willingness to facilitate a continuing relationship between D.T. and the children, we cannot overlook Z.B.D.'s journal. Doctor Amabile described the journal as being almost exclusively about D.T. and very negative. Amabile noted that the existence of the journal and Z.B.D.'s use of words such as "abuse" and "abandoned" raised questions of the origin of the idea of writing a journal about D.T. and the source of Z.B.D.'s information about the events memorialized in it. Although respondent testified that Bocanegra recommended Z.B.D. write in the journal, respondent was impeached with evidence that the first entry in the journal predated Z.B.D.'s first meeting with Bocanegra.
¶ 99 We also cannot overlook respondent's efforts to alienate the children from D.T.'s sister, Tragil. In December 2009, respondent, Nadgee and respondent's mother prayed and made disparaging comments about Tragil in front of the children. Doctor Amabile said this behavior likely had a negative effect on Z.B.D. by alienating him from his aunt Tragil. Respondent filed a civil complaint for intentional infliction of emotional distress against Tragil. Amabile testified that the lawsuit was a "bad idea" and essentially meritless. She said it was another example of the process of alienation.
¶ 100 In the most egregious example of trying to alienate the children from Tragil and, in turn, D.T., respondent filed a criminal petition for order of protection on behalf of Z.B.D. against Tragil. The petition alleged that Tragil physically abused Z.B.D. The petition proceeded to a criminal trial against Tragil. Z.B.D. testified against Tragil at the trial. Doctor Amabile said respondent exacerbated the pressure felt by Z.B.D. Respondent testified at the custody trial that she believed the filing of the criminal case against Tragil served to foster a safe and healthy relationship between the children, Tragil and D.T.
¶ 101 D.T. on the other hand testified that the children need both of their parents in their lives. D.T. said he does not want to take the children away from respondent but wants to foster a relationship between the parties where they each have equal rights to the children. He also said that he hoped that respondent and he would be able to make decisions together and that the children may one day see them working together as a team. D.T. further said that once respondent gets healthy, he wants her to spend as much time with the children as possible. D.T. tells the children that the situation they are in is not their fault and that both parents love them dearly. He also expressed frustration with being estranged from respondent's mother, Darlene, during the divorce proceeding. He said he would like to reconcile with Darlene and foster a relationship between her and the children.
¶ 102 The trial court had the opportunity to evaluate the credibility, temperaments, personalities and capabilities of both D.T. and respondent and to determine what weight to place on the testimony of the witnesses. Prince, 261 Ill. App.3d at 616, 199 Ill. Dec. 174, 633 N.E.2d 970. One of the underlying purposes of *598 the Marriage Act is to "secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation." 750 ILCS 5/102(7) (West 2008). The trial court found that D.T. was willing to encourage a close and continuing relationship between the children and respondent and that awarding sole custody of the children to D.T. "affords the best possibility of securing the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of Z.B.D. and Z.M.A." Based on the evidence presented, we cannot say the trial court's decision was against the manifest weight of the evidence.
¶ 103 We are unpersuaded by respondent's argument that before awarding sole custody to D.T., the court should have provided her with an opportunity to avail herself of professional help to change her alienating behavior as recommended by Doctor Amabile. In support of this argument respondent relies on In re Marriage of Bates, 212 Ill. 2d 489, 289 Ill. Dec. 218, 819 N.E.2d 714 (2004), and In re Marriage of Divelbiss, 308 Ill.App.3d 198, 241 Ill. Dec. 514, 719 N.E.2d 375 (1999). Respondent points out that in the May 6, 2010, report, Amabile recommended joint custody with respondent as the primary residential parent and advised respondent to seek counseling with the goal of helping her learn to support the children's relationship with D.T. In her July 26, 2010, report, Amabile concluded that sole custody should be awarded to respondent and recommended: respondent seek counseling with a professional who is familiar with the process of alienation; the court appoint a parenting coordinator to help the parties start communicating with each other and someone to monitor the family to ensure that the process of alienation is diminishing; and specific court orders that address visitation times and phone contact.
¶ 104 We note that Doctor Amabile's recommendations are not controlling. Prince, 261 Ill.App.3d at 615, 199 Ill. Dec. 174, 633 N.E.2d 970. A recommendation concerning the custody of a child is just that, a recommendation. Prince, 261 Ill. App.3d at 615-16, 199 Ill. Dec. 174, 633 N.E.2d 970 (citing In re Marriage of Felson, 171 Ill.App.3d 923, 121 Ill. Dec. 796, 525 N.E.2d 1103 (1988)). A trial court is free to evaluate the evidence presented and accept or reject the recommendation in whole or in part. Prince, 261 Ill.App.3d at 616, 199 Ill. Dec. 174, 633 N.E.2d 970. Just because a trial court followed an expert's recommendations in Bates and Divelbiss does not mean the same result should necessarily follow in this case. This is especially so where, as here, Amabile: was not aware of certain instances of alienation on respondent's part at the time she filed her reports and recommendations; noted that sole custody with respondent was a less desirable arrangement than joint custody because of the risk that respondent would abuse her authority and continue to alienate the children from D.T.; expressed concerns as to whether respondent would follow court directives; acknowledged that respondent tried to manipulate the court system; and testified at the custody trial that respondent's alienating behavior had progressed beyond the moderate range and was entering the severe range.
¶ 105 Contrary to respondent's argument, the record shows that her alienating behavior worsened during the two-year course of the custody proceeding. The record also shows that respondent had ample opportunity to comply with Doctor Amabile's recommendations to seek counseling but failed to do so. Although respondent's counsel had reported to Amabile *599 that respondent had started individual therapy with a psychologist in June 2010, respondent testified at the custody trial that she was no longer seeing the psychologist. Respondent said she was seeing a psychiatrist but did not say when she started seeing or when she last met with the psychiatrist. The record further shows that during the course of the proceeding, the court on several occasions admonished respondent about her pattern of behavior and her unwillingness to obey court orders that were not in her favor. Respondent ignored the court's admonishments and her failure to follow the court's directives ultimately resulted in the issuance of a body attachment and $10,000 cash bond for her. Given this record, we cannot say the trial court erred in rejecting Amabile's recommendations and awarding sole custody of the children to D.T.
¶ 106 Respondent finally contends the trial court committed reversible error in ruling on the issue of the children's removal from Illinois to Florida. Respondent claims the court erred in prompting and allowing D.T. to a file a petition for removal after he had rested his case. In the alternative, respondent maintains the court erred in granting D.T.'s petition.
¶ 107 Section 2-616 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-616 (West 2008)) addresses amendments to pleadings and provides:
"(a) At any time before final judgment amendments may be allowed on just and reasonable terms, * * * adding new causes of action * * * in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought * * *.
* * *
(c) A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just." 735 ILCS 5/2-616(a), (c) (West 2008).
The four factors to consider when determining whether a pleading may be amended include: (1) whether the proposed amendment would cure the defective pleading; (2) whether the other party would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether the moving party had previous opportunities to amend the pleading. Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273, 166 Ill. Dec. 882, 586 N.E.2d 1211 (1992). A trial court's ruling granting an amendment to a pleading is reviewed for an abuse of discretion. Loyola Academy, 146 Ill.2d at 273, 166 Ill. Dec. 882, 586 N.E.2d 1211.
¶ 108 Respondent concedes that the proposed amendment, the petition for removal, cured the defective pleading. She argues that the other three factors set forth above did not support the court's decision to allow the amendment. Respondent claims that: she was severely prejudiced by the amendment because she prepared for a trial where the sole issue was custody, not removal; the petition for removal was not timely because D.T. knew from the start of the proceeding that he was seeking custody in Florida; and D.T. had ample opportunity to amend his pleading and in fact did amend his petition for dissolution of marriage without including a request to remove the children from Illinois.
¶ 109 Here, we cannot say that respondent was prejudiced or surprised by the amendment. D.T. testified from the beginning of the custody trial that he was seeking sole custody of the children in *600 Florida. He testified about the efforts he made to research schools in the Miami area and the support system he would have in Miami. Respondent was well aware that D.T. worked and lived in Miami. She extensively cross-examined D.T. about his July 2010 signing of a new contract with the Miami Heat, his schedule as a professional basketball player and the amount of time he would be able to spend in Miami with the children if he were awarded sole custody.
¶ 110 We likewise cannot say that the amendment was untimely. As mentioned, an amendment may be allowed on just and reasonable terms at any time before a final judgment is entered. See 735 ILCS 5/2-616(a) (West 2008). Here, the court allowed the amendment before the custody judgment was entered.
¶ 111 Although we agree with respondent that D.T. had earlier opportunities to amend and seek removal, we find no error with the court's decision allowing him to file the amendment at the end of his case. The record shows that the family had dual residences in both Illinois and Florida and that the children spent time in both states. The record also shows that shortly after D.T. filed a petition for dissolution of marriage, respondent moved with the children from Florida to Illinois. D.T.'s counsel told the court that he did not file a petition for removal because D.T. was not seeking to remove the children from Illinois but, rather, to "return" them to Florida. The court continued the matter for both parties to research the issue. When the case was recalled, the court noted it found no case law to support the concept of dual residency in the context of a child custody proceeding. The court ultimately allowed D.T. to file the amendment while also preserving his claim that he was seeking to return the children to Florida. We believe the court properly allowed the amendment to conform the pleadings to the proofs. 735 ILCS 5/2-616(c) (West 2008).
¶ 112 Respondent argues that even if the court properly allowed D.T. to amend his pleading and file a petition for removal, it erred in granting it. Section 609 of the Marriage Act (750 ILCS 5/609 (West 2008)) governs petitions for removal. In re Marriage of Eckert, 119 Ill. 2d 316, 324, 116 Ill. Dec. 220, 518 N.E.2d 1041 (1988). Section 609(a) provides:
"The court may grant leave, before or after judgment, to any party having custody of any minor * * * children to remove such * * * children from Illinois whenever such approval is in the best interests of such * * * children. The burden of proving that such removal is in the best interests of such * * * children is on the party seeking the removal." 750 ILCS 5/609(a) (West 2008).
¶ 113 Respondent argues that D.T. did not meet his burden of proof that removal is in the best interests of the children. She claims that D.T. did not present sufficient evidence for the trial court to determine whether removal is in the best interests of the children where he did not seek removal until after he had rested his case. Respondent maintains that the court heard virtually no evidence to support removal of the children from Illinois and based its decision solely on evidence related to the custody case.
¶ 114 In Eckert, our supreme court emphasized that the best interests of the children is the "paramount question" that must be considered in removal actions. Eckert, 119 Ill.2d at 325, 116 Ill. Dec. 220, 518 N.E.2d 1041. A best interests determination "cannot be reduced to a simple bright-line test," but "must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case." Eckert, 119 Ill.2d at 326, 116 Ill. Dec. 220, 518 N.E.2d 1041. The Eckert *601 court suggested several factors the trial court should consider in granting removal: (1) the likelihood that the proposed move would enhance the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking removal or whether removal is merely a ruse intended to defeat or frustrate visitation; (3) the motives of the non-custodial parent in resisting the removal; (4) the visitation rights of the non-custodial parent; i.e., whether a realistic and reasonable visitation schedule can be reached if the move is allowed; and (5) whether potential harm may result to the children from removal. Eckert, 119 Ill.2d at 326-28, 116 Ill. Dec. 220, 518 N.E.2d 1041.
¶ 115 The Eckert factors do not to establish a test in which the parent seeking removal must meet every prong but, rather, they are to be considered and balanced by the trial court in arriving at a best-interests determination. In re Marriage of Collingbourne, 204 Ill. 2d 498, 523, 274 Ill. Dec. 440, 791 N.E.2d 532 (2003). In determining the best interests of the children in a removal action, the Eckert factors are not exclusive and no one factor is controlling. In re Marriage of Smith, 172 Ill. 2d 312, 321, 216 Ill. Dec. 652, 665 N.E.2d 1209 (1996); Collingbourne, 204 Ill.2d at 523, 274 Ill. Dec. 440, 791 N.E.2d 532. A trial court may validly consider other relevant factors as dictated by the specific circumstances of each case in arriving at a best-interests determination. Collingbourne, 204 Ill.2d at 523, 274 Ill. Dec. 440, 791 N.E.2d 532.
¶ 116 A trial court's determination of what is in the best interests of the children will not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. Collingbourne, 204 Ill.2d at 521-22, 274 Ill. Dec. 440, 791 N.E.2d 532 (citing Eckert, 119 Ill.2d at 328, 116 Ill. Dec. 220, 518 N.E.2d 1041). There is a strong and compelling presumption in favor of the result reached by the trial court in a removal case. Eckert, 119 Ill.2d at 330, 116 Ill. Dec. 220, 518 N.E.2d 1041.
¶ 117 Respondent asserts that while D.T. presented evidence on the issue of sole custody, he did not present evidence showing: how removal of the children to Florida was in the children's best interests; how the move would enhance the general quality of their lives; or what a realistic and reasonable visitation schedule for the children and respondent would be if the children moved to Florida. Respondent also asserts that the court did not adequately consider the potential harm to the children resulting from the move.
¶ 118 Here, the trial court conducted a thorough 38-day trial. It heard extensive testimony and issued a 102-page written order in which it applied the Eckert factors to the facts presented and concluded that, after "weighing all relevant factors and considering that a removal decision should be guided by the policy of the [Marriage Act]," removal was in the children's bests interests. We cannot say that the court's ruling was against the manifest weight of the evidence. See Collingbourne, 204 Ill.2d at 524, 274 Ill. Dec. 440, 791 N.E.2d 532.
¶ 119 With respect to the first Eckert factor, the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the children, the trial court found that the initial disruption caused by the move would be outweighed by the long-term benefits of the children moving to Florida. The court acknowledged that by allowing removal, the children would leave their friends and be separated from respondent and their extended family in Illinois. *602 However, the court noted that by allowing D.T. to remove the children to Florida, the quality of their life will be enhanced because they will no longer have to travel by airplane to visit with D.T.; will not be subject to the stress, confusion and trauma that has become the norm when visiting with D.T.; and will be afforded the benefit of having two loving and committed parents and two loving and committed extended families continually in their lives as evidenced by D.T.'s testimony that he wished to foster a relationship between the children, respondent and respondent's mother.
¶ 120 We note that removal of the children to Florida would also enhance the quality of D.T.'s life. Collingbourne, 204 Ill.2d at 525, 274 Ill. Dec. 440, 791 N.E.2d 532. The record shows that D.T. lives in Florida and is a successful professional basketball player. Although he has a demanding schedule and must travel with the team, the record shows that he is in Miami frequently, which includes a combination of after school time, breakfast time, dinnertime and bedtime. This is in contrast to the situation in Illinois, where D.T. had almost no contact with the children. D.T. testified that he will make the time to be with the children. Doctor Amabile noted in her first report that in Miami, D.T. made an effort to be a good father to the children despite his busy basketball schedule. We believe the court properly applied the first Eckert factor to the evidence presented and that this factor weighs in favor of removal.
¶ 121 The second Eckert factor requires the trial court to assess the motive of the custodial parent, D.T., in seeking removal. Eckert, 119 Ill.2d at 327, 116 Ill. Dec. 220, 518 N.E.2d 1041. The court found and we agree that D.T.'s motive was well intentioned and not a ruse intended to defeat or frustrate respondent's visitation. Eckert, 119 Ill.2d at 327, 116 Ill. Dec. 220, 518 N.E.2d 1041. As mentioned, visitation with D.T. in Illinois for the children is a burden on all the parties involved, especially the children. D.T. lives and works in Miami and renewed his contract with the Miami Heat in July 2010. The children lived in Miami from 2003 to 2008 until respondent moved with them to Illinois. The return of the children to Miami would serve their best interests because they would no longer have to travel by airplane to visit D.T. Doctor Amabile testified that traveling would become a burden for the children as they grow older and may cause resentment on their part. With the children in Miami, respondent can now travel to Miami to be with the children. D.T. can afford to pay for respondent's travel costs. The trial court did not err in assessing the second Eckert factor and concluding that it weighed in favor of removal.
¶ 122 As for the third Eckert factor, the motives of the non-custodial parent in resisting the removal, the court found respondent's motives are mixed. The court acknowledged that respondent provided a good and loving home for the children and has been actively involved in providing them good schooling in Illinois. However, the court noted that respondent's alienating behavior during the pendency of the custody proceeding progressed to what Doctor Amabile described as almost in the severe range. The court noted and we agree that respondent's attempts to alienate the children from D.T. would be thwarted if the children were removed from Illinois to Florida. The court did not err in finding that this factor also weighed in favor of removal.
¶ 123 The final two Eckert factors deal with the visitation rights of the non-custodial parent. Because it is in the children's best interests to have a healthy and close relationship with both parents, the *603 trial court must carefully consider the effect the proposed removal would have on the visitation rights of the non-custodial parent. Eckert, 119 Ill.2d at 327, 116 Ill. Dec. 220, 518 N.E.2d 1041. In doing so, the trial court should assess the fourth Eckert factor: whether, under the facts and circumstances of a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed. Eckert, 119 Ill.2d at 327, 116 Ill. Dec. 220, 518 N.E.2d 1041. If removal to a distant jurisdiction will substantially impair the non-custodial parent's involvement with the child, the trial court should then assess the fifth Eckert factor, the potential harm to the child which may result from removal. Eckert, 119 Ill.2d at 328, 116 Ill. Dec. 220, 518 N.E.2d 1041.
¶ 124 Here, the trial court found that D.T. ensured that respondent's visitation rights will not be obstructed in any way and that a reasonable visitation schedule can be reached. D.T. consistently acknowledged that respondent is a good mother and has a strong bond with the children. He said he wants both parents in the children's lives and the children to see their parents working together as a team. He also said he would like to reconcile with respondent's mother and foster a relationship between her and the children. Respondent testified that if D.T. is awarded sole custody she may move to Miami to be closer to the children. D.T. testified that, if respondent were to move back to Miami, he would be open to liberal visitation.
¶ 125 Even if respondent does not move back to Miami, the record shows a realistic and reasonable visitation schedule was ordered by the court. Under the schedule, respondent will have parenting time with the children in Miami on alternating weekends. As mentioned, there is no reason respondent cannot travel to Miami every other weekend to spend time with the children. Respondent is not employed, does not attend school and has no other obligation preventing her from traveling to Miami. D.T. can afford to pay for respondent's transportation costs. Under the schedule, respondent will also have parenting time with the children in Illinois every year for Mother's Day and the children's spring break. Winter breaks are divided between the parties with respondent having parenting time in Illinois during the first half of the children's break in even-ending years and the second half during odd-ending years. Summer parenting time is divided equally between the parties into alternating two-week blocks of time. While we are mindful that this schedule allows respondent less frequent visits with the children, we note that "`[c]lose relationships can continue and even be enhanced when effort is expended to establish a reasonable visitation schedule.'" Collingbourne, 204 Ill.2d at 533, 274 Ill. Dec. 440, 791 N.E.2d 532 (quoting In re Marriage of Ludwinski, 312 Ill.App.3d 495, 504-05, 245 Ill. Dec. 166, 727 N.E.2d 419 (2000)). Under the facts of this case, we cannot say the trial court erred in ordering the visitation schedule.
¶ 126 The trial court did not and, we believe, was not obligated to consider the fifth Eckert factorthe potential harm to the children resulting from the movewhere the court did not conclude that the removal will substantially impair respondent's involvement with the children and where a reasonable visitation schedule for respondent was reached. See Eckert, 119 Ill.2d at 328, 116 Ill. Dec. 220, 518 N.E.2d 1041.
¶ 127 We are unpersuaded by respondent's argument that, in reaching its removal decision, the court erred in considering factors that are inapplicable to a removal determination: namely, respondent's *604 alienating behavior and the willingness of each parent to facilitate a continuing relationship between the other parent and the children. As mentioned, in the determination of the best interests of the children in a removal action, the Eckert factors are not exclusive and a trial court may validly consider other relevant factors, as dictated by the specific circumstances of each case, in arriving at a best interests determination. Collingbourne, 204 Ill.2d at 523, 274 Ill. Dec. 440, 791 N.E.2d 532. More importantly, a trial court's examination of a removal petition must be guided by the policies of the Marriage Act, one of which is to "`secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.'" Eckert, 119 Ill.2d at 328, 116 Ill. Dec. 220, 518 N.E.2d 1041 (quoting Ill.Rev.Stat.1987, ch. 40, ¶ 102(7), now 750 ILCS 5/102(7) (West 2008)). This policy is "`best served when, in addition to a favorable determination of all of the Eckert factors, the court considers the aspects of cooperation of both parents in achieving as reasonable an expectation of normalcy and family life for the [children] involved as can be achieved following a divorce.'" Collingbourne, 204 Ill.2d at 535, 274 Ill. Dec. 440, 791 N.E.2d 532 (quoting In re Marriage of Roppo, 225 Ill.App.3d 721, 732, 167 Ill. Dec. 416, 587 N.E.2d 1031 (1991)).
¶ 128 In removal actions, the best interests of the children are controlling. Eckert, 119 Ill.2d at 325, 116 Ill. Dec. 220, 518 N.E.2d 1041. Under the facts presented, the trial court's determination that removal was in the best interests of the children was not against the manifest weight of the evidence.
¶ 129 The trial court's decision awarding custody of the children to D.T. and granting his petition to remove them from Illinois to Florida is affirmed.
¶ 130 Affirmed.
Justices GARCIA and R. GORDON concurred in the judgment and opinion.
NOTES
[1] Justice Cahill filed the court's judgement on November 23, 2011, as an order under Illinois Supreme Court Rule 23 (eff. July 1, 2011). We granted appellant's motion to publish the decision after Justice Cahill's death on December 4, 2011. Justice Quinn read the briefs and Justice Cahill's Rule 23 order. No substantive changes were made to the original decision by Justice Cahill. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632614/ | 103 P.3d 186 (2004)
2004 UT App 420
SONY ELECTRONICS, INC., a Delaware corporation, Plaintiff and Appellant,
v.
Erland REBER, an individual; Sharlene Reber, an individual; and Visual Technology, Inc., a Utah corporation, Defendants and Appellees.
No. 20030883-CA.
Court of Appeals of Utah.
November 18, 2004.
David E. Leta and Kimberly Neville, Snell & Wilmer, Salt Lake City, for Appellant.
Elizabeth M. Peck, Salt Lake City, for Appellees.
Before Judges DAVIS, JACKSON, and THORNE.
OPINION
DAVIS, Judge:
¶ 1 Plaintiff, Sony Electronics, Inc. (Sony), appeals the trial court's order dismissing its claim under Utah Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. We reverse.
*187 BACKGROUND
¶ 2 In 1986, Sony, a distributor and seller of electronic products, accessories, and software, entered into a security agreement with Visual Technology, Inc. (Visual Technology), under which Visual Technology agreed to pay timely for goods it purchased on credit from Sony. Erland Reber, then president of Visual Technology, executed the security agreement in favor of Sony. At the time the security agreement was executed, Visual Technology's offices were located at 2141 South Main Street, Salt Lake City, Utah.
¶ 3 Three years later, in 1989, Erland Reber and his wife, Sharlene Reber, (collectively, the Rebers), signed a guaranty agreement (the guaranty),[1] agreeing to guarantee full and prompt payment of Visual Technology's debt to Sony. The guaranty indicated that at that time Visual Technology was located at 2155 South Main Street, Salt Lake City, Utah.
¶ 4 Sony continued to sell goods to Visual Technology on credit through 2001. In August 2001, Sony and Visual Technology entered into a reseller agreement (the reseller agreement), which governed Sony's sale of goods to Visual Technology on credit. The reseller agreement was signed by Bruce Jackson, as president of Visual Technology, now located at 474 Bearcat Drive, Salt Lake City, Utah.
¶ 5 By January 2002, Visual Technology began defaulting on its payment obligations to Sony. In April 2002, Sony filed a complaint against Visual Technology and the Rebers seeking, under the security agreement, guaranty, and reseller agreement, to recover money owed to Sony for unpaid invoices.
¶ 6 In response, the Rebers moved to dismiss Sony's claim. The Rebers claimed that in 1992 they sold the assets of Visual Technology to Bruce A. Jackson, Dixie Lee Jackson (collectively, the Jacksons), and an entity known as Dunston-Hill, which was owned by the Jacksons.[2] The Jacksons, the Rebers asserted, purchased all of the assets and assumed all of the liabilities of Visual Technology. Shortly after purchasing the assets of Visual Technology, the Jacksons changed the name of Dunston-Hill to Visual Technology, Inc. In support of their claim, the Rebers attached to their motion to dismiss the Articles of Incorporation for Dunston-Hill, the sale agreement between the Rebers and the Jacksons, and other documents reflecting Dunston-Hill's name change to Visual Technology, Inc. In their motion, the Rebers argued that they could not be held liable under the guaranty because it applied to a different corporate debtor the Visual Technology company they owned, not the Visual Technology incorporated by the Jacksons. Sony opposed the Rebers' motion, contending that the Rebers' guaranty "remained enforceable until revoked in writing, regardless of any alleged asset sale or change in Visual Technology's corporate structure."
¶ 7 The trial court granted the Rebers' motion to dismiss. In its order granting the motion, the court specifically noted that it *188 declined to treat the Rebers' motion to dismiss as a motion for summary judgment.[3] The court declared that "the only materials that [it] referred to in making its decision [were] the [c]omplaint and documents attached thereto." According to the court, the reseller agreement, attached to Sony's complaint, demonstrated that Sony had entered into an agreement with a new entity, separate from the entity whose debts the Rebers guaranteed the court based this determination on the fact that the reseller agreement listed a different address and president for Visual Technology than the address and president listed in the guaranty signed by the Rebers. In its findings of fact, included in the order of dismissal, the court found:
5. In this case, there are two parallel corporations who share the same name.
6. This first corporation, Visual Technology (I) no longer exists. It is the corporation whose debts the Rebers guaranteed.
7. The second corporation, Visual Technology (II), is a wholly separate corporation which was formerly known as Dunston-Hill.
8. The documents attached to the [c]omplaint evidence that [Sony] entered into a [r]eseller [a]greement with the new debtor Visual Technology (II) on August 1, 2001. The address for the new debtor is different from the address of the debtor, Visual Technology (I), referenced in the [g]uaranty.
9. From the date of the [r]eseller [a]greement on August 1, 2001, it appears that [Sony's] correspondence to Visual Technology was mailed to a new address and that [Sony] dealt with the signatory to the [r]eseller [a]greement, Mr. Bruce Jackson.
10. This case does not involve a change in the financial structure or organization of the debtor which is the subject of the [g]uaranty, Visual Technology (I). It involves a new debtor altogether, Visual Technology (II), which was not covered by the [g]uaranty in the first place.
(Citation omitted.) Therefore, the court held that "[u]nder the facts alleged in the [c]omplaint and in light of the documents attached to the [c]omplaint, there is no plausible way that the Rebers can be held liable under the [g]uaranty."
ISSUE AND STANDARD OF REVIEW
¶ 8 Sony asserts that the trial court erred in granting the Rebers' motion to dismiss pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. "[T]he propriety of a 12(b)(6) dismissal is a question of law"; therefore, "we give the trial court's ruling no deference and review it under a correctness standard." St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991).
ANALYSIS
¶ 9 Sony argues that the trial court improperly granted the Rebers' motion to dismiss under rule 12(b)(6) because the factual allegations of the complaint were sufficient to state a claim that the Rebers had guaranteed the debt owed to Sony.
¶ 10 "On appeal from a motion to dismiss under Utah Rule of Civil Procedure 12(b)(6), we review the facts only as they are alleged in the complaint." Hall v. Utah State Dep't of Corr., 2001 UT 34,¶ 2, 24 P.3d 958. Moreover, "[w]hen determining whether a trial court properly dismissed an action under rule 12(b)(6), we assume that the factual allegations in the complaint are true and we draw all reasonable inferences in the light most favorable to the plaintiff." Cazares v. Cosby, 2003 UT 3,¶ 13, 65 P.3d 1184 (quotations and citations omitted). "A rule 12(b)(6) dismissal is merely a recognition by a trial court that a plaintiff's claim for relief is formally deficient," id. at ¶ 14; therefore, "[a] motion to dismiss is appropriate only *189 where it clearly appears that the plaintiff or plaintiffs would not be entitled to relief under the facts alleged or under any state of facts they could prove to support their claim," Prows v. State, 822 P.2d 764, 766 (Utah 1991). See also Whipple v. American Fork Irrigation Co., 910 P.2d 1218, 1220 (Utah 1996) ("[T]he purpose of a rule 12(b)(6) motion is to challenge the formal sufficiency of the claim for relief, not to establish the facts or resolve the merits of a case.").
¶ 11 We conclude that the trial court erred in determining that Sony's complaint failed to state a claim upon which relief could be granted. The trial court could not have determined, from the facts alleged in Sony's complaint and the documents attached thereto, that the Rebers had guaranteed the debts of an entity separate from the one being sued by Sony. In the trial court's memorandum decision, the court stated, "[A]s the [Rebers'] counsel clearly articulated during oral argument, this case does not involve a change in financial structure or organization of Debtor that is the subject of the [g]uaranty, but rather a new debtor altogether, one that was not covered by the [g]uaranty in the first place." In reaching this conclusion, the trial court apparently relied on the reseller agreement, which provides the name of a different president and a different address for Visual Technology than are contained in the guaranty. However, as Sony argues, the mere fact that the address and president of Visual Technology listed in the reseller agreement are different than those listed in the guaranty does not show that the Rebers had guaranteed the debts of a company other than the one being sued by Sony. This is particularly true in the context of section 3 of the guaranty, which anticipates that the same debtor may at some point change its address or corporate officers. Section 3 of the guaranty provides, in part, "This [g]uaranty shall be effective regardless of any subsequent incorporation, reorganization, merger or consolidation of the Debtor, change of partners, change of name or any other change in the composition, nature, personnel[,] or location of the Debtor whatsoever."
¶ 12 From the facts contained in the complaint and the attached reseller agreement, the trial court could not have concluded that Sony had been dealing with two separate companies. Instead, the trial court relied on information contained in the Rebers' motion to dismiss and its attached documents in determining that Sony's claim was insufficient. All or part of findings 5 through 10 are based on material in the Rebers' motion to dismiss. Because the trial court had to consider facts not contained in the complaint to dismiss Sony's claim, we hold that the trial court should have treated the Rebers' motion as one for summary judgment.[4]
CONCLUSION
¶ 13 We conclude that the trial court erred in dismissing Sony's complaint under rule 12(b)(6) rather than treating the Rebers' motion as a motion for summary judgment under rule 56 of the Utah Rules of Civil Procedure.[5] We reverse the trial court's grant of the Rebers' motion to dismiss and remand for further proceedings including, but not limited to, proceedings under rule 56.[6]
James Z. Davis, Judge.
¶ 14 WE CONCUR: NORMAN H. JACKSON, Judge and WILLIAM A. THORNE Jr., Judge.
NOTES
[1] Section 2 of the guaranty provides:
Obligations of Guarantors. To induce the Creditor to sell, or agree to sell to, or extend or agree to extend credit to the Debtor, and in consideration of the Creditor's doing so, Guarantors do hereby guarantee to the Creditor the full, prompt[,] and unconditional payment, upon the date due, of each and every debt of the Debtor; the full, prompt[,] and unconditional performance of every term and condition of any transaction to be kept and performed by the Debtor; and the payment of interest on each and every debt of the Debtor. In the event that the Guarantor shall consist of more than one person, the obligations of such persons hereunder shall be joint and several. The foregoing obligations are without regard to any offset, defense or counterclaim of the Debtor, however arising, and without recourse by the Guarantor to its remedies against the Debtor. The foregoing obligations may hereinafter be referred to as the "Obligations[."]
Section 3 of the guaranty provides:
Character of Obligation. This guaranty is an absolute, continuing, unconditional[,] and unlimited Guaranty. The term of this Guaranty shall commence on the date first above indicated hereof. No termination of the Guaranty shall be effected by the death of the Guarantor. This Guaranty shall be effective regardless of any subsequent incorporation, reorganization, merger or consolidation of the Debtor, change of partners, change of name or any other change in the composition, nature, personnel or location of the Debtor whatsoever.
[2] On appeal, Sony contends that any facts beyond those contained in its complaint are contested.
[3] At the hearing on the Rebers' motion to dismiss, counsel for the Rebers stated:
Your Honor, on a matter of procedure, and forgive my naivete on this, it seems to me that if matters are brought up outside the pleadings, it ought to be treated as a motion for summary judgment. And I don't know if the [c]ourt is treating this as such or not at this point.
The court responded, "I'm not. It was not couched as a motion for summary judgment, it was a motion to dismiss. That's how I intend to look at it."
[4] Rule 12(b) of the Utah Rules of Civil Procedure provides, in relevant part:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
[5] We conclude only that the trial court improperly dismissed Sony's claim, we do not determine whether Sony is entitled to recovery from the Rebers under the guaranty.
[6] Because we reverse the trial court's ruling and remand for further proceedings, we do not reach several issues. These issues include, but are not limited to, the Rebers' claim for attorney fees and the application of Mule-Hide Products Co. v. White, 2002 UT App 1, 40 P.3d 1155, to Sony's claim. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726250/ | 970 So. 2d 835 (2007)
CIVIC, LLC
v.
C & H LAND CORP.
No. 3D07-431.
District Court of Appeal of Florida, Third District.
October 10, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265452/ | 185 Cal.App.4th 238 (2010)
THE PEOPLE, Plaintiff and Respondent,
v.
MARSHALL FRANK CHIKOSI, Defendant and Appellant.
No. G041014.
Court of Appeals of California, Fourth District, Division Three.
May 6, 2010.
*240 Heather R. Rogers and Beatrice Tillman, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellant was convicted of driving under the influence of alcohol, driving with a blood-alcohol level of 0.08 percent or more, and evading the police. He contends the trial court erred in admitting his Breathalyzer test results, because the prosecution's witnesses relied on hearsay in forming their opinions about the accuracy of those results. We find no error in this regard. Although we modify the judgment to correct an undisputed sentencing error and properly reflect the court's sentencing decision, we affirm the judgment in all other respects.
FACTS
Around midnight, Tustin Police Officer Matthew Nunley noticed appellant driving through a parking lot at a high rate of speed. He shined his spotlight on appellant's car, hoping that would slow him down, but appellant sped up and made his way onto the roadway. Nunley followed, and upon seeing appellant run a red light, he activated his overhead lights and siren. In the mile-long pursuit that followed, appellant ran another red light and reached speeds of 60 to 70 mph before eventually pulling over.
*241 When he did, Nunley stopped behind him and ordered him out of his car. Appellant was slow to comply and unsteady on his feet. He also muttered something about having "already poured the drink." Nunley handcuffed him and placed him in the back of his police car, at which point appellant admitted he had "too much" to drink that night. Consistent with this admission, his breath smelled of booze, his speech was slurred, and his eyes were watery and bloodshot. After finding a half-empty bottle of vodka in appellant's car, Nunley arrested him and took him to the police station.
There, he gave appellant a series of sobriety tests to determine the extent of his impairment. After appellant performed poorly on the tests, Nunley gave him a Breathalyzer test using a machine called the Alco-Sensor IV-XL (Alco-Sensor). Appellant provided two breath samples for the test, and they both yielded a blood-alcohol level of 0.18 percent.
At trial, appellant challenged the accuracy of those readings. More particularly, he challenged the accuracy of the Alco-Sensor machine that Nunley used to test his blood-alcohol level. Nunley testified he is certified to use the Alco-Sensor in the field and also qualified to conduct accuracy tests on the machine. However, he was not involved in testing the accuracy of the particular machine he used in appellant's case. Rather, that machine was tested by Tustin Police Officer Bernie Rowe. Although Rowe did not testify at trial, the court allowed Nunley to rely on the accuracy records that Rowe produced. Based on his review of those records, Nunley opined the machine was working accurately at the time he used it on appellant.
Kari Sterling also testified to the accuracy of the machine. A forensic alcohol analyst at the county's crime lab, she explained the Alco-Sensor operates using fuel cell technology. When alcohol is introduced into the cell, a chemical reaction occurs. That reaction releases electricity, which is converted by the instrument into a blood-alcohol reading.
Sterling said that, by law, the Alco-Sensor machines must be tested for accuracy at least once every 10 days. This is done by placing an air sample with a known alcohol value in the machine. If the machine reads the sample within 0.01 percent of that value, the machine is deemed to be accurate. If it does not read the sample within that range, the machine will automatically "lock out" and become inoperable. When that occurs, the machine is taken out of service and has to be recalibrated before it can be used again.
Sterling said accuracy records are kept for each machine and are made at or near the time the machines are tested. The accuracy records are kept in a database at the crime lab, and there are also handwritten maintenance logs that correspond to the electronic files. To generate an accuracy record, all the *242 tester has to do is enter his name and the value of the alcohol sample into the machine, and the machine will automatically conduct the test and produce a result; no human analysis is involved in the process.
Like Nunley, Sterling reviewed the records of the testing that Rowe conducted on the machine in question. She said those records show the machine was tested one day before, and five days after, appellant's arrest, and on both occasions, the machine tested within the acceptable margin of error of 0.01 percent. She therefore believed the machine was working accurately when Nunley used it on appellant.
I
Because Rowe did not testify, appellant contends the court erred in allowing Nunley and Sterling to rely on his records to establish the reliability of the subject machine. He contends this procedure violated his Sixth Amendment right of confrontation, and therefore the results of his breath test should not have been admitted into evidence. We disagree.
(1) Under the Sixth Amendment, the defendant in a criminal case has the right "to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) That right protects the defendant against the admission of "testimonial" hearsay unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine him. (Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177, 124 S.Ct. 1354].)
Speaking to the issue of when police statements are testimonial for purposes of the Sixth Amendment, the United States Supreme Court in Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224, 126 S.Ct. 2266] ruled, "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822, fn. omitted.)
Just last year, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314, 129 S.Ct. 2527] (Melendez-Diaz), the United States Supreme Court determined information contained in lab reports can constitute testimonial hearsay in some circumstances. The reports at issue there were actually "certificates of analysis" showing that a substance found in the defendant's possession had tested positive for cocaine. (Id. at p. ___ [129 S.Ct. at p. 2531].) Because the certificates constituted sworn affidavits and were *243 prepared for the sole purpose of proving the defendant's guilt at trial, the court determined the defendant had the right to confront the analysts who prepared them. (Id. at pp. ___ - ___ [129 S.Ct. at pp. 2532-2533].)
Our case is different from Melendez-Diaz in that appellant was allowed to confront and cross-examine the person who obtained the test results that incriminated him, i.e., Officer Nunley. The question we must decide is whether appellant had the right to confront the person who tested the accuracy of the machine Nunley used, i.e., Officer Rowe. As to that issue, the Supreme Court's decision in Melendez-Diaz is informative.
(2) Responding to the fears that requiring live testimony from everyone involved in the testing process would overburden the states, the majority in Melendez-Diaz made clear that not everyone "whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." (Melendez-Diaz, supra, 557 U.S. at p. ___, fn. 1 [129 S.Ct. at p. 2532, fn. 1].) As particularly relevant here, the majority noted "documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. [Citation.]" (Ibid.)
That makes good sense because while cross-examination of those who conduct substantive analysis of key evidence, like the drug analysts in Melendez-Diaz, may be useful in terms of testing their "honesty, proficiency, and methodology" (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2538]), testimony from technicians who merely test the accuracy of machines or other equipment is not as likely to produce fruitful evidence for the defense. Take Rowe, for example. His job in testing the accuracy of an Alco-Sensor is simply to enter his name and the value of the subject alcohol sample into the machine. After that, the machine, not Rowe, analyzes the sample and produces a reading. If the reading is not within the acceptable margin of error, the machine automatically becomes inoperable and will be taken out of service. This not only helps ensure the accuracy of the machines, it largely removes the human element from the testing process, thereby lessening the value of cross-examination.
(3) In the wake of Melendez-Diaz, courts have recognized testing technicians such as Rowe generally do not play such an important role in the adversarial process so as to mandate their appearance at trial. For instance, in U.S. v. Bacas (E.D.Va. 2009) 662 F.Supp.2d 481, the defendant challenged his conviction for speeding on the grounds the prosecution failed to produce the technician who tested the accuracy of certain tuning forks. He argued the technician's presence at trial was required under the Sixth Amendment because the tuning forks were used by the arresting officer to calibrate the *244 radar that detected his driving speed. In other words, akin to appellant here, the defendant "sought live testimony about the test applied to the [subject] equipment to show that it performed correctly. [Citation.]" (662 F.Supp.2d at p. 484.)
However, the court ruled, "Collateral facts that do not speak to a defendant's guilt or innocence have been excepted from Sixth Amendment protection. [Citation.] Neutral statements that relate only to the operation of a machine constitute such collateral facts. [Citations.] [¶] Unlike the certificates at issue in Melendez-Diaz, in the instant case [the calibration test results] propound neutral information relating only to the proper operation of the radar equipment. Such calibration results do not pertain to any particular defendant or specific case. [Citation.]" (U.S. v. Bacas, supra, 662 F.Supp.2d at p. 485.) Therefore, they "lack the essential `primary purpose' of `establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution' that would render them `testimonial.' [Citation.]" (Ibid.)
Like the testing results at issue in Bacas, the records Rowe produced reflect information relating to the proper functioning of a machine that is commonly used in law enforcement. The information is neutral in that it is not generated for use against a specific defendant or a particular breath test. Moreover, unlike the reports at issue in Melendez-Diaz, which "were completed almost a week after the tests were performed" (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2535]) the records Rowe generated were produced contemporaneously with his testing. Because they were not produced to establish a past fact relevant to appellant's prosecution, they do not fit within the United States Supreme Court's definition of testimonial hearsay. (See People v. Geier (2007) 41 Cal.4th 555, 607 [61 Cal.Rptr.3d 580, 161 P.3d 104] [the confrontation clause does not apply to lab reports that merely represent the "contemporaneous recordation of observable events"].)[1]
Another point of distinction between this case and Melendez-Diaz is that appellant had the opportunity to cross-examine the state's witnesses about the records and testing procedures that were utilized on the subject machine. Although appellant was not afforded the opportunity to cross-examine the *245 actual tester, Rowe, he was given considerable latitude in terms of cross-examining Nunley and Sterling about Rowe's records. In this regard, it is significant that Nunley and Sterling have considerable experience in the very testing Rowe conducted. They were able to explain how the Alco-Sensor works, how accuracy tests are performed and what Rowe's results signified. This afforded appellant a greater opportunity for cross-examination than if, as in Melendez-Diaz, the prosecution had relied solely on documentary evidence to establish the accuracy of the testing results at issue. (Accord, People v. Bowman (2010) 182 Cal.App.4th 1616, 1624, fn. 2 [107 Cal.Rptr.3d 156] ["recognizing a significant distinction between hearsay used by an expert to form an opinion, on the one hand, and the hearsay document itself"]; but see People v. Benitez (2010) 182 Cal.App.4th 194 [106 Cal.Rptr.3d 39], review granted May 12, 2010, S181137 [finding this distinction immaterial for purposes of the 6th Amend. confrontation clause].)
(4) For all these reasons, we hold the statements contained in Rowe's accuracy records were nontestimonial in nature. Therefore, the trial court did not err in allowing Nunley and Sterling to rely on them in forming their opinions. This procedure did not violate appellant's rights under the Sixth Amendment. (Accord, U.S. v. Griffin (E.D.Va., Sept. 22, 2009, No. 3:09MJ308) ___ F.Supp.2d ___ [accuracy testing results for Breathalyzer machine deemed nontestimonial]; State v. Bergin (2009) 231 Ore.App. 36 [217 P.3d 1087] [same].)
II
Turning to appellant's sentencing claims, the record shows the trial court sentenced him to 16 months in prison for driving under the influence, and a concurrent term of 16 months for driving with a blood-alcohol level of 0.08 percent or more. However, as the Attorney General concedes, the sentence on the latter count must be stayed under Penal Code section 654 because both offenses arose from a single episode of driving. (People v. Martinez (2007) 156 Cal.App.4th 851, 857 [67 Cal.Rptr.3d 670].)
(5) In addition, the abstract of judgment must be modified to conform to the court's oral sentencing decision. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186 [109 Cal.Rptr.2d 303, 26 P.3d 1040] [where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls].) Particularly, the abstract should reflect that, in pronouncing sentence, the court imposed a $50 "alcohol *246 abuse fee" pursuant to Vehicle Code section 23645 and a $30 "D.U.I. lab fee" under Penal Code section 1463.14. We will modify the judgment accordingly.[2]
DISPOSITION
The judgment is modified to stay appellant's sentence on count 2 for driving with a blood-alcohol level of 0.08 percent or more. (Pen. Code, § 654.) In addition, appellant is ordered to pay a $50 penalty under Vehicle Code section 23645 and a $30 penalty under Penal Code section 1463.14. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these changes and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Sills, P. J., and Ikola, J., concurred.
NOTES
[1] Given that Geier preceded Melendez-Diaz by two years, courts have debated the extent to which it remains good law. The California Supreme Court is currently considering that issue and, in the process, has agreed to review some of the cases appellant has cited in his supplemental brief. (See People v. Lopez (2009) 177 Cal.App.4th 202 [98 Cal.Rptr.3d 825], review granted Dec. 2, 2009, S177046; People v. Dungo (2009) 176 Cal.App.4th 1388 [98 Cal.Rptr.3d 702], review granted Dec. 2, 2009, S176886; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 [98 Cal.Rptr.3d 390], review granted Dec. 2, 2009, S176213.) Because the Supreme Court has granted review of those decisions, we may not consider them. (Cal. Rules of Court, rules 8.1105(e), 8.1115(a).)
[2] Appellant complains that, in imposing these fees, the court did not determine whether he had the ability to pay them. However, appellant waived this claim by failing to raise it in the trial court. (People v. Forshay (1995) 39 Cal.App.4th 686, 689 [46 Cal.Rptr.2d 116]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 [33 Cal.Rptr.2d 217].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265344/ | 185 Cal.App.4th 1179 (2010)
PETER A. BENSON, Petitioner,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent;
ISOLINA PICON, Real Party in Interest.
COUNTY OF SAN MATEO et al., Petitioners,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent;
ISOLINA PICON, Real Party in Interest.
No. A127285, A127305.
Court of Appeals of California, First District, Division Four.
May 25, 2010.
*1182 Hassard Bonnington, Joseph C. Gharrity and B. Thomas French for Petitioner Peter A. Benson.
Michael P. Murphy, County Counsel, John D. Nibbelin, David A. Silberman and Glenn M. Levy, Deputy County Counsel, for Petitioners County of San Mateo et al.
Pacific West Law Group and Gregory M. Abrams for National Association of Medical Examiners and California Society of Pathologists as Amici Curiae on behalf of Peitioners.
*1183 No appearance for Respondent.
Law Offices of Ayanna L. Jenkins Toney and Ayanna L. Jenkins Toney for Real Party in Interest.
OPINION
REARDON, J.
A county coroner, conducting an inquiry into cause of death, has no duty to obtain consent from next of kin before retaining a part of the decedent's body to determine cause of death, or for scientific investigation or coroner training. We therefore grant the petitions for extraordinary relief filed by defendants in the underlying action and direct the trial court to enter judgment for defendants.
BACKGROUND
Twenty-three-year-old Nicholas Picon died unexpectedly at home. On October 26, 2006, defendant Peter A. Benson, M.D., a forensic pathologist, performed a postmortem exam on behalf of the San Mateo County Coroner's Office. Dr. Benson had performed postmortem exams under contract with the county since 1968.
Dr. Benson found a "structural abnormality" in Nicholas Picon's heart during the course of the postmortem exam. Dr. Benson decided to retain the heart for further examination. He also ordered toxicology tests.
Three days later, Dr. Benson reexamined the heart. He took tissue samples and sent them to an outside laboratory for preparation of biology slides.
By November 9, 2006, Dr. Benson had received the biology slides and the toxicology test results ("negative for drugs and medication"). Dr. Benson concluded the cause of death was "probable cardiac dysrhythmia due to intramural tunneling of the left anterior descending coronary artery." Dr. Benson, however, intended to send the heart to a heart pathology specialist at Stanford University to confirm his findings.
Meanwhile, the coroner's office had released Nicholas Picon's body, and his mother, plaintiff Isolina Picon (Picon), buried his remains on October 30, 2006. According to Picon, no one from the coroner's office informed her that her son's heart had been retained. When she learned the coroner's office had retained the heart, she asked for its return. The coroner returned the heart on November 20 or 21, 2006.
*1184 Picon sued the County of San Mateo, County Coroner Robert Foucrault, and Dr. Benson. She purported to state causes of action for (1) "denial of quasiproperty right to control the remains of a deceased person," and (2) negligence. Picon alleged that Dr. Benson's retention of the heart was "unauthorized." She believed Dr. Benson had retained the heart for his own "self serving interest" and so that it could be released to Stanford University. Her amended complaint states Dr. Benson was "intrigued by the rarity of the heart condition that ultimately led to [her son's] untimely death." Foucrault was to blame for allowing Dr. Benson "unfettered freedom." Thus Foucrault (and presumably the county, too) "became vicariously liable for Dr. Benson's actions."
Defendants moved for summary judgment. Foucrault and the county argued that retention of the heart was authorized by state law, and that they were also immune from liability for discretionary acts under the applicable provisions of Government Code[1] sections 815 and 820.2. Dr. Benson similarly argued his actions were authorized by state law, and that he had no duty to obtain Picon's consent before retaining her son's heart.
In opposition to defendants' motions, Picon submitted an expert declaration that cast doubt on Dr. Benson's conclusions and his need to retain the heart. Judy Melinek, M.D., a forensic pathologist, believed Nicholas Picon did not die from coronary artery tunneling. In her opinion a viral infection that had spread to his heart had led to his death. Dr. Melinek did not "understand why the entire heart organ was retained in this case." She opined, "There was no clinical diagnostic reason that I could see that would necessitate the retention of Nicholas Picon's entire heart organ."
The trial court denied defendants' motions, finding a disputed issue of fact as to why defendants had retained the heart. The trial court concluded: A reasonable trier of fact, based upon the conclusions of Dr. Melinek, could infer that Dr. Benson did not need the entire heart organ to ascertain cause of death, and thus that there were other reasons why the heart was retained.
DISCUSSION
Standard of Review
An order denying a motion for summary judgment may be reviewed by a petition for peremptory writ. (Code Civ. Proc., § 437c, subd. (m)(1).) The *1185 standard of review is the same regardless of whether the trial court grants or denies a summary judgment motion. "Rulings on such motions are examined de novo." (Buss v. Superior Court (1997) 16 Cal.4th 35, 60 [65 Cal.Rptr.2d 366, 939 P.2d 766].)
"We review summary judgment appeals by applying the same three-step analysis applied by the trial court: First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact." (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940 [51 Cal.Rptr.3d 1], italics omitted; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-855 [107 Cal.Rptr.2d 841, 24 P.3d 493].)
The Coroner's Duties
(1) The coroner's many duties are enumerated at section 27460 et seq. One of the coroner's principal duties is of course to inquire into and determine the cause of death in appropriate cases. (See § 27491.) There is no dispute here that the death of Nicholas Picon warranted an inquiry.
To perform this inquiry, the coroner may order a postmortem examination or autopsy. (§ 27491.4, subd. (a).)[2] The coroner may "make or cause to be made an analysis of the stomach, stomach contents, blood, organs, fluids, or tissues of the body." (§ 27491.4, subd. (a).) The coroner is statutorily authorized to retain tissues as necessary or advisable to the inquiry. (Ibid.; see also Health & Saf. Code, § 7102 [coroner entitled to custody of remains of person whose death is subject of investigation until conclusion of autopsy or *1186 medical investigation].)[3] In addition, the coroner may retain parts of the body that, in the opinion of the coroner, may be necessary or advisable for scientific investigation and training. (§ 27491.45, subd. (a)(1).)[4] The coroner may employ outside laboratories, hospitals, or research institutions to conduct the coroner's scientific investigation or training. (§ 27491.45, subd. (a)(1).) The coroner may release parts of the body to third parties for noncoroner training, educational, and research purposes, but in that case the coroner must obtain consent under the methods described in the Uniform Anatomical Gift Act. (Health & Saf. Code, § 7150 et seq.)
To fulfill his or her duties, the coroner may "summon a surgeon or physician to inspect the body or hold a post mortem examination or a chemist to make an analysis of the stomach or the tissues of the deceased and give a professional opinion as to the cause of the death." (§ 27499.) When there is a question as to the cause of death, the coroner acts "within his authority in ordering an inquest held, and in authorizing his autopsy surgeon to proceed in the usual manner." (Huntly v. Zurich General A. & L. Ins. Co. (1929) 100 Cal.App. 201, 214 [280 P. 163].)
Defendants' Contentions
Foucrault and the county point out that the Government Code grants substantial discretion to the coroner in performing the duties of his office, including discretion to retain tissues and parts of the body. They therefore rely on section 820.2, which provides a public employee is not liable for injuries resulting from an exercise of discretion. Alternatively, Foucrault and the county argue that neither Dr. Melinek's declaration nor any of Picon's other factual assertions created a triable issue of fact. In their opinion, there was no evidence to support an inference that Dr. Benson retained the heart for some improper reason.
*1187 Dr. Benson's arguments overlap to a great degree with Foucrault and the county's arguments, but rather than rely on statutory immunity, he simply argues he had no duty to obtain Picon's consent to retain her son's heart. He asserts any limited quasi-property right Picon might have had in her son's remains cannot be expanded to conflict with statutes (§§ 27491.4, 27491.45) permitting the coroner to retain organs and tissues collected during an autopsy. Finally, Dr. Benson also contends Picon's claims against him are barred by the applicable statute of limitations.
(2) Although Foucrault and the county's points are well taken, we believe the most straightforward explanation here is that Picon never established that defendants owed her a duty to obtain her consent before retaining her son's heart.
Duty of Care
(3) "Whether a defendant owes a duty of care is a question of law. A defendant may be liable in tort for negligently inflicting emotional distress on persons to whom the defendant owes a duty of care. That duty can have three alternative origins: (1) a duty imposed on the defendant by law, (2) a duty assumed by the defendant, or (3) a duty arising out of a preexisting relationship between plaintiff and defendant." (Aguirre-Alvarez v. Regents of University of California (1998) 67 Cal.App.4th 1058, 1063 [79 Cal.Rptr.2d 580]; see also § 815, subd. (a) [public entity not liable for injury except as otherwise provided by statute].)
(4) Picon appears to rely on a duty imposed by law. Paradoxically, however, she relies on the very lawsections 27491.4 and 27491.45that allows defendants to retain tissues and parts of the body. Those sections do not require consent from next of kin to do so. Consent is required only when the coroner releases parts of the body to third persons for noncoroner purposes. (§ 27491.45, subd. (a)(2).)
In light of the specific statutory authorization to retain parts of the body removed at an autopsy, it is difficult to discern any duty defendants owed to Picon before making the decision to retain her son's heart in this case. Picon cites little in the way of legal authority or facts to persuade us otherwise. She does attempt to parse the language of sections 27491.4 and 27491.45 to support her case. We will discuss her arguments point by point.
Dr. Benson's Status As an Independent Contractor
Picon attaches great significance to the fact Dr. Benson is an independent contractor. According to Picon, "Petitioner's [sic] are not immune from *1188 liability based on the fact that Dr. Benson is an independent contractor and his actions were not authorized by California Government Code section 27491.4 or 27491.45(a)(1) & (2)." She points out those sections grant only the "coroner" the discretion to retain tissues or parts of the body; thus, Dr. Benson did not have the authority to make the decision to retain her son's heart.
Picon appears to be suggesting a government officer cannot act through, or delegate authority to, an expert. Outside of sections 27491.4 and 27491.45 themselves, she cites no authority for this surprising proposition.
(5) The law does not presume the coroner will personally conduct postmortem examinations. The coroner, in his or her discretion, may make or "cause to be made" a postmortem examination. (§ 27491.4, subd. (a).) The coroner may summon physicians to conduct postmortem exams (§ 27499), and may employ outside laboratories, hospitals, or research institutions to conduct the coroner's scientific investigation (§ 27491.45, subd. (a)(1)).
In this case, Foucrault, who was elected to the position of coroner, is not a medical doctor. (Cf. § 24010 [providing for office of medical examiner in lieu of office of coroner].) He must therefore employ physicians such as Dr. Benson to conduct postmortem exams. The record shows Foucrault granted Dr. Benson the authority to use his professional medical judgment to conduct such exams, including the authority to retain organs for purposes of investigation into cause of death. According to Dr. Benson, he has had that authority through "three coroners, three chief deputy coroners, over a period of 47 years." Foucrault delegated the direct supervision of Dr. Benson to his chief deputy. Foucrault's chief deputy at that time was also not a doctor, having joined the coroner's office after working in law enforcement. The chief deputy approved (albeit after the fact) Dr. Benson's decision to retain Nicholas Picon's heart.
Given the coroner's duties and the realities involved in performing those duties, we disagree with Picon that the Legislature literally meant only the person occupying the office of coroner can make the decision to retain parts of the body removed at an autopsy. Instead we hold a physician employed by the coroner may make that decision.[5]
*1189 Tissues of the Body
Although not set forth in a separate argument in her briefs, Picon alludes to the language in section 27491.4, subdivision (a), that allows the coroner to retain "only those tissues of the body" necessary for the coroner's inquiry. Picon apparently believes the reference to tissues precludes retention of an entire organ.
(6) Section 27491.4 does distinguish between tissues of the body and organs in another part of subdivision (a) (make an "analysis of the stomach, stomach contents, blood, organs, fluids, or tissues of the body"). Further, relevant dictionary definitions of the word "tissue" do not inexorably lead to a conclusion the word includes organs of the body.[6]
The problem for Picon, of course, is that while section 27491.4 might not expressly provide for retention of organs, section 27491.45 does. That section specifically permits the retention of parts of the body removed at the time of an autopsy to study them. Picon alleges Dr. Benson retained her son's heart because he was intrigued by the rarity of the heart condition he had discovered. In other words, he wanted to study it. There is no hint or suggestion that Dr. Benson retained the heart for some depraved or repugnant purpose. Instead he allegedly sought to satisfy his or a colleague's scientific curiosity regarding the heart condition. Only if that scientific curiosity had led to the release of the heart to a third party for noncoroner research purposes would consent from next of kin have been required. (Id., subd. (a)(1).) Notwithstanding much insinuation by Picon of a conspiracy to funnel body parts to Stanford University for research, she produced no evidence to rebut defendants' showing that Nicholas Picon's heart did not leave the coroner's office. (See Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250-1253 [91 Cal.Rptr.3d 532, 203 P.3d 1127] [evidence of general pattern of misconduct not sufficient to support claim that defendant mishandled plaintiff's decedent's body].)[7]
*1190 Ironically, the only reason the distinction between tissues and organs is relevant here is because defendants insist the sole reason they retained Nicholas Picon's heart was to investigate cause of death. Thus it is defendants themselves who invoke section 27491.4 as authority for the discretion to retain an organ to determine cause of death.
(7) We agree with defendants that section 27491.4 must be read in conjunction with section 27491.45, which specifically provides for retaining parts of the body. "Under [section] 27491.4 et seq., the coroner is authorized to remove, and either retain or release to specified entities, body tissues and parts." (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Criminal Procedure, § 43, p. 65.) The scientific study permitted by section 27491.45 must include a study to determine cause of death. Otherwise, the coroner could retain an organ for scientific study or training, but not for determining cause of death, one of the coroner's primary missions. We can think of no reason the Legislature would intend such a result, and Picon suggests none.[8] (See Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th 155, 169 [2 Cal.Rptr.2d 536, 820 P.2d 1046] [code sections in pari materia must be harmonized with each other to extent possible].)
Quasi-property Right and the Palmquist Case
(8) As Picon contends, she had a temporary, quasi-property right in the body of her deceased son for purposes of burial. (See Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 221-222 [7 Cal.Rptr.3d 597]; see also Health & Saf. Code, § 7100; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 460, pp. 681-684.) The right is typically invoked in actions involving malfeasance by funeral homes. (See, e.g., Sinai Temple v. Kaplan (1976) 54 Cal.App.3d 1103, 1110-1112 [127 Cal.Rptr. 80]; Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1, 4-5 [41 Cal.Rptr. 481], disapproved on other grounds in Christensen v. Superior Court (1991) 54 Cal.3d 868, 889 [2 Cal.Rptr.2d 79, 820 P.2d 181].) Next of kin, however, have also asserted the right against the coroner. (See, e.g., Davila v. County of Los Angeles (1996) 50 Cal.App.4th 137, 140 [57 Cal.Rptr.2d 651] [failure to make reasonable efforts to locate next of kin]; Gray v. Southern Pacific Co. (1937) 21 Cal.App.2d 240, 242 [68 P.2d 1011] [wrongful performance of autopsy].) There is no interference with that right, however, when the coroner performs a lawful autopsy. (Gray v. Southern Pacific Co., supra, at p. 246.)
*1191 The summary judgment record shows defendants performed a lawful autopsy. Picon nevertheless refers this court to Palmquist v. Standard Acc. Ins. Co. (S.D.Cal. 1933) 3 F.Supp. 358 (Palmquist), as support for her contention that defendants' retention of her son's heart interfered with her quasi-property right. She believes the facts of her case "mirror almost identically the facts in Palmquist."
Palmquist is a federal district court ruling on a motion for judgment notwithstanding the verdict. (Palmquist, supra, 3 F.Supp. at p. 359.) The case did involve the retention of organs following an autopsy. There the similarities between Palmquist and the instant case end. First and foremost, Palmquist did not involve the acts of a coroner. The autopsy in Palmquist was performed by physicians representing an insurance company. They were hired to determine whether the decedent's death was accidental for insurance purposes. (Ibid.) Those physicians retained the decedent's heart, brain, and one kidney after the autopsy for further pathological examination. Some months later, the decedent's spouse asked that the organs be returned. Her request was refused. A jury returned a verdict in favor of the spouse for her emotional distress. The district court denied the defendants' motion for entry of judgment notwithstanding the verdict. (Palmquist, supra, 3 F.Supp. at p. 360.)
The federal court's decision in Palmquist says nothing regarding the duties of a coroner, and liability in Palmquist appears to have been found based not on the initial retention of the organs, but on the refusal to return them. Palmquist has no application here.
Unsupported Factual Claims
We believe we have sorted out and discussed Picon's best legal arguments, but Picon has also made several allegations of serious misconduct against defendants, including claims that they may have altered the autopsy report and that the heart returned to her may not have been her son's heart. Many of those claims are not supported by a citation to the record; in fact Picon did not cite to the record in her statements of fact to this court. And in those instances where she has cited to the record, the referenced material does not provide an evidentiary basis for her claims. For example, in support of her allegation that Stanford University kept organs sent by the coroner for "scientific future research," she cites only to a long soliloquy by her attorney at Dr. Benson's deposition.
*1192 This failure to cite to evidence in the record repeats a pattern that began in the trial court. With the exception of a few references to the autopsy report, Picon's opposition to the motions for summary judgment was bereft of citations to the record. Her failure to cite to the record was not for lack of providing materials in opposition to the motions. Picon submitted hundreds of pages of deposition transcripts, numerous declarations, and several documentary exhibits in opposing the motions.
In any event, the summary judgment record contains nothing to rebut defendants' showing that Nicholas Picon's heart was removed and retained to determine cause of death. Not even Dr. Melinek's declaration, the one piece of evidence the trial court identified as contradicting that showing, created a material, triable issue of fact. That Dr. Melinek did not understand why Dr. Benson retained the entire heart, or that she did not believe there was any reason to retain the heart, was irrelevant to the question of whether defendants acted within the discretion provided by sections 27491.4 and 27491.45. That she disagreed with Dr. Benson's decisions, actions, or conclusions does not mean defendants violated a duty to Picon. In fact, as defendants and amici curiae (the National Association of Medical Examiners and the California Society of Pathologists) point out, if anything Dr. Melinek's declaration actually underscores Dr. Benson's opinion that a specialist should confirm the cause of death. As things stand, we have two forensic pathologists reaching different conclusions on cause of death, so exactly why Nicholas Picon's heart failed remains unresolved.
Ultimately, the disagreement over whether Dr. Benson should have retained the heart (or how much of it he should have retained), and whether he reached the right conclusion on cause of death is irrelevant. Even if we credit Picon's more plausible factual allegationsthat Dr. Benson retained the heart to study it and that he intended to send it to Stanford University for researchdefendants would still be entitled to judgment in their favor. The law did not impose a duty on defendants to obtain Picon's consent unless and until they acted to send the heart to Stanford University for noncoroner purposes.[9]
Finally, if defendants are to blame for anything here, it is poor communication with the Picon family. To that end we note the record shows the coroner's office has now adopted a formal policy with respect to notifying family members of the retention of organs.
*1193 DISPOSITION
Let a peremptory writ of mandate issue directing the trial court to vacate its orders denying defendants' motions for summary judgment. Instead the court shall issue new orders granting those motions. Defendants are entitled to recover their costs for this proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
Ruvolo, P. J., and Sepulveda, J., concurred.
NOTES
[1] All code section references are to the Government Code unless otherwise noted.
[2] Section 27491.4, subdivision (a) provides: "For purposes of inquiry the coroner shall, within 24 hours or as soon as feasible thereafter, where the suspected cause of death is sudden infant death syndrome and, in all other cases, the coroner may, in his or her discretion, take possession of the body, which shall include the authority to exhume the body, order it removed to a convenient place, and make or cause to be made a postmortem examination or autopsy thereon, and make or cause to be made an analysis of the stomach, stomach contents, blood, organs, fluids, or tissues of the body. The detailed medical findings resulting from an inspection of the body or autopsy by an examining physician shall be either reduced to writing or permanently preserved on recording discs or other similar recording media, shall include all positive and negative findings pertinent to establishing the cause of death in accordance with medicolegal practice and this, along with the written opinions and conclusions of the examining physician, shall be included in the coroner's record of the death. The coroner shall have the right to retain only those tissues of the body removed at the time of the autopsy as may, in his or her opinion, be necessary or advisable to the inquiry into the case, or for the verification of his or her findings. No person may be present during the performance of a coroner's autopsy without the express consent of the coroner."
[3] There are specific statutory provisions regarding the removal of the pituitary glands (§ 27491.46) and corneal eye tissue (§ 27491.47). They are not at issue here.
[4] Section 27491.45, subdivision (a)(1) provides: "The coroner shall have the right to retain parts of the body, as defined in subdivision (g) of Section 7150.1 of the Health and Safety Code, removed at the time of autopsy or acquired during a coroner's investigation as may, in the opinion of the coroner, be necessary or advisable for scientific investigation and training. The coroner may employ or use outside laboratories, hospitals, or research institutions in the conduct of the coroner's scientific investigation or training."
Note section 27491.45 does not reflect the Legislature's repeal of Health and Safety Code section 7150.1 when it revised the Uniform Anatomical Gift Act (Health & Saf. Code, § 7150 et seq.) in 2007. (See Stats. 2007, ch. 629, § 1.) The Act's definition of parts of the body now appears in Health and Safety Code section 7150.10, subdivision (a)(18), and includes organs.
[5] Although Picon attaches much significance to Dr. Benson's employment status, she never discusses the legal basis for the county's liability for Dr. Benson's acts. (See § 815.4 [public entity liable for injury proximately caused by tortious act or omission of independent contractor to same extent public entity would be subject to liability if it were a private person].) As a general rule, an employer of an independent contractor is not liable for physical harm caused to another by the contractor. (McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 970 [79 Cal.Rptr.3d 777].) Although there are many exceptions to the general rule (see Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 2:327 et seq., p. 2-95 et seq. (rev. # 1, 2009)), we are left to guess what exception might apply here.
[6] Stedman's Medical Dictionary (27th ed. 2000) at page 1838 provides the following definition of tissue: "A collection of similar cells and the intercellular substances surrounding them." According to that dictionary, there are four basic tissues in the body, including muscle tissue. (Ibid.) "[C]ardiac muscle" is listed under the definition. (Ibid.) The Attorneys' Dictionary of Medicine, however, in defining "tissue," states, "An organ also has a special function, and it may be composed of one kind of tissue, but usually it is composed of several kinds of tissue, and in this respect it differs from a tissue." (6 Schmidt, Attorneys' Dict. of Medicine and Word Finder, p. T-144 (rel. 43-12/2009).)
[7] We hasten to add that although there was evidence the coroner's office utilized the services of Stanford University to determine cause of death, Picon produced no evidence of a conspiracy to funnel body parts to Stanford University for research.
[8] At a time when the law did not expressly provide for the retention of tissues or organs, the Attorney General nevertheless opined: "We therefore conclude that no legal liability attaches to the coroner or autopsy surgeon who, in order to discover the cause of deatha duty imposed upon him by lawremoves tissue and organs and, when reasonably necessary to complete his diagnosis, retains them after the burial of the body." (27 Ops.Cal.Atty.Gen. 46, 49 (1956).)
[9] As we conclude defendants did not owe a duty to Picon, it is unnecessary for us to discuss Dr. Benson's statute of limitations argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265346/ | 657 F.Supp. 280 (1987)
The TRAVELERS INDEMNITY COMPANY, Plaintiff,
v.
Steven BOOKER, et al., Defendants.
Civ. A. No. 84-0981.
United States District Court, District of Columbia.
March 27, 1987.
*281 Lawrence E. Carr, Jr., Margaret H. Warner, Washington, D.C., for plaintiff.
Gerald Freed, Washington, D.C., for defendants.
OPINION
JOYCE HENS GREEN, District Judge.
In this action, plaintiff Travelers Indemnity Company (Travelers) seeks to recover from defendants, a syndicate of insurance underwriters doing business in the Lloyd's of London marketplace, an equitable share of the expenses it incurred in defending and settling claims brought against the law firm of Hogan & Hartson. This case was tried before the court over a two-day period in November, 1986. For the reasons set forth below, the court will enter judgment in favor of defendants.
I
A proper understanding of the legal issues raised in this case requires some familiarity with the legal malpractice claims brought against Hogan & Hartson (H & H) in 1977 by the Securities and Exchange Commission (SEC or the Commission), as well as a primer on the workings of the Lloyd's of London insurance market. In the late 1960's and early 1970's, H & H served simultaneously as personal counsel to international financier Robert L. Vesco and as corporate counsel to Vesco's company, International Controls Corporation (ICC). During the time of this dual representation, Vesco allegedly engaged in a series of international corporate, securities and business frauds, much to the detriment of, among others, ICC. Following an SEC investigation, Vesco fled the United States and ICC went into a receivership under which it was operated essentially by SEC-appointed officials. One of those officials, an SEC attorney named David Butowsky, undertook an investigation of the company's various securities and corporate transactions, as a result of which H & H was *282 advised in 1973 that it might be sued, at the SEC's behest, by ICC for legal malpractice. Over the next four years, Butowsky and the law firm engaged in extensive negotiations in order to resolve the matter out of court, but these proved unsuccessful and in 1977 Butowsky filed three malpractice suits on behalf of the Commission and ICC alleging that H & H had breached its fiduciary duties to ICC while serving as its corporate counsel. Plaintiff undertook the defense of these cases and expended approximately $3.3 million in litigation costs and another $730,000 in its June 1981 settlement of the actions. It recouped approximately $1.2 million of these expenses from an insurance policy covering ICC's directors and officers and, in February 1982, requested that defendants contribute another $1.4 million. Defendants' refusal to do so precipitated this lawsuit.
During the late 1960's and early 1970's H & H purchased legal malpractice insurance from Travelers covering any acts, errors or omissions committed, or alleged to have been committed, by the firm in the United States, Canada, or any U.S. territories. This domestic primary coverage insured H & H up to $1 million for each malpractice claim brought against it, with a $3 million aggregate liability limit. The policy required the firm, upon learning of any act or omission which might give rise to a claim, to give "written notice ... to the company [Travelers] or any of its authorized agents as soon as practicable...." Travelers Policy Number LLB 2070462, Plaintiff's Exhibit 1 (emphasis added). In addition to this coverage, H & H purchased several policies from Lloyd's of London underwriters. The first of these was an excess domestic policy issued by underwriters different from the defendants to this action; this policy covered acts or omissions occurring in the same geographical area as the Travelers domestic policy, and provided protection in the event H & H's liability on a given claim exceeded the liability limits of the primary domestic policy. H & H also obtained an overseas primary policy from the defendants in this case, a group of Lloyd's underwriters known as the R.E. Thomson syndicate, as well as an overseas excess policy from still a third group of Lloyd's underwriters. These policies provided coverage for legal negligence occurring in western Europe, see Travelers Indemnity Co. v. Steven Booker, et al., No. 84-0981 (D.D.C. May 16, 1986) (the "May 16, 1986 Opinion") at 4 [Available on WESTLAW, DCT database], and it is upon the overseas primary policy that plaintiff bases its entitlement to contribution in this case.
At this juncture a short digression into the mechanics of the Lloyd's of London insurance market is appropriate. Contrary to the popular conception, Lloyd's is not a monolithic institution, nor does it operate in the same manner as a corporation in this country. The corporation known as Lloyd's of London provides a physical site for the sales of insurance by underwriters that are members of the corporation, as well as support and incidental services to those members. The corporation itself, however, is not at risk on any of the insurance sold by underwriting members. The purchase and sale of insurance takes place on the floor of the underwriting room at Lloyd's, or in the offices of individual insurance companies in London. Members subscribe to cover all or part of a proposed risk placement at their own election, frequently under the auspices of a syndicate an entity comprised of a group of underwriters ranging in number from two or three to several hundred. The first syndicate to sign a slip of insurance becomes the lead underwriter on the policy. On the overseas primary policy at issue in this lawsuit, the R.E. Thomson syndicate was the lead underwriter.
Persons wishing to purchase insurance from Lloyd's may not do so directly, but must instead act through a broker who has been approved by Lloyd's to place risks with Lloyd's syndicates. Usually an applicant must first contact an outside broker, who will then contact a "Lloyd's broker" to place the insurance through Lloyd's. It is the recognized custom and usage of the London insurance market that the broker is the agent of the insured for most purposes, including the initial placement of the risk. *283 Edinburgh Assurance Co. v. R.L. Burns Corp., 479 F.Supp. 138, 144 (C.D.Cal.1979), aff'd except as to pre-judgment interest, 669 F.2d 1259 (9th Cir.1982). Brokers approach individual underwriters, or underwriting agencies which manage individual syndicates, and submit for consideration a broker's slip which sets out the details of the risk to be placed. The broker negotiates both the insurance terms and the premium rates and, as noted above, the first underwriter to reach an agreement on these terms and to subscribe to the slip becomes the lead underwriter. The underwriter initials the slip and indicates the percentage of the risk to which he is subscribing; the broker then approaches successive underwriters until all of the risk has been placed. Once the Lloyd's broker has succeeded in obtaining subscriptions for 100 percent of the risk, he forwards the completed insurance policy and slip to the Lloyd's Policy Signing Office for approval.
In the event that the insured seeks to recover under the policy, it is the broker's responsibility "to present his client's claim, and present it in the best way possible, to the underwriters." Id. at 146. Claims are submitted, at the direction of the insured, to either the lead underwriter or the Lloyd's Underwriters' Claims Office, a central facility maintained by Lloyd's as a service to members. In either event, the lead underwriter typically handles the claim and the other subscribers follow the decision of the lead underwriter absent a major disagreement. If the underwriters of the policy do not agree to pay on the claim, they present their objections or questions to the broker, who forwards them to the insured for response. If the underwriters agree to accept the claim, they may either pay the broker, who in turn transmits a check to the insured, or Lloyd's may pay the insured directly.
II
At all times relevant to this suit, H & H obtained its insurance coverage from Grayson & Dickinson (G & D), a Washington, D.C. insurance agent. In the early 1970's, H & H dispatched several of its attorneys to Geneva, Switzerland, in order to perform certain work for ICC, and G & D sought overseas malpractice coverage for this work. In 1971, G & D contacted Stewart, Smith Management Corporation (Stewart Smith), an insurance brokerage firm located principally in New York and New Jersey, in order to purchase insurance from Lloyd's. Stewart Smith forwarded H & H's application to Stewart Wrightson, Ltd., a Lloyd's broker with its principal place of business in London. Stewart Wrightson placed H & H's risk through Sedgwick Forbes, the Lloyd's underwriting agency which manages the R.E. Thomson syndicate. As a result, the R.E. Thomson syndicate became the lead underwriter on H & H's policy; Steven Booker, a named defendant in this case, was at all relevant times the Sedgwick Forbes employee who would have had responsibility for processing any H & H claims presented by Stewart Wrightson.
Beginning on September 23, 1971, defendants issued six consecutive Form U (Overseas) Lloyd's Professional Indemnity Policies (Solicitors), the last of which lapsed on September 23, 1977. Each of these primary overseas policies included the following conditions concerning notice of claims:
2. The Assured shall as a condition precedent to their right to be indemnified under this Policy give to the Underwriters immediate notice in writing
(a) of any claim made against them,
(b) of the receipt of notice from any person of an intention to make a claim against them.
3. The Assured shall give to the Underwriters immediate notice in writing of any circumstance, of which they shall become aware during the subsistence hereof, which is likely to give rise to a claim against them. Such notice having been given, any claim to which that circumstance has given rise, which may be made after the expiration of the period specified in the Schedule shall be deemed for the purposes of this Policy to have been made during the subsistence hereof.
*284 (Emphasis added.) By their terms, the policies covered "any negligent act, error or omission, whenever or wherever committed or alleged to have been committed." Cover notes accompanying each policy, which both sides agree modified the terms of the policies, limited the duration of each to one year, and limited the insurance coverage to acts, errors or omissions committed or alleged to have been committed in western Europe. See May 16, 1986 Opinion at 3.
H & H first notified G & D of the possibility that claims might be brought against it in 1973. In a letter of April 9, 1973, H & H's Administrative Director Kenneth Emery advised G & D that the SEC had instituted suit against Robert Vesco and ICC, both of whom the firm had represented, and that the Commission sought to examine the firm's ICC files. The letter stated that while no suit or claim had arisen against H & H, G & D should give appropriate notice to the firm's respective insurers. The letter listed four policies: the Travelers primary domestic policy (number LLB 4604693), an American Home policy (number CE 3334492), an Employer's Reinsurance policy (number M-2036), and the Lloyd's excess domestic policy (number 71/15139/PBB 21431 W). Plaintiff's Exhibit 27. The letter made no reference to either the Lloyd's primary overseas or excess overseas policies. G & D forwarded the letter to Stewart Smith's claims department on April 12, 1973, with a cover note referring to the four policies listed above.[1] Plaintiff's Exhibit 28. Stewart Smith, which had apparently placed H & H's domestic excess policy with Lloyd's, acknowledged receipt of this correspondence on April 18, stating that it had forwarded it to the relevant insurers. The Lloyd's excess domestic policy, unlike the primary overseas policy at issue in this suit, specifically provided that notice of all claims was to be made to Stewart Smith. See Plaintiff's Exhibit 66.
Over the course of the next eight years, until the conclusion of the litigation against H & H, the firm corresponded with Stewart Smith, usually through G & D, and advised it of the status of the SEC investigation and litigation. While plaintiff cites various letters and memoranda mailed to Stewart Smith as evidence that H & H gave adequate notice to defendants of claims arising under the primary overseas policies, none of this correspondence makes any reference to the overseas policies. Of the eight letters and memoranda plaintiff submitted to this court, all but one refer exclusively to the primary and excess domestic policies listed above; the eighth letter does not refer to any specific policy at all. One of these letters, a May 19, 1975 summary of possible claims against H & H, mentions that an international group of creditors was considering suing ICC and H & H over transactions involving a company named IOS, Ltd., and states that some people thought H & H had represented "foreign entities." See Plaintiff's Exhibit 45. The letter does not explain the nature of the IOS transactions, does not admit or deny that H & H represented any foreign companies, and most important, does not indicate that this representation took place anywhere outside the United States, let alone western Europe. Similarly, a November 26, 1975 letter forwarded to Stewart Smith states that one of ICC's principal claims concerned a transaction involving a company known as Empire Financial. See Plaintiff's Exhibit 53. This transaction, however, took place in 1968 and 1969, well before H & H acquired its overseas policies, see Plaintiff's Exhibit 45 at 4, and there is nothing in either the November 26 or May 19 letters indicating the international character of the transaction or where H & H performed the legal work pertaining to it. On December 9, 1975, H & H forwarded a copy of a letter from David Butowsky outlining ten possible claims against H & H. See Plaintiff's Exhibit 54. Again, the international character of these claims is neither apparent on the face of *285 the correspondence, nor does H & H make any effort to highlight it in its letter.[2]
Plaintiff also points to the yearly renewal forms that H & H submitted to Stewart Smith in order to continue the overseas coverage. In each of these forms, H & H was asked whether any claims had been filed against it or were likely to be brought. In its July 24, 1973 renewal form, H & H wrote: "potential claims on record with your underwriters, May and June, 1973 (Arnold G. Pessin and International Controls Corp)." Plaintiff's Exhibit 34. On its 1975 and 1976 forms, H & H answers this question by referring to the correspondence discussed above. See Plaintiff's Exhibits 46 and 55. None of these responses suggest that the ICC claims involved international representation by the firm, nor do they indicate that the claims implicate the overseas policies;[3] indeed, each of the letters referred to in the last two renewal forms expressly cite the domestic policies and make no mention of the overseas coverage.
After the SEC initiated suit, H & H wrote to G & D and Stewart Smith advising them of the suits and enclosing copies of the complaints as well as a 160-page Preliminary Response the firm had prepared following release of Mr. Butowsky's 800-page investigative findings. In its letter of December 5, 1977, H & H for the first and only time did not recite its domestic policy numbers as it had in all previous correspondence; rather, the letter made no reference to any specific policy. The enclosed complaints, like much of the 1973-75 correspondence, refer to transactions involving several foreign corporations, but again do not indicate where H & H's representation took place or whether any of the alleged legal malpractice occurred in western Europe. The first and only references to the firm's work in Europe appear in two sentences in the Preliminary Response. The response states on page 16 that H & H lawyers attempted to research a question of Swiss secrecy law in the United States and, when these efforts proved unsuccessful, "[t]hey then traveled to Europe and discussed [the issue] with two Swiss law firms...." See Plaintiff's Exhibit 62 at 16. The only other mention of H & H's foreign representation appears on page 21: "the only involvement H & H had with the stock sale by Cornfield was that Jeffers [an H & H partner], in Geneva on other matters, was peripherally involved, at most as an observer, in various preliminary discussions and negotiations in Geneva concerning the sale...." Id. at 21 (emphasis supplied). These two passing references, buried in a lengthy report and accompanied by a cover letter that in no way highlighted them, were the only direct statements even suggesting that the claims against H & H might have arisen from acts or omissions occurring in western Europe. The Preliminary Response was mailed, along with the other correspondence, to Stewart Smith.
On January 29, 1982, Michael Dunn, a Travelers claims manager, wrote to the law firm of Mendes & Mount seeking contribution from Lloyd's under the overseas policy. Mendes & Mount had represented a different group of Lloyd's underwriters who had issued certain insurance coverage for ICC's directors and officers; although the firm did not represent the R.E. Thomson group, it forwarded Mr. Dunn's letter to those underwriters in London. Mr. Dunn himself testified at trial that he first learned of ICC's claims against H & H in April 1973 in his capacity as a claims supervisor in plaintiff's Washington, D.C. office, and that he began personally handling the claim in 1974. Despite his extensive involvement *286 with the case, it was not until June 1980 that he first became concerned with H & H's "possible overseas involvement" and first realized that some of the acts giving rise to ICC's claims may have occurred outside the territorial limits of the Traveler's policy. Trial Transcript at 68. These concerns prompted Travelers to inquire of H & H whether the firm had any overseas coverage, and in September 1980, Dunn received a copy of the overseas policy. Travelers, however, took no reservation of rights disclaiming liability for acts or missions occurring outside the United States and Canada, either upon receipt of the overseas policy or at any time prior to settling the SEC litigation; indeed, plaintiff did not even attempt to notify defendants of the litigation until seven months after it had settled the ICC claims and a full seventeen months after it learned of the overseas coverage.
III
It is undisputed that none of the various letters discussed above were sent to defendants in London and that the correspondence referred to in H & H's renewal forms was not "on file" with defendants as H & H suggested. Indeed, no notice of the three lawsuits was given to the R.E. Thomson group, as required by the overseas policy, until February, 1982. Travelers nevertheless claims defendants are liable for contribution of defense and settlement costs on the theory that (1) H & H gave adequate notice of its claims to Stewart Smith, and (2) notice to Stewart Smith constituted notice to defendants as the former served as agent of the latter. As the court cannot accept either of these propositions, judgment must be entered in favor of defendants.
There is, of course, no absolute rule governing whether an insurance broker is an agent of the insurer or insured. Normally, however, brokers are the agents of the person who first employs them, and if, as here, they are employed to procure insurance, they are the agents of the insured. In addition, it is undisputed that under the settled practice and custom of the Lloyd's insurance market, insurance brokers such as Stewart Wrightson act as agents of the insured. Edinburgh Assurance, 479 F.Supp. at 151. Plaintiff asks this court to depart from the general rule and upset the settled expectations of an international insurance market because defendants "artfully concealed their identities from H & H" by providing only Stewart Smith's address on the confirmations of insurance, cover notes, and policies themselves, and because defendants clothed Stewart Smith with apparent authority to act as their agent by empowering it to cancel the policies and to accept premiums and renewal forms. None of these factors, however, converted Stewart Smith into the agent of the R.E. Thomson syndicate.
To begin with, plaintiff does not suggest that H & H's arrangements with their Lloyd's underwriters differ in any material respect from the normal practice in the Lloyd's market. That practice has led at least two courts to conclude that approved Lloyd's brokers are the agents of the insured. See id.; Howard Fuel v. Lloyd's Underwriters, 588 F.Supp. 1103, 1106 n. 7, 1108 (S.D.N.Y.1984) (insurance broker not acting as representative or de facto agent of underwriters); see also Thebes Shipping, Inc. v. Assicurozioni Ausonia SPA, 599 F.Supp. 405, 409 (S.D.N.Y.1984) (Lloyd's broker "usually acts to help with the preparation of the claim and its processing"). Plaintiff has pointed to no special circumstances warranting a different result here. The fact that Stewart Smith issued a confirmation of insurance notifying H & H that it had successfully placed its risks with underwriters in the Lloyd's market is consistent both with an agency relationship between the broker and the insured, and the customary practice of Lloyd's brokers. The confirmation itself states that "acting upon your [H & H's] instructions and for your account we [Stewart Smith] have procured insurance from certain Insurer(s)." Plaintiff's Exhibit 6 (emphasis added); see also Plaintiff's Exhibit 8, Broker's Copy ("We confirm that acting upon your instructions we have effected insurance for your account with underwriters at Lloyd's of London"). It further *287 provides that "[t]his confirmation shall be automatically terminated and voided by delivery of the Cover Note, Certificate of Insurance or Policy to the Assured or its representative" and that it is governed and subject to all the terms of the cover note, certificate of insurance or policy. Plaintiff's Exhibit 6. Neither the confirmation nor the cover note indicate that brokers may bind underwriters by their actions. On the contrary:
In order for an insured to have some evidence of the insurance placed during the period after the slip is completed but before the policy is issued, brokers may furnish the insured with a cover note memorializing the fact of insurance. Brokers consider the cover note a contract between them and the insured indicating that they have placed the insurance.
Edinburgh Assurance, 479 F.Supp. at 146 (emphasis added).
Similarly the fact that these two documents state that the underwriters and the insured can cancel the policy by giving notice of cancellation to Stewart Smith hardly renders that broker an agent of the underwriters. As the confirmation and cover note state, Stewart Smith is simply an "intermediary" in such a situation, not an authorized agent of the underwriters for all purposes. Nor is it surprising that Lloyd's would provide brokers with renewal forms or direct that premiums be paid to brokers; Lloyd's is an international market and, for the convenience of those its underwriters insure, it permits insureds to deal with brokers to transact routine, ministerial business. The handling of such routine matters is certainly not a special circumstance sufficient to make Stewart Smith an agent of the R.E. Thomson syndicate. Finally, plaintiff makes much of the fact that while the overseas policy requires that notice be given to the underwriters, it does not identify the relevant insurers or give their addresses. The simple fact remains, however, that H & H managed, without benefit of names or addresses, to secure the policy; if it wished to notify the underwriters of any claims under that policy it could have done so in precisely the same manner: by directing Stewart Smith to make appropriate contact with the insurers.
The reason that H & H did not direct Stewart Smith to file any claims or give appropriate notice is quite simple: H & H did not intend to give notice under the overseas policy because it did not believe the policy applied. Dorothea Bell Yates, G & D's office manager until 1979, testified at a deposition that H & H, in filing its claims under the domestic policies, never mentioned its overseas policy and that G & D would not have given Stewart Smith notice of any claims under that policy unless it believed suits would be filed against H & H in European courts. Trial Transcript at 289-90. Similarly, Michael Dunn testified that when he first learned of the overseas policy in 1980, he discussed its coverage with an H & H partner who advised him that it applied only to claims made against the firm in the courts of Europe. Id. at 93. And Robert Jeffers, the H & H partner whose "peripheral" involvement as an observer to loan negotiations in Switzerland presumably gave rise to at least some of the overseas claims, conceded at trial that the SEC's complaint contained nothing indicating that any of the allegedly negligent acts occurred in Switzerland. Id. at 57.
Plaintiff is correct in arguing that H & H's intent is irrelevant to the question of whether the firm gave adequate notice of its claimsjust as an intent to notify does not compensate for the deficiencies of inadequate notice, a lack of intent would not violate otherwise valid notice. The fact that H & H did not intend to file any claims with defendants, however, explains why a sophisticated law firm and its experienced insurance agent never once mentioned the overseas policy while they diligently apprised the domestic insurers of every development of the SEC investigation and litigation. It also explains why plaintiff has been forced to argue both that Stewart Smith acted as defendants' agent, and that the occasional mention of international companies in correspondence spanning eight years constituted notice to defendants. The court's conclusion that Stewart *288 Smith was not an agent of the R.E. Thomson syndicate is sufficient to dispose of plaintiff's contentions and this case. Even if Stewart Smith were defendants' agent, however, a review of the correspondence and renewal forms forwarded to that broker makes clear that H & H never gave notice that the SEC's claims against it arose, even in part, from errors or omissions that occurred in western Europe. References in H & H's correspondence to international companies that conducted business with ICC in no way suggest that any alleged malpractice took place abroad; countless U.S. law firms perform legal work in this country for clients that engage in foreign trade. Similarly, the copies of the SEC complaints mailed to Stewart Smith would not suggest to even a trained reader that the challenged legal representation occurred in Europe. The court's own review of those complaints confirms what Mr. Jeffers acknowledged at trial: nothing in the documents indicates that any of the errors or omissions were committed anywhere other than the United States, where H & H maintained its only office. Indeed, plaintiff's own handling of the claims demonstrates that the possibility of foreign exposure was simply not disclosed by H & H's correspondence. Mr. Dunn first learned of the claim in 1973 and personally processed it from 1974 on, yet despite his extensive involvement with the case it did not even occur to him that the claims may have arisen abroad until 1980 seven years after H & H filed its first notice under its domestic policy. Travelers was well aware of its policy's limits and in fact took a reservation of rights as to any intentional acts, fraud or deceit, as the policy did not cover such conduct; yet the company never reserved its rights so as to disclaim liability for any foreign negligence. Trial Transcript at 200-01. The logical and obvious explanation for this failure is that Travelers did not believe, based on the documentation H & H provided, that the SEC claims involved negligence that took place abroad. Plaintiff nevertheless asks this court to rule that the very same documentation which failed to alert G & D and Travelers' own claims managers to the possibility of H & H's foreign negligence documentation which, not insignificantly, explicitly referred to all of H & H's domestic insurance policies yet never once mentioned its overseas coverageserved to put Stewart Smith on notice that H & H's negligence occurred in western Europe and that H & H sought to submit a claim under its overseas policy. The court simply cannot accept such a proposition. The only direct reference to any legal work H & H performed for ICC outside of the United States appears in two sentences in a 160-page report, which was mailed to Stewart Smith, along with three voluminous complaints, in December, 1977. The accompanying cover letter makes absolutely no mention of this foreign representation, and the two sentences themselves make clear the extremely limited nature of this work: several associates flew to Switzerland to discuss Swiss secrecy law, and one partner "observed" a loan negotiation in Geneva. These two sentences sat for years in plaintiff's claims file without sounding any warning signals to Travelers that the SEC litigation encompassed foreign malpractice; there is no reason to believe they rang any louder in Stewart Smith's files. The court concludes, therefore, that H & H did not give notice to Stewart Smith of any claim arising under the overseas policy.
Accordingly, it is this 27th day of March, 1987,
ORDERED that judgment be and it hereby is entered in favor of defendants Steven Booker, The General Insurance Company of Trieste and Venice, Excess Insurance Company, and Certain Underwriters at Lloyd's, London, and against plaintiff, The Travelers Indemnity Company.
NOTES
[1] The cover note referred to the Lloyd's policy as "No. L XX-XX-XX-XX." This number is a cross-reference to the Lloyd's excess domestic policy, not to either the primary or excess overseas policies. See Defendants' Exhibit I.
[2] In the May 16, 1986 Order, the court mentioned in a summary of the facts of this case that "[s]everal of these letters [from H & H to Stewart Smith] referred to certain international and European transactions in which H & H represented ICC." May 16, 1986 Order at 3. This characterization of the letters, offered by way of short-hand, in no way represented a finding as to the adequacy of H & H's notice, as the court made clear elsewhere. See id. at 8-9 ("The adequacy of these letters as notice to defendants ... is open to dispute").
[3] The renewal form questions concerning pending or possible claims were not limited solely to claims under the overseas policy, but rather sought information concerning any claim brought during the previous five years or any circumstance which might result in future claims. See, e.g., Plaintiff's Exhibit 34. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265349/ | 657 F.Supp. 815 (1987)
Rickey BELL, Plaintiff,
v.
Michael P. LANE, et al., Defendants.
No. 87 C 1702.
United States District Court, N.D. Illinois, E.D.
March 18, 1987.
*816 Rickey Bell, pro se.
MEMORANDUM OPINION AND ORDER
SHADUR, District Judge.
Rickey Bell ("Bell") has tendered a pro se Complaint under 42 U.S.C. § 1983 against ten defendants affiliated in various capacities with the Illinois Department of Corrections ("Department"), seeking:
1. leave to file the Complaint in forma pauperis and
2. appointment of counsel.
Because the Complaint is "frivolous" in the legal sense defined by Wartman v. Milwaukee County Court, 510 F.2d 130, 134 (7th Cir.1975) and Jones v. Morris, 777 F.2d 1277, 1279 (7th Cir.1985), leave to file in forma pauperis is denied (thus rendering moot the prayer for appointment of counsel).
Bell asserts several alleged constitutional deprivations arising during his current confinement at Stateville Correctional Center ("Stateville"). None requires extended discussion.
All Bell's claims stem from the assertion that correctional officer Kevin Wiggins ("Wiggins") issued false disciplinary reports ("DRs") against Bell in retaliation for Bell's remark that a woman known to both of them was a prostitute (Complaint ¶¶ 12, 27). But an allegation of false DRs "fails to state a claim for which relief can be granted where the procedural due process protections required in Wolff v. McDonnell [, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)] are provided." Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir.1984). Here Bell received all the process due him.
Adjustment Committee Decisions
Bell challenges the sufficiency of the evidence supporting findings of guilt by the Stateville Adjustment Committee ("Committee") on Wiggins' DRs of June 18, 1985, February 24, 1986, March 16, 1986 and April 7, 1986. Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774-75, 86 L.Ed.2d 356 (1985) (citations omitted) articulated the standard for determining whether the quantum of evidence relied upon by a prison disciplinary board satisfies due process:
We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits.... Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.... The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.
In each of the four instances there was clearly "some evidence" "some basis in fact" to support the Committee's findings of guilt:
1. June 18, 1985: On this occasion the Committee found Bell guilty of two of the offenses charged, based upon Wiggins' positive identification of Bell as the offender (Complaint Exs. A and B).
2. February 24, 1986: Based upon information given by staff that Bell "was not on the list for a runner for Adult Ed," the Committee found Bell guilty of violating rules by having an invalid pass (Complaint Exs. D and E).
3. March 16, 1986: Here the Committee found Bell guilty of the offenses charged, based upon his admission of guilt (Complaint Exs. H and H-II).
4. April 7, 1986: In this instance the Committee found Bell guilty of three of the offenses charged, again based upon his admission of guilt (Complaint Exs. H-III and H-IV).
Thus Bell's own exhibits show the quantum of evidence supporting each decision is sufficient *817 under Hill, and the Committee summaries adequately specify the evidence underlying the decisions. See Redding v. Fairman, 717 F.2d 1105, 1115-16 (7th Cir. 1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984). Because each DR thus had an independent factual basis, this Court is not required to accept as "well pleaded" Bell's charge in his Complaint that the DRs constituted harassment. See Willis v. Ciccone, 506 F.2d 1011, 1019 (8th Cir.1974). Finally, though Complaint ¶ 34 asserts Wiggins issued ten false DRs, Bell alleges no facts and provides no exhibits to demonstrate any alleged deprivation of his due process rights in connection with any DR other than the four already discussed.
Deprivation of Hearing Rights
Bell asserts the Committee's failure to call correctional officer L. Finchem ("Finchem") at the hearing on the June 18, 1985 DR abridged Bell's right to due process, for "[o]rdinarily, the right to present evidence is basic to a fair hearing." Wolff, 418 U.S. at 566, 94 S.Ct. at 2979. Prison officials do have the discretion to deny an inmate's request for witnesses to protect institutional safety or to keep the length of the hearing within reasonable limits (id.) but "some support for the denial of a request for witnesses" must appear in the administrative record (Hayes v. Walker, 555 F.2d 625, 630 (7th Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977)), to enable the court to "determine whether the broad discretion of prison officials was exercised arbitrarily." Redding, 717 F.2d at 1114.
Complaint ¶ 13 alleges Bell appeared before the Committee June 24, 1985, and the hearing was continued until the Committee could locate Finchem (who was no longer employed at Stateville). Then when the Committee reconvened the hearing July 22 (Bell says July 25, but the hearing document (Complaint Ex. B) shows July 22) it found Bell guilty. Though Bell's grievance of the Committee's decision (Complaint Ex. B-II) says he was told "Finchem could not be contacted due to illness," that allegation is belied by the Committee's summary (Complaint Ex. B), which showed Finchem was called as a witness and gave his account of the incident. That was also the determination of Department's Administrative Review Board (Complaint Ex. C).
Thus the record tendered by Bell fails to support his claim. Where exhibits attached to a complaint negate its allegations, a court is not required to credit the unsupported allegations.
Failure To Respond to Grievances
Finally, Bell seeks to hold Departmental officials liable for the alleged failure of Department's Institutional Inquiry Board to respond to his grievances concerning the Committee's rulings. That claim is also without merit, for the Fourteenth Amendment does not require administrative review of prison disciplinary actions. Woodall v. Partilla, 581 F.Supp. 1066, 1076 (N.D.Ill.1984).
Conclusion
None of Bell's charges rises to the level of a constitutional deprivation. Accordingly he is not entitled to pursue his claims in forma pauperis under the standards set by Wartman and Jones. Leave to file in forma pauperis is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265351/ | 185 Cal.App.4th 182 (2010)
110 Cal. Rptr. 3d 232
SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
MARCUS W., a Minor, etc., et al., Defendants and Appellants.
No. C060965.
Court of Appeals of California, Third District.
June 2, 2010.
*184 Law Offices of Anthony V. Smith, Anthony V. Smith; Doris Bostick Law Office and Doris F. Bostick for Defendants and Appellants.
David Wooten, County Counsel, Ted Towle and Janine Molgaard, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SCOTLAND, P. J.
Marcus W. (the minor) has sickle cell anemia and was 16 years old when he was ordered by the juvenile court to undergo periodic blood transfusions to prevent him from suffering a third stroke and possibly death. The minor, one of Jehovah's Witnesses, opposed the transfusions as contrary to his religious beliefs.
On appeal, the minor argues the order must be reversed because the application did not "set forth the legal basis for its request for a one-year court order compelling [the minor] to undergo blood transfusions." In any event, the minor contends the juvenile court erred in not "recogniz[ing] that mature adolescents may possess the competency and the capacity to make their own medical decisions in exercise of their right of bodily self-determination" (known in some jurisdictions as the "mature minor doctrine") and in depriving the minor of the opportunity to cross-examine a medical witness and to call and examine his own medical witness and his minister.
We conclude the juvenile court lacked jurisdiction to issue the order because the requirements of Welfare and Institutions Code section 369 were not met. (Further section references are to this code unless otherwise specified.) Thus, we need not address the minor's other claims of error.
(1) As we will explain, section 369 provides the juvenile court with jurisdiction to order the performance of necessary medical care for a minor only when (1) the minor has been taken into temporary custody pursuant to *185 section 305, or is a dependent of the court pursuant to section 300, or is named in a petition filed to declare the minor a dependent of the court, (2) a licensed health care professional recommends that the minor needs medical, surgical, dental, or other remedial care, and (3) the minor's parent, guardian, or person standing in loco parentis is unwilling or incapable of authorizing such care.
Here, the minor had not been taken into temporary custody pursuant to section 305, the San Joaquin County Human Services Agency (the Agency) had not filed a section 300 petition to declare the minor a dependent child of the court, and the minor had not already been adjudicated a dependent child of the court. Thus, the juvenile court did not have jurisdiction to order the minor to undergo blood transfusions against his will and over the objection of his parents.
BACKGROUND
On October 21, 2008, the Agency filed an ex parte application with the juvenile court, seeking permission for the minor's treating physician to "administer blood transfusions to [the minor] without parental consent as medically necessary until OCTOBER 1, 2009," at which time "the treating physician must provide an update concerning [the minor's] need for further transfusions," and in the meantime, "should any bloodless treatment alternatives become available that would meet the minor's needs," the minor's father and the Jehovah's Witness Hospital Liaison Committee would be "promptly notified and the alternatives utilized with the father's consent."
Attached to the application was a letter from the minor's treating physician, Dr. Keith C. Quirolo, asking for a court order to continue blood transfusions treatment. Dr. Quirolo's letter stated the following: The minor "has sickle cell anemia" and has suffered "two strokes and has developed moya moya disease due to the cerebral ischemia that was caused by the strokes." "[C]hronic blood transfusion" is the "only definitive therapy for stroke in sickle cell disease"; however, because the minor and his parents expressed opposition to blood transfusions based on their religious beliefs, Dr. Quirolo attempted "alternative medical therapies," such as hydroxyurea and decitabine. Neither drug increased the minor's level of hemoglobin F enough to prevent strokes. Indeed, the minor suffered a stroke while taking hydroxyurea and had to be returned to blood transfusion treatment. Following three months of decitabine treatment, without sufficient increase in hemoglobin F levels, Dr. Quirolo concluded that returning to blood transfusion treatment was the only definitive means of preventing another stroke and possibly death. Dr. Quirolo stressed: "I am not willing to wait for him to have another event while I, and the family, are waiting for this medication to increase his hemoglobin F."
*186 The minor and his parents filed opposition to the application, requested an evidentiary hearing to determine whether the minor is a "mature minor possessing the competency and the responsibility to make his own medical decisions," and asked the juvenile court to dismiss the application "on the basis that [the minor] is a mature minor with the capacity of giving informed consent."
Counsel for the Agency responded that, while some states have recognized a mature minor doctrine, allowing sufficiently mature minors to make their own medical decisions, such a doctrine "has not been recognized in California." Indeed, argued county counsel, the fact the Legislature has enacted specific statutes allowing certain minors to make their own medical decisionse.g., emancipated minors (see Fam. Code, § 7050, subd. (e)) and minors seeking medical care related to sexually transmitted diseases, treatment of drug or alcohol abuse, and mental health care (see Fam. Code, § 6926)indicates "the failure to enact a broad `mature minor' statute is not an oversight, but rather an intentional limit on the rights of minors to make their own health care decisions." Accordingly, county counsel asserted, "until such time as [the minor] reaches the age of full and legal discretion, the court [should] exercise its interest as parens patriae, to [e]nsure that [he] gets appropriate treatment."
At the hearing on the application, the minor's attorney conceded "California does not have a mature minor doctrine," but disagreed with county counsel's assessment that the specific statutes allowing certain minors to make their own medical decisions in certain situations indicated the Legislature intended to preclude the courts from straying outside the confines of these provisions in recognition of a broader mature minor doctrine. In the alternative, the minor's attorney argued that the juvenile court should hear from the minor, "as [a] due process measure," to allow him to express his feelings concerning the blood transfusions.
Without ruling on whether the mature minor doctrine is viable in California, the juvenile court decided to hold a short hearing to hear from the minor and his parents.[1] Both the minor and his father testified that the minor began blood transfusion treatment following his first stroke at the age of four. As the father elaborated, monthly blood transfusions were ordered by the court because the minor's father and mother, as Jehovah's Witnesses, would not consent to the treatment. According to the father, the minor initially opposed the blood transfusions simply to go along with his parents' wishes. However, by the age of seven, when the minor became more active in the congregation and "[h]is comprehension of bible education started to get a little bit better," he was more able to make an independent decision concerning blood transfusions.
*187 The minor testified that he was a junior in high school with above-average grades. He explained it was his choice to become one of Jehovah's Witnesses, and he opposed the blood transfusions because "it states in the bible how our God, Jehovah, how he doesn't want us to take blood." He expressed an understanding of sickle cell anemia and the potentially dire consequences of refusing blood transfusion treatment, i.e., the risk of another stroke and death. Nevertheless, he felt it was important to come to court to oppose the blood transfusions in order to demonstrate to Jehovah that he was not disobeying his God.
The juvenile court granted the application and signed the order permitting Dr. Quirolo to resume blood transfusion treatment as medically necessary until October 1, 2009.[2] As the court explained, it was concerned that the minor's decision to refuse blood transfusion treatment was not entirely independent based on the fact he "has been making a decision that he doesn't want blood since he was about seven years old."
The minor's attorney filed a request for rehearing, arguing for the first time that the ex parte application "failed to set forth the legal basis for its request for a one-year court order compelling [the minor] to undergo blood transfusions that are abhorrent to his religious sensibilities"; the minor was "denied the right to confront and cross-examine Dr. Keith C. Quirolo"; and the minor was "denied the opportunity to present medical evidence as to his illness and as to his maturity and decision-making capacity," through the testimony of Dr. Elliott D. Vichinsky and the minor's minister, Francis W. Dapaah.
The request for rehearing was denied, with the juvenile court explaining the issues raised in the request for rehearing were not raised at the hearing on the ex parte application. The minor filed a timely notice of appeal.
DISCUSSION
Although the minor did not raise the issue in the trial court or on appeal, we requested supplemental briefing on whether the juvenile court had jurisdiction to issue an order compelling the minor to undergo blood transfusions.
(2) The lack of fundamental jurisdiction is not subject to the forfeiture doctrine, which ordinarily precludes an appellant from raising on appeal an *188 issue that he or she did not raise in the trial court. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1427 [72 Cal.Rptr.3d 340].)
(3) Section 369 sets forth the procedure to obtain a court order authorizing the performance of necessary medical, surgical, dental, and other remedial care in certain situations involving minors. It states in pertinent part:
"(a) Whenever any person is taken into temporary custody under Article 7 (commencing with Section 305) and is in need of medical, surgical, dental, or other remedial care, the social worker may, upon the recommendation of the attending physician and surgeon or, if the person needs dental care and there is an attending dentist, the attending dentist, authorize the performance of the medical, surgical, dental, or other remedial care. The social worker shall notify the parent, guardian, or person standing in loco parentis of the person, if any, of the care found to be needed before that care is provided, and if the parent, guardian, or person standing in loco parentis objects, that care shall be given only upon order of the court in the exercise of its discretion.
"(b) Whenever it appears to the juvenile court that any person concerning whom a petition has been filed with the court is in need of medical, surgical, dental, or other remedial care, and that there is no parent, guardian, or person standing in loco parentis capable of authorizing or willing to authorize the remedial care or treatment for that person, the court, upon the written recommendation of a licensed physician and surgeon or, if the person needs dental care, a licensed dentist, and after due notice to the parent, guardian, or person standing in loco parentis, if any, may make an order authorizing the performance of the necessary medical, surgical, dental, or other remedial care for that person.
"(c) Whenever a dependent child of the juvenile court is placed by order of the court within the care and custody or under the supervision of a social worker of the county in which the dependent child resides and it appears to the court that there is no parent, guardian, or person standing in loco parentis capable of authorizing or willing to authorize medical, surgical, dental, or other remedial care or treatment for the dependent child, the court may, after due notice to the parent, guardian, or person standing in loco parentis, if any, order that the social worker may authorize the medical, surgical, dental, or other remedial care for the dependent child, by licensed practitioners, as may from time to time appear necessary.
*189 "(d) Whenever it appears that a child otherwise within subdivision (a), (b), or (c) requires immediate emergency medical, surgical, or other remedial care in an emergency situation, that care may be provided by a licensed physician and surgeon or, if the child needs dental care in an emergency situation, by a licensed dentist, without a court order and upon authorization of a social worker. The social worker shall make reasonable efforts to obtain the consent of, or to notify, the parent, guardian, or person standing in loco parentis prior to authorizing emergency medical, surgical, dental, or other remedial care. `Emergency situation,' for the purposes of this subdivision means a child requires immediate treatment for the alleviation of severe pain or an immediate diagnosis and treatment of an unforeseeable medical, surgical, dental, or other remedial condition or contagious disease which if not immediately diagnosed and treated, would lead to serious disability or death."
The parties, in their response to our request for supplemental briefing, agree that section 369 does not apply in this case.
The minor was not taken into temporary custody pursuant to section 305, which authorizes a peace officer, without a warrant, to take a minor into temporary custody when there is reasonable cause to believe the minor comes within the jurisdiction of the juvenile court pursuant to section 300,[3] and the *190 minor has an immediate need for medical care, or is in immediate danger of physical or sexual abuse, or the physical environment or fact the minor has been left unattended poses an immediate threat to the minor's health or safety. Thus, subdivision (a) of section 369 does not apply.
A juvenile dependency petition had not been filed to obtain jurisdiction over the minor pursuant to section 300. Consequently, subdivision (b) of section 369 does not apply. (J.N. v. Superior Court, supra, 156 Cal.App.4th at p. 532.)
The minor had not been declared a dependent child of the court. Therefore, subdivision (c) of section 369 does not apply.
For the reasons stated above, the minor did not fall within the provisions of subdivisions (a), (b), or (c) of section 369 and, in any event, the Agency concedes that an "`emergency situation,'" as defined by the statute, did not exist. Hence, subdivision (d) of section 369 does not apply.
(4) In sum, the juvenile court lacked jurisdiction to act pursuant to section 369 because the statutory requirements had not been met due to the Agency's failure to file a juvenile dependency petition pursuant to section 300, subdivision (b), asserting the minor was at substantial risk of suffering serious physical harm as a result of his parents' refusal, for religious reasons, to provide him with necessary medical treatment.
Nevertheless, the Agency claims "there is other statutory authority for the Superior Court to make an order for medical care." In its view, the court had jurisdiction to issue a writ of mandate pursuant to section 1085 of the Code of Civil Procedure to compel the minor's parents to fulfill their "duty of trust and a station in society which statutorily requires them to provide for their *191 children." This duty, the Agency argues, is derived from Penal Code section 270, which makes it a crime for "a parent of a minor child" to "willfully omit[], without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child," and is also derived from Penal Code section 273a, which makes it a crime for a person, "under circumstances or conditions likely to produce great bodily harm or death," to "willfully cause[] or permit[] any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering," or for a person who has the care and custody of a child to "willfully cause[] or permit[] the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered" (Pen. Code, § 273a, subd. (a)).[4]
(5) We need not decide whether those statutes would authorize the issuance of a writ of mandate, as the Agency contends. We simply point out that a writ of mandate "will not issue if there is a plain, speedy and adequate remedy in the ordinary course of law" (City of Oakland v. Superior Court (1996) 45 Cal.App.4th 740, 750 [53 Cal.Rptr.2d 120]; see Code Civ. Proc., § 1086) and that section 369 sets forth a plain, speedy, and adequate remedy for the Agency to obtain a court order compelling the minor to undergo periodic blood transfusions to prevent him from suffering a third stroke and possibly death.
As a prerequisite to seeking the order pursuant to section 369, the Agency simply had to file a dependency petition alleging that the minor came within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b). (See In re Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170 [265 Cal.Rptr. 342] [upholding juvenile court jurisdiction where a minor's parents treated her for serious burns with only an "herbal treatment" that even they recognized "had been completely ineffective" and "despite the doctor's statements about the risk of infection"]; see also In re Eric B. (1987) 189 Cal.App.3d 996, 1000, 1004-1006 [235 Cal.Rptr. 22] [upholding continuation of the minor's dependency where the minor's parents refused chemotherapy and radiation treatment despite the doctor's concern that surgical removal of the minor's left eye had not completely removed the cancer].)[5]
*192 The Agency makes the policy argument that the filing of a section 300, subdivision (b) petition should be excused because such a petition "with its stigma of parental abuse or neglect [has been] found to be offensive to the parents of Jehovah's Witness children and even to the medical professionals seeking the order for the transfusion," and has caused "additional emotional trauma during a time of stress for the family." The Agency states that, in the "early 1990s," the Hospital Liaison Committee for Jehovah's Witnesses in Stockton asked for implementation of a "system by which medical professionals seeking authorization for a court order for blood transfusions could obtain an order without a § 300 petition being filed, but while still providing. . . full due process of a hearing before the Judge who would make the order." After "consultation with the Juvenile Court, [such] a system was created" and was later used in this case.
The problem is that, although well intended, the "system" created in San Joaquin County does not comply with the statutory scheme and results in a juvenile court acting without subject matter jurisdiction.
(6) Simply put, absent a constitutional flaw in a statutory scheme, courts do not have the power to excuse failure to follow a process mandated by the Legislature. In other words, the policy argument advanced by the Agency is one that should be made to the Legislature not to a court. (In re Brent F. (2005) 130 Cal.App.4th 1124, 1130 [30 Cal.Rptr.3d 833]; Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, 1334 [275 Cal.Rptr. 302]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 334 [265 Cal.Rptr. 788].)
The Legislature has established a procedure by which the jurisdiction of the juvenile court may be invoked to authorize necessary medical care for minors whose parents are unwilling, for religious reasons or otherwise, to provide such care. Here, because the Agency failed to follow the requisite procedure, the juvenile court lacked the power to issue the order for periodic blood transfusions in this case. Thus, the order is invalid.
*193 DISPOSITION
The order compelling the minor to undergo periodic blood transfusions is reversed.
Sims, J., and Hull, J., concurred.
NOTES
[1] The juvenile court did not want to hear from Dr. Quirolo because it had already "heard from him in terms of the [minor's medical] needs and type of treatment that he's doing."
[2] Although the expiration of the appealed order on October 1, 2009, technically renders the issues raised in this appeal moot, the case "poses issues of broad public interest that are likely to recur." (J.N. v. Superior Court (2007) 156 Cal.App.4th 523, 530, fn. 4 [67 Cal.Rptr.3d 384].) We therefore exercise our inherent discretion to resolve these issues. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 199 [31 Cal.Rptr.2d 506].)
[3] Section 300 states the juvenile court may adjudicate a minor to be a dependent child of the court if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian" (id., subd. (a)); "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse" (id., subd. (b)); "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care" (id., subd. (c)); "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse" (id., subd. (d)); "[t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child" (id., subd. (e)); "[t]he child's parent or guardian caused the death of another child through abuse or neglect" (id., subd. (f)); "[t]he child has been left without any provision for support; physical custody of the child has been voluntarily surrendered pursuant to Section 1255.7 of the Health and Safety Code and the child has not been reclaimed within the 14-day period specified in . . . that section; the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful" (id., subd. (g)); "[t]he child has been freed for adoption by one or both parents for 12 months by either relinquishment or termination of parental rights or an adoption petition has not been granted" (id., subd. (h)); "[t]he child has been subjected to an act or acts of cruelty by the parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from an act or acts of cruelty when the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty" (id., subd. (i)); or "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions" (id., subd. (j)).
[4] Although the Agency miscites this statute as Penal Code section 273, it is apparent from the Agency's argument (and the fact Penal Code section 273 makes it a crime to pay or receive money or any other thing of value for the placement of, or consent to, a child for adoption) that the Agency is relying on Penal Code section 273a, not 273.
[5] Contrary to the Agency's argument, Dority v. Superior Court (1983) 145 Cal.App.3d 273 [193 Cal.Rptr. 288] (hereafter Dority) does not support its position. There, an infant child was admitted to an emergency room, placed on a respirator, and later declared to be brain dead. (Id. at p. 275.) Based on evidence that the parents might have been responsible for the infant's injuries and undisputed testimony that the infant was in fact brain dead, the trial court granted a petition to appoint a guardian pursuant to Probate Code section 2100 et seq., and directed the guardian to authorize removal of the respirator. (145 Cal.App.3d at p. 276.) The appellate court denied the parents' writ petition seeking to prohibit removal of the respirator. "Where important decisions remain to be made about the child, and where the parents have demonstrated an inability to act in the best interest of the child, it is proper to appoint a guardian to make the necessary decisions." (Id. at pp. 276, 278-280.) However, the court noted "Welfare and Institutions Code section 300 et seq. would seem to provide a more appropriate vehicle for expeditiously resolving these problems." (Id. at p. 278, fn. 3.) Dority has no application to this case, which did not involve a request for the appointment of a guardian. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265352/ | 657 F.Supp. 319 (1987)
Wilbert J. SHEETS
v.
YAMAHA MOTORS CORPORATION, U.S.A.
Civ. A. No. 82-4402.
United States District Court, E.D. Louisiana.
March 31, 1987.
*320 Russ M. Herman and Steven J. Dane, Herman, Herman & Katz, New Orleans, for plaintiff.
Donald Ensenat and David F. Bienvenu, Camp, Carmouche, Palmer, Barsh & Hunter, New Orleans, for defendant.
OPINION
CHARLES SCHWARTZ, Jr., District Judge.
This matter came before the Court for non-jury trial in two stages, the first heard August 25-26, 1986 and recessed for further briefing and discovery, and the second heard December 29, 1986. Having considered the evidence, the parties' numerous memoranda and the applicable law, the Court rules as follows. To the extent any of the following findings of fact constitute conclusions of law, they shall be adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they shall be so adopted.
Procedural Background
Plaintiff filed this suit on October 5, 1982 against Yamaha Motor Corp. U.S.A. ["Yamaha U.S."], alleging defendant misappropriated an air snorkel device allegedly invented by plaintiff.[1] On April 6, 1984, plaintiff joined Yamaha U.S.' Japanese parent, Yamaha Motor Company ["Yamaha Japan"], which unbeknownst to plaintiff obtained a patent for the device during the pendency of this litigation.
Initially, the Court heard evidence pertinent to plaintiff's state law claims for misappropriation of trade secret under Louisiana statutory law and unjust enrichment under general civil law, following which the Court took under submission defendants' motion for involuntary dismissal of those claims. However, as will be explained more fully below, the evidence raised serious questions regarding defendants' conduct during pretrial discovery, and the Court recessed the trial, ordering production of certain documents by defendants. The Court also ordered further briefing of plaintiff's claims and on the question whether sanctions should be assessed against the defendants under Rules 11, 26(g) and 37 of the Federal Rules of Civil Procedure. Following submission of the materials in question, the Court reconvened trial to receive evidence pertinent to plaintiff's claims that defendants' patent over the air snorkel device was invalid and for *321 attorney's fees and costs incurred due to defendants' improper conduct during pretrial discovery.
As will be discussed more fully below, defendants' motion for involuntary dismissal is hereby granted, and plaintiff's state law claims for misappropriation of trade secret and for unjust enrichment are hereby dismissed with prejudice. The Court does not reach the question of the validity of the patent, in view of the foregoing conclusions and certain stipulations reached by the parties. The Court also finds appropriate imposition of sanctions against the defendants.
Findings of Fact
Plaintiff is a Louisiana resident. Defendant Yamaha Japan, is a Japanese corporation with its principal place of business in Itawa, Japan; it manufactures Yamaha motor products. Defendant Yamaha U.S. is its American distributor, incorporated and having its principal place of business in California.
Sometime prior to March 18, 1976, plaintiff's sons Wayne and Thomas Sheets established a motorcycle sales proprietorship in Gonzales, Lousiana, named Cycle Country U.S.A., which they operated with advice and assistance from their father. Plaintiff had no ownership interest in the proprietorship, but rather acted as trouble shooter for his sons, working around the shop as more of a hobby than anything else. All three were also interested in recreational tri-motorcycle racing, in which plaintiff's sons competed, and the Court finds plaintiff and his sons worked on tri-motorcycles as an adjunct to their interest in racing, all of which activities were in the nature of a hobby.
On or about March 18, 1976, Cycle Country became an authorized dealer for Yamaha products. Among the Yamaha vehicles sold by Cycle Country were Yamaha tri-motorcycles ["tri-motos"], which plaintiff's sons also used for racing. Shortly after Cycle Country received its first shipment of Yamaha tri-motos, series 125, plaintiff and his sons became aware through customer complaints and their own experiences that the tri-motos were stalling out or "drowning" in water and on mud and other rough terrain, due to a defect in the air intake system, even though the vehicles were supposed to be operable under such conditions.
The specific nature of the defect was the placement of the air intake at the back of the machine between the two rear wheels, so that water and dust or other foreign matter would splatter up and be drawn into the carburetor, causing the vehicle to stall. To resolve this problem, plaintiff closed off the rear air intake and devised an air snorkel to bring in air through the front of the vehicle at a higher level, under the seat cover, and then filter the air. Following additional relatively minor refinements to the device, this adjustment effectively resolved the stalling problems experienced by plaintiff's sons and Cycle Country customers, and the device was installed in Cycle Country's demonstrator model and other tri-motos used recreationally by some of plaintiff's relatives and friends.[2]
Based upon the trial testimony of plaintiff's sons and two purchasers of tri-motos containing the plaintiff's device, Eugene Barber and Glen Moran, the Court finds plaintiff himself took no precautions calculated to preserve the secrecy of the device, to reserve to himself any economic or other benefit from his device or to prevent its use by others. Rather, the Court finds only limited secrecy was maintained with respect to the device, kept by tacit agreement among plaintiff's sons and their friends to protect a perceived racing advantage.
Plaintiff's son Thomas Sheets further testified and plaintiff himself confirmed the device in question was shown at a Yamaha dealers' sales seminar meeting in August 1980 and discussed there as a resolution to shifting and drowning problems.[3] Although *322 the tri-moto was brought to the meeting at the request of Bob Aron, a Yamaha U.S. district sales manager, the Court finds no coercion implicit in the request and finds circumstances surrounding the disclosure further illustrate the absence of any measures taken by the plaintiff to prevent or limit disclosure of his device and/or preserve its secrecy. Nor does the Court accept plaintiff's implications that he was somehow tricked into making this disclosure; plaintiff freely turned his modification over to Cycle Country, without restriction, and the disclosure was made on behalf of Cycle Country, in which plaintiff had no ownership interest.
Notwithstanding these findings as to the plaintiff's failure to maintain the device as a secret, the Court finds defendants used plaintiff's idea. Based upon the uncontroverted trial testimony of plaintiff and plaintiff's sons,[4] the Court finds Yamaha representatives became aware of plaintiff's proven successful device when they visited Cycle Country on or about spring 1980, and observed the device installed in a tri-moto display model. Upon seeing a Yamaha advertisement in the November 1981 "Outdoor Life" magazine, Exhibit 6, plaintiff became aware Yamaha was selling tri-motos with an air snorkel device like the plaintiff's.
Defendants assert Yamaha developed the air snorkel device independently, and plaintiff admitted on cross examination that a March 28, 1979 Yamaha interoffice memorandum regarding Yamaha's development of an air box and snorkel device effectively described what plaintiff successfully put into practice. See Exhibit 16. Nevertheless, the memorandum itself demonstrates Yamaha had not fully resolved the stalling problems, and defendants produced no evidence of reports, drawings, tests or other information showing any further independent development of the air snorkel device from April to November 1979, at which time continuing difficulties were confirmed by the November report of Yamaha all terrain vehicle project engineer Nobuaki Shiraishi. See Exhibit 19; Shiraishi deposition, p. 89. The next reports are dated September 1980 (Exhibits 20 and 21) and show no significant progress over a year after the air snorkel concept first appears in Yamaha documents. The earliest Yamaha patent application for the device in question was not until a June 22, 1981 application for a Japanese patent, see Exhibit 30, in the name of Yamaha employee Tanaka.
Yamaha representative Bob Aron testified that a number of dealerships relayed to Yamaha customer complaints regarding stalling, and many dealers tried various "contraptions" to resolve the problem. The Court does not find credible that Mr. Aron and other Yamaha representatives would not have reported an adjustment that worked, and defendants have made no showing they had developed a workable device by the time of the Yamaha representatives' visits to Cycle Country. The evidence before this Court leads to the inference that Yamaha had no effective resolution to the problem until after the visit to Cycle Country. Yamaha's failure to produce witnesses or records to negate this inference leads to the further inference that any evidence produced by Yamaha would be unfavorable to the defendants.[5]
Yet, the Court has no doubt Yamaha would have developed the air snorkel device independently in due course, given Yamaha's prior awareness and development of the concept behind the modified air intake system and the apparent simplicity *323 of the device.[6] Thus, the Court finds no benefit inuring to Yamaha to the detriment or impoverishment of plaintiff, and the simplicity of the device suggests any arguable enrichment to Yamaha was independent of plaintiff's actions.
However, even assuming pro arguendo Yamaha used plaintiff's idea as placed into practice by plaintiff,[7] plaintiff's failure to maintain the secrecy of the device defeats both his proprietary interest in the device and any inference of unfair benefit to Yamaha. In addition to disclosures discussed above, plaintiff specifically failed to maintain the secrecy of his device vis-a-vis Yamaha. Notwithstanding evidence that the Yamaha representatives "intruded" into Cycle Country areas marked "Employees Only", plaintiff permitted display of the modified tri-moto at Cycle Country, and Yamaha representatives were invited into Cycle Country. In fact, defendants' contention Yamaha developed the device on its own is supported by plaintiff's attempts to emphasize that the secrecy of the device was maintained because the seat cover partially shielding the device from view was not removed when the Yamaha representatives observed the tri-moto.
Nevertheless, the Court finds defendants have acted both negligently and in bad faith in needlessly increasing the costs of this litigation and in failing to cooperate in the pretrial discovery permissible under the Federal Rules of Civil Procedure.
The initial tone for such contumacious conduct was set by Yamaha U.S.' failure to waive service of the demands made against Yamaha Japan, even though Yamaha Japan had full knowledge of the demands against it and the same trial counsel were retained by both Yamaha Japan and Yamaha U.S. Nevertheless, Yamaha Japan forced plaintiff to go through the charade of serving it under the Hague Convention, additionally delaying the resolution of this matter and forcing expenditure of needless amounts for service.[8]
Further misconduct includes, but is not limited to, defendants' failure to respond fully and candidly to three sets of interrogatories and requests for production propounded by the plaintiff.[9] Of significant practical impact was defendants' failure to disclose their application for the American Tanaka patent (Exhibit 30) on June 18, 1982 and the grant of the patent on January 29, 1985, events occurring simultaneously to plaintiff's patent applications commencing March 21, 1983. Defendants renewed the denial of their ownership of a patent through January 1986. The American patent was not acknowledged even generally by defense counsel until early 1986, when defendants responded by letter to plaintiff's repeated inquiries in this regard.
Defendants argue sanctions are inappropriate because the discovery request denying the existence of the patent was directed to Yamaha U.S. prior to Yamaha Japan's filing answer and was correctly answered by Yamaha U.S., who denied it held a patent, *324 because the patent was held by Yamaha Japan.[10] However, the testimony at trial clearly demonstrated the close relationship between Yamaha U.S. and Yamaha Japan; representatives of Yamaha Japan were aware of this litigation and the relevance of the Tanaka patent to this litigation; and representatives of Yamaha U.S. contacted Yamaha Japan to obtain information necessary to answer plaintiff's discovery requests. Nevertheless, it was not until plaintiff confronted defense counsel with evidence of the Tanaka patent, after obtaining the participation of Yamaha Japan and serving it with discovery requests, that defendants acknowledged the existence of the patent. By that time, plaintiff had already expended much effort to discover independently the existence of the patent, and because proceedings in the U.S. Patent and Trademark office regarding Yamaha's patent application were terminated long before plaintiff discovered the patent, plaintiff was unable to take any appropriate action before the PTO.
In addition to its refusal to disclose the patent, defendants continuously provided incomplete documentation regarding patent applications and patent wrappers. As alluded to above, they also denied having records of visits by Yamaha representatives to Louisiana, which testimony and assertions the Court finds not credible.
In sum, the overall conduct of the defendants, as disclosed at the hearing regarding sanctions and during status conferences held before this Court prior to trial, demonstrates actions having no reasonably foreseeable consequence but to cause needless expense and unnecessary delay in this litigation. Moreover, the conduct of the defendants taken as a whole displays aggressive defense tactics, overly technical interpretations of the Court's rules in an attempt to manipulate the outcome of the suit and an utter refusal to act with candor and good faith in bringing issues before the Court for proper resolution.
Plaintiff must himself bear some responsibility for a relatively minor delay of this suit and does not come into Court with entirely clean hands in his complaints of Yamaha's delay. Specifically, plaintiff's counsel did not correctly advise the Court when seeking an extension of time regarding submissions required by the Court that plaintiff's patent application was flatly rejected. The Court has taken this misrepresentation into consideration in deciding whether to assess any sanctions against defendants due to their misconduct in responding to discovery and in deciding the quantum of such sanctions, and the Court nonetheless finds defendants' conduct overwhelmingly warrants sanctions.
The nature of defendants' conduct does not permit exact specification of attorney time, expenses and costs needlessly incurred on plaintiff's behalf. However, upon review of plaintiff's submissions regarding *325 attorney's fees, including time records and statements, the deposition of plaintiff's counsel, and records of expenses, the Court finds a fair sanction in this case is $25,000.
This conclusion is based upon many factors. First, the Court took into consideration the estimate of plaintiff's counsel, Steven Lane, that approximately 305 hours of his time should be attributed to discovery unnecessarily undertaken as a result of defendants' conduct.[11] The Court's line by line review of plaintiff's counsel's contemporaneous time records and invoices suggests a conservative finding of at least 270 hours needlessly expended by Mr. Lane, in addition to time expended by the Keaty law firm for specialized assistance on patentability issues and patent applications, as documented by their invoices. An award of sanctions computed on the basis of 270 hours attorney's time is also deemed reasonable, because this amounts to only 37% of the total time spent on the case by Mr. Lane alone. See Lane Deposition p. 16. The Court also finds a reasonable value of $85.00 per hour should be placed upon Mr. Lane's time, which would provide for a total fee in the amount of $22,950.00, but the Court has increased the fee to $25,000.00, based upon its consideration of other factors, including, but not limited to, the Court's recognition that a certain amount of expenses were needlessly incurred and that other attorneys were also put to needless work.
In reaching these conclusions, the Court reviewed the following exhibits, submitted as P-45 in globo: Documentation of attorney's fees incurred by Steven Lane for January 1984 through June 1984, including a cover summary and daily time sheets for attorney Lane; daily time sheets for July 1984; Herman, Herman, Katz and Cotlar statement for services rendered from August 1984 through July 1986; daily time sheets for attorney Lane from January 1985 through December 1985; and Herman, Herman, Katz and Cotlar statement for services rendered for August 1986. Counsel for plaintiff marked the foregoing documents so as to indentify particular time entries for time allegedly needlessly spent. These records permit an item by item determination of Mr. Lane's allegations regarding his efforts, and the Court finds Mr. Lane's allegations supported by the evidence.
The Court further finds that the amount of time spent and as to which sanctions are being considered does not represent any duplication of effort and represented a considerable amount of legal work and investigation using a certain amount of special expertise. Moreover, the Court's experience and knowledge of the time required to prepare cases suggests that the time attributed by Mr. Lane to defendants' wrongful conduct is reasonably related to defendants' actions.
In addition, investigatory work searching for a possible patent entailed a particular amount of novelty and difficulty and required a certain amount of skill to perform the work properly. This is confirmed by the retainer of the Keaty firm to assist in handling proceedings before the Patent Office. Yamaha's actions also required research into the methods of service permissible under the Hague convention and necessitated cumbersome discovery through depositions of foreign residents.
The preclusion of other employment by the attorney due to the acceptance of this case does not suggest any particular finding applicable to this case, nor does the undesirability of the case or the nature and length of the professional relationship with the client. Nor does the Court find its proposed sanctions disproportionate to the results obtained, even though plaintiff has not prevailed. Plaintiff may well have achieved a result more satisfactory to him had he been able to intercede in proceedings before the patent office.
The Court finds that a $85.00 per hour fees is a reasonable basis for computing sanctions in light of the amount at which *326 attorney's fees are billed by other lawyers similarly situated in the legal community in the Eastern District. The Herman law firm fee in this case was to be contigent, see Lane deposition, p. 11, but the Court's computation of sanctions is not materially affected by this factor, because the Court is awarding sanctions based upon particular items of legal work, as documented by Mr. Lane's time records, to the best the Court is able to attribute particular items of activity to the defendants' conduct. The Court is of the further opinion that a $85.00 per hour reasonably compensates Mr. Lane in comparison to other lawyers of his relative experience and reputation in the legal community.
Conclusions of Law
This Court has subject matter jurisdiction over plaintiff's state law claims by virtue of the Court's diversity jurisdiction. Federal courts also have jurisdiction over patent disputes by virtue of 28 U.S.C.A. § 1338, but the Court need not reach the issue of its subject matter jurisdiction over plaintiff's request that the Court assign the Tanaka patent or declare it invalid[12], in light of the parties' stipulation that the Tanaka patent may be unenforceable depending upon the Court's findings as to the existence of a trade secret.[13]
Under Rule 41 of the Federal Rules of Civil Procedure, a defendant in a case tried without a jury may move for dismissal at the close of the plaintiff's evidence on the ground that, upon the facts and law, the plaintiff has shown no right to relief. In deciding whether to grant a motion for involuntary dismissal,
The Court is not as limited in its evaluation of plaintiff's case as it would be on a motion for directed verdict. The Court is not to make any special inferences in the plaintiff's favor nor concern itself with whether the plaintiff has made out a prima facie case. Instead it is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.
9 C. Wright & A. Miller, Federal Practice and Procedure § 2371, pp. 224-25. Thus, even assuming a plaintiff establishes a prima facie case on the merits, this does not preclude granting a motion for involuntary dismissal on grounds that plaintiff has shown no right to relief. See Stearns v. Beckman Instruments, Inc., 737 F.2d 1565, 1568 (Fed.Cir.1984).
In determining whether plaintiff has made out a prima facie case and/or whether the evidence preponderates in the plaintiff's favor, this Court specifically considered the elements of plaintiff's claim for misappropriation of a trade secret under Louisiana law and for quantum meruit.
La.R.S. 51:1431(4) defines a "trade secret" as:
information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
See also Lamb v. Quality Inspection Services, Inc., 398 So.2d 643, 645 (La.App. 3d Cir.1981); Wheelabrator Corp. v. Fogle, 317 F.Supp. 633, 636-37 (W.D.La.1970), aff'd, 438 F.2d 1226 (5th Cir.1971).
The statute entails three criteria: The method or device must have economic value; it must not be generally known and readily ascertainable by other persons; and reasonable efforts must have been maintained to preserve the device's secrecy. Tubular Threading, Inc. v. Scandaliato, 443 So.2d 712, 714 (La.App. 5th Cir.1983). *327 See also Standard Brands, Inc. v. Zumpe, 264 F.Supp. 254, 260-63 (E.D.La.1967); Restatement of Torts § 757, Comment (b) (1939).
Thus, in order to establish that a device was a protected trade secret, a plaintiff must prove by a preponderance of the evidence that:
1. Plaintiff took reasonable steps to protect and insure the "secrecy" of his device;
2. Plaintiff did not voluntarily reveal his "secret" to the general public or to employees, or to people in the industry, without requiring that they maintain secrecy; and
3. That his device was not generally known in the trade.
See LSA-RS 51:1431(2)(a), 51:1431(4)(a) and (b); Wheelabrator Corp. v. Fogle, supra; Standard Brands, Inc. v. Zumpe, supra; Lamb v. Quality Inspection Services, Inc., supra. The Court finds plaintiff Wilbert Sheets has not established that his device was a trade secret under these standards.
Plaintiff bears the burden of proving that the device he alleges to be a "trade secret" possesses "a substantial element of secrecyso that except by use of improper means, there would be difficulty in acquiring the information." Wheelabrator v. Fogle, supra, 317 F.Supp. at 637. Plaintiff must take reasonable precautions to ensure the secrecy of his device. E.I. DuPont de Nemours & Co. v. Christopher, 431 F.2d 1012, 1015-16, reh'g and reh'g en banc denied, 431 F.2d 1017 (5th Cir.1970), writ denied, 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971). Moreover, protection under trade secret laws depends upon a "continuing course of conduct" to maintain secrecy. Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890 (Minn.1983). Whereas patent protection and noncompetition contractual clauses depend on a single act to provide protection, "[t]rade secret protection depends upon a continuing course of conduct by the [inventor]...." Id. at 901.
Comment (f) following LSA-RS § 51:1431 notes, "[P]ublic disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection," and that "The efforts required to maintain secrecy are those reasonable under the circumstances," citing E.I. Dupont de Nemours v. Christopher, supra.
The facts established at trial in this matter, as set forth in detail above, contradict plaintiff's claim that he maintained his device as a trade secret so as to warrant statutory protection. Accordingly, his demands under the Trade Secret Act must be dismissed.
The Court also examined plaintiff's demands for recovery under the doctrine of unjust enrichment, pretermitting the issue whether the Trade Secret Act pre-empts any other rights to relief under state law.
In order to maintain an action for unjust enrichment, a plaintiff must establish five prerequisites: (1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and resulting impoverishment; (4) there must be an absence of "justification" or "cause" for the enrichment and impoverishment. See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422, 432 (1967). In addition, the action will only be allowed where there is no other remedy at law, which requirement is based upon "the principle that the action must not be allowed to defeat the purpose of a rule of law directed to the matter at issue. It must not, in the language of some writers, `perpetrate a fraud on the law.'" Id. at 433.
Reviewing these requirements, the Court concludes plaintiff has failed to make out a prima facie case that his invention inured to the direct benefit of Yamaha, as the evidence suggests Yamaha might have developed the invention itself in due course. Moreover, the Court is concerned that application of the quantum meruit doctrine in this case would contravene the more particularized requirements of Louisiana's Trade Secret Law and those of the Patent Statutes, which prevent the patentability of an item placed in the public domain. See 35 U.S.C.A. § 102(b).
*328 On the issue of sanctions, this Court has discretion to fashion discovery sanctions permissible under Rule 11 and Rule 37 of the Federal Rules of Civil Procedure. The reason for the failure is an important consideration in determining what sanction to impose. See 8 Wright & Miller, supra, § 2284, p. 766. In this case, the defendants have presented no reasonable excuse for their failure to participate in discovery in good faith. On the contrary their contumacious conduct appears wholly willful, as discussed above. Thus, although the Court is bound to "make such orders in regard to the failure as are just" and should exercise its discretion in a fashion intended to encourage discovery rather than simply to punish for a failure to make discovery, the Court finds this is a case of flagrant failure to cooperate in discovery justifying appropriately serious sanctions. See generally id. § 2284. This failure to cooperate persisted through the trial and at a time when encouraging discovery in this particular case was moot, thus the Court also deems deterrence of such conduct in the future a permissible end. The Court anticipates the Yamaha defendants will have further litigation in the U.S. courts, and they should be taught at this juncture to participate in such litigation in good faith and within the rules provided by the federal courts. Accordingly, the Court deems a sanction in the amount of $25,000.00 reasonable and supported by the considerations enumerated by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). See also Day v. Allstate Ins. Co., 788 F.2d 1110 (5th Cir.1986) (Johnson factors applied in assessing attorneys' fees as sanctions under Rule 37).
The Court's decision to assess sanctions is also supported by United States Freight Co. v. Penn Central Transp. Co., 716 F.2d 954 (2d Cir.1983) (per curiam), wherein the second circuit stated, "General deterrence, rather than mere remediation of the particular parties' conduct, is a goal under Rule 37; unconditional impositions of sanctions are necessary to deter `other parties to other lawsuits' from flouting `other discovery orders of other district courts.'" Id. at 955 (citing cases).
For the foregoing reasons, the Court DISMISSES plaintiff's claims against the defendants with prejudice. However, plaintiff is entitled to sanctions against the defendants in the amount of $25,000, and the Clerk of Court is directed to enter judgment in plaintiff's favor accordingly, defendants to bear all costs.
NOTES
[1] On November 9, 1982, plaintiff amended his complaint to add as defendant Yamaha International Corp., another California corporation. It was subsequently determined Yamaha International was not involved in this dispute, and Yamaha International was dismissed on unopposed motion.
[2] On cross examination, plaintiff named nine individuals owning modified tri-motos.
[3] As will be discussed further below, defendants' failure to produce even this favorable evidence of events transpiring at the sales seminar emphasizes how defendants acted contumaciously and in bad faith in failing to respond to discovery requests.
[4] Bob Aron testified he could not recall a visit he made to Cycle Country with two representatives of Yamaha Japan. The Court distinguishes such testimony from a denial the visit occurred and further notes defendants' utter lack of cooperation, as of the time of trial, in providing documentation of Yamaha representatives' travel in the United States and in responding to discovery requests relevant to this issue.
[5] See interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939); International Union v. NLRB, 459 F.2d 1329 (D.C.Cir.1972).
[6] Given the simplicity of the device, the Court would question the patentability of the device. However, this issue is not before the Court.
[7] The impression made by the modified tri-motos is illustrated by defendants' chosing the Cycle Country dealership to make a promotional film on tri-motos.
[8] Yamaha Japan filed a motion to dismiss or to quash service, and forced plaintiff to serve defendant under the Hague Convention, ignoring the Court's plea that defendants consider accepting service to facilitate the progress of this trial, particularly if Yamaha Japan intended to continue to present a joint defense with previously served defendants, as demonstrated by its retainer of already participating trial counsel to file the motion to quash service.
[9] In May, 1983, plaintiff propounded his first set of interrogatories and requests for production to defendants. On July 19, 1983, plaintiff was forced to file a motion to compel discovery responses, which was ultimately dismissed as moot upon receipt of preliminary responses to those requests.
On April 13, 1984, plaintiff was granted leave to file an additional set of interrogatories, as to which plaintiff was again forced to file a motion to compel responses. The motion was granted and sanctions of $250 awarded. A second set of requests for production was filed June 7, 1984.
Thereafter, a third set of discovery requests was propounded to defendants as permitted by the Court's discovery order of November 25, 1985, Doc. No. 96.
[10] Defendant's initial Request for Production of documents filed on March 31, 1983 requested the following:
1. Any and all documents in the possession of defendant evidencing any and all [emphasis added] patent rights in the Yamaha tri-motorcycle and the air snorkel device within and which is the subject matter of this lawsuit.
2. Any and all documents evidencing original design drawings of the tri-moto air snorkel device which is the subject matter of this lawsuit.
On July 18, 1983, defendant responded to request number 1 as follows:
RESPONSE TO REQUEST NO. 1;
Yamaha has not applied for, [emphasis added] and has not been issued, a patent on the high air intake device on the Tri-Moto three wheel motorcycle.
On that same date, defendants responded to request number 2 as follows:
RESPONSE TO REQUEST NO. 2:
The original design drawings for the Yamaha Tri-Moto motorcycle including design changes for the high air intake are the property of, and are located in the business records of, Yamaha Motor Company, Ltd., a Japanese corporation, located in Japan. Drawings of the high air intake have been requested from Yamaha Motor Company, Ltd. The drawings are expected to take ninety days to obtain.
Following plaintiff's filing of a Motion to Compel Supplemental Answers to the Request for Production of Documents, defendants answered request number 2 as follows, on May 8, 1984:
Supplemental Response to request No. 2:
See drawings attached as Exhibit "F", 1 through 10.
[11] Originally, Mr. Lane attributed 367.25 hours to defendants' improper conduct. During his deposition, however, Mr. Lane admitted that amount should be reduced by a total of 62.35 hours, as stated on pp. 45, 54, 58, 60, 61, 72, 80, 102, 106-08 and 114 of Mr. Lane's deposition.
[12] Plaintiff requests the patent be declared void in paragraph 10 of his Third Supplemental and Amending Complaint.
[13] This stipulation is based upon the principle under federal statute that a patent for an invention may not be obtained where the invention was in public use in this country for more than a year prior to the date of the application for the patent. 35 U.S.C.A. § 102(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265363/ | 533 Pa. 78 (1993)
619 A.2d 1054
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
v.
Gregory G. HOLSTON, Respondent.
Supreme Court of Pennsylvania.
Argued October 22, 1992.
Decided January 25, 1993.
Samuel C. Stretton, West Chester, for respondent.
Samuel D. Miller, III, Asst. Disciplinary Counsel, for petitioner.
Before NIX, C.J., and ZAPPALA, PAPADAKOS and CAPPY, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.
This Court, in response to the Report and Recommendations filed in this matter on December 19, 1990, by the Disciplinary Board of the Supreme Court of Pennsylvania *79 (Board) issued a Rule to Show Cause why Gregory G. Holston (Respondent) should not be disbarred from the practice of law in this Commonwealth. Briefs were filed in this matter by the Respondent and the Office of Disciplinary Counsel and the parties were afforded the opportunity to argue orally before this Court. Our review of the entire record submitted to us by the Board, and the briefs submitted and considering the arguments made in open court, we conclude, for the reasons set forth below, that the Rule to Show Cause be made absolute and that Respondent be disbarred from the practice of law in this Commonwealth.
This matter was begun on November 22, 1989, upon Petition for Discipline filed by the Office of Disciplinary Counsel with the Board. The petition alleged that Respondent had violated various Rules of Professional Conduct in the course of handling a divorce matter. The Board referred the petition to a Hearing Committee, which held hearings and on June 13, 1990, filed its Report finding that Respondent had, in fact, violated the Rules of Professional Conduct and recommended that Respondent be suspended from the practice of law for six months.
The basic facts found by the Hearing Committee, which are admitted to by Respondent, are that he was admitted to the practice of law in this Commonwealth on May 5, 1986. He was retained by Richard Wofford of Philadelphia to represent him in a divorce and, on November 5, 1987, Respondent filed a Complaint in Divorce on Mr. Wofford's behalf in the Court of Common Pleas of Philadelphia County, Family Division. Respondent's initial attempt to serve the Complaint on Mrs. Wofford through the Sheriff's Office, resulted in a return of "Not Found".
As it later became apparent, Respondent did nothing else to serve the Defendant or to locate her whereabouts but some seven or eight months later when Mr. Wofford asked Respondent how his case was coming along, Respondent assured him that things were proceeding and in early August, 1988, Respondent informed his client that a decree in divorce had been granted.
*80 On August 5, 1988, Respondent mailed a document to Mr. Wofford. The document purported to be a Decree in Divorce dated July 16, 1988, and carried the signed name of the Honorable Alex Bonavitacola, Judge of the Court of Common Pleas of Philadelphia County, along with a certificate purporting to verify the accuracy of the Court Decree.
On November 14, 1988, Respondent filed a petition to amend the complaint in divorce and a petition for special service by ordinary mail and on November 29, 1988, a hearing was held before Judge Bonavitacola on the two petitions and at this time the Court brought to Respondent's attention the decree dated July 16, 1988, and asked Respondent to tell him where he had gotten it.[1]
In response to this direct question, Respondent lied and said that he did not know how he got the document or who prepared the order and certification. Shortly thereafter, Respondent met with Attorney Samuel C. Stretton, who advised him that his conduct in this matter was improper and that he should reveal to Judge Bonavitacola that he was responsible for forging the name of the judge to the decree he sent to Mr. Wofford. Respondent did so and, throughout these proceedings, he has admitted his wrongful conduct and has shown his remorse for having forged a court order and for lying to a court of law.
Respondent filed exceptions to the Report on June 21, 1990, asking that he receive a public censure in lieu of a suspension and the Office of Disciplinary Counsel filed its own request with the Board asking that Respondent be suspended from the practice of law for two years.
The Board adopted the findings of fact as found by the Hearing Committee and concluded, as a matter of law, that Respondent had violated the following Rules of Professional Conduct:
a) RPC 1.1 which requires an attorney to provide competent representation to a client;
*81 b) RPC 1.3 which requires an attorney to act with reasonable diligence and promptness in representing a client;
c) RPC 1.4(a) which requires an attorney to keep a client informed of the status of a matter and promptly comply with reasonable requests for information;
d) RPC 3.2 which requires an attorney to make reasonable efforts to expedite litigation consistent with the interests of the client;
e) RPC 3.3(a)(1) which prohibits an attorney from knowingly making a false statement of material fact or law to a tribunal; and
f) RPC 8.4(c) which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
In recommending discipline for these violations the Board took into consideration, Respondent's age, reputation in the community, and the fact that he admitted his misconduct and apologized for his behavior and concluded that a one year suspension would be appropriate to protect the public and ensure the integrity of the Bar.
Our review in attorney disciplinary matters, of course, is de novo, and hence we are not bound by the findings of either the Hearing Committee or the Disciplinary Board although we may be enlightened by the decisions of those triers of fact who had the opportunity to observe the demeanor of the witnesses during their testimony. Disciplinary Counsel v. Shorall, 527 Pa. 413, 592 A.2d 1285 (1991); Office of Disciplinary Counsel v. Stern, 515 Pa. 68, 526 A.2d 1180 (1987); Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986).
Our independent review of the record before us and all the facts therein, easily allow us to conclude that there is uncontradicted evidence which is sufficient to establish that the Respondent knowingly forged a court order and certificate and that upon being questioned on the origins of the document lied to a judicial authority. This conduct alone is more than adequate to establish a violation of Disciplinary Rules 3.3(a)(1) (which prohibits an attorney from knowingly making a false *82 statement of material fact or law to a tribunal), and 8.4(c) (which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation).
Respondent's illegal conduct in forging a court document involves moral turpitude, was prejudicial to the administration of justice, and adversely affects his fitness to practice law. We have defined moral turpitude as "anything done knowingly contrary to justice, honesty, principle, or good morals" (see Office of Disciplinary Counsel v. Simon, 510 Pa. 312, 507 A.2d 1215 (1986)), and there can be little room for argument that the misrepresentation involved in forging a court document involves deceit and dishonesty of the kind included within the scope of our definition of moral turpitude.
Respondent's impeding the discovery of the truth concerning the forgery by lying to the court is both contrary and prejudicial to the administration of justice and also adversely reflects on his fitness to practice law. We have already indicated that we strongly condemn a lack of veracity to judicial authorities because such conduct undermines the integrity of the very process that an attorney swears to uphold. In Montgomery County Bar Association v. Hecht, 456 Pa. 13, 317 A.2d 597 (1974), we stated, "False swearing in a judicial proceeding is certainly an egregious species of dishonesty and is surely also patently prejudicial to the administration of justice." 456 Pa. at 21, 317 A.2d at 602.
In addition, Respondent neglected the divorce which Mr. Wofford had hired him to handle and in so doing violated Disciplinary Rules 3.2 (which requires an attorney to make reasonable efforts to expedite litigation consistent with the interests of the client), Rule 1.4(a) (which requires an attorney to keep a client informed of the status of a matter and promptly comply with reasonable requests for information), Rule 1.3 (which requires an attorney to act with reasonable diligence and promptness in representing a client) and Rule 1.1 (which requires an attorney to provide competent representation to a client).
*83 The Hearing Committee and the Board in this case found violations of all these Disciplinary Rules and we are satisfied to adopt their factual findings and conclusions concerning the violations to the Disciplinary Rules as our own and the only matter remaining for our consideration is the appropriate discipline to be imposed.
In Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981), we noted that the purpose of the Code of Professional Responsibility and the Rules of Disciplinary Enforcement is to protect the public, the profession, and the courts. Whenever an attorney is dishonest, that purpose is served by disbarment. 493 Pa. at 201, 425 A.2d at 733.
Respondent's conduct demonstrates a callous disregard for the very integrity of the judicial process and calls for the most severe sanction. In an attempt to diminish the gravity of his misconduct and lessen the consequences stemming from his actions, Respondent argues in mitigation that he was under extreme pressure in his personal life, that his wife was pregnant at the time and they were financially insecure; that once he realized his error he admitted his misconduct to Judge Bonavitacola and is remorseful for his actions; that he successfully completed the divorce for Mr. Wofford and refunded the fee he had been initially given and that he is very active in church and community affairs.
While all these factors are to be taken into consideration they cannot mitigate offenses which we have considered hitherto to be reprehensible and of the most egregious nature. In re: Oxman, 496 Pa. 534, 437 A.2d 1169 (1981); Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975); Montgomery County Bar Association v. Hecht, 456 Pa. 13, 317 A.2d 597 (1974):
False swearing in a judicial proceeding is certainly an egregious species of dishonesty and is surely also patently prejudicial to the administration of justice. This is doubly so when it is a lawyer who is the perjurer.
*84 In the footnote following this passage we quoted a speech given by Daniel Webster to the Charleston, South Carolina Bar on May 10, 1847, where he astutely comments:
Tell me a man is dishonest, and I will answer he is no lawyer. He cannot be, because he is careless and reckless of justice; the law is not in his heart, is not the standard and rule of his conduct.
We have likened false swearing in the nature of a crime of crimen falsi, since it involves a falsehood which injuriously affects the administration of public justice and, therefore, is an infamous offense. In re: Gottesfeld, 245 Pa. 314, 91 A. 494 (1914). The same can be said of forgery which has always been understood as an attack upon the state and, therefore, was originally prosecuted as treason. See, Toll, Pennsylvania Crimes Code Annotated, Comment to Section 4101, at page 461.
Respondent has acted dishonestly and has demonstrated his unfitness to continue practicing law. Truth is the cornerstone of the judicial system and a license to practice law requires allegiance and fidelity to truth. Respondent's lying to the court and dishonesty in forging a court order are the antithesis of these requirements. Accordingly, we deem disbarment to be the appropriate remedy in this case and order that the Rule to Show Cause Why Respondent Should Not Be Disbarred be made Absolute. Gregory G. Holston, is disbarred from the practice of law within the Commonwealth of Pennsylvania. It is further ordered that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall also pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.
LARSEN and FLAHERTY, JJ., did not participate in the consideration or decision of this matter.
ZAPPALA, J., did not participate in the decision of this matter.
NOTES
[1] It is not shown in the record how this decree came to the attention of the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365771/ | 595 P.2d 1093 (1979)
100 Idaho 198
W. W. NIXON, a partner, dba Nixon, Nixon, Lyons & Bell, Plaintiff,
v.
Darrell A. TRIBER and Marjorie J. Triber, husband and wife, Defendants-Respondents.
Darrell A. TRIBER and Marjorie J. Triber, husband and wife, Plaintiffs-Respondents,
v.
Howard BLACK and Loralee Black, husband and wife, Defendants-Appellants, and
Thor Fladwed, Sheriff of Kootenai County, State of Idaho, Defendant-Respondent.
No. 12422.
Supreme Court of Idaho.
June 5, 1979.
*1094 Thomas A. Mitchell, Coeur d'Alene, for defendants-appellants.
Sidney E. Smith, Nathan D. Hult, Chief Deputy Pros. Atty., Coeur d'Alene, for defendants-respondents.
McFADDEN, Justice.
Purchasers of real property at an execution sale appeal from a district court order vacating the sale because notice of the sale failed to comply with I.C. § 11-302(3). We hold that the district court erred in setting aside the execution sale because I.C. § 11-303 provides the exclusive remedy for failure to comply with the notice provisions of I.C. § 11-302. Accordingly, we reverse and remand.
The facts in this consolidated appeal are uncontroverted. A judgment for $1,674.65 was entered against respondents Darrell A. and Marjorie J. Triber in the case of Nixon v. Triber (district court no. 33521). On the basis of that judgment, a writ of execution was issued instructing respondent Thor Fladwed, Sheriff of Kootenai County, to levy execution on certain real property belonging to the Tribers. Respondent Fladwed issued a notice of levy and advertised the execution sale in the Coeur d'Alene Press. However, all parties agree that respondent Fladwed failed to post notices of the sale in the precinct or city where the property is located, as required by I.C. § 11-302(3).[1]
The execution sale was held on December 17, 1975, at which time appellants, Howard and Loralee Black, purchased the property in question for $1,800.00. Six months later respondent Fladwed issued his sheriff's deed to the Blacks since no redemption had been made.
Thereafter, respondents Triber moved the district court for an order declaring the execution sale null and void because of respondent Fladwed's failure to comply with the notice requirements of I.C. § 11-302(3). The district court held that the notice requirements of I.C. § 11-302 are mandatory *1095 and an order was entered on October 7, 1976, which vacated the execution sale of respondents Tribers' real property. Appellants Howard and Loralee Black, who purchased the Tribers' property at the execution sale, appeal from the October 7th district court order vacating the sale.
The sole question presented on appeal is whether the district court erred in vacating the execution sale because of the sheriff's failure to give notice in accordance with I.C. § 11-302.
Appellants claim that the district court order vacating the execution sale is improper because I.C. § 11-303 provides the exclusive remedy for noncompliance with the notice requirements of I.C. § 11-302. I.C. § 11-303 states:
"Sale without notice Penalty. An officer selling without the notice prescribed by the last section forfeits $500 to the aggrieved party, in addition to his actual damages; and a person wilfully taking down or defacing the notice posted, if done before the sale or the satisfaction of the judgment (if the judgment be satisfied before sale) forfeits $500."
Respondents, on the other hand, contend that the district court properly vacated the sale in this instance.
The question raised in this appeal is one of first impression in this jurisdiction. I.C. §§ 11-302(3) and 11-303, originally enacted in 1881, were taken directly from § 692(3) and § 693 of California's Code of Civil Procedure. When enacted in Idaho, I.C. § 11-303 was identical with § 693 Ca.C.C.P. 1872, and I.C. § 11-302(3) was substantially identical with § 692(3) Ca.C.C.P. 1872. A statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction. State v. Miles, 97 Idaho 396, 545 P.2d 484 (1976); Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969); Johnson v. Casper, 75 Idaho 256, 270 P.2d 1012 (1954); Services, Inc. v. Neill, 73 Idaho 330, 252 P.2d 190 (1953).
In 1855 the Supreme Court of California first construed the California statutes from which I.C. §§ 11-302(3) and 11-303 were taken. Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475 (1855). In Smith certain real property belonging to the respondent was levied on and sold at an execution sale to satisfy a judgment that had been entered against him. On respondents' motion, the trial court entered an order setting aside the execution sale and the purchaser of the property appealed. On appeal, respondent argued that the trial court's order was proper because the notice of sale failed to comply with Section 221 of the California Practice Act [later codified as § 692 Ca.C.C.P. 1872].
In reversing the trial court's order setting aside the execution sale, the California Supreme Court held:
"It has been often decided that the provisions of statutes similar to ours, with respect to levy and notice of sale under execution, are merely directory, and the failure of the officers to comply with the requirements of the law, in this respect, would not vitiate such sale, but the party aggrieved by his neglect is left to his remedy by an action against the officer. 6 Mun. 111, 3 Bibb, 216. This rule is founded in justice and sound policy.
"Very few of those who become purchasers of land at sheriff's sales, have an opportunity of knowing whether or not the law, with respect to notice, has been strictly complied with, or whether the defendants in execution have personal property at the time of the levy, and if every mistake or neglect of duty, on the part of a sheriff, would operate to invalidate such sale, great injury would result, both to debtor and creditor, for no prudent man would give a fair price for property, if he was liable to be divested of his title by reason of the laches of the officer. Is there anything in our statutes in conflict with the view above taken?
"The intention of the Legislature, where it can be ascertained, must govern in the construction of a statute. This intention should not be taken from a particular *1096 section, but from the whole statute. Section 221 of the `Act to regulate proceedings in civil cases,' provides that the sheriff shall, before a sale of real estate under execution, give notice of the time and place of sale, for twenty days. If the officer neglects to give such notice the following section provides, not that the sale shall be void, but `an officer selling without the required notice shall forfeit five hundred dollars to the aggrieved party in addition to his actual damages.' Section 222.
"The statute having thus provided an adequate remedy, by an action against the officer, the party aggrieved can have no other expressio unis exclusio est alterius."
Smith v. Randall, supra at 6 Cal. 50.
Subsequent California cases decided prior to Idaho's adoption of I.C. §§ 11-302 and 11-303 consistently adhered to the opinion expressed in Smith v. Randall, supra. Simson v. Eckstein, 22 Cal. 580 (1863); Shores v. Scott River Water Company, 17 Cal. 626 (1861); Harvey v. Fisk, 9 Cal. 93 (1858). This court must presume that the Idaho legislature was aware of the interpretation of the California statutes by the highest court in California and intended our interpretation to be in accord therewith, absent an expression of legislative intent to the contrary. Doggett v. Electronics Corp. of Am., supra; Lawrence Warehouse Co. v. Rudio Lumber Co., 89 Idaho 389, 405 P.2d 634 (1965); 73 Am.Jur.2d Statutes, § 333; 82 C.J.S. Statutes, § 372.
Despite the remedy against the officer provided by I.C. § 11-303, respondents rely on Gaskill v. Neal, 77 Idaho 428, 293 P.2d 957 (1956), Joy Mfg. Co. v. R.S. McClintock Diamond Drilling Co., 77 Idaho 309, 291 P.2d 874 (1955), and Terry v. Terry, 70 Idaho 161, 213 P.2d 906 (1950), to support their contention that failure to comply with the notice provisions of I.C. § 11-302 renders an execution sale void and the sheriff's deed ineffective.
These three cases present situations that are factually different than the instant case and are therefore distinguishable. In each of these cases, an execution sale was set aside because of irregularities in the conduct of the sale, not because notice of the sale was defective. In Gaskill v. Neal, supra, the sale was set aside because two adjoining lots which were used as one parcel were sold separately for "grossly inadequate consideration." In Joy Mfg. Co. v. R.S. McClintock Diamond Drilling Co., supra, the sale was set aside because the personal property sold was not available for the bidders to view, as required by I.C. § 11-304. In Terry v. Terry, supra, the sale was void because the sheriff did not sell the real property at the time and place named in the notice of sale. None of these cases stand for the proposition that an execution sale is void if notice of the sale is defective. Further, the specific statute which is controlling in the case at bar, I.C. § 11-303, clearly has no operation as to the irregularities complained of in Gaskill, Joy, and Terry, supra.
Accordingly, we hold that I.C. § 11-303 provides the exclusive remedy for failure to comply with the notice provisions of I.C. § 11-302. Our holding is in conformity with decisions from other jurisdictions which have interpreted identical or similar statutes. See Hill v. Kitchens, 39 Ga. App. 789, 148 S.E. 754 (Ga. App. 1929); Wernik v. Kolodziejczak, 240 Mich. 468, 215 N.W. 360 (Mich. 1927); Burton v. Kipp, 30 Mont. 275, 76 P. 563 (Mont. 1904); Polk v. Holland Texas Hypotheek Bank, 66 S.W.2d 1112 (Tex. Civ.App. 1933); Hodges v. Commonwealth Bank & Trust Co., 44 S.W.2d 400 (Tex.Civ. App. 1931).
Judgment reversed and remanded for further proceedings consistent with the views expressed herein. Costs to appellants.
SHEPARD, C.J., DONALDSON, J., and SCOGGIN and SCHROEDER, JJ., pro tem., concur.
NOTES
[1] I.C. § 11-302 provides in relevant part:
Sale of property Notice. Before the sale of the property on execution, notice thereof must be given as follows:
.....
3. In case of real property, by posting a similar notice particularly describing the property, for twenty (20) days, in three (3) public places in the precinct or city where the property is situated, and also where the property is to be sold, and by publishing a copy thereof once a week for the same period before the time set for the sale, in a newspaper published in the county, if there be one. When the judgment under which the property is to be sold is made payable in a specified kind of money or currency, the several notices required by this section must state the kind of money or currency in which bids may be made at such sale, which must be the same as that specified in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365778/ | 595 P.2d 242 (1979)
Jeffrey I. TOMPKINS, as Special Administrator of the Estate of Jose Ruperto del Valle, Deceased, Petitioner,
v.
Marie DeLEON and Linda DeLeon, Respondents.
No. C-1487.
Supreme Court of Colorado, En Banc.
May 29, 1979.
*243 J. Stephen Mullen, L. Dan Rector, Colorado Springs, for petitioner.
James Robert Barash, Patric J. LeHouillier, Colorado Springs, for respondents.
GROVES, Justice.
We granted certiorari to consider the court of appeals' decision, Colo.App., 576 P.2d 563 (1977), interpreting the Dead Man's Statute. We reverse.
The respondents, Marie and Linda DeLeon, suffered bodily injuries on August 22, 1972 when an automobile owned and operated by Jose Ruperto del Valle struck their car from the rear. On September 19, 1973 del Valle died of a cause unrelated to the accident. Subsequently, the respondents sued the administrator of del Valle's estate. At the ensuing trial, respondents sought to testify concerning their pain, suffering and medical care during the time preceding del Valle's death. The trial court ruled that such testimony was barred by the Dead Man's Statute, section 13-90-102, C.R.S.1973. Respondents were permitted to testify about events subsequent to del Valle's death, and the jury awarded damages based on that testimony.
On appeal, the respondents claimed that the damages were inadequate and would have been greater but for the district court's erroneous application of the Dead Man's Statute to preclude testimony about pain, suffering and medical care which occurred prior to del Valle's death. The court of appeals reversed, concluding that the statute was not intended to prevent the admission of testimony which the decedent could not have contradicted of his own knowledge. The cause was remanded for a new trial.
The only issue on appeal is whether the respondents' testimony about pain, suffering and medical care occurring prior to del Valle's death should have been admitted. The statute reads as follows:
"(1) No party to any civil action, suit, or proceeding, or person directly interested in the event thereof shall be allowed to testify therein of his own motion or in his own behalf by virtue of section 13-90-101, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic, or distracted person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending, and except in the following cases:
"(a) In any such action, suit, or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person." (Emphasis added) Section 13-90-102, C.R.S.1973. The statute then lists six more exceptions, none of which apply to this case.
The above quoted provisions were in effect long prior to the 1973 codification of our statutes. These provisions were clear and unambiguous. Young v. Burke, 139 Colo. 305, 338 P.2d 284 (1959); Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032 (1942). They concerned the competency of witnesses. Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).
In the codification of the Colorado Revised Statutes 1973 the General Assembly reenacted the statute without change. Subsequently, it amended the statute as to subjects not relevant here and did not change the above quoted provisions. Colo. Sess.Laws 1975, ch. 251, 13-90-102 at 925; Colo.Sess.Laws 1977, ch. 200, 13-90-102 at 822. When the legislature reenacts or amends a statute and does not change a section previously interpreted by settled judicial *244 construction, it is presumed that it agrees with judicial construction of the statute. Crownover v. Gleichman, 194 Colo. 48, 574 P.2d 497 (1977), cert. denied, 435 U.S. 905, 98 S. Ct. 1450, 55 L. Ed. 2d 495 (1978); Music City, Inc. v. Estate of Duncan, 185 Colo. 245, 523 P.2d 983 (1974); Nye v. District Court, 168 Colo. 272, 450 P.2d 669 (1969). See Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777 (1966) in which the trial court ruled that the claimant was not permitted to testify to any events occurring prior to the death of a man who died eight months after the same automobile accident in which the claimant had been injured; and this court affirmed.
The statute clearly prevents the respondents from testifying regarding any events occurring prior to del Valle's death. The court of appeals' decision creates a judicial exception additional to those set forth in the statute and contradicts the purpose of subsection (a) thereof. As the statute is clear and unambiguous and as the competency of witnesses falls within the area of legislative prerogative, there is no room for judicial modification here.
The majority of the court of appeals relied in part upon the belief that admission of the contested testimony would not subvert the purpose of the statute. It may be correct that in this instance admission of the testimony might not have materially obstructed the purposes of the statute. Nonetheless, we agree with the dissenting opinion of the court of appeals that the courts have an obligation to apply the clear language of the statute.
The opinion of the court of appeals is reversed and the cause returned to it for remand to the district court showing our affirmance of the district court.
ROVIRA, J., specially concurs.
ERICKSON and CARRIGAN, JJ., dissent.
ROVIRA, Justice, specially concurring:
When statutory language is unequivocal, as in this instance, common sense dictates that it not be read into, but out from. The philosophy expressed by the dissent is an argument better made to the legislature.
Professor McCormick, as quoted in the dissent, has recognized that it is the statute-makers who must initiate any change in survivors' evidence acts and has suggested alternative solutions which could be utilized by the legislature.
In view of the clarity of the statutory language, and with any fair reading of it, reversal is required. Respect for the English language demands it. A due regard for separation of powers warrants it.
CARRIGAN, Justice, dissenting:
I respectfully dissent.
In interpreting a statute, a court's primary duty is to discern and give effect to the intent of the legislature in adopting that statute. As Judge Sternberg noted in his well reasoned and sensible court of appeals' majority opinion, this court has previously recognized that:
"[W]here a statute would operate unjustly, or absurd consequences would result from a literal interpretation of terms and words used that would be contrary to its obvious and manifest purposes, the intention of the framers will prevail over such a literal interpretation." 40 Colo. App. 241, 243, 576 P.2d 563, 564 (1977), quoting People v. Silvola, 190 Colo. 363, 369, 547 P.2d 1283, 1288 (1976).
The General Assembly's own canons for statutory construction direct that courts, in construing statutes, presume that "a just and reasonable result is intended . . . ." Section 2-4-201(1)(c), C.R.S.1973. The court of appeals' interpretation of the "Dead Man's Statute" in this case admirably applies both this legislative directive and our own.
The majority of this court, however, feels compelled to adopt a strict, literal application of the opening paragraph of the "Dead Man's Statute." In my view, that literal adherence to the form of the words used stifles the spirit, substance and purpose of the statute: to facilitate justice rather than injustice. The effect of the majority opinion *245 is to extend the statute's prohibition beyond its original purpose of precluding the surviving party to a transaction or conversation from possibly biased or untrue testimony where the other party's death prevents rebuttal. The contrary legislative intent is clearly revealed by reading the whole statute, and especially by considering the stated exceptions for the light they shed on the purpose of the general rule.
Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777 (1966) has been cited as authority requiring the result reached by the majority. Careful reading of that opinion, however, discloses that it contains no interpretation by this court of the Dead Man's Statute, nor is there even any issue discussed which could have evoked a holding of precedential value regarding the statute. Certainly the issue here involved was not before the court in Gushurst.
We are, therefore, required to apply the familiar rules of statutory construction to determine whether the evidence in question should have been excluded or admitted. In approaching this task we should bear in mind the modern view that the truth-finding process is more likely to be aided by admitting evidence than by excluding it. In this context the issue is whether the truth is more likely to be forthcoming if the primary (perhaps the only) witness to it is allowed to testify, or if that witness is rendered dumb because one not even present when the pain in question was endured has died.
The cardinal goal of statutory interpretation is to discover the legislature's intent, and the primary factors to be considered include: (1) the cause, necessity or reason giving rise to the statute, (2) the object, purpose or goal of the legislature, and (3) the evil the statute was intended to remedy. In re Pilch's Estate, 141 Colo. 425, 348 P.2d 706 (1960).
While the majority's good faith purpose to give meaning to what it perceives to be the statute's plain words, and thus to avoid judicial usurpation of legislative functions, is commendable, I submit that it is misguided and self-defeating in these circumstances. Rigid adherence to literal wording of one portion of a statute, without reference to the entire statute's history, purpose or context, may itself so violate the statute's intent as to usurp legislative authority.
"Judicial frustration, if not usurpation, of legislative authority, may be the result of reflexive judicial construction arrived at exclusively by considering the language of the statute on the basis of the judge's own received impressions as to what the language means, without regard for the purpose of the act and other aids to interpretation." 2A Sands, Sutherland Statutory Construction § 45.09 (4th Ed. 1973).
Thus where the spirit or legislative intent of a statute appears, that becomes the dominant factor in construing the statute. Rupp v. Hill, 149 Colo. 48, 367 P.2d 746 (1962). The notion that the spirit of the law should breathe the life of meaning into the letter of the law is certainly not novel. It recurs throughout history and literature. Indeed the Bible teaches that "the letter killeth, but the spirit giveth life." (II Corinthians 3:6).
Thus where a narrow or literal interpretation of terms used in a statute would cause it to operate unjustly or produce absurd consequences, the intent of the framers, as gathered from the whole statute, should prevail. Murray v. Hobson, 10 Colo. 66, 13 P. 921 (1887). See also People v. Texas Co., 85 Colo. 289, 275 P. 896 (1929). The vital essence of every statute is its intent, and courts have a duty, in construing a statute, to ascertain the legislature's purpose and intent in passing it, then give the statute a construction that will render it effective to accomplish that purpose. Martinez v. People, 111 Colo. 52, 137 P.2d 690 (1943). See also Posey v. District Court, Colo., 586 P.2d 36 (1978) (in construing statutes, "legislative intent is the polestar.") Cf. People in Interest of Y. D. M., 593 P.2d 1356 (Colo.S.Ct. 1979) (constitutional interpretation).
In this case the court of appeals' majority carefully analyzed the statute in light of its manifest purpose: to render inadmissible testimony relating to a transaction or conversation *246 with a decedent where the proffered witness and the decedent's estate are both parties to the action. The majority of this court, on the other hand, has construed the statute to exclude evidence not intended to be excluded, evidence which could not have been rebutted by the decedent had he lived, evidence of a kind not within the rationale for which the statute sanctions exclusion, evidence whose exclusion produced an injustice not intended or required by the statute.
When one reads the whole statute, it is palpably obvious from subsections 13-90-102(1)(a), (b), (c), (d), (e), (f) and (g) that the General Assembly's purpose was to prevent a litigant who had been a party to a conversation, transaction or admission involving a deceased party from taking unfair advantage of that party's death. Obviously where only party to a conversation or transaction survives, that party's testimonial version of the occurrence cannot be disputed from the grave by the deceased party.
The statute is intended, therefore, to protect those whose interests would be adversely affected because death has sealed the lips of the party to a conversation or transaction under whom they claim their interest in the litigation. But it is plainly not intended to apply, as the majority has applied it, to bar testimony regarding events which occurred outside the decedent's presence and as to which he could not have testified, had he survived. The statute's prophylactic purpose is fully served by rendering the survivor of a two-sided transaction or conversation incompetent to testify regarding one side of that interchange without rendering him incompetent to testify on other relevant matters as to which the decedent had no knowledge.
Today's majority opinion extends the statute far beyond its intended function as a shield against one-sided accounts of conversations and transactions with decedents. Indeed, the majority opinion excludes otherwise relevant and material evidence which is not dependent on or related to any utterance or action of the decedent. This could not have been the legislative intent.
Here the testimony involved did not touch on any aspect of any conversation, transaction or admission in any way involving the decedent. No conduct or utterance of the decedent was in issue. The facts sought to be proved by the proffered evidence related solely to pain endured by the plaintiffs outside the decedent's presence. His death was totally irrelevant to all evidence of the matters sought to be proved. The effect was to limit the jury to awarding only part of the damages to which the plaintiffs were entitled. While half-justice may be better than no justice at all, we cannot ignore the reality that when a court award is half justice it is also half injustice.
Whether the legislature has power for an irrelevant reason to preclude a witness from giving material testimony in a court trial raises serious issues touching the constitutionality of the statute. Those issues are avoided entirely by the court of appeals' interpretation. But this court's majority opinion sets the stage for a constitutional attack on the statute, for today's literal application may deprive a deserving litigant of any access to the courts, or, as in this case, may frustrate the right to be fairly compensated for an injury. The question well may be raised whether the statute, as today interpreted, violates the state constitution by barring the courthouse door to one party in the hope of protecting another from presumed, but probably non-existent, perjury.
Our state constitution clearly guarantees that:
"Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay." Colo.Const., Art. II, § 6. (Emphasis added.)
Other respected courts have followed reasoning similar to that of our court of appeals. Those courts are of the view, which I share, that such an interpretation fully enforces the statute's intent while obviating the injustice unavoidably incident to the construction adopted by this court's majority. *247 See, e. g., Zeigler v. Moore, 75 Nev. 91, 335 P.2d 425 (1959); Foster v. Englewood Hospital Ass'n, 19 Ill.App.3d 1055, 313 N.E.2d 255 (1974); Stathas v. Wade Estate, 251 Pa.Super. 269, 380 A.2d 482 (1977).
With all due respect, I cannot accept the majority opinion's keystone premise that the legislature hasin effectapproved this court's prior restrictive interpretations of the statute by having reenacted it while codifying the statutes as a whole, or by having added one liberalizing amendment. To me this is merely a method of passing on to the legislature the responsibility for correcting this court's past mistakes which happened to occur before some legislative reenactment or codification. The whole doctrine is founded on a fiction as transparent as the "no clothes" worn by the emperor in the familiar fable. To assume that the 100 members of the Colorado General Assembly, nearly all of whom are non-lawyers, assiduously read and understand the opinions of this court on matters as complex as this, then make an informed choice whether or not to overrule each decision, strains credulity. Common law ought not abandon common sense.
Courts in interpreting statutes affecting admissibility of evidence in trials should not forget that the purpose of evidence rules is to facilitate, not to obstruct, justice. Certainly it is no more likely that justice will be frustrated if one party is allowed to testify than if both are rendered mute by the death of one.
A brief review of the phenomenon known as the Dead Man's Statute and the criticisms directed toward it by legal scholars provides further persuasion that the courts should not extend such statutes to exclude evidence not within the scope of their purpose. Such a review hopefully, may bolster the only constructive function of the majority opinion, to attract the attention of one or more legislative leaders to the need for reform.
Our Dead Man's Statute, like others, is a vestigial remnant of the ancient court-made rule that any party having an interest in a lawsuit was incompetent to testify in that action. That rule was apparently based on the fear that a party's financial interest in the outcome would induce perjury. The same rather perverseif not paranoidview of human nature underlies the Dead Man's Statute.
Such statutes have been universally condemned by legal scholars as having created far more injustice than they have prevented. For example, Dean Wigmore in his monumental treatise, states:
"The argument . . . that a contrary rule `would place in great peril the estates of the dead' sufficiently typifies the superficial reasoning on which the rule rests. Are not the estates of the living endangered daily by the present rule, which bars from proof so many honest claims? Can it be more important to save dead men's estates from false claims than to save living men's estates from loss by lack of proof?
"The truth is that the present rule is open, in almost equal degree, to every one of the objections which are successfully urged nearly a century ago against the interest-rule in general. Those objections may be reduced to four heads: (1) That the supposed danger of interested persons testifying falsely exists to a limited extent only; (2) That, even so, yet, so far as they testify truly, the exclusion is an intolerable injustice; (3) That no exclusion can be so defined as to be rational, consistent, and workable; (4) That in any case the test of cross-examination and the other safeguards for truth are a sufficient guaranty against frequent false decision. Every one of the first three objections applies to the present rule as amply as to the old and broader rule. The fourth applies with less apparent force, because the opponent's testimony is lacking in contradiction. And yet, upon what inconsistencies is based even this support for the rule! . . . .
"There never was and never will be an exclusion on the score of interest which can be defended as either logically or practically sound. Add to this, the labyrinthine distinctions created in the application *248 of the complicated statutes defining this rule; and the result is a mass of vain quiddities which have not the slightest relation to . . . testimonial trustworthiness . . . ." II Wigmore, Evidence § 578 (3d Ed. 1940).
Another leading scholar, Professional McCormick, has been equally critical:
"Most commentators agree that the expedient of refusing to listen to the survivor is, in the words of Bentham, a `blind and brainless' technique. In seeking to avoid injustice to one side, the statute-makers have ignored the equal possibility of creating injustice to the other. The temptation to the survivor to fabricate a claim or defense is obvious enough, so obvious indeed that any jury will realize that his story must be cautiously heard. A searching cross-examination will usually, in case of fraud, reveal discrepancies inherent in the `tangled web' of deception. In any event, the survivor's disqualification is more likely to balk the honest than the dishonest survivor. One who would not balk at perjury will hardly hesitate at suborning a third person, who would not be disqualified, to swear to the false story.
"Slowly, the lawmakers are being brought to see the blindness of the traditional survivors' evidence acts, and liberalizing changes are being adopted. A few states have provided that the survivor may testify, but his testimony will not support a judgment, unless corroborated by other evidence. Others authorize the trial judge to permit the survivor to testify when it appears that his testimony is necessary to prevent injustice. Both of these solutions have reasonably apparent drawbacks which are avoided by a third type of statute that sweeps away the disqualification entirely and permits the survivor to testify without restriction, but seeks to minimize the danger of injustice to the decedent's estate by admitting any writings of the deceased or evidence or oral statements made by him, bearing on the controversy, both of which would ordinarily be excluded as hearsay." McCormick, Evidence § 65 (2d Ed. 1972). See also Chadbourn, "History and Interpretation of the California Dead Man Statute: A Proposal for Liberalization," 4 U.C.L.A.L.Rev. 175 (1957); Note, "The Colorado Dead Man's Statute," 43 Denver L.J. 349 (1966).
The above scholarly criticisms, of course, are directed to the policy underlying such statutes. These criticisms, therefore, are directed at the legislative branch, not the courts. I cannot believe that the majority of this court would have inflicted the obvious injustice resulting from today's decision if they did not believe that the General Assembly's action compelled this result. Although I respectfully disagree with their premise that they are precedent-bound, I am hopeful that a fair-minded General Assembly will give early consideration to the problem exemplified in this case.
Since I cannot accept the premise that we have no choice other than that reached by the majority, I would affirm the decision of the court of appeals for the reasons set out in that court's excellent majority opinion.
Mr. Justice ERICKSON has authorized me to state that he joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365803/ | 557 S.E.2d 104 (2001)
Marsha JENKINS, Employee, Plaintiff-Appellee,
v.
PIEDMONT AVIATION SERVICES, Employer,
Kemper Group, Carrier, Defendant-Appellants.
No. COA00-119.
Court of Appeals of North Carolina.
December 4, 2001.
*105 Tania L. Leon, P.A., by Tania L. Leon, Charlotte, for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Mel J. Garofalo, Erica B. Lewis and Shelley W. Coleman, Charlotte, for defendant-appellants.
McGEE, Judge.
Piedmont Aviation Services (employer) and Kemper Group (collectively defendants) appeal from an opinion and award of the North Carolina Industrial Commission filed 24 September 1999, in which the Commission reversed a deputy commissioner's decision that defendants were entitled to receive a credit of $125,321.39 against the award of compensation previously paid to Marsha Jenkins (plaintiff) and to suspend payment of workers' compensation benefits to her.
Plaintiff was injured on 28 July 1986 when she was struck on the back of her head and neck by a mirror that fell off the wall in a hotel where plaintiff was staying while she was serving as a sales representative for employer. Plaintiff suffered a cervical neck strain. She was initially informed by her supervisor that the injury was not work-related, and she was directed to file her claim for medical care with employer's health insurance carrier.
Plaintiff was told by another supervisor in July 1988 that her original neck injury was, in fact, work-related. The supervisor informed plaintiff that he would file all the necessary workers' compensation forms within the two-year statute of limitations period for workers' compensation claims. However, unknown to plaintiff, her employer's group health insurance carrier continued paying for plaintiff's medical treatment, not employer's workers' compensation carrier.
Plaintiff sustained a second work-related injury in April 1988 when boxes of supplies fell and hit her hand, injuring her wrist and thumb. Plaintiff missed some work due to her wrist injury from April 1988 until January 1989. Plaintiff had surgery in January 1989 on her wrist and was unable to return to work until 10 April 1989.
Employer changed its group health insurance carrier to Blue Cross/Blue Shield in *106 December 1989. Blue Cross refused to pay for plaintiff's further tests and treatment of the cervical strain because Blue Cross determined plaintiff's injury was work-related. Plaintiff ended her job with employer on 15 December 1989. On 6 March 1990, she filed a Form 33 request for hearing concerning her cervical strain. Employer responded arguing that plaintiff's claim was barred by N.C. Gen.Stat. § 97-24 for plaintiff's failure to file her claim within two years following the accident.
An opinion and award filed 27 November 1990 by Deputy Commissioner William L. Haigh held that plaintiff's neck injury sustained on 28 July 1986 was compensable and that plaintiff last worked for employer on 15 December 1989. Deputy Commissioner Haigh concluded that, based on the facts, employer was estopped from asserting the two-year statute of limitations as a bar to plaintiff's claim for workers' compensation. Employer appealed to the Commission. The Commission filed an opinion and award on 7 October 1991 holding that employer had failed to file a Form 19 report of injury with its workers' compensation carrier on behalf of plaintiff in violation of N.C. Gen.Stat. § 97-92 and affirmed the order of the deputy commissioner.
Plaintiff filed a Form 33 request for hearing on 11 May 1992 because employer's workers' compensation carrier refused to pay her workers' compensation benefits. A hearing was held by Deputy Commissioner Richard B. Ford to determine if "the disabilities which the plaintiff suffers since January 5, 1990[are] the result of and due to the injury which she sustained on July 28, 1986" and "to what further compensation, if any, is the plaintiff entitled[.]" An opinion and award was filed on 7 January 1994 by Deputy Commissioner Ford in which he concluded that (1) plaintiff was entitled to temporary total disability compensation benefits and payment for past, present and future medical expenses resulting from the 28 July 1986 injury, and (2) defendants were entitled to a credit for both compensation paid to plaintiff and for royalties collected by plaintiff for musical compositions in which she had collaborated subsequent to 19 April 1988. The opinion and award did not determine the amount of credit owed to defendants or how the credit was to be applied against plaintiff's future workers' compensation payments. The opinion and award also cited no statutory provision or authority for awarding the credit. At the time of plaintiff's hearing before Deputy Commissioner Ford, defendants had not paid plaintiff any workers' compensation payments for her 28 July 1986 cervical injury. Plaintiff received a disability payment on 30 April 1994 for accrued benefits for a period beginning 15 December 1989.
Following a hearing to determine "what amount of credit [ ] the Defendants [are] entitled to take from the compensation awarded to the Plaintiff by [Deputy Commissioner Ford]," Deputy Commissioner Mary Moore Hoag filed an opinion and award on 6 August 1996 finding that the evidence presented thus far established that defendants were entitled to a credit from the compensation previously paid to plaintiff because of royalty income earned by plaintiff since April 1988 and allowing defendants to cease further workers' compensation payments to plaintiff. Deputy Commissioner Hoag also ordered that the record remain open for further documentary evidence to determine the amount of the credit to which defendants were entitled.
A second opinion and award was filed by Deputy Commissioner Hoag on 16 October 1997 deciding only whether defendants were entitled to a credit as previously stated by Deputy Commissioner Ford and, if so, the amount of the credit. The 16 October 1997 opinion and award incorporated Deputy Commissioner Ford's 7 January 1994 opinion and award. Deputy Commissioner Hoag found that, beginning in 1992, plaintiff earned royalty income and concluded, based on N.C. Gen.Stat. § 97-30 and on Deputy Commissioner Ford's previous opinion, that defendants were entitled to a credit in the amount of $125,321.39. In addition, Deputy Commissioner Hoag concluded that defendants were entitled to suspend payments to plaintiff until the total credit for royalty income was exhausted. She further found that plaintiff had a presumption of continuing disability *107 and ordered an independent medical examination.
Plaintiff appealed to the Commission. In an opinion and award dated 24 September 1999, the Commission reversed the 16 October 1997 opinion and award of Deputy Commissioner Hoag. The Commission concluded that plaintiff's disability began on 15 December 1989 and that defendants were not entitled to a credit for plaintiff's royalty payments. The Commission found that Deputy Commissioner Ford did not have the authority "to give defendants [a] credit for earnings from intellectual work or property rights acquired at a time when plaintiff was working and earning her regular wages from defendant[.]" The Commission also found that Deputy Commissioner Ford's award of a credit was void and unenforceable. However, the Commission concluded defendants were entitled to a credit for plaintiff's earnings from her home-based jewelry making business for 1992 and 1993. The Commission further concluded defendants had not rebutted plaintiff's presumption of continuing disability. Defendants appeal the decision of the Commission.
I.
Defendants first argue the Commission lacked the authority to review and set aside Deputy Commissioner Ford's award and opinion because plaintiff did not appeal from that decision. The record before us shows neither party appealed Deputy Commissioner Ford's decision of 7 January 1994. Plaintiff did file a timely appeal to the Commission of the 16 October 1997 decision of Deputy Commissioner Hoag.
Our Supreme Court has stated that the "statutes creating the Industrial Commission have by implication clothed the Commission with the power to provide this remedy [to set aside one of its former judgments], a remedy related to that traditionally available at common law and equity and codified by Rule 60(b)." Hogan v. Cone Mills Corp., 315 N.C. 127, 137, 337 S.E.2d 477, 483 (1985). The Commission, "in the exercise of supervision over its own judgments," may utilize this remedy "when the paramount interest in achieving a just and proper determination of a claim requires it." Id. at 129, 337 S.E.2d at 478.
While defendants acknowledge the holding in Hogan, they specifically argue that our Court's decision in Moore v. City of Raleigh, 135 N.C.App. 332, 520 S.E.2d 133 (1999), cert. denied, 351 N.C. 358, 543 S.E.2d 131 (2000), prohibits the Commission from setting aside Deputy Commissioner Ford's opinion and award because an application for review of that opinion and award was not filed by plaintiff within fifteen days pursuant to N.C. Gen.Stat. § 97-85. In Moore, the Commission "waived the fifteen day rule on the basis that plaintiff's pro se representation before the deputy commissioner constituted excusable neglect[.]" Moore at 334, 520 S.E.2d at 135. As a result of the excusable neglect, the Commission determined it had authority to set aside the judgment. Our Court reversed the Commission, stating the plaintiff's actions did not constitute excusable neglect; consequently, the Commission did not have the authority to review or set aside a final order of the deputy commissioner. The order became final because the plaintiff had failed to follow the proper channels of appeal under N.C.G.S. § 97-85. However, our Court did not rule the Commission never had the power to set aside an otherwise final judgment. Our Court acknowledged the Commission has the power to set aside a judgment when there is "[m]istake, inadvertence, surprise, or excusable neglect[,]" or "on the basis of newly discovered evidence," or "on the grounds of mutual mistake, misrepresentation, or fraud." Moore at 336, 520 S.E.2d at 137 (citations omitted). In Moore, the plaintiff's actions did not constitute excusable neglect, nor any of the other reasons required to set aside a judgment.
While it is true plaintiff did not appeal Deputy Commissioner Ford's award or file a motion with the Commission to set aside Deputy Commissioner Ford's award, such acts are not required. Again, the power of the Commission to set aside former judgments is "analogous to that conferred upon the courts by N.C.R. Civ. P. 60(b)(6)" and the remedy the Commission may provide is "related to that traditionally available at common *108 law and equity and codified by Rule 60(b)." Hogan at 137, 337 S.E.2d at 483. This power includes the ability to set aside judgments even when a party has not made a motion to do so. Although "Rule 60 says that the court is to act `on motion,' it does not deprive the court of the power to act in the interest of justice in an unusual case where its attention has been directed to the necessity for relief by means other than a motion." Taylor v. Triangle Porsche-Audi, Inc., 27 N.C.App. 711, 717, 220 S.E.2d 806, 811 (1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976).
N.C. Gen.Stat. § 1A-1 Rule 60(b) (1999) confers upon the Commission the ability to set aside a judgment where it finds
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of the judgment.
In the case before us, the Commission made specific findings of fact that Deputy Commissioner Ford's judgment was void because the Commission did not have the power to award a credit for property rights acquired by plaintiff for the lyrics to the two songs prior to the date of her disability. If in fact the deputy commissioner did not have authority to enter the judgment, the judgment is void and the Commission has the authority under N.C.G.S. § 1A-1 Rule 60(b)(4) to set aside the judgment.
Defendants argue the Commission erred by setting aside the deputy commissioner's judgment when that judgment was not void. When a "court acts in excess of its authority ... `its judgment ... is void and of no effect. A lack of jurisdiction or power in the court entering a judgment always avoids the judgment, and a void judgment may be attacked whenever and wherever it is asserted, without any special plea.'" Allred v. Tucci, 85 N.C.App. 138, 143, 354 S.E.2d 291, 295, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987) (quoting Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952)). In the case before us, the Commission was correct in asserting that the deputy commissioner had "no jurisdiction over earnings, investments or property rights obtained prior to an employee's disablement due to a work-related injury or prior to the time defendant's obligation to pay indemnity or wage loss compensation arises."
Under the Workers' Compensation Act, the only statutes which allow the Commission to award credits are N.C. Gen.Stat. § 97-42 (1999) and N.C. Gen.Stat. § 97-42.1 (1999). These statutes allow for a credit for amounts voluntarily paid by the employer before the workers' compensation benefits are awarded. The "laudable purpose" of this section is "to encourage voluntary payments to workers while their claims to compensation are being disputed and they are receiving no wages." Evans v. AT & T Technologies, 103 N.C.App. 45, 48, 404 S.E.2d 183, 185 (1991), rev'd on other grounds, 332 N.C. 78, 418 S.E.2d 503 (1992).
A "credit" is a deduction by the employer of a prior payment made to an injured employee from the compensation benefit that is now due the employee. The only statute in North Carolina authorizing a credit is N.C.G.S. § 97-42. It provides, in order to encourage voluntary payments by the employer while the worker's claim is being litigated and he is receiving no wages, that any payments made by the employer to the injured employee which were not due and payable when made, may in certain cases be deducted from the amount of compensation due the employee.
Gray v. Carolina Freight Carriers, 105 N.C.App. 480, 484, 414 S.E.2d 102, 104 (1992). This credit applies to payments *109 made by the employer, not to any and all other payments the employee may receive from outside sources.
In the case before us, the royalties plaintiff may have received were not payments the employer made; therefore, the Commission did not have the authority under N.C.G.S. § 97-42 to offset these amounts against any future payment the employer is required to make. Our Supreme Court has interpreted the provisions of N.C.G.S. § 97-42 as
typically limited to situations where ... an employer pays a disabled employee wages intended as compensation (and not as a gratuity) throughout the period of the latter's absence from work, or where the employer pays the employee a lump sum in settlement of an anticipated award but a change in the latter's condition causes the award to be diminished.
Moretz v. Richards & Associates, 316 N.C. 539, 541, 342 S.E.2d 844, 846 (1986). Plaintiff's uncontested testimony was that
I was intermittently working from August of `89 until November of `89. And they made me use my sick time so I still got paid. Once my sick time was exhausted, which was November of `89, the company made me go on leave in January of `90, and it was medical leave with no pay[.]
Therefore, the opinion and award of Deputy Commissioner Ford stated that defendants were owed a credit, when defendants had not paid any disability payments to plaintiff, but rather had required plaintiff to use her sick leave which she had earned by working overtime. Fringe benefits, such as sick leave time, are not disability payments. See Moretz, 316 N.C. at 541, 342 S.E.2d at 846 (fringe benefits are of a contractual nature rather than proceeds that are grounded in the workers' compensation law).
The Commission can only credit the employer with payments the employer itself has previously made. In addition, defendants did not show a change in plaintiff's medical condition in order to reduce the compensation owed and were ordered by Deputy Commissioner Ford to begin disability compensation payments to plaintiff for her work-related injury. There is evidence in the record tending to show that Deputy Commissioner Ford's opinion exceeded statutory authority under N.C.G.S. § 97-42 in that (1) defendants had made no compensation disability payments to plaintiff and (2) defendants had not shown a change in condition of plaintiff to cause the ordered compensation payments to be reduced. Defendant's argument that N.C.G.S. § 97-42 grants the Commission the broad power to award any and all credits the Commission may desire is without merit. N.C.G.S. § 97-42 specifically authorizes the Commission to award credits for payments the employer has made which at the time of payment had not been ordered payable by the Commission.
Furthermore, the Commission found that plaintiff was not disabled until 15 December 1989. While Deputy Commissioner Ford stated in his findings of fact that plaintiff was actively employed until 19 April 1988, the Commission is not bound by the deputy commissioner's findings.
The deputy commissioner's findings of fact are not conclusive; only the Full Commission's findings of fact are conclusive. The Commission may "weigh the evidence [presented to the deputy commissioner] and make its own determination as to the weight and credibility of the evidence." The Commission may strike the deputy commissioner's findings of fact even if no exception was taken to the findings.
Keel v. H & V Inc., 107 N.C.App. 536, 542, 421 S.E.2d 362, 367 (1992) (quoting Hobgood v. Anchor Motor Freight, 68 N.C.App. 783, 785, 316 S.E.2d 86, 87 (1984)). There is competent evidence to support the Commission's finding that plaintiff in fact became disabled in December 1989. Plaintiff continued to work for defendant until 15 December 1989. While she missed some periods of work from April 1988 until December 1989, there is competent evidence in the record which shows she missed this time due to the injury to her wrist. The first evidence of any workers' compensation payment for plaintiff's cervical strain injury is on 30 April 1994. Any disability payments plaintiff may have received from April 1988 until December 1989 were due to her wrist injury. Defendants *110 did not even recognize plaintiff's cervical neck injury as a compensable injury until the opinion and award filed 27 November 1990 by Deputy Commissioner Haigh in which he held that plaintiff's neck injury on 28 July 1986 was compensable. Plaintiff's wrist injury was not before Deputy Commissioner Ford. The only injury at issue before him was plaintiff's 1986 neck injury. As a result of the Commission's finding that plaintiff became disabled on 15 December 1989, Deputy Commissioner Ford's award was again without jurisdiction, as the Commission does not have jurisdiction to award credits for income plaintiff received before plaintiff became disabled. The credit defendants claim and the credit the deputy commissioner awarded do not fall within the language of N.C.G.S. § 97-42 or its intended purpose. We overrule this assignment of error.
II.
Defendants next argue the Commission erred in determining the amount of credit defendants were entitled to receive for payments they made during weeks that plaintiff earned income from her home-based jewelry making business. However, defendants have cited no case law or statutory authority in support of their argument. Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure requires the appellant's argument to "contain citations of the authorities upon which the appellant relies." N.C.R.App. P. 28(b)(5). See State v. Thompson, 110 N.C.App. 217, 222, 429 S.E.2d 590, 592 (1993); Byrne v. Bordeaux, 85 N.C.App. 262, 354 S.E.2d 277 (1987). Furthermore, there is competent evidence in the record to support the Commission's findings of fact. We deem this assignment of error abandoned.
In review, the Commission's opinion and award voiding Deputy Commissioner Ford's determination of a credit against plaintiff's royalty income and reversing Deputy Commissioner Hoag's opinion and award is affirmed. The Commission's opinion and award granting defendants a week by week credit totaling $2,586.00 for plaintiff's income from her jewelry making business is affirmed.
Affirmed.
Judges WYNN and JOHN, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365618/ | 122 Ariz. 391 (1979)
595 P.2d 183
Richard Leo EATON, a minor by his parents and next friends, Dale G. Eaton and Janice Eaton, Alicia Sesma, a minor by her parents and next friends, Ray Sesma and Stella Sesma, and the Arizona Association For Retarded Citizens, Inc., Individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
v.
UNIFIED SCHOOL DISTRICT NO. 1 OF PIMA COUNTY, Arizona, Mohave Valley Elementary School District No. 16, Winslow School District No. 1 and Winslow High School District No. 1, Defendants-Appellants.
Nos. 1 CA-CIV 4196, 1 CA-CIV 4272.
Court of Appeals of Arizona, Division 1, Department A.
January 4, 1979.
Rehearing Denied February 2, 1979.
Review Granted February 21, 1979.
*392 Venable, Rice, Lee & Capra by Gilbert T. Venable, Phoenix, for plaintiffs-appellees.
DeConcini, McDonald, Brammar & Yetwin by Richard M. Yetwin, Tucson, for Unified School Dist. No. 1.
Bruno & Weisberg, P.C., by Sheldon H. Weisberg, Kingman, for Mohave Valley Elementary School Dist. No. 16.
Jay V. Flake, Navajo County Atty., Holbrook, by Warner G. Leppin, Deputy County Atty., Winslow, for Winslow School Dist. No. 1 and Winslow High Sch. Dist. No. 1.
OPINION
HAIRE, Presiding Judge.
The appellant/defendant school districts have appealed from an order entered by the trial court denying their motions to de-certify the defendant class previously certified by the trial court pursuant to the provisions of Rule 23, Arizona Rules of Civil Procedure. The appellees have moved to dismiss the appeals, alleging that they are from an interlocutory order that does not meet the finality requirements of A.R.S. § 12-2101, and that the interlocutory order is not otherwise made appealable under Arizona law.
In their response to the motion to dismiss, the appellants rely upon the provisions of A.R.S. § 12-2101 D, Division Two's decision in Home Federal Savings & Loan Association v. Pleasants, 23 Ariz. App. 467, 534 P.2d 275 (1975), and various federal decisions involving questions concerning the appealability of orders relating to class certification under the analogous federal rule, Rule 23, Federal Rules of Civil Procedure.
In Arizona the Court of Appeals derives its appellate jurisdiction wholly from statutory provisions. See Arizona Constitution Art. 6, § 9. Apart from certain special statutes not pertinent here,[1] the appellate jurisdiction of the Court of Appeals and the types of judgments and orders from which appeals may be taken are set forth in A.R.S. § 12-2101. By far the largest category of appealable judgments and orders are those classified as "final judgments", made appealable pursuant to A.R.S. § 12-2101 B. In our opinion, no argument can be made that the order here involved was final in the sense in which that term is used in A.R.S. § 12-2101 B. The order did not finally dispose of the case, leaving no question open for judicial determination. See Properties Investment Enterprises, Ltd. v. Foundation for Airborne Relief, Inc., 115 Ariz. 52, 563 P.2d 307 (App. 1977). In fact, it cannot even be said that the order finally disposed of the only issue with which it was concerned class certification. Rule 23(c)(1), Ariz.R.Civ.P., expressly provides that such an order "may be altered or amended before the decision on the merits."[2]
In their response to the motion to dismiss, appellants state that the order is appealable pursuant to A.R.S. § 12-2101 D, which allows an appeal to be taken from "any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken." Appellants do not attempt to explain how this subsection can be applied to the order here involved. We are aware that the Arizona Supreme Court in Reader v. Magma-Superior *393 Copper Co., 108 Ariz. 186, 494 P.2d 708 (1972), held that an order refusing to allow the plaintiffs to maintain an action as a class action was appealable. Applying the language of A.R.S. § 12-2101 D, the court in Reader noted that the trial court's order affected "a substantial right of the appellants", and "as a practical reality [foreclosed] the appellants from pursuing their action further", thus in effect determining the action and preventing a judgment from which an appeal might be taken. Appellants do not explain how such reasoning could be applicable to an order that rather than denying class certification, allows an action to be maintained as a class action. We do not perceive any logical basis for applying A.R.S. § 12-2101 D to the kind of order now before this Court.
The appellants and the appellees have devoted considerable attention in their memoranda to federal court decisions relating to the right to appeal from class certification orders entered in the federal district courts. While the federal decisions cited by the parties can best be described as conflicting, suffice it to say that some of the cited decisions do allow appeals from orders relating to class certification under Federal Rule 23, applying a very liberal interpretation of the "final decision" language of the governing federal appeals statute, 28 U.S.C. § 1291. The doctrines developed through these decisions are usually described as the "death knell" theory, the "reverse death knell" theory or the "collateral order" doctrine. In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978), the United States Supreme Court considered the conflicting decisions of the federal circuit courts, and rejected the various doctrines which had been relied upon by some of the circuits so as to treat class certification orders as "final decisions", appealable of right pursuant to 28 U.S.C. § 1291.[3] While the attempted appeal in Coopers & Lybrand, supra, involved a trial court order determining that the action could not be maintained as a class action, and thus is to that extent distinguishable from the order presented before this Court,[4] the reasoning of the United States Supreme Court is equally applicable to any trial court order relating to class certification pursuant to Rule 23. The fiction of "finality" previously indulged in by the various circuit courts was simply swept aside, and the United States Supreme Court indicated that any appellate review of orders relating to class certification which might be available in the future was to be sought under the discretionary procedure for interlocutory appeals provided in 28 U.S.C. § 1292(b).[5]
*394 We now consider appellant's reliance upon Home Federal Savings & Loan Association v. Pleasants, supra. That case involved an appeal by the defendant from a superior court order permitting maintenance of the suit as a class action. After considering and ruling on the merits of the trial court's class certification order, Division Two of this Court concluded its opinion with the following footnote:
"Appellee has posed a challenge to the appealability of the subject order which we reject. See Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir.1973); also see United States Supreme Court decision in Eisen, 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974)." 23 Ariz. App. at 470, 534 P.2d at 278.
The above-quoted footnote constitutes the court's entire discussion of the timely-raised challenge to its jurisdiction. The court did not cite or discuss the provisions of any Arizona statute governing its appellate jurisdiction. Rather, reliance was placed upon the cited federal decisions, without any recognition being given to the substantial conflict that existed at that time on this question within the federal system itself. As we have indicated previously in this opinion, we find nothing in the Arizona statutory scheme which would authorize an interlocutory appeal from an order allowing an action to proceed as a class action. However, even if we were to ignore this crucial lack of statutory foundation and turn solely to the federal decisions for guidance, the reasoning of the United States Supreme Court in its opinion in Coopers & Lybrand v. Livesay, supra, compels the conclusion that review as of right by appeal from a non-final interlocutory class certification order should not be allowed. Instead, appellate review should be limited to that which might be granted by an appellate court solely on a discretionary basis pursuant to its special action jurisdiction.[6]
For the foregoing reasons we find Home Federal Savings & Loan Association v. Pleasants, supra, unpersuasive and decline to follow it. Appellees' motion is granted, and the appeals are hereby dismissed.
FROEB, C.J., and DONOFRIO, J., concur.
NOTES
[1] See, e.g., A.R.S. § 13-4032, limiting the state's right of appeal in criminal proceedings; A.R.S. § 12-120.21 A(1), limiting Court of Appeals jurisdiction in certain criminal appeals; A.R.S. § 22-375, limiting appeals from the Superior Court in an action appealed from a justice of the peace or police court.
[2] Rule 23(c)(1) reads as follows:
"(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits."
[3] The reasoning of the United States Supreme Court in Coopers & Lybrand does not necessarily conflict with the Arizona Supreme Court's decision in Reader v. Magma, supra, since the basis of the Arizona Court's decision in Reader did not involve a finding that a class certification order constituted a "final judgment" appealable under A.R.S. § 12-201 B, but rather treated the order as an interlocutory order made appealable under the provisions of A.R.S. § 12-2101 D. We are not aware of any similar provision in the statute governing federal appeals.
[4] As previously stated, the order before this Court is the trial court's order refusing to de-certify the defendant class. For appeal purposes, we consider this order to be in all respects analogous to an order allowing the action to be maintained as a class action.
[5] The United States Supreme Court in Coopers & Lybrand quoted Judge Friendly with approval as follows:
"`[T]he best solution is to hold that appeals from the grant or denial of class action designation can be taken only under the procedure for interlocutory appeals provided by 28 USC § 1292(b) [28 USCS § 1292(b)]... Since the need for review of class action orders turns on the facts of the particular case, this procedure is preferable to attempts to formulate standards which are necessarily so vague as to give rise to undesirable jurisdictional litigation with concomitant expense and delay.' Parkinson v. April Industries, Inc., 520 F.2d 650, 660 (CA2 1975) (concurring opinion)." 437 U.S. at 475 n. 27, 98 S.Ct. at 2461, 57 L.Ed.2d at 362.
In Arizona practice, the special action procedure has been referred to as somewhat analogous to the federal system's discretionary interlocutory review provided by 28 U.S.C. § 1292(b). See Arizona Appellate Handbook, § 7.2, p. 7-2 (1978).
[6] This is not to be construed as indicating that this Court would, or would not, grant special action review concerning the question presented on this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750714/ | 952 So. 2d 1190 (2007)
JACKSON
v.
STATE
No. SC05-1312
Supreme Court of Florida
February 15, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1358699/ | 11 Cal. 3d 352 (1974)
521 P.2d 441
113 Cal. Rptr. 449
JEAN KRUGER, Plaintiff and Appellant,
v.
WELLS FARGO BANK, Defendant and Respondent.
Docket No. S.F. 23014.
Supreme Court of California. In Bank.
April 26, 1974.
*355 COUNSEL
Wong, Siedman & Lee and Jack Siedman for Plaintiff and Appellant.
Cecily Nyomarkay, Richard A. Weisz, Michael B. Weisz and Thomas W. Pulliam, Jr., as Amici Curiae on behalf of Plaintiff and Appellant.
Brobeck, Phleger & Harrison, Moses Lasky and Kirtley M. Thiesmeyer for Defendant and Respondent.
*356 OPINION
TOBRINER, J.
In this case we hold that a bank's setoff of charge account debts against a depositor's checking account constitutes private action, not state action, and thus does not succumb to the requirements of procedural due process under the federal Constitution. We also hold that the reach of the due process clause of the state Constitution is insufficient to afford a remedy to depositors. We conclude, however, that a bank may not exercise its right of setoff against deposits which, derived from unemployment and disability benefits, are protected from the claims of creditors.
1. Statement of facts.
Plaintiff Jean Kruger maintained a checking account and a Master Charge contract with defendant Wells Fargo Bank. Payments for unemployment compensation and state disability benefits, which she deposited in her checking account, comprised her only source of income. On October 21, 1970, the bank deducted the $87.68 balance of her account and applied it to her Master Charge delinquency. She received no advance notice of its intention to debit her account, but subsequently the bank served her with a statement that it had exercised a banker's lien against her account. The bank thereafter refused to honor checks which she had written prior to the debiting of her account, but which the payee had not presented until after that event; aggravating the alleged injury, the bank then billed her $44 for service charges on the dishonored checks.
Plaintiff filed suit, asserting both an individual claim on her own behalf and a class claim on behalf of all depositors with defendant bank whose deposits, derived from governmental benefit payments, enjoyed exemption from attachment and execution under Code of Civil Procedure section 690.18, subdivision (a).[1] The bank demurred. The superior court sustained *357 the demurrer, without leave to amend, on the ground that plaintiff's complaint did not state facts sufficient to constitute a cause of action.[2]
2. (1) A bank's exercise of its right of setoff against a depositor's account does not constitute state action, and consequently need not conform to the standards of procedural due process required by the federal Constitution.
As a preliminary matter, we note that, contrary to the contention of plaintiff, this case raises no issue of the constitutionality of Civil Code section 3054, the banker's lien act. That section provides that "A banker has a general lien, dependent on possession, upon all property in his hands belonging to a customer, for the balance due to him from such customer in the course of the business."
(2) As the court in Gonsalves v. Bank of America (1940) 16 Cal. 2d 169, 173 [105 P.2d 118] explains: "The banker's lien described in this statute is, properly speaking, a lien on the securities such as commercial paper deposited with the bank by the customer in the course of business. The so-called `lien' of the bank on the depositor's account or funds on deposit is not technically a lien, for the bank is the owner of the funds and the debtor of the depositor, and the bank cannot have a lien on its own property. The right of the bank to charge the depositor's fund with his matured indebtedness is more correctly termed a right of setoff, based upon general principles of equity."[3] Thus despite the bank's misleading notice to Kruger that it was asserting a lien upon her account, which led her to frame a complaint seeking a judicial declaration respecting the constitutionality *358 of the banker's lien law,[4] the instant case does not in fact involve a banker's lien under section 3054, but arises from the bank's assertion of a right of setoff against a depositor's account.[5]
We turn to plaintiff's contention that defendant bank, in asserting a setoff against her account, unconstitutionally deprived her of the use of property without due process of law. We recognize that in practice a bank's assertion of its right of setoff is often inequitable. Depositors have come to view their checking account balance not as an ordinary debt, but as the modern equivalent of cash on hand to meet the expenses of daily living. When the bank exercises a setoff against a checking account, the devastating effect on the depositor is exactly the same as garnishment of the account. Deprived of the use of the fund on which he relied to pay his daily bills, he may be forced to default on other obligations and may lack the ability to purchase the necessities of life. (See Randone v. Appellate Department (1971) 5 Cal. 3d 536, 559-560 [96 Cal. Rptr. 709, 488 P.2d 13].) When the bank subsequently refuses to pay checks drawn before the date of setoff, it simultaneously destroys the depositor's credit standing, and works an unfair advantage vis-a-vis the other creditors who accepted those checks. If it should later develop that the bank's exercise of the setoff was improper, it is unlikely that all the damage can be redressed.
But private action, however hurtful, is not unconstitutional. (Civil Rights Cases (1883) 109 U.S. 3, 11 [27 L. Ed. 835, 839, 3 S. Ct. 18].)[6]*359 The Fourteenth Amendment provides that "No state shall ... deprive any person of life, liberty, or property, without due process of law." (Italics added.) (3) As stated in Shelley v. Kramer (1948) 334 U.S. 1, 13 [92 L. Ed. 1161, 1180, 68 S. Ct. 836, 3 A.L.R. 2d 441], the only action inhibited by the due process clause is "such action as may fairly be said to be that of the States. [The Fourteenth] Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Thus plaintiff, to prevail in her contention that the bankers' setoff violates constitutional strictures, must show a level of significant state involvement in the act of the bank sufficient to characterize the setoff as "state action." (Moose Lodge No. 107 v. Irvis (1972) 407 U.S. 163, 173 [32 L. Ed. 2d 627, 637-638, 92 S. Ct. 1965]; Reitman v. Mulkey (1967) 387 U.S. 369, 380 [18 L. Ed. 2d 830, 837-838, 87 S. Ct. 1627].)
In the only reported decisions to consider the constitutionality of the bankers' setoff, the courts have concluded that the act of a bank in setting off a depositor's debt against his account is private, not state, action and hence not subject to constitutional requirements of due process. (Bichel Optical Lab., Inc. v. Marquette Nat. Bk. of Mpls. (8th Cir.1973) 487 F.2d 906; Jojola v. Wells Fargo Bank (N.D.Cal. 1973) No. C-71 900 SAW; Fletcher v. Rhode Island Hospital Trust Nat. Bank (1st Cir.1974) 496 F.2d 927.[7] (4) Agreeing with the reasoning of those decisions, we shall explain that the procedure of setoff, in contrast to other prejudgment remedies, requires no act of assistance from state officials. Although former Code of Civil Procedure section 440 authorized setoff, that statute merely codified the right of setoff as it existed in courts of equity; it did not compel or encourage the exercise of this right. Judicial and legislative recognition of this private right of setoff does not mould the exercise of that right into a form of state action. Finally, we shall explain that government regulation of the banking industry does not render every act of a bank the act of the state; in the instant case, the bank did not proceed pursuant to government command but merely exercised a right available to all private contracting parties.
*360 The present case emanates from the emerging line of decisions extending procedural due process protections to debtors whose property is taken pursuant to statutes establishing summary creditor remedies. Within the past five years courts have struck down or limited a host of summary prejudgment remedies: wage garnishment (Sniadach v. Family Finance Corp. (1969) 395 U.S. 337 [23 L. Ed. 2d 349, 89 S. Ct. 1820]); claim and delivery (Blair v. Pitchess (1971) 5 Cal. 3d 258 [96 Cal. Rptr. 42, 486 P.2d 1242, 45 A.L.R. 3d 1206]); garnishment of bank accounts (Randone v. Appellate Department (1971) 5 Cal. 3d 536 [96 Cal. Rptr. 709, 488 P.2d 13]); replevin (Fuentes v. Shevin (1972) 407 U.S. 67 [32 L. Ed. 2d 556, 92 S. Ct. 1983]); unlawful detainer (Mihans v. Municipal Court (1970) 7 Cal. App. 3d 479 [87 Cal. Rptr. 17]); the innkeeper's lien (Klim v. Jones (N.D.Cal. 1970) 315 F. Supp. 109); the landlord's lien (Hall v. Garson (5th Cir.1970) 430 F.2d 430); and garnishment of accounts receivable (Jones Press, Inc. v. Motor Travel Service, Inc. (1970) 286 Minn. 205 [176 N.W.2d 87]). Almost all of these remedies required some ministerial act of a court clerk, a sheriff, or some other state official. Such official acts, undertaken pursuant to authority conferred by statute, so obviously constitute state action that the courts in these cases have proceeded directly to adjudicate the due process issue without discussion of the requirement of state action.
The present case, in contrast, involves the act of a private party bereft of any action of state officials. Plaintiff seeks, therefore, to discover some other foundation on which to erect a structure of state action. The many arguments she advances can be organized into two contentions: (1) that since the right of setoff derives from state statutory or court-made law, it should be deemed state action; and (2) that even if setoff by an ordinary creditor is not state action, the banking industry is so highly regulated, and performs so important a function, that the act of a bank should be treated as the act of the state itself. We discuss each contention in turn; we initially address ourselves to the proposition that since state statutes or state court decisions necessarily generated the right to setoff it must be considered state action.
As we pointed out earlier, the bank's action in the present case finds authorization not in the banker's lien law (Civ. Code, § 3054) but in the equitable principle of setoff.[8] In 1872 this principle was partially codified in Code of Civil Procedure section 440. That statute, as of the date of setoff in the instant case, asserted that "When cross-demands have existed *361 between persons under such circumstances that, if one had brought an action against the other, a counterclaim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other."[9] Plaintiff contends that the authority conferred by this statute transforms the private action of the bank into state action.
Those cases predicating state action upon the impact of a statute on private behavior fall generally into three categories.[10] The first, which is not apposite here, consists of cases which adjudicated statutes that compelled private action.[11] The second category encompasses those statutes which, while not compelling private action, endorse and encourage that action as state policy. The third group comprises the decisions in which the statutes create a private right of summary seizure.
The leading case in the second group, allegedly espousing the "encouragement" theory, Reitman v. Mulkey (1967) 387 U.S. 369 [18 L. Ed. 2d 830, 87 S. Ct. 1627], struck down a California initiative that both replaced all laws banning racial discrimination in housing and also established a state constitutional right to discriminate. Plaintiff would interpret Reitman broadly to hold that a legislative enactment that authorizes private acts renders those acts a form of state action, arguing by analogy that the legislative enactment of section 440 renders setoff a form of state action.
The essence of the Reitman decision is that an action of the state which is not merely permissive of discrimination but a significant encouragement of it, and a consequent involvement of the state in it, does constitute state action. The Supreme Court of the United States stated that the California Supreme Court had found that the design of Proposition 14 was to overturn previous laws that banned discrimination and "`to forestall future *362 state action that might circumscribe this right.'" (387 U.S. at p. 374 [18 L.Ed.2d at p. 834].) Our court held that the proposition achieved this aim, and formulated a right, sanctioned by the state, to engage in private discrimination. Not only did Proposition 14 erect a state-supported right to discriminate but the enactment itself stripped the Legislature or any agency of the state of the power, forever thereafter, of taking any steps whatsoever to affect or forestall the "right" of the private seller and renter to discriminate. Hence discrimination was enshrined in the Constitution of the state in perpetuity. (See Burke & Reber (1972) 46 So.Cal.L.Rev. 1003, 1078-1082.)
Moreover, our court rendered a finding, relied upon by the United States Supreme Court, that the initiative would in fact actively encourage discrimination. (See Mulkey v. Reitman (1966) 64 Cal. 2d 529, 540 [50 Cal. Rptr. 881, 413 P.2d 825]; Reitman v. Mulkey (1967) 387 U.S. 369, 376 [18 L. Ed. 2d 830, 835, 87 S. Ct. 1627].) Consequently Reitman was interpreted, in subsequent cases, as declaring the proposition that permissive legislation transforms private conduct into state action if the purpose and effect of the legislation is to approve and encourage that private action as designed in Proposition 14. (See discussion of Reitman in Jojola v. Wells Fargo Bank (N.D.Cal. 1973); Kirksey v. Theilig (D.Colo. 1972) 351 F. Supp. 727, 731.)
Former section 440, on the other hand, took a neutral stance.[12] Recognizing the established principle in equity that either party to a transaction involving mutual debts and credits can strike a balance, holding himself owing or entitled only to the net difference, the statute merely establishes a procedure for asserting such a setoff under the code pleading system of California. (5) Since it does not alter the substantive law of setoff,[13] we see no basis for finding that section 440, or its successor section 431.70 was intended to, or did, encourage banks or other creditors to exercise their right of setoff without notice to the debtor. (Jojola v. Wells Fargo Bank (N.D.Cal. 1973).)
Finally the third category of cases that find state action are those based upon statutes, rather than decisions at common law or private contracts, that create the private right of summary seizure. (See Klim v. Jones (N.D. Cal. 1970) 315 F. Supp. 109, 114 [innkeeper's lien]; Hall v. Garson (5th *363 Cir.1970) 430 F.2d 430, 439 [landlord's lien].) (6) But as was pointed out by Judge Weigel in Jojola v. Wells Fargo Bank (N.D.Cal. 1973), "The right of setoff, while recognized by the statute, was not created by it. The right is grounded in general principals of equity. `In equity, a setoff ... depends, not upon the Statutes of Set-off, but upon the equitable jurisdiction of the Court over its suitors.' Hobbs v. Duff, 23 Cal. 596, 629 (1863).... Thus, if Section 440 never had been enacted, the Bank would still have had the right to balance off mutual obligations." (7) A statute which neither adds new rights nor permits private conduct prohibited under the common law, does not raise the conduct to the level of state action. (Jojola v. Wells Fargo Bank, supra.)[14]
As a rejoinder to the observation that section 440 creates no rights plaintiff offers the sweeping suggestion that all private action undertaken pursuant to the decisions of the common law constitutes state action; that the common law is simply the law as rendered by court decision; since courts are themselves agents of the state, judicial enforcement of common law principles constitutes state action. This rejoinder rests upon Shelley v. Kraemer (1948) 334 U.S. 1 [92 L. Ed. 1161, 68 S. Ct. 836, 3 A.L.R. 2d 441], which held that judicial enforcement of racial covenants constituted unconstitutional state action. Carrying that decision to a logical extreme, plaintiff argues that whenever a court invokes common law principles of tort or contract, private tortious or contractual conduct magically changes into state conduct.
The United States Supreme Court has declined to carry the principle of state action to such extremes.[15] For example, in Evans v. Abney (1970) 396 U.S. 435 [24 L. Ed. 2d 634, 90 S. Ct. 628], the Georgia Supreme Court applied the common law doctrine that a testator, in establishing a trust, may circumscribe the beneficiaries of that trust on racial or otherwise *364 arbitrary lines. All of the justices of the United States Supreme Court appear to agree that state recognition of this doctrine did not convert the testator's racial decision into state action; they disagreed as to whether use of this doctrine to annul the bequest constituted a form of state affirmative enforcement of private discrimination prohibited under Shelley.[16] By analogy, in the present case, a court order affirmatively requiring an unwilling party to exercise a right of setoff would be a form of state action, but mere judicial recognition of the equitable principles of setoff would not present sufficient state involvement to bring the bank's private act under the Fourteenth Amendment.
(8) Our review of the cases discussing the constitutionality of prejudgment remedies further confirms our conclusion that the courts have not accepted plaintiff's claim that judicial acceptance of common law remedies constitutes state action. Of those many decisions declaring particular creditors' remedies unconstitutional, none found their rulings upon such a theory; those decisions that hold that common law self-help remedies lie beyond the scope of the Fourteenth Amendment likewise reject, either expressly or by implication, plaintiff's contention.[17]
We turn therefore to plaintiff's second major contention that the exercise of the right of setoff by a bank constitutes unconstitutional state action. Banking corporations owe their legal existence to state law, derive their right to practice banking from government license, are subject to extensive state and national regulation, fulfill important economic functions *365 often performed by government agencies, and exert great influence upon the economic health of the nation.[18] (9) They are among those businesses affected with a public interest (See Hiroshima v. Bank of Italy (1926) 78 Cal. App. 362, 377 [248 P. 947]; see generally Tunkl v. Regents of University of California (1963) 60 Cal. 2d 92, 97-98 [32 Cal. Rptr. 33, 383 P.2d 441, 6 A.L.R. 3d 693].)
As concepts of state action evolve to correspond more closely to economic reality, we may arrive at judicial recognition that such institutions and enterprises should be considered agents of the state, so that those who deal with them will receive the protection not only of decisional law but of constitutional due process. (See Reitman v. Mulkey (1967) 387 U.S. 369, 381-387 [18 L. Ed. 2d 830, 838-841, 87 S. Ct. 1627] (Douglas, J., concurring); Lombard v. Louisiana (1963) 373 U.S. 267, 275-278 [10 L. Ed. 2d 338, 343-345, 83 S. Ct. 1122] (Douglas, J., concurring); Miller, The Constitutional Law of the "Security State" (1958) 10 Stan.L.Rev. 632; Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1253 and fn. 29.) As Justice Cardozo wrote, "The great generalities of the Constitution have a content and a significance that vary from age to age." (Cardozo, The Nature of the Judicial Process (1921) p. 17.)
We must, however, apply to the facts of this case the current law as announced by the decisions. The law of state action will evolve, as it has, by measured steps, with one appropriate decision building upon another. A decision at this time subjecting banks and other public service enterprises to the requirements of constitutional due process would be unwarranted in the light of present authority.
The conclusion that the bank is not a state instrumentality involved in the transaction of setoff finds its final confirmation in the contrast between the role of the bank here and the role of the restaurant in Burton v. Wilmington Pkg. Auth. (1961) 365 U.S. 715 [6 L. Ed. 2d 45, 81 S. Ct. 856]. The court there held that a private restaurant, which leased its facility from a state parking authority, could not constitutionally refuse to serve blacks. The court's opinion comprehensively reviewed the relationship between the lessee and the parking authority, and concluded that the state "so far insinuated itself into a position of interdependence ... that it must be recognized as a joint participant in the challenged activity." (365 U.S. at p. 725 [6 L.Ed.2d at p. 52].)
*366 The present case, unlike Burton, involves the private decision of a private business operating on private property.[19] No state or federal regulation compels the bank to assert its right of setoff. "There is no evidence that Section 440 was a regulatory enactment pertaining to the banking industry, nor that banks exercise the power of setoff in furtherance of some state policy. The Bank is not publicly financed. The fact that it is generally regulated under federal law is insufficient to show state involvement in the particular action of setoff." (Jojola v. Wells Fargo Bank (N.D.Cal. 1973); accord, Bichel Optical Lab., Inc. v. Marquette Nat. Bk. of Mpls. (8th Cir.1973) 487 F.2d 906, 907.) (10) We conclude that under the Fourteenth Amendment a bank retains the same right of setoff as does any private creditor.
3. (11) Since the banker's setoff does not involve state action, it is not subject to the requirements of the due process clause of the California Constitution.
Amicus suggests that the bank's setoff violates article I, section 13, of the California Constitution, which states in part that "No person shall ... be deprived of life, liberty or property without due process of law." Those few cases which have discussed the California due process clause have assumed its prohibition is co-extensive with the due process clause of the Fourteenth Amendment.[20] Amicus challenges this assumption and argues that article I, section 13, unlike its counterpart in the Fourteenth Amendment, imposes no prerequisite of state action.
Article I, section 13, was adopted in 1849 and reenacted in 1879. It follows the exact language of the due process clause of the Fifth Amendment to the federal Constitution. From Barron v. Baltimore (1833) 32 U.S. (7 Pet.) 243 [8 L. Ed. 672] to the present, courts have uniformly interpreted that clause of the Fifth Amendment to limit only the actions of the federal government. Thus these decisions afford no ground for a conclusion that the drafters of article I, section 13, of our state Constitution intended by that enactment to impose a different limitation on the power *367 of state government.[21] (12) To construe article I, section 13, to apply to private action would involve a judicial innovation which, as of this date, is without precedent.
4. (13a) The bank may not exercise its right of setoff against deposits protected from creditors under Code of Civil Procedure section 690.175.
Plaintiff pleads that all monies deposited in her bank account came from state disability insurance and unemployment compensation. Funds derived from such sources are exempt from attachment and execution (Code Civ. Proc., § 690.175; Unemp. Ins. Code, § 1342.)[22] (14) Funds exempt by statute retain that exemption when deposited in a bank account.[23] Thus neither defendant bank, nor any other creditor, could seize plaintiff's deposits by writ of attachment or execution. The issue in the present case is whether defendant bank can take such deposits by exercise of a banker's setoff.
(15) We shall point out that the creditor's right to setoff is not absolute, but may be restricted by judicial limitations imposed to uphold a state policy of protecting the rights of the debtor. As we shall explain, the exercise of a banker's setoff against unemployment and disability benefits diverts money intended by the state to pay the current living expenses of the unemployed and the disabled into payment of past debts accumulated by the bank, leaving the intended beneficiaries no alternative but to seek additional relief from the state. Thus to permit bankers' setoffs against unemployment and disability benefits will frustrate the Legislature's objectives in providing such benefits and in protecting them from seizure by creditors. We conclude, therefore, that deposits derived from unemployment and disability benefits are immune from setoff.
*368 Before discussing the specific state policies underlying exemption of unemployment and disability benefits, we must first decide whether the courts can, and should, employ such policies to limit a creditor's right to setoff. The defendant points out that the banker's setoff is not an attachment or execution, and thus does not contravene the specific prohibitions of the exemption statutes; it then leaps to the conclusion that it may exercise a setoff against exempt deposits. This conclusion rests on the implicit but mistaken assumption that a creditor's right of setoff is absolute except when explicitly limited by statute. Rejecting that assumption, we shall demonstrate that under the law of California, and a majority of other jurisdiction, the courts in certain circumstances have limited the right of setoff in order to protect the rights of the debtor.
The California case most directly on point is the venerable decision of Beckman v. Manlove (1861) 18 Cal. 388. In that case, after one Williams obtained a judgment against defendant, the sheriff under writ of execution seized property of defendant that was exempt from execution. Defendant sued the sheriff for the value of the property, and the sheriff, obtaining an assignment of Williams' judgment against defendant, asserted that judgment as a setoff. Although no statute precluded the sheriff's claim of setoff, the court held that he could not use a setoff to retain possession of exempt property, observing that "A different doctrine would operate a practical repeal of the exemption laws." (18 Cal. at p. 389.)[24]
*369 Decisions of other states go further and proclaim a general principle that a creditor cannot assert a setoff against exempt property. The Colorado Supreme Court, in holding that an employer cannot set off the employee's obligation on promissory notes against exempt wages due him, summarized the state of the law: "`While there is contrary authority, the majority rule is that in any action the subject of which is exempt the defendant will not be permitted to defeat the exemption by setting up a counterclaim or setoff and this is true notwithstanding there is no express provision protecting exempt property from the right of counterclaim or setoff. This interpretation given to the exemption statutes is not in all cases the one which a literal following of its provisions would seem to require, but force and effect are sought to be given to the obvious legislative intent. The whole spirit of these acts is such that it was intended to protect the exempt property from all manner of coercive process of the law, and not merely ... from seizure by means of the processes technically known as attachment, execution, or garnishment, but to preserve them for the benefit of his family against any appropriation for the payment of his debts not authorized by law to which he does not consent. To allow a setoff would in most cases result in a palpable evasion of the law. [¶] The general rule seems to be that in such case the right to exemption will be respected and protected without regard to the right of offset and that the creditor will not be permitted to defeat the exemption by setting up a demand against the debtor's claim, even though such demand would otherwise be good as a counterclaim or setoff.'" (Finance Acceptance Company v. Breaux (1966) 160 Colo. 510 [419 P.2d 955, 957-958], quoting 47 Am.Jur., pp. 726-727 and 22 Am.Jur., p. 108; see generally cases collected in Annot., 106 A.L.R. 1070.)[25]
Concluding that the bank's right of setoff may be limited by judicial *370 decision, we turn to the specific issue raised by plaintiff's complaint on her own behalf whether state policy regarding unemployment and disability benefits renders such benefits immune from setoff.
The purpose of unemployment compensation was explained by the United States Supreme Court in California Human Resources Dept. v. Java (1971) 402 U.S. 121 [28 L. Ed. 2d 666, 91 S. Ct. 1347]: "Unemployment benefits provide cash to a newly unemployed worker `at a time when otherwise he would have nothing to spend'; serving to maintain the recipient at subsistence levels without the necessity of his turning to welfare or private charity. Further, providing for `security during the period following unemployment' was thought to be a means of assisting a worker to find substantially equivalent employment.... Finally, Congress viewed unemployment insurance payments as a means of exerting an influence upon the stabilization of industry." (402 U.S. at pp. 131-132 [28 L.Ed.2d at p. 674].) State disability insurance serves a similar purpose, providing subsistence income to one whose unemployment stems from an illness or injury not covered under workmen's compensation. (See Unemp. Ins. Code, § 2601; California Comp. Ins. Co. v. Ind. Acc. Com. (1954) 128 Cal. App. 2d 797, 806 [276 P.2d 148, 277 P.2d 442] [disapproved on other grounds in Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal. 2d 417, 422 [340 P.2d 622]].)
The legislative objective in providing unemployment compensation and disability benefits to furnish the unemployed worker and his family with a stream of income to defray the cost of their subsistence would obviously fail if creditors could seize that income and apply it to past debts. Consequently the Legislature provided that unemployment and disability benefits cannot be subjected to attachment or execution. (Code Civ. Proc., § 690.175; Unemp. Ins. Code, § 1342.)
(16) Although the banker's setoff differs from attachment and execution in that it does not require the aid of a state official, there is no relevant difference between the two procedures as to the state objective of protection of unemployment compensation and disability benefits from claims of creditors.[26] The assertion of a banker's setoff has exactly the same effect *371 as a third party's levy of execution on the account it deprives the depositor of the income which the state provided him to meet subsistence expenses, compelling the state either to give him additional money or leave him without means of physical survival.
With the growth of bank-sponsored credit systems, a bank may gather unto itself the debts incurred by a depositor for past living expenses and satisfy by setoff debts which, in the days before Master Charge and Bank Americard, would have been held by many separate merchants and enforceable only through execution.[27] To permit a bank which has thus collected the past obligations of its depositor to satisfy those claims from unemployment insurance deposits would completely defeat the state policy of preserving such deposits for the daily living expenses of the depositor. (13b) We conclude that if, as alleged, plaintiff's account consists of monies derived from unemployment compensation or state disability benefits, the bank may not set off its claims against that account.
Plaintiff Kruger also sues on behalf of the class of recipients of government benefits whose deposits are exempt from attachment and execution under Code of Civil Procedure section 690.18, subdivision (a).[28] Her own deposits, if derived from unemployment and disability benefits, are protected by section 690.175; we are uncertain, however, whether she properly represents the class of persons whose claim to exemption depends upon the provisions of section 690.18. (17) It is sufficient to decide this appeal upon the ground that plaintiff can state a cause of action individually and on behalf of a more limited class of persons whose deposits are protected by section 690.175.
5. Disposition of the instant case.
Under the reasoning of this opinion, the deposit of plaintiff Kruger, as well as those of other recipients of unemployment and disability benefits, is protected from setoff by defendant. Since her complaint states, or can *372 be amended to state,[29] a cause of action against defendant, the trial court erred in sustaining the demurrer without leave to amend.
The judgment is reversed.
Wright, C.J., McComb, J., Mosk, J., Burke, J., Sullivan, J., and Clark, J., concurred.
NOTES
[1] Section 690.18, subdivision (a), exempts from attachment or execution: "All money received by any person, a resident of the state, as a pension, or as an annuity or retirement or disability or death or other benefit, or as a return of contributions and interest thereon, from the United States government, or from the state, or any county, city, or city and county, or other political subdivision of the state, or any public trust, or public corporation, or from the governing body of any of them, or from any public board or boards, or from any retirement, disability, or annuity system established by any of them pursuant to statute, whether the same shall be in the actual possession of such pensioner or beneficiary, or deposited by him."
[2] In addition to sustaining a demurrer without leave to amend on the ground that plaintiff's complaint stated no cause of action, the superior court upheld grounds for demurrer asserting misjoinder of parties plaintiff, failure to state facts sufficient to entitle the plaintiff to injunctive or declaratory relief, and lack of subject matter jurisdiction. The court's ruling as to these matters does not include a denial of leave to amend; thus the court's judgment dismissing the action apparently rests solely on its ruling that the complaint did not state a cause of action. It is therefore unnecessary for us on this appeal to examine plaintiff's complaint to determine if it frames a proper class action, states grounds for declaratory and injunctive relief, and lies within the jurisdiction of the superior court. If we decide that the complaint does not state, and cannot be amended to state, a cause of action, such issues of pleading become moot; if we determine that plaintiff can state a cause of action, we must reverse the judgment dismissing her complaint. Upon return of her cause to the trial court, plaintiff may then amend to cure any defects in her pleading.
[3] "The relationship of bank and depositor is that of debtor and creditor, founded upon contract." (Bank of Marin v. England (1966) 385 U.S. 99, 101 [17 L. Ed. 2d 197, 200, 87 S. Ct. 274].)
[4] Plaintiff's complaint alleges that defendant exercised a banker's lien against her account, that the bank acted pursuant to the statutory authority of Civil Code section 3054, and that this statute is unconstitutional. The factual allegations of the complaint, however, demonstrate that the bank in fact asserted a setoff against her account. Any uncertainty in the complaint arising from her reference to the banker's lien can obviously be cured by amendment.
[5] As stated in Engleman v. Bank of America (1950) 98 Cal. App. 2d 327, 330-331 [219 P.2d 868]: "The right of offset exists in favor of a bank with which a customer makes a general deposit but ... [not] one which was to be used for a specific purpose.... A bank impliedly binds itself, by accepting a special deposit, not to set off against such deposit a debt due it from the depositor." Such special deposits typically are monies deposited to pay or secure a specific debt of the depositor (see Engleman v. Bank of America, supra, 98 Cal. App.2d at p. 331 and cases there cited); a checking account is considered a general deposit. (See Arnold v. San Ramon Valley Bank (1921) 184 Cal. 632, 635-636 [194 P. 1012, 13 A.L.R. 320].)
[6] Numerous articles discuss the jurisprudential problems of defining the limits of state action: Abernathy, Expansion of the State Action Concept Under the Fourteenth Amendment (1958) 43 Cornell L.Q. 375; Black, Forward: "State Action," Equal Protection and California's Proposition 14 (1967) 81 Harv.L.Rev. 69; Burke & Reber, State Action, Congressional Power and Creditors' Rights: An Essay on the Fourteenth Amendment (1972) 46 So.Cal.L.Rev. 1003; (1973) 47 So.Cal.L.Rev. 1 (hereafter cited as "Burke & Reber"); Hekin, Shelley v. Kraemer: Notes for a Revised Opinion (1962) 110 U.Pa.L.Rev. 473; Horowitz, The Misleading Search for "State Action": Under the Fourteenth Amendment (1957) 30 So.Cal.L.Rev. 208; Lewis, The Meaning of State Action (1960) 60 Colum.L.Rev. 1083; Van Alstyne & Karst, State Action (1961) 14 Stan.L.Rev. 3; Williams, The Twilight of State Action (1963) 41 Tex. L. Rev. 347.
[7] For discussion of the constitutionality of the bankers' setoff, see Burke & Reber, 47 So.Cal.L.Rev. 1, 33-43; Clark & Landers, Sniadach, Fuentes and Beyond: The Creditor Meets the Constitution (1973) 59 Va.L.Rev. 355, 400-402: Stillwater, The California Bankers' Lien Law: A Reappraisal of a Creditor's Remedy in a New Economic Context (1972) 27 Bus. Law. 777; Note, Banking Setoff: A Study in Commercial Obsolescence (1972) 23 Hastings L.J. 1585, 1602-1610.
[8] For an excellent review of the history of the doctrine of setoff, see Comment, Automatic Extinction of Cross-Demands: Compensatio from Rome to California (1965) 53 Cal.L.Rev. 224. (Hereinafter cited as Comment.)
[9] Effective July 1, 1972, section 440 was repealed and replaced by section 431.70. The new section states that "Where cross-demands for money have existed between persons at any point in time when neither demand was barred by the statute of limitations, and an action is thereafter commenced by one such person, the other person may assert in his answer the defense of payment in that the two demands are compensated so far as they equal each other...." The difference in wording between section 431.70 and former section 440 is not material to the case at hand.
[10] The analysis of the various forms of state action in this discussion follows that in the outstanding opinion of Judge Weigel in Jojola v. Wells Fargo Bank (N.D.Cal. 1973).
[11] See Robinson v. Florida (1964) 378 U.S. 153 [12 L. Ed. 2d 771, 84 S. Ct. 1693] [segregation of private facilities required by state law]; Peterson v. Greenville (1963) 373 U.S. 244 [10 L. Ed. 2d 323, 83 S. Ct. 1119] [same]; cf. Moose Lodge No. 107 v. Irvis (1972) 407 U.S. 163 [32 L. Ed. 2d 627, 92 S. Ct. 1965] [bylaws of private club excluded blacks; state regulations compelled all private clubs to enforce their bylaws].
[12] The depositor, as well as the bank, may exercise a right of setoff. (In re Bank of San Pedro (1938) 11 Cal. 2d 313, 316 [79 P.2d 1057].)
[13] Arguably former Code of Civil Procedure section 440 went beyond the prior law in providing for automatic setoff of claims (see Comment, 53 Cal.L.Rev. 224, 252-266), but defendant bank does not rely on this feature of the statute.
[14] A number of cases have considered the issue of state action in connection with Uniform Commercial Code article 9, section 503, which permits a secured creditor peaceably to take possession of the collateral without resort to the judicial process. The weight of authority upholds article 9, section 503 on the ground that the codification of a pre-existing common law and contractual remedy is not sufficient state action to bring into play the Fourteenth Amendment. (See Adams v. Southern Cal. First. Nat. Bank (9th Cir.1973) 492 F.2d 324; cases cited in Burke & Reber (1973) 47 So.Cal.L.Rev. 1, 8 at fn. 490.)
[15] For discussion of Shelley v. Kraemer, and the Supreme Court's refusal to extend the principles of that case, see generally Burke & Reber (1972) 46 So.Cal.L.Rev. 1003, 1086-1091; Henkin, Shelley v. Kraemer: Notes for a Revised Opinion (1962) 110 U.Pa.L.Rev. 473; Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler (1959) 108 U.Pa.L.Rev. 1; Silard, A Constitutional Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee (1966) 66 Colum.L.Rev. 855.
[16] Georgia Senator Augustus Bacon willed a park to the City of Macon for the use of white persons only. The city, however, opened the park to blacks. In the first case, Evans v. Newton (1966) 382 U.S. 296 [15 L. Ed. 2d 373, 86 S. Ct. 486], the court held that an order of a state court removing the city as trustee, and appointing new trustees who would operate a segregated park was unconstitutional state action. The state court then held that since the purpose of the trust operation of a park for white persons only had become impossible of fulfillment, the trust was terminated and the land reverted to the Senator's heirs. In the second case, Evans v. Abney (1970) 396 U.S. 435 [24 L. Ed. 2d 634, 90 S. Ct. 628], the Supreme Court affirmed this state ruling, holding that the Georgia courts did no more than apply neutral and well-settled principles of interpretation of wills. The court distinguished Shelley v. Kraemer (supra, 334 U.S. 1) as involving affirmative enforcement of private discrimination. (396 U.S. at p. 445 [24 L.Ed.2d at p. 644].) The dissenting opinion of Justice Brennan agreed that Shelley v. Kraemer did not transform private testamentary acts into state conduct, but argued that Shelley did prohibit the state from preventing the city from operating an integrated park by enforcing a privately devised racial restriction. (396 U.S. at p. 456 [24 L.Ed.2d at p. 650].) (See The Supreme Court, 1969 Term (1970) 84 Harv.L.Rev. 30, 54-60.)
[17] See Bichel Optical Lab., Inc. v. Marquette Nat. Bk. of Mpls. (8th Cir.1973) 487 F.2d 906; Jojola v. Wells Fargo Bank (N.D.Cal. 1973); cases cited in Burke & Reber (1973) 47 So.Cal.L.Rev. 1, 8 at footnote 490.
[18] See Franklin Nat. Bank v. New York (1954) 347 U.S. 373, 374-375 [98 L. Ed. 767, 772-773, 74 S. Ct. 550]; 7A Michie, Banks and Banking (1973) pp. 2-3.
[19] See Moose Lodge No. 107 v. Irvis (1972) 407 U.S. 163, 175 [32 L. Ed. 2d 627, 638-639, 92 S. Ct. 1965].
[20] Gray v. Hall (1928) 203 Cal. 306, 318 [265 P. 246]; Gray v. Whitmore (1971) 17 Cal. App. 3d 1, 20 [94 Cal. Rptr. 904]; Abstract Investment Co v. Hutchinson (1962) 204 Cal. App. 2d 242, 245 [22 Cal. Rptr. 309]; Redevelopment Agency v. Hayes (1954) 122 Cal. App. 2d 777, 806 [266 P.2d 105]; Manford v. Singh (1919) 40 Cal. App. 700 [181 P. 844].
[21] We by no means imply that the California due process clause must in all instances be interpreted identically with the due process clause of the Fifth Amendment. (See generally Falk, The State Constitution: A More Than "Adequate" Nonfederal Ground (1973) 61 Cal.L.Rev. 273, 282-286.)
[22] Code of Civil Procedure section 690.175 states among the property exempt from attachment or execution under Code of Civil Procedure section 690 are: "State unemployment compensation benefits ... or unemployment compensation disability benefits.... Such benefits or payments, prior to actual payment, shall be exempt without filing a claim of exemption, as provided in Section 690.50."
Unemployment Insurance Code section 1342 states that: "... Benefits under this code ... are not subject to assignment, release, or commutation, and are exempt from attachment and execution pursuant to Sections 690.175 and 690.18 of the Code of Civil Procedure...."
[23] Holmes v. Marshall (1905) 145 Cal. 777, 782-783 [79 P. 534]; Bowman v. Wilkinson (1957) 153 Cal. App. 2d 391, 395-396 [314 P.2d 574]; Hing v. Lee (1918) 37 Cal. App. 313, 317 [174 P. 356]; see Porter v. Aetna Casualty Co. (1962) 370 U.S. 159, 162 [8 L. Ed. 2d 407, 410, 82 S. Ct. 1231]; Annot., 67 A.L.R. 1203.
[24] Many other California cases have limited the right of setoff in order to carry out state policies protecting the interest of the debtor. McKean v. German-American Savings Bank (1897) 118 Cal. 334 [50 P. 656], held that the one-action rule of Code of Civil Procedure section 726 bars a mortgagee's assertion of a secured debt to setoff an unsecured debt. In Roberts v. Spires (1925) 195 Cal. 267 [232 P. 708, 37 A.L.R. 763], when the owner of a building under construction attempted to set off against the contract price her claim for damages owing by the general contractor, the court rejected the setoff, stating that "The unpaid balance of the contract price constitutes a fund which is set apart for the satisfaction of lien claimants." (195 Cal. at pp. 270-271.) In Keck v. Keck (1933) 219 Cal. 316 [26 P.2d 300], the court held that a husband could not set off his wife's debt to him against an award of alimony because "alimony ... cannot be garnished or appropriated to payment of the wife's debts contracted prior to the decree granting the alimony, either where her creditor is a third party or her divorced husband." (219 Cal. at p. 320.) Avila v. Leonardo (1942) 53 Cal. App. 2d 602 [128 P.2d 43] held that child support payments are not subject to setoff. Williams v. Williams (1970) 8 Cal. App. 3d 636 [87 Cal. Rptr. 754], reiterated that both alimony and child support are immune. Setoff cannot be asserted to defeat the state's claim for taxes (Berryessa Cattle Co. v. Sunset Pacific Oil Co. (9th Cir.1937) 87 F.2d 972, 974), nor an injured employee's claim for workmen's compensation benefits (see, e.g., Linder v. McBride (1920) 7 I.A.C. 144). Four years ago, in Crooks v. State Bar (1970) 3 Cal. 3d 346, 358 [90 Cal. Rptr. 600, 475 P.2d 872], we ruled that an attorney cannot setoff fees due him against trust funds owed to his client.
[25] Several California cases have permitted employers to set off debts owing them by employees against the employee's wages. (McDaniel v. City etc. of San Francisco (1968) 259 Cal. App. 2d 356, 365 [66 Cal. Rptr. 384]; Patterson v. Henderson T. & R. Co. (1931) 112 Cal. App. 48 [296 P. 304]; see Division of Labor Law Enforcement v. Barnes (1962) 205 Cal. App. 2d 337, 350 [23 Cal. Rptr. 55] [disapproved on other grounds in White Lighting Co. v. Wolfson (1968) 68 Cal. 2d 336, 351 [66 Cal. Rptr. 697, 438 P.2d 345]]; People v. Porter (1930) 107 Cal. App. Supp. 782 [288 P. 22].) Although one half of wages is exempt from attachment and execution (see Code Civ. Proc., § 690.6), these cases do not discuss the relationship of the state policy providing for this exemption to the employer's assertion of setoff, nor recognize that the majority view in other jurisdictions is that exempt wages are not subject to setoff. (See Finance Acceptance Company v. Breaux (1966) 160 Colo. 510 [419 P.2d 955, 957].) We do not, therefore, regard these decisions as establishing a California rule permitting assertion of setoffs against exempt property.
[26] The bank protests that it may not know whether a customer's account contains funds from exempt sources; if it inquired from the depositor he might withdraw the money before the bank could claim its setoff. But in this respect the bank occupies the same position as any other creditor who seeks to satisfy his claim by levy upon a bank account; such a creditor can either inquire beforehand, or levy upon the account, taking the risk that he is seizing exempt property. The only difference lies in the fact that since a setoff requires no act of a state officer, the debtor cannot file a claim to exemption with a levying officer, but must seek judicial relief.
[27] See Stillwater, The California Banker's Lien Law: A Reappraisal of a Creditor's Remedy in a New Economic Context (1972) 27 Bus. Law. 777, 781-782.
[28] Quoted in footnote 1, supra.
[29] See footnotes 2 and 4, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726263/ | 970 So. 2d 114 (2007)
O'DWYER
v.
EDWARDS.
No. 2007-CA-0544.
Court of Appeal of Louisiana, Fourth Circuit.
November 28, 2007.
JONES, J.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2201899/ | 86 Md. App. 518 (1991)
587 A.2d 561
JOHN WILLIAM BARNHARD, JR.
v.
STATE OF MARYLAND.
No. 597, September Term, 1990.
Court of Special Appeals of Maryland.
March 28, 1991.
Murray L. Deutchman (Levin & Gann, P.C., on the brief), Rockville, for appellant.
Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.
Argued before BISHOP, ROSALYN B. BELL and CATHELL, JJ.
ROSALYN B. BELL, Judge.
A jury in the Circuit Court for Montgomery County convicted John William Barnhard, Jr. of resisting arrest. He raises four issues for our review:
Whether the acts of the police amounted to an arrest or detention at the time that Barnhard was told that he could not leave without giving his name.
Whether the arrest or detention, which occurred at the time Barnhard was advised that he could not leave without giving his name, was a lawful arrest or detention.
Whether Barnhard's initial reactions to being told that he could not leave amounted to unlawful resisting arrest as a matter of law.
Whether the trial court was correct in this case in instructing the jury that it was bound by the law and that counsel could not argue the law to the jury.
The first two issues, in essence, challenge the jury instructions dealing with Barnhard's detention; namely, whether it was an arrest. We will address the issue of those instructions together with the fourth issue. The third issue will be dealt with separately because it is essentially an attack on the sufficiency of the evidence. We will affirm.
FACTS
A stabbing occurred at Bubba Louie's Bar in Wheaton on November 27, 1989.[1] Beyond this, Barnhard and the State agree on little else. In the interests of clarity and brevity, we have condensed the testimony into "prosecution" and "defense."
Prosecution
Numerous police officers testified at trial on behalf of the prosecution. Generally, they stated that Barnhard was disorderly, which prompted his arrest. In their view, Barnhard impeded their investigation of the stabbing immediately upon their arrival by blocking access to the crime scene, disrupting the investigation, and inciting the crowd. Barnhard refused to answer questions regarding his identity. He was loud and abusive to the police, using obscenities, gestures and threats. Barnhard insisted the police could not stop him or talk to him and if they persisted in interfering with him, there would be violence. According to the police officers, Barnhard continued to gesture threateningly. Because the conduct continued, Barnhard was placed under arrest for disorderly conduct. At this point, the officers testified that Barnhard resisted arrest and assaulted them by throwing punches, breaking their hold on him, and attempting to strike them with a flashlight and a loose handcuff. Ultimately, one officer struck Barnhard three times with her flashlight to subdue him.
Defense
Barnhard and his witnesses saw it differently. In their view, the police instigated the confrontation by not allowing Barnhard to leave and threatening him with arrest if he did not give his name. Finally, they seized him and, in response, Barnhard resisted. Defense testimony indicated that Barnhard repeatedly tried to leave the scene, but was stopped and even threatened with arrest for not providing his name to the police. Barnhard declined to give his name but allowed the police to search his jacket upon request. According to defense witnesses, the jacket ended up on the floor. Barnhard testified that the officer searching the jacket told him she was "starting trouble" with him. Testimony indicated that at this time handcuffing was attempted, but Barnhard pulled his arm away. In response, a female officer hit him on the head with a flashlight. Barnhard left the premises under arrest. He was later charged with counts of assault, resisting arrest and disorderly conduct.
JURY INSTRUCTIONS AND COUNSEL'S CLOSING ARGUMENT
Appellant claims the trial court should have instructed the jury that he was arrested at the point when the police initially detained him to learn his identity. He also argues that the trial court erred in instructing the jury that it was bound by the court's instructions as to the law. He further contends that the court erred when it prevented counsel from arguing his interpretation of the law.
Instruction that Appellant was Arrested when the Police Sought to Detain Him to Learn His Identity
After discussions with counsel, the trial court gave extensive instructions on the resisting arrest charge. The court prefaced its instructions with a factual chronology that the court emphasized was only illustrative and not binding on the jury. The court stated at one point: "I don't mean for you to find the facts this way."
The court began its instructions to the jury by noting that the evidence appeared to show that the police responded to a stabbing; an encounter with appellant ensued; and the police alleged that he acted in a disorderly fashion. The court stated that appellant "contested that, and of course that is going to be something you are going to have to find." Continuing, the court noted that the police alleged that they then attempted to arrest him, that he resisted arrest, and that he assaulted each of the officers.
Turning to the encounter with appellant, the court stated:
"You are advised that the officer, let me speak generally here for a moment; officers have the right to detain an individual briefly short of arresting him for purposes of questioning where a crime has been committed and the individual is known to have been a witness to that crime.
"Now, this is short of arresting, understand; questioning. For purposes of this case you may also assume that the [appellant] had the right to refuse to identify himself to the officers. He needn't answer that question. The issue in this case, or one of the underlying issues in this case is whether in refusing to identify himself to the officers the [appellant] did so in a way as to engage in disorderly conduct.
"That is the issue in this case, not whether or not he had a right to refuse but whether he in some fashion refused to do so in a disorderly fashion. Now, you are going to consider this in two ways because I am going to go back and give you the specific ways in which this develops in a moment.
"One of the questions you are going to have to answer in this case is did the [appellant] commit disorderly conduct because that is one of the charges he is concerned with. The State is going to have to prove each and every element beyond a reasonable doubt and I will tell you about the elements in disorderly conduct in a minute.
"Now, there is a second way in which you have to consider the disorderly conduct charge and that is in connection with the resisting arrest. The question you are going to have to answer there is did the police have probable cause to believe that the [appellant] committed disorderly conduct.
"In other words, the police when they arrested him may have had good some sufficient reason I will explain what this means in a moment to arrest him even though in the end he ends up not being guilty of disorderly conduct. If the police had probable cause, something less than that, to arrest him for then he yet may be guilty of resisting arrest even though you would finally find him not guilty of disorderly conduct.
"If the police had reasonable cause at the time they attempted to do so you could still find him guilty of resisting an arrest, a lawful arrest, on the theory that the police do not always know and can't prove then and there that somebody is absolutely guilty of an offense but there may be reason within which somebody can be apprehended.
"I just want you to see that that is the way that disorderly conduct functions. In the one instance you are going to have to find that in fact he was guilty of disorderly conduct and then when we talk about resisting arrest you are going to have to consider disorderly conduct whether the police had probable cause to believe, that is something less than absolute proof to believe that he was guilty of disorderly conduct."
The court moved on to an instruction on the elements of disorderly conduct, followed by a detailed instruction on the elements of resisting arrest. The court said that the crime consisted of three elements: (1) the defendant must be arrested; (2) the arrest must be lawful; and (3) the defendant resists or refuses to submit to that arrest. The court then discussed what constitutes an arrest. Next, the court defined a lawful arrest. The court repeatedly emphasized that the only issue the jury was to consider with regard to the lawfulness of the arrest was whether there was probable cause to believe appellant was guilty of disorderly conduct. Finally, the court also defined the concept of resistance.
The court emphasized that, if an arrest is unlawful, the arrestee can use any reasonable means, including force, to escape. If appellant used unreasonable force, then the jury could find him guilty of an assault. The court then defined the crime of assault.
At the conclusion of the instructions, defense counsel objected, stating that he disagreed with the court in connection with the law as it applied to the original detention. Counsel requested that the court instruct the jury that, "at the time the police officer approached [appellant,] he was considered arrested[.]" The court stated that counsel could argue to the jury when the arrest occurred. The court, however, declined to instruct the jury as to when it occurred, noting that a "fair difference of opinion" existed about when the arrest did occur.
The court instructed the jury that when the arrest occurred constituted one of the significant issues. The court stated that the jury could find appellant not guilty of disorderly conduct if the disorderly conduct occurred subsequent to the arrest and the conduct was committed resisting an unlawful arrest. The court continued, stating that, if the conduct occurred before the arrest, it could serve as the basis of a lawful arrest.
The trial court's extensive instructions were not erroneous. Appellant claims the court erred by not informing the jury that a detention of any sort constituted an "arrest" and, therefore, resistance to that detention would be justified. We do not agree. The detention must rise to the level of an arrest as well as be unlawful to justify appellant's conduct.
When a police officer stops a person, that action is not tantamount to an arrest. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In McChan v. State, 238 Md. 149, 157, 207 A.2d 632 (1965), cert. denied, 384 U.S. 1021, 86 S.Ct. 1929, 16 L.Ed.2d 1022 (1966), the Court of Appeals discussed arrest:
"An arrest has been defined as `the detention of a known or suspected offender for the purpose of prosecuting him for a crime.' Cornish v. State, 215 Md. 64, 67, 137 A.2d 170, 172 (1957). As that case points out there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits. Where there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit. When one is approached by a police officer and merely questioned as to his identity and actions, this is only an accosting and not an arrest."
In contrast, a stop is much less intrusive than an arrest. See generally Terry, 392 U.S. 1, 88 S.Ct. 1868, supra.
Whether the initial detention in this case amounted to an arrest is factually a very close question. Appellant presented evidence that the officers indicated, and he believed, that he was under arrest before he became assaultive. The State, however, presented evidence that his assaultive conduct occurred when the police were merely questioning him. The State's evidence indicated that he was arrested after he became hostile. Thus, whether the initial detention was an arrest or a stop was a question for the jury to decide. Apparently, the jury decided the initial detention was a stop and we cannot say it was wrong as a matter of law.
In Maryland, if a person is illegally arrested, he or she may use any reasonable means, including reasonable force, to effect his or her escape. Rodgers v. State, 280 Md. 406, 410, 373 A.2d 944, cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977). In Rodgers, the Court reviewed the history of the right to resist an unlawful arrest. It noted that the underlying rationale for this right was the "provocation" of the unlawful arrest, which served to excuse an assault designed to thwart the unlawful arrest. Rodgers, 280 Md. at 412, 373 A.2d 944.
The Rodgers Court refused to expand the right to resist to an unlawful arrest made pursuant to a facially defective warrant. It noted that a growing number of jurisdictions had, in fact, restricted the right to resist an unlawful arrest. Rodgers, 280 Md. at 415-16, 373 A.2d 944. That decision rested on several grounds applicable here. First, quoting an address by Judge Learned Hand, the Court stated that the idea that one may resist a peaceful arrest is "`not a blow for liberty but on the contrary, a blow for attempted anarchy.'" Rodgers, 280 Md. at 418, 373 A.2d 944. Second, resisting an arrest often resulted in injuries to police officers, suspects, and passersby that were much more grave than the unlawful arrest itself. Rodgers, 280 Md. at 419-20, 373 A.2d 944. The Court stated that physical resistance to an arrest was "[t]he least effective and least desirable of all possible remedies; as such, its rejection, particularly when balanced against the State's interest in discouraging violence, cannot be realistically considered a deprivation of liberty." Rodgers, 280 Md. at 421, 373 A.2d 944.
Much of the underlying rationale in Rodgers for restricting the right to resist arrest is applicable here. If it were not, police officers would be subject to attack in every instance when, during the course of their investigation, they temporarily detain someone. To recognize the right to resist such momentary seizures, short of an arrest, serves only to expand the danger of violence. In keeping with the rationale set out in Rodgers, we conclude that there is no right to resist an "illegal" stop.
A further reason not to apply the defense of resisting an unlawful arrest to a mere stop is based on the distinction between a stop and an arrest. The stop, while an intrusion on liberty, is slight compared to the deprivation of freedom that results from an arrest.
"An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows."
Terry, 392 U.S. at 26, 88 S.Ct. at 1882. On the other hand, stops, by their nature, are momentary. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. ___, ___, 110 S.Ct. 2481, 2485-86, 110 L.Ed.2d 412, 420-21 (1990) (reasonableness of suspicionless motor vehicle stops to detect drunk drivers is measured by balancing important governmental interests against minimal intrusion occasioned by stop).
It follows that the "provocation" resulting from an illegal arrest is much more pronounced than the "provocation" reasonably stemming from a stop. Therefore, even if the initial stop of appellant was illegal, his subsequent actions must still be examined to determine whether that conduct justified an arrest. See Diehl v. State, 294 Md. 466, 478-79, 451 A.2d 115 (1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 363 (1983) (where police officer's illegal command prompted entire episode, Court still analyzed defendant's responses to determine if they rose to level of disorderly conduct, justifying arrest); Jenkins v. State, 232 Md. 529, 535, 194 A.2d 618 (1963) (even assuming an initial illegal investigation and attempt to stop, subsequent traffic violations committed in officers' presence served as basis for arrest).
Even if we found an illegal stop could be resisted, the stop of appellant was legal. The momentary detention of a material witness to allow the police to investigate a crime is permissible, even if the police do not suspect the person of wrongdoing. In Watkins v. State, 288 Md. 597, 605, 420 A.2d 270 (1980), the Court of Appeals quoted with approval the ALI, A Model Code of Pre-Arraignment Procedure § 110.2 at 272 (Commentary 1975):
"`[W]here a crime may have been committed and a suspect or important witness is about to disappear, it seems irrational to deprive the officer of the opportunity to `freeze' the situation for a short time, so that he may make inquiry and arrive at a considered judgment about further action to be taken. To deny the police such a power would be to pay a high price in effective policing and in the police's respect for the good sense of the rules that govern them.'"
Other forms of similar temporary restraint also have been held to be reasonable. For example, in Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981), the Court held that the police could detain all persons in a house during a search pursuant to warrant.
Police officers, in the normal course of investigating a crime, may detain the person momentarily in an attempt to learn what the person knows. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979), demonstrates, however, that the person does not have to cooperate. The right of the individual to refuse to divulge his identity does not mean that the police cannot seek cooperation in their investigative efforts or temporarily detain him to learn his identity by other means. Cf. Martin v. State, 51 Md. App. 142, 150, 442 A.2d 191 cert. denied, 293 Md. 547 (1982).
The trial court's instructions were balanced. The instructions stated that the police could detain appellant temporarily; that he did not have to answer their questions; and that he only had the right to resist if he had been unlawfully arrested. The facts of this case were hotly contested. From the testimony, the jury could have reasonably believed that prior to his disorderly conduct: there was no detention of appellant; or there was a stop but no arrest; or there was an arrest. The instruction given covered all of these possibilities. We find no error.
Jury and Counsel Bound by the Court's Instruction
The trial court instructed the jury that it was bound by the court's interpretation of the law and that it was obligated to apply the rule of law as stated by the court. At the conclusion of the instructions, defense counsel excepted, maintaining that the jury should have been instructed that it was the judge of the law. Counsel also maintained that he should be able to argue what the law was, as it applied to appellant's "original detention."
In 1955, in Schanker v. State, 208 Md. 15, 21, 116 A.2d 363 (1955), the Court of Appeals stated:
"Under our almost unique Constitutional provision any instructions on the law which the [trial] court may give ... are purely advisory and the court must so inform the jury."
In 1976, in Dillon v. State, 277 Md. 571, 580, 357 A.2d 360 (1976), the Court of Appeals reaffirmed the principle that a court must inform the jury that its instructions as to what the law is are merely advisory, and that the jury is not bound to follow them. In Dillon, 277 Md. at 581, 357 A.2d 360, the Court went on to explain that defendants are entitled to have their counsel explain to the jury their legal theories, even though these theories may be at variance with the trial court's advisory instructions. These principles are grounded in Article 23 of the Maryland Declaration of Rights which provides:
"In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of facts, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."
In more recent years, Article 23 has been interpreted in a less literal manner and the language of Schanker and Dillon has been eroded. In Stevenson v. State, 289 Md. 167, 176, 423 A.2d 558 (1980), the Court of Appeals[2] noted:
"Despite Article 23's facial breadth, it is a postulate well recognized in the prior decisions of this Court, and one which the United States Supreme Court correctly observed in Brady v. Maryland, 373 U.S. 83, [89, 83 S.Ct. 1194, 1198, 10 L.Ed.2d 215] (1963), that Article 23 `does not mean precisely what it seems to say.'"
The trial court is not uniformly required to instruct the jury that it is the judge of the law. See, e.g., Stevenson. Furthermore, counsel can be prohibited from arguing a view of the law contrary to that expressed by the court in its instructions. See Montgomery v. State, 292 Md. 84, 89, 437 A.2d 654 (1981). As the Court stated in Montgomery, "counsel may not in their arguments attempt to persuade the jury to enact new law or repeal or ignore existing law." Montgomery, 292 Md. at 89, 437 A.2d 654. Thus, where no "sound basis for a dispute as to the law of the crime [exists], the court's instructions are binding on the jury and counsel as well." Montgomery, 292 Md. at 89, 437 A.2d 654. As we explained, the trial court's instructions covered all the possibilities arising under the facts of this case. Appellant presented no sound basis to dispute the law.
SUFFICIENCY OF THE EVIDENCE
Appellant argues in his brief that the police unlawfully detained him when they informed him that he could not leave without giving his name. He also argues that he had the right to resist that unlawful detention, "first with words, then with threatening gestures, and then with physical force." As already stated, based on the facts, the jury reasonably concluded that he resisted a lawful arrest.
In deciding any claim relating to sufficiency of the evidence, the appropriate inquiry is not whether we would have reached a different verdict:
"[i]nstead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). One purpose of this rule is to give "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. "[A]ll of the evidence is to be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original) (footnote omitted).
Here, the significant events began inside the bar when appellant decided to leave.[3] As previously noted, evidence was presented that appellant's language and actions disrupted the crime scene and investigation, challenged the police, and incited the crowd against the police. Police testimony also indicated that these acts precipitated appellant's arrest for disorderly conduct. In light of this evidence, a rational jury could find the police had at least probable cause to arrest appellant for disorderly conduct.
Appellant does not dispute that these actions were disorderly, only that the arrest occurred prior to these acts. The police officers testified, however, that, as a result of these acts, one of them then announced that appellant was under arrest and touched him on the shoulder. Certainly, an arrest occurred at that point. See Childress v. State, 227 Md. 41, 43, 175 A.2d 18 (1961) (arrest occurred when officer laid his hand on suspect's shoulder and told him he was under arrest). At that point, one officer attempted to put handcuffs on appellant while two others held him. According to testimony, appellant, who does not dispute that he attempted to resist, struggled and punched at the officers. Testimony indicated he flailed with the handcuffed arm, attempting to hit the officers with the handcuffs. He also attempted to grab a flashlight. Viewing this evidence in the light most favorable to the prosecution, a rational jury could reasonably conclude that appellant resisted a lawful arrest.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Apparently, Barnhard was not considered a suspect in the stabbing.
[2] For background on the change of interpretation of Article 23, see Stevenson, 289 Md. at 173-76, 423 A.2d 558.
[3] Appellant was arguably also disorderly outside the bar when the police first arrived. According to one officer, appellant blocked the entrance to the bar, threatened the police with a stick, and yelled at the officers that he would not get out of the way, saying the police would have to kill him. He swore at them, calling them a bunch of "fucking cops." Those actions served to prevent the police from entering the bar, which could amount to the common law offense of obstructing a police officer in the course of her duties. See Cover v. State, 297 Md. 398, 413, 466 A.2d 1276 (1983) (outlining elements of offense). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743935/ | 771 So. 2d 1122 (2000)
Ex parte Michael Brandon SAMRA.
In re Michael Brandon Samra
v.
State of Alabama.
1982032 and 1982042.
Supreme Court of Alabama.
March 3, 2000.
Rehearing Denied May 5, 2000.
Richard W. Bell, Birmingham; and Richard W. Vickers, Pelham; and John H. Wiley III, Birmingham, for petitioner.
Bill Pryor, atty gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent.
HOUSTON, Justice.
The defendant, Michael Brandon Samra, was convicted of capital murder for the killings of Randy Gerald Duke, Dedra Mims Hunt, Chelisa Nicole Hunt, and Chelsea Marie Hunt. The murders were made capital because they were committed by one act or pursuant to one scheme or course of conduct. See Ala.Code 1975, § 13A-5-40(a)(10). The jury unanimously recommended that the defendant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the defendant to death. The Court of Criminal Appeals unanimously affirmed both the conviction and the sentence. See Samra v. State, 771 So. 2d 1108 (Ala.Crim. App.1999). The defendant filed two petitions for the writ of certiorari, which we granted pursuant to Rule 39(c), Ala. R.App. P.
We have carefully read and considered the briefs and the arguments of counsel, and we have searched the record for any plain error. Rule 39(k), Ala. R.App. P. We have found no error in either the guilt phase of the trial or the sentencing phase of the trial that adversely affected the defendant's rights. Furthermore, we conclude that the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence and that the death sentence was proper under the circumstances. Ala. Code 1975, § 13A-5-53(a) and (b). The judgment of the Court of Criminal Appeals is affirmed.[1]
AFFIRMED.
HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.
NOTES
[1] We note that we do not necessarily approve of the following statement in the opinion of the Court of Criminal Appeals:
"`There is irony in a convicted murderer's contending on appeal that pictures of the corpse of his victim might have inflamed the jury. That risk "comes with the territory."'"
771 So.2d at 1118. The purpose of appellate review of a criminal case is to determine whether the defendant received a fair trial. This statement appearing in the opinion of the Court of Criminal Appeals seems to assume the very proposition challenged by a defendant on appealthe validity of his or her conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1985112/ | 118 Ill. 2d 163 (1987)
514 N.E.2d 970
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
MARY O. CISEWSKI, Appellant.
No. 63812.
Supreme Court of Illinois.
Opinion filed October 5, 1987.
*164 *165 *166 James J. Doherty, Public Defender, of Chicago (Georgeen M. Carson, Assistant Public Defender, of counsel), for appellant.
Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Mark L. Rotert, Assistant Attorney General, of Chicago, and Thomas V. Gainer, Jr., Kenneth T. McCurry, and Maureen O'Brien, Assistant State's Attorneys, of *167 counsel), for the People.
Judgments affirmed.
CHIEF JUSTICE CLARK delivered the opinion of the court:
The defendant, Mary Cisewski, was convicted by a jury in the circuit court of Cook County of the voluntary manslaughter of her husband, Donald Cisewski (Ill. Rev. Stat. 1983, ch. 38, par. 9-2(b)). She was sentenced to five years' imprisonment. The appellate court, with one judge dissenting, affirmed the conviction (144 Ill. App. 3d 597), and we granted the defendant's petition for leave to appeal. (103 Ill.2d R. 315.)
The issues presented in this appeal are: (1) whether the State's failure to comply with Supreme Court Rule 412(a)(ii) (107 Ill.2d R. 412(a)(ii)) entitles defendant to a new trial; and (2) whether the prosecutor's statements during rebuttal closing argument deprived the defendant of a fair trial under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2). We affirm the defendant's conviction and sentence.
The record in this case reveals that the defendant had suffered for a number of years from paranoid fears. She falsely believed that she was being harassed by police, tenants, lawyers, and others who she believed were part of a conspiracy against her. In 1979 or 1980, in response to her fears, she purchased a.32-caliber revolver to protect herself.
In late 1980, the defendant met Donald Cisewski and the two were married in November of 1981. The record reveals that Donald was aware of the defendant's "harassment" beliefs at the time of their marriage. Sometime shortly after they were married, the defendant began to suspect that Donald was part of the conspiracy against her. She believed that there was a plot to have *168 her killed and that Donald was "being pushed to carry it out."
On February 9, 1982, the defendant came home from work and discovered that her gun was missing from the location where she kept it. Donald claimed that he did not know where the gun was, but the next evening he inexplicably produced the box of bullets to the gun. The defendant became frightened, believing that if he had taken the bullets he also must have taken the gun. She immediately searched his car and found the loaded gun in the glove compartment. The defendant brought the gun into the house and hid it in a drawer in the dining room. The defendant testified that Donald never admitted that he took the gun and she did not tell him that she had found it in his car.
Over the next few days, the defendant's fear that Donald planned to kill her intensified. She talked to her children and made arrangements to move in with one of them within the next few weeks. The couple's arguing continued. According to the defendant, Donald told her that no matter what he did to her the police would arrange to have her death reported as a suicide.
On Friday, February 12, the defendant came home from work and made several telephone calls to her children. She drank a few beers in an effort to calm her heightened feelings of desperation. When Donald came home from work that evening, he and the defendant began to argue in the kitchen. While they were arguing, Donald got up and went into the living room and sat down. The defendant then took the loaded gun from the drawer in the dining room and went into the living room with the gun in her hand. She showed Donald the gun and asked him if he thought it was funny. She said to him, "Your problem is you think everything is funny." The defendant then shot her husband in the head and abdomen.
*169 The defendant testified in her own behalf at trial. She stated that she had no intention of firing the gun, but only wanted to scare Donald. The defendant testified that she had no memory of firing the shots. She said that she fainted and when she regained consciousness she realized the gun had been fired. The defendant then walked into the kitchen, put the gun down and called the police.
The police officer who responded to the call testified that when he arrived at the Cisewski home, the defendant told him that, following an argument, she shot her husband twice. Another investigating officer, who later interviewed the defendant at the police station, testified that the defendant told him that when she pointed the gun at Donald, he said something to the effect of "No, Mary, no." The defendant told the officer that she shot Donald once, but could not recall having fired the second shot. However, she subsequently told an assistant State's Attorney, in the officer's presence, that she shot her husband twice.
A ballistics expert testified on behalf of the State that the "trigger pull" on the defendant's gun was "heavy." This testimony was put forth by the State to obviate any suggestion advanced by the defendant that the gun went off accidentally.
Dr. Albert Stipes, a psychiatrist called by the defense, testified that upon examining the defendant, he found that she suffered from paranoia and had delusions that there was a conspiracy against her. Dr. Stipes found that the defendant was suspicious of everyone, had felt threatened particularly by her husband, and believed that he was going to kill her. According to Dr. Stipes the defendant did not, however, believe that her husband was attacking her at the time she shot him. Dr. Stipes found the defendant sane and fit to stand trial.
*170 During the trial, the State introduced evidence that sometime after the shooting the defendant had telephoned her husband's employer, Teledyne Corp., to inquire about his paycheck and life insurance proceeds. The record indicates that the State first inquired of this phone call during its cross-examination of the defendant. The defendant objected to this line of questioning on the grounds that the State had not given any information to the defendant prior to trial regarding the substance of any statements allegedly made by the defendant to Teledyne, and that the defendant had no knowledge of any rebuttal witnesses. At a sidebar conference, the State responded that it had, in fact, disclosed, prior to the commencement of trial, the name of Teledyne employee Patricia Stanford as a rebuttal witness on its supplemental answer to discovery. Defense counsel then stated, "[I]f the State will tell us what the conversation [was], we have no problem." In response, the State told defense counsel that the defendant had called Patricia Stanford at Teledyne Corp. asking for the $27,000 insurance money she believed she was owed as the named beneficiary on Donald's policy. Defense counsel then moved for a mistrial on the basis of a discovery violation, which, along with defendant's earlier objection, was denied. The State's cross-examination of the defendant ceased and the trial continued.
On the next day of trial, during the State's presentation of rebuttal evidence, the trial court permitted the State to introduce the testimony of Patricia Stanford. The State indicated that the witness was being called to impeach the defendant's earlier testimony denying that she had called Teledyne after the incident to inquire about her husband's insurance proceeds. Defendant's objection to Patricia Stanford's testimony was again overruled. Ms. Stanford testified that, following Donald's death, a person identifying herself as Mary Cisewski *171 called Teledyne twice and asked about Donald's paycheck and life insurance proceeds. Following this testimony, the defendant was allowed to cross-examine Ms. Stanford, as well as present surrebuttal evidence, which together showed that the defendant was incarcerated at the time of the telephone call, that she could only make collect telephone calls, and that Teledyne Corp. did not accept collect calls.
It was the defendant's defense at trial that she shot her husband in self-defense and out of paranoia. She also maintained, as stated previously, that she did not intend to shoot her husband, and that she could not recall having fired the gun. Instructions on murder, voluntary manslaughter and involuntary manslaughter were tendered to the jury, and, as stated earlier, the jury returned a guilty verdict on the voluntary manslaughter charge.
The first issue presented in this appeal is whether the State's failure to disclose prior to trial the substance of the defendant's alleged telephone conversation with Patricia Stanford regarding Donald's life insurance proceeds constituted reversible error. A divided appellate court found that any error caused by the introduction of the undisclosed conversation was harmless error because at closing argument the defendant maintained that she was guilty of voluntary manslaughter, not murder, which was precisely the verdict the jury returned. The dissent expressed the opinion that the defendant did not receive a fair trial because the jury was also instructed on the lesser offense of involuntary manslaughter, and Patricia Stanford's testimony about the defendant's call to Teledyne suggested to the jury that the defendant acted deliberately and not recklessly.
Supreme Court Rule 412(a)(ii) (107 Ill.2d R. 412(a)(ii)) provides in pertinent part:
*172 "(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
* * *
(ii) any written or recorded statements and the substance of any oral statements made by the accused * * * and a list of witnesses to the making and acknowledgment of such statements."
Supreme Court Rule 412(a)(ii) (107 Ill.2d R. 412(a)(ii)) was promulgated to protect a defendant against surprise, unfairness, and inadequate preparation (People v. Patterson (1981), 102 Ill. App. 3d 844, 847), as well as to afford the defense an opportunity to investigate the circumstances surrounding the statement. (People v. Winfield (1983), 113 Ill. App. 3d 818, 836.) The rule is intended to encompass all statements made by a defendant which might have a bearing on the defendant's guilt or innocence. People v. Weaver (1982), 92 Ill. 2d 545, 558.
We find in this appeal that the State's failure to disclose defendant's alleged statements constituted a violation of Supreme Court Rule 412(a)(ii). (107 Ill.2d R. 412(a)(ii).) However, the failure to comply with discovery requirements does not in all instances necessitate a new trial. (People v. Greer (1980), 79 Ill. 2d 103, 120.) A new trial should only be granted if the defendant is prejudiced by the discovery violation and the trial court failed to eliminate the prejudice. (People v. Weaver (1982), 92 Ill. 2d 545, 560.) Among the factors to be considered in determining whether a new trial is warranted are the closeness of the evidence, the strength of the undisclosed evidence, and the likelihood that prior notice could have helped the defense discredit the evidence. People v. Weaver (1982), 92 Ill. 2d 545, 559.
*173 In the instant case, although we in no way condone the inaction of the State in failing to divulge this information prior to trial, we, nevertheless, believe that the defendant did not suffer sufficient prejudice so as to justify a reversal of her conviction. Defense counsel was given the opportunity to extensively cross-examine Patricia Stanford and was also allowed to recall the defendant on surrebuttal. As a result, defendant was able to effectively impeach the substance of Patricia Stanford's testimony by demonstrating that the defendant was incarcerated at the time of her alleged telephone call to Teledyne, that she could only make collect calls, and that Teledyne did not accept collect calls. In light of the fact that Ms. Stanford's testimony was severely discredited, there appears to be little more, if anything, defense counsel could have done had he been earlier advised of the existence of the statement. The defendant has not demonstrated to this court how any further investigation into the defendant's alleged conversation with Patricia Stanford would have altered the defendant's trial strategy and possibly changed the outcome of this case.
We also find, as did the appellate court, that defense counsel argued almost exclusively during closing argument that defendant was guilty of voluntary manslaughter rather than murder, which, in fact, was precisely the verdict the jury returned. After reciting the elements of voluntary manslaughter in light of the evidence presented at trial, defense counsel stated, "[I]f that's not Mary Cisewski in a nutshell, I don't know what is." Although defense counsel paid lip service to the theory of involuntary manslaughter, he could cite little evidence which would substantiate such a finding. Our review of the record in this case reveals that, even without Patricia Stanford's testimony, there was more than enough evidence from which the jury could have disbelieved *174 defendant's testimony that she did not intend to kill Donald and that her conduct amounted to mere recklessness. The question of intent is one for the jury to resolve and that finding will not be reversed on appeal unless the finding is inherently impossible or unreasonable. (See People v. Almo (1985), 108 Ill. 2d 54; People v. Johnson (1979), 70 Ill. App. 3d 149.) From our review of the record in this case, we find that the jury's verdict was not palpably contrary to the weight of the evidence presented.
In urging this court to reverse the appellate court's finding of harmless error, the defendant relies on People v. Weaver (1982), 92 Ill. 2d 545. In Weaver, a witness called by the State testified to a statement made by the defendant. The prosecutor had failed to inform defense counsel of this statement prior to trial. As soon as the witness testified concerning this statement, defense counsel moved to strike the testimony or, in the alternative, that a mistrial be granted. The trial court denied these motions, but offered to give defense counsel an opportunity to put Miss Weaver back on the stand and cross-examine her, and told defense counsel he would be given time to talk to her first. Defense counsel declined the opportunity, arguing that in light of the fact that Miss Weaver had already testified, he could not possibly remedy the damage in any way.
Weaver is clearly distinguishable from the instant case. Here, Patricia Stanford did not testify as to the statement before defense counsel had an opportunity to object. As previously explained, a few days before Patricia Stanford testified, the prosecutor advised defense counsel of the substance of the testimony she was expected to present. While in Weaver there was no time to request a continuance before the testimony was heard, such was obviously not the case here. Clearly, the defendant in this case had sufficient time to request a *175 continuance to investigate the circumstances of the alleged statement, but, for whatever reason, chose not to do so. A defendant cannot complain of prejudice when she fails to request a continuance for investigation of the alleged statement and instead proceeds with trial. (See People v. Foster (1979), 76 Ill. 2d 365; People v. Steel (1972), 52 Ill. 2d 442; see also People v. Stewart (1984), 105 Ill. 2d 22.) Furthermore, the defense counsel in Weaver sufficiently demonstrated to this court how his trial strategy would have been different had he known of the statement prior to the trial and how alternative strategies might have resulted in a different outcome. As stated previously, the defense counsel in the instant case has made no such showing, nor can this court determine, in light of the fact that Patricia Stanford's testimony was impeached, how any alternative trial strategy could have been more effective. Unlike the situation presented in Weaver, we do not believe that prior disclosure of the statement could have altered the outcome of the trial in this case.
The second issue presented in this appeal is whether certain statements made by the prosecutor during closing rebuttal argument deprived the defendant of a fair trial. In reviewing the defendant's allegations of error here, we first note that a prosecutor is allowed a great deal of latitude in making the closing argument (People v. Stock (1974), 56 Ill. 2d 461, 467; People v. Neumann (1986), 148 Ill. App. 3d 362, 373-74), and the trial court's determination of the propriety of the argument will generally be followed absent a clear abuse of discretion (People v. Smothers (1973), 55 Ill. 2d 172, 176). To constitute reversible error, the complained-of remarks must have resulted in substantial prejudice to the accused, such that absent those remarks the verdict would have been different. (People v. Morgan (1986), 112 Ill. 2d 111, 132.) In reviewing allegations of prosecutorial misconduct, the *176 closing arguments of both the State and the defendant must be examined in their entirety and the complained-of comments must be placed in their proper context. See People v. Nemke (1970), 46 Ill. 2d 49, 59.
The defendant's first allegation of error in this case involved the prosecutor's statement to the jury, "Let's take a real close look at the defense of paranoia * * * and we'll show you it's all a fabrication." Our review of the record indicates that this comment was not objected to at trial or raised in the motion for a new trial, which, of course, constituted a waiver of the right to raise this issue on appeal. (People v. Adams (1985), 109 Ill. 2d 102, 116; People v. Jackson (1981), 84 Ill. 2d 350, 358.) However, even assuming, arguendo, the issue had been preserved for appeal, this comment does not constitute reversible error. We have examined the context in which the above statement was made and find that it does not amount to an accusation that defense counsel fabricated a defense and encouraged the defendant to testify accordingly. (See People v. Freedman (1954), 4 Ill. 2d 414, 421.) The prosecutor was merely suggesting that, in light of Dr. Stipes' failure to find defendant insane, defendant's only alternative was to advance a defense of paranoia. The prosecutor was not suggesting that defense counsel concocted a baseless defense and encouraged defendant to lie about her paranoia, or that defense counsel somehow misrepresented the facts. Clearly, this comment did not rise to the level of impeaching defense counsel's integrity as in People v. Emerson (1983), 97 Ill. 2d 487, 497, where the prosecution in that case accused the defense attorney of laying down a smoke screen "composed of lies and misrepresentations, and innuendoes." We, therefore, conclude that, when read in its proper context, no prejudicial error occurred here as a result of the prosecutor's remark.
*177 The second allegation of error here involves the prosecution's argument that the defense in this case was premised on the defendant's belief that if she convinced the jury that she was paranoid, "they [the jury] can find me [the defendant] guilty of voluntary manslaughter and I [the defendant] can walk out of that door today. I [the defendant] can be home before the jurors are home, if they find me [the defendant] guilty. It is a fact ladies and gentlemen." Defense counsel's objection to the statement was immediately sustained by the trial court. Later, the trial court instructed the jury to consider only the evidence in the case and warned the jury that closing arguments are not evidence and that arguments not based on the evidence must be disregarded. The trial judge also admonished the jury "not to concern yourself with possible punishment or sentence for the offense charged during your deliberation."
Defendant asserts that the prosecution prejudiced defendant by misinforming the jury that a voluntary manslaughter conviction would result in no punishment at all for the defendant. She argues that the jury's verdict may reflect the view that the defendant would go free if they returned a verdict of guilty of voluntary manslaughter, and therefore the statement was highly prejudicial.
This court has held that it is error for a prosecutor to argue to the jury the punitive effect of the verdict when the jury will have nothing to do with fixing punishment. (People v. Galloway (1963), 28 Ill. 2d 355, 362.) However, such information may form the basis for a reversal only if it is a material factor in the conviction of a defendant. See People v. Cimino (1970), 45 Ill. 2d 556.
In the instant case, the prosecutor's comment was brief and unrepeated. The defendant's immediate objection to this isolated comment was sustained by the trial court and additional curative instructions were tendered *178 at the close of the trial. It is well settled that "[i]f a timely objection is made at trial * * *, the court can, by sustaining the objection or instructing the jury to disregard the answer or remark, usually correct the error." (People v. Carlson (1980), 79 Ill. 2d 564, 577; see also People v. Baptist (1979), 76 Ill. 2d 19.) Although we believe this comment would have been best left unsaid by the prosecutor, in light of the overwhelming evidence of defendant's guilt, we cannot say that the verdict would have been different absent this single isolated remark.
The defendant's third allegation of error in this case involves the prosecutor's statement to the jury, "Now is the time, Ladies and Gentlemen, to remove the cloak of innocence from this defendant and join Donald in saying `No Mary, No Mary.'" We find no error in the prosecutor's comment. It is fundamental that a prosecutor may argue that the defendant is guilty when she states, or it is apparent, that such argument is based solely on the evidence. (See People v. Tiller (1982), 94 Ill. 2d 303, 319.) Immediately prior to making this statement, the prosecutor said in closing argument:
"Ladies and Gentlemen, consider all of the evidence when you go back to deliberate. Consider the photographs. Remember what the defendant told the police immediately after the killing. Remember what Doctor Stipes said he believed the defendant believed, at that time."
Clearly, when the prosecutor's comment is read in its entirety, it is apparent that her argument regarding defendant's guilt was based on the evidence presented in the case and not on her own personal beliefs.
For the reasons stated herein, the judgments of the appellate and circuit courts are affirmed.
Judgments affirmed.
JUSTICE CUNNINGHAM took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/763862/ | 176 F.3d 473
U.S.v.Frank Westerling
NO. 97-7183
United States Court of Appeals,Third Circuit.
January 20, 1999
1
Appeal From: D.Del.
2
Affirmed. | 01-03-2023 | 04-18-2012 |
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